Exhibit 10.62
FIFTH AMENDMENT
TO
CREDIT
AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT
AGREEMENT (this “ Amendment ”), dated as of
December 30, 2008 (the “ Effective Date ”),
by and among, on the one hand, CECO ENVIRONMENTAL CORP ., a
Delaware corporation (“ Parent ”), CECO
GROUP, INC ., a Delaware corporation (“ Group
”) and each of the following Subsidiaries of Parent as
Borrowers under this Amendment and the Credit Agreement: CECO
FILTERS, INC ., a Delaware corporation (“ Filters
”), NEW BUSCH CO., INC ., a Delaware corporation
(“ New Busch ”), THE KIRK & BLUM
MANUFACTURING COMPANY , an Ohio corporation (“
K&B ”), KBD/TECHNIC, INC ., an Indiana
corporation (“ Technic ”), CECOAIRE, INC
., a Delaware corporation (“ Aire ”), CECO
ABATEMENT SYSTEMS, INC ., a Delaware corporation (“
Abatement ”), H.M. WHITE, INC ., a Delaware
corporation (“ H.M. White ”), EFFOX INC
., a Delaware corporation and formerly known as CECO ACQUISITION
CORP. (“ Effox ”), GMD ENVIRONMENTAL
TECHNOLOGIES, INC. , a Delaware corporation and formerly known
as GMD ACQUISITION CORP. (“ GMD ”), FKI,
LLC , a Delaware limited liability company (“ FKI
LLC ”), CECO MEXICO HOLDINGS LLC , a
Delaware limited liability company (“ CECO Mexico LLC
”), and FISHER-KLOSTERMAN, INC ., a Delaware
corporation and formerly known as FKI ACQUISITION CORP. (“
Fisher-Klosterman ”), and, on the other hand, FIFTH
THIRD BANK , an Ohio banking corporation (“ Lender
”), is as follows:
Preliminary
Statements
A. Parent, Group and Borrowers (the “ Loan
Parties ”) and Lender are parties to a Credit Agreement
dated as of December 29, 2005, as amended by the First
Amendment to Credit Agreement dated as of June 8, 2006, the
Second Amendment to Credit Agreement dated as of February 28,
2007, the Third Amendment to Credit Agreement dated as of
February 29, 2008, and the Fourth Amendment to Credit
Agreement dated as of August 1, 2008 (as amended, the “
Credit Agreement ”). Capitalized terms which are used,
but not defined, in this Amendment will have the meanings given to
them in the Credit Agreement.
B. The Loan Parties have requested that Lender
change the current mandatory Lock Box and automatic sweep of
Remittances against the Revolving Loans to a
“springing” arrangement whereby the Lock Box and
automatic sweep of Remittances against the Revolving Loans become
mandatory only after the occurrence of an Event of
Default.
C. Lender is willing to so amend the Credit
Agreement and other Loan Documents, all on the terms, and subject
to the conditions, of this Amendment.
Statement of
Agreement
In consideration of the mutual
covenants and agreements set forth in this Amendment, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lender and the Loan Parties hereby
agree as follows:
1. Amendments to Credit
Agreement . Subject
to the satisfaction of the conditions of this Amendment, the Credit
Agreement is hereby amended as follows:
1.1 Sections 2.4(b) and 2.4(c) of the Credit Agreement are
hereby amended in their entirety by substituting the following in
their respective steads:
(b) Borrowers have established
through Lender, and will continue at all times on and after the
occurrence of a Cash Dominion Triggering Event (as defined below),
the use of, the post office box at the U.S. Post Office bearing the
address: PO Box 630202, Cincinnati, Ohio 45263-0202, or such other
address or addresses as Lender may notify Borrowers from time to
time (the “ Lock Box ”). At all times on and
after the occurrence of a Cash Dominion Triggering Event, Borrowers
will notify all of their respective customers and account debtors,
which forward their Remittances in paper form to the applicable
Borrower, to forward all checks, drafts, money orders, and other
items, cash and other remittances of every kind due the applicable
Borrower (“ Remittances ”) to the Lock Box (such
notices to be in such form and substance as Lender may reasonably
require from time to time). Lender will have sole access to the
Lock Box at all times, and Borrowers will take all action necessary
to grant Lender such sole access. At no time will any Borrower
remove any item from the Lock Box without Lender’s prior
written consent, and no Borrower will notify any customer or
account debtor to pay any Remittance to any other place or address,
other than the address of Borrowers’ headquarters at times
prior to the occurrence of a Cash Dominion Triggering Event,
without Lender’s prior written consent. If a Borrower should
neglect or refuse to notify any customer or account debtor to pay
any Remittance to the Lock Box, Lender will be entitled to make
such notification. At all times on and after the occurrence of a
Cash Dominion Triggering Event, Borrowers will notify all of their
respective customers and account debtors, which pay their Accounts
by electronic funds transfer, to forward all Remittances directly
to the Collection Account (as defined below) by wire transfer or
automated clearinghouse funds transfer (ACH) (such notices to be in
such form and substance as Lender may require in good faith from
time to time). Prior to the occurrence of a Cash Dominion
Triggering Event, Borrowers will notify all of their respective
customers and account debtors, which pay their Accounts by
electronic funds transfer, to forward all Remittances directly to
the Funding Account or, at Borrowers’ option, the Collection
Account by wire transfer or automated clearinghouse funds transfer
(ACH). Upon
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retrieval of Remittances and other
proceeds of Accounts and other Loan Collateral from the Lock Box,
Lender will deposit the same into the Funding Account until such
time as an Event of Default shall occur (such occurrence of an
Event of Default being, the “ Cash Dominion Triggering
Event ”) at which time all funds will thereafter be
deposited by Lender into a collection, non-interest bearing DDA
depository account maintained at Lender, current account number
702-3362598 (“ Collection Account ”). Any
Remittance or other proceeds of Accounts or other Loan Collateral
received by a Borrower shall be deemed held by such Borrower in
trust and as fiduciary for Lender, and such Borrower immediately
shall deliver the same, in its original form, to Lender by
overnight delivery for deposit into the Lock Box (or the Funding
Account prior to the occurrence of a Cash Dominion Triggering
Event). Pending such deposit, such Borrower will not commingle any
such Remittance or other proceeds of Accounts or other Loan
Collateral with any of any Borrower’s other funds or
property, but such Borrower will hold it separate and apart
therefrom in trust for Lender until delivery is made to Lender as
described above. All deposits to the Lock Box and the Collection
Account will be Lender’s property to be applied, following a
Cash Dominion Triggering Event, against the Obligations in such
order and method of application as may be elected by Lender in its
discretion exercised in good faith and will be subject only to the
signing authority designated from time to time by Lender, and
Borrowers shall have no interest therein or control over such
deposits or funds. Borrowers shall have no interest in the Lock Box
or the Collection Account nor control over the deposits or funds
therein, and Lender shall have sole access to the Collection
Account and the Lock Box. Notwithstanding that Borrowers’
obligations with respect to the Lock Box and automatic sweep to the
Collection Account become mandatory at all times on and after a
Cash Dominion Triggering Event occurs, Borrowers may not collect
any Remittances through any provider of lock box or other cash
management and treasury services other than Lender or its
Affiliates or deposit any Remittances at any bank or other
financial institution other than Lender or its
Affiliates.
(c) Each Business Day following a
Cash Dominion Triggering Event, Lender will, or will cause the
applicable Lender Affiliate, automatically and without notice,
request or demand by Borrowers, in accordance with Lender’s
(or as applicable, the applicable Lender Affiliate’s)
automatic sweep program, transfer all collected and available funds
in the Collection Account: (i) for application against the
unpaid principal balance of all Revolving Loans bearing interest at
the Prime Rate and (ii) to be held in the Collection Account
to the extent of any LIBOR Rate Loans. Pursuant to that automatic
sweep program, Lender will either make Revolving Loans to the
extent necessary to cover Presentments to the Controlled
Disbursement Account or to maintain a minimum collected, positive (
i.e., “peg”) balance in the Funding Account of
$500,000 at all
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times; however , in no event
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