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EXHIBIT 10.1
SECOND AMENDMENT
DATED AS OF JANUARY 30, 2001
This SECOND AMENDMENT (this "Amendment") is among X'XXXXXXXX
INDUSTRIES, INC., a Delaware corporation (the "Borrower"), X'XXXXXXXX INDUSTRIES
HOLDINGS, INC., a Delaware corporation ("Holdings"), the banks and other
financial institutions and other entities from time to time parties to the
Credit Agreement referred to below (the "Lenders") and XXXXXX COMMERCIAL PAPER
INC. as administrative agent (in such capacity the "Administrative Agent").
PRELIMINARY STATEMENTS:
1. Holdings, the Borrower, the Lenders, the Agents and the
Arranger entered into a Credit Agreement, dated as of November 30, 1999, as
amended by the First Amendment, dated as of November 30, 1999 (as so amended the
"Credit Agreement"; capitalized terms used and not otherwise defined herein have
the meanings assigned to such terms in the Credit Agreement).
2. Holdings and the Borrower have requested that the Lenders
amend the Credit Agreement to revise the financial covenants set forth therein.
3. The Required Lenders are, on the terms and conditions
stated below, willing to grant the request of Holdings and the Borrower set
forth above.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments to Credit Agreement.
(a) The following new definition is hereby added to Section
1.1 of the Credit Agreement in the appropriate alphabetical order:
""Second Amendment Effective Date": January 25, 2001."
(b) The definition of "Applicable Margin" in Section 1.1 of
the Credit Agreement is hereby amended by adding at the end thereof the
following additional language:
"provided, further, that at any time that the Consolidated Leverage
Ratio is greater than 4.5:1.0 (determined in accordance with the
procedures set forth on the Pricing Grid), the Applicable Margin with
respect to Tranche B Term Loans shall be 3.00% (Base Rate Loans) and
4.00% (Eurodollar Loans)"
(c) The definition of "Consolidated Interest Expense" in Section 1.1 of
the Credit Agreement is hereby amended by adding at the end thereof the
following additional language:
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"provided however, that fees paid to the Lenders, the Arranger or the
Administrative Agent in connection with the execution of the Second
Amendment to the Credit Agreement shall not be included in Consolidated
Interest Expense"
(d) The following new Section 6.15 is hereby added to the
Credit Agreement:
"6.15 Prepayment. Unless the Required Lenders shall otherwise
agree, the Borrower shall make an optional prepayment of the Term Loans
of at least $10,000,000 no later than June 30, 2001, such optional
prepayment to be applied as set forth in Sections 2.12(d) and 2.18."
(e) Section 7.1(a) of the Credit Agreement is hereby amended
by replacing the Consolidated Leverage Ratio for the fiscal quarters ending
December 31, 2000, March 31, 2001, and June 30, 2001 with the following:
"December 31, 2000 4.85:1.00
March 31, 2001 5.10:1.00
June 30, 2001 4.85:1.00"
(f) Section 7.1(b) of the Credit Agreement is hereby amended
by replacing the Consolidated Interest Coverage Ratio for the fiscal quarters
ending December 31, 2000, March 31, 2001, June 30, 2001, September 30, 2001,
December 31, 2001, March 31, 2001 and June 30, 2001 with the following:
"December 31, 2000 1.65:1.00
March 31, 2001 1.50:1.00
June 30, 2001 1.60:1.00
September 30, 2001 1.70:1.00
December 31, 2001 1.80:1.00
March 31, 2002 1.90:1.00
June 30, 2002 1.90:1.00"
(g) Section 7.1(c) of the Credit Agreement is hereby amended
by replacing the Consolidated Fixed Charge Coverage Ratio for the fiscal
quarters ending December 31, 2000, March 31, 2000, June 30, 2001 and September
30, 2001 with the following:
"December 31, 2000 .85:1.00
March 31, 2001 .70:1.00
June 30, 2001 .95:1.00
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September 30, 2001 1.05:1.00"
(h) Section 7.1(d) of the Credit Agreement is hereby amended
by replacing the Minimum Consolidated EBITDA for the fiscal quarters ending June
30, 2001, June 30, 2002, and June 30, 2003 with the following:
"June 30, 2001 $47,300,000
June 30, 2002 $52,000,000
June 30, 2003 $53,000,000"
(i) Section 7.5 of the Credit Agreement is hereby amended by
(i) deleting the word "and" at the end of clause (g) thereof, (ii) replacing the
period at the end of clause (h) thereof with "; and" and (iii) adding the
following new clause (i):
"(i) the sale of the Borrower's Property located in Utah;
provided that such sale is on terms (including price) reasonably acceptable to
the Administrative Agent and the proceeds from such sale are applied in
compliance with Section 2.12(b)."
(j) Annex A to the Credit Agreement is hereby amended and
restated in its entirety as follows:
"PRICING GRID
Consolidated Applicable Margin For Commitment Applicable Margin For
Leverage Ratio Eurodollar Loans Fee Base Rate Loans
-------------- ------------------- --------------- -----------------------
=>.5:1.0 3.50% .50% 2.50%
=>4.0:1.0 and <4.5:1.0 3.25% .50% 2.25%
=>3.0:1.0 and <4.0:1.0 3.00% .50% 2.00%
<3.0:1.0 2.50% .375% 1.50%"
Changes in the Applicable Margin with respect to Term Loans, Revolving Credit
Loans and Swing Line Loans or in the Commitment Fee Rate resulting from changes
in the Consolidated Leverage Ratio shall become effective on (i) the Second
Amendment Effective Date and (ii) thereafter, on the first day after the date
(the "Adjustment Date") on which financial statements are delivered to the
Lenders pursuant to Section 6.1 (but in any event not later than the 45th day
after the end of each of the first three quarterly periods of each fiscal year
or the 90th day after the end of each fiscal year, as the case may be) and shall
remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until and including the date on
which such financial statements are delivered, the Consolidated Leverage Ratio
as at the end of the fiscal period that would have been covered thereby shall
for the purposes of this definition be deemed to be greater than 4.5 to 1.0. In
addition, at all times while an Event of Default shall
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have occurred and be continuing, the Consolidated Leverage Ratio shall for the
purposes of this definition be deemed to be greater than 4.5 to 1.0. Each
determination of the Consolidated Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal quarters of
the Borrower ending as of the last day of the period covered by the relevant
financial statements."
SECTION 2. Conditions to Effectiveness. This Amendment
shall not be effective until each of the following conditions precedent shall
have been satisfied:
(a) the Administrative Agent shall have received signed
written authorization from the Required Lenders to execute this Amendment and
shall have received counterparts of this Amendment executed by Holdings and the
Borrower and counterparts of the Consent of the Loan Parties appended hereto
(the "Consent") executed by the Grantors, as defined in the Guarantee and
Collateral Agreement);
(b) each of the representations and warranties in Section 3
below shall be true and correct;
(c) in consideration of the amendments contained in this
Amendment, the Borrower shall have paid to the Administrative Agent, for the
account of each Lender that executes and returns to the Administrative Agent its
Consent no later than 5:00 p.m. (New York time) on Thursday, January 25, 2001, a
fee equal to 0.25% of the Commitment of such Lender;
(d) the Administrative Agent shall have received payment in
full in immediately available funds of all expenses incurred by the
Administrative Agent (including, without limitation, legal fees) for which
invoices have been presented; and
(e) the Agent shall have received such other documents,
instruments and opinions as it shall have reasonably requested.
SECTION 3. Representations and Warranties.
Each of Holdings and the Borrower represents and warrants
jointly and severally as follows:
(a) Authority. Each of Holdings, the Borrower and each other
Loan Party has the requisite corporate power and authority to execute and
deliver this Amendment and the Consent, as applicable, and to perform its
obligations hereunder and under the Loan Documents (as amended hereby) to which
it is a party. The execution, delivery and performance by Holdings and the
Borrower of this Amendment and by the Grantors of the Consent, and the
performance by Holdings and each Loan Party of each Loan Document (as amended
hereby) to which it is a party have been duly approved by all necessary
corporate action of Holdings or such Loan Party, as the case may be, and no
other corporate proceedings on the part of Holdings or such Loan Party, as the
case may be, are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by Holdings and the Borrower. The Consent has been duly executed and
delivered by the Grantors. This Amendment, the Consent and each Loan Document
(as amended hereby) is the legal, valid
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and binding obligation of each Loan Party party hereto and thereto, enforceable
against Holdings and such Loan Party in accordance with its terms except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought in proceedings in equity or at law).
(c) Representations and Warranties. The representations and
warranties contained in each Loan Document (other than any such representations
and warranties that, by their terms, are specifically made as of a date other
than the date hereof) are true and correct in all material respects on and as of
the date hereof as though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that
constitutes a Default or Event of Default.
SECTION 4. Reference to and Effect on the Loan
Documents. (a) Upon and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit
Agreement, the Guarantee and Collateral Agreement and the other Loan Documents
are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. Without limiting the generality of the
foregoing, the Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all Obligations under and as defined
therein, in each case as modified hereby.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Lender (including, without limitation, the
Issuing Lender), the Arranger or any Agent under any of the Loan Documents, nor
constitute a waiver or amendment of any provision of any of the Loan Documents.
SECTION 5. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment or the
Consent by facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment or such Consent.
SECTION 6. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New
York.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
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X'XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial
Officer
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XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X. X'Xxxxx
Title: Authorized Signatory
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CONSENT
DATED AS OF JANUARY 30, 2001
The undersigned, as Grantors under the Guarantee and
Collateral Agreement and, as applicable, as Grantors under the Intellectual
Property Security Agreement (as such terms are defined in and under the Credit
Agreement referred to in the foregoing Second Amendment), hereby consent and
agree to the foregoing Second Amendment and hereby confirm and agree that (i)
each of the Guarantee and Collateral Agreement and the Intellectual Property
Security Agreement is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects except that, upon the
effectiveness of, and on and after the date of, said Second Amendment, each
reference therein to the "Credit Agreement", "thereunder", "thereof" and words
of like import referring to the Credit Agreement, shall mean and be a reference
to the Credit Agreement as amended by said Second Amendment, (ii) the Guarantee
and Collateral Agreement and all of the Collateral described therein does, and
shall continue to, secure the payment and performance of all of the Obligations
as defined in the Guarantee and Collateral Agreement, and (iii) the Intellectual
Property Security Agreement and all of the Intellectual Property Collateral
described therein does, and shall continue to, secure the payment and
performance of all of the Obligations as defined in the Intellectual Property
Security Agreement.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
X'XXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior vice President and Chief Financial Officer
X'XXXXXXXX INDUSTRIES - VIRGINIA, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
