Exhibit 10.2
EXECUTION VERSION
A FIFTH THIRD BANCORP
BANK
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT PROMISSORY NOTE
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OFFICER NO.
4048
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NOTE No.
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$30,000,000.00
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December 29, 2005
First Amendment and Restatement June 8,
2006
Second Amendment and Restatement
February 28, 2007
Third Amendment and Restatement
February 29, 2008
Fourth Amendment and Restatement March 31,
2009
(Effective Date)
Promise to Pay
. On or before April 1, 2011
(the “ Maturity Date ”), the undersigned, CECO
FILTERS, INC., a Delaware corporation, NEW BUSCH CO., INC., a
Delaware corporation, THE KIRK & BLUM MANUFACTURING
COMPANY, an Ohio corporation, KBD/TECHNIC, INC., an Indiana
corporation, CECOAIRE, INC., a Delaware corporation, CECO ABATEMENT
SYSTEMS, INC., a Delaware corporation, H.M. WHITE, INC., a Delaware
corporation, EFFOX INC., formerly known as CECO Acquisition Corp.,
a Delaware corporation, GMD ENVIRONMENTAL TECHNOLOGIES, INC.,
formerly known as GMD Acquisition Corp., a Delaware corporation,
and FISHER-KLOSTERMAN INC., formerly known as FKI Acquisition
Corp., a Delaware corporation (each, a “ Borrower
”, and, collectively, the “ Borrowers ”),
for value received, hereby jointly and severally promise to pay to
the order of FIFTH THIRD BANK, an Ohio banking corporation
(together with its successors and assigns, “ Lender
”), at 38 Fountain Square Plaza, MD #10AT63, Cincinnati, Ohio
45263, or such other address as Lender may provide from time to
time, the sum of THIRTY MILLION AND 00/100 Dollars
($30,000,000.00), plus interest as provided herein, or so much
thereof as is loaned by Lender to Borrowers as Revolving Loans or
for which credit is extended by Lender as a Letter of Credit
pursuant to the Credit Agreement among Lender, Borrowers, and
certain of Borrowers’ affiliates 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,
the Fourth Amendment to Credit Agreement dated as of August 1,
2008, the Fifth Amendment to Credit Agreement dated as of
December 30, 2008, and the Sixth Amendment to Credit Agreement
dated to be effective as of even date herewith (as amended and as
the same may be further amended, renewed, consolidated, restated or
replaced from time to time, the “ Credit Agreement
”). The outstanding balance of this Fourth Amended and
Restated Revolving Credit Promissory Note (this “ Note
”) shall appear on supplemental bank records and is not
necessarily the face amount of this Note, which record shall
evidence the balance due pursuant to this Note at any time. As used
herein, “ Local Time ” means the time at the
office of Lender specified in this Note.
This Note, and any request by
Borrowers from time to time for an advance of a specified principal
amount hereunder, shall be subject to the terms and conditions of
the Credit Agreement. Capitalized terms used herein which are not
otherwise defined in this Note shall have the meanings set forth in
the Credit Agreement. This Note is entitled to the benefits and
security of the Credit Agreement, including, without limitation,
acceleration upon the terms provided therein, and of the other Loan
Documents.
The entire unpaid principal balance of this
Note, together with all accrued and unpaid interest and any other
charges, advances and fees, if any, outstanding hereunder, shall be
due and payable in full on the earlier of the Maturity Date or upon
acceleration of the Indebtedness evidenced by this Note,
notwithstanding any other inconsistent or contradictory provisions
contained in this Note.
Upon the occurrence and during the
continuance of any Event of Default, the entire unpaid principal
balance of this Note, together with all accrued but unpaid
interest, and all other Obligations, shall, at Lender’s
option, become immediately due and payable, except that if there
occurs an Event of Default of the type described in Sections
6.1(d) , 6.1(e) , or 6.1(j) of the Credit
Agreement, the entire unpaid principal balance of this Note,
together with all accrued but unpaid interest, and all other
Obligations shall become automatically and immediately due and
payable without notice, which Borrowers hereby waive.
Interest . Principal amounts outstanding under this Note
shall bear interest commencing on the Signature Date (as defined in
the Sixth Amendment) at the rate or rates per annum set forth
below, which rate or rates shall be designated by Borrowers as more
fully set forth herein (the “ Interest Rate ”).
Notwithstanding anything to the contrary in this Note or any other
Loan Document, principal amounts outstanding under this Note shall
bear interest during the period commencing on the Effective Date
through, and including, the date that is the day prior to the
Signature Date (as defined in the Sixth Amendment) at the rate or
rates per annum set forth in the Prior Note.
On and after the Signature Date, at
any time and from time to time during the term of this Note, so
long as no Event of Default has occurred and is continuing and so
long as such outstanding principal amounts hereunder are not then
subject to a LIBOR Tranche Election, Borrowers may exercise their
right to adjust the Interest Rate on amounts of principal
outstanding under this Note to one of the rates set forth below
upon notice to Lender as set forth below; provided, however
, that once the Interest Rate accruing against any amounts
outstanding hereunder is adjusted to a Tranche LIBOR Rate for a
particular LIBOR Tranche Interest Period, Borrowers may not elect
to adjust such Interest Rate to a different Interest Rate until the
expiration of such LIBOR Tranche Interest Period.
(a) Tranche LIBOR
Rate . Upon telephonic notice to Lender by 10:00 a.m. Local
Time given at least two Business Days prior to the beginning of a
LIBOR Tranche Interest Period, Borrowers may, subject to the terms
of this Note, elect to have advances under this Note bear interest
at a rate per annum equal to the Tranche LIBOR Rate (as defined
herein) plus the Applicable Tranche LIBOR Rate Margin (as defined
herein) (a “ LIBOR Tranche Election ”). The
“ Tranche LIBOR Rate ” is the rate of interest
(rounded upwards, if necessary, to the next
1
/
8
of 1% and adjusted
for reserves if Lender is required to maintain reserves with
respect to relevant advances) fixed by the British Bankers’
Association at 11:00 a.m., London, England time, relating to
quotations for the one month, two month, or three month London
InterBank Offered Rates, as selected by Borrowers in their LIBOR
Tranche Election, on U.S. Dollar deposits as published on
Bloomberg LP, or, if no longer provided by Bloomberg LP, such rate
as shall be determined in good faith by Lender
-2-
from such sources as Lender shall determine to
be comparable to Bloomberg LP (or any successor) as determined by
Lender at approximately 10:00 a.m. Local Time on the date of
request by Borrowers. Each determination by Lender of the Tranche
LIBOR Rate shall be conclusive in the absence of manifest error.
Interest accruing based on the Tranche LIBOR Rate shall be:
(i) calculated based on a 360-day year and charged for the
actual number of days elapsed and (ii) payable in arrears on
the last day of the applicable LIBOR Tranche Interest Period. The
Interest Rate applicable to a particular LIBOR Tranche Election
shall remain at the rate elected for the remainder of the subject
LIBOR Tranche Interest Period.
The “ LIBOR Tranche
Interest Period ” for each advance bearing interest with
respect to the Tranche LIBOR Rate (each such advance, a “
Tranche LIBOR Rate Loan ”) is a period of one month,
two months, or three months, at Borrowers’ election, which
period shall commence on a Business Day selected by Borrowers
subject to the terms of this Note. If a LIBOR Tranche Interest
Period would otherwise end on a day that is not a Business Day,
such LIBOR Tranche Interest Period shall end on the next succeeding
Business Day; provided that, if the next succeeding Business
Day falls in a new month, such LIBOR Tranche Interest Period shall
end on the immediately preceding Business Day.
On or before the date that is two
Business Days before the making of any Tranche LIBOR Rate Loan, and
on or before the date which is two Business Days prior to the
expiration of any applicable LIBOR Tranche Interest Period,
Borrowers shall notify Lender of each of the following:
(a) the LIBOR Tranche Interest Period Borrowers have elected
regarding any such Tranche LIBOR Rate Loan or any continuation of a
LIBOR Tranche Election with respect to a Tranche LIBOR Rate Loan,
(b) the amount of each such Tranche LIBOR Rate Loan or
continuation, and (c) the commencement date of each LIBOR
Tranche Interest Period. Borrowers may have Tranche LIBOR Rate
Loans in minimum amounts of $1,000,000 (and integral multiples of
$100,000) and such Tranche LIBOR Rate Loans may bear interest at
the applicable Interest Rate for different LIBOR Tranche Interest
Periods so long as (i) the last day of any LIBOR Tranche
Interest Period does not exceed the Maturity Date hereof;
(ii) no LIBOR Tranche Election with respect to any Tranche
LIBOR Rate Loan commences prior to the expiration of the applicable
LIBOR Tranche Interest Period in effect with respect to such
Tranche LIBOR Rate Loan; and (iii) at no time may Borrowers
have more than three outstanding Tranche LIBOR Rate Loans, in the
aggregate, under all of their Notes. If, at any time during the
term hereof, Borrowers fail to designate a LIBOR Tranche Interest
Period or if Borrowers have not elected another LIBOR Tranche
Interest Period in accordance with this Note at least two Business
Days prior to the expiration of the LIBOR Tranche Interest Period
then in effect, Lender may assume that Borrowers have elected to
have the principal amount applicable to such expiring LIBOR Tranche
Interest Period accrue interest based on the Daily LIBOR
Rate.
(b) Daily LIBOR
Rate . All amounts outstanding under this Note, as of any date,
which are not then subject to a LIBOR Tranche Election, will
automatically bear interest at a floating rate equal to the Daily
LIBOR Rate plus the Applicable Daily LIBOR Rate Margin (as
defined below). As used herein, “ Daily LIBOR Rate
” means the rate of interest (rounded upwards, if necessary,
to the next 1 / 8 of 1% and adjusted for reserves
if Lender is required to maintain reserves with respect to relevant
advances) fixed by the British Bankers’ Association at 11:00
a.m., London, England time, relating to quotations for the one
month London InterBank Offered Rate on U.S. Dollar deposits as
published on Bloomberg LP, or, if no longer provided by Bloomberg
LP, such rate as shall be determined in good faith by Lender from
such sources as Lender shall determine to be comparable to
Bloomberg LP (or any
-3-
successor) as determined by Lender at
approximately 10:00 a.m. Local Time on the relevant date of
determination. Each determination by Lender of the Daily LIBOR Rate
shall be conclusive in the absence of manifest error. The Daily
LIBOR Rate shall be reset each Business Day by Lender based on the
Daily LIBOR Rate then in effect. Any adjustment in the Interest
Rate resulting from a change in the Daily LIBOR Rate shall become
effective as of the opening of business on the date of each change
(or if not a Business Day, the beginning of the day). Lender shall
not be required to notify Borrowers of any adjustment in the Daily
LIBOR Rate; however, Borrowers may request a quote of the
prevailing Daily LIBOR Rate on any Business Day. Interest accruing
based on the Daily LIBOR Rate shall be: (i) calculated based
on a 360-day year and charged for the actual number of days elapsed
and (ii) payable in arrears on the first day of each calendar
month.
(c) Pricing Grid . As used
herein, the terms “ Applicable Daily LIBOR Rate Margin
” and “ Applicable Tranche LIBOR Rate Margin
” (hereafter sometimes collectively referred to as the
“ Applicable Margins ”) mean, as of any date,
the applicable per annum rate shown in the applicable column in the
table below based on the then applicable Fixed Charge Coverage
Ratio. “ Fixed Charge Coverage Ratio ” has the
meaning given in the Credit Agreement.