FOURTH AMENDMENT, dated as of December 30, 1998 (this
"Fourth Amendment"), to the CREDIT AGREEMENT, dated as of
June 12, 1997, among:
(a) XXXXXXXX CORPORATION, a Delaware corporation (the "Borrower");
(b) XXXXXXXX HOLDINGS, INC., a Delaware corporation (the "Parent");
(c) the Lenders from time to time parties thereto;
(d) SOCIETE GENERALE, as Documentation Agent for the Lenders;
(e) UBS SECURITIES LLC, as Syndication Agent for the Lenders; and
(f) CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the Lenders.
W I T N E S S E T H :
WHEREAS, the parties hereto wish to amend certain provisions
of the Credit Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as
follows:
Definitions. Unless otherwise defined herein, terms defined
in the Credit Agreement shall be used as so defined.
Amendment to Subsection 1.1 of the Credit Agreement. Subsection
1.1 of the Credit Agreement is hereby amended by deleting in its
entirety the definition of "Applicable Margin" and by adding the
following definition in lieu thereof:
"Applicable Margin': with respect to (a) Tranche B Loans,
(i) 3.50% per annum, in the case of Eurodollar Loans and (ii) 2.50%
per annum, in the case of ABR Loans and (b) with respect to Tranche
A Loans and Revolving Credit Loans, the rate per annum set forth
under the relevant column heading below opposite the Leverage Ratio
then in effect:
Applicable Margin
Leverage Ratio ABR Loans Eurodollar Loans
-------------- --------- ----------------
Greater than or equal to 5.0 to 1.00 2.00% 3.00%
Less than 5.0 to 1.0, but greater than
or equal to 4.5 to 1.0 1.75% 2.75%
Less than 4.5 to 1.0, but greater than
or equal to 4.0 to 1.0 1.50% 2.50%
Less than 4.0 to 1.0, but greater than
or equal to 3.5 to 1.0 1.25% 2.25%
Less than 3.5 to 1.0, but greater than
or equal to 3.0 to 1. 1.00% 2.00%
Less than 3.0 to 1. 0.75% 1.75%
; provided that any change in the interest rate on a Loan
resulting from a change in the Leverage Ratio of the Borrower
and its Subsidiaries shall become effective as of the opening
of business on the date which is the earlier of (A) the date
upon which the Administrative Agent receives the financial
statements required to be delivered pursuant to subsection
10.1 which evidence such change in the Leverage Ratio and (B)
the date upon which such financial statements are required to
be delivered pursuant to subsection 10.1; provided, further,
that, in the event that the financial statements required to
be delivered pursuant to subsection 10.1(a) or (b), as
applicable, are not delivered when due (after giving effect to
the applicable cure period), then during the period from the
date upon which such financial statements were required to be
delivered until the date upon which they actually are
delivered, the Leverage Ratio shall be deemed for purposes of
this definition to be greater than or equal to 5.0 to 1.0;
and provided, further, however, that the "Applicable Margin"
from time to time for Swing Line Loans shall be the same as
the "Applicable Margin" then in effect for ABR Loans.
Amendment to Subsection 11.
A. Subsection 11.1 is hereby amended by deleting such
subsection in its entirety and substituting the following in
lieu thereof:
11.1. Financial Condition Covenants.
(a) Minimum Interest Coverage Ratio. Permit the ratio
(the "Consolidated Interest Coverage Ratio") of (i) Borrower's
Consolidated EBITDA for any period of four consecutive fiscal
quarters ending as of the end of any of the fiscal periods set
forth below to (ii) Borrower's Consolidated Interest Expense for
such period, to be less than the ratio set forth opposite such
period below:
Period Ratio
Fourth Fiscal Quarter 1998 1.30 to 1.00
First Fiscal Quarter 1999 1.30 to 1.00
Second Fiscal Quarter 1999 1.50 to 1.00
Third Fiscal Quarter 1999 1.50 to 1.00
Fourth Fiscal Quarter 1999 1.85 to 1.00
First Fiscal Quarter 2000 1.85 to 1.00
Second Fiscal Quarter 2000 2.00 to 1.00
Third Fiscal Quarter 2000 2.25 to 1.00
Fourth Fiscal Quarter 2000 2.40 to 1.00
First Fiscal Quarter 2001 2.40 to 1.00
Second Fiscal Quarter 2001 2.60 to 1.00
xxxx Fiscal Quarter 2001 2.75 to 1.00
Fourth Fiscal Quarter 2001 3.00 to 1.00
First Fiscal Quarter 2002 3.00 to 1.00
Second Fiscal Quarter 2002 3.25 to 1.00
Third Fiscal Quarter 2002 3.25 to 1.00
Fourth Fiscal Quarter 2002 - thereafter 3.50 to 1.00
(b) Maximum Leverage Ratio. Permit the Leverage Ratio as
of the end of any of the fiscal periods set forth below to be
more than the ratio set forth below opposite such period:
Period Ratio
Fourth Fiscal Quarter 1998 7.25 to 1.00
First Fiscal Quarter 1999 7.00 to 1.00
Second Fiscal Quarter 1999 6.40 to 1.00
Third Fiscal Quarter 1999 6.00 to 1.00
Fourth Fiscal Quarter 1999 5.00 to 1.00
First Fiscal Quarter 2000 5.00 to 1.00
Second Fiscal Quarter 2000 4.75 to 1.00
Third Fiscal Quarter 2000 4.50 to 1.00
Fourth Fiscal Quarter 2000 4.00 to 1.00
First Fiscal Quarter 2001 4.00 to 1.00
Second Fiscal Quarter 2001 3.75 to 1.00
Third Fiscal Quarter 2001 3.75 to 1.00
Fourth Fiscal Quarter 2001 3.00 to 1.00
First Fiscal Quarter 2002 3.00 to 1.00
Second Fiscal Quarter 2002 2.75 to 1.00
Third Fiscal Quarter 2002 2.75 to 1.00
Fourth Fiscal Quarter 2002 - thereafter 2.50 to 1.00
Notwithstanding anything to the contrary herein, for the
purposes of determining the Leverage Ratio and the
Consolidated Interest Coverage Ratio for the periods ending
on or about December 31, 1998 and March 31, 1999, Consolidated
EBITDA for the relevant period shall be deemed to equal actual
Consolidated EBITDA for such period plus $2,600,000 and
$1,200,000, respectively."
B. Subsection 11.10(o) is hereby amended by deleting the
reference therein to "$17,200,000" and substituting in lieu
thereof a reference to "$17,400,000."
C. Subsection 11.10(k) is hereby amended by adding after the
reference to "continuing" on the second line thereof the
following:
"and the Leverage Ratio as of the most recently completed
fiscal quarter of the Borrower and on a pro forma basis after
giving effect to the Investment contemplated hereby shall not
exceed 5.00 to 1.00."
Effective Date. This Fourth Amendment will become effective as
of the date (the "Fourth Amendment Effective Date") hereof upon
(i) its execution by the Parent, the Borrower and the Required
Lenders in accordance with the terms of the Credit Agreement
and (ii) payment to each of the Lenders that executes and
delivers this Fourth Amendment to the Administrative Agent
prior to December 30, 1998 of an amendment fee equal to .25%
of such Lender's Commitments and Loans on the Fourth Amendment
Effective Date. The Borrower shall deliver to the
Administrative Agent resolutions of the Borrower authorizing
the execution and delivery of this Fourth Amendment prior to
January 30, 1999.
Representations and Warranties. The Parent and the Borrower
represent and warrant to each Lender that (a) this Fourth
Amendment constitutes the legal, valid and binding obligation
of the Parent and the Borrower, enforceable against it in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium or similar laws affecting
creditors' rights generally, by general equitable principles
(whether enforcement is sought by proceedings in equity or
at law) and by an implied covenant of good faith and fair
dealing, (b) the representations and warranties made by
the Credit Parties in the Credit Documents are true and
correct in all material respects on and as of the date hereof
(except to the extent that such representations and warranties
are expressly stated to relate to an earlier date, in which case
such representations and warranties shall have been true and
correct in all material respects on and as of such earlier
date) and (c) no Default or Event of Default has occurred and
is continuing as of the date hereof.
Continuing Effect. Except as expressly waived or amended
hereby, the Credit Agreement shall continue to be and shall
remain in full force and effect in accordance with its terms.
This Fourth Amendment shall constitute a Credit Document.
Governing Law. This Fourth Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of New York.
Counterparts. This Fourth Amendment may be executed by the
parties hereto in any number of separate counterparts, and all
of said counterparts taken together shall be deemed to
constitute one and the same instrument.
Payment of Expenses. The Borrower agrees to pay and reimburse
the Administrative Agent for all of its out-of-pocket costs
and reasonable expenses incurred in connection with this Fourth
Amendment, including, without limitation, the reasonable fees
and disbursements of counsel to the Administrative Agent.
Acknowledgment with Respect to Various Credit Documents.
Each Credit Party, by its execution and delivery of a copy of
this Fourth Amendment, hereby consents to the extensions of
credit pursuant to the Credit Agreement. Each Credit Party
further acknowledges and agrees to the provisions of this
Fourth Amendment and hereby agrees for the benefit of the
Lenders that all extensions of credit (including without
limitation all Tranche B Loans) pursuant to the Credit
Agreement (as same is amended by this Fourth Amendment,
and as same may be further amended, modified or supplemented
from time to time) shall be fully entitled to all benefits of
(and shall be fully guaranteed pursuant to) the Master
Guarantee and Collateral Agreement and shall be fully secured
pursuant to, and in accordance with the terms of, all the
Security Documents.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper
and duly authorized officers as of the day and year first
above written.
XXXXXXXX CORPORATION
By:
Title:
XXXXXXXX HOLDINGS, INC.
By:
Title:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent and as a Lender
By:
Title:
SOCIETE GENERALE, as a Lender
By:
Title:
UBS AG, Stamford Branch, as a Lender
By:
Title:
BANK POLSKA KASA OPIEKI S.A. -
PEKAO S.A. GROUP
By:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:
Title:
CITICORP USA, INC.
By:
Title:
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management,
as Investment Advisor
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
FIRST SOURCE FINANCIAL, LLP
By: First Source Financial, Inc.,
as Agent/Manager
By:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By:
Title:
XXXXXXX XXXXX DEBT STRATEGIES FUND,
INC.
By:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset
Management, L.P., as Investment
Advisor
By:
Title:
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO
By: Xxxxxxx Xxxxx Asset
Management, L.P., as Investment
Advisor
By:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By:
Title:
ORIX USA CORPORATION
By:
Title:
SANWA BUSINESS CREDIT CORPORATION
By:
Title:
SENIOR DEBT PORTFOLIO
BOSTON MANAGEMENT AND RESEARCH,
as Investment Advisor
By:
Title:
PamCo Cayman Ltd.
By: Highland Capital Management,
L.P. as Collateral Manager
By:
Title:
XXX CAPITAL FUNDING, L.P.
By: Highland Capital Management,
L.P. as Collateral Manager
By:
Title:
THE CHASE MANHATTAN BANK
By:
Title:
IMPERIAL BANK
By:
Title:
ACKNOWLEDGED AND AGREED:
ERO, INC.
By:
Name:
Title:
ERO INDUSTRIES, INC.
By:
Name:
Title:
ERO MARKETING, INC.
By:
Name:
Title:
PRISS PRINTS, INC.
By:
Name:
Title:
IMPACT, INC.
By:
Name:
Title:
ERO CANADA, INC.
By:
Name:
Title:
AMAV INDUSTRIES INC.
By:
Name:
Title:
