Exhibit 10.11
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT (this "AMENDMENT NO. 2"),
dated as of February 10, 2000, among Xxxxxx Xxxxxxxxxx Ltd., a New York
corporation (the "BORROWER"), each of the entities identified as Consenting
Obligors on the signature pages hereto (collectively, the "CONSENTING
OBLIGORS"), the various financial institutions from time to time parties thereto
(collectively, the "LENDERS"), DLJ Capital Funding, Inc., as syndication agent
(the "SYNDICATION AGENT") for the Lenders, Xxxxxx Financial, Inc., as
documentation agent (the "DOCUMENTATION AGENT") for the Lenders and Fleet
National Bank, as administrative agent (the "ADMINISTRATIVE AGENT") for the
Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Syndication Agent, the
Documentation Agent and the Administrative Agent are parties to the Amended and
Restated Credit Agreement, dated as of August 7, 1998 (as heretofore modified
and supplemented and in effect from time to time, the "CREDIT AGREEMENT");
WHEREAS, the Borrower has requested the Lenders to amend certain
provisions of the Credit Agreement;
WHEREAS, all Loans and Obligations shall continue to be and shall be
fully guaranteed pursuant to the Holdco Guaranty and Pledge Agreement, the
Intermediate Holdco Guaranty and Pledge Agreement and the Subsidiary Guaranty
and fully secured by, among other things, the Holdco Guaranty and the Pledge
Agreement, the Intermediate Holdco Guaranty and Pledge Agreement, the Borrower
Pledge Agreement, the Borrower Security Agreement and the Subsidiary Security
Agreement; and
WHEREAS, the Borrower desires, and the Lenders are willing, on the
terms and subject to the conditions hereinafter set forth, to amend the Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 2, including
its preamble and recitals, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"ADMINISTRATIVE AGENT" is defined in the PREAMBLE.
"AMENDMENT NO. 2" is defined in the PREAMBLE.
"AMENDMENT NO. 2 Effective Date" is defined in SUBPART 4. 1.
"BORROWER" is defined in the PREAMBLE.
"CONSENTING OBLIGORS" means each of the entities identified as such on
the signature pages hereof.
"CREDIT AGREEMENT" is defined in the first RECITAL.
"DOCUMENTATION AGENT" is defined in the PREAMBLE.
"LENDERS" is defined in the PREAMBLE.
"SYNDICATION AGENT" is defined in the PREAMBLE.
SUBPART 1.2. OTHER DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 2, including its
preamble and recitals, have the meanings ascribed thereto in the Credit
Agreement. Each reference to "hereof", "hereunder", "herein" and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Credit Agreement shall from and after
the Amendment No. 2 Effective Date refer to the Credit Agreement, as amended
hereby.
PART II
AMENDMENTS TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Credit Agreement is hereby amended in accordance with this
PART II. Except to the extent
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amended by this Amendment No. 2, the Credit Agreement is and shall continue to
be in full force and effect and is hereby ratified and confirmed in all
respects.
SUBPART 2.1. AMENDMENTS TO ARTICLE I. Article I of the Credit Agreement
is amended as set forth in this SUBPART 2.1.
(a) The definition of "APPLICABLE MARGIN" contained in Section
1.1 of the Credit Agreement is amended to replace existing clauses (a),
(b) and (c) and the pricing grid following clause (c) thereof (but not
the paragraph following such pricing grid) with new clauses (a) and (b)
and a new pricing grid following clause (b) to read in their entirety
as follows:
(a) with respect to the unpaid principal amount of
each Term-B Loan maintained as a (i) Base Rate Loan, 2.50% per
annum and (ii) LIBO Rate Loan, 3.75% per annum; and
(b) with respect to the unpaid principal amount of
each Swing Line Loan (each of which shall be borrowed and
maintained only as a Base Rate Loan) and each Revolving Loan
and Term-A Loan, by reference to the applicable Senior
Leverage Ratio and at the applicable percentage per annum set
forth below under the column entitled "Applicable Margin for
Base Rate Loans", in the case of Base Rate Loans, or by
reference to the applicable Senior Leverage Ratio and at the
applicable percentage per annum set forth below under the
column entitled "Applicable Margin for LIBO Rate Loans", in
the case of LIBO Rate Loans:
APPLICABLE MARGIN FOR REVOLVING LOANS AND TERM-A LOANS
Applicable Applicable
Margin For Base Margin For LIBO
Senior Leverage Ratio Rate Loans Rate Loans
--------------------- ---------- ----------
Greater Than or Equal To 4.0:1 2.25% 3.50%
Greater Than or Equal to 3.5:1 and
Less Than 4.0:1 2.00% 3.25%
Greater Than or Equal to 3.0:1 and
Less Than 3.5:1 1.50% 2.75%
Greater Than or Equal to 2.5:1 and
Less Than 3.0:1 1.00% 2.25%
Less Than 2.5:1 0.75% 1.75%
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(b) The definition of "REVOLVING LOAN COMMITMENT AMOUNT"
contained in Section 1.1 of the Credit Agreement is amended to read in
its entirety as follows:
"REVOLVING LOAN COMMITMENT AMOUNT" means (i) at all
times for the period from the Amendment No. 2 Effective Date
through (and including) the date (which in no event shall
occur prior to December 31, 2000) upon which the Agents shall
have received a certificate executed by the president, chief
executive officer, treasurer, assistant treasurer, controller
or chief financial Authorized Officer of the Borrower in form
and substance satisfactory to the Agents setting forth in
sufficient detail calculations demonstrating that the Leverage
Ratio is less than or equal to 5.0:1, $13,000,000, and (ii)
thereafter, $20,000,000, in each case as such amounts may be
reduced from time to time pursuant to SECTION 2.2."
(c) The following new definitions are added to Section 1.1 of
the Credit Agreement in their appropriate alphabetical order:
"AMENDMENT NO. 2" means Amendment No. 2 to Credit
Agreement, dated as of February 10, 2000, among the Borrower,
the other Obligors party thereto, the Lenders, the Syndication
Agent, the Documentation Agent and the Administrative Agent.
"AMENDMENT NO. 2 EFFECTIVE DATE" shall have the
meaning set forth in Subpart 4.1 of Amendment No. 2.
SUBPART 2.2. AMENDMENTS TO ARTICLE VII. Article VII of the Credit
Agreement is amended as set forth in this Subpart 2.2.
(a) Clause (a)(i) of Section 7.1.1 of the Credit Agreement is
amended to insert the words "for the period from the Amendment No. 2
Effective Date through (and including) the end of such calendar month
(which in no event shall occur prior to December 31, 2000) in which the
Agents shall have received a certificate executed by the president,
chief executive officer, treasurer, assistant treasurer, controller or
chief financial Authorized Officer of the Borrower in form and
substance satisfactory to the Agents setting forth in sufficient detail
calculations demonstrating that the Leverage Ratio is less than or
equal to 5.0:1" immediately following the words "each Fiscal Year of
the Borrower" contained in the third line of such clause."
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(b) Section 7.2.4 of the Credit Agreement is amended to read
in its entirety as follows:
SECTION 7.2.4. FINANCIAL COVENANTS.
(a) EBITDA. The Borrower will not permit EBITDA for the period
of four consecutive Fiscal Quarters ending on the last day of any
Fiscal Quarter occurring during any period set forth below to be less
than the amount set forth opposite such period:
Period EBITDA
------ ------
1/1/00 to 9/29/00 $20,000,000
9/30/00 to 12/30/00 22,000,000
12/31/00 to 12/30/01 23,500,000
12/31/01 to 12/30/02 30,000,000
12/31/02 to 12/30103 34,000,000
12131/03 to 12/30/04 38,000,000
12/31/04 and thereafter 40,000,000
(b) Leverage Ratio. The Borrower will not permit the Leverage
Ratio as of the end of any Fiscal Quarter ending during any period set
forth below to be greater than the ratio set forth opposite such
period:
Period Leverage Ratio
------ --------------
1/1/00 to 6/29/00 6.50:1
6/30/00 to 9/29/00 6.00:1
9/30/00 to 12/30/00 5.50:1
12/31/00 to 12/30/01 5.25:1
12/31/01 to 12/30/02 4.00:1
12/31/02 and thereafter 3.00:1
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(c) INTEREST COVERAGE RATIO. The Borrower will not permit the
Interest Coverage Ratio as of the end of any Fiscal Quarter ending
during any period set forth below to be less than the ratio set forth
opposite such period:
Interest Coverage
Period Ratio
------ -----
1/1/00 to 6/29/00 1.50:1
6/30/00 to 9/29/00 1.55:1
9/30/00 to 12/30/00 1.60:1
12/31/00 to 12/30/01 1.65:1
12/31/01 to 12/30/02 2.25:1
12/31/02 to 12/30/03 3.00:1
12/31/03 and thereafter 4.00:1
(d) FIXED CHARGE COVERAGE RATIO. The Borrower will not permit the Fixed
Charge Coverage Ratio as of the end of any Fiscal Quarter ending during any
period set forth below to be less than the ratio set forth opposite such period:
Fixed Charge
Period Coverage Ratio
------ --------------
1/1/00 to 6/29/00 0.83:1
6/30/00 to 9/29/00 0.84:1
9/30/00 to 12/30/00 0.85:1
12/31/00 to 12/30/01 0.92:1
12/31/01 and thereafter 1.10:1
PART III
AFFIRMATION AND CONSENT
SUBPART 3.1. ACKNOWLEDGMENT AND REAFFIRMATION. Each of the Consenting
Obligors hereby acknowledges the amendments to the Credit Agreement pursuant to
the terms and provisions set forth in this Amendment No. 2. Each of the
Consenting Obligors hereby reaffirms, as of the Amendment No. 2 Effective Date,
(i) the covenants and agreements contained in each Loan Document to which it is
a party, including, in each case, as such covenants and agreements may be
modified by this Amendment No. 2, and (ii) its guarantee of payment of the
Obligations pursuant to the Holdco Guaranty and Pledge Agreement (in the case of
Holdco), the Intermediate
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Holdco Guaranty and Pledge Agreement (in the case of Intermediate Holdco or the
Subsidiary Guaranty (in the case of Hittman).
SUBPART 3.2. REPRESENTATIONS AND WARRANTIES, ETC. Each of the
Consenting Obligors hereby certifies that, as of the date hereof (after giving
effect to the occurrence of the Amendment No. 2 Effective Date), the
representations and warranties made by it in the Holdco Guaranty and Pledge
Agreement (in the case of Holdco), the Intermediate Holdco Guaranty and Pledge
Agreement (in the case of Intermediate Holdco) or the Subsidiary Guaranty (in
the case of Hittman) are true and correct in all material respects with the same
effect as if made on the date hereof (unless stated to relate solely to an
earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date).
SUBPART 3.3 LOAN DOCUMENTS. Each of the Consenting Obligors further
confirms that the Holdco Guaranty and Pledge Agreement (in the case of Holdco),
the Intermediate Holdco Guaranty and Pledge Agreement (in the case of
Intermediate Holdco) or the Subsidiary Guaranty (in the case of Hittman) is and
shall continue to be in full force and effect and the same is hereby ratified
and confirmed in all respects except that upon the occurrence of the Amendment
No. 2 Effective Date, all references in the Holdco Guaranty and Pledge
Agreement, the Intermediate Holdco Guaranty and Pledge Agreement and the
subsidiary Guaranty, as the case may be, to the "Credit Agreement", "Loan
Documents", "thereunder", "thereof", or words similar import shall mean the
Credit Agreement and the Loan Documents, as the case may be, in each case after
giving effect to the amendments and other modifications provided for this
Amendment No. 2.
SUBPART 3.4. COURSE OF DEALING, ETC. Each of the Consenting
Obligors hereby acknowledges and agrees that the acceptance by the Agents and
each Lender of this document shall not be construed in any manner to establish
any course of dealing on the Agents' or Lender's part, including the providing
of any notice or the requesting of any acknowledgement not otherwise expressly
provided for in any Loan Document with respect to any future amendment, waiver,
supplement or other modification to any Loan Document or any arrangement
contemplated by any Loan Document.
PART IV
CONDITIONS TO EFFECCTIVENESS
SUBPART 4.1. AMENDMENT NO. 2 EFFECTIVE DATE. This Amendment No. 2 shall
become effective on February 10, 2000 (the "AMENDMENT NO. 2 EFFECTIVE DATE")
upon the prior to concurrent satisfaction of each of the conditions precedent
set forth in this PART IV.
SUBPART 4.1.1. EXECUTION OF COUNTERPARTS. The Agents shall have
received counterparts of this Amendment No. 2, duly executed by the Borrower,
the Consenting Obligors and the Required Lenders (or evidence thereof
satisfactory to the Agents). The delivery of an
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executed counterpart hereof by the Borrower shall constitute a representation
and warranty by the Borrower that, on the Amendment No. 2 Effective Date, after
giving effect to this Amendment No. 2, all statements set forth in Article VI of
the Credit Agreement, as amended by this Amendment No. 2, are true and correct
as of such date, except to the extent that such statement expressly relates to
an earlier date (in which case such statement shall be true and correct on and
as of such earlier date).
SUBPART 4.1.2. RESOLUTIONS, ETC. The Agents shall have received from
each Obligor a certificate, dated the Amendment No. 2 Effective Date, of its
Secretary or Assistant Secretary as to (i) resolutions of its Board of Directors
then in full force and effect authorizing the execution, delivery and
performance of this Amendment No. 2 and each other Loan Document to be executed
by it, and (ii) the incumbency and signatures of those of its officers
authorized to act with respect to this Amendment No. 2 and each other Loan
Document executed by it, upon which certificate each Agent and each Lender may
conclusively rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of such Obligor canceling oz amending such
prior certificate.
SUBPART 4.1.3. PAYMENT OF FEES AND EXPENSES. The Administrative Agent
shall have received, for the account of each Lender which shall have delivered
to the Agents a duly executed counterpart of this Amendment No. 2 by February
10, 2000, an amendment fee in the amount of .25 % of such Lender's Loans and
Commitments. In addition, the Borrower hereby agrees to pay and reimburse the
Syndication Agent for all its reasonable fees and expenses incurred in
connection with the negotiation, preparation, execution and delivery of this
Amendment No. 2 and related documents, including all reasonable fees and
disbursements of counsel to the Syndication Agent.
SUBPART 4.1.4. SATISFACTORY LEGAL FORM. The Syndication Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Syndication Agent or
its counsel may reasonably request, and all legal matters incident to the
effectiveness of this Amendment No. 2 shall be satisfactory to the Syndication
Agent and its counsel. All documents executed or submitted pursuant hereto or in
connection herewith shall be reasonably satisfactory in form and substance to
the Syndication Agent and its counsel.
SUBPART 4.2. LIMITATION. Except as expressly provided hereby, all of
the representations, warranties, terms, covenants and conditions of the Credit
Agreement and each other Loan Document shall remain unwaived and shall continue
to be, and shall remain, in full force and effect in accordance with their
respective terms. The modifications and consents set forth herein shall be
limited precisely as provided for herein, and shall not be deemed to be a waiver
of, consent to or modification of any other term or provision of the Credit
Agreement or of any term or provision of any other Loan Document or other
instrument referred to therein or herein, or of any transaction or further or
future action on the part of the Borrower or any other Person
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which would require the consent of the Administrative Agent or any of the
Lenders under the Credit Agreement or any such other Loan Document or
instrument.
PART V
MISCELLANEOUS
SUBPART 5.1. CROSS-REFERENCES. References in this Amendment No. 2 to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment No. 2. References in this Amendment No. 2 to any Article or
Section are, unless otherwise specified, to such Article or Section of the
Credit Agreement.
SUBPART 5.2. LOAN DOCUMENT PURSUANT TO CREDIT AGREEMENT. This Amendment
No. 2 is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated therein) be construed, administered and
applied in accordance with all of the terms and provisions of the Credit
Agreement, as amended hereby, including Article X thereof.
SUBPART 5.3. SUCCESSORS AND ASSIGNS. This Amendment No. 2 shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SUBPART 5.4. COUNTERPARTS. This amendment No. 2 may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be an original and all of which shall constitute together but
one and the same agreement.
SUBPART 5.5. GOVERNING LAW. THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 2 as of the date first above written.
BORROWER: XXXXXX XXXXXXXXXX LTD.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President Finance
CONSENTING OBLIGORS: WGL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President Finance
WGL INTERMEDIATE HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President Finance
XXXXXXXXXX-XXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President Finance
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DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
and as Lender
By: /s/ Xxxx Kleo
-----------------------------
Name:
Title:
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FLEET NATIONAL BANK,
as Administrative Agent
and as Lender
By: /s/ Xxxxxxx So
------------------------------
Name: Xxxxxxx So
Title: Assistant Vice President
12
XXXXXX FINANCIAL, INC.,
as Documentation Agent
and as Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
13
BANKBOSTON, N.A.,
By: /s/ XX Xxxxx
-----------------------------
Name: XX Xxxxx
Title: Vice President
14
PARIBAS, NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Byhovsky
-----------------------------
Name: Xxxx Byhovsky
Title: A.V.P.
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BHF (USA) CAPITAL CORPORATION
By: /s/ Xxx Dobrjanskyi
-------------------------------
Name: Xxx Dobrjanskyi
Title: Assistant Vice President
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Associate
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XXX XXXXX XXXXXXXXX BANK
By: /s/ Xxxx X. Xxxxx
-----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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CITY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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COMERICA BANK
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: First Vice President
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HSBC BANK USA
(formerly Marine Midland Bank)
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
20
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Administrative Vice President
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SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management and Research,
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management and Research,
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
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CERES FINANCE LTD.
By: INVESCO Senior Secured Management,
Inc., as Sub-Managing Agent
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
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STRATA FUNDING LTD.
By: INVESCO Senior Secured Management,
Inc., as Sub-Managing Agent
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
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XXX XXXXXX
PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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XXX XXXXXX
SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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