EIGHTH AMENDMENT
EIGHTH AMENDMENT (this "Amendment"), dated as of March 19, 1997, among
XXXXX X. XXXXXXXXX HOLDING COMPANY, INC., a Delaware corporation ("Holding"),
XXXXX X. XXXXXXXXX COMPANY, a Delaware corporation (the "Borrower"), the
financial institutions party to the Credit Agreement referred to below (the
"Lenders") and BT COMMERCIAL CORPORATION and THE CHASE MANHATTAN BANK, as
successor in interest to Chemical Bank, as Agents. All capitalized terms used
herein and not otherwise defined herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holding, the Borrower, the Agents and the Lenders are parties
to a Credit Agreement, dated as of March 3, 1993, as amended, modified and
supplemented to the date hereof (as so amended, modified and supplemented, the
"Credit Agreement"); and
WHEREAS, the parties to the Credit Agreement wish to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 1.1 of the Credit Agreement is hereby amended by (a)
deleting the definitions of "Current Liabilities" and "Expiration Date" and (b)
inserting the following new definitions in lieu thereof:
"CURRENT LIABILITIES shall (i) mean all liabilities designated as
"current" on a consolidated balance sheet of the Borrower prepared in
accordance with GAAP (excluding that portion of the Senior Notes
designated as "current" liabilities in accordance with GAAP) and (ii)
include, without limitation and solely for the purpose of calculating
financial covenants contained in this Credit Agreement, the balance of
Revolving Loans outstanding.
EXPIRATION DATE shall mean September 9, 1999.
2. Section 1.1 of the Credit Agreement is further amended by (a)
deleting the first parenthetical in the definition of "Fixed Charges" and (b)
inserting the following new parenthetical in lieu thereof:
"(PROVIDED, however, that for the purpose of calculating the Fixed
Charge Coverage Ratio, Fixed Charges shall exclude the aggregate
amount of fees paid by the Borrower to the Banks on February 28,
1997)"
3. Section 1.1 of the Credit Agreement is further amended by
inserting the following new definition in alphabetical order therein:
"TOTAL AVAILABILITY shall mean the difference between (i) the
lesser of (x) the Total Commitments and (y) the Borrowing Base and
(ii) the aggregate balance of Revolving Loans outstanding and all
Letter of Credit Obligations outstanding."
4. Section 2.2 of the Credit Agreement is hereby amended by
inserting after the final period in clause (a) the following new sentence:
"In addition, in no event after giving effect to the Reduction
Percentage, shall the percentage in clause (B) above be less than
forty-five percent (45%)."
5. Section 7.1 of the Credit Agreement is hereby amended by (a)
deleting clause (e) in its entirety and (b) inserting the following new clause
(e) in lieu thereof:
"(e) upon request by the Agents or at any time a Default or Event
of Default shall exist and in any event either (i) if the Total
Availability is equal to or less than $30,000,000, not later than
12:00 Noon Los Angeles time on the third Business Day of each week,
and within 12 Business Days after the last Business Day of each month,
a Borrowing Base certificate in substantially the form of Exhibit I
(the "Borrowing Base Certificate"), duly completed, as of the Friday
of the immediately preceding week and as of the last day of such
month, as applicable (or such other date as the Agents may specify in
such request) or (ii) if the Total Availability is more than
$30,000,000,
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within five Business Days after the end of each month, a draft of, and
within 12 Business Days after the end of each month, a final version
of, the Borrowing Base Certificate, duly completed, as of the last day
of such immediately preceding month (or such other date as the Agents
may specify in such request). In any event, such Borrowing Base
Certificate shall be certified by the Borrower's chief executive
officer, chief financial officer, treasurer or controller and be
subject only to adjustment upon completion of the normal year-end
audit and confirmation based upon cycle counting verification. In
addition, each Borrowing Base Certificate shall have attached to it
such additional schedules and/or other information, including monthly
aging reports, as either Agent may reasonably request;"
6. Section 8.4 of the Credit Agreement is hereby amended by (a)
deleting the period "Fiscal year beginning April 1, 1997 and thereafter" and
corresponding amount "$12,000,000" and (b) inserting the following new periods
and corresponding amounts in lieu thereof:
"Fiscal year beginning April 1, 1997
and ending March 31, 1998 $12,000,000
Fiscal year beginning April 1, 1998
and ending March 31, 1999 $12,000,000
Fiscal year beginning April 1, 1999
and thereafter $12,000,000"
7. Section 8.5 of the Credit Agreement is amended by (a) deleting
the word "and" at the end of clause (k), (b) deleting clause (l) in its
entirety, and (c) inserting the following new clauses (l) and (m):
"(l) any Investments in accordance with any Rabbi Trust of the
Borrower in effect on January 1, 1997 that is for the benefit of the
Borrower's 401(a)(17) Supplemental Compensation Plan and deferred
compensation plans; and
(m) any Investments in addition to those contemplated by the
foregoing clauses (a) through (l), PROVIDED that all Investments made
pursuant to this clause (m) shall be permitted by the Senior Notes and
shall not exceed $10,000,000 at any time outstanding."
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8. Section 8.9 of the Credit Agreement is hereby amended by (a)
deleting the period "Each fiscal quarter occurring on and after December 30,
1997" and corresponding amount "79,000,000" and (b) inserting the following new
periods and corresponding amounts in lieu thereof:
December 30, 1997 to March 31, 1998 79,000,000
April 1, 1998 to June 30, 1998 80,000,000
July 1, 1998 to September 29, 1998 81,000,000
September 30, 1998 to December 31, 1998 82,000,000
January 1, 1999 to March 31, 1999 83,000,000
April 1, 1999 to June 30, 1999 84,000,000
Each fiscal quarter occurring on and
after July 1, 1999 85,000,000".
9. Section 8.10 of the Credit Agreement is hereby amended by (a)
deleting the amount "$140,000,000" and (b) inserting the amount "$75,000,000" in
lieu thereof.
10. Section 8.16 of the Credit Agreement is amended by inserting
"(other than Investments permitted under Section 8.5(l))" after the reference to
"investments".
11. In order to induce the Lenders to enter into this Amendment, each
Credit Party hereby:
(a) makes each of the representations, warranties and agreements
contained in Section 6 of the Credit Agreement on the Eighth Amendment
Effective Date (as defined in Section 15 of this Amendment), both before
and after giving effect to this Amendment; and
(b) represents and warrants that no Default or Event of Default is in
existence on the Eighth Amendment Effective Date, both before and after
giving effect to this Amendment.
12. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
13. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
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shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Holding and the Payments Administrator.
14. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
15. This Amendment shall become effective on the date (the "Eighth
Amendment Effective Date") when (i) Holding, the Borrower, the Agents, the
Issuing Bank and each Lender shall have signed a copy hereof (whether the same
or different copies) and shall have delivered (including by way of facsimile
transmission) the same to the Payments Administrator at the Payment Office, (ii)
each Lender which prior to the Eighth Amendment Effective Date has committed to
lend under the Credit Agreement an amount in excess of $15,000,000 shall have
received a fee of 3/8 of 1% of such Lender's allocated Commitment and (iii) each
Lender which prior to the Eighth Amendment Effective Date has committed to lend
under the Credit Agreement an amount equal to or less than $15,000,000 shall
have received a fee of 1/4 of 1% of such Lender's allocated Commitment.
16. From and after the Eighth Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to such Credit Agreement as
amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
XXXXX X. XXXXXXXXX HOLDING
COMPANY, INC.
By
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Title:
XXXXX X. XXXXXXXXX COMPANY
By
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Title:
AGENTS:
BT COMMERCIAL CORPORATION,
as Agent
By
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Title:
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By
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Title:
ISSUING BANK:
BANKERS TRUST COMPANY
By
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Title:
LENDERS:
BT COMMERCIAL CORPORATION
By
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Title:
THE CHASE MANHATTAN BANK, N.A.
By
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Title:
ARAB BANKING CORPORATION
By
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Title:
THE BANK OF NEW YORK
COMMERCIAL CORPORATION
By
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Title:
BANK OF SCOTLAND
By
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Title:
BANQUE PARIBAS
By
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Title:
By
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Title:
THE CIT GROUP/BUSINESS CREDIT INC.
By
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Title:
DRESDNER BANK AG, New York Branch
and Grand Cayman Branch
By
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Title:
THE FIRST NATIONAL BANK OF BOSTON
By
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Title:
MANUFACTURERS BANK
By
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Title:
SOCIETE GENERALE,
Los Angeles Branch
By
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Title:
UNION BANK OF CALIFORNIA, N.A.
By
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Title:
XXXXX FARGO BANK, N.A.
By
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Title:
