Exhibit 4
SECOND AMENDMENT TO POST-PETITION CREDIT AGREEMENT
This Second Amendment to Post-Petition Credit Agreement
(this "Agreement") is entered into this 20th day of September, 2004 by and
among XXXXX CORNING, a Delaware corporation (the "Company"), as Borrower
Representative on behalf of the Borrowers under the Credit Agreement (as
defined below), BANK OF AMERICA, N.A., as the Agent under the Credit Agreement
(as defined below), and the Old Lenders (as defined below) and New Lenders (as
defined below) signatory hereto.
W I T N E S S E T H:
WHEREAS, the Borrowers, the Agent and the Lenders are
parties to that certain Post-Petition Credit Agreement dated as of December 8,
2000 (as heretofore amended by that certain First Amendment to Post-Petition
Credit Agreement dated as of October 31, 2002, the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Agent and the
Lenders amend the Credit Agreement to, among other things as expressly
identified in this Agreement, extend the Stated Termination Date from November
15, 2004 to November 15, 2006, upon the terms and subject to the conditions
set forth herein.
NOW THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein and in the Credit Agreement, the
parties agree as follows:
Section 1 Definitions. Capitalized terms used herein without
definition and defined in the Credit Agreement and Annex A to the Credit
Agreement are used herein as defined therein.
Section 2 Amendments to Credit Agreement. Subject to the
effectiveness of this Agreement pursuant to Section 4 hereof, the Credit
Agreement is hereby amended as follows:
2.1 New Agents. Xxxxxxx Xxxxx Bank USA and Deutsche Bank
Securities, Inc. are hereby appointed co-documentation agents and Citigroup
Global Markets, Inc. ("CGMI") and Bank of America, N.A. are hereby appointed
joint arrangers and CGMI is hereby appointed syndication agent. Bank of
America, N.A. will remain the Agent.
2.2 Section 1.5 of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
Bank Products. Any Borrower may request and the Bank or
any other Lender may, in its sole and absolute discretion, arrange
for any Borrower to obtain from the Bank or such other Lender or the
Bank's or such other Lender's Affiliates Bank Products although no
Borrower is required to do so. If Bank Products are provided by an
Affiliate of the Bank or any Lender, the Borrowers jointly and
severally agree to indemnify and hold the Bank and the Lenders
harmless from any and all costs and obligations now or hereafter
incurred by the Bank or any of the Lenders which arise from any
indemnity given by the Bank or any Lender to its respective
Affiliates related to such Bank Products; provided, however, nothing
contained herein is intended to limit any Borrower's rights, with
respect to the Bank or any Lender or their respective Affiliates, if
any, which arise as a result of the execution of documents by and
between such Borrower and the Bank or any other Lender which relate
to Bank Products. The agreement contained in this Section shall
survive termination of this Agreement. The Borrowers acknowledge and
agree that the obtaining of Bank Products from the Bank or any other
Lender or the Bank's or any other Lender's Affiliates (a) is in the
sole and absolute discretion of the Bank or such Lender or the
Bank's or such Lender's Affiliates, and (b) is subject to all rules
and regulations of the Bank or such Lender or the Bank's or such
Lender's Affiliates.
2.3 Section 2.5 of the Credit Agreement is hereby deleted in
its entirety and replaced with the following:
2.5 Unused Line Fee. On the first Business Day of each
month (or, if later, on the first Business Day following
notification by the Agent to the Borrower Representative of the
amount owing hereunder on such date) and on the Termination Date,
the Borrowers jointly and severally agree to pay to the Agent, for
the account of the Lenders, in accordance with their respective Pro
Rata Shares, an unused line fee (the "Unused Line Fee") equal to the
Applicable Unused Line Fee Margin per annum times the amount by
which the Maximum Revolver Amount exceeded the sum of the Bank
Products Reserve, the average daily outstanding principal amount of
Revolving Loans and the average daily undrawn face amount of
outstanding Letters of Credit during the immediately preceding month
or shorter period if calculated on the Termination Date. The Unused
Line Fee shall be computed on the basis of a 360-day year for the
actual number of days elapsed. All principal payments received by
the Agent shall be deemed to be credited to the Borrowers' Loan
Account immediately upon receipt for purposes of calculating the
Unused Line Fee pursuant to this Section 2.5.
2.4 Section 5.2 of the Credit Agreement is hereby amended by
deleting clause (k)(ii) thereof and replacing it with the following:
(ii) thereafter, within fifteen (15) Business Days
after the end of each fiscal quarter, a Borrowing Base Certificate
as of the last day of such fiscal quarter; provided, however, if the
Borrowers cease to have in excess of $200,000,000 of unrestricted
cash, any Revolving Loans are outstanding or an Event of Default has
occurred and is continuing, thereafter, within fifteen (15) Business
Days after the end of each month, a Borrowing Base Certificate as of
the last day of such month.
2.5 Section 7.4 of the Credit Agreement is hereby amended by
deleting clause (b) thereof and replacing it with the following:
(b) Unless the Borrowers have in excess of $200,000,000
of unrestricted cash, no Revolving Loans are outstanding and no
Event of Default has occurred and is continuing, each Borrower shall
permit representatives and independent contractors of the Agent (at
the expense of the Borrowers not to exceed four (4) times per year
unless an Event of Default has occurred and is continuing) to visit
and inspect any of its properties, to examine its corporate,
financial and operating records, and make abstracts therefrom or
copies (to the extent reasonably required by the Agent) and to
discuss its affairs, finances and accounts with its officers and
independent public accountants, at such reasonable times during
normal business hours and as soon as may be reasonably desired, upon
reasonable advance notice to the Borrower Representative. The
Borrower Representative may elect to have officers or other
management employees accompany the Agent or any representative of
Agent on such inspections and/or be present for such discussions.
2.6 Section 8.2 of the Credit Agreement is hereby amended by
deleting clause (d) thereof in its entirety and replacing it with the
following:
(d) None of the Bankruptcy Cases shall have been
dismissed or converted to chapter 7 of the Bankruptcy Code, no
Borrower shall have filed an application for an order dismissing its
or any other Borrower's Bankruptcy Case or converting its or any
other Borrower's Bankruptcy Case to a case under chapter 7 of the
Bankruptcy Code, and no trustee under chapter 7 or chapter 11 of the
Bankruptcy Code shall have been appointed in any of the Bankruptcy
Cases (except for a trustee with the sole power to investigate
and/or pursue avoidance actions on behalf of the Borrowers under
chapter 5 of the Bankruptcy Code).
2.7 Section 10.1 of the Credit Agreement is hereby amended
by deleting the phrase "Section 14(g)" and replacing it with "Section 1.4(g)."
2.8 Section 11.1 of the Credit Agreement is hereby amended
by deleting the word "or" from the end of clause (a)(vii) thereof, adding the
word "or" to the end of clause (a)(viii) thereof and adding the following
clause (a)(ix) thereto after the end of clause (a)(viii) thereof:
(ix) consent to new Liens (other than Permitted
Liens) and/or claims with priority in payment over the
Obligations (other than the Carve Out) in excess of
$200,000,000 in the aggregate or change the definition of
"Permitted Liens;"
2.9 Section 12.11 is hereby deleted in its entirety and
replaced with the following:
No Other Duties, Etc. Anything herein to the contrary
notwithstanding, none of the Syndication Agent, the Arrangers or the
Documentation Agents listed herein or on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, except in its capacity, as
applicable, as the Agent, a Lender or the Letter of Credit issuer
hereunder.
2.10 Section 13.7 of the Credit Agreement is hereby deleted
in its entirety and replaced with the following:
Fees and Expenses. The Borrowers, jointly and
severally, agree to pay to the Agent, for its benefit, on demand,
all reasonable costs and out-of-pocket expenses that Agent pays or
incurs in connection with the negotiation, preparation, syndication,
consummation, administration, enforcement, and termination of this
Agreement or any of the other Loan Documents, including: (a)
Attorney Costs; (b) reasonable costs and expenses (including
reasonable attorneys' and paralegals' fees and disbursements) for
any amendment, supplement, waiver, consent, or subsequent closing in
connection with the Loan Documents and the transactions contemplated
thereby; (c) reasonable costs and expenses of lien and title
searches; (d) sums paid or incurred to pay any amount or take any
action required of the Borrowers under the Loan Documents that any
Borrower fails to pay or take; (e) reasonable costs of inspections,
and verifications of the Borrowers' properties and assets, including
travel, lodging, and meals for inspections of the Borrowers'
properties and assets and the Borrowers' operations by the Agent
plus the Agent's then customary charge for field examinations and
audits and the preparation of reports thereof (such charge is
currently $750 per day (or portion thereof) for each agent or
employee of the Agent with respect to each field examination or
audit); (f) reasonable costs and out-of-pocket expenses of
forwarding loan proceeds and collecting checks and other items of
payment; and (g) reasonable costs and expenses (including Attorneys'
Costs) paid or incurred to obtain payment of the Obligations and
otherwise enforce the provisions of the Loan Documents, or to defend
any claims made or threatened against the Agent or any Lender
arising out of the transactions contemplated hereby (including
preparations for and consultations concerning any such matters). In
addition to the foregoing, the Borrowers, jointly and severally,
agree to pay to each Lender, for its respective benefit, all
Attorney's Costs incurred by such Lender in connection with the
administration, enforcement and termination of this Agreement or any
of the other Loan Documents after a conversion of any of the
Borrowers' chapter 11 cases to a chapter 7 case. The foregoing shall
not be construed to limit any other provisions of the Loan Documents
regarding costs and expenses to be paid by the Borrowers. All of the
foregoing costs and expenses shall be payable on the third Business
Day following notification by the Agent to the Borrower of the
amount thereof and may be charged to the Borrowers' Loan Account as
Revolving Loans as described in Section 3.7 if not paid on or before
12:00 noon (Chicago, Illinois time) on such date.
2.11 Section 13.8 of the Credit Agreement is hereby amended
by deleting the address for Bank of America, N.A. and replacing it with the
following:
Bank of America, N.A.
Xxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Loan Administration Manager
Telecopy No.: (000) 000-0000
2.12 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Applicable Margin" in its entirety and replacing
it with the following:
"Applicable Margin" means
(i) with respect to Base Rate Loans and all other
Obligations (other than LIBOR Rate Loans), 0%; and
(ii) with respect to LIBOR Rate Loans, .75%.
The Applicable Margins with respect to LIBOR Rate Loans
shall be adjusted (up or down) prospectively on the first day of each
calendar month, based upon the Average Daily Outstanding Exposure
during the immediately preceding calendar month, as calculated by the
Agent. Adjustments in Applicable Margins shall be determined by
reference to the following grid:
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Average Daily Level of
Outstanding Exposure Applicable Margins:
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>$200,000,000 1.25%
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>$125,000,000, but < $200,000,000 1.00%
-
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<$125,000,000 .75%
-
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2.13 Annex A to the Credit Agreement is hereby amended by
adding the following new definition of "Applicable Unused Line Fee Margin" in
proper alphabetical order:
"Applicable Unused Line Fee Margin" means 0.375% (subject to
the following adjustment, as and when applicable):
The Applicable Unused Line Fee Margin shall be adjusted
(up or down) prospectively on the first day of each calendar month,
based upon the Average Daily Outstanding Exposure during the
immediately preceding calendar month, as calculated by the Agent.
Adjustments in the Applicable Unused Line Fee Margin shall be
determined by reference to the following grid:
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Average Daily Level of
Outstanding Exposure Applicable Margin:
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>$200,000,000 0.15%
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>$125,000,000, but < $200,000,000 0.25%
-
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<$125,000,000 0.375%
-
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2.14 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Attorney Costs" in its entirety and replacing it
with the following:
"Attorney Costs" means and includes all reasonable
fees, expenses and disbursements of any law firm or other counsel
engaged by the Agent (and after a conversion of any of the
Borrowers' chapter 11 cases to a chapter 7 case, all reasonable
fees, expenses and disbursements subsequently incurred by any law
firm or other counsel engaged by each Lender), excluding allocated
costs and expenses of internal legal services of the Agent or any
Lender.
2.15 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Availability" in its entirety and replacing it
with the following:
"Availability" means, at any time (a) the lesser of (i)
the Maximum Revolver Amount or (ii) the Borrowing Base as reflected
in the most recent Borrowing Base Certificate delivered to the Agent
pursuant to this Agreement (as such amount may be reduced by
Reserves established by the Agent following the date of such
Borrowing Base Certificate) minus (b) the sum of the Aggregate
Revolver Outstandings and the Bank Products Reserve.
2.16 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Average Daily Outstanding Exposure" in its
entirety and replacing it with the following:
"Average Daily Outstanding Exposure" means for any
period, an amount equal to the average daily Aggregate Revolver
Outstandings (excluding any Pending Revolving Loans) during such
period plus the average daily Bank Products Reserve during such
period.
2.17 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Bank Products" in its entirety and replacing it
with the following:
"Bank Products" means any one or more of the following
types of services or facilities extended to any Borrower by the Bank
or any other Lender or any affiliate thereof in reliance on the
Bank's or any other Lender's agreement to indemnify such affiliate:
(i) credit cards; (ii) ACH Transactions; (iii) cash management,
including controlled disbursement services; and (iv) Hedge
Agreements.
2.18 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Bank Products Reserve" in its entirety and
replacing it with the following:
"Bank Product Reserve" means at any time during any
month, the total dollar amount of reserves for Bank Products then
provided or outstanding between any of the Borrowers and the Lenders
(or their respective Affiliates) as of the last Business Day of the
preceding month reported to the Agent by the Lenders (or, with
respect to Bank Products provided by the Agent or its Affiliates,
set by the Agent); provided, however, that until such time as any
Lender reports, the Bank Products reserve amount for that Lender
shall be the last amount reported to the Agent by that Lender.
2.19 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Borrowing Base" in its entirety and replacing it
with the following:
"Borrowing Base" means, at any time, an amount equal to
(a) the sum of (A) up to eighty-five percent (85%) of the Net Amount
of Eligible Accounts; plus (B) up to sixty percent (60%) of the
value of Eligible Inventory; minus (b) Reserves from time to time
established by the Agent in its reasonable credit judgment other
than the Bank Products Reserve; provided that the aggregate
Revolving Loans advanced against Eligible Inventory shall not exceed
the Maximum Inventory Loan Amount.
2.20 Annex A to the Credit Agreement is hereby amended by
deleting each reference to "8.2" where it appears in the definition of "Final
Order" and replacing it with "8.1."
2.21 Annex A to the Credit Agreement is hereby amended by
deleting the amount "$120,000,000" in clause (o) of the definition of
"Restricted Investment" and replacing it with "$170,000,000."
2.22 Annex A to the Credit Agreement is hereby amended by
deleting the definition of "Stated Termination Date" in its entirety and
replacing it with the following:
"Stated Termination Date" means November 15, 2006.
2.23 Schedule 1.1 to the Credit Agreement is hereby deleted
in its entirety and replaced with the Schedule 1.1 attached hereto as Exhibit A.
Section 3 Termination of Old Commitments; New Commitments.
3.1 Termination of Commitments of Old Lenders. Effective
upon the date of entry of the Second Amended Final Order (defined below), the
Commitments of each of the signatories hereto listed as Old Lenders on the
signature pages hereto (the "Old Lenders") shall be terminated, the Notes
issued to the Old Lenders prior to the date hereof shall be cancelled, and the
Old Lenders shall no longer constitute "Lenders" under the Credit Agreement.
Promptly after entry of the Second Amended Final Order, each Old Lender shall
return its Note to the Agent marked "cancelled."
3.2 Commitments of New Lenders. Effective upon the date of
entry of the Second Amended Final Order, each of the signatories hereto listed
as New Lenders on the signature pages hereto (the "New Lenders") shall become
"Lenders" under the Credit Agreement and have the Commitments listed on
Exhibit A hereto.
Section 4 Effectiveness. This Agreement shall become
effective at the time that all of the following conditions precedent have been
met as determined by each of the New Lenders in its sole discretion (and
certified by each of the New Lenders to Borrowers in writing):
4.1 Agreement. Executed signature pages for this Agreement
signed by the Agent, the Old Lenders, the New Lenders and the Borrower
Representative shall have been delivered to the Agent.
4.2 Notes. Executed Amended and Restated Notes signed by all
of the Borrowers in favor of each New Lender shall have been delivered to the
Agent.
4.3 Representations. The representations and warranties
contained in the Credit Agreement and this Agreement shall be true and correct
in all material respects on and as of the date of effectiveness of this
Agreement as though made on and as of such date, other than any such
representation or warranty which relates to a specified prior date and except
to the extent the Agent and the Lenders have been notified in writing by the
Borrower Representative that any representation or warranty is not correct and
the Required Lenders have explicitly waived in writing compliance with such
representation or warranty.
4.4 No Default. After giving effect to this Agreement, no
Event of Default or Default shall exist on the date of effectiveness hereof.
4.5 No Material Adverse Effect. As of the date of
effectiveness of this Agreement, no event shall have occurred and be
continuing which would reasonably be expected to have a Material Adverse
Effect.
4.6 Court Approval. The Bankruptcy Court shall have entered
a Second Amended Final Order approving the Credit Agreement as amended by this
Agreement in the form attached hereto as Exhibit B (the "Second Amended Final
Order") or such other form agreed by Borrower Representative and Agent.
4.7 Amendment Fee. The Borrowers shall have paid to Agent,
for the benefit of New Lenders, an amendment fee of $375,000.
Section 5 Representations and Warranties of the Borrowers.
To induce the Agent, the Old Lenders and the New Lenders to execute and
deliver this Agreement, the Borrower Representative, on behalf of the
Borrowers, represents and warrants that:
5.1 The execution, delivery and performance by the Borrower
Representative of this Agreement has been duly authorized and this Agreement
constitutes the legal, valid and binding obligation of the Borrowers,
enforceable against the Borrowers in accordance with its terms and the terms
of the Second Amended Final Order.
5.2 No Default or Event of Default has occurred and is
continuing as of the date hereof.
5.3 Neither the execution, delivery or performance of this
Agreement does or shall contravene, result in a breach of, or violate (i) any
provision of any Borrower's corporate charter or bylaws or other governing
documents, (ii) any material law or regulation, or any order or decree of any
court or government instrumentality, including without limitation the Second
Amended Final Order or (iii) any material indenture, mortgage, deed of trust,
lease, agreement or other instrument to which any Borrower is a party or by
which any Borrower or any of its property is bound.
Section 6 Miscellaneous
6.1 Reaffirmation. Except as expressly set forth herein,
this Agreement shall not be deemed to waive or modify any provision of the
Credit Agreement or any other Loan Document, and the Credit Agreement and
other Loan Documents are hereby reaffirmed.
6.2 Binding on Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the Agent, the Lenders and the
Borrowers and their respective successors and assigns.
6.3 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Agreement.
6.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED UNDER AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS, AS OPPOSED
TO THE CONFLICT OF LAWS PROVISIONS, OF THE STATE OF ILLINOIS.
6.5 No Waiver. No waiver, and no modification or amendment
of any provision of this Agreement shall be effective unless specifically made
in writing and duly signed by the party purportedly making such waiver.
6.6 Counterparts. This Agreement may be delivered by
facsimile and executed in one or more counterparts and by different parties in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all of which counterparts taken together shall
constitute but one and the same Agreement.
6.7 Titles. Paragraph and subparagraph titles, captions and
headings herein are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provisions hereof.
6.8 Acknowledgment. The Borrower Representative, on behalf
of the Borrowers, affirms and acknowledges that this Agreement constitutes a
Loan Document under the Credit Agreement and any reference to the Loan
Documents under the Credit Agreement contained in any notice, request,
certificate or other document executed concurrently with or after the
execution and delivery of this Agreement shall be deemed to include this
Agreement unless the context shall otherwise specify.
[signature pages follow]
IN WITNESS WHEREOF, the undersigned have executed and
delivered this Agreement as of the date first written above.
XXXXX CORNING, as Borrower Representative
By:
----------------------------------------------------
Title:
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By:
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Title:
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BANK OF AMERICA, N.A., as Agent
By:
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Title:
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BANK OF AMERICA, N.A, as a New Lender
By:
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Title:
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CITICORP USA, INC., as a New Lender
By:
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Title:
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as a New Lender
By:
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Title:
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XXXXXXX XXXXX BANK USA, as a New Lender
By:
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Title:
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BANK OF AMERICA, N.A., as an Old Lender
By:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION, as an Old Lender
By:
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Title:
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TRANSAMERICA BUSINESS CREDIT CORP., as an Old Lender
By:
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Title:
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THE CIT GROUP / BUSINESS CREDIT INC., as an Old Lender
By:
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Title:
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CONGRESS FINANCIAL CORPORATION, as an Old Lender
By:
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Title:
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AM SOUTH CORP., as an Old Lender
By:
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Title:
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EXHIBIT A
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Amended Schedule 1.1
SCHEDULE 1.1
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COMMITMENTS
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Revolving Loan
Lender Commitment Pro Rata Share
------ -------------- --------------
(3 decimals)
Bank of America, N.A. $75,000,000 30%
Citicorp USA, Inc. $75,000,000 30%
Deutsche Bank Trust Company Americas $50,000,000 20%
Xxxxxxx Xxxxx Bank USA $50,000,000 20%
EXHIBIT B
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OMITTED
