AMENDMENT NO. 5 TO MULTICURRENCY REVOLVING CREDIT AGREEMENT
Exhibit
10.1
AMENDMENT NO.
5
AMENDMENT
NO. 5 TO MULTICURRENCY REVOLVING CREDIT AGREEMENT (this "Amendment Agreement")
dated as of November 16, 2009, by and between Xxxxxx Corporation, a
Massachusetts corporation having its principal place of business at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxx US"), and RBS Citizens,
National Association (the "Bank"), a national banking association with offices
at 00 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000,
successor in interest to Citizens Bank of
Connecticut, amending a certain Multicurrency Revolving Credit Agreement dated
as of November 13, 2006 as amended by Amendment No. 1 to Multicurrency Revolving
Credit Agreement dated as of November 10, 2007, Amendment No. 2 to Multicurrency
Revolving Credit Agreement dated as of June 17, 2008, Amendment No. 3 to
Multicurrency Revolving Credit Agreement dated as of October 31, 2008 and
Amendment No. 4 to Multicurrency Revolving Credit Agreement dated as of November
11, 2008 (as amended from time to time, the "Credit
Agreement").
WITNESSETH
WHEREAS, pursuant to the terms
of the Credit Agreement, the Bank has made certain credit facilities available
to Xxxxxx US; and
WHEREAS, Xxxxxx US has
requested that the Bank amend certain terms of the Credit Agreement in certain
respects; and
WHEREAS, the Bank is willing
to amend certain terms of the Credit Agreement in accordance with the terms
hereof.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
§1. Definitions.
Capitalized terms used herein without definition that are defined in the Credit
Agreement shall have the same meanings herein as therein.
§2. Ratification of Existing
Agreements. All of Xxxxxx US's obligations and liabilities to the Bank as
evidenced by or otherwise arising under the Credit Agreement, the Notes and the
other Loan Documents, except as otherwise modified in this Amendment Agreement
upon the terms set forth herein, are, by Xxxxxx US's execution of this Amendment
Agreement, ratified and confirmed in all respects. In addition, by Xxxxxx US's
execution of this Amendment Agreement, Xxxxxx US represents and warrants that no
counterclaim, right of set-off, right of recoupment, or defense of any kind
exists or is outstanding with respect to such obligations and liabilities.
Xxxxxx US acknowledges and agrees that this Amendment Agreement shall be
included in the definition of Loan Documents under the Credit
Agreement.
§3. Representations and
Warranties. Xxxxxx US hereby represents and warrants to the Bank as
follows:
(a) All
of the representations and warranties made by Xxxxxx US in Sections 6.1, 6.7,
6.10, 6.11 and 6.16 of the Credit Agreement are true and correct on the date
hereof as if made on and as of the date hereof.
(b) No
Event of Default under and as defined in the Credit Agreement or any of the Loan
Documents has occurred and is continuing on the date hereof.
§4. Conditions Precedent.
The effectiveness of the amendments contemplated hereby shall be subject to the
satisfaction on or before the date hereof of each of the following conditions
precedent:
(a) Representations and
Warranties. All of the representations and warranties made by Xxxxxx US
herein, whether directly or incorporated by reference, shall be true and correct
on the date hereof.
(b) Performance; No Event of
Default. Xxxxxx US shall have performed and complied in all material
respects with all terms and conditions herein required to be performed or
complied with by it prior to or at the time hereof, and there shall exist no
Event of Default or condition which, with either or both the giving of notice or
the lapse of time, would result in an Event of Default upon the execution and
delivery of this Amendment Agreement.
(c) Delivery. Xxxxxx US
shall have executed and delivered this Amendment Agreement and all documents,
instruments, and agreements reasonably required by the Bank in connection with
any of the foregoing (collectively, together with the Amendment Agreement, the
"Documents").
(d) Corporate Action. The
Bank shall have received a copy of the resolutions, in form and substance
reasonably satisfactory to Bank, of the Board of Directors (or other governing
body) of Xxxxxx US authorizing the execution, delivery and performance of the
Documents, as appropriate.
(e) Proceedings and
Documents. All proceedings in connection with the transactions
contemplated by this Amendment Agreement and the Documents shall be satisfactory
in substance and form to the Bank, and the Bank shall have received all
information and such counterpart originals or certified or other copies of such
documents as it may request.
(f) Good Standing
Certificates. The Bank shall have received a good standing certificate
for Xxxxxx US dated not more than thirty (30) days prior to the date hereof,
issued by the appropriate governmental authority of Xxxxxx US jurisdiction of
organization.
(g) Incumbency
Certificates. The Bank shall have received a certificate of the Secretary
or an Assistant Secretary (or comparable officer) of Xxxxxx US, in
form and substance reasonably satisfactory to the Bank, as to the incumbency and
signature of each officer executing any of the Documents, together with evidence
of the incumbency of such Secretary, Assistant Secretary or comparable officer;
the Bank acknowledges that a certificate indicating no changes in incumbency
since October 31, 2008 for such entity will be satisfactory to the
Bank.
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§5. Amendment to the Credit
Agreement.
(a) The
definition of “Adjustment Date” in Section 1.01 of the Credit Agreement is
hereby deleted in its entirety and is of no further force or
effect.
(b) The
definition of “Applicable Margin” in Section 1.01 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
Applicable
Margin. Commencing on the Amendment No. 5 Effective Date, the
Applicable Margin for Prime Rate Loans shall be 0% and for LIBOR Rate Loans
shall be 2.00%.
(c) The
definition of “EBITDA” in Section 1.01 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
EBITDA. The
Consolidated Net Income (or Deficit) of Xxxxxx US and its Subsidiaries for any
fiscal period, plus, to the extent
deducted in the calculation of Consolidated Net Income (or Deficit) and without
duplication, (a) (i)depreciation, amortization and other similar non-cash
charges for such period, (ii) non-cash stock compensation expense for such
period and (iii) non-cash fixed asset impairment charges in the amount of
$13,400,000 for fiscal periods ending September 30, 2009 through June 30, 2010
and in the amount of $3,000,000 for fiscal periods ending on and after December
31, 2010, (b) income tax expense for such period, and (c) Consolidated Total
Interest Expense paid or accrued during such period, excluding the net income
(or deficit) of any Person (other than a Subsidiary) in which Xxxxxx US or a
Subsidiary has an ownership interest, except to the extent that any such income
has been actually received by Xxxxx US or such Subsidiary in the form of cash
dividends or similar cash Distributions, in each case as determined in
accordance with generally accepted accounting principles.
(d) The
definition of “Rate Adjustment Period” in Section 1.01 of the Credit Agreement
is hereby deleted in its entirety and is of no further force or
effect.
(e) The
definition of “Revolving Credit A Commitment Amount” in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
Revolving Credit A
Commitment Amount: The amount of the Bank’s Commitment under
Revolving Credit Facility A, as in effect from time to time. On the
Amendment No. 5 Effective Date, the Revolving Credit A Commitment Amount is
Fifty Million Dollars ($50,000,000).
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(f) The
definition of “Revolving Credit B Commitment Amount” in Section 1.01 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
Revolving Credit B
Commitment Amount: The amount of the Bank’s Commitment under
Revolving Credit Facility B, as in effect from time to time. On the
Amendment No. 5 Effective Date, the Revolving Credit B Commitment Amount is zero
($0).
(g) The
definition of “Total Commitment” in Section 1.01 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
Total
Commitment. The sum of the Revolving Credit A Commitment and
the Revolving Credit B Commitment, as in effect from time to time. On
the Amendment No. 5 Effective Date, the Total Commitment is Fifty Million
Dollars ($50,000,000).
(h) The
definition of “Unused Line Fee Rate” in Section 1.01 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
Unused Line Fee
Rate. Commencing as of the Amendment No. 5 Effective Date, a
per annum rate equal to 30 basis points.
(i) The
definition of “Citibank Credit Facility” is hereby inserted in
Section 1.01 of the Credit Agreement as follows:
Citibank Credit
Facility. A credit facility between Borrower and Citibank, N.A. (or an
affiliate thereof) providing for loans and advances to Borrower in an amount
which does not exceed the principal amount of $10,000,000 at any one time
outstanding.
(j) The
definition of “Amendment No. 5 Effective Date” is hereby inserted in
Section 1.01 of the Credit Agreement as follows:
Amendment No. 5 Effective
Date. November 16, 2009
(k) The
following is hereby inserted as a new clause (i) in Section 8.1 of the Credit
Agreement:
(i) Indebtedness
incurred under the Citibank Credit Facility.
(l) The word
“and” appearing after the semi-colon in clause (k) of Section 8.2 of the Credit
Agreement is hereby deleted from such clause and the period appearing at the end
of clause (l) of such Section 8.2 is hereby deleted and “; and” is hereby
inserted in lieu thereof.
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(m) The
following is hereby inserted as a new clause (m) in Section 8.2 of the Credit
Agreement:
(m) pledges
and liens on Borrower’s auction rate securities currently maintained in an
account with Citibank, N.A. (or an affiliate thereof) to secure the Citibank
Credit Facility.
(n) The word
“or” appearing after the semi-colon in clause (m) of Section 12.1 of the Credit
Agreement is hereby deleted from such clause and is hereby inserted after the
semi-colon appearing at the end of clause (n) of such Section 12.1.
(o) The
following is hereby inserted as a new clause (o) in Section 12.1 of the Credit
Agreement:
(o) a
default or event of default shall occur under the Citibank Credit
Facility.
§6. No Waiver by Bank.
Except as otherwise expressly provided for herein, nothing in this Amendment
Agreement shall extend to or affect in any way the Xxxxxx Entities' obligations
or the Bank's rights and remedies arising under the Credit Agreement or the
other Loan Documents, and the Bank shall not be deemed to have waived any of its
remedies with respect to any Event of Default or event or condition which, with
notice or the lapse of time, or both, would become an Event of Default and which
upon Xxxxxx US's execution and delivery of this Amendment Agreement might
otherwise exist or which might hereafter occur.
§7. Expenses. Xxxxxx US
agrees to pay to the Bank upon demand an amount equal to the reasonable fees,
expenses and disbursements of the Bank (including reasonable attorneys’ fees and
costs) incurred in connection with the preparation of this Amendment Agreement
and any related Loan Documents pursuant to Section 15.7 of the Credit
Agreement.
§8. Miscellaneous.
(a) This
Amendment Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts as an instrument under
seal.
(b) Except as
otherwise expressly provided by this Amendment Agreement, all of the respective
terms, conditions and provisions of the Credit Agreement shall remain the same.
It is declared and agreed by each of the parties hereto that the Credit
Agreement, as amended hereby, shall continue in full force and effect, and that
this Amendment Agreement and the Credit Agreement be read and construed as one
instrument, and all references in the Loan Documents to the Credit Agreement
shall hereafter refer to the Credit Agreement, as amended by this Amendment
Agreement.
(c) This
Amendment Agreement may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Each counterpart may consist of a number of copies hereof, each signed by less
than all, but together signed by all, of the parties hereto. A facsimile or
other electronic transmission of an executed counterpart shall have the same
effect as the original executed counterpart.
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IN WITNESS
WHEREOF, each of the parties hereto have caused this Agreement to be executed in
its name and behalf by its duly authorized officer as of the date first written
above.
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RBS
CITIZENS, NATIONAL ASSOCIATION
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By:
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/s/ Xxxx Xxxxxxx | |
| Name: Xxxx Xxxxxxx | |||
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Title: Senior
Vice President
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XXXXXX
CORPORATION
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By:
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/s/ Xxxxxx X. Xxxxxxxx | |
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Name:
Xxxxxx X. Xxxxxxxx
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| Title: V.P. Finance, CFO | |||
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