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EXHIBIT 10.9
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of March 28, 2001 among
XXXXXX SERVICES CORPORATION, a Delaware corporation (the "Borrower"), CANADIAN
IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders (the
"Administrative Agent"), and the lenders from time to time parties to the
Secured PIK/Term Credit Agreement referred to below (the "Lenders"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Secured PIK/Term Credit Agreement
referred to below.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to a Credit Agreement, dated as of March 31, 2000 among the Borrower,
the Administrative Agent and the Lenders (as amended, modified or supplemented
through, but not including, the date hereof, the "Secured PIK/Term Credit
Agreement");
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement; and
WHEREAS, subject to the terms and conditions of this Amendment, the
Lenders are willing to grant such amendments.
NOW, THEREFORE, it is agreed:
1. Section 5.08 of the Credit Agreement is hereby amended by inserting
the following sentence at the end thereof:
"Notwithstanding the foregoing provisions of this Section 5.08, the
Borrower may keep Inventory at locations other than those identified on Schedule
VI, so long as such Inventory is kept at such locations pursuant to a
consignment agreement permitted under Section 6.09 hereof."
2. Section 6.09 of the Credit Agreement is hereby amended by inserting
the following proviso immediately before the period appearing at the end of said
section:
"provided, however, that the Borrower or any of the other Obligors (as
consignor) may enter into agreements for the consignment of Inventory so long as
(i) the aggregate value of the Inventory held by any one consignee does not
exceed $5,000,000 at any time and (ii) the aggregate value of all Inventory
subject to such consignment agreements does not exceed $20,000,000 at any time."
3 Section 6.17(a) of the Credit Agreement is hereby amended by deleting
the chart contained therein in its entirety and inserting the following chart in
lieu thereof:
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Fiscal Quarter Ending Minimum EBITDA
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For the 12 months ended March 31, 2001 $48,500,000
For the 12 months ended June 30, 2001 $57,550,000
For the 12 months ended September 30, 2001 $67,100,000
For the 12 months ended December 31, 2001 $75,400,000
For the 12 months ended March 31, 2002 $80,100,000
For the 12 months ended June 30, 2002 $85,200,000
For the 12 months ended September 30, 2002 $86,000,000
For the 12 months ended December 31, 2002, and for the $86,400,000"
12 months ended as of the end of each Fiscal Quarter
thereafter
4. Section 6.17(b) of the Credit Agreement is hereby amended by
deleting the chart contained therein in its entirety and inserting the following
chart in lieu thereof:
Fiscal Quarter Ending Minimum Interest Coverage Ratio
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for the 12 months ended 1.49:1.00
March 31, 2001
for the 12 months ended 1.74:1.00
June 30, 2001
for the 12 months ended 1.88:1.00
September 30, 2001
for the 12 months ended 1.96:1.00
December 31, 2001
for the 12 months ended 2.09:1.00
March 31, 2002
for the 12 months ended 2.22:1.00
June 30, 2002
for the 12 months ended 2.24:1.00
September 30, 2002
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Fiscal Quarter Ending Minimum Interest Coverage Ratio
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for the 12 months ended December 2.25:1.00"
31, 2002, and for the 12 months
ended as of the end of each
Fiscal Quarter thereafter
5. The definition of the term "Permitted Investments" contained in
Section 8 of the Credit Agreement is hereby amended by (x) deleting the word
"and" immediately preceding subclause (h) and inserting a comma in lieu thereof
and (y) inserting the following text immediately before the period appearing at
the end of said definition:
"and (i) so long as no Default or Event of Default then exists
or would result therefrom, the Borrower and any of the Obligors may
make Investments not otherwise permitted by immediately preceding
clauses (a) through (h) of this definition of Permitted Investments in
an aggregate amount not to exceed $1,000,000 in any twelve month
period."
6. Section 10.13 of the Credit Agreement is hereby amended by inserting
the following subclause (c):
"(c) The Lenders are aware of the provisions of the Exchange
Act and particularly Rule 10b-5 promulgated by the SEC thereunder with
regard to material non-public information. Lenders acknowledge that
some information received from Borrower will be material non-public
information."
7. The Borrower hereby represents and warrants that both before and
after giving effect to this Amendment (x) no Default or Event of Default exists
on the Second Amendment Effective Date (as defined below) and (y) all of the
representations and warranties contained in the Secured PIK/Term Credit
Agreement or the other Credit Documents shall be true and correct in all
material respects on and before the Second Amendment Effective Date with the
same effect as though such representations and warranties had been made on and
as of such date (it being understood that any representation or warranty made as
of a specific date shall be true and correct in all material respects as of such
specific date).
8. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Secured
PIK/Term Credit Agreement or any other Credit Document. All capitalized terms
not defined herein shall have the meaning given to them in the Secured PIK/Term
Credit Agreement.
9. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
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10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
11. This Amendment shall become effective on the date (the "Second
Amendment Effective Date") when each of the Borrower and the Required Lenders
shall have signed a copy hereof (whether the same or different copies) and, in
each case, shall have delivered (including by way of telecopier) the same to the
Administrative Agent at the Notice Office.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
XXXXXX SERVICES CORPORATION
By:_______________________________
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE,
As Administrative Agent and
Individually
By:_______________________________
Title:
6
ABN AMRO BANK CANADA
By:_______________________________
Title:
By:_______________________________
Title:
7
AMERICAN REAL ESTATE HOLDINGS L.P.
By:_______________________________
Title:
8
ACCORD FINANCIAL CORP.
By:_______________________________
Title:
9
THE BANK OF EAST ASIA (CANADA)
By:_______________________________
Title:
10
BEAR, XXXXXXX & CO. INC.
By:_______________________________
Title:
00
XXXXX XXXX XX XXXXX N.A.
By:_______________________________
Title:
00
XXX XXXXX XXXXXXXXX BANK
By:_______________________________
Title:
00
XXX XXXXX XXXXXXXXX XXXX XX
XXXXXX
By:_______________________________
Title:
14
CITIBANK, N.A.
By:_______________________________
Title:
15
CLARICA LIFE INSURANCE COMPANY
(f/k/a Mutual Life Assurance Company
of Canada)
By:_______________________________
Title:
16
COMERICA BANK
By:_______________________________
Title:
17
CREDIT SUISSE FIRST BOSTON
By:_______________________________
Title:
18
MIZUHO BANK (CANADA)
By:_______________________________
Title:
00
XXX-XXXX XXXXXX XXXX, XXX.,
Xxx Xxxx Branch
By:_______________________________
Title:
00
XXXXXXXX XXXX XXXXXX
By:_______________________________
Title:
21
XXXXX XXXXX MANAGEMENT
By:_______________________________
Title:
22
FERNWOOD ASSOCIATES L.P.
By:_______________________________
Title:
23
FOOTHILL CAPITAL CORPORATION
By:_______________________________
Title:
24
HIGH RIVER LIMITED PARTNERSHIP
By:_______________________________
Title:
25
KEY BANK, N.A.
By:_______________________________
Title:
26
XXXXXXXXX CORP.
By:_______________________________
Title:
27
XXXXXXXXX LLC
By:_______________________________
Title:
28
MUTUAL SHARES FUND, A SERIES OF
FRANKLIN MUTUAL SERIES FUND,
INC.
By:_______________________________
Title:
29
BNP PARIBAS
By:_______________________________
Title:
By:_______________________________
Title:
00
XXXXX XXXX XX XXXXXXXX PLC
By:_______________________________
Title:
00
XXXXXX XXXX (XXXXXX)
By:_______________________________
Title:
32
SOCIETE GENERALE (CANADA)
By:_______________________________
Title:
33
TORONTO DOMINION (NEW YORK),
INC.
By:_______________________________
Title:
34
WACHOVIA BANK, N.A.
By:_______________________________
Title:
