Exhibit
10.4
THIRD
AMENDMENT TO LOAN AGREEMENT
Third
Amendment to Loan Agreement, dated the 10th day of
September,
2007, by and among Matthews International Corporation, a Pennsylvania
corporation (the "Borrower"), the Banks (as defined in the Loan Agreement
(as
hereinafter defined)), Citizens Bank of Pennsylvania, a Pennsylvania banking
institution, in its capacity as joint lead arranger and administrative agent
for
the Banks (in such capacity, the "Agent"), PNC Bank, National Association,
a
national banking association, in its capacity as joint lead arranger and
syndication agent for the Banks (in such capacity, the "Syndication Agent"),
and
National City Bank, successor by merger to National City Bank of Pennsylvania,
in its capacity as documentation agent for the Banks (in such capacity, the
"Documentation Agent") (the "Third Amendment").
WITNESSETH:
WHEREAS,
pursuant to that certain Loan Agreement, dated December 3, 2001, by and among
the Borrower, the Banks, Citizens Bank of Pennsylvania, a Pennsylvania banking
institution, in its capacity as agent for the Banks, and PNC Bank, National
Association, a national banking association, in its capacity as the
documentation agent for the Banks, as amended by that certain (i) First
Amendment to Loan Agreement, dated April 21, 2004, by and among the Borrower,
the Banks, Citizens Bank of Pennsylvania, a Pennsylvania banking institution,
in
its capacity as lead arranger and administrative agent for the Banks, PNC
Bank,
National Association, a national banking association, in its capacity as
lead
arranger and syndication agent for the Banks, and National City Bank of
Pennsylvania, in its capacity as documentation agent for the Banks, and (ii)
Second Amendment to Loan Agreement, dated February 8, 2005, by and among
the
Borrower, the Banks, Citizens Bank of Pennsylvania, a Pennsylvania banking
institution, in its capacity as lead arranger and administrative agent for
the
Banks, PNC Bank, National Association, a national banking association, in
its
capacity as lead arranger and syndication agent for the Banks, and National
City
Bank of Pennsylvania, in its capacity as documentation agent for the Banks
(as
amended, the "Loan Agreement"), pursuant to which, among other things, the
Banks
agreed to extend a revolving credit facility to the Borrower in an aggregate
principal amount not to exceed One Hundred Fifty Million and 00/100 Dollars
($150,000,000.00); and
WHEREAS,
the Borrower desires to amend certain provisions of the Loan Agreement and
the
Banks and the Agent desire to permit such amendments pursuant to the terms
and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
intending to be legally bound hereby, the parties hereto agree as
follows:
1. All
capitalized terms used herein which are defined in the Loan Agreement shall
have
the same meaning herein as in the Loan Agreement unless the context clearly
indicates otherwise.
2. All
references to "National City Bank of Pennsylvania" in the Loan Agreement
and
each of the other Loan Documents are hereby deleted in their entirety and
in
their stead is inserted the following:
National
City Bank, successor by merger to National City Bank of
Pennsylvania.
3. The
Preamble of the Loan Agreement is hereby deleted in its entirety and in its
stead is inserted the following:
Agreement,
dated the 3rd
day of December, 2001, by and among Matthews International Corporation, a
Pennsylvania corporation (the "Borrower"), the Banks (as hereinafter defined),
Citizens Bank of Pennsylvania, a Pennsylvania banking institution, in its
capacity as joint lead arranger and administrative agent for the Banks (in
such
capacity, the "Agent"), PNC Bank, National Association, a national banking
association, in its capacity as joint lead arranger and syndication agent
for
the Banks (in such capacity, the "Syndication Agent"), and National City
Bank,
successor by merger to National City Bank of Pennsylvania, in its capacity
as
documentation agent for the Banks (in such capacity, the "Documentation
Agent").
4. The
reference to "One Hundred Fifty Million and 00/100 Dollars ($150,000,000.00)"
in
the first "WHEREAS" clause of the Loan Agreement is hereby deleted in its
entirety and in its stead is inserted the following: "Two Hundred
Twenty-Five Million and 00/100 Dollars ($225,000,000.00)".
5. The
reference to "Ten Million and 00/100 Dollars ($10,000,000.00)" in the second
"WHEREAS" clause of the Loan Agreement is hereby deleted in its entirety
and in
its stead is inserted the following: "Twenty-Five Million and 00/100
Dollars ($25,000,000.00)".
6. Section
1.01 of the Loan Agreement is hereby amended by inserting the following
definitions in the appropriate alphabetical order:
"Refunded
Swing Line Loans" shall mean as set forth in Section 2.02.1(d)
hereof.
"Swing
Line Lender" shall mean Citizens in its capacity as Swing Line Lender, or
any
Person serving as a successor Swing Line Lender hereunder.
"Swing
Line Loan Facility" shall mean as set forth in Section 2.02.1(a)
hereof.
"Swing
Line Loans" shall mean the Loans made by the Swing Line Lender to the Borrower
pursuant to Section 2.02.1 hereof.
"Swing
Line Note" shall mean the Swing Line Note, made by the Borrower to the Swing
Line Lender in the form of Exhibit "B.1" attached hereto and made a part
hereof, as amended, modified or supplemented from time to time, together
with
all extensions, renewals, refinancings or refundings in whole or in
part.
"Swing
Line Rate" shall mean an interest rate per annum offered by the Swing Line
Lender with respect to the Swing Line Loans, as determined in its sole
discretion.
"Term
Loan Commitment" shall mean, with respect to each Bank, the amount set forth
on
Schedule 1 attached hereto and made a part hereof as the amount of such
Bank’s commitment to make the Term Loan (subject to the terms and conditions of
this Agreement). Schedule 1 shall be amended from time to time
to reflect any changes to the Term Loan Commitment.
7. Section
1.01 of the Loan Agreement is hereby amended by deleting the following
definitions in their entirety and in their stead inserting the
following:
"Applicable
Rate" shall mean, as of the date of determination, the Prime Rate plus the
Applicable Prime Margin, the Libor Rate plus the Applicable Libor Margin,
the
Prime Rate, the Libor Rate plus four-tenths of one percent (.40%), or the
Swing
Line Rate, as the case may be.
"Commitment"
shall mean, with respect to each Bank, the amount set forth on Schedule 1
attached hereto and made a part hereof as the amount of each Bank's commitment
to make Revolving Credit Loans (and, in the case of the Swing Line Lender,
Swing
Line Loans) and participate in the issuance of Letters of Credit, as such
amount
may be modified from time to time pursuant to Section 8.17(A)
hereof. Schedule 1 shall be amended from time to time to
reflect modifications pursuant to Section 8.17(A) and any other changes to
the
Commitment of the Banks.
"Commitment
Percentage" shall mean, with respect to each Bank, the percentage set forth
on
Schedule 1 attached hereto and made a part hereof as such Bank's
percentage of the aggregate Commitments and the Term Loan Commitment (excluding
the amount of the Swing Line Loan Facility) of all of the Banks, as such
percentage may be changed from time to time in accordance with the terms
and
conditions of this Agreement. Schedule 1 shall be amended from
time to time to reflect any changes to the Commitment Percentages.
"Expiry
Date" shall mean September 10, 2012.
"Loan"
or
"Loans" shall mean, singularly or collectively, as the context may require,
the
Revolving Credit Loans, the Term Loan, if any, the Swing Line Loans and any
other credit to the Borrower extended by any Bank in accordance with Article
II
hereof as evidenced by the Notes, as the case may be.
"Majority
Banks" shall mean, (i) if there are no Loans (excluding Swing Line Loans)
outstanding or Letters of Credit Outstanding, any group of Banks constituting
the majority of the total number of Banks whose Commitment Percentages aggregate
at least fifty-one percent (51%) of the Total Commitment Amount or, (ii)
if
there are Loans (excluding Swing Line Loans) outstanding and/or Letters of
Credit Outstanding, any group of Banks constituting the majority of the total
number of Banks if the sum of the Loans (excluding Swing Line Loans) outstanding
and Letters of Credit Outstanding of such Bank or Banks aggregates at least
fifty-one percent (51%) of the total principal amount of all of such Loans
(excluding Swing Line Loans) and Letters of Credit Outstanding.
"Note"
or
"Notes" shall mean, singularly or collectively as the context may require,
the
Revolving Credit Notes, the Term Notes (if any), the Swing Line Note and
any
other note of the Borrower executed and delivered pursuant to this Agreement,
as
any such note may be amended, modified or supplemented from time to time,
together with all extensions, renewals, refinancings or refundings in whole
or
in part.
"Revolving
Credit Facility Commitment" shall mean the difference of (i) Two Hundred
Twenty-Five Million and 00/100 Dollars ($225,000,000.00) or such greater
amount
as may be applicable in accordance with the provisions of Section 2.21 hereof,
minus (ii) the outstanding principal amount of the Term Loan, if
any.
"Term
Loan" shall mean that as set forth in Section 2.02(a).
"Total
Commitment Amount" shall mean the obligation of the Banks hereunder to make
Loans (other than Swing Line Loans) and to issue Letters of Credit up to
the
maximum aggregate principal amount of Two Hundred Twenty-Five Million and
00/100
Dollars ($225,000,000.00) or such greater amount as may be applicable in
accordance with the provisions of Section 2.21 hereof.
8. Section
1.01 of the Loan Agreement is hereby amended by deleting the following
definition in its entirety:
"Invested
Funds"
9. The
first
sentence of Section 2.01(a) of the Loan Agreement is hereby deleted in its
entirety and in its stead is inserted the following:
Subject
to the terms and conditions and relying upon the representations and warranties
set forth in this Agreement, the Notes and the other Loan Documents, the
Banks
severally (but not jointly) agree to make loans in either Dollars or one
or more
Optional Currencies (the "Revolving Credit Loans") to the Borrower at any
time
or from time to time on or after the Closing Date and to and including the
Business Day immediately preceding the Expiry Date in an aggregate Dollar
Equivalent principal amount which, when combined with the aggregate principal
amount of all Swing Line Loans outstanding and the amount of aggregate Letters
of Credit Outstanding, shall not exceed at any one time outstanding the
Revolving Credit Facility Commitment; provided, however, that (i) no Bank
shall
be required to make Revolving Credit Loans (or participate in the issuance
of
Letters of Credit) in an aggregate Dollar Equivalent principal amount
outstanding at any one time exceeding the difference of (a) such Bank's
Commitment minus (b) the outstanding principal amount of the Term Loan made
by
such Bank, if any, (ii) no Prime Rate Loan shall be made in an Optional
Currency, and (iii) after giving effect to any Revolving Credit Loan denominated
in Optional Currencies the Dollar Equivalent amount of all such Revolving
Credit
Loans shall not exceed Seventy-Five Million and 00/100 Dollars
($75,000,000.00).
10. Section
2.01(d) of the Loan Agreement is hereby deleted in its entirety and in its
stead
is inserted the following:
(d) Maximum
Principal Amount of Revolving Credit Loans and Letters of Credit
Outstanding. The sum of the aggregate Dollar Equivalent principal
amount of all Revolving Credit Loans outstanding, the sum of the aggregate
principal amount of all Swing Line Loans outstanding and the aggregate Letters
of Credit Outstanding shall not exceed the amount of the Revolving Credit
Facility Commitment subject to Section 2.21. The Borrower agrees that
if at any time the sum of the aggregate Dollar Equivalent principal amount
of
all Revolving Credit Loans outstanding, the sum of the aggregate
principal amount of all Swing Line Loans outstanding and the aggregate Letters
of Credit Outstanding exceeds the amount of the Revolving Credit Facility
Commitment (the "Excess Amount"), the Borrower shall promptly, but in no
event
later than one Business Day thereafter, pay to the Agent (for the ratable
benefit of the Banks) such Excess Amount. If not sooner paid, the
entire principal balance of all outstanding Revolving Credit Loans, together
with all unpaid accrued interest thereon, and all other sums and costs owed
to
the Agent and the Banks by the Borrower pursuant to this Agreement, shall
be
immediately due and payable on the Expiry Date, without notice, presentment
or
demand of any kind.
11. Section
2.02 of the Loan Agreement is hereby deleted in its entirety and in its stead
is
inserted the following:
2.02 Term
Loan
(a) Conversion
Option. Upon the written request (the "Term Loan Notice") by the
Borrower received by the Agent at any one (1) time prior to September 10,
2011,
and so long as no Potential Default or Event of Default has occurred, the
Borrower may convert (the "Conversion Option") a portion of the outstanding
principal balance of the Revolving Credit Loans which are denominated in
Dollars
in an amount not to exceed Fifty Million and 00/100 Dollars ($50,000,000.00)
(the "Term Amount") into a term loan which will be denominated in Dollars
(the
"Term Loan"). Such conversion shall be effective on the first (1st) day
of the first
(1st) full
calendar month following the Agent's receipt of such written request so long
as
such written request was received at least five (5) Business Days prior to
the
effective date of such conversion and the Borrower executes and delivers
to the
Agent a Term Note for each Bank in the amount of each Bank's Pro Rata
Share.
(b) Nature
of Term Loan. Upon repayment of any amount of principal or
interest on the Term Loan by the Borrower, the Borrower may not reborrow
under this Section 2.02.
(c) Term
Notes. The joint and several obligations of the Borrower to repay
the unpaid principal amount of the Term Loan made to the Borrower by each
Bank
and to pay interest therein shall be evidenced in part by the Term Notes
of the
Borrower. Each Term Note shall be payable to the order of a Bank in a
principal amount equal to such Bank's Pro Rata Share with respect to the
Term
Loan. The executed Term Notes will be delivered by the Borrower to
the Banks on the effective date of the Conversion Option.
(d) Term
Loan Interest Rate Options.
(i) The
Borrower may, subject to the terms and conditions of this Agreement, convert
all
or a portion of the Term Loan which is a Libor Rate Loan(s) into a Prime
Rate
Loan as set forth in Section 2.02(d)(ii). In addition, the Borrower
may, subject to the terms and conditions of this Agreement, convert all or
a
portion of the Term Loan that is a Prime Rate Loan into a Libor Rate Loan
in
accordance with this Section 2.02(d)(i). Any portion of the Term Loan
that is converted from a Prime Rate Loan into a Libor Rate Loan shall be
converted, and shall begin to accrue interest with reference to the Libor
Rate,
on such Business Day, in such amount (greater than or equal to One Million
and
00/100 Dollars ($1,000,000.00); provided, however, that any amount in excess
of
One Million and 00/100 Dollars ($1,000,000.00) may only be in increments
of Five
Hundred Thousand and 00/100 Dollars ($500,000.00)), and with such an Interest
Period as an Authorized Representative of the Borrower shall request by written
or telephonic notice (confirmed promptly, but in no event later than one
(1)
Business Day thereafter, in writing) received by the Agent no later than
10:00
a.m. (Pittsburgh, Pennsylvania time) on the third (3rd) Business
Day
prior to the requested date of conversion into such Libor Rate
Loan. In addition, in the event that the Borrower desires to renew
the portion of the Term Loan that is a Libor Rate Loan for an additional
Interest Period, an Authorized Representative of the Borrower shall provide
the
Agent with written or telephonic notice (confirmed promptly, but in no event
later than one (1) Business Day thereafter, in writing) thereof on or before
10:00 a.m. (Pittsburgh, Pennsylvania time) on the third (3rd) Business
Day
prior to the expiration of the applicable Interest Period. In the
event that the Borrower fails to provide the Agent with the required written
or
telephonic notice (confirmed promptly, but in no event later than one (1)
Business Day thereafter, in writing) prior to 10:00 a.m. (Pittsburgh,
Pennsylvania time) on the third (3rd) Business
Day
prior to the expiration of the applicable Interest Period for a Libor Rate
Loan,
the Borrower shall be deemed to have given notice that such portion of the
Term
Loan shall be converted into a Prime Rate Loan on the last day of the applicable
Interest Period. Each written notice of any Libor Rate Loan shall be
irrevocable and binding on the Borrower and the Borrower shall indemnify
the
Agent and the Banks against any loss or expense incurred by the Banks as
a
result of any failure by the Borrower to consummate such transaction calculated
as set forth in Section 2.12(c) hereof.
(ii) The
Borrower shall have the option, subject to the terms and conditions of this
Agreement, to convert a portion of the Term Loan that is a Prime Rate Loan
into
a Libor Rate Loan as set forth in Section 2.02(d)(i); provided, however,
that no
portion of the outstanding principal amount of any Libor Rate Loan may be
renewed as or converted into a Libor Rate Loan of a different duration if
such
Libor Rate Loan relates to any Hedging Obligations. Any portion of
the Term Loan that is converted from a Libor Rate Loan into a Prime Rate
Loan
shall be converted, and shall begin to accrue interest with reference to
the
Prime Rate, on such Business Day and in such amount as an Authorized
Representative of the Borrower shall request by written or telephonic notice
(confirmed promptly, but in no event later than one (1) Business Day thereafter,
in writing) received by the Agent no later than 10:00 a.m. (Pittsburgh,
Pennsylvania time) on the Business Day of the requested conversion of such
portion of the Term Loan into a Prime Rate Loan.
(iii) Upon
receipt of a Term Loan Notice or a request to renew or convert an interest
rate
option with respect to the Term Loan, the Agent shall promptly advise each
of
the Banks of its receipt of the Term Loan Notice or the request to renew
or
convert an interest rate option with respect thereto, the amount of the Term
Loan, the Interest Period thereof, as applicable, and the Bank's Pro Rata
Share
of the Term Loan.
(e) Payments
of Principal and Maturity. If the Borrower notifies the Agent in
the Term Loan Notice that it elects to make quarterly principal payments
with
respect to the Term Loan then, subject to the terms and conditions of this
Agreement, commencing on the last day of the first (1st) Fiscal
Quarter
immediately following the first (1st) day
of the Term
Loan, and on the last day of each successive Fiscal Quarter thereafter through
and including the Expiry Date, the Borrower shall make equal quarterly principal
payments in Dollars to the Agent for the ratable account of the Banks in
such
amount as the Agent shall advise the Borrower prior to or on the first (1st) day
of a Term
Loan (such amount shall be an amount which will result in a level principal
payment necessary to amortize the principal balance of the Term Loan over
a
period selected by the Borrower; provided, however, that such amortization
period shall not exceed five (5) years), plus accrued interest as set forth
in
Section 2.04 hereof. Subject to the terms and conditions of this
Agreement, all unpaid principal, accrued interest and all other sums and
costs
incurred by the Agent and the Banks pursuant to this Agreement with respect
to
the Term Loan shall be immediately due and payable on the Expiry Date without
notice, presentment or demand of any kind.
12. The
following is added as new Section 2.02.1 of the Loan Agreement:
2.02.1 Swing
Line Loan Facility.
(a) Swing
Line Loans. Subject to the terms and conditions and relying upon
the representations and warranties set forth in this Agreement and the other
Loan Documents, the Swing Line Lender may, in its sole and absolute discretion,
make available to the Borrower at any time and from time to time during the
period from the Closing Date through and including the Business Day immediately
preceding the earlier of (i) the date upon which the aggregate unpaid principal
balance of the Swing Line Loans become due and payable by demand or (ii)
the
Expiry Date, by making Swing Line Loans to the Borrower in Dollars in an
aggregate principal amount not exceeding at any one time outstanding Twenty-Five
Million and 00/100 Dollars ($25,000,000.00) (the "Swing Line Loan Facility");
provided, however, that the aggregate principal amount of the
Swing Line Lender's Swing Line Loans outstanding, the Dollar Equivalent
principal amount of all Revolving Credit Loans outstanding of all the Banks
and
the aggregate Letters of Credit Outstanding at any one time shall not exceed
the
aggregate amount of the Revolving Credit Facility Commitment subject to Section
2.21. If not sooner paid, each Swing Line Loan, all unpaid interest
thereon and all other sums and costs incurred hereunder with respect to such
Swing Line Loan shall be immediately due and payable on the earlier of (i)
thirty (30) Business Days from the date such Swing Line Loan was made, (ii)
demand or (iii) the Expiry Date, without notice, presentment or demand (unless
payable by demand). Within the limits of time and amount set forth in
this Section 2.03.1, and subject to the provisions of this Agreement including,
without limitation, the Swing Line Lender's right to demand repayment of
the
Swing Line Loans at any time with or without the occurrence of an Event of
Default, Borrower may borrow, repay and reborrow under this Section
2.02.1.
(b) Swing
Line Note. The obligation of the Borrower to repay the unpaid principal
amount of the Swing Line Loans made to the Borrower by the Swing Line Lender
and
to pay interest on the unpaid principal amount thereof will be evidenced
in part
by the Swing Line Note of the Borrower. The executed Swing Line Note
will be delivered by Borrower to the Swing Line Lender on September 10,
2007.
(c) Making
Swing Line Loans. Subject to the terms and conditions set forth
in this Agreement and the other Loan Documents, and provided that the Borrower
has satisfied all applicable conditions specified in Article IV hereof, the
Swing Line Lender may, in its sole and absolute discretion, make Swing Line
Loans to the Borrower on such Business Day and in such amount as an Authorized
Representative of the Borrower shall request by written or telephonic notice
(confirmed promptly, but in no event later than one (1) Business Day thereafter
in writing) received by the Swing Line Lender no later than 10:00 a.m.
(Pittsburgh, Pennsylvania time) on the date of requested disbursement of
the
Swing Line Loan. Subject to the terms and conditions of this
Agreement, on each borrowing date, the Swing Line Lender shall make the proceeds
of the Swing Line Loan available to the Borrower at the Swing Line Lender's
Office in immediately available funds not later than 2:00 p.m., Pittsburgh,
Pennsylvania time. The Swing Line Lender shall give notice to the
Agent no later than 10:00 a.m. (Pittsburgh, Pennsylvania time) of the next
Business Day or such other time as the Agent and the Swing Line Lender may
agree
of the amount of each such Swing Line Loan.
(d) Refunded
Swing Line Loans. With respect to any Swing Line Loans, the Swing
Line Lender may, at any time in its sole and absolute discretion, deliver
to the
Agent (with a copy to the Borrower), no later than 10:00 a.m. (Pittsburgh,
Pennsylvania time) on the first (1st) Business
Day
immediately preceding the proposed date of disbursement, a notice (which
shall
be deemed to be a notice of borrowing given by an Authorized Representative)
requesting the Banks to make Revolving Credit Loans that are Prime Rate Loans
on
such date in an amount equal such portion of the Swing Line Loans outstanding
as
the Swing Line Lender may request in its sole and absolute discretion plus,
if
the Swing Line Lender so requests, accrued interest thereon,(the "Refunded
Swing
Line Loans"). Anything contained in this Agreement to the contrary
notwithstanding, (i) the proceeds of such Revolving Credit Loans made by
Banks
other than the Swing Line Lender shall be immediately delivered by the Agent
to
the Swing Line Lender (and not to the Borrower) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (ii) on the day
such
Revolving Credit Loans are made, the Swing Line Lender's Pro Rata Share of
the
Refunded Swing Line Loans shall be deemed to be paid with the proceeds of
a
Revolving Credit Loan made by the Swing Line Lender, and such portion of
the
Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing
Line Loans and shall no longer be due under the Swing Line Note of the Swing
Line Lender but shall instead constitute part of the Swing Line Lender's
outstanding Revolving Credit Loans and shall be due under the Revolving Credit
Note of the Swing Line Lender.
Anything
contained herein to the
contrary notwithstanding, each Bank's obligation to make Revolving Credit
Loans
for the purpose of repaying any Refunded Swing Line Loans pursuant to the
immediately preceding paragraph shall be absolute and unconditional and shall
not be affected by any circumstance, including (a) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the Swing
Line Lender, the Borrower or any other Person for any reason whatsoever;
(b) the
occurrence or continuation of an Event of Default or a Potential Default;
(c)
any Material Adverse Change; (d) any breach of this Agreement or any other
Loan
Document by the Borrower; or (e) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that
such obligations of each Bank are subject to the condition that (X) the Swing
Line Lender believed in good faith that all conditions under Article IV to
the
making of the applicable Swing Line Loans were satisfied at the time such
Swing
Line Loans were made or (Y) the satisfaction of any such condition not satisfied
had been waived in writing by the Banks prior to or at the time such Swing
Line
Loans were made; provided, further, that no Bank shall be
obligated in any event to make Revolving Credit Loans in excess of its
Commitment less its Pro Rata Share of the Letters of Credit
Outstanding.
13. Section
2.03(a) of the Loan Agreement is hereby deleted in its entirety and in its
stead
is inserted the following:
(a) Interest
on the Loans. Subject to the terms and conditions of this
Agreement, the aggregate outstanding principal balance of the Revolving Credit
Loans shall be, at the option of the Borrower as selected pursuant to Section
2.01(c) hereof, (x) Prime Rate Loans which shall bear interest for each day
at
the rates set forth below or (y) Libor Rate Loans which shall bear interest
during each applicable Interest Period at the rates set forth
below:
(i) Subject
to the terms and conditions of this Agreement, on the date of this Amendment
and
through the day immediately preceding the first (1st) Incentive
Pricing
Effective Date, (x) Revolving Credit Loans which are Prime Rate Loans shall
bear
interest for each day at a rate per annum equal to the Prime Rate plus the
applicable margin corresponding to Tier I as set forth below and (y) Revolving
Credit Loans which are Libor Rate Loans shall bear interest during each
applicable interest period at a rate per annum equal to the Libor Rate plus
the
Applicable Libor Margin corresponding to Tier I set forth below;
(ii) Subject
to the terms and conditions of this Agreement, during each Fiscal Quarter,
in
accordance with Section 5.01(b) hereof, the Borrower shall submit to the
Agent
and the Banks quarterly financial statements (the Fiscal Quarter in which
such
financial statements are required to be received by the Agent and the Banks
is
the "Reporting Quarter") as of the last day of the Fiscal Quarter immediately
preceding such Reporting Quarter (with respect to any Reporting Quarter,
the
Fiscal Quarter immediately preceding such Reporting Quarter is the "Measurement
Quarter"). Upon receipt of such quarterly financial statements by the
Agent and the Banks in accordance with Section 5.01(b), the Borrower's Leverage
Ratio shall be calculated as of the last day of the Measurement Quarter ending
June 30, 2007 and as of the last day of each Measurement Quarter
thereafter. From the first (1st) day
of the first
(1st) full
calendar month following the Agent's and the Bank's receipt of such quarterly
financial statements (the "Incentive Pricing Effective Date") until the next
Incentive Pricing Effective Date, (x) Revolving Credit Loans which are Prime
Rate Loans shall bear interest for each day at a rate per annum equal to
the
Prime Rate plus the applicable margin determined by reference to the Borrower's
Leverage Ratio as set forth below (the "Applicable Prime Margin") and (y)
Revolving Credit Loans which are Libor Rate Loans shall bear interest during
each applicable Interest Period at a rate per annum equal to the Libor Rate
plus
the applicable margin determined by reference to the Borrower's Leverage
Ratio
as set forth below (the "Applicable Libor Margin"):
|
Tier
|
Leverage
Ratio
|
Applicable
Libor
Margin
|
Applicable
Prime
Margin
|
Applicable
L/C
Fee Percentage
|
Applicable
Commitment Fee Percentage
|
|
I
|
<
1.00
|
0.40%
|
0.00%
|
0.40%
|
0.15%
|
|
II
|
³1.00
<
1.50
|
0.60%
|
0.00%
|
0.60%
|
0.20%
|
|
III
|
³
1.50
|
0.80%
|
0.25%
|
0.80%
|
0.25%
|
(iii) Subject
to the terms and conditions of this Agreement, in the event that the Borrower
fails to timely deliver the financial statements required by Section 5.01(b)
hereof, the Applicable Margin shall be the amount corresponding to Tier III
until the delivery of such financial statements.
Subject
to the terms and conditions of this Agreement, the aggregate outstanding
principal balance of the Term Loan shall be, at the option of the Borrower
as
selected pursuant to Section 2.02(d) hereof, (x) Prime Rate Loans which shall
bear interest for each day at the Prime Rate or (y) Libor Rate Loans which
shall
bear interest during each applicable Interest Period at the Libor Rate plus
four-tenths of one percent (.40%).
Subject
to the terms and conditions of this Agreement, the aggregate outstanding
principal balance of the Swing Line Loans shall bear interest for each day
at
the Swing Line Rate.
14. Section
2.03(b) of the Loan Agreement is hereby deleted in its entirety and in its
stead
is inserted the following:
(b) Calculation
of Interest and Fees; Adjustment to Prime Rate and Swing Line
Rate. Interest on the Loans, unpaid fees and other sums payable
hereunder shall be computed on the basis of a year of three hundred sixty
(360)
days and paid for the actual number of days elapsed; provided that, for
Revolving Credit Loans made in an Optional Currency for which a three hundred
sixty five (365) day basis is the only market practice available to the Agent,
such rate shall be calculated on the basis of a year of three hundred sixty
five
(365) or three hundred sixty six (366) days, as the case may be, for the
actual
days elapsed. In the event of any change in the Prime Rate or the
Swing Line Rate, the rate of interest applicable to each Prime Rate Loan
or the
Swing Line Loans shall be adjusted to immediately correspond with such change;
provided, however, that any interest rate charged hereunder shall not exceed
the
Maximum Rate.
15. The
following is added at the end of Section 2.04 of the Loan
Agreement:
The
Borrower shall pay to the Swing Line Lender interest on the unpaid principal
balance of the aggregate outstanding balance of the Swing Line Loans in arrears,
on October 1, 2007 and on the first day of each January, April, July and
October thereafter through and including the Expiry Date.
16. Section
2.05(i) of the Loan Agreement is hereby deleted in its entirety and in its
stead
is inserted the following:
(i) A
commitment fee in Dollars on the unused portion of the amount of the Revolving
Credit Facility Commitment during the period from the date of this Agreement
to
the Expiry Date, payable quarterly in arrears beginning on January 1, 2002
and
continuing on the first (1st) day of each April, July, October and January
thereafter and on the Expiry Date. Such fee shall be calculated
daily, and shall equal the amount by which the amount of the Revolving Credit
Facility Commitment has exceeded the closing principal balance of the sum
of the
outstanding Dollar Equivalent principal balance of the Revolving Credit Loans
(for purposes of this Computation the Swing Line Lender's Swing Line Loans
shall
be deemed to be borrowed amounts under its Revolving Credit Commitment) and
the
Letters of Credit Outstanding on each day, multiplied by the applicable
percentage with respect to commitment fees for such day determined by reference
to the Borrower's Leverage Ratio as set forth in set forth in Section
2.03(a)(ii) hereof (the "Applicable Commitment Fee Percentage");
and
17. The
first
sentence of Section 2.06 of the Loan Agreement is hereby deleted in its entirety
and in its stead is inserted the following:
From
time
to time during the period from the Closing Date to the fifteenth (15th) day
preceding the
Expiry Date, subject to the further terms and conditions hereof, including
those
required in connection with the making of Revolving Credit Loans, the Agent
shall issue Standby Letters of Credit or Commercial Letters of Credit
(collectively the "Letters of Credit") for the account of the Borrower in
an
amount not to exceed Ten Million and 00/100 Dollars ($10,000,000.00) in the
aggregate as a subfacility of the Revolving Credit Facility Commitment;
provided, however, that on any date on which the Borrower requests
a Letter of Credit, and after giving effect to the Letter of Credit Face
Amount
of such Letter of Credit, the sum of all Revolving Credit Loans outstanding,
the
sum of all Swing Line Loans outstanding and the Letters of Credit Outstanding
shall not exceed the Revolving Credit Facility Commitment.
18. The
first
sentence of Section 2.21 of the Loan Agreement is hereby deleted in its entirety
and in its stead is inserted the following:
If
at any
time after September 10, 2007, and so long as no Event of Default or Potential
Default has occurred and is continuing, the Borrower desires to increase
the
Revolving Credit Facility Commitment, (each, an "Additional Increase") the
Borrower shall notify the Agent in writing, who will promptly notify each
Bank
thereof, provided that any such Additional Increase shall be in a minimum
of Ten
Million and 00/100 Dollars ($10,000,000.00) and the aggregate of all such
Additional Increases shall not exceed Fifty Million and 00/100 Dollars
($50,000,000.00).
19. Section
8.17(A) of the Loan Agreement is hereby deleted in its entirety and in its
stead
is inserted the following:
A. Assignment/Transfer
of Commitments/Term Loan Commitments.
Each
Bank
shall have the right at any time or times to assign or transfer to an Eligible
Assignee or any affiliate of such Bank, without recourse, all or a portion
of
(a) that Bank's Commitment or Term Loan Commitment, if any, (b) all Loans
made
by that Bank, (c) that Bank's Notes, and (d) that Bank's participation in
Letters of Credit and that Bank's participation purchased pursuant to Section
7.04; provided, however, in each such case, that the transferor and the
transferee shall have complied with the following requirements:
20. Section
8.17(A)(iii) of the Loan Agreement is hereby deleted in its entirety and
in its
stead is inserted the following:
(iii) Minimum
Amount. No transfer may be consummated pursuant to this Section
8.17(A) (other than a transfer by any Bank to an affiliate of such Bank)
in an
aggregate amount less than (a) Five Million and 00/100 Dollars ($5,000,000.00)
or (b) if such Bank's Commitment and/or Term Loan Commitment, if any, is
at any
time less than Five Million and 00/100 Dollars ($5,000,000.00), the entire
amount of such Bank's Commitment and/or Term Loan Commitment, if
any.
21. Section
8.17(B) of the Loan Agreement is hereby deleted in its entirety and in its
stead
is inserted the following:
B. Participations.
Each
Bank
shall have the right at any time or times, without the consent of any other
party, to sell one or more participations or sub-participations to one or
more
financial institutions or any affiliate of such Bank, in all or any part
of (a)
that Bank's Commitment or Term Loan Commitment, if any, (b) that Bank's
Commitment Percentage, (c) any Loan made by that Bank, (d) any Note delivered
to
that Bank pursuant to this Agreement and (e) that Bank's participations,
if any,
purchased pursuant to Section 7.04 or this Section 8.17(B).
22. Schedule
1 to the Loan Agreement is hereby deleted in its entirety and replaced by
Schedule 1 attached hereto.
23. Exhibit
B
to the Loan Agreement is hereby deleted in its entirety and replaced by Exhibit
B attached hereto.
24. The
Loan
Agreement is hereby amended by inserting as Exhibit B.1 to the Loan Agreement
in
the appropriate order the Exhibit B.1 attached hereto.
25. Exhibit
C
to the Loan Agreement is hereby deleted in its entirety and replaced by Exhibit
C attached hereto.
26. The
provisions of Section 2 through 25 of this Third Amendment shall not become
effective until the Agent has received the following, each in form and substance
acceptable to the Agent:
|
|
(a)
|
this
Third Amendment, duly executed by the Borrower and the
Banks;
|
|
|
(b)
|
the
documents listed in the Preliminary Closing Checklist set forth
on
Exhibit A attached hereto and made a part hereof;
and
|
|
|
(c)
|
such
other documents as may be reasonably requested by the
Agent.
|
27. The
Borrower hereby reconfirms and reaffirms all representations and warranties,
agreements and covenants made by and pursuant to the terms and conditions
of the
Loan Agreement, except as such representations and warranties, agreements
and
covenants may have heretofore been amended, modified or waived in writing
in
accordance with the Loan Agreement, and except any such representations or
warranties made as of a specific date or time, which shall have been true
and
correct in all material respects as of such date or time.
28. The
Borrower acknowledges and agrees that each and every document, instrument
or
agreement which at any time has secured payment of the Borrower's Indebtedness
under the Loan Agreement including, but not limited to, (i) the Loan Agreement
and (ii) the Guaranty Agreements continue to secure prompt payment when due
of
the Borrower's Indebtedness under the Loan Agreement.
29. The
Borrower hereby represents and warrants to the Banks and the Agent that (i)
the
Borrower has the legal power and authority to execute and deliver this Third
Amendment; (ii) the officers of the Borrower executing this Third Amendment
have
been duly authorized to execute and deliver the same and bind the Borrower
with
respect to the provisions hereof; (iii) the execution and delivery hereof
by the
Borrower and the performance and observance by the Borrower of the provisions
hereof and of the Loan Agreement and all documents executed or to be executed
therewith, do not violate or conflict with the organizational documents of
the
Borrower or any Law applicable to the Borrower or result in a breach of any
provision of or constitute a default which would have a Material Adverse
Effect
under any other agreement, instrument or document binding upon or enforceable
against the Borrower and (iv) this Third Amendment, the Loan Agreement and
the
documents executed or to be executed by the Borrower in connection herewith
or
therewith constitute valid and binding obligations of the Borrower in every
respect, enforceable in accordance with their respective terms.
30. The
Borrower represents and warrants that (i) no Event of Default exists under
the
Loan Agreement, nor will any occur as a result of the execution and delivery
of
this Third Amendment or the performance or observance of any provision hereof;
(ii) the Schedules attached to and made part of the Loan Agreement are true
and
correct as of the date hereof in all material respects and there are no material
modifications or supplements thereto; and (iii) it presently has no claims
or
actions of any kind at law or in equity against the Banks or the Agent arising
out of or in any way relating to the Loan Agreement or the other Loan
Documents.
31. Each
reference to the Loan Agreement that is made in the Loan Agreement or any
other
document executed or to be executed in connection therewith shall hereafter
be
construed as a reference to the Loan Agreement as amended hereby.
32. The
agreements contained in this Third Amendment are limited to the specific
agreements made herein. Except as amended hereby, all of the terms
and conditions of the Loan Agreement shall remain in full force and
effect. This Third Amendment amends the Loan Agreement and is not a
novation thereof.
33. This
Third Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
34. This
Third Amendment shall be governed by, and shall be construed and enforced
in
accordance with, the Laws of the Commonwealth of Pennsylvania without regard
to
the principles or the conflicts thereof. The Borrower hereby consents
to the jurisdiction and venue of the Court of Common Pleas of Allegheny County,
Pennsylvania and the United States District Court for the Western District
of
Pennsylvania with respect to any suit arising out of or mentioning this Third
Amendment.
[INTENTIONALLY
LEFT BLANK]
IN
WITNESS WHEREOF, and intending to be legally bound, the parties hereto, have
caused this Third Amendment to be duly executed by their duly authorized
officers on the day and year first above written.
Borrower:
|
ATTEST
By:
Name:
Title:
|
Matthews
International Corporation
By:___________________________________
Name: _______________________________
Title: ________________________________
|
| |
|
| |
Citizens
Bank of Pennsylvania, as Agent and for itself as a Bank
By:___________________________________
Name: _______________________________
Title: ________________________________
|
| |
|
| |
PNC
Bank, National Association, as Syndication Agent and for itself
as a
Bank
By:___________________________________
Name: _______________________________
Title: ________________________________
|
| |
|
| |
National
City Bank, as Documentation Agent and for itself as a Bank
By:___________________________________
Name: _______________________________
Title: ________________________________
|
EXHIBIT
A
Preliminary
Closing Checklist
See
Attached
Schedule
1
Schedule
of Banks and Commitments
|
Bank
|
Commitment
For Revolving Credit Loans
|
Commitment
for Term Loan
|
Commitment
Percentage
|
|
Citizens
Bank of Pennsylvania
525
William Penn Place
Pittsburgh,
PA 15219
Attn: Dwayne
Finney
|
$90,000,000.00
|
$20,000,000.00
|
40%
|
|
PNC
Bank, National Association
One
PNC Plaza
249
Fifth Avenue
Pittsburgh,
PA 15222
Attn: David
G. Schaich
|
$90,000,000.00
|
$20,000,000.00
|
40%
|
|
National
City Bank
National
City Center
20
Stanwix Street
Pittsburgh,
PA 15222
Attn: Debra
W. Riefner
|
$45,000,000.00
|
$10,000,000.00
|
20%
|
|
Total
Commitment Amount
|
$225,000,000.00
|
$50,000,000.00
|
100%
|
EXHIBIT
B.1
Form
of Swing Line Note
See
Attached
EXHIBIT
C
Form
of Compliance Certificate
See
Attached
ACKNOWLEDGMENT
COMMONWEALTH
OF PENNSYLVANIA
)
) SS:
COUNTY
OF
ALLEGHENY )
On
this,
the _____ day of ___________, 2007, before me, a Notary Public, the undersigned
officer, personally appeared ________________, who acknowledged himself/herself
to be the ______________ of Matthews International Corporation, a
Pennsylvania corporation (the "Company"), and that he/she as such officer,
being
authorized to do so, executed the foregoing instrument for the purposes therein
contained by signing the name of the Company as such officer.
IN
WITNESS WHEREOF, I hereunto set my hand and official seal.
______________________________
Notary
Public
My
Commission Expires: