EXHIBIT 10.1
EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of May 6, 2004 (this "First Amendment"),
to the Credit Agreement, dated as of June 11, 2003 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Xxxxxx
Holding Co. (DE), Inc. (the "Company"), the several lenders from time to time
parties to the Credit Agreement (the "Lenders"), Citigroup Global Markets Inc.,
as syndication agent (in such capacity, the "Syndication Agent"), Citigroup
Global Markets Inc. and X.X. Xxxxxx Securities, Inc., as joint lead arrangers
and joint bookrunners (in such capacity, the "Arrangers"), and JPMorgan Chase
Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent" and, together with the Syndication Agent, the "Agents").
WITNESSETH:
WHEREAS, the Company, the Lenders, the Arrangers and the Agents are
parties to the Credit Agreement;
WHEREAS, the Company has requested that the Lenders agree to amend
certain provisions of the Credit Agreement, and the Lenders are agreeable to
such request but only upon the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for other valuable consideration the receipt of
which is hereby acknowledged, the Company, the Lenders, and the Agents agree as
follows:
SECTION 1. AMENDMENTS.
1.1 Amendments to Section 1.1. (a) Section 1.1 of the Credit
Agreement is hereby amended by deleting therefrom the definition of "Applicable
Margin" it its entirety and inserting in lieu thereof the following new
definition:
"Applicable Margin": for Term Loans, Revolving Credit Loans
and Swing Line Loans of the Types set forth below, the rate
per annum set forth under the relevant column heading opposite
such Loans below:
Alternate Base Rate Eurodollar
Loans Loans
----- -----
Term Loans 2.50% 3.50%
Revolving Credit 2.50% 3.50%
Loans and Swing
Line Loans
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(b) Section 1.1 of the Credit Agreement is hereby further
amended by deleting clause (vi)(II) of the definition of
"Consolidated EBITDA" in its entirety and inserting in lieu thereof
the following:
"(II) additional nonrecurring losses and charges up to a
maximum aggregate amount of $17,000,000 in fiscal years
2004 and 2005 combined and $5,000,000 in each fiscal
year of the Company thereafter, shall be excluded."
1.2 Amendment to Section 3.2. Section 3.2 of the Credit Agreement
is hereby amended by deleting the percentage "0.50%" and inserting in lieu
thereof the percentage "0.75%".
1.3 Amendments to Section 8.1. (a) Section 8.1 of the Credit
Agreement is hereby amended by inserting the following new subsection (c):
"(c) as soon as available, but in any event not later than 25
days after the end of each month of each fiscal year of the Company (other than
the months of March, June, September and December), the unaudited consolidated
balance sheet of the Company and its Subsidiaries as at the end of such month
and the related unaudited consolidated statements of income and cash flows of
the Company and its Subsidiaries for such monthly period and the portion of the
fiscal year of the Company through such date, setting forth in each case in
comparative form the figures for the corresponding month in, and year to date
portion of, the previous year, and the figures for such periods in the budget
prepared by the Company and furnished by the Administrative Agent, certified by
the chief financial officer, controller or treasurer of the Company as being
fairly stated in all material respects;".
(b) Section 8.1 of the Credit Agreement is hereby further
amended by changing subsection "(c)" of said Section to subsection
"(d)".
(c) Section 8.1 of the Credit Agreement is hereby further
amended by changing subsection "(d)" of said Section to subsection
"(e)".
1.4 Amendments to Section 9.7. (a) Section 9.7 of the Credit
Agreement is hereby amended by deleting in the table contained therein the rows
corresponding to the base amounts for calendar years 2004 and 2005 and inserting
in lieu thereof the following new rows:
Year or Period Base Amount
-------------- -----------
Calendar Year 2004 $15,000,000
Calendar Year 2005 $15,000,000
(b) Section 9.7 of the Credit Agreement is hereby further
amended by inserting the following in clause (i) of said Section
after the words "set forth above" and before the comma:
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"(except for calendar years 2004 and 2005)".
1.5 Amendment to Section 9.9. Section 9.9 of the Credit Agreement
is hereby amended by deleting in the table contained therein the rows
corresponding to the fiscal years and fiscal quarters set forth below and
inserting in lieu thereof the following new rows:
FISCAL YEAR FISCAL QUARTER RATIO
2004 Second 5.00
Third 6.00
Fourth 6.75
2005 First 7.00
Second 6.25
Third 5.75
Fourth 5.25
1.6 Amendment to Section 9.10. Section 9.10 of the Credit
Agreement is hereby amended by deleting in the table contained therein the rows
corresponding to the fiscal years and fiscal quarters set forth below and
inserting in lieu thereof the following new rows:
FISCAL YEAR FISCAL QUARTER RATIO
2004 Second 3.00
Third 2.50
Fourth 2.00
2005 First 2.00
Second 2.25
Third 2.50
Fourth 2.50
1.7 Amendment to Section 9. Section 9 of the Credit Agreement is
hereby amended by adding the following new Section 9.18:
"Receivables Facility. Fail to cause to be maintained in
effect at all time through and including May 28, 2006, through arranging
extensions and replacements as necessary, the Receivables Facility in an amount
of not less than $50,000,000."
1.8 Amendments to Schedule II. Schedule II is deleted in its
entirety.
SECTION 2. CONDITIONS PRECEDENT.
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2.1 Effective Date. This First Amendment shall become effective as
of the date first set forth above (the "First Amendment Effective Date")
following the date on which all of the following conditions have been satisfied
or waived:
(a) Execution and Delivery. The Administrative Agent shall have
received counterparts of this First Amendment duly executed by (i) the
Company and the Guarantors and (ii) the Required Lenders;
(b) Fees and Expenses. The Administrative Agent shall have
received (i) for the account of each Lender entitled thereto, an amendment
fee in an amount equal to 0.25% on the sum of (x) such Lender's Revolving
Credit Commitment Percentage of the Revolving Credit Commitments plus (y)
such Lender's Term Loan Commitment Percentage of the Term Loan
Commitments, in each case calculated as of the First Amendment Effective
Date, but such fees shall be payable only (A) to each Lender that has
delivered (including by way of facsimile or electronic mail) its executed
signature page to this First Amendment to the attention of Xxxxxx Xxxxxx,
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxx., Xxx Xxxx, Xxx Xxxx
00000, telecopy number 000-000-0000, email xxxxxxx@xxxxxx.xxx at or prior
to 12:00 p.m. (Eastern) on May 6, 2004, and (B) only if the Company and
the Subsidiary Guarantors execute this First Amendment and (ii) all fees
and accrued expenses of the Administrative Agent required to be paid by
the Company, including without limitation, the reasonable fees,
disbursements and other charges of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP;
2.2 Change in Pricing. The amendments set forth in Sections 1.1
and 1.2 hereof shall be effective for the period commencing on the First
Amendment Effective Date, and interest and commitment fees payable in respect of
any period prior thereto, whether due or paid prior thereto or thereafter, shall
be computed based on the Credit Agreement as in effect prior to this First
Amendment.
SECTION 3. GENERAL.
3.1 Representations and Warranties. In order to induce the Agents
and the Lenders to enter into this First Amendment, the Company hereby
represents and warrants to the Agents, the Arrangers and the Lenders that:
(a) the audited consolidated balance sheet of Holdings and its
consolidated Subsidiaries as of December 31, 2003 and the related
consolidated statements of operations and of cash flows for the fiscal
year ended on such date, audited by PricewaterhouseCoopers LLP, copies of
which have heretofore been furnished to each Lender, present fairly in
accordance with GAAP the consolidated financial condition of Holdings and
its consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for the
fiscal year then ended. Since December 31, 2003, there has been no
material adverse change on (i) the business, operations, property or
financial condition of the Company and its Subsidiaries taken as a whole,
(ii) the ability of the Company and its Subsidiaries to perform their
obligations under the Credit Documents and with respect to the other
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financings contemplated hereby or (iii) the validity or enforceability of
any material Credit Document or the rights and remedies of the Lenders and
the Agents thereunder;
(b) after giving effect to this First Amendment, the representations
and warranties of the Company contained in the Credit Agreement, the
Security Documents and the Notes are true and correct in all material
respects on and as of the First Amendment Effective Date (after giving
effect hereto) as if made on and as of the First Amendment Effective Date
(except where such representations and warranties expressly relate to an
earlier date in which case such representations and warranties were true
and correct in all material respects as of such earlier date); provided
that (x) all references to the "Credit Agreement" in any Security Document
or Note shall be and are deemed to mean the Credit Agreement as amended
hereby and (y) Section 6.2 of the Credit Agreement shall be deemed to read
as set forth in the immediately preceding paragraph (a) for all purposes
of this First Amendment and the Credit Agreement on and after the First
Amendment Effective Date; and
(c) each of the Company and the Guarantors has all necessary
corporate power and authority to execute and deliver this First Amendment;
the execution and delivery by each such party of this First Amendment have
been duly authorized by all necessary corporate action on its part; and
this First Amendment has been duly executed and delivered by each such
party and constitute each such party's legal, valid and binding
obligation, enforceable in accordance with its terms.
3.2 Notice of Effectiveness. The Administrative Agent shall
promptly advise the Lenders and the Company that this First Amendment has become
effective and of the First Amendment Effective Date.
3.3 APPLICABLE LAW AND JURISDICTION. THIS FIRST AMENDMENT HAS BEEN
EXECUTED AND DELIVERED IN NEW YORK, NEW YORK, AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
3.4 Counterparts. This First Amendment may be executed by the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3.5 Consent of Guarantors. Each of the Guarantors hereby consents
to the modifications to the Credit Agreement contemplated hereby.
3.6 Successors and Assigns. This First Amendment shall be binding
upon and inure to the benefit of the Company and each of their respective
successors and assigns, and upon the Agents and the Lenders and their successors
and assigns. The execution and delivery of this First Amendment by any Lender
prior to the First Amendment Effective Date shall be binding upon its successors
and assigns and shall be effective as to any loans or commitments assigned to it
after such execution and delivery.
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3.7 Continuing Effect. Except as expressly amended hereby, the
Credit Agreement as amended by this First Amendment shall continue to be and
shall remain in full force and effect in accordance with its terms. This First
Amendment shall not constitute an amendment or waiver of any provision of the
Credit Agreement not expressly referred to herein and shall not be construed as
an amendment, waiver or consent to any action on the part of the Company that
would require an amendment, waiver or consent of the Administrative Agent or the
Lenders except as expressly stated herein. Any reference to the "Credit
Agreement" in any Security Document or Note or any related documents shall be
deemed to be a reference to the Credit Agreement as amended by this First
Amendment.
3.8 Headings. Section headings used in this First Amendment are
for convenience of reference only, are not part of this First Amendment and are
not to affect the constructions of, or to be taken into consideration in
interpreting, this First Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
XXXXXX HOLDING CO. (DE), INC.
By: /s/ Xxxxx X. Friend
------------------------------------
Title: Xxxxx X. Friend
VP, CFO & Treasurer
XXXXXX HOLDING CO. (PA), INC. as
Guarantor
By: /s/ Xxxxx X. Friend
------------------------------------
Title: Xxxxx X. Friend
VP, CFO & Treasurer
XXXXXX CO., as Guarantor
By: /s/ Xxxxx X. Friend
------------------------------------
Title: Xxxxx X. Friend
VP, CFO & Treasurer
WIP TECHNOLOGIES, INC., as Guarantor
By: /s/ Xxxxx X. Friend
------------------------------------
Title: Xxxxx X. Friend
VP, CFO & Treasurer
JPMORGAN CHASE BANK, as Administrative
Agent and as a Lender
By: /s/ Xxxx X. Xxxxxx
_______________________________
Title: Managing Director
[REQUIRED LENDER]
By: /s/
_______________________________
Title:
