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EXHIBIT 10(e)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of June 29, 1998
(this "Amendment"), is among XXXXXXX COMPANY, a Michigan corporation (the
"Company"), the lenders set forth on the signature pages hereof (collectively,
the "Lenders") and NBD BANK, as agent for the Lenders (in such capacity, the
"Agent").
RECITALS
A. The Company, the Lenders and the Agent are parties to a Credit
Agreement, dated as of June 30, 1996 (the "Credit Agreement").
B. The Company, the Lenders and the Agent desire to amend the Credit
Agreement as set forth herein.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Upon fulfillment of the conditions set forth in Article
III hereof, the Credit Agreement shall be amended as follows:
1.1 Section 6.2(b) is restated as follows:
"(b) Interest Coverage Ratio. Permit or suffer the Consolidated
Interest Coverage Ratio of the Company and its Subsidiaries, as
calculated for the four fiscal quarters of the Company then
ending, to be less than (i) 0.25 to 1.0 as of the last day of the
fiscal quarter of the Company and its Subsidiaries ending
September 30, 1998, (ii) 1.0 to 1.0 as of the last day of either
fiscal quarter of the Company and its Subsidiaries ending December
31, 1998 or March 31, 1999, or (iii) 3.0 to 1.0 as of the last day
of each fiscal quarter of the Company and its Subsidiaries ending
thereafter; provided, however, for purposes of this Section 6.2(b)
only and not for any other purpose, the one time non-recurring
pre-tax charge of $122,529,000 to be taken in the fiscal quarter
ending June 30, 1998 shall be disregarded in calculating the
Interest Coverage Ratio."
1.2 Section 6.2(g) is amended by adding the following clause (C)
after the first clause (B) contained in such section:
"and (C) the sale, in addition to the sales allowed pursuant to
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the foregoing clauses (A) and (B), of the personal care business
of the Company, which business consists of the Company's
operations and assets currently in California, Missouri and
Tennessee, including the operations and assets of PTN in Tennessee
(and it is acknowledged and agreed that, notwithstanding anything
herein to the contrary, that in connection with any such sale, if
no Default exists or would be caused thereby, PTN shall be
released from its Guaranty and shall no longer be a Guarantor
hereunder)".
1.3 Section 6.2(g) is further amended by (i) deleting the reference in
clause (D) contained in the proviso of such section to "25%" and substituting
"40%" in place thereof and (ii) by restating clause (E) contained in the proviso
of such section as follows: "(E) the Company is in compliance with all financial
and other covenants contained in this Agreement on a pro forma basis acceptable
to the Agent both before and after giving effect to such Acquisition."
ARTICLE II. REPRESENTATIONS. The Company represents and warrants to the Agent
and the Lenders that:
2.1 The execution, delivery and performance of this Amendment are
within its powers, have been duly authorized and are not in contravention of any
law or regulation, of the terms of its Articles of Incorporation or By-laws, or
any undertaking to which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of the
Company enforceable against it in accordance with the terms hereof and thereof.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article V of the Credit Agreement
are true on and as of the date hereof with the same force and effect as if made
on and as of the date hereof.
2.4 No Event of Default or Default exists or has occurred and is
continuing on the date hereof.
2.5 The Consent and Agreement hereto executed by each Guarantor has
been duly authorized by each Guarantor and is not in contravention of any law or
regulation, of the terms of their Articles of Incorporation or By-laws or any
undertaking to which any of them is a party or to which they may be bound, and
is their legal, valid and binding obligation, enforceable against each Guarantor
in accordance with the terms thereof.
2.6 Other than the Guarantors executing the Consent and Agreement
hereto to which it is a party, there are no other Material Subsidiaries of the
Company.
FIRST AMENDMENT TO CREDIT AGREEMENT Page 2
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ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until each of the following has been satisfied:
3.1 Copies of resolutions adopted by the Boards of Directors of the
Company and each Guarantor, certified by an officer of the Company and each
Guarantor, as the case may be, as being true and correct and in full force and
effect without amendment as of the date hereof, authorizing the Company and each
Guarantor to enter into this Amendment, and the Consent and Agreement hereto,
shall have been delivered to the Agent and the Lenders.
3.2 The Company shall have paid to the Agent, for the pro rata benefit
of the Lenders, an amendment fee of $50,000.
3.3 This Amendment shall be signed by the Company and the Majority
Lenders, and each Guarantor shall have executed the Consent and Agreement at the
end of this Amendment.
ARTICLE IV. MISCELLANEOUS.
4.1 References in the Credit Agreement, any Guaranty or in any note,
certificate, instrument or other document to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended hereby and as further
amended from time to time.
4.2 The Company agrees to pay and to save the Agent harmless for the
payment of all costs and expenses arising in connection with this Amendment,
including the reasonable fees of counsel to the Agent in connection with
preparing this Amendment and the related documents.
4.3 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the Notes and all other documents and agreements executed by
the Company in connection with the Credit Agreement in favor of the Agent or the
Lenders are ratified and confirmed and shall remain in full force and effect
and that it has no set off, counterclaim, defense or other claim or dispute with
respect to any of the foregoing. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
4.4 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the day and year first above
written.
XXXXXXX COMPANY
By: /s/ XXXXX X. XXXXXXXX
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Its: TREASURER
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NBD BANK, as Agent and as a Lender
By: /s/ XXXXXXX X. GRODHUE
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Its: VICE PRESIDENT
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COMERICA BANK-DETROIT
By: /s/ XXXXXX X. XXXXXXXXXXX
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Its: VICE PRESIDENT
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SANWA BANK, LIMITED
By: /s/ XXXXXXX X. XXXX
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Its: VICE PRESIDENT
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By: /s/ XXXXXXX XXXXXX
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Its: VICE PRESIDENT
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OLD KENT BANK AND
TRUST COMPANY
By: /s/ XXXXXXX X. XXXXX
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Its: VICE PRESIDENT
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CONSENT AND AGREEMENT
As of the date and year first above written, each of the undersigned
hereby:
(a) fully consents to the terms and provisions of the above Amendment
and the consummation of the transactions contemplated hereby and agrees to all
terms and provisions of the above Amendment applicable to it or any of the
Documents (as defined below);
(b) agrees that each Guaranty and all other agreements executed by any
of the undersigned in connection with the Credit Agreement or otherwise in favor
of the Agent or the Lenders (collectively, the "Documents") are hereby ratified
and confirmed and shall remain in full force and effect, and each of the
undersigned acknowledges that it has no setoff, counterclaim, defense or other
claim or dispute with respect to any Document; and
(c) acknowledges that its consent and agreement hereto is a condition
to the Agent's and the Lenders' obligation under this Amendment and it is in its
interest and to its financial benefit to execute this consent and agreement.
X. XXXXXXX COMPANY
By: /s/ XXXXX X. XXXXXXXX
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Its: TREASURER
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XXXXXXX COMPANY
OF SOUTH CAROLINA, INC.
By: /s/XXXXX X. XXXXXXXX
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Its: TREASURER
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XXXXXXX COMPANY OF TENNESSEE, INC.
By: /s/XXXXX X. XXXXXXXX
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Its: TREASURER
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FIRST AMENDMENT TO CREDIT AGREEMENT Page 6
