SECOND WAIVER AND MODIFICATION OF CREDIT AGREEMENT
THIS AGREEMENT is made as of the 30th day of March, 2001, by and between
SOUTHTRUST BANK, an Alabama corporation formerly known as SouthTrust Bank,
National Association acting as a Lender and as Administrative Agent and Funding
Agent (collectively "Agent") pursuant to the Credit Agreement FIRST UNION
NATIONAL BANK, a national banking association acting as a Lender, NATIONAL CITY
BANK, NATIONAL ASSOCIATION, a national banking association acting as a Lender,
SUNTRUST BANK, a Georgia corporation, formerly known as SUNTRUST BANK, SOUTH
FLORIDA, N.A., a national banking association, acting as a Lender, and BARCLAYS
BANK, P.L.C., acting as a Lender (collectively the "Lenders"), and XXXXXXXXX
INTERNATIONAL, INC., a Delaware corporation (the "Borrower").
WITNESSETH:
WHEREAS, Lenders, Agent and Borrower entered into a Credit Agreement dated
as of November 17, 1999 (the "Credit Agreement") in connection with which
Lenders made available to Borrower a revolving line of credit in the maximum
principal amount of FIFTEEN MILLION and no/100s Dollars ($15,000,000.00) (the
"Revolving Line of Credit") evidenced by certain Revolving Credit Notes (the
"Revolving Notes") and Term Loans in the maximum principal amount of FIFTY SIX
MILLION and no/100 Dollars ($56,000,000.00) evidenced by certain Term Notes
(collectively with the Revolving Notes the "Notes"), secured and evidenced by
the Loan Documents, as defined in the Credit Agreement; and
WHEREAS, on or about September 29, 2000, Agent, Lenders and Borrower
entered into a Waiver and Modification of Credit Agreement; and
WHEREAS, Lenders, Agent and Borrower have agreed to revise certain
additional provisions of the Credit Agreement and for Lenders to waive certain
defaults by Borrower under the Credit Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants of
this agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lenders, Agent and Borrower agree
as follows:
1. RECITALS/TERMS. All of the recitals set forth above are true and
correct and by this reference are made a material part of this Agreement. All
capitalized terms used herein which are defined in the Credit Agreement shall
have the meaning provided therein when used herein unless the context shall
require otherwise.
2. REAFFIRMATION OF NOTE. Borrower hereby acknowledges that the
Notes continue to evidence the Revolving Loans and the Term Loans.
3. INTEREST COVERAGE RATIO.
Section 10.02 is hereby amended and restated in its entirety as
follows:
SECTION 10.02 INTEREST COVERAGE RATIO. Maintain the ratio of EBITDA
to Consolidated Interest Expense determined at the end of each
fiscal quarter of Borrower for the four consecutive fiscal quarters
then ended at least as follows:
For any fiscal quarter
Ratio ending during the period:
----- -------------------------
3.0 to 1.0 From and including the fiscal
quarter ended March 31, 2000 to and
including the fiscal quarter ending
December 31, 2001
4.0 to 1.0 From and including the fiscal
quarter ending March 31, 2002 to
and including the fiscal quarter
ending September 30, 2003
5.0 to 1.0 At any time after the fiscal
quarter ending September 30, 2003
4. FIXED CHARGE COVERAGE. SECTION 10.03 FIXED CHARGE COVERAGE.
Maintain at all times after December 31, 2000, a Fixed Charge Coverage Ratio
of not less than 1.3 to 1.0 which shall be tested at each fiscal quarter end
of Borrower for the four consecutive quarters then ended.
5. FUNDED DEBT. Section 10.04 is hereby amended and restated in its
entirety as follows:
SECTION 10.04. FUNDED DEBT RATIO. Maintain at all times Funded Debt
as a percentage of the Funded Debt plus Tangible Net Worth as of the
end of each of the four fiscal quarters of Borrower as follows:
For any fiscal quarter
Ratio ending during the period:
----- -------------------------
0.65 to 1.0 From and including the fiscal
quarter ended March 31, 2000 to and
including the fiscal quarter ending
June 30, 2001
0.60 to 1.0 From and including the fiscal
quarter ending September 30, 2001
to and including the fiscal quarter
ending December 31, 2001
0.55 to 1.0 From and including the fiscal
quarter ending March 31, 2002 to
and including the fiscal quarter
ending December 31, 2002
0.50 to 1.0 At any time after the fiscal
quarter ending December 31, 2002
6. FUNDED DEBT TO EBITDA. Section 10.05 is amended and restated in
its entirety as follows:
SECTION 10.05. FUNDED DEBT TO EBITDA. Maintain a ratio of Funded
Debt to EBITDA as of the end of any fiscal quarter of Borrower of
not more than the following. Such ratio shall be measured on the
basis of the financial results of Borrower for the most recent four
(4) fiscal quarters of Borrower ending on the dates of measurement.
For any fiscal quarter
Ratio ending during the period:
----- -------------------------
3.75 to 1.0 From and including the fiscal
quarter ended March 31, 2000 to and
including the fiscal quarter ending
September 30, 2000.
3.50 to 1.0 From and including the fiscal
quarter ending December 31, 2000 to
and including the fiscal quarter
ending September 30, 2001
3.0 to 1.0 From and including the fiscal
quarter ending December 31, 2001 to
and including the fiscal quarter
ending March 31, 2002
2.50 to 1.0 At any time after the fiscal
quarter ending thereafter.
7. LIQUIDITY. Section 10.06 is hereby added to the Agreement to
read as follows:
Maintain a minimum Liquidity of Four Million and no/100s Dollars
($4,000,000.00) at all times during the term of this Agreement. "Liquidity" is
defined as unencumbered cash or marketable securities owned by Borrower and held
in an account with the Agent or with a depository acceptable to the Agent.
Written proof of such balance shall be submitted to the Agent within ten (10)
days after the end of each fiscal quarter of Borrower.
8. WAIVERS. Subject to the terms of this Modification, the Lenders
hereby agree to waive any Default or Event of Default which may have occurred
(i) as of December 31, 2000, as a result of the non-compliance by the
Borrower as of December 31, 2000 with the provisions of Section 10.04 (Funded
Debt Ratio) of the Credit Agreement; and (ii) as of December 31, 2000 as a
result of the non-compliance by the Borrower with the provisions of Section
10.03 (Fixed Charge Coverage) of the Credit Agreement.
9. LIMITATION OF WAIVERS. The foregoing waivers are expressly
limited to the matters stated herein and shall apply solely to the specific
provisions of the Credit Agreement set forth above and, in the case of
Sections 10.03 and 10.04 of the Credit Agreement, solely for the date set
forth above. The foregoing waivers shall not be deemed or construed as a
waiver of
or consent to (i) the non-compliance by the Borrower with any other covenant,
term or condition of the Credit Agreement or any of the Loan Documents, or
(ii) any further non-compliance by the Borrower subsequent to December 31,
2000 with the provisions of Sections 10.03 and 10.04 of the Credit Agreement,
as amended herein.
10. WARRANTS. Borrower hereby warrants and represents to Lenders
that, since the date of the Credit Agreement other than violations of the
financial covenant contained in Sections 10.03 and 10.04 of the Credit
Agreement, Borrower has been and is in compliance with all provisions of the
Credit Agreement and all other Loan Documents and that no Default or Event of
Default has occurred thereunder nor has any event occurred or failed to occur
which with the passage of time or the giving of notice or both would comprise
such a Default or Event of Default.
11. RATIFICATION. Borrower hereby ratifies and confirms each of its
obligations and indebtedness under the Credit Agreement and each of the other
Loan Documents, as amended hereby, and hereby represents and warrants to the
Lenders and the Agent that Borrower neither has nor claims any defenses,
counterclaims or offsets to any such obligations or indebtedness.
12. FEES. The effectiveness of this Modification and the amendments
contemplated herein are expressly conditioned upon the payment by the Borrower
to the Agent for the prorata benefit of the Lenders an amendment fee equal to
$152,500.00 and reimbursement by the Borrower of the Agent and each of the
Lenders for all reasonable attorneys' fees and expenses incurred by each of them
in connection with this Modification.
13. MISCELLANEOUS.
a. This agreement shall be governed by and construed in accordance
with the law of the State of Florida. Paragraph headings used herein are
for convenience only and shall not be used to interpret any term hereof.
The Credit Agreement shall continue in full force and effect as modified
by this Modification. In the event the terms of this Modification conflict
with the terms of the Credit Agreement, the terms of this Modification
shall control.
b. This Modification constitutes the entire agreement among the
parties hereto and supersedes all prior agreements, understandings,
negotiations and discussions, both written and oral among the parties
hereto with respect to the subject matter hereof, all of which prior
agreements, understanding, negotiations and discussions, both written and
oral, are merged into this Modification. All provisions of the Credit
Agreement and each of the other Loan Documents shall remain in full force
and effect as modified by this Agreement. Without limiting the generality
of any of the provisions of this Modification, nothing herein or in any
instrument or agreement shall be deemed or construed to constitute a
novation, satisfaction or refinancing of all or any portion of the Loan or
in any manner affect or impair the lien or priority of the Credit
Agreement or any of the Loan Documents as amended hereby.
c. This Modification may be executed in any number of counterparts
with each executed counterpart constituting an original, but altogether
constituting but one and the same instrument.
d. This Modification shall be binding upon and inure to the benefit
of the Borrower, the Agent and the Lenders and their respective heirs,
legal representatives, executors, successors and assigns from March 30,
2001 forward.
14. RELEASE. IN CONSIDERATION OF THE ACCOMMODATIONS PROVIDED HEREIN,
THE BORROWER HEREBY UNCONDITIONALLY, IRREVOCABLY AND FOREVER RELEASES,
ACQUITS AND DISCHARGES THE LENDERS AND EACH OF THE LENDERS' RESPECTIVE
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND COUNSEL FROM ANY AND ALL CLAIMS,
DEMANDS AND CAUSES OF ACTION THAT ANY OF THEM HAD, NOW HAS OR MAY IN THE
FUTURE HAVE AGAINST ANY ONE OR MORE OF THE LENDERS OR ANY ONE OR MORE OF THE
LENDERS' OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR COUNSEL FOR THE ACTS OR
OMISSIONS OF ANY OF THE FOREGOING PARTIES FROM THE BEGINNING OF TIME THROUGH,
TO AND INCLUDING THE DATE OF THE EFFECTIVENESS OF THIS MODIFICATION,
INCLUDING, WITHOUT LIMITATION, ANY CLAIMS ARISING OUT OF OR CONNECTED IN ANY
MANNER WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR IN THE CREDIT AGREEMENT,
AS AMENDED HEREBY OR ANY OTHER LOAN DOCUMENTS, AS THE SAME MAY BE AMENDED
HEREBY, AS THE CASE MAY BE.
15. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND THE LENDERS HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS MODIFICATION OR ANY AGREEMENT EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS,
(WHETHER VERBAL OR WRITTEN) OR ACTIONS BY ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE LENDERS ENTERING INTO THIS MODIFICATION AND MAKING
ANY LOAN, ADVANCE OR OTHER EXTENSION OF CREDIT TO THE BORROWER. FURTHER, THE
BORROWER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE LENDERS, NOR
THE AGENT OR ANY OF THE AGENT'S COUNSEL OR THE LENDERS' COUNSEL, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR ANY OF THE AGENT'S
COUNSEL OR THE LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO
ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT
OF THE LENDERS, NOR THE AGENT OR ANY OF THE AGENT'S COUNSEL OR THE LENDERS'
COUNSEL HAS THE AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
IN WITNESS WHEREOF, the Borrower, the Agent and Lenders have caused this
agreement to be effective as of the day and year set forth above.
BORROWER:
Witnesses: XXXXXXXXX INTERNATIONAL, INC., a
Delaware corporation
/s/ D. Xxx Xxxxxxxxx By: /s/ A. Xxxxxxx Xxxxxxxx, Xx.
------------------------------ ----------------------------------------
Print Name: D. Xxx Xxxxxxxxx A. Xxxxxxx Xxxxxxxx, Xx.
-------------------
Its: Chairman of the Board of Directors/CEO
/s/ Xxxxxx X. Xxx
------------------------------
Print Name: Xxxxxx X. Xxx
-------------------
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this 29th day of
May, 2001 by A. Xxxxxxx Xxxxxxxx, Xx., as Chairman of the Board of
Directors/CEO of Xxxxxxxxx International, Inc. a Delaware corporation, on
behalf of the corporation. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
/s/ Xxxxxx X. Xxx
-------------------------------------------
NOTARY PUBLIC, STATE OF
Xxxxxx X. Xxx, Commission # CC 934433
-------------------------------------------
(Print, Type or Stamp Commissioned Name
of Notary Public)
THE AGENT:
SOUTHTRUST BANK, FORMERLY KNOWN AS
SOUTHTRUST BANK, NATIONAL ASSOCIATION
Witnesses:
/s/ Xxxxxxx Xxxxx By: /s/ D. Xxx Xxxxxxxxx
------------------------------ ----------------------------------
Print Name: Xxxxxxx Xxxxx Print Name: D. Xxx Xxxxxxxxx
------------------- --------------------------
Title: Senior Vice President
-------------------------------
/s/ Xxxxxxx Xxxx
Print Name: Xxxxxxx Xxxx
-------------------
STATE OF Florida
COUNTY OF Broward
The foregoing instrument was acknowledged before me this 29th day of
May, 2001 by D. Xxx Xxxxxxxxx, as Sr. Vice Pres. of SouthTrust Bank, on
behalf of the bank. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
/s/ Xxxxx X. Xxxxx
-------------------------------------------
NOTARY PUBLIC, STATE OF
Xxxxx X. Xxxxx, Commission # CC706113
-------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
THE LENDERS:
SOUTHTRUST BANK, FORMERLY KNOWN AS
SOUTHTRUST BANK, NATIONAL ASSOCIATION
Witnesses:
/s/ Xxxxxxx Xxxxx By: /s/ D. Xxx Xxxxxxxxx
------------------------------ ----------------------------------
Print Name: Xxxxxxx Xxxxx Print Name: D. Xxx Xxxxxxxxx
------------------- --------------------------
Title: Senior Vice President
-------------------------------
/s/ Xxxxxxx Xxxx
Print Name: Xxxxxxx Xxxx
-------------------
STATE OF Florida
COUNTY OF Broward
The foregoing instrument was acknowledged before me this 29th day of
May, 2001 by D. Xxx Xxxxxxxxx, as Senior Vice Pres. of SouthTrust Bank, on
behalf of the bank. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
/s/ Xxxxx X. Xxxxx
-------------------------------------------
NOTARY PUBLIC, STATE OF
Xxxxx X. Xxxxx, Commission # CC706113
-------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
FIRST UNION NATIONAL BANK
Witnesses:
/s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
------------------------------ -------------------------------------
Print Name: Xxxxxx X. Xxxxxx Print Name: Xxxxx X. Xxxx
------------------- --------------------------
Title: Vice President
-------------------------------
/s/ Xxxxxxxxx Xxxxxxxx
------------------------------
Print Name: Xxxxxxxxx Xxxxxxxx
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this 22nd day of
May, 2001 by Xxxxx X. Xxxx, as ________________ of First Union National Bank,
on behalf of the bank. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
/s/ Xxxxx X. Xxxxxx
-------------------------------------------
NOTARY PUBLIC, STATE OF
Xxxxx X. Xxxxxx, Commission # CC724926
-------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
SUNTRUST BANK, FORMERLY KNOWN AS SUNTRUST
BANK, SOUTH FLORIDA, N.A.
Witnesses:
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------------ --------------------------------------
Print Name: Xxxxxxx Xxxxxx Print Name: Xxxxxxx X. Xxxxx
------------------- ------------------------------
Title: Vice President
-----------------------------------
/s/ Xxxxxx Xxxxxxx
------------------------------
Print Name: Xxxxxx Xxxxxxx
-------------------
STATE OF Florida
COUNTY OF Palm Beach
The foregoing instrument was acknowledged before me this 30th day of
May, 2001 by Xxxxxxx X. Xxxxx, as Vice President of SunTrust Bank, on behalf
of the bank. He/she is personally known to me or has produced
____________________ (type of identification) as identification.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
NOTARY PUBLIC, STATE OF
Xxxxxxx X. Xxxxxx, Commission # CC987894
-------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
NATIONAL CITY BANK , NATIONAL ASSOCIATION
Witnesses:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
------------------------------ -------------------------------------
Print Name: Xxxxx X. Xxxxx Print Name: Xxxxx X. Xxxxx
------------------- -----------------------------
Title: Vice President
----------------------------------
/s/ Xxxxxxx Xxxxxxxx
------------------------------
Print Name: Xxxxxxx Xxxxxxxx
STATE OF OHIO
COUNTY OF
The foregoing instrument was acknowledged before me this 24th day of
May, 2001 by Xxxxx X. Xxxxx, as Vice Pres. of National City Bank, National
Association, on behalf of the bank. He/she is personally known to me or has
produced N/A (type of identification) as identification.
/s/ Xxxxx X. Xxxx
-----------------------------------------------
NOTARY PUBLIC, STATE OF OHIO
Xxxxx X. Xxxx, Commission Expires June 16, 2004
-----------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
BARCLAYS BANK, P.L.C.
Witnesses:
By: /s/ Xxxxxx Xxxxxx
------------------------------ ----------------------------------
Print Name: Print Name: Xxxxxx Xxxxxx
------------------- --------------------------
Title: Director
-------------------------------
/s/ Xxxxxx Xxxxxxxxxxx
------------------------------
Print Name: Xxxxxx Xxxxxxxxxxx
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this 25th day of
May, 2001 by Xxxxxx Xxxxxx, as Director of Barclays Bank, P.L.C., on behalf
of the bank. He/she is personally known to me or has produced personally
known (type of identification) as identification.
/s/ Xxxxxx Xxxxxxxxxxx
-------------------------------------------
NOTARY PUBLIC, STATE OF
Xxxxxx Xxxxxxxxxxx, Commission # CC 888343
-------------------------------------------
(Print, Type or Stamp Commissioned Name of
Notary Public)
