EXHIBIT 10.6
FOURTH AMENDMENT TO
CREDIT AGREEMENT
This Fourth Amendment to Credit Agreement (the "Fourth Amendment") is
dated as of October 28, 2004 and is made by and among XXXXX CORPORATION, a
Delaware corporation (the "Borrower"), the Guarantors now or hereafter party
thereto, the BANKS under the Credit Agreement (as hereafter defined) and PNC
BANK, NATIONAL ASSOCIATION, in its capacity as agent for the Banks under the
Credit Agreement (hereinafter referred to in such capacity as the "Agent").
RECITALS:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent entered
into that certain Credit Agreement dated as of December 20, 2001, as amended by
that Amendment No. 1 to Credit Agreement dated as of July 8, 2002, by that
Amendment No. 2 to Credit Agreement dated as of July 25, 2003, and by that Third
Amendment to Credit Agreement dated as of September 1, 2004 (as amended to date,
the "Credit Agreement");
WHEREAS, the parties to the Credit Agreement desire to amend the Credit
Agreement as set forth herein; and
WHEREAS, capitalized terms used herein and not otherwise defined herein
shall have the meanings given to them under the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, the parties hereto agree as follows:
AMENDMENTS TO THE CREDIT AGREEMENT.
1. Monthly Borrowing Base Certificates, Schedules of Inventory and
Payables (Section 7.3.4)
Section 7.3.4 (Monthly Borrowing Base Certificates, Schedules of
Inventory and Payables) is hereby amended and restated to read as set forth
below.
"7.3.4 Monthly Borrowing Base Certificates, Schedules Inventory
and Payables.
As soon as available but in any event by the fifteenth (15th)
Business Day of each fiscal month of the Borrower, a Borrowing Base Certificate
as of the last day of the immediately preceding fiscal month in the form of
Exhibit 7.3.4 hereto appropriately completed, executed and delivered by an
Authorized Officer.
Within five (5) Business Days of Borrower's receipt of Agent's
reasonable request therefor, a detailed sales register, a cash receipts journal
and a purchase journal showing sales, receipts and purchases during the
immediately preceding month, together with a monthly Schedule of Inventory and
Schedule of Payables as of the end of any such month."
2. Exhibit 7.3.4 - Borrowing Base Certificate.
Exhibit 7.3.4 to the Credit Agreement is hereby amended and restated
in the form attached to this Fourth Amendment.
REPRESENTATIONS AND WARRANTIES.
A. Warranties Under the Credit Agreement. The representations and
warranties of the Loan Parties contained in the Credit Agreement, after giving
effect to the amendments thereto on the date hereof, are true and correct on and
as of the date hereof with the same force and effect as though made by the Loan
Parties on such date, except to the extent that any such representation or
warranty expressly relates solely to a previous date. The Loan Parties are in
compliance with all terms, conditions, provisions, and covenants contained in
the Credit Agreement.
B. Power and Authority; Validity and Binding Effect; No Conflict.
Each Loan Party has full power to enter into, execute, deliver and carry out
this Fourth Amendment, and such actions have been duly authorized by all
necessary proceedings on its part. This Fourth Amendment has been duly and
validly executed and delivered by each of the Loan Parties. This Fourth
Amendment constitutes the legal, valid and binding obligation of each of the
Loan Parties which is enforceable against such Loan Party in accordance with its
terms. Neither the execution and delivery of this Fourth Amendment, nor the
consummation of the transactions herein contemplated will conflict with,
constitute a default under or result in any breach of (i) the terms and
conditions of any organizational documents of any Loan Party or (ii) any Law or
any material agreement or instrument or other obligation to which any Loan Party
or any of its Subsidiaries is a party or by which any Loan Party or any of its
Subsidiaries is bound, or result in the creation or enforcement of any Lien upon
any property of any Loan Party or any of its Subsidiaries other than as set
forth herein.
C. Consents and Approvals; No Event of Default. No consent,
approval, exemption, order or authorization of any Person other than the parties
hereto is required by any Law or any agreement in connection with the execution,
delivery and carrying out of this Fourth Amendment. No event has occurred and is
continuing and no condition exists or will exist after giving effect to this
Fourth Amendment which constitutes an Event of Default or Potential Default.
Conditions to Effectiveness.
This Fourth Amendment shall be effective on the date (the "Effective
Date") on which each of the following conditions have been satisfied. The
Effective Date shall be the same as the date of this Fourth Amendment first
written above:
1. EXECUTION.
The Loan Parties, the Banks and the Agent shall have executed
this Fourth Amendment.
2. Fees and Expenses.
The borrower shall have paid to the agent all fees and
expenses due and payable, including reasonable fees of the
agent's counsel.
REFERENCES TO CREDIT AGREEMENT, LOAN DOCUMENTS.
Any reference to the Credit Agreement or other Loan Documents in any
document, instrument, or agreement shall hereafter mean and include the Credit
Agreement or such Loan Document, including such schedules and exhibits, as
amended hereby. In the event of irreconcilable inconsistency between the terms
or provisions of this Fourth Amendment and the terms or provisions of the Credit
Agreement or such Loan Document, including such schedules and exhibits, the
terms and provisions of this Fourth Amendment shall control.
FORCE AND EFFECT.
Each Loan Party a signatory hereto reconfirms, restates, and
ratifies the Credit Agreement, and all other documents executed in connection
therewith except to the extent any such documents are expressly modified by this
Fourth Amendment and each Loan Party confirms that all such documents have
remained in full force and effect since the date of their execution.
GOVERNING LAW.
This Fourth Amendment shall be deemed to be a contract under the
laws of the Commonwealth of Pennsylvania and for all purposes shall be governed
by and construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles.
COUNTERPARTS.
This Fourth Amendment may be signed in any number of counterparts
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
The undersigned have executed this Fourth Amendment as of the day and year
first above written.
BORROWER: XXXXX CORPORATION
By: ____________________________________
Title:
GUARANTORS: XXXXX HOLDINGS, INC.
By: ____________________________________
Title:
XXXXX PAYROLL, LLC
By: ____________________________________
Title:
XXXXX INTERNATIONAL HOLDINGS, INC.
By:_____________________________________
Title:
XXXXX CREDIT SERVICES CORPORATION
By:_____________________________________
Title:
ALLEGHENY TRAIL CORPORATION
By:_____________________________________
Title:
BANKS:
PNC BANK, NATIONAL ASSOCIATION, individually and
as Agent
By: ____________________________________
Title:
LASALLE BANK NATIONAL ASSOCIATION
By:_____________________________________
Title:
HSBC BANK USA, NATIONAL ASSOCIATION, successor by
merger to HSBC Bank USA
By:_____________________________________
Title:
BORROWING BASE CERTIFICATE
DATED AS OF: ____________________
In accordance with the terms of Credit Agreement dated as of December 20, 2001
(the "Credit Agreement"), among Xxxxx Corporation (the "Borrower"), the
Guarantors party thereto ("the Guarantors"), the various banks party thereto
(the "Banks"), and PNC Bank, National Association, Agent (the "Agent"), the
Borrower hereby makes the following certification. Capitalized terms used but
not otherwise defined herein shall have the meanings given to such terms in the
Credit Agreement.
INVENTORY
1. Inventory of the Borrower as of the
date of this Certificate. Inventory
means all of the "inventory" (as
such term is defined in the UCC) of
the Borrower, including, but not
limited to, all merchandise, raw
materials, parts, supplies,
work-in-process and finished goods
intended for sale. $________
2. Less Ineligible Inventory (without duplication of
deductions)
(a) Inventory which is not finished goods, raw
materials other than supplies, or
work-in-process; and including any goods which
have been shipped, delivered, sold by, purchased
by or provided to one of the Loan Parties on a
xxxx and hold, consignment sale, guaranteed
sale, or sale or return basis, or any other
similar basis or understanding other than an
absolute sale;
$________
(b) Inventory which is not new, or of good and
merchantable quality, or which represents more
than a twelve (12) month supply of such finished
goods or raw materials;
$________
(c) Inventory which is not located on, or in transit
to and so identified on the relevant Schedule of
Inventory, premises listed on Schedule A to the
Security Agreement;
$________
(d) For all periods after sixty (60) days after the
Closing Date, Inventory which is located at
locations leased to any Loan Party for which the
Agent has not received an executed Landlord's
Waiver in favor of the Agent substantially in $________
the form of Exhibit 7.1(p) to the Credit
Agreement;
(e) Inventory which is stored with a bailee,
warehouseman, consignee, or similar party unless
the Agent has given its prior written consent
and the applicable Loan Party has caused such
bailee, warehouseman, consignee, or similar
party to issue and deliver to the Agent, in form
and substance acceptable to the Agent, warehouse
receipts or similar type documentation therefor
in the Agent's name;
$________
(f) Inventory which is not subject to the Agent's
and the Banks' Prior Security Interest, or is
not subject to any other Lien; $________
(g) Inventory which was manufactured in violation of
any federal minimum wage or overtime laws,
including, without limitation, the Fair Labor
Standards Act, 29 U.S.C. ss.215(a)(1); $________
(h) Inventory which is, or should be, disqualified
for any other reason generally accepted in the
commercial finance business. $________
3. Total Ineligible Inventory (sum of items 2(a) - (g)) $________
4. Total Qualified Inventory (Inventory less Ineligible
Inventory) $________
x.50
5. 50% of Qualified Inventory $________
6. The lesser of $10,000,000 or 50% of Book Value of
Qualifying Fixed Assets (as of the most recently ended $________
fiscal quarter)
SUMMARY $________
7. Lesser of Borrowing Base (item 5 plus item 6) or
$40,000,000 $________
8. Revolving Credit Loans Outstanding $________
9. Swing Loans Outstanding $________
10. Letters of Credit Outstanding $________
11. Sum of items 8 through 10 above $________
12. Excess (deficiency) (item 7 minus item 11) $________
CERTIFIED BY: _________________________________
TITLE: ________________________________________
