1
EXHIBIT 10.1
SECOND AMENDMENT
TO
AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
November 16, 1999 (this "Amendment"), by and among Cannondale Corporation, a
corporation organized under the laws of the State of Delaware ("Cannondale");
each of the Subsidiaries of Cannondale that is a signatory to the Credit
Agreement (as defined below) (such Subsidiaries of Cannondale, together with
Cannondale, the "Borrowers"); BANK OF AMERICA, N.A., a national banking
association organized under the laws of the United States of America ("Bank of
America"), as successor-in-interest to NATIONSBANK, N.A.; FLEET NATIONAL BANK, a
national banking association organized under the laws of the United States of
America ("Fleet"); THE CHASE MANHATTAN BANK, a bank organized under the laws of
New York ("Chase"); and CITIZENS BANK OF MASSACHUSETTS ("Citizens"), as
successor-in-interest to STATE STREET BANK AND TRUST COMPANY; and BANKBOSTON,
N.A., a national banking association organized under the laws of the United
States of America ("BankBoston") (each of Bank of America, Fleet, Chase, and
Citizens, and BankBoston shall be referred to herein individually as a "Bank"
and collectively as the "Banks"); and Bank of America, in its capacity as
administrative agent for the Banks (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
Background
A. Reference is made to that certain Amended and Restated Credit
Agreement dated as of January 22, 1999 (the "Original Credit Agreement") among
the Borrowers, the Banks, the Administrative Agent and the other parties
signatory thereto.
B. The Original Credit Agreement was amended by that certain First
Amendment to Amended and Restated Credit Agreement dated as of May 1, 1999 (the
"First Amendment"), among the Borrowers, the Banks, the Administrative Agent and
the other parties signatory thereto. The Original Credit Agreement, as amended
by the First Amendment, shall be referred to herein as the "Credit Agreement."
C. The parties hereto wish to further amend the Credit Agreement as
herein provided.
D. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement, as amended hereby.
2
2
Agreement
In consideration of the Background, which is incorporated by reference,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Modification. All the terms and provisions of the Credit Agreement
and the other Facility Documents, as amended to date, shall remain in full force
and effect except as follows:
(a) The terms "Administrative Agent" and "Documentation Agent,"
shall mean Bank of America, N.A., a national banking association organized under
the laws of the United States of America, and its successors in such capacities.
(b) The following definitions are inserted into Section 1.1 of
the Credit Agreement immediately following the definition of "Borrowing":
"Borrowing Base" means, as of the date of determination thereof,
for each Bank, an amount equal to the lesser of: (a) 110% of the
Eligible Receivables or (b) the Revolving Credit Commitment for
such Bank. Unless the Administrative Agent shall otherwise
determine, the Borrowing Base as of any date shall be the
Borrowing Base set forth on the most current Borrowing Base
Certificate certified and delivered by the applicable Borrower
pursuant to Section 7.8.
"Borrowing Base Certificate" means a certificate substantially in
the form of Exhibit P hereto.
(c) The following definition is inserted into Section 1.1 of
the Credit immediately following the definition of "Eligible Assignee":
"Eligible Receivable" means, as of any date of determination
thereof, all Receivables owing to a Borrower and its Subsidiaries
net of the Borrowers' and its Subsidiaries' customary reserves,
unearned customer deposits, taxes, trade or other documents,
discounts, claims, credits, returns, rebates, allowances or
set-offs.
(d) The definition of "Fronting Bank" contained in Section 1.1
of the Credit Agreement is deleted and the following is substituted therefor:
"Fronting Bank" means, as the case may be, either the Standby
Letter of Credit Fronting Bank which will be
3
3
responsible solely for the issuance of standby Letters of Credit
or the Trade Letter of Credit Fronting Bank which will be
responsible solely for the issuance of documentary trade Letters
of Credit."
(e) The definition of "Letter(s) of Credit contained in Section
1.1 of the Credit Agreement is deleted and the following is substituted
therefor:
"Letter(s) of Credit" means any standby or documentary trade
Letter of Credit issued by a Fronting Bank (either the Standby
Letter of Credit Fronting Bank or the Trade Letter of Credit
Fronting Bank, as the case may be) for the account of a Borrower
pursuant to Section 3.1 for the purpose of supporting performance,
payment deposit, or surety obligations of such Borrower, in any
case if required by law or governmental rule or regulation or if
in the ordinary course of business of such Borrower.
(f) The definition of "Margin" contained in Section 1.1 of the
Credit Agreement is deleted and the following is substituted therefor: "Margin"
means (a) for each type of Revolving Loan, 200 basis points; (b) for each type
of Term Loan, 200 basis points; and (c) for each Swingline Loan, 200 basis
points.
(g) The following definition is inserted into Section 1.1 of
the Credit Agreement immediately following the definition of "Principal Office":
"Receivable" and "Receivables" means all amounts owing to a
Borrower arising out of or in connection with the bona fide sale
or lease of goods or services in the ordinary course of business.
(h) The definition of "Reference Bank" contained in Section 1.1
of the Credit Agreement is deleted and the following is substituted therefor:
"Reference Bank" means Bank of America, N.A. (or its applicable
Lending Office, as the case may be).
4
4
(i) The definition of "Restricted Payment Allowance" contained
in Section 1.1 of the Credit Agreement is deleted in its entirety.
(j) The definition of "Revolving Credit Commitment" contained
in Section 1.1 of the Credit Agreement is deleted and the following is
substituted therefor:
"Revolving Credit Commitment" means, with respect to each Bank,
the obligation of such Bank to make Revolving Loans and
participate in Letters of Credit under this Agreement, subject to
Borrowing Base limitations, in the following aggregate principal
amount, as such amount may be reduced or otherwise modified from
time to time:
Bank of America, N.A.: $12,941,177;
Fleet National Bank: $12,941,177;
The Chase Manhattan Bank: $9,705,882;
Citizens Bank of Massachusetts: $9,705,882;
BankBoston, N.A. $9,705,882;
Total: $55,000,000.
(k) The definition of "Shareholder Pledge Agreement" contained
in Section 1.1 of the Credit Agreement is deleted and the following is
substituted therefor:
"Shareholder Pledge Agreement" means the Amended and Restated
Pledge Agreement dated as of September 15, 1998, entered into by
Xxxxxx Xxxxxxxxxx in favor of Cannondale, securing the Shareholder
Note, as the same may be amended, modified, supplemented, or
restated from time to time.
(l) The following definition is inserted into Section 1.1 of
the Credit Agreement immediately following the definition of "Spot Exchange
Rate":
"Standby Letter of Credit Fronting Bank" means Bank of America,
N.A., a national banking association organized under the laws of
the United States of America, acting in its capacity as the issuer
of the standby Letters of Credit hereunder.
5
5
(m) The definition of "Swingline Bank" contained in Section 1.1
of the Credit Agreement is deleted and the following is substituted therefor:
"Swingline Bank" means Bank of America, N.A., a national banking
association organized under the laws of the United States of
America, acting in its capacity as the lender of the Swingline
Loans hereunder.
(n) The definition of "Term Loan Commitment" contained in
Section 1.1 of the Credit Agreement is deleted and the following is substituted
therefor:
"Term Loan Commitment" means, with respect to each Bank, the
obligation of such Bank to make Term Loans under this Agreement in
the following aggregate principal amount:
Bank of America, N.A.: $4,705,882;
Fleet National Bank: $4,705,882;
The Chase Manhattan Bank: $3,529,412;
Citizens Bank of Massachusetts: $3,529,412;
BankBoston, N.A. $3,529,412;
Total: $20,000,000.
(o) The following definition is inserted into Section 1.1 of
the Credit Agreement immediately following the definition of "Total Outstandings
Amount":
"Trade Letter of Credit Fronting Bank" means The Chase Manhattan
Bank, a bank organized under the laws of New York, acting in its
capacity as the issuer of the documentary trade Letters of Credit.
(p) Article II of the Credit Agreement shall be modified in all
respects to reflect that the Borrowers shall not have the right, on or after the
date hereof, to request either a borrowing or a renewal of, or a conversion
into, any Eurocurrency Loans, and neither the Banks nor the Administrative Agent
shall be obligated to make, renew, or convert any other type of Loan into a
Eurocurrency Loan on or after the date hereof. All Loans (including Swingline
Loans) made to the Borrowers under the Credit Agreement, on or after the date
hereof, shall be Variable Rate Loans. Specifically, the Swingline Loans shall no
longer accrue interest at the Swingline Rate, but, instead, shall accrue
interest at the Variable Rate plus the applicable Margin. In addition, from and
after the date hereof, Variable Rate Loans may be denominated in one or more
Alternative Currencies, provided however, that any prepayment of such Variable
Rate Loans denominated in one or more Alternative Currencies must be accompanied
by a prepayment penalty determined by the
6
6
Banks in their sole discretion. Without limiting any of the foregoing, to the
extent that any Loans are currently outstanding as Eurocurrency Loans and are
accruing interest prior to the date hereof at a Fixed Rate plus the applicable
Margin, all such Loans shall begin to accrue interest on the outstanding and
unpaid principal amount of each such Loan from and including the date hereof to
but excluding the date such Loan is due at a variable rate per annum equal to
the Variable Rate plus the Margin.
(q) The first sentence of Section 2.3(a) of the Credit
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
Subject to the terms and conditions of this Agreement, each of the
Banks, severally and not jointly, agrees to make revolving credit
loans (the "Revolving Loans") to each Borrower (as specified in
the notice of each Borrowing pursuant to Section 2.11) from time
to time from and including the date hereof to and including the
Banking Day next preceding the Termination Date, in an aggregate
principal amount at any one time outstanding up to but not
exceeding the amount of the Borrowing Base of such Bank to the
Borrowers; provided the Revolving Loans of such Bank outstanding
plus the Letters of Credit Usage outstanding of such Bank shall
not at any time exceed its Borrowing Base and provided further
that the Outstandings Amount (which includes the aggregate amount
of Revolving Loans outstanding, the aggregate amount of Swingline
Loans outstanding plus the Letters of Credit Usage) shall not at
any time exceed the aggregate amount of the Borrowing Base of the
Banks.
(r) The following shall be added as a new Section 2.3(c) to the
Credit Agreement:
(c) Each of the parties hereto agrees that, to the extent that
Xxxxxx Xxxxxxxxxx sells Securities (as such term is defined in the
Shareholder Pledge Agreement) pursuant to Section 15 of the
Shareholder Pledge Agreement, the proceeds of which are required
to be applied in accordance with Section 2(e) of the Loan
Agreement dated as of September 15, 1998 between Cannondale and
Xxxxxx Xxxxxxxxxx (the "Loan Agreement"), the Revolving Credit
Commitment shall be reduced by one dollar for every dollar
resulting from such proceeds that are so applied toward the
payment of interest owed by Xxxxxx Xxxxxxxxxx to Cannondale under
the Loan
7
7
Agreement and the related note(s). Once reduced, the Revolving
Credit Commitment cannot be reinstated.
(s) The first sentence of Section 2.8(b) of the Credit
Agreement shall be deleted in its entirety and the following shall be
substituted in lieu thereof:
If any time prior to the Termination Date, as a result of a
partial reduction or termination of Revolving Credit Commitments,
as a result of fluctuations in currencies or otherwise, the
aggregate amount of all Revolving Loans and Swingline Loans
outstanding at such time shall exceed the aggregate amount of the
Borrowing Base, the Borrowers shall repay the Banks forthwith such
amounts as may be necessary to eliminate such excess (and if the
repayment in full of the Revolving Loans and Swingline Loans does
not eliminate such excess due to the amount of outstanding Letters
of Credit Usage, at such time, Cannondale shall also deposit with
the Administrative Agent sufficient cash collateral to cover such
remaining excess), and the failure of the Borrowers to make and
the Banks to receive such payment shall constitute an Event of
Default hereunder.
(t) The words "Revolving Credit Commitments" in the first
sentence of Section 2.12 of the Credit Agreement shall be deleted, and the words
"applicable Borrowing Base" shall be substituted in lieu thereof.
(u) The following sentence shall be added to the end of Section
3.1(a) of the Credit Agreement:
Without limiting the foregoing, all requests made by the Borrower
with respect to the issuance of standby Letters of Credit shall be
made to the Standby Letter of Credit Fronting Bank, and all
requests made by the Borrower with respect to the issuance of
documentary trade Letters of Credit shall be made to the Trade
Letter of Credit Fronting Bank. Furthermore, any documentary trade
Letters of Credit issued pursuant to the terms of this Agreement
shall be Letters of Credit requested by the Borrower to be issued
for its account on or after the date hereof, it being the
intention of the Banks not to participate with the Trade Letter of
Credit Fronting Bank in any Letter of Credit previously issued by
Chase prior to the date hereof.
8
8
(v) The following condition precedent shall be added as an
additional condition precedent as Section 5.2(g) of the Credit Agreement: "the
Administrative Agent shall have received a Borrowing Base Certificate required
to be delivered pursuant to this Agreement, which Borrowing Base Certificate
shall be dated not earlier than five business days prior to the date on which
the Borrower gives a Notice of Borrowing to the Bank of the subject Borrowing to
be made pursuant to Section 2.7 of the Agreement.
(w) The following covenant shall be added as an additional
covenant as Section 7.8(p) of the Credit Agreement: "as soon as available, and
in any event within 10 days of the end of each calendar month, a Borrowing Base
Certificate."
(x) Section 8.5 of the Credit Agreement is deleted and the
following is substituted therefor:
Make, or permit any of its Subsidiaries to make, any loan or
advance to any Person or purchase or otherwise acquire, or permit
any such Subsidiary to purchase or otherwise acquire, any capital
stock, assets, obligations or other securities of, make any
capital contribution to, or otherwise invest in, or acquire any
interest in, any Person, except for: (a) Cash and Cash Equivalents
held or acquired by such Borrower or any such Subsidiary; (b)
stock, obligations or securities received in settlement of debts
(created in the ordinary course of business) owing to such
Borrower or any such Subsidiary; (c) any Acceptable Acquisition or
any Interest Rate Protection Agreement; (d) joint ventures with
third-parties (including dealer loans) that, together with all
other joint ventures (including dealer loans) entered into by all
Borrowers and their Subsidiaries on or after June 9, 1997, do not
exceed an aggregate amount of $5,000,000 during the term hereof
(other than joint ventures (including dealer loans) existing at
the Closing Date); and (e) intercompany loans made by Cannondale
to any Subsidiary or Affiliate, including any Subsidiary Borrower,
that do not exceed an aggregate principal amount of $5,000,000
outstanding at any one time (exclusive of such intercompany loans
set forth in Schedule 8.5 hereto). Neither the Borrower nor any of
its Subsidiaries shall make any loans or advances to their
respective employees, except for (i) such loans or advances
previously made to employees of the Borrower or any of its
Subsidiaries prior to the date hereof, which loans or advances do
not currently exceed an aggregate principal amount of
$13,000,144.00; and (ii) such
9
9
loans or advances made to employees in the ordinary course of
Borrower's business (e.g., advances for travel and relocation),
which loans or advances shall not exceed at any one time the
aggregate principal amount of $500,000.
(y) Section 8.6 of the Credit Agreement is deleted and the
following is substituted therefor:
Declare or pay any dividends, purchase, redeem, retire, or
otherwise acquire for value any of its capital stock now or
hereafter outstanding, or make any distribution of assets to its
stockholders as such whether in cash, assets, or in obligations of
such Borrower, or allocate or otherwise set apart any sum for the
payment of any dividend or distribution on, or for the purchase,
redemption, or retirement of any shares of its capital stock, or
make any other distribution by reduction of capital or otherwise
in respect of any shares of its capital stock or permit any of its
Subsidiaries to purchase or otherwise acquire for value any stock
of such Borrower or another such Subsidiary, provided, however,
that each Borrower may declare and deliver dividends and make
distributions to its stockholders payable solely in common stock
of such Borrower; and provided further, however, that no such
dividends shall be declared or paid and no such distributions
shall be made if any Default or Event of Default shall have
occurred and be continuing or shall result therefrom.
2. Waiver. The Banks and the Administrative Agent hereby waive any
Event of Default that has occurred or may occur as the result of the Borrowers'
failure to comply with the covenants contained in Sections 9.1 ("Interest
Coverage Ratio") and 9.4 ("Debt Service Coverage Ratio") of the Credit Agreement
for the first fiscal quarter of the 2000 Fiscal Year of the Borrowers,
commencing on July 4, 1999 and ended on October 2, 1999 and for the period
commencing on October 3, 1999 (the first day of the second fiscal quarter of the
2000 Fiscal Year of the Borrowers) through, but not including, the last day of
said second fiscal quarter of the Borrowers; provided, however, that such waiver
shall only operate for the specific instance for which it is given, it being the
intention of the parties hereto that the Borrowers shall be in compliance in all
respects with all financial covenants set forth in Article IX of the Credit
Agreement, including the covenants contained in Sections 9.1 and 9.4 therein, on
the last day of the second fiscal quarter of the 2000 Fiscal Year of the
Borrowers and thereafter. The execution and delivery of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power, or remedy that the Banks or the Administrative Agent may have under any
of the Facility Documents.
10
10
3. Amendment Fee. The Borrowers hereby agree to pay to the
Administrative Agent, on or prior to the effective date of this Amendment, for
the account of each Bank executing this Amendment, an amendment fee in the
amount of .20% of such Bank's Commitment (used and unused, without giving effect
to Borrowing Base limitations), which Commitment has been reduced by this
Amendment.
4. Amendment of Shareholder Pledge Agreement. The Borrowers hereby
agree to enter into an amendment of the Shareholder Pledge Agreement with the
Administrative Agent and Xxxxxx Xxxxxxxxxx ("Xxxxxxxxxx") in form and substance
satisfactory to the Administrative Agent (the "Shareholder Pledge Amendment"),
in order that the parties to the Shareholder Pledge Amendment expressly
acknowledge, among other things, the dollar-for-dollar reduction in the
Revolving Credit Commitment that will occur upon the sale of Securities (as
defined in the Shareholder Pledge Agreement) and the application of the proceeds
from such sale(s) toward interest in accordance with the terms of Section 2(e)
of the Loan Agreement dated as of September 15, 1998 between Cannondale and
Xxxxxx Xxxxxxxxxx.
5. Conditions to Effectiveness. This Amendment shall not be effective
until such date as the Administrative Agent shall have received the following,
all in form, scope, and content acceptable to the Administrative Agent and the
Banks in their sole discretion, and then shall be effective as of the date first
above written:
(a) this Amendment, executed by the Borrowers and the Required
Banks;
(b) the Shareholder Pledge Amendment, executed by Cannondale
and Xxxxxxxxxx;
(c) the fully executed Pennsylvania Mortgage and related UCC-1
financing statements to be delivered in connection therewith;
(d) a Borrowing Base Certificate setting forth the Borrowing
Base within 5 business days prior to the date hereof;
(e) payment of all reasonable fees, including those due under
Section 3 of this Amendment and all reasonable legal fees due Xxxxxxxx &
Xxxxxxxx as counsel to the Administrative Agent;
(f) such other agreements and instruments as the Administrative
Agent shall reasonably require.
6. Reaffirmation by the Borrowers. Each of the Borrowers
acknowledges, agrees, and reaffirms, both prior to and after taking into account
this Amendment, that each is legally, validly, and enforceably indebted to the
Banks under the Notes without defense, counterclaim, or offset, and that each is
legally, validly, and enforceably liable to the Banks
11
11
for all costs and expenses of collection and reasonable attorneys' fees as and
to the extent provided in this Amendment, the Credit Agreement, the Notes, and
the other Facility Documents. Each of the Borrowers hereby restates and agrees
to be bound by all covenants contained in the Credit Agreement and the other
Facility Documents and hereby reaffirms that all of the representations and
warranties contained in the Credit Agreement and the other Facility Documents
remain true and correct in all material respects with the exception that the
representations and warranties regarding the financial statements described
therein are deemed true as of the date made. Each of the Borrowers represents
that, except as set forth in the Credit Agreement and the other Facility
Documents, there are neither pending, nor to each Borrower's knowledge,
threatened, legal proceedings to which any of the Borrowers is a party that
materially or adversely affect the transactions contemplated by this Amendment
or the ability of any of the Borrowers to conduct its business on a consolidated
basis. Cannondale and Cannondale Europe B.V. each acknowledge and represent that
the resolutions of each dated January 6, 1999, in the case of Cannondale, and
January 19, 1999, and January 21, 1999, in the case of Cannondale Europe B.V.,
remain in full force and effect and have not been amended, modified, rescinded,
or otherwise abrogated.
7. Reaffirmation re: Collateral. Cannondale reaffirms the mortgages,
liens, security interests, and pledges granted to Bank of America, N.A.
(successor-in-interest to NationsBank, N.A.), as Administrative Agent, for the
benefit of the Banks pursuant to the Credit Agreement and the other Facility
Documents to secure the obligations of each Borrower thereunder.
8. Other representations by the Borrowers. Each of the Borrowers
represents and confirms that: (a) no Default or Event of Default has occurred
and is continuing, and that neither the Agents nor the Banks has given its
consent to or waived any Default or Event of Default other than as expressly set
forth herein, and (b) the Credit Agreement and the other Facility Documents are
in full force and effect and enforceable against the Borrowers in accordance
with the terms thereof. Each of the Borrowers represents and confirms that as of
the date hereof, each has no claim or defense (and each of the Borrowers hereby
waives every claim and defense as of the date hereof) against the Agents or the
Banks arising out of or relating to the Credit Agreement or the other Facility
Documents or arising out of or relating to the making, administration, or
enforcement of the Loans or the remedies provided for under the Facility
Documents.
9. Miscellaneous.
(a) This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
12
12
(b) This Amendment and the rights and obligations of the
parties hereunder shall be governed by, and construed in accordance with, the
laws of the State of New York.
(c) This Amendment shall be deemed a, and included in the
definition of, Facility Document under the Credit Agreement for all purposes.
(d) The Credit Agreement, as amended hereby, and the other
Facility Documents remain in full force and effect in accordance with their
terms.
[The balance of this page left intentionally blank. The next page is the
signature page.]
13
13
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
BORROWERS
CANNONDALE CORPORATION
By /S/ XXXXXXX X. LUCA
------------------------------
Name: Xxxxxxx X. Luca
Title: Vice President, Treasurer,
Chief Financial Officer
CANNONDALE EUROPE B.V.
By /S/ BEPPO XXXXXXXX
--------------------
Name: Beppo Xxxxxxxx
Title: Managing Director
CANNONDALE JAPAN K.K.
By /S/ XXXX XXXXXXX
------------------
Name: Xxxx Xxxxxxx
Title: President, Cannondale Japan
ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
By /S/ XXXX X. XXXXXXXX
----------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
14
00
XXXXX
XXXX XX XXXXXXX, N.A.
By /S/ XXXX X. POCALYCO
----------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
FLEET NATIONAL BANK
By
----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By /S/ XXXXXX X. XXXXXXXXX
-------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By /S/ XXXXXX X. XXXXXXX
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BANKBOSTON, N.A.
By
----------------------------------
Name:
Title:
