SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 3
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1994
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______________ to _______________
Commission File Number: 1-8591
FIGGIE INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1297376
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
4420 Sherwin Road
Willoughby, Ohio 44904
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (216) 953-2700
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
10-3/8% Subordinated Debentures Pacific Stock Exchange Inc.
Securities registered pursuant to Section 12(g) of the Act:
Class A Common Stock, par value $.10 per share
Title of class
Class B Common Stock, par value $.10 per share
Title of class
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to the filing requirements for at least the
past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not
be contained, to the best of registrant's knowledge, in definitive proxy
or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K. [X]
State the aggregate market value of the voting stock held by nonaffiliates
of the registrant. The aggregate market value shall be computed
by reference to the price at which the stock was sold, or the average bid
and asked prices of such stock, as of a specified date within
60 days prior to the date of filing. (See the definition of affiliate
in Rule 405.)
At 4/10/95 $150,108,773
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
____________________________________________________________________________
Class A Common Stock, Par Value $0.10 Per share
(13,670,916 shares outstanding as of 4/10/95)
Class B Common Stock, Par Value $0.10 Per share
(4,724,869 shares outstanding as of 4/10/95)
<PAGE>
FIGGIE INTERNATIONAL INC.
Figgie International Inc., the registrant, hereby amends the
following items and exhibit of its Annual Report on Form 10-K for 1994 as
set forth in the pages attached hereto:
Exhibit 10(n)
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Company has duly caused this amendment to be signed on its behalf by
the undersigned, thereunto duly authorized.
FIGGIE INTERNATIONAL INC.
(Company)
Date: September 26, 1995 By: /s/ Steven L. Siemborski
Steven L. Siemborski
Senior Vice President and
Chief Financial Officer
SECOND AMENDMENT
Dated as of March 31, 1995
to
Override Agreement dated as
of June 30, 1994
This Second Amendment (the "Second Amendment"), dated as
of March 31, 1995, is made among Figgie International Inc.
(the "Company"), a Delaware corporation, on behalf of itself
and certain of its subsidiaries listed on Schedule I to the
Agreement, Figgie Acceptance Corporation ("FAC"), on behalf of
itself and the FAC Subsidiaries, the Override Agent, the FAC
Collateral Agent, the Subject Lenders and the Subject Agents.
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into an Override
Agreement, dated as of June 30, 1994 (as amended, the
"Agreement"); and
WHEREAS, subject to the terms and provisions hereof, the
parties hereto desire to modify certain terms and conditions
of the Agreement as more specifically set forth in this Second
Amendment;
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Definitions. The following term when
used in this Second Amendment and the Agreement shall have the
following meaning:
Second Amendment Effective Date shall, subject to the
occurrence of all of the conditions set forth in Article
III of this Second Amendment, be March 31, 1995.
Section 1.02. Other Definitions. Terms for which meanings are
provided in the Agreement are, unless otherwise defined herein
or the context otherwise requires, used in this Second
Amendment with such meanings.
ARTICLE II
AMENDMENTS TO AGREEMENT
Effective on the Second Amendment Effective Date, the
Agreement is hereby amended in accordance with Sections 2.01 through
2.15 below; except as so amended, the Agreement shall continue
in full force and effect.
Section 2.01. Amendment to Section 1.1 (Definitions). Section
1.1 is amended by amending the following defined terms as set
forth below:
Adjusted Operating Cash Flow and Adjusted Operating Cash
Flow for Continuing Operations shall be deleted and
replaced by the following term: Operating Cash
Flow. For any fiscal period, an amount equal to the cash
flow of the Continuing Operations adjusted for (i) the
charges or credits in that period on their books for debt
service, intercompany cost of money and pension charges,
and (ii) the charges or credits pertaining to their
business in that period on the corporate books for
accruals, valuation, and bonuses all as more fully
described in and consistent with the Business Plan.
Business Plan. The divestiture plan delivered to the
Subject Lenders at the February 28, 1995 Subject Lender
meeting, the Business Plan 1995-1997 dated February 8,
1995 and the 1995 Business Plan - Continuing Divisions
dated February 27, 1995.
Capital Expenditures. Expenditures made or indebtedness
incurred by the Company or any of its Subsidiaries in
connection with the purchase or lease by the Company or
any of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet
of such person in accordance with GAAP.
Consolidated Tangible Net Worth shall be replaced by the
following term: Consolidated Net Worth. The excess of
Consolidated Total Assets over Consolidated Total
Liabilities.
Continuing Operations. The following divisions or
Subsidiaries of the Company: Interstate Electronics,
Snorkel Economy, Scott Aviation and Taylor Environmental
Instruments.
Discontinued Operations. All operating divisions or
Subsidiaries of the Company except Interstate
Electronics, Snorkel Economy, Scott Aviation and Taylor
Environmental Instruments.
Divestiture Plan. The Company's plan to sell the assets
or capital stock of all operating divisions or
Subsidiaries of the Company except Interstate
Electronics, Snorkel Economy, Scott Aviation and Taylor
Environmental Instruments.
Expiration Date. January 1, 1996.
Section 2.02. Amendment to Section 2.4 (Maturity - Letters of
Credit). Section 2.4(a) is amended by deleting from clause
(ii) of the first sentence thereof the phrase "use its best
efforts to" and adding the following new sentence after the
end of the first sentence:
The issuer of any backup letter of credit must be
approved by the Subject Lender which is to be the
beneficiary thereof, such approval not to be unreasonably
withheld.
Section 2.03. Amendment to Section 2.5. (Interest and Fees).
(a) Section 2.5(a) is amended by deleting clauses (i)
and (ii) and replacing them with the following:
(i) from and after March 31, 1995, the entire Accrual
Rate shall be paid monthly in arrears on the first
business day of the succeeding calendar month and on the
Override Termination Date, and (ii) interest accrued at
the rate of 2% per annum on all Subject Facility
Outstandings from June 30, 1994 through March 31, 1995
shall be due and payable on the Second Amendment
Effective Date.
(b) Section 2.5(c) is amended by adding the following
sentence to the end thereof:
In the event that any undrawn standby letter of credit is
terminated prior to its stated expiration date, the
issuer shall refund to the Company any portion of the two
percent (2%) per annum fee which has been collected but
is attributable to that period of time from the early
termination date through the stated expiration date.
Section 2.04. Amendment to Section 3.3 (Letters of Credit).
(a) Section 3.3 is amended by adding to the fourth line
from the end thereof after the word "liability" the phrase "or
such other ordinary business purpose as is acceptable to the
issuer".
(b) Section 3.3 is further amended by adding the
following new paragraphs (c) and (d) to the end thereof:
(c) After all of the Subject Facility Outstandings owing
to a Subject Lender have been paid in full, the Company
will use its reasonable best efforts to cause any
Contingent Amount Subject Facilities provided by such
Subject Lender to be transferred to another Subject
Lender or replaced by an Excluded Facility. At the time
of any transfer or replacement, any cash collateral held
in connection with any such Contingent Amount Subject
Facility shall be transferred to any Subject Lender to
which the Contingent Amount Subject Facility has been
transferred and shall be applied to such Subject Lender's
Subject Facility Outstandings. If no Subject Lender has
agreed to provide a replacement facility, and so long as
no Event of Default has occurred and is continuing, any
cash collateral held in connection with any such
Contingent Amount Subject Facility shall be transferred
at the Company's election to the provider of a
replacement Excluded Facility. The incurrence of
indebtedness and the liens on cash collateral
contemplated under this Section 3.3 shall be permitted under
Sections 7.1 and 7.2.
(d) Any Subject Lender which provides a Contingent
Amount Subject Facility may agree with any other Subject
Lender to grant participations in its Contingent Amount
Subject Facility and standby letters of credit issued
thereunder to any other Subject Lender, and may agree to
transfer cash collateral held to secure any standby
letter of credit to such participating Subject Lender,
which cash collateral shall then be applied to such
Subject Lender's Subject Facility Outstandings. Nothing
contained in this Section 3.3 shall detract from the Company's
obligation to replace any standby letter of credit
outstanding under any Contingent Amount Subject Facility
on the Override Termination Date.
Section 2.05. Amendment to Section 6.18 (1995 Financial
Covenants). For all periods from and after January 1, 1995,
Section 6.18 is amended by deleting the entire section and
replacing it with the following:
6.18 Financial Covenants. The Company shall comply with
the financial covenants set forth below:
(a) The Company will not make, or permit any Subsidiary
of the Company to make, on or after January 1, 1995, Capital
Expenditures for Continuing Operations on a cumulative basis
in excess of:
(Subject to Confidential Treatment Request Filed with SEC)
(b) The Company will not permit cumulative Operating
Cash Flow, for the period beginning January 1, 1995 and
ending as of the dates set forth in the table below, to be
less than the amount set forth opposite such date in such
table:
Date Amount
(Subject to Confidential Treatment Request Filed with SEC)
(c) The Company will not permit Consolidated Net Worth
as of the dates in the table set forth below to be less than
the amounts opposite such dates in such table:
Date Amount
March 31, 1995 $48,000,000
June 30, 1995 $45,000,000
September 30, 1995 $50,000,000
December 31, 1995 $56,000,000
Section 2.06. Waiver and Amendment of Section 6.18 (1994
Financial Covenants) For 1994, the Subject Lenders
permanently waive (a) compliance with Section 6.18(a) of the
Agreement for all periods through December 31, 1994 so long as
Capital Expenditures for the twelve months ended December 31,
1994 did not exceed $60,500,000, (b) compliance with Section
6.18(b) of the Agreement for all periods through December 31,
1994 so long as Operating Cash Flow for the twelve months
ended December 31, 1994 was not less than $34,861,000, (c)
compliance with Section 6.18(c) of the Agreement at all times
through December 31, 1994 so long as Consolidated Net Worth as
of December 31, 1994 was not less than $65,000,000 and (d) any
Potential Event of Default or Event of Default under Section
8.1(c) of the Agreement which arose as a result of
noncompliance waived pursuant to clauses (a), (b) or (c) of
this paragraph. The Subject Lenders also waive the
requirement contained in Section 6.14(c) that an Auditor's
statement be delivered in connection with the financial
statements for the Company's fiscal year ended December 31,
1994.
Section 2.07. Amendments to Section 6.19 (Amortization).
(a) Section 6.19(a) is amended by deleting the table
therein and replacing it with the following table:
Date Amount
Effective Date $ 5,000,000
September 30, 1994 $70,000,000
December 31, 1994 $20,000,000
March 31, 1995 $25,000,000
(Subject to Confidential Treatment Request Filed with
SEC)
Expiration Date Remaining Total Subject
Facility Maximum Exposure
(b) Section 6.19(a) is further amended by adding the
following sentence to the end thereof:
Payments made with respect to a Subject Facility pursuant
to Section 9.5 and payments made to the FAC Subject Lenders
pursuant to Section 19.5 on or after January 1, 1995 shall also
be credited towards the payments set forth in this Section 6.19
in the order of their maturity.
Section 2.08. Amendment to Section 7.1 (Restrictions on
Indebtedness). Section 7.1 of the Agreement is amended by
deleting "and" at the end of paragraph (n) and adding the
following new paragraphs (p) and (q) to the end thereof:
(p) Indebtedness in respect of performance bonds obtained
in the ordinary course of business; and
(q) Indebtedness not in excess of $5,000,000 in the
aggregate outstanding at any time in respect of letters of
credit obtained in the ordinary course of business.
Section 2.09. Amendment to Section 7.2. (Restrictions on
Liens). Section 7.2 of the Agreement is amended by deleting
"and" at the end of paragraph (xii) and adding the following
new paragraphs (xiv) and (xv) to the end thereof:
(xiv) liens on cash collateral in an aggregate amount not
exceeding $2,000,000 at any time securing Indebtedness
permitted under Section 7.1(p) so long as the amount of cash
collateral does not exceed 105% of the obligations secured;
and
(xv) liens on cash collateral in an aggregate amount not
exceeding $2,000,000 at any time securing Indebtedness
permitted under Section 7.1(q) so long as the amount of cash
collateral does not exceed 105% of the obligations secured.
Section 2.10. Amendment to Section 8.1 (Events of Default).
Section 8.1(c)(i) is amended by adding the following provision to the
end thereof:
provided, however that failure to comply with any of the
covenants contained in Section 6.18 shall not constitute an Event of
Default until the Override Agent has, at the request of the
Instructing Lenders, given notice of the declaration of an
Event of Default to the Company;
Section 2.11. Amendment to Section 9.1 (Notification). Section
9.1(c) is amended by deleting "or Potential Event of Default"
from clause (i) thereof.
Section 2.12. Amendment to Section 11 (Accrued Fee).
(a) Section 11 is amended by deleting the last sentence
thereof and replacing it with the following:
The second installment in an amount equal to two and one
quarter percent (2-1/4%) of the Total Subject Facility
Maximum Exposure as of the Relevant Time shall be payable
in three payments, as follows:
$1,000,000 on April 28, 1995
$2,000,000 on May 31, 1995
Remainder on June 30, 1995
(b) Section 11 of the Agreement is further amended by
designating the existing paragraph as "(a)" and adding the
following new paragraphs (b) and (c):
(b) In addition to any other amounts payable by the
Company hereunder, the Company agrees to pay to the Override
Agent on July 3, 1995 for distribution to the Subject Lenders
on a pro rata basis in accordance with the Subject Lender
Maximum Exposure of each Subject Lender in relation to the
Total Subject Facility Maximum Exposure, in each case as of
June 30, 1995, an extension fee equal to one half of one
percent (1/2%) of the Total Subject Facility Maximum Exposure
(whether or not such exposure is secured by cash collateral)
as of June 30, 1995; and
(c) In addition to any other amounts payable by the
Company hereunder, the Company agrees to pay to the Override
Agent on November 1, 1995 for distribution to the Subject
Lenders on a pro rata basis in accordance with the Subject
Lender Maximum Exposure of each Subject Lender in relation to
the Total Subject Facility Maximum Exposure, in each case as
of October 31, 1995, an extension fee equal to one half of one
percent (1/2%) of the Total Subject Facility Maximum Exposure
(whether or not such exposure is secured by cash collateral)
as of October 31, 1995.
Section 2.13. Amendment to Section 12 (Agents' Fees). Section
12.1 is amended by deleting the date "June 30, 1995" and
replacing it with the phrase "the Expiration Date".
Section 2.14. Amendment to Section 19 (FAC).The Company, FAC
and the FAC Subject Lenders hereby agree to amend Section 19
of the Agreement and the definitions related thereto as
follows:
(a) Elimination of FAC Excess Cash Flow
Calculation. Notwithstanding the provisions of Section 19.3,
FAC shall not be required to calculate, or deliver reports
with respect to, FAC Excess Cash Flow for the period April 1,
1995 through December 31, 1995.
(b) Section 19.3(k) is amended to read in full as
follows:
(k) Best Efforts to Liquidate. Use its best efforts to
liquidate on or before May 31, 1995 the FAC Collateral and any
other assets owned by FAC or a FAC Subsidiary as set forth in
and in accordance with the FAC Accelerated Disposition of
Assets Schedule dated February 28, 1995, and attached hereto
as Schedule XXVII (the "Asset Disposition Schedule").
(c) Section 19.5 is amended to read in full as follows:
19.5 Cash Distributions to FAC Subject Lenders.
(a) Calculation of Proceeds from the Disposition of
FAC Assets. As soon as possible upon the closing of any
disposition of a FAC asset and, in any event, within three
business days after the closing date, FAC shall calculate the
amount of net proceeds (the "FAC Net Proceeds") received by
FAC as a result of the disposition of any FAC asset. For
purposes of this Part 19, the FAC Net Proceeds from the
disposition of any FAC asset shall mean (i) the cash
consideration due with respect to any FAC asset disposition,
including when received in cash, any cash proceeds paid under
any deferred payout, earnout, installment or similar
arrangement less (ii) all reasonable, direct fees, expenses or
costs paid or payable in connection with such disposition,
including any brokers' fees, sales commissions, legal or other
professional fees paid or payable to third parties, but
excluding any amounts paid or payable to the Company, Figgie
Leasing Corporation or FAC, including without limitation, any
amounts for intercompany services provided by or to FAC or any
amounts reserved for taxes other than ordinary and necessary
transfer or similar taxes. A copy of the calculation of FAC
Net Proceeds shall be sent by FAC to each FAC Subject Lender
within three business days after the closing of the FAC asset
disposition. Within thirty days after the closing of the
disposition of any FAC asset, FAC shall provide the FAC
Collateral Agent with a closing book containing copies of the
relevant documents with respect to the disposition, together
with copies of any other offers made with respect to the FAC
asset. In the event any FAC Subject Lender does not agree
with the calculation of the FAC Net Proceeds, the FAC
Collateral Agent and FAC shall attempt in good faith to
resolve any such disagreement. Upon resolution of the
dispute, FAC shall remit any additional amount due the FAC
Subject Lenders on the next business day after resolution of
the dispute.
(b) Payment of FAC Net Proceeds. FAC shall pay to
the FAC Collateral Agent for distribution to the FAC Subject
Lenders, an amount equal to the FAC Net Proceeds from the
disposition of any FAC asset within three business days after
the closing of any such disposition. In the event any FAC
asset set forth on the Asset Disposition Schedule is sold
prior to the Second Amendment Effective Date, FAC shall pay
the FAC Net Proceeds related thereto to the FAC Collateral
Agent within three business days after the Second Amendment
Effective Date. In such event, the FAC Net Proceeds related
thereto shall be calculated as if this Second Amendment had
been in effect on the closing date of the sale, and FAC Excess
Cash Flow for the period January 1, 1995 through March 31,
1995 shall be calculated as if the sale had closed on April 1,
1995.
(c) Method of Payment. All payments by FAC to the
FAC Subject Lenders shall be made by wire transfer to the FAC
Collateral Agent for the account of the FAC Subject Lenders
not later than 12:00 noon (New York time) on the date when due
in dollars in immediately available funds at the office of the
FAC Collateral Agent located at 10 East 50th Street, New York,
New York 10022, or such other office as the FAC Collateral
Agent may hereafter designate in writing. Whenever any
payment due hereunder is stated to be due on a day which is
not a business day for the FAC Collateral Agent, the due date
shall be extended to the next succeeding business day for the
FAC Collateral Agent.
(d) Distribution to FAC Subject Lenders. Any
amounts payable under Section 19.5 hereof to the FAC Collateral Agent
shall be held and distributed by the FAC Collateral Agent
pursuant to the FAC Intercreditor Agreement.
(e) No Payments to the Company. FAC and the
Company agree that FAC shall not be charged, or pay, any fees
or other amounts for intercompany services or with respect to
any net Intercompany Debt Increase.
(d) Section 19 is amended by adding the following new
Section 19.8.
19.8 Completion of Accelerated Disposition FAC of
Assets. Upon completion of the disposition of all of the FAC
assets and the payment of the FAC Net Proceeds in accordance
with Part 19, the FAC Collateral Agent and the FAC Subject
Lenders shall promptly release and cancel all security
interests and other encumbrances against FAC, and otherwise
fully cooperate with the Company and FAC as necessary or
appropriate in order for the Company to wind up FAC's
operations.
Section 2.15. Amendment to Exhibit A (Compliance
Certificate). Exhibit A to the Agreement is amended by
deleting the Compliance Certificate Worksheet attached thereto
and substituting therefor a Compliance Certificate Worksheet
in a form to be submitted by the Company and approved by the
Override Agent.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND AGREEMENT
Section 3.01. Effective Date. This Second Amendment shall
become effective on the date when (i) it has been executed by
each of the Subject Lenders and (ii) all of the conditions set
forth in Sections 3.01 and 3.07 of this Second Amendment shall
have been satisfied.
Section 3.02. Certified Copies of Charter Documents. The
Override Agent shall have received from the Company either (a)
a copy, certified by a duly authorized officer of such Person
to be true and complete as of the Second Amendment Effective
Date, of each of (i) its charter or other constitutive
documents as in effect on such date of certification, and (ii)
its by-laws, if applicable, as in effect on such date or (b)
a certificate by a duly authorized officer of the Company
certifying that there has been no material amendment to such
charter or by-laws since June 30, 1994.
Section 3.03. Corporate Action. All corporate action necessary
for the valid execution, delivery and performance by the
Company of this Second Amendment shall have been duly and
effectively taken, and evidence thereof satisfactory to the
Override Agent shall have been provided to the Override Agent.
Section 3.04. Incumbency Certificate. The Override Agent shall
have received from the Company an incumbency certificate,
dated as of the Second Amendment Effective Date, signed by a
duly authorized officer of the Company, and giving the name
and bearing a specimen signature of each individual who shall
be authorized to sign, in the name and on behalf of the
Company, this Second Amendment.
Section 3.05. Legal Opinion. The Override Agent shall have
received a legal opinion from the General Counsel to the
Company addressed to the Subject Lenders, the Override Agent
and the FAC Collateral Agent in form and substance
satisfactory to the Override Agent.
Section 3.06. Expenses. The Company shall have paid to the
Subject Lenders (or their representatives) all of such fees,
expenses and disbursements incurred by the Subject Lenders
referred to in Section 5.06 of this Second Amendment.
Section 3.07. Satisfactory Legal Form. All of the instruments,
documents and agreements executed in connection with this
Second Amendment shall be satisfactory in form and substance
to the Override Agent, its counsel and counsel to the Subject
Lenders as a group; the Override Agent and its counsel and
counsel to the Subject Lenders as a group shall have received
all information, and such counterpart originals or such
certified or other copies of such materials as the Override
Agent, its counsel and counsel to the Subject Lenders as a
group may reasonably request; and all legal matters incident
to the transactions contemplated by this Second Amendment
shall be reasonably satisfactory to counsel to the Override
Agent and counsel to the Subject Lenders as a group.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each of the Company and FAC represents and warrants as follows:
Section 4.01. No Default. As of the date hereof and upon the
effectiveness of this Second Amendment, there exists no Event
of Default under the Agreement, and no event which, with the
giving of notice or lapse of time, or both, would constitute
such an Event of Default.
Section 4.02. Authorization. Each of the Company and FAC has
the power to execute, deliver and perform this Second
Amendment. Each of the Company and FAC has taken all
necessary action to authorize the execution, delivery and
performance of this Second Amendment. No consent or approval
of any person, no consent or approval of any landlord or
mortgagee, no waiver of any Lien or right of distraint or
other similar right and no consent, license, approval,
authorization or declaration of any governmental authority,
bureau or agency, is required in connection with the
execution, delivery or performance by any of the Subject
Companies, or the validity or enforcement of this Second
Amendment.
Section 4.03. No Conflict. The execution, delivery and
performance of this Second Amendment by each of the Subject
Companies will not violate any provision of law and will not
conflict with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other similar
document or instrument of any court or governmental authority,
bureau or agency, domestic or foreign, or the certificate of
incorporation or by-laws of any Subject Company, or create
(with or without the giving of notice or lapse of time, or
both) a default under or breach of any agreement, bond, note
or indenture to which any Subject Company is a party, or by
which any of them is bound or any of its properties or assets
is affected, or result in the imposition of any Lien of any
nature whatsoever upon any of the properties or assets owned
by or used in connection with the business of any Subject
Company.
Section 4.04. Enforceability. This Second Amendment has been
duly executed and delivered by each of the Company and FAC,
and constitutes the valid and legally binding obligations of
each of the Subject Companies, enforceable in accordance with
their terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
or other similar laws, now or hereafter in effect, relating to
or affecting the enforcement of creditors' rights generally
and except that the remedy of specific performance and other
equitable remedies are subject to judicial discretion.
Section 4.05. Disclosure. No certificate, opinion, or any
other statement made or furnished to the Override Agent or the
Subject Lenders by or on behalf of any Subject Company in
connection with this Second Amendment, or the transactions
contemplated herein, contains any untrue statement of a
material fact, or omits to state a material fact necessary in
order to make the statements contained therein or herein not
misleading.
ARTICLE V
MISCELLANEOUS
Section 5.01. Ratification. The Agreement, as amended by this
Second Amendment, is in all respects ratified and confirmed,
and the terms and conditions thereof, amended as hereinabove
set forth, shall be and remain in full force and effect.
Except as specifically amended herein, the Agreement remains
in full force and effect in accordance with its respective
terms.
Section 5.02. Cross-References. References in this Second
Amendment to any Article or Section are, unless otherwise
specified, to such Article or Section of this Second
Amendment.
Section 5.03. Successors and Assign. This Second Amendment
shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
Section 5.04. Governing Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the
State of New York and shall for all purposes be construed in
accordance with and governed by the internal laws of said
state, without regards to conflicts of laws principles.
Section 5.05. Counterparts. This Second Amendment may be
executed by the parties hereto in several counterparts, each
or which shall be deemed to be an original and all of which
shall constitute together but one and the same agreement.
Section 5.06. Expenses. Without limitation on Section 12.2 of the
Agreement, the Company hereby agrees, whether or not the
transactions hereby contemplated shall be consummated, to pay,
indemnify and save each of the Override Agent and the Subject
Lenders harmless against liability for the payment of all
reasonable out-of-pocket expenses arising in connection with
this Second Amendment and the other agreements and instruments
and the transactions hereby contemplated, including without
limitation the consideration of any legal questions relevant
thereto, all expenses incurred in connection with reproduction
of such agreements and instruments and all stamp and other
similar taxes (together in each case with interest and
penalties, if any) which may be payable in respect of the
execution and delivery of such agreements or instruments, or
otherwise pursuant to this Second Amendment, and the
reasonable fees and disbursements of counsel to the Override
Agent, the FAC Collateral Agent and counsel to the Subject
Lenders as a group in connection with the negotiation, review
preparation, administration, interpretation, production and
execution of such agreements and instruments and the
transactions hereby and thereby contemplated. The obligations
and the Company under this Section shall survive the payment
or transfer of any obligations, the enforcement of any
provision hereof or thereof, any such amendments or waivers
and any such consideration of legal questions.
Without limiting the generality of the foregoing
paragraph or the Company's obligations under Section 12.2 of the
Agreement, the Company hereby agrees to pay in full on the
Second Amendment Effective Date all such fees, expenses and
disbursements of counsel to the Override Agent and counsel to
the Subject Lenders as a group incurred in connection with the
transactions contemplated hereby as may be stated to be due
and payable to such counsel in any statement therefor rendered
to the Company by such counsel on or prior to the Second
Amendment Effective Date, and further agrees to pay in full
promptly upon receipt of any statement therefor all such
additional fees, expenses and disbursements of such counsel as
may be incurred by or invoiced to such counsel after the
Second Amendment Effective Date in connection with the
transactions contemplated hereby or arising in connection with
the negotiation, preparation, production, reproduction and
execution of documents in connection with a proposed
restructuring of the indebtedness evidenced by the Agreement,
as amended by this Second Amendment.
Section 5.07. Effectiveness. The effectiveness of the
amendments set forth in Article II of this Second Amendment
shall be effective as of the Second Amendment Effective Date.
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
FIGGIE INTERNATIONAL INC.
By:______________________
Name:___________________
Title:___________________
FIGGIE ACCEPTANCE
CORPORATION
By:______________________
Name:___________________
Title:___________________
Executed solely to acknowledge the amendments to the Agreement
contained in this Second Amendment:
FIGGIE INTERNATIONAL INC. STOCK
OWNERSHIP TRUST AND PLAN
By:__________________________
Name:_____________________
Title:______________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
THE FIRST NATIONAL BANK
OF BOSTON, individually
and as Override Agent
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
THE SANWA BANK, LIMITED,
Chicago Branch
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
BANQUE NATIONALE de
PARIS,
Chicago Branch
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
THE FIFTH THIRD BANK
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
AUSTRALIA AND NEW
ZEALAND BANKING GROUP
LIMITED
By:______________________
Name:__________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
BANCA NAZIONALE DEL
LAVORO, S.p.A.
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
ISTITUTO BANCARIO SAN
PAOLO di TORINO
S.p.A.,
New York Branch
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
SWISS BANK CORPORATION,
New York Branch,
individually and as FAC
Collateral Agent
By:______________________
Name:___________________
Title:___________________
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
D.K. ACQUISITION PARTNERS
G.P.
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
NATIONAL CITY BANK,
CLEVELAND
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
BARCLAYS BANK PLC
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
CHEMICAL BANK
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
BANK OF AMERICA ILLINOIS
By:__________________________
Name:_____________________
Title:______________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
MELLON BANK, N.A.
By:______________________
Name:___________________
Title:__________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
THE PROVIDENT BANK
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
THE LONG-TERM CREDIT
BANK OF JAPAN, LTD.,
Chicago Branch
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
SOCIETY NATIONAL BANK
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
ABN AMRO BANK N.V.
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed
this Second Amendment as a sealed instrument as of the date
first set forth above.
SOCIETE GENERALE BANK
By:______________________
Name:___________________
Title:___________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Second Amendment as a sealed instrument as of the date first
set forth above.
PEARL STREET L.P.
By:______________________
Name:___________________
Title:____________________
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this
Second Amendment as a sealed instrument as of the date first
set forth above.
SENIOR HIGH INCOME
PORTFOLIO, INC.
By:______________________
Name:___________________
Title:____________________
SENIOR HIGH INCOME PORTFOLIO II, INC.
By:______________________
Name:___________________
Title:____________________
<PAGE>
