[CONFORMED COPY]
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT, dated as of December 21, 1995
(this "Amendment"), to the Existing Credit Agreement (as defined below) is
entered into by and among TRIANGLE PACIFIC CORP., a Delaware corporation (the
"Borrower"), the various financial institutions parties hereto (collectively,
the "Lenders"), BANK OF AMERICA NT&SA as co-agent (the "Co-Agent") for the
Lenders, and THE BANK OF NOVA SCOTIA as the agent (the "Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent have heretofore entered
into that certain Credit Agreement, dated as of August 4, 1993 (together with
all Exhibits, Schedules and Attachments thereto, in each case as amended or
otherwise modified prior to the date hereof, being collectively referred to
herein as the "Existing Credit Agreement");
WHEREAS, the Borrower has requested the Lenders and the Agent to amend
the Existing Credit Agreement in certain respects as set forth below; and
WHEREAS, the Lenders and the Agent are willing, on the terms and
conditions set forth below, to amend the Existing Credit Agreement in certain
respects as provided herein below (the Existing Credit Agreement, as amended
pursuant to the terms of this Amendment, being referred to as the "Credit
Agreement");
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower, the Lenders and the Agent hereby
agree as follows:
I
DEFINITIONS
.1. Certain Definitions. The following terms (whether or not underscored)
when used in this Amendment, including its preamble and recitals, shall,
except where the context otherwise requires, have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"Affirmation and Consent" means the affirmation and consent executed and
delivered pursuant to Subpart 3.1.4, substantially in the form of Annex III
hereto.
"Agent" is defined in the preamble.
"Amendment" is defined in the preamble.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"Lenders" is defined in the preamble.
"Sixth Amendment" is defined in Subpart 3.1.
"Sixth Amendment Effective Date" is defined in Subpart 3.1.
.2. Other Definitions. Terms for which meanings are provided in the Existing
Credit Agreement are, unless otherwise defined herein or the context otherwise
requires, used in this Amendment with such meanings provided therein.
II
AMENDMENTS TO THE
EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Sixth Amendment
Effective Date, and in reliance upon the representations and warranties made
herein and (if any) in each other agreement furnished to the Agent pursuant to
the terms hereof or in connection herewith, the parties hereto hereby agree
that the Existing Credit Agreement is hereby amended in accordance with this
Part II. Except as expressly so amended or modified by this Amendment, the
Existing Credit Agreement and each other Loan Document shall continue in full
force and effect in accordance with their respective terms.
.1. Amendment to Preamble. The preamble contained in the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
THIS CREDIT AGREEMENT, dated as of August 4, 1993, among TRIANGLE
PACIFIC CORP., a Delaware corporation (the "Borrower"), the various
financial institutions as are or may become parties hereto
(collectively, the "Lenders"), BANK OF AMERICA NT&SA, as co-agent
(in such capacity, the "Co-Agent") for the Lenders, and THE BANK OF
NOVA SCOTIA ("Scotiabank"), as the agent (in such capacity, the
"Agent") for the Lenders,
.2. Amendments to Article I ("DEFINITIONS AND ACCOUNTING TERMS"). Article I
of the Existing Credit Agreement is hereby amended in accordance with Subparts
2.2.1 and 2.2.2.
1. Section 1.1 ("Defined Terms") of the Existing Credit Agreement is hereby
amended by inserting the following definitions in the appropriate alphabetical
order:
"Base Capital Expenditures" is defined in Section 7.2.7.
"Base Rate Margin" means, with respect to any Revolving Loan or
Swing Line Loan made or maintained as a Base Rate Loan, a per annum
rate based on reference to the Leverage Ratio and Interest Coverage
Ratio, in each case as indicated in the Compliance Certificate most
recently delivered pursuant to clause (d) of Section 7.7.1, equal
to:
(a) 0.00% per annum, if the Leverage Ratio is less than 0.50:1 and
the Interest Coverage Ratio is greater than 4.00:1;
(b) 0.125% per annum, if the Leverage Ratio is less than 0.55:1 and
the Interest Coverage Ratio is greater than 3.50:1 and the
foregoing clause (a) does not apply;
(c) 0.375% per annum, if the Leverage Ratio is less than 0.60:1 and
the Interest Coverage Ratio is greater than 3.00:1 and the
foregoing clauses (a) and (b) do not apply;
(d) 0.75% per annum, if the Leverage Ratio is less than 0.65:1 and
the Interest Coverage Ratio is greater than 2.75:1 and the
foregoing clauses (a), (b) and (c) do not apply;
(e) 0.875% per annum, if the Leverage Ratio is less than 0.71 and
the Interest Coverage Ratio is greater than 2.50:1 and the
foregoing clauses (a), (b), (c) and (d) do not apply; and
(f) 1.375% per annum, if the Leverage Ratio is 0.71 or greater and
the Interest Coverage Ratio is 2.50:1 or less.
The Base Rate Margin shall only be increased or decreased from the then
existing Base Rate Margin if each of the Interest Coverage Ratio and
Leverage Ratio (as reflected in the most recently delivered Compliance
Certificate) is contained within the ranges set forth in the same
clause (a), (b), (c), (d), (e) or (f) above; provided, that, in the event
the Borrower fails to deliver a Compliance Certificate within 45 days
after the end of any Fiscal Quarter as required pursuant to clause (d) of
Section 7.1.1, the Base Rate Margin from and including the 46th day after
the end of such Fiscal Quarter to but not including the date the Borrower
delivers to the Agent a Compliance Certificate shall conclusively be
equal to 1.375% per annum.
"Carry Forward Capital Expenditures" is defined in Section 7.2.7.
"Co-Agent" is defined in the preamble.
"Deutsche Xxxx" and "DM" mean the lawful currency of Germany.
"Dollar Equivalent" means, (i) with respect to Dollars or an amount
denominated in Dollars, such amount, and (ii) with respect to any
monetary amount of a Letter of Credit denominated in a currency
other than Dollars, at any time for the determination thereof, the
amount of Dollars obtained by converting such foreign currency
involved in such computation into Dollars at the spot rate for the
purchase of Dollars with the applicable foreign currency as quoted
by the Issuer of such Letter of Credit at approximately 11:00 a.m.
(New York City time) on the date of determination thereof specified
herein.
"Excepted Capital Expenditures" means, with respect to determining
compliance with clause (c) of Section 7.2.4 for Fiscal Year 1996,
Base Capital Expenditures actually made during such Fiscal Year
pursuant to Section 7.2.7 in an amount not to exceed $5,000,000.
"Permitted Capital Expenditures" is defined in Section 7.2.7.
"Permitted Currency" means Dollars, Deutsche Marks and such other
currencies of major nations as shall be designated by the Borrower
and acceptable to the Agent (and, if different, the Issuer of the
applicable Letter of Credit to be issued in a denomination other
than Dollars).
"Sixth Amendment" means the Sixth Amendment to Credit Agreement,
dated as of December 21, 1995, among the Borrower, the Lenders
parties thereto and the Agent.
"Sixth Amendment Effective Date" is defined in Subpart 3.1 of the
Sixth Amendment.
2. Section 1.1 ("Defined Terms") of the Existing Credit Agreement is hereby
further amended as follows:
(a) The definition of "Borrowing Base Amount" is hereby amended in its
entirety to read as follows:
"Borrowing Base Amount" means, at any time, the sum (without
duplication) of
(a) the Net Asset Value of all Eligible Accounts at such
time as then most recently certified by the Borrower
to the Lenders in the most recently delivered
Borrowing Base Certificate;
plus
(b) the Net Asset Value of all Eligible Inventory
(excluding (i) work in process Inventory and (ii)
logs and lumber) at such time as then most recently
certified by the Borrower to the Lenders in the most
recently delivered Borrowing Base Certificate;
plus
(c) the Net Asset Value of all work in process Inventory
at such time as then most recently certified by the
Borrower to the Lenders in the most recently
delivered Borrowing Base Certificate;
plus
(d) subject to the proviso below, the Net Asset Value of
all logs and lumber at such time as then most
recently certified by the Borrower to the Lenders in
the most recently delivered Borrowing Base
Certificate;
provided, however, that at any time of determination of the
Borrowing Base Amount, the amount attributable to clause (d) above
shall not exceed 25% of the sum of the amounts attributable to
clauses (a), (b), (c) and (d) above.
(b) The definition of "Co-Agent" is hereby deleted in its entirety.
(c) The definition of "Commitment Fee Rate" is hereby amended in
its entirety to read as follows:
"Commitment Fee Rate" means, with respect to the commitment fee
set forth in Section 3.3.1, a per annum rate determined by
reference to the Leverage Ratio and Interest Coverage Ratio, in
each case as indicated in the Compliance Certificate most
recently delivered pursuant to clause (d) of Section 7.1.1,
equal to:
(a) 0.25% per annum, if the Leverage Ratio is less than
0.50:1 and the Interest Coverage Ratio is greater
than 4.00:1;
(b) 0.375% per annum, if the Leverage Ratio is less than
0.71:1 and the Interest Coverage Ratio is greater
than 2.50:1 and the foregoing clause (a) does not
apply; and
(c) 0.50% per annum, if the Leverage Ratio is 0.71:1 or
greater and the Interest Coverage Ratio is 2.50:1 or
less.
The Commitment Fee Rate shall only be increased or decreased from
the then existing Commitment Fee Rate if each of the Interest
Coverage Ratio and Leverage Ratio (as reflected in the most recently
delivered Compliance Certificate) is contained within the ranges set
forth in the same clause (a), (b) or (c) above; provided, that, in
the event the Borrower fails to deliver a Compliance Certificate
within 45 days after the end of any Fiscal Quarter as required
pursuant to clause (d) of Section 7.1.1, the Commitment Fee Rate
from and including the 46th day after the end of such Fiscal Quarter
to but not including the date the Borrower delivers to the Agent a
Compliance Certificate shall conclusively be equal to 0.50% per
annum.
(d) Clause (k) of the definition of "Eligible Accounts" is hereby
amended in its entirety to read as follows:
(k) with respect to any Account Debtor that the Borrower (or
such Subsidiary) is indebted, such Account shall
constitute an Eligible Account only to the extent of the
excess of such Account over the amount the Borrower (or
such Subsidiary) is indebted to such Account Debtor, or to
the extent that the Borrower (or such Subsidiary) and such
Account Debtor have entered into an agreement whereby the
Account Debtor is prohibited from exercising any right of
setoff with respect to such Account; provided, that this
clause (k) shall not apply to up to a maximum amount of
$300,000 of Accounts that otherwise would be excluded from
being Eligible Accounts as a result of this clause; and
(e) The definition of "Eligible Inventory" is hereby amended in its
entirety to read as follows:
"Eligible Inventory" means, with respect to the Borrower or any
Subsidiary of the Borrower that has executed and delivered a
Subsidiary Security Agreement and a Subsidiary Guaranty in
favor of the Agent for the benefit of the Lenders, at the time
of any determination thereof any Inventory arising in the
ordinary course of business and as to which each of the
following requirements has been fulfilled to the reasonable
satisfaction of the Agent:
(a) such Inventory is located in the United States at a
facility owned or leased by the Borrower or such
Subsidiary; provided, however, that (i) Inventory
with an aggregate fair market value in excess of
$300,000 and located at a facility leased on the
Effective Date by the Borrower or such Subsidiary
shall not constitute Eligible Inventory unless the
applicable landlord shall have executed and delivered
a waiver or subordination letter in form and
substance satisfactory to the Agent and its counsel
(a "Lessor's Waiver") as to such landlord's release
or subordination of any Lien (whether statutory or
otherwise) on or other rights and claims to all
Inventory located at such facility, and (ii)
Inventory located at any facility that is either
leased by the Borrower or such Subsidiary on the
Effective Date (but which lease is renewed or
extended after the Effective Date), or that is leased
by the Borrower or such Subsidiary after the
Effective Date, in each case shall only constitute
Eligible Inventory if a Lessor's Waiver has been
executed and delivered to the Borrower or such
Subsidiary by the lessor of such facility and,
promptly following any request by the Agent, the
Borrower or such Subsidiary has delivered, or caused
to be delivered, to the Agent, a true and complete
copy of each such Lessor's Waiver;
(b) the Borrower or such Subsidiary has full and
unqualified right to, and has, assigned and granted a
first priority perfected Lien in such Inventory to
the Agent, for its benefit and that of the Lenders,
as security for the Obligations;
(c) the Borrower or such Subsidiary owns such Inventory
free and clear of all Liens in favor of any Person
other than any Lien in favor of the Agent and the
Lenders granted pursuant to this Agreement or another
Loan Document or as otherwise permitted pursuant to
Section 7.2.3 of this Agreement; and
(d) none of such Inventory is obsolete, unsalable,
damaged or otherwise unfit for sale because of a
defect or damage to such Inventory or (except for
logs and lumber) has remained unsold in inventory for
over 180 days.
(f) The definition of "Expansion Capital Expenditures" is hereby deleted
in its entirety.
(g) The definition of "Fee Letter" is hereby amended in its entirety to
read as follows:
"Fee Letter" means the confidential fee letter, dated November
7, 1995, between the Borrower and the Agent.
(h) The definition of "Fixed Charge Coverage Ratio" is hereby amended in
its entirety to read as follows:
"Fixed Charge Coverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio, computed for the period of four
consecutive Fiscal Quarters, ending on the close of such Fiscal
Quarter of:
(a) EBITDA
to
(b) the sum of
(i) actual Capital Expenditures paid in cash during
such period less Excepted Capital Expenditures
made during such period,
plus
(ii) the amount of good faith cash taxes of the type
described in clause (c) of the definition of
EBITDA paid during such period,
plus
(iii) cash Interest Expense for such period,
plus
(iv) all regularly scheduled payments of principal in
respect of Indebtedness of the Borrower and its
Subsidiaries which, upon its incurrence, was
Funded Debt, in each case as paid during such
period,
plus
(v) dividends (if any) paid in cash during such
period,
plus
(vi) the aggregate amount of Investments made by the
Borrower and its Subsidiaries during such
period, but only to the extent that such amount,
when aggregated with the amount of all other
Investments made since the Sixth Amendment
Effective Date exceeds $25,000,000.
(i) The definition of "Interest Coverage Ratio" is hereby amended in its
entirety to read as follows:
"Interest Coverage Ratio" means, as of the last day of any
Fiscal Quarter, the ratio, computed for the period of four
consecutive Fiscal Quarters ending on the close of such Fiscal
Quarter of:
(a) EBITDA
to
(b) Interest Expense.
(j) The definition of "Interest Period" is hereby amended by deleting
the phrase "one, three or six months thereafter" appearing therein
and inserting in lieu thereof the following: "one, two, three or six
months thereafter".
(k) The definition of "Letter of Credit Commitment Amount" is hereby
amended in its entirety to read as follows:
"Letter of Credit Commitment Amount" means, on any date, a
maximum Dollar Equivalent amount of $25,000,000, as such
amount may be reduced from time to time pursuant to
Section 2.2.
(1) The definition of "Letter of Credit Outstandings" is hereby
amended in its entirety to read as follows:
"Letter of Credit Outstandings" means, on any date, an amount
equal to the sum of
(a) the then aggregate Dollar Equivalent amount which is
undrawn and available under all issued and
outstanding Letters of Credit
plus
(b) the then aggregate Dollar Equivalent amount of all
unpaid and outstanding Reimbursement Obligations.
(m) The definition of "Letter of Credit Rate" is hereby amended in its
entirety to read as follows:
"Letter of Credit Rate" means, with respect to any standby
Letter of Credit, a per annum rate based on reference to the
Leverage Ratio and Interest Coverage Ratio, in each case as
indicated in the Compliance Certificate most recently delivered
pursuant to clause (d) of Section 7.1.1, equal to:
(a) 0.875% per annum, if the Leverage Ratio is less than
0.50:1 and the Interest Coverage Ratio is greater
than 4.00:1;
(b) 1.125% per annum, if the Leverage Ratio is less than
0.55:1 and the Interest Coverage Ratio is greater
than 3.50:1 and the foregoing clause (a) does not
apply;
(c) 1.375% per annum, if the Leverage Ratio is less than
0.60:1 and the Interest Coverage Ratio is greater
than 3.00:1 and the foregoing clauses (a) and (b) do
not apply;
(d) 1.75% per annum, if the Leverage Ratio is less than
0.65:1 and the Interest Coverage Ratio is greater
than 2.75:1 and the foregoing clauses (a), (b) and
(c) do not apply;
(e) 1.875 per annum, if the Leverage Ratio is less than
0.71:1 and the Interest Coverage Ratio is greater
than 2.50:1 and the foregoing clauses (a), (b), (c)
and (d) do not apply; and
(f) 2.375% per annum, if the Leverage Ratio is 0.71:1 or
greater and the Interest Coverage Ratio is 2.50:1 or
less.
The Letter of Credit Rate shall only be increased or decreased from
the then existing Letter of Credit Rate if each of the Interest
Coverage Ratio and Leverage Ratio (as reflected in the most recently
delivered Compliance Certificate) is contained within the ranges set
forth in the same clause (a), (b), (c), (d), (e) or (f) above;
provided, that, in the event the Borrower fails to deliver a
Compliance Certificate within 45 days after the end of any Fiscal
Quarter as required pursuant to clause (d) of Section 7.1.1, the
Letter of Credit Rate from and including the 46th day after the end
of such Fiscal Quarter to but not including the date the Borrower
delivers to the Agent a Compliance Certificate shall conclusively be
equal to 2.375% per annum.
(n) The definition of "LIBO Rate Margin" is hereby amended in its
entirety to read as follows:
"LIBO Rate Margin" means, with respect to any LIBO Rate Loan, a
per annum rate based on reference to the Leverage Ratio and
Interest Coverage Ratio, in each case as indicated in the
Compliance Certificate most recently delivered pursuant to
clause (d) of Section 7.1.1, equal to:
(a) 0.875% per annum, if the Leverage Ratio is less than
0.50:1 and the Interest Coverage Ratio is greater
than 4.00:1;
(b) 1.125% per annum, if the Leverage Ratio is less than
0.55:1 and the Interest Coverage Ratio is greater
than 3.50:1 and the foregoing clause (a) does not
apply;
(c) 1.375% per annum, if the Leverage Ratio is less than
0.60:1 and the Interest Coverage Ratio is greater
than 3.00:1 and the foregoing clauses (a) and (b) do
not apply;
(d) 1.75% per annum, if the Leverage Ratio is less than
0.65:1 and the Interest Coverage Ratio is greater
than 2.75:1 and the foregoing clauses (a), (b) and
(c) do not apply;
(e) 1.875% per annum, if the Leverage Ratio is less than
0.71:1 and the Interest Coverage Ratio is greater
than 2.50:1 and the foregoing clauses (a), (b), (c)
and (d) do not apply; and
(f) 2.375% per annum, if the Leverage Ratio is 0.71:1 or
greater and the Interest Coverage Ratio is 2.50:1 or
less.
The LIBO Rate Margin shall only be increased or decreased from the
then existing LIBO Rate Margin if each of the Interest Coverage
Ratio and Leverage Ratio (as reflected in the most recently
delivered Compliance Certificate) is contained within the ranges set
forth in the same clause (a), (b), (c), (d), (e) or (f) above;
provided, that, in the event the Borrower fails to deliver a
Compliance Certificate within 45 days after the end of any Fiscal
Quarter as required pursuant to clause (d) of Section 7.1.1, the
LIBO Rate Margin from and including the 46th day after the end of
such Fiscal Quarter to but not including the date the Borrower
delivers to the Agent a Compliance Certificate shall conclusively be
equal to 2.375% per annum.
(o) The definition of "Maintenance Capital Expenditures" is hereby
deleted in its entirety.
(p) The second sentence of the definition of "Net Asset Sale Proceeds"
is hereby amended in its entirety to read as follows:
Notwithstanding anything to the contrary set forth above, Net Asset
Sale Proceeds shall be deemed not to include (a) an aggregate amount
of up to the first $10,000,000 of proceeds received by the Borrower
or any of its Subsidiaries from any sale, transfer, lease,
contribution or conveyance of such Person's assets pursuant to
clause (b) of Section 7.2.11 to the extent any of such proceeds are
used, at the election of the Borrower, to repurchase or otherwise
redeem a like principal amount outstanding under the Senior Notes,
and (b) an aggregate amount of up to the first $5,000,000 of
proceeds received by the Borrower or any of its Subsidiaries from
any sale, transfer, lease, contribution or conveyance of any assets
of any Permitted Foreign Subsidiary pursuant to clause (b) of
Section 7.2.11.
(q) The definition of "Net Asset Value" is hereby amended in its
entirety to read as follows:
"Net Asset Value" means, at any time of any determination
thereof
(a) with respect to Accounts of the Borrower or any
Subsidiary of the Borrower that has executed and
delivered a Subsidiary Security Agreement and a
Subsidiary Guaranty in favor of the Agent for the
benefit of the Lenders, an amount equal to 85% of the
book value of all Eligible Accounts as reflected on
the books of the Borrower or such Subsidiary in
accordance with GAAP, net of all credits, discounts
and allowances;
(b) with respect to Inventory (excluding (i) work in
process Inventory and (ii) logs and lumber) of the
Borrower or any Subsidiary of the Borrower that has
executed and delivered a Subsidiary Security
Agreement and a Subsidiary Guaranty in favor of the
Agent for the benefit of the Lenders, an amount equal
to 60% of the lesser of the market value and the cost
of goods (determined on a first-in, first-out basis)
of all Eligible Inventory as reflected on the books
of the Borrower or such Subsidiary as at such time,
valued in accordance with GAAP and net of book
reserves for obsolescence or similar matters;
(c) 25% of work in process Inventory (to the extent such
Inventory otherwise constitutes Eligible Inventory);
and
(d) an amount equal to 70% of the aggregate value of all
logs and lumber (to the extent such Inventory
otherwise constitutes Eligible Inventory).
(r) The definition of "Other Raw Material Inventory" is hereby deleted
in its entirety.
(s) The definition of "Other Rental Obligations" is hereby amended in
its entirety to read as follows:
"Other Rental Obligations" means all monetary obligations of
the Borrower or any of its Subsidiaries under any leasing or
similar arrangement which, in accordance with GAAP, would not
be classified as capitalized leases.
(t) The definition of "Revolving Loan Commitment Amount" is hereby
amended in its entirety to read as follows:
"Revolving Loan Commitment Amount" means, on any date,
$90,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
(u) The definition of "Stated Amount" is hereby amended in its entirety
to read as follows:
"Stated Amount" of each Letter of Credit means, on any date,
the maximum Dollar Equivalent amount available to be drawn
thereunder on such date.
(v) The definition of "Stated Maturity Date" is hereby amended in its
entirety to read as follows:
"Stated Maturity Date" means December 21, 2000, the fifth
anniversary of the Sixth Amendment Effective Date.
(w) The definition of "Swing Line Loan Commitment Amount" is hereby
amended in its entirety to read as follows:
"Swing Line Loan Commitment Amount" means, on any date,
$5,000,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
.3. Amendments to Article II ("COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES, NOTES AND LETTERS OF CREDIT"). Article II of the Existing Credit
Agreement is hereby amended in accordance with Subparts 2.3.1 through 2.3.5.
SUBPART 2.3.1. Clause (b) of Section 2.1 ("Commitments") of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
(b) the Issuer agrees that it will issue Letters of Credit in a
Permitted Currency pursuant to Section 2.1.3, and each other
Lender severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to Section 2.4.7.
SUBPART 2.3.2. Clause (a) of Section 2.1.3 ("Letter of Credit
Commitment") of the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
(a) will issue one or more Letters of Credit denominated in a
Permitted Currency upon the request of the Borrower; and
SUBPART 2.3.3. Section 2.1.4 ("Issuer Not Permitted or Required to Issue
Letters of Credit") of the Existing Credit Agreement is hereby amended in its
entirety to read as follows:
SECTION 2.1.4. Issuer Not Permitted or Required to Issue Letters
of Credit. The Issuer shall not be permitted or required to issue
any Letter of Credit if, after giving effect thereto,
(a) the aggregate Dollar Equivalent amount of all Letter of
Credit Outstandings would exceed the Letter of Credit
Commitment Amount; or
(b) the sum of the aggregate Dollar Equivalent amount of all
Letter of Credit Outstandings plus the aggregate unpaid
principal amount of all Loans then outstanding would
exceed the lesser of (i) the Revolving Loan Commitment
Amount or (ii) the then existing Borrowing Base Amount.
SUBPART 2.3.4. Section 2.2.1 ("Optional Reduction") of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
SECTION 2.2.1. Optional Reduction. The Borrower may, from time to
time on any Business Day occurring after the time of the initial
Credit Extension hereunder, voluntarily reduce the amount of either
the Revolving Loan Commitment Amount, the Swing Line Loan Commitment
Amount or the Letter of Credit Commitment Amount; provided, however,
that (i) all such reductions shall require at least three Business
Days' prior written irrevocable notice to the Agent and be
permanent, (ii) any partial reduction of (A) the Revolving Loan
Commitment Amount shall be in a minimum amount of $1,000,000 and in
an integral multiple of $1,000,000, (B) the Swing Line Loan
Commitment Amount shall be in a minimum amount of $100,000 and in an
integral multiple of $100,000, and (C) the Letter of Credit
Commitment Amount shall be in a minimum amount equal to the Dollar
Equivalent of $1,000,000 and in an integral multiple amount equal to
the Dollar Equivalent of $1,000,000, (iii) except as provided below,
(A) the Revolving Loan Commitment Amount may not be reduced to an
amount less than (x) the aggregate outstanding principal amount of
all Revolving Loans, Swing Line Loans and Letter of Credit
Outstandings, or (y) the then existing Letter of Credit Commitment
Amount, and (B) any reduction of the Revolving Loan Commitment
Amount which reduces the Revolving Loan Commitment Amount below the
then current Swing Line Loan Commitment Amount shall result in an
automatic and corresponding reduction of the Swing Line Loan
Commitment Amount to the amount of the Revolving Loan Commitment
Amount, as so reduced, without any further action on the part of
Scotiabank or otherwise, and (iv) except as provided below, the
Borrower may not reduce the Letter of Credit Commitment Amount to an
amount less than the then existing Letter of Credit Outstandings.
The Borrower may terminate the Commitments in whole if, at the time
of and as a condition of such termination, the Borrower shall have
repaid in full the aggregate outstanding principal amount of all
Loans and Reimbursement Obligations, together with all accrued
interest and fees thereon to the date of termination, and all
unexpired Letters of Credit shall have been returned to the Issuer
for cancellation.
SUBPART 2.3.5. Section 2.4 ("Issuance Procedures") of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
SECTION 2.4. Issuance Procedures. By delivering to the Agent and
the applicable Issuer an Issuance Request on or before 11:00 a.m.,
New York City time, the Borrower may request, from time to time
prior to the Letter of Credit Commitment Termination Date and on not
less than three nor more than five Business Days' notice, that such
Issuer issue an irrevocable commercial or standby letter of credit
denominated in a Permitted Currency in such form as may be requested
by the Borrower and approved by such Issuer (each a "Letter of
Credit"), in support of financial obligations of the Borrower or its
Subsidiaries incurred in the Borrower's or such Subsidiary's
ordinary course of business and which are described in such Issuance
Request. Upon receipt of an Issuance Request, the Agent shall
promptly notify the Lenders thereof. Each Letter of Credit shall by
its terms:
(a) be denominated in a Permitted Currency;
(b) be issued in a Stated Amount which does not exceed (or
would not exceed) the then Letter of Credit Availability;
and
(c) be stated to expire (or give the Issuer the right to give
notice which will cause such Letter of Credit to expire)
on a date (its "Stated Expiry Date") no later than the
earlier of one year from its date of issuance and the
Letter of Credit Commitment Termination Date.
So long as no Default has occurred and is continuing, by delivery to
the applicable Issuer and the Agent of an Issuance Request at least
three but not more than five Business Days prior to the Stated
Expiry Date of any Letter of Credit, the Borrower may request such
Issuer to extend the Stated Expiry Date of such Letter of Credit for
an additional period not to exceed the earlier of one year from its
date of extension and the Letter of Credit Commitment Termination
Date.
Each Issuer will make available the original of each Letter of
Credit which it issues in accordance with the Issuance Request
therefor to the beneficiary thereof and will notify the beneficiary
under any Letter of Credit of any extension of the Stated Expiry
Date thereof.
.4. Amendments to Article III ("REPAYMENTS, PREPAYMENTS, INTEREST AND FEES").
Article III of the Existing Credit Agreement is hereby amended in accordance
with Subparts 2.4.1 through 2.4.4.
1. Section 3.1.3 ("Mandatory Prepayments") of the Existing Credit Agreement
is hereby amended by inserting a new paragraph at the end of such Section,
which shall read as follows:
Notwithstanding any other provision of this Agreement to the contrary, if
there are any Letters of Credit denominated in a Permitted Currency other
than Dollars the Agent may periodically recompute (each such date
referred to as a "Recomputation Date") the Dollar Equivalent of such
Letters of Credit, and if pursuant to such recomputation the Agent
determines that (i) the sum of the aggregate principal amount of the
Revolving Loans and the Swing Line Loans together with all Letter of
Credit Outstandings exceeds the Revolving Loan Commitment Amount as then
in effect, (ii) the sum of the aggregate principal amount of the
Revolving Loans and the Swing Line Loans together with all Letter of
Credit Outstandings exceeds the Borrowing Base Amount as then in effect
or (iii) the aggregate amount of all Letter of Credit Outstandings
exceeds the Letter of Credit Commitment Amount as then in effect, then
the Agent shall so advise the Borrower, and the Borrower shall repay such
excess (together with accrued interest on the amount so repaid) within
two Business Days of receipt of such notice with the amount repaid to be
applied to repay Revolving Loans or Swing Line Loans (or both) (until
such Loans are repaid in full) and, if no Revolving Loans and Swing Line
Loans are then outstanding, the Borrower shall deposit the amount in
excess of the Letter of Credit Commitment Amount in a cash collateral
account maintained with the Agent to be held as cash collateral for the
Obligations until such time as the Dollar Equivalent of all Letter of
Credit Outstandings no longer exceeds the Letter of Credit Commitment
Amount then in effect.
2. Clauses (a) and (b) of Section 3.2.1 ("Rates") of the Existing Credit
Agreement are hereby amended in their entirety to read as follows:
(a) on that portion maintained from time to time as a Base Rate Loan,
equal to the sum of the Alternate Base Rate from time to time in
effect plus (i) for the period commencing on the Sixth Amendment
Effective Date and ending on March 31, 1996, a margin of 0.375% and
(ii) at all times thereafter, the applicable Base Rate Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during each Interest
Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period as in effect on the
beginning of such Interest Period plus (i) for the period commencing
on the Sixth Amendment Effective Date and ending on March 31, 1996,
a margin of 1.375% and (ii) at all times thereafter, the applicable
LIBO Rate Margin as in effect on the beginning of such Interest
Period.
3. Section 3.3.1 ("Commitment Fee") of the Existing Credit Agreement is
hereby amended in its entirety to reads as follows:
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Agent for the account of each Lender, for the period (including any
portion thereof when its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V)
commencing on the date on which such Lender's Commitment is
allocated by the Agent to, and accepted by, such Lender and
continuing through the final Revolving Loan Commitment Termination
Date, a commitment fee at the rate of the applicable Commitment Fee
Rate on such Lender's Percentage of the sum of the average daily
unused portion of the Revolving Loan Commitment Amount; provided,
however, that for the period commencing on the Sixth Amendment
Effective Date and ending on March 31, 1996, the applicable
Commitment Fee Rate shall be deemed to be equal to 0.375%. Such
commitment fees shall be payable by the Borrower in arrears on each
Quarterly Payment Date, commencing with the first such day following
the Closing Date and on the Revolving Loan Commitment Termination
Date. The making of Swing Line Loans by Scotiabank shall constitute
usage of the Revolving Loan Commitment with respect to Scotiabank
only and the commitment fees to be paid by the Borrower to the
Lenders shall be calculated and paid accordingly.
4. Section 3.3.3 ("Letter of Credit Face Amount Fee") of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
SECTION 3.3.3 Letter of Credit Face Amount Fee. The Borrower
agrees to pay to the Agent, for the account of the Lenders, a fee
for each Letter of Credit for the period from and including the date
of the issuance of such Letter of Credit to (but not including) the
date upon which such Letter of Credit expires, in an amount equal to
(a) in the case of each commercial Letter of Credit, 0.75% per annum
of the Stated Amount of such commercial Letter of Credit and (b) in
the case of each standby Letter of Credit, the applicable Letter of
Credit Rate multiplied by the Stated Amount of such standby Letter
of Credit. Such fees shall be payable by the Borrower in arrears on
each Quarterly Payment Date, and on the Revolving Loan Commitment
Termination Date for any period then ending for which such fee shall
not theretofore have been paid, commencing on the first such date
after the issuance of such Letter of Credit.
.5. Amendment to Article VI ("REPRESENTATIONS AND WARRANTIES"). Section 6.6
("No Material Adverse Change") of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
SECTION 6.6 No Material Adverse Change. Since December 31, 1992,
there has been no material adverse change in the financial
condition, operations, assets, business or properties of the
Borrower and its Subsidiaries, taken as a whole. Following the
Sixth Amendment Effective Date, there has been no material adverse
change in the financial condition, operations, assets, business or
properties of the Borrower and its Subsidiaries, taken as a whole,
since December 31, 1994.
.6. Amendments to Article VII ("COVENANTS"). Article VII of the Existing
Credit Agreement is hereby amended in accordance with Subparts 2.6.1 through
2.6.14.
1. Section 7.1.1 ("Financial Information, Reports, Notices") of the Existing
Credit Agreement is hereby amended as follows:
(a) clauses (a), (b) and (c) of such Section are hereby amended by
deleting the reference to "the Beltsville Divisions," appearing
therein;
(b) clause (h) of such Section is hereby amended by deleting the dollar
amount of "$200,000" appearing therein and inserting the amount of
"$500,000" in its place;
(c) clause (j) of such Section is hereby amended in its entirety to read
as follows:
(j) within fifteen Business Days following the last day of
each Fiscal Quarter, a Borrowing Base Certificate for the
preceding Fiscal Quarter that is calculated as of the last
day of such preceding Fiscal Quarter, together with
reports setting forth information with respect to
inventories and receivables for such Fiscal Quarter in
substantially the form of Exhibit B hereto;
(d) clause (k) of such Section is hereby amended in its entirety to
read as follows:
(k) within 45 days following the end of each Fiscal Quarter, a
list of all "other banks" described in clause (b) of
Section 4.1.2 of each Security Agreement that have not
delivered an agreement in the form of Exhibit A to such
Security Agreement, together with the average daily
balance in each account of the Borrower or any Subsidiary
maintained with such "other bank" during each month in the
previous Fiscal Quarter (provided, that no such list of
"other banks" shall be required to be delivered pursuant
to this clause (k) in the event that the aggregate amount
of all average daily balances in all such accounts is less
than $1,000,000);
2. Clause (b) of Section 7.1.6 ("Environmental Covenant") of the Existing
Credit Agreement is hereby amended by deleting the dollar amount of "$200,000"
appearing therein and inserting the amount of "$500,000" in its place.
4. Clause (d) of Section 7.2.2 ("Indebtedness") of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
(d) Indebtedness incurred in an aggregate principal amount not to
exceed $12,000,000 in any given Fiscal Year which is (i) in
respect of Capitalized Lease Liabilities incurred in connection
with a Permitted Business or (ii) incurred by the Borrower or
any of its Subsidiaries (A) for the purpose of financing the
construction of properties or fixed improvements or (B) in
respect of Purchase Money Obligations for property used in a
Permitted Business;
5. Section 7.2.2 ("Indebtedness") of the Existing Credit Agreement is hereby
further amended by (a) deleting the word "and" following the semi-colon
appearing at the end of clause (j) of such Section, (b) inserting the word
"and" following the semi-colon appearing at the end of clause (k) of such
Section and (c) inserting a new clause (l) to such Section immediately prior
to the proviso appearing at the end of such Section which shall read as
follows:
(l) Indebtedness of Permitted Foreign Subsidiaries to Persons other
than the Borrower in an aggregate amount not to exceed
$1,000,000;
7. Section 7.2.4 ("Financial Condition") of the Existing Credit Agreement is
hereby amended in its entirety to read as follows:
SECTION 7.2.4. Financial Condition. The Borrower will not permit:
(a) the Interest Coverage Ratio as of the last day of any
Fiscal Quarter during each Fiscal Year set forth below to
be less than the ratio set forth opposite such Fiscal
Year:
Interest
Fiscal Year Coverage Ratio
1995 2.75:1
1996 2.75:1
1997 3.00:1
1998 3.50:1
1999 3.75:1
2000 3.75:1;
(b) the ratio of Funded Debt (excluding Contingent Liabilities
relating to such Debt) to EBITDA, as of the last day of
any Fiscal Quarter during each Fiscal Year set forth below
to be greater than the ratio set forth opposite such
Fiscal Year:
Fiscal Year Ratio
1995 3.25:1
1996 3.00:1
1997 2.75:1
1998 2.50:1
1999 2.50:1
2000 2.50:1;
(c) the Fixed Charge Coverage Ratio as of the last day of any
Fiscal Quarter during each Fiscal Year set forth below to
be less than the ratio set forth opposite such Fiscal
Year:
Fixed Charge
Fiscal Year Coverage Ratio
1995 1.00:1
1996 1.00:1
1997 1.05:1
1998 1.05:1
1999 1.10:1
2000 1.10:1;
(d) the Current Ratio as of the last day of any Fiscal Quarter
to be less than 1.25:1; and
(e) its Net Worth at any time during any Fiscal Year set forth
below to be less than the amount set forth opposite such
Fiscal Year:
Fiscal Year Minimum Net Worth
1995 $115,000,000
1996 $120,000,000
1997 $140,000,000
1998 $150,000,000
1999 and each $150,000,000, plus
Fiscal Year thereafter an amount equal to 25%
of Net Income for such
Fiscal Year as of the
date of determination
thereof.
8. Clause (f) of Section 7.2.5 ("Investments") of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
(f) other Investments in an aggregate amount not to exceed the sum
of
(i) $25,000,000,
plus
(ii) the amount of Permitted Capital Expenditures permitted to
be made at such time (less the amount of Capital
Expenditures actually made during such applicable period)
pursuant to Section 7.2.7;
provided, that, in any event, at no time shall the aggregate amount of
Investments permitted pursuant to this clause (f) exceed $50,000,000; and
9. Clause (g) of Section 7.2.5 ("Investments") of the Existing Credit
Agreement is hereby amended by (a) deleting the dollar amount of "$5,000,000"
appearing therein and inserting the amount of "$10,000,000" in its place and
(b) deleting the parenthetical appearing at the end thereof which reads
"(calculated without giving any effect to reduction in such Investment by
reason of losses of such Subsidiaries)".
10. Clause (i) of Section 7.2.5 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
(i) no Investment otherwise permitted by clause (e) or (f) shall be
permitted to be made if, immediately before or after giving
effect thereto, any Default shall have occurred and be
continuing.
11. Clause (a) of Section 7.2.6 ("Restricted Payments, etc.") of the Existing
Credit Agreement is hereby amended by adding a proviso at the end thereof
which shall read as follows:
provided, that, notwithstanding the foregoing, the Borrower may declare
and pay dividends and distributions in an aggregate annual amount equal
to
(i) $1,500,000, if and only if (after giving effect to such
dividend or distribution) the Borrower's Net Worth equals
or exceeds $150,000,000;
(ii) $2,500,000, if and only if (after giving effect to such
dividend or distribution) the Borrower's Net Worth equals
or exceeds $160,000,000; or
(iii) $3,500,000, if and only if (after giving effect to such
dividend or distribution) the Borrower's Net Worth equals
or exceeds $170,000,000;
12. Clause (b)(i) of Section 7.2.6 ("Restricted Payments, etc.") of the
Existing Credit Agreement is hereby amended in its entirety to read as
follows:
(i) make any payment or prepayment on, or redemption of, or purchase of,
or defeasance of, the Senior Notes (whether in respect of principal,
interest or premium) except (A) payments of interest on the Senior
Notes at the rates set forth in the Senior Note Indenture and (B)
payments in respect of the outstanding principal amount of the
Senior Notes (including any premiums thereon or in respect thereof)
in an aggregate amount not to exceed $50,000,000; or
13. Section 7.2.7 ("Capital Expenditures, etc.") of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
SECTION 7.2.7. Capital Expenditures, etc. The Borrower will
not, and will not permit any of its Subsidiaries to, make or commit
to make Capital Expenditures, except (subject to the second proviso
below) Capital Expenditures in an aggregate amount in any Fiscal
Year which do not aggregate in excess of the amount set forth below
opposite such Fiscal Year ("Base Capital Expenditures"):
Base Capital
Fiscal Year Expenditures
1995 $25,000,000
1996 $40,000,000
1997 $30,000,000
1998 $40,000,000
1999 $30,000,000
2000 $40,000,000;
provided, that for Fiscal Year 1995 only, the amount of Base Capital
Expenditures permitted to be made pursuant to this Section shall be
exclusive of lease liabilities capitalized during such Fiscal Year in
respect of the facility located at Xxxxxxx, West Xxxxxxxx; provided,
further, that to the extent the amount of Base Capital Expenditures
permitted to be made in any Fiscal Year pursuant to this Section
(including the second proviso below) exceeds the aggregate amount of
Capital Expenditures actually made during such Fiscal Year, such excess
amount may be carried forward to (but only to) the next succeeding Fiscal
Year (any such amount to be certified by the Borrower to the Agent in the
Compliance Certificate delivered for the last Fiscal Quarter of such
Fiscal Year), and any such amount carried forward to a succeeding Fiscal
Year shall be deemed to be used only after the Borrower and its
Subsidiaries have fully used the amount of Base Capital Expenditures
permitted by this Section for such Fiscal Year without giving effect to
such carry-forward (any such Capital Expenditures being made as a result
of such carry-forward being referred to herein as "Carry Forward Capital
Expenditures"); provided, further, that, in any event, and
notwithstanding anything to the contrary set forth above, Capital
Expenditures (whether Base Capital Expenditures, Carry Forward Capital
Expenditures or Excepted Capital Expenditures) shall only be permitted to
be made to the extent (and only to the extent), and in such aggregate
amount (such aggregate amount being referred to herein as "Permitted
Capital Expenditures"), such that the Borrower would remain in compliance
with clause (c) of Section 7.2.4 after giving effect thereto.
14. Section 7.2.8 ("Rental Obligations") of the Existing Credit Agreement is
hereby amended in its entirety to read as follows:
SECTION 7.2.8. Rental Obligations. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into at any time any
arrangement which does not create a Capitalized Lease Liability and
which involves the leasing by the Borrower or any of its
Subsidiaries from any lessor of any real or personal property (or
any interest therein), except Other Rental Obligations which will
not require the payment of an aggregate amount of rentals by the
Borrower and its Subsidiaries in any Fiscal Year in excess of the
amount set forth below opposite such Fiscal Year (provided, that any
calculation made for purposes of this Section shall exclude any
amounts required to be expended for maintenance and repairs,
insurance, taxes, assessments, and other similar charges):
Aggregate Amount
Fiscal Year of Rentals
1996 $7,500,000
1997 $9,000,000
1998 $11,000,000
1999 $12,000,000
2000 $14,000,000.
15. Section 7.2.11 ("Asset Dispositions, etc.") of the Existing Credit
Agreement is hereby amended as follows:
(a) the word "or" appearing at the end of clause (c) of such Section is
hereby deleted;
(b) the period (".") appearing at the end of clause (d) of such Section
is hereby deleted, a semicolon (";") is inserted in its place and
the word "or" is inserted immediately following such semicolon; and
(c) a new clause (e) is added to such Section which shall read as
follows:
(e) in the case of any sale, transfer, lease, contribution or
conveyance by any Permitted Foreign Subsidiary to any
Persons that are not Affiliates of the Borrower or any of
its Subsidiaries, the fair market value of the assets so
sold, transferred, leased, contributed or conveyed does
not, at any time, in the aggregate exceed $5,000,000.
16. Section 7.2.16 ("No New Subsidiaries") of the Existing Credit Agreement
is hereby amended in its entirety to read as follows:
SECTION 7.2.16. No New Subsidiaries. The Borrower will not, and
will not permit any of its Subsidiaries to, form or otherwise
acquire (by way of Investments, merger or otherwise) any Subsidiary
following the Effective Date, unless
(a) in the case of any new Subsidiary incorporated, formed or
established under the laws of the U.S. or any subdivision
thereof, (i) the Borrower shall cause such new Subsidiary
to execute and deliver to the Agent, for the benefit of
each of the Lenders, the Issuer and the Agent, a guaranty
in respect of the Obligations, substantially in the form
of Exhibit K-1 hereto, and a security agreement
substantially in the form of Exhibit K-2 hereto, together
with such opinions, in form and substance and from counsel
satisfactory to the Agent, as the Agent may require, and
(ii) such new Subsidiary is prohibited (in such manner and
pursuant to such documentation and on such terms as may be
satisfactory to the Agent) from creating, incurring,
assuming, suffering to exist or otherwise becoming or
being liable in respect of any Indebtedness other than
Indebtedness in respect of the Loans, Letters of Credit
and other Obligations,
(b) in the case of any new Subsidiary which is a Permitted
Foreign Subsidiary, such formation or acquisition of such
Subsidiary is permitted hereunder and made in accordance
with the terms of this Agreement, including the provisions
of clause (g) of Section 7.2.5.
.7. Amendment to Article IX ("AGENT"). Article IX of the Existing Credit
Agreement is hereby amended by adding a new Section at the end of such Article
which shall read as follows:
SECTION 9.8. Co-Agents. None of the Lenders identified on the
signature pages of this Agreement as "Co-Agent" shall have any
right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified as
a "Co-Agent" shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on any of the Lenders so identified
in deciding to enter into this Agreement or in taking or not taking
action hereunder.
.8. Amendment to Article X ("MISCELLANEOUS PROVISIONS"). Article X of the
Existing Credit Agreement is hereby amended in accordance with Subparts 2.8.1
through 2.8.3.
1. Section 10.11.1 ("Assignments") of the Existing Credit Agreement is
hereby amended by inserting a new paragraph at the end of such Section which
shall read as follows:
In the event that Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc., Xxxxx'x Investors Service, Inc. or Xxxxxxxx'x
BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders
that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by InsuranceWatch Ratings Service))
shall, after the date that any Lender becomes a Lender, downgrade
the long-term certificate of deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the
case of an insurance company not rated by InsuranceWatch Ratings
Service), then the Issuer shall have the right, but not the
obligation, upon notice to such Lender, to replace (or to request
the Borrower to use its reasonable efforts to replace) such Lender
with an Assignee Lender (in accordance with and subject to the
restrictions contained in this Section), and such affected Lender
hereby agrees to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in this Section) all
of its interests, rights and obligations in respect of its
Commitments, Loans and other Obligations owing to it, together with
the obligations of such affected Lender hereunder, to such Assignee
Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any
governmental authority and (ii) such Assignee Lender shall pay to
such affected Lender in immediately available funds on the date of
such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other
amounts accrued for such Lender's account or owed to it hereunder.
2. Section 10.13 ("Forum Selection and Consent to Jurisdiction") of the
Existing Credit Agreement is hereby amended by inserting between the second
sentence (ending with the words "IN CONNECTION WITH SUCH LITIGATION") and the
third sentence (beginning with the words "THE BORROWER FURTHER IRREVOCABLY
CONSENTS") appearing therein the following:
THE BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION SYSTEMS (THE
"PROCESS AGENT"), WITH AN OFFICE, AS OF THE SIXTH AMENDMENT EFFECTIVE
DATE, AT 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, XXXXXX XXXXXX, AS ITS
AGENT TO RECEIVE, ON THE BORROWER'S BEHALF AND ON BEHALF OF THE
BORROWER'S PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND
ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING.
SUCH SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS
TO THE BORROWER IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE
ADDRESS, AND THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE
PROCESS AGENT TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE
METHOD OF SERVICE,
3. Article X ("Miscellaneous Provisions") of the Existing Credit Agreement
is hereby further amended by adding a new Section at the end of such Article
which shall read as follows:
SECTION 10.15. Judgment Currency. The Obligations of the Borrower
and each other Obligor in respect of any sum due to any Lender, any
Issuer or the Agent hereunder, under the Notes or under or in
respect of any other Loan Document shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than the
currency in which such sum was originally denominated (the "Original
Currency"), be discharged only to the extent that on the Business
Day following receipt by such Lender, such Issuer or the Agent of
any sum adjudged to be so due in the Judgment Currency, such Lender,
such Issuer or the Agent, in accordance with normal banking
procedures, purchases the Original Currency with the Judgment
Currency. If the amount of Original Currency so purchased is less
than the sum originally due to such Lender, such Issuer or the
Agent, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender, such
Issuer or the Agent, as the case may be, against such loss, and if
the amount of Original Currency so purchased exceeds the sum
originally due to such Lender, such Issuer or the Agent, as the case
may be, such Lender, such Issuer or the Agent, as the case may be,
agrees to remit such excess to the Borrower.
.9. Global Amendment to Existing Credit Agreement and Loan Documents. In
addition to the amendments to the Existing Credit Agreement specifically set
forth above, the Credit Agreement and each other Loan Document (including each
of the exhibits to the Existing Credit Agreement) are hereby amended mutatis
mutandis to the extent necessary to give effect to the identification of Bank
of America NT&SA as "Co-Agent".
.10. Additional Conforming Amendments to Exhibits to Credit Agreement.
1. Exhibits C and E to the Existing Credit Agreement (Form of Borrowing
Request and Form of Continuation/Conversion Notice, respectively) are each
hereby amended by inserting the bracketed word two ("[two]") between the
options "[one]" and "[three]" appearing in the second paragraph of each such
Exhibit.
2. Exhibit F to the Existing Credit Agreement (Form of Borrowing Base
Certificate) is hereby amended in its entirety to read as set forth in Annex
IV hereto.
3. Exhibit G to the Existing Credit Agreement (Form of Compliance
Certificate) is hereby amended in its entirety to read as set forth in Annex V
hereto.
III
CONDITIONS TO EFFECTIVENESS
.1. Sixth Amendment Effective Date. This Amendment (and the amendments and
modifications contained herein) shall become effective, and shall thereafter
be referred to as the "Sixth Amendment", on the date (the "Sixth Amendment
Effective Date") when all of the conditions set forth in this Subpart 3.1 have
been satisfied.
1. Execution of Counterparts. The Agent shall have received counterparts of
this Amendment, duly executed and delivered on behalf of the Borrower, the
Agent and each of the Lenders.
2. Resolutions, etc. The Agent shall have received in form and substance
satisfactory to the Agent,
(a) a certificate, dated the Sixth Amendment Effective Date, of the
Borrower's Secretary or Assistant Secretary as to
(i) resolutions of the Borrower's Board of Directors then in
full force and effect authorizing the execution, delivery
and performance of this Amendment, the replacement Notes
and each other Loan Document executed or to be executed by
it in connection herewith; and
(ii) the incumbency and signatures of those officers of the
Borrower authorized to act with respect to this Amendment,
the replacement Notes and each other Loan Document
executed or to be executed by it in connection herewith,
upon which certificate each Lender may conclusively rely with respect to
the incumbency and signature of such Authorized Officers until it shall
have received a further certificate of the Secretary or Assistant
Secretary of the Borrower cancelling or amending such prior certificate;
(b) a certificate, dated the Sixth Amendment Effective Date, of the
Secretary or Assistant Secretary of each other Obligor as to
(i) resolutions of such Obligor's Board of Directors then in
full force and effect authorizing the execution, delivery
and performance of the Affirmation and Consent and each
other Loan Document executed or to be executed by it in
connection herewith; and
(ii) the incumbency and signatures of those officers of such
Obligor authorized to act with respect to the Affirmation
and Consent and each other Loan Document executed or to be
executed by it in connection herewith,
upon which certificate each Lender may conclusively rely with respect to
the incumbency and signature of such Authorized Officers until it shall
have received a further certificate of the Secretary or Assistant
Secretary of such Obligor cancelling or amending such prior certificate;
and
(c) such other documents (certified if requested) or certificates
as the Agent may reasonably request with respect to this
Amendment, the replacement Notes, the Affirmation and Consent,
any other Loan Document or any Organic Document or approval.
3. Delivery of Replacement Notes. The Agent shall have received, for the
account of each Lender, such Lender's replacement Notes, substantially in the
forms of Annex I and Annex II hereto, as applicable, each duly executed and
delivered by an Authorized Officer of the Borrower and in a maximum principal
amount equal to such Lender's Percentage (as of the Sixth Amendment Effective
Date) of the applicable Commitment Amount. Each replacement Revolving Note
and replacement Swing Line Note issued on the Sixth Amendment Effective Date
shall be issued in substitution and exchange for, and not in satisfaction or
payment of, the existing Revolving Note and the existing Swing Line Note
executed and delivered by the Borrower pursuant to the Existing Credit
Agreement, respectively, of each Lender, as applicable, and the Indebtedness
(together with the obligation to pay accrued interest thereon) originally
owing to such Lender and to be evidenced by such Lender's replacement Notes
delivered pursuant to this Amendment shall be (and the Borrower hereby
acknowledges and agrees that such Indebtedness is) a continuing Indebtedness,
and nothing herein contained shall be construed to release or terminate any
Lien or security interest given to secure such Indebtedness.
4. Affirmation and Consent. The Agent shall have received a duly executed
copy of the Affirmation and Consent to this Amendment, substantially in the
form of Annex III hereto and duly executed and delivered by each Obligor.
5. Process Agent Letter. The Agent shall have received with counterparts
for each Lender a letter from CT Corporation Systems, in form and substance
satisfactory to the Agent, dated the Sixth Amendment Effective Date, whereby
CT Corporation Systems acknowledges and accepts its appointment by the
Borrower under the Credit Agreement (after giving effect to the effectiveness
of this Amendment), as agent for service of process.
6. No Material Adverse Change. Since December 31, 1994, there has been no
material adverse change in the financial condition, operations, assets,
business or properties of the Borrower and its Subsidiaries, taken as a whole.
7. Closing Fees, Expenses, etc. The Agent shall have received for its own
account, or for the account of each Lender, as the case may be, all fees,
costs and expenses due and payable as of the Sixth Amendment Effective Date.
8. Opinions of Counsel. The Agent shall have received such opinions, each
dated the Sixth Amendment Effective Date, in form and substance and from
counsel satisfactory to the Agent, as the Agent may require.
9. Legal Details, etc. All documents executed or submitted pursuant hereto
shall be satisfactory in form and substance to the Agent and its counsel. The
Agent and its counsel shall have received all information and such counterpart
originals or such certified or other copies or such materials as the Agent or
its counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the Agent
and its counsel.
IV
MISCELLANEOUS; REPRESENTATIONS
.1. Cross-References. References in this Amendment to any Part or Subpart
are, unless otherwise specified or otherwise required by the context, to such
Part or Subpart of this Amendment.
.2. Loan Document Pursuant to Existing Credit Agreement. This Amendment is a
Loan Document executed pursuant to the Existing Credit Agreement and shall be
construed, administered and applied in accordance with all of the terms and
provisions of the Existing Credit Agreement (and, following the Sixth
Amendment Effective Date, the Credit Agreement).
.3. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
.4. Full Force and Effect; Limited Amendment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants, conditions
and other provisions of the Existing Credit Agreement and the other Loan
Documents shall remain unamended and unwaived and shall continue to be, and
shall remain, in full force and effect in accordance with their respective
terms. The amendments set forth herein shall be limited precisely as provided
for herein to the provisions expressly amended herein and shall not be deemed
to be an amendment to, waiver of, consent to or modification of any other term
or provision of the Existing Credit Agreement, any other Loan Document
referred to therein or herein or of any transaction or further or future
action on the part of the Borrower which would require the consent of the
Lenders under the Existing Credit Agreement or any of the Loan Documents.
.5. Payment of Fees and Expenses. The Borrower hereby agrees to pay and
reimburse the Agent for all of its reasonable fees and expenses incurred in
connection with the negotiation, preparation, execution and delivery of this
Amendment and related documents, including all reasonable fees and
disbursements of counsel to the Agent.
.6. Counterparts. This Amendment may be executed by the parties hereto in
several counterparts, each of which when executed and delivered shall be
deemed to be an original and all of which shall constitute together but one
and the same agreement.
.7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
.8. Compliance with Warranties, No Default, etc. Both before and after
giving effect to the occurrence of the Sixth Amendment Effective Date and the
amendments to the Existing Credit Agreement set forth above, the Borrower
represents and warrants to the Lenders that the following statements are true
and correct:
(a) the representations and warranties set forth in Article VI
(excluding, however, those contained in Section 6.7) of the
Existing Credit Agreement and the representations and
warranties set forth in Article III of each Security Agreement
and in Article III of the Subsidiary Guaranty and in each other
Loan Document are true and correct in all material respects
with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations
and warranties were true and correct as of such earlier date);
(b) except as disclosed by the Borrower to the Agent and the
Lenders pursuant to Section 6.7 of the Existing Credit
Agreement,
(i) no labor controversy, litigation, arbitration or
governmental investigation or proceeding shall be
pending or, to the knowledge of the Borrower,
threatened against the Borrower or any of its
Subsidiaries which could result in a Material Adverse
Effect (including with respect to this Amendment or
any other Loan Document delivered in connection
herewith); and
(ii) no development has occurred in any labor controversy,
litigation, arbitration or governmental investigation
or proceeding disclosed pursuant to Section 6.7 of
the Existing Credit Agreement which could result in a
Material Adverse Effect (including with respect to
this Amendment or any other Loan Document delivered
in connection herewith); and
(c) no Default shall have then occurred and be continuing.
.9. Additional Representations. In order to induce the Lenders and the
Agents to enter into this Amendment, the Borrower hereby additionally
represents and warrants as follows:
(a) the execution and delivery of this Amendment and the
performance by the Borrower and each of its Subsidiaries of
each of their respective obligations hereunder, under each
other Loan Document, under the Existing Credit Agreement as
amended hereby and, upon the occurrence of the Sixth Amendment
Effective Date, under the Credit Agreement are within such
Person's corporate powers, have been duly authorized by all
necessary corporate action, have received all necessary
governmental approvals (if any shall be required), and do not
(i) contravene such Person's Organic Documents, (ii) contravene
any contractual restriction, law or governmental regulation or
court decree or order binding on or affecting such Person or
(iii) result in, or require the creation or imposition of, any
Lien on any of such Person's properties (other than pursuant to
a Loan Document); and
(b) this Amendment, each other Loan Document, the Existing Credit
Agreement as amended hereby and, upon the occurrence of the
Sixth Amendment Effective Date, the Credit Agreement are the
legal, valid and binding obligations of the Borrower and each
of its Subsidiaries, as applicable, enforceable in accordance
with their respective terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and by
principles of equity).
.10. Adjusted Percentages. Each of the Lenders party hereto hereby
acknowledges and agrees that upon the occurrence of the Sixth Amendment
Effective Date, such Lender's Percentage for purposes of the Credit Agreement
shall be as set forth opposite its signature hereto, as such percentage may be
amended from time to time hereafter pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered pursuant to
Section 10.11 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
TRIANGLE PACIFIC CORP.
By: /s/ Xxxxxx Xxxxx
Title: Executive Vice President,
Treasurer and CFO
Percentages
44.44444444% THE BANK OF NOVA SCOTIA,
Individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxxxxx
Title: Assistant Agent
33.33333333% BANK OF AMERICA NT&SA, Individually
and as Co-Agent
By: /s/ Xxxx X. Xxxxxxxxx
Title: Vice President
22.22222222% COMERICA BANK - TEXAS
By: /s/ Xxxx Xxxxxx
Title: Vice President
(..continued)
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