FIRST AMENDMENT, dated as of November 11, 1997 (this "First 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:
1. Definitions. Unless otherwise defined herein, terms defined
in the Credit Agreement shall be used as so defined.
2. Amendment to Subsection 1.1 of the Credit Agreement.
A. Amendment to Subsection 1.1. Subsection 1.1 of the Credit
Agreement is hereby amended by deleting in its entirety the definitions
of "Aggregate Tranche B Commitment", "Clean-Down Amount" and "Tranche B
Loan" and adding the following definitions:
`Aggregate Tranche B Commitment': $45,000,000, as such amount
may be reduced from time to time pursuant to this Agreement.
`Clean-Down Amount': the amount equal to $10,000,000 for
fiscal years 1998 and 1999 and $15,000,000 for each fiscal year
thereafter; provided that with respect to each such fiscal year
such amount shall be increased by the lesser of (a) $15,000,000
and (b) the aggregate principal amount of the Revolving Credit
Loans borrowed to consummate the acquisition permitted by
subsection 11.10(n)(i).
`First Amendment Effective Date': as defined in the First
Amendment dated as of November 11, 1997 to this Agreement.
`Tranche B Loans': as defined in subsection 3.1."
3. Amendment to Section 3. Section 3 of the Credit Agreement is
hereby amended in its entirety by deleting such Section in its entirety and
substituting in lieu thereof the following:
"SECTION III. AMOUNT AND TERMS OF TRANCHE B LOAN
COMMITMENTS
3.1. Tranche B Loans. (a) Subject to the terms and
conditions hereof, each Tranche B Lender severally agrees to (a) continue
the Tranche B Loans outstanding on the First Amendment Effective Date
pursuant to the terms hereof and (b) make a term loan (the Tranche B Loans
continued or made pursuant to clauses (a) and (b), collectively, the
"Tranche B Loans") to the Borrower prior to December 31,1997 in an amount
not to exceed such Tranche B Lender's Tranche B Commitment Percentage of
$10,000,000. The Tranche B Loans may from time to time be (a) Eurodollar
Loans, (b) ABR Loans or (c) a combination thereof, as determined by the
Borrower and notified to the Administrative Agent in accordance with
subsections 3.2 and 7.6. The Borrower shall have the right, upon not less
than one Business Day's notice to the Administrative Agent, to terminate up
to $10,000,000 of the Aggregate Tranche B Commitment or, from time to time
prior to any borrowing pursuant to subsection 3.2, to reduce the amount
thereof. Any such reduction shall be in an amount equal to $1,000,000 or
a whole multiple of $250,000 in excess thereof and shall reduce permanently
the Aggregate Tranche B Commitment then in effect.
(b) Subsequent to a Notice of Borrowing given by the
Borrower pursuant to subsection 3.2 and immediately prior to any borrowing
of Tranche B Loans, without the necessity of further action by any party,
one or more Tranche B Lenders (the "Selling Lenders") as specified on
Schedule 1.1C hereto shall sell, transfer and assign to one or more other
Tranche B Lenders (the "Purchasing Lenders") as specified on Schedule 1.1C
hereto a portion of the Selling Lender's right, title and interest in and
to its Tranche B Term Loans as specified on Schedule 1.1C hereto, without
recourse, representation or warranty, and each Purchasing Lender shall
purchase, take and acquire from a Selling Lender a portion of such Selling
Lender's right, title and interest in and to its Tranche B Term Loans as
specified on Schedule 1.1C hereto, so that after giving effect to all such
transfers, each Tranche B Lender's interest in the Tranche B Term Loans
shall be as specified on Schedule 1.1C hereto.
3.2. Procedure for Tranche B Loan Borrowing. The Borrower
shall give the Administrative Agent its irrevocable Notice of Borrowing
(which notice must be received by the Administrative Agent prior to 11:00
A.M., New York City time, (a) three Business Days prior to the requested
Borrowing Date, if all or any part of the requested Tranche B Loans are to
be initially Eurodollar Loans or (b) on the requested Borrowing Date,
otherwise) requesting that the Tranche B Lenders make the Tranche B Loans
on the requested Borrowing Date and specifying the amount to be borrowed.
Upon receipt of such Notice of Borrowing, the Administrative Agent shall
promptly notify each Tranche B Lender thereof. Each Tranche B Lender will
make the amount of its pro rata share of the Tranche B Loans available to
the Administrative Agent for the account of the Borrower at the office of
the Administrative Agent specified in subsection 14.2 prior to 11:00 A.M.,
New York City time, on the Borrowing Date in funds immediately available
to the Administrative Agent. Such Tranche B Loans will then be made
available to the Borrower by the Administrative Agent transferring to the
account directed by the Borrower (which account need not be maintained by
the Administrative Agent) with the aggregate of the amounts made available
to the Administrative Agent by the Tranche B Lenders and in like funds as
received by the Administrative Agent.
3.3. Amortization of Tranche B Loans. (a) The Borrower
shall repay the Tranche B Loans on each date set forth below by the amount
set forth below opposite such date:
Period Amount
December 31, 1997 $158,460
March 31, 1998 158,460
June 30, 1998 158,460
September 30, 1998 158,460
December 31, 1998 158,460
March 31, 1999 158,460
June 30, 1999 158,460
September 30, 1999 158,460
December 31, 1999 158,460
March 31, 2000 158,460
June 30, 2000 158,460
September 30, 2000 158,460
December 31, 2000 158,460
March 31, 2001 158,460
June 30, 2001 158,460
September 30, 2001 158,460
December 31, 2001 158,460
March 31, 2003 6,338,020
June 30, 2003 1,584,510
September 30, 2003 6,338,020
December 31, 2003 1,584,510
March 31, 2004 6,845,065
June 30, 2004 1,711,265
September 30, 2004 6,845,065
December 31, 2004 1,711,265
March 31, 2005 6,464,785
June 30, 2005 2,249,835
(b) The Borrower shall repay any then outstanding Tranche
B Loans on June 30, 2005.
3.4. Use of Proceeds of Tranche B Loans. The proceeds of
the Tranche B Loans shall be utilized by the Borrower only (a) to finance
the purchase by AcquisitionCo of the Tendered Shares, (b) to finance the
Merger, (c) to refinance outstanding Indebtedness of the Borrower and its
Subsidiaries (including, without limitation, ERO), (d) to finance the
acquisition permitted by subsection 11.10(n)(ii) and (e) to pay any fees
and expenses relating thereto."
4. Amendment to Section 7. Subsection 7.2 is hereby amended
by adding "(a)" immediately prior to the text thereof and adding at the end
thereof the following paragraph:
"(b) The Borrower agrees to pay to the Administrative
Agent for the account of each Purchasing Lender specified
on Schedule 1.1C a commitment fee for the period from and
including the First Amendment Effective Date to but excluding
the earliest of (a) December 31, 1997, (b) subsequent Borrowing
Date for Tranche B Loans (as to which the Borrower has given
notice pursuant to subsection 3.2) and (c) the date on which
the Tranche B Commitments shall terminate as provided herein,
computed at the rate equal to 1/2 of 1% per annum on the
Tranche B Commitment of such Purchasing Lender (or any assignee
who purchases such Tranche B Commitment pursuant to the terms
hereof), payable quarterly in arrears on the earlier of (i)
the last Business Day of December 1997 or (ii) the date on
which the Tranche B Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after
the date hereof."
5. Amendments to Section 11.
A. Amendment to Subsection 11.1. Subsection 11.1 is hereby
amended by deleting the paragraph at the end of such subsection
(which paragraph begins with the word "Notwithstanding") and
substituting the following paragraph in lieu thereof:
"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, 1997, March 31, 1998, June 30, 1998
and September 30, 1998, (i) Consolidated EBITDA for the
relevant period shall be deemed to equal actual Consolidated
EBITDA for such period (commencing with the period ended on
or about June 30, 1997) plus $17,000,000, $8,000,000,
$4,000,000 and $2,500,000, respectively; and (ii)
Consolidated Interest Expense for the relevant period shall
be deemed to equal actual Consolidated Interest Expense for
such period (since on or about October 1, 1997) multiplied
by 4, 2 and 4/3, respectively."
B. Amendment to Subsection 11.10. Subsection 11.10 is
hereby amended by adding the following paragraph "(n)" at the
end of such subsection (and adjusting the punctuation at the
end of paragraph (m) accordingly):
"(n) so long as after giving effect thereto no Default
or Event of Default shall have occurred and be continuing
or would result therefrom, (i) the Borrower may use proceeds
of Revolving Credit Loans to acquire certain assets of
Xxxxxxxxx Industries, Inc. on terms and conditions reasonably
satisfactory to the Required Lenders so long as the
aggregate amount of consideration paid in connection
therewith (which may include Indebtedness permitted by
subsection 11.2(m)) shall not exceed approximately
$15,000,000 and (ii) the Borrower may purchase the assets
of RDM Sports Group, Inc. on terms and conditions reasonably
satisfactory to the Required Lenders so long as the
aggregate amount of consideration paid in connection
therewith (which may include Indebtedness permitted by
subsection 11.2(m)) shall not exceed $10,000,000, provided
that, in the case of clauses (i) and (ii), (A) such actions
as may be required or reasonably requested to ensure that
the Administrative Agent, for the ratable benefit of the
Lenders, has a perfected first priority security interest in
any assets acquired, subject to Liens permitted by
subsection 11.3, shall have been taken, (B) (I) on a pro
forma basis for the period of four consecutive fiscal
quarters most recently ended (assuming the consummation of
such acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first
day of such period of four consecutive fiscal quarters), the
Borrower shall be in compliance with the covenants contained
in subsection 11.1 and (II) the Administrative Agent shall
have received calculations in reasonable detail reasonably
satisfactory to it showing compliance with the requirements
of this clause (B) certified by a Responsible Officer of the
Borrower and (C) such acquisitions are Permitted
Acquisitions."
6. Amendment to Schedule 1.1A. Schedule 1.1A to the Credit
Agreement is hereby amended by deleting Schedule 1.1A in its
entirety and substituting in lieu thereof Annex A hereto.
7. Addition of Schedule 1.1C. Schedule 1.1C in the form of
Annex B hereto is hereby added to the Credit Agreement.
8. Effective Date. This First Amendment will become
effective as of the date (the "First Amendment Effective Date")
hereof upon its execution by the Borrower and the Required
Lenders in accordance with the terms of the Credit Agreement.
9. Representations and Warranties. The Borrower represents
and warrants to each Lender that (a) this First Amendment
constitutes the legal, valid and binding obligation of 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.
10. 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.
11. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
12. Counterparts. This First 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.
13. 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
First Amendment, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent.
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:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By:
Title:
By:
Title:
CREDIT SUISSE FIRST BOSTON, as a Lender
By:
Title:
By:
Title:
SOCIETE GENERALE, as a Lender
By:
Title:
UNION BANK OF SWITZERLAND, NEW YORK BRANCH, as a Lender
By:
Title:
By:
Title:
BANK POLSKA KASA OPIEKI S.A. -
PEKAO S.A. GROUP
By:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:
Title:
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:
NATIONAL WESTMINSTER BANK PLC
By:
Title:
ORIX USA CORPORATION
By:
Title:
SANWA BUSINESS CREDIT CORPORATION
By:
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND RESEARCH, as Investment Advisor
By:
Title:
PAMCO CAYMAN LTD., by Protective Asset Management as Collateral Manager
By:
Title:
THE CHASE MANHATTAN BANK
By:
Title:
SECOND AMENDMENT, dated as of December 19, 1997 (this "Second 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:
1. Definitions. Unless otherwise defined herein, terms defined in
the Credit Agreement shall be used as so defined.
2. Amendment to Section 3. Section 3.3 of the Credit Agreement is
hereby amended in its entirety by deleting such Section 3.3 in its entirety
and substituting in lieu thereof the following:
"3.3. Amortization of Tranche B Loans. (a) The Borrower shall
repay the Tranche B Loans on each date set forth below by the amount
set forth below opposite such date:
Period Amount
December 31, 1997 $125,000
March 31, 1998 125,000
June 30, 1998 125,000
September 30, 1998 125,000
December 31, 1998 125,000
March 31, 1999 125,000
June 30, 1999 125,000
September 30, 1999 125,000
December 31, 1999 125,000
March 31, 2000 125,000
June 30, 2000 125,000
September 30, 2000 125,000
December 31, 2000 125,000
March 31, 2001 125,000
June 30, 2001 125,000
September 30, 2001 125,000
December 31, 2001 125,000
March 31, 2002 125,000
June 30, 2002 125,000
September 30, 2002 125,000
December 31, 2002 125,000
March 31, 2003 5,000,000
June 30, 2003 1,250,000
September 30, 2000 5,000,000
December 31, 2003 1,250,000
March 31, 2004 5,400,000
June 30, 2004 1,350,000
September 30, 2004 5,400,000
December 31, 2004 1,350,000
March 31, 2005 5,100,000
June 30, 2005 1,275,000
(b) The Borrower shall repay any then outstanding Tranche B
Loans on June 30, 2005."
3. Amendments to Section 11.
A. Amendment to Subsection 11.1. Subsection 11.1 is hereby
amended by deleting the paragraph at the end of such subsection
(which paragraph begins with the word "Notwithstanding") and
substituting the following paragraph in lieu thereof:
"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, 1997, March 31, 1998, June 30, 1998
and September 30, 1998, (i) Consolidated EBITDA for the
relevant period shall be deemed to equal actual Consolidated
EBITDA for such period (commencing with the period ended on
or about June 30, 1997) plus $12,000,000, $3,700,000,
$2,000,000 and $1,200,000, respectively; and (ii)
Consolidated Interest Expense for the relevant period shall
be deemed to equal actual Consolidated Interest Expense for
such period (since on or about October 1, 1997) multiplied by
4, 2 and 4/3, respectively."
B. Amendment to Subsection 11.10. Subsection 11.10 is hereby
amended by adding the following paragraph "(n)" at the end of such
subsection (and adjusting the punctuation at the end of paragraph (m)
accordingly):
"(n) so long as after giving effect thereto no Default
or Event of Default shall have occurred and be continuing or
would result therefrom, the Borrower may use proceeds of
Revolving Credit Loans to acquire certain assets of Xxxxxxxxx
Industries, Inc. on terms and conditions reasonably
satisfactory to the Required Lenders so long as the aggregate
amount of consideration paid in connection therewith (which
may include Indebtedness permitted by subsection 11.2(m))
shall not exceed approximately $15,000,000 provided that (A)
such actions as may be required or reasonably requested to
ensure that the Administrative Agent, for the ratable benefit
of the Lenders, has a perfected first priority security
interest in any assets acquired, subject to Liens permitted
by subsection 11.3, shall have been taken, (B) (I) on a pro
forma basis for the period of four consecutive fiscal quarters
most recently ended (assuming the consummation of such
acquisition and the incurrence or assumption of any
Indebtedness in connection therewith occurred on the first
day of such period of four consecutive fiscal quarters), the
Borrower shall be in compliance with the covenants contained
in subsection 11.1 and (II) the Administrative Agent shall
have received calculations in reasonable detail reasonably
satisfactory to it showing compliance with the requirements
of this clause (B) certified by a Responsible Officer of the
Borrower and (C) such acquisitions are Permitted Acquisitions."
4. Effective Date. This Second Amendment will become effective
as of the date (the "Second Amendment Effective Date") hereof upon its
execution by the Borrower and the Required Lenders in accordance with
the terms of the Credit Agreement.
5. Representations and Warranties. The Borrower represents
and warrants to each Lender that (a) this Second Amendment constitutes
the legal, valid and binding obligation of 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.
6. 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.
7. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
8. Counterparts. This Second 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.
9. 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 Second
Amendment, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent.
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:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent
By:
Title:
By:
Title:
CREDIT SUISSE FIRST BOSTON, as a
Lender
By:
Title:
By:
Title:
SOCIETE GENERALE, as a Lender
By:
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH, as a Lender
By:
Title:
By:
Title:
BANK POLSKA KASA OPIEKI S.A. -
PEKAO S.A. GROUP
By:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:
Title:
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:
NATIONAL WESTMINSTER BANK PLC
By:
Title:
ORIX USA CORPORATION
By:
Title:
SANWA BUSINESS CREDIT CORPORATION
By:
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment
Advisor
By:
Title:
PAMCO CAYMAN LTD., by Protective
Asset Management as Collateral
Manager
By:
Title:
THE CHASE MANHATTAN BANK
By:
Title:
