FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT ("Fifth
Amendment") dated as of October 15, 1999 by and among XXXX INDUSTRIES, INC., a
corporation organized under the laws of the State of Georgia (the "Borrower"),
the Lenders appearing on the signature pages hereof (the "Lenders"), and BANK OF
AMERICA, N.A. (f/k/a NationsBank, N.A.), as Issuing Bank and Administrative
Agent.
WHEREAS, the Borrower, the Lenders, the Issuing Bank and the
Administrative Agent entered into a certain Amended and Restated Credit
Agreement dated as of March 16, 1998, as amended by that certain First Amendment
to Amended and Restated Credit Agreement dated as of August 7, 1998, that
certain Second Amendment to Amended and Restated Credit Agreement dated as of
October 6, 1998, that certain Third Amendment to Amended and Restated Credit
Agreement dated as of October 15, 1998 and that certain Fourth Amendment to
Amended and Restated Credit Agreement dated as of August 20, 1999 (as so
amended, the "Credit Agreement"), pursuant to which the Lenders made certain
financial accommodations available to the Borrower;
WHEREAS, the Borrower has requested that the Lenders amend the Credit
Agreement on the terms and conditions set forth herein; and
WHEREAS, the Lenders are willing to so amend the Credit Agreement on
the terms and conditions set forth herein.
NOW, THEREFORE, for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties
hereto agree as follows:
Section 1. Specific Amendments to Credit Agreement.
(a) The Credit Agreement is hereby amended by deleting the defined term
"Applicable Margin " contained in Section 1.1 thereof and substituting in lieu
thereof the following:
"'Applicable Margin' means, at any time from and after the
Fifth Amendment Effective Date, the percentage rate set forth below for
a given Type of Loan corresponding to the Consolidated Funded
Debt/EBITDA Ratio of the Borrower in effect at such time:
Consolidated Funded Applicable Margin for Applicable Margin for
Debt/EBITDA Ratio Base Rate Loans LIBOR Loans
--------------------------------------------- --------------------------- --------------------------
Greater than 3.50 to 1.00 0% 0.85%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 3.50 to 1.00 but
greater than 3.00 to 1.00 0% 0.65%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 3.00 to 1.00 but
greater than 2.50 to 1.00 0% 0.55%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 2.50 to 1.00 but
greater than 2.00 to 1.00 0% 0.45%
--------------------------------------------- --------------------------- --------------------------
Less than or equal to 2.00 to 1.00 0% 0.32%
--------------------------------------------- --------------------------- --------------------------
On each Adjustment Date (as defined below), the Applicable Margin for
all Syndicate Loans shall be determined and adjusted by the
Administrative Agent, such adjustment to be effective on and as of each
such Adjustment Date (based upon the calculation of the Consolidated
Funded Debt/EBITDA Ratio as of the last day of the fiscal quarter to
which such Adjustment Date relates) in accordance with the above
matrix; provided, however, that, with respect to any LIBOR Loans
outstanding on the Adjustment Date, no such adjustment shall be made to
the Applicable Margin relating to such LIBOR Loan until the end of the
Interest Period then in effect for such LIBOR Loan. For purposes of
this definition, "Adjustment Date" shall mean (a) initially, the Fifth
Amendment Effective Date (based on the Consolidated Funded Debt/EBITDA
Ratio as of the last day of the fiscal quarter of the Borrower ending
immediately prior to the Fifth Amendment Effective Date for which
financial statements have been provided in accordance with Section 9.1
or 9.2, as applicable); and (b) thereafter, the date (and if such date
is not a Business Day, on the next succeeding Business Day) on which
the Borrower delivers, in accordance with Sections 9.1., 9.2. and 9.3.,
to the Administrative Agent (i) financial statements for the most
recently completed applicable fiscal quarter and (ii) a duly completed
Compliance Certificate with respect to such fiscal quarter (based on
the Consolidated Funded Debt/EBITDA Ratio as of the last day of the
fiscal quarter of the Borrower for which such financial statements are
being delivered)."
(b) The Credit Agreement is hereby further amended by adding the
following new defined term to Section 1.1 thereof in the appropriate
alphabetical order:
"'Fifth Amendment Effective Date' means the "Trigger Date"
under and as defined in that certain Fifth Amendment to Amended and
Restated Credit Agreement dated as of October 15, 1999 among the
Borrower, the Lenders named therein, the Issuing Bank and the
Administrative Agent."
(c) The Credit Agreement is hereby further amended by deleting
subsection (b) contained in Section 10.1. thereof in its entirety and by
redesignating subsection (c) of Section 10.1. as subsection (b).
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(d) The Credit Agreement is hereby further amended by deleting Section
5.14. thereof in its entirety and substituting in lieu thereof the following:
"Section 5.14. Facility Fee.
The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a facility fee for the period from the Fifth
Amendment Effective Date through and including the Termination Date on
the amount of the Revolving Commitment from time to time in effect and
regardless of whether and to the extent the Revolving Commitment is
utilized hereunder. The facility fee shall be calculated on a
percentage per annum basis using the percentage rates set forth below
corresponding to the Consolidated Funded Debt/EBITDA Ratio in effect at
such time:
Consolidated Funded Debt/EBITDA Ratio Facility Fee Percentage
---------------------------------------------------------------------- ---------------------------
Greater than 3.50 to 1.00 .275%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 3.50 to 1.00 but greater than 3.00 to 1.00 .225%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00 .20%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00 .175%
---------------------------------------------------------------------- ---------------------------
Less than or equal to 2.00 to 1.00 .125%
---------------------------------------------------------------------- ---------------------------
The facility fee shall be determined by the Administrative Agent on a
quarterly basis in accordance with the following provisions. The
Consolidated Funded Debt/EBITDA Ratio shall be determined and adjusted
by the Administrative Agent promptly upon receipt of the financial
statements required to be delivered by the Borrower to the
Administrative Agent and the Lenders pursuant to Section 9.1. or 9.2.,
as applicable. Any adjustment to the facility fee shall be effective as
of the first day of the fiscal quarter in which the quarterly (or
annual) financial statements are delivered to the Administrative Agent
and the Lenders. The facility fee hereunder shall be payable in arrears
on (a) each Quarterly Date, (b) the date of each reduction in the
Revolving Commitment (but only on the amount of the reduction), (c) on
the Termination Date, (d) on the date the Commitments are otherwise
terminated or reduced to zero and (e) thereafter from time to time on
demand of the Administrative Agent. The Administrative Agent and the
Lenders acknowledge that, from the Effective Date to (but excluding)
the Fifth Amendment Effective Date, the fees payable under this Section
5.14. shall be calculated and determined based on the "Facility Fee
Percentage" in effect during such period."
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(e) The Credit Agreement is hereby further amended by inserting the
following new Section 10.5.:
"Section 10.5. Restricted Payments.
Declare or make any dividend payment, or make any other
distribution of cash, property or assets, in respect of any of its
capital stock or any warrants, rights or options to acquire its
capital stock, or purchase, redeem, retire or otherwise acquire for
value any shares of its capital stock or any warrants, rights or
options to acquire its capital stock, or set aside funds for any of
the foregoing (collectively, "Restricted Payments") or cause or permit
any Subsidiary to do any of the foregoing, except that:
(a) the Borrower may declare and make dividend payments or
other distributions payable solely in its common stock;
(b) Subsidiaries may declare or make Restricted Payments to
the Borrower or any intermediate Subsidiaries of the
Borrower; and
(c) so long as no Default or Event of Default then exists or
would result therefrom, the Borrower may, during the
period from the Fifth Amendment Effective Date through
the Termination Date, declare and make Restricted
Payments; provided, that the aggregate amount of all
such Restricted Payments under this subsection (c) shall
not exceed the Permitted Amount (as defined below). For
purposes of this Section 10.5, the term "Permitted
Amount" shall mean an amount equal to: (1) $400,000,000
plus (2) net cash proceeds (net of Transaction Costs)
received by the Borrower from the sale of any or all of
its international business operations after the Fifth
Amendment Effective Date in an aggregate amount up to
but not to exceed $100,000,000 minus (3) the aggregate
amount of Restricted Payments (other than those
described in clauses (a) and (b) of this Section 10.5.)
in excess of $50,000,000 made by the Borrower during the
period from October 15, 1999 through and including the
Fifth Amendment Effective Date."
(f) The Credit Agreement is hereby further amended by deleting the
Exhibit J thereto and substituting in lieu thereof the Exhibit J attached hereto
as Exhibit A.
Section 2. Effectiveness of Amendment.
(a) This Fifth Amendment shall be effective on the date on which this
Fifth Amendment shall be duly executed and delivered by the Borrower, the
Issuing Bank, the Administrative Agent and the Requisite Lenders.
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(b) Notwithstanding anything herein or otherwise to the contrary, the
amendments contemplated by Section 1 of this Fifth Amendment shall not be or
become effective until the date (the "Trigger Date") each of the following
conditions precedent to effectiveness shall have been satisfied as determined by
the Administrative Agent:
(i) the Administrative Agent and the Lenders shall have
received written notice from the Borrower on or prior to April 15, 2000
requesting that this Fifth Amendment shall be and become effective; and
(ii) the Administrative Agent shall have received a
certificate dated the date of the notice referred to in clause (i)
immediately above from the Chief Financial Officer or the Treasurer of
the Borrower certifying that, immediately prior to and after giving
effect to the amendment contemplated hereby, no Default or Event of
Default under the Credit Agreement exists.
Section 3. Representations and Warranties.
(a) In order to induce the Lenders to enter into this Fifth Amendment,
the Borrower hereby reaffirms each of the representations and warranties of the
Borrower contained in the Credit Agreement as of the date hereof except for
either: (i) the occurrence of any event that would render such representations
or warranties untrue, but that is expressly permitted by the terms of the Credit
Agreement or which would not cause an Event of Default under the Credit
Agreement or (ii) the occurrence of any event that would render such
representations or warranties untrue but that previously has been disclosed in
writing to the Lenders.
(b) The execution, delivery and performance of this Fifth Amendment by
the Borrower does not require the consent of any other Person under any
document, instrument or agreement to which the Borrower is a party or under
which the Borrower is bound.
Section 4. Benefits.
This Fifth Amendment shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.
Section 5. GOVERNING LAW.
THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
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Section 6. Effect.
Except as expressly herein amended, the terms and conditions of the
Credit Agreement shall remain in full force and effect without amendment or
modification, express or implied.
Section 7. Counterparts.
This Fifth Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and shall be binding upon all
parties, their successors and assigns.
Section 8. Definitions.
All capitalized terms which are used herein and not otherwise defined
herein shall have the meanings given such terms as set forth in the Credit
Agreement.
[Signatures Contained on Following Page]
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[Signature Page to Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 15, 1999 with Xxxx Industries, Inc.]
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to Amended and Restated Credit Agreement to be executed under seal by their duly
authorized officers as of the date first above written.
THE BORROWER:
XXXX INDUSTRIES, INC.
By: ________________________________________________
Title: _____________________________________________
THE ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative Agent
By: ________________________________________________
Title: _____________________________________________
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[Signature Page to Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 15, 1999 with Xxxx Industries, Inc.]
THE LENDERS:
BANK OF AMERICA, N.A., as a Lender, Issuing Bank and
Swing Line Lender
By: ________________________________________________
Title: _____________________________________________
SUNTRUST BANK, ATLANTA
By: ________________________________________________
Title: _____________________________________________
By: ________________________________________________
Title: _____________________________________________
WACHOVIA BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
FIRST UNION NATIONAL BANK
By: ________________________________________________
Title: _____________________________________________
BANK ONE, NA
By: ________________________________________________
Title: _____________________________________________
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[Signature Page to Fifth Amendment to Amended and Restated Credit Agreement
dated as of October 15, 1999 with Xxxx Industries, Inc.]
SOUTHTRUST BANK, N.A.
By: ________________________________________________
Title: _____________________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: ________________________________________________
Title: _____________________________________________
BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: ________________________________________________
Title: _____________________________________________
GENERAL ELECTRIC CAPITAL CORPORATION
By: ________________________________________________
Title: _____________________________________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY
By: ________________________________________________
Title: _____________________________________________
9
EXHIBIT A
EXHIBIT J
FORM OF COMPLIANCE CERTIFICATE
For the quarter ending _________, _____
Bank of America, N.A., as Administrative Agent
Independence Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Agency Services
Each of the Lenders a party to
the Credit Agreement (defined below)
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of March 16, 1998 (as amended, modified, restated or supplemented from
time to time, the "Credit Agreement"; capitalized terms used herein, and not
otherwise defined herein, shall have their respective defined meanings as set
forth in the Credit Agreement) among Xxxx Industries, Inc. (the "Borrower"), the
Lenders named therein, and Bank of America, N.A., as Issuing Bank and
Administrative Agent (the "Administrative Agent").
Pursuant to Section 9.3 of the Credit Agreement, the undersigned hereby
certifies to the Administrative Agent, the Issuing Bank and the Lenders as
follows:
(1)______The undersigned is the [Treasurer/Chief Financial Officer/
independent public accountant] of the Borrower.
(2)______The undersigned has examined the books and records of the
Borrower and has conducted such other examinations and investigations as are
reasonably necessary to provide this Compliance Certificate.
(3)______The Borrower is in compliance with Articles 9 and 10 of the
Credit Agreement and no Default or Event of Default has occurred and is
continuing [for Compliance Certificate delivered by Treasurer or Chief Financial
Officer only].
The undersigned hereby further certifies to the Administrative Agent,
the Issuing Bank and the Lenders that the following financial information of the
Borrower is true and correct as of the date hereof:
I. EBIT to Interest Ratio (ss.10.1(a))1
A. Consolidated EBIT for Four-Quarter Period:
Consolidated Net Income $_________________
plus, to the extent deducted in
determining Consolidated Net Income:
Consolidated Interest Expense $_________________
Income Taxes $_________________
Consolidated EBIT: $
B. Consolidated Interest Expense for
Four-Quarter Period: $_________________
C. EBIT to Interest Ratio (A divided by B): _________:1:00 minimum ratio required: 2.25 to 1.00
II. Consolidated Funded Debt to EBITDA (ss.10.1(b))
A. Consolidated Funded Debt Outstanding: $_________________
B. Consolidated EBITDA for Four-Quarter Period:
Consolidated Net Income $_________________
plus, to the extent deducted in determining
Consolidated Net Income
Consolidated Interest Expense, plus $_________________
Income Taxes, plus $_________________
Depreciation, plus $_________________
Amortization $_________________
Consolidated EBITDA: $
C. Consolidated Funded Debt to EBITDA Ratio (A divided by B): _________:1:00 maximum ratio permitted: 4.00 to 1.00
III. Indebtedness (ss.10.2)
A. Capital Lease Debt/Purchase Money Debt Outstanding:
$_________________ maximum allowed: $50,000,000
B. Consolidated Funded Debt incurred after Effective Date
plus Indebtedness related to Nylon Polymer $_________________ maximum allowed: [20% of Total Assets]
(ss.10.2(f)(iii)):
C. Sold Receivables Indebtedness: $_________________ maximum allowed: $325,000,000
IV. Restricted Payments (ss.10.5)
A. Restricted Payments made since Fifth Amendment Effective
Date other than those described in Section 10.5(a) and $_________________
(b):
B. Permitted Amount as of the date
hereof:
$400,000,000
plus net cash proceeds received from sale of international business
operations after Fifth Amendment Effective Date (not to exceed
$100,000,000) $_______________
minus aggregate Restricted Payments made between October 15, 1999 and
Fifth Amendment Effective Date in excess of $50,000,000
$---------------
Permitted Amount as of the date hereof:
$-----------------
C. Test - Item A must be less than or equal to Item B Yes: ___ No: ___
V. Year-end Certificate only - Operating Leases (ss.10.9)
Aggregate amount of all rents paid under operating leases
during fiscal year: $_________________ maximum allowed: $100,000,000
VI. Year-end Certificate only - Investments (ss.10.3(vii))
Aggregate amount of all non-acquisition related
investments during fiscal year: $_________________ maximum allowed: $50,000,000
Based on the Consolidated Funded Debt to EBITDA Ratio described above
in item III.C. above, the undersigned hereby confirms that the facility fee
percentage payable pursuant to Section 5.14 of the Credit Agreement on and after
the Fifth Amendment Effective Date2 is _____% and the Applicable Margin for
LIBOR Loans on and after the Fifth Amendment Effective Date is ______%.
Consolidated Funded Facility Fee Applicable Margin
Debt/EBITDA Ratio Percentage for LIBOR Loans
-------------------------------------- --------------------- ----------------------
Greater than 3.50 to 1.00 .275% 0.85%
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.50 to 1.00
but greater than 3.00 to 1.00 .225% 0.65%
-------------------------------------- --------------------- ----------------------
Less than or equal to 3.00 to 1.00
but greater than 2.50 to 1.00 .20% 0.55%
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.50 to 1.00
but greater than 2.00 to 1.00 .175% 0.45%
-------------------------------------- --------------------- ----------------------
Less than or equal to 2.00 to 1.00 .125% 0.32%
-------------------------------------- --------------------- ----------------------
IN WITNESS WHEREOF, the undersigned has executed this certificate as of
the day of __________, ____.
By:
Title:
--------
1 Section references contained herein are references to the section of the
Credit Agreement requesting the respective financial data.
2 In accordance with Section 5.14., from the Effective Date to (but
excluding) the Fifth Amendment Effective Date, the fees payable under such
Section shall be calculated and determined based on the "Facility Fee
Percentage" in effect during such period.
