THIRD AMENDMENT AND CONSENT
THIRD AMENDMENT AND CONSENT, dated as of March 31, 1999 (this "Third
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Amendment"), to the Credit and Guarantee Agreement, dated as of June 26, 1997
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(the "Credit Agreement"), among Xxxx Industries, Inc., a Delaware corporation
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(the "Company"), each Foreign Subsidiary Borrower (as defined in the Credit
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Agreement) (together with the Company, the "Borrowers"), Xxxxxx Xxxx, N. A., as
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co-agent, the several banks and other financial institutions from time to time
parties thereto (the "Lenders") and The Chase Manhattan Bank, as administrative
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agent for the Lenders (in such capacity, the "Administrative Agent"), as amended
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by a First Amendment, dated as of August 17, 1998, among the Borrowers, Mellon
Bank, N.A., the Lenders and the Administrative Agent, and a Second Amendment,
dated as of December 31, 1998, among the Borrowers, Mellon Bank, N.A., the
Lenders and the Administrative Agent.
WITNESSETH:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrowers;
WHEREAS, the Company intends to engage in a disposition of assets pursuant
to which certain assets currently held by a Subsidiary of the Company, Xxxx-Xxxx
GmbH & Co. ("Xxxx-Xxxx"), will be sold (the "Asset Disposition");
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WHEREAS, the Company intends to enter into a sale and leaseback transaction
(the "Sale/Leaseback Transaction") for certain machinery and equipment in the
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amount of approximately $25,000,000;
WHEREAS, the Company intends to acquire additional Capital Stock of
Xxxx-Xxxx via the conversion into equity of Indebtedness of Xxxx-Xxxx to the
Company (the "Xxxx Debt Conversion");
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WHEREAS, the Company will record a charge against Consolidated Net Income
of approximately $9,729,059 in the consolidated statement of income of the
Company and its Subsidiaries for the fiscal quarter ending April 3, 1999 (the
"Restructuring Charge"); and
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WHEREAS, the Borrowers have requested, and, upon this Third Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Third Amendment,
that the Asset Disposition, the Sale/Leaseback Transaction and the Xxxx Debt
Conversion be consented to and that certain provisions of the Credit Agreement
be waived in connection with the Restructuring Charge;
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NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used herein
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shall have the meanings given to them in the Credit Agreement.
II. Amendments to Credit Agreement.
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1. Amendments to Subsection 1.1; Definition of "Applicable Margin". The
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definition of "Applicable Margin" contained in Subsection 1.1 of the Credit
Agreement is hereby amended as follows:
(a) by deleting "and" from the end of subsection (b) of such definition.
(b) by inserting "except as set forth in subsection (d) below," at the
beginning of subsection (c) of such definition.
(c) by deleting the period from the end of subsection (c) of such
definition and substituting in lieu thereof "; and".
(d) by adding the following subsection (d) to such definition:
(d) for each day from and after the Adjustment Date occurring
immediately after the date on which financial statements for the fiscal
period ending April 3, 1999 are delivered pursuant to subsection 9.1(b)
until the Adjustment Date occurring after the delivery of financial
statements for the fiscal period ending January 1, 2000 pursuant to
subsection 9.1(a), the Applicable Margin shall be 2.00% per annum.
2. Amendments to Subsection 1.1; Definition of "Commitment Fee Rate".
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The definition of "Commitment Fee Rate" contained in Subsection 1.1 of the
Credit Agreement is hereby amended as follows:
(a) by deleting "and" from the end of subsection (b) of such definition.
(b) by inserting "except as set forth in subsection (d) below," at the
beginning of subsection (c) of such definition.
(c) by deleting the period from the end of subsection (c) of such
definition and substituting in lieu thereof "; and".
(d) by adding the following subsection (d) to such definition:
(d) for each day from and after the Adjustment Date occurring
immediately after the date on which financial statements for the fiscal
period ending April
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3, 1999 are delivered pursuant to subsection 9.1(b) until the
Adjustment Date occurring after the delivery of financial statements
for the fiscal period ending January 1, 2000 pursuant to subsection
9.1(a), the Commitment Fee Rate shall be .40% per annum.
III. Consents.
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1. Asset Disposition. Each of the undersigned Lenders hereby (a) consents
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to the disposition of assets by Xxxx-Xxxx to the Company, or any wholly owned
Subsidiary of the Company, (b) consents to the disposition by Xxxx-Xxxx to
Persons other than the Company or wholly owned Subsidiaries of the Company of
assets with an aggregate fair market value not exceeding the U.S. Dollar
Equivalent of 30,000,000 Deutsche Marks, provided that the aggregate fair market
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value of assets disposed of pursuant to this clause (b) which are not used in
connection with the Xxxx AKG and Xxxx RKG facilities of Xxxx-Xxxx shall not
exceed the U.S. Dollar Equivalent of 3,000,000 Deutsche Marks, and (c) agrees
that dispositions pursuant to the foregoing clauses (a) and (b) shall not
violate subsection 10.8 of the Credit Agreement and shall not constitute usage
of the permitted basket therein.
2. Sale/Leaseback Transaction. Each of the undersigned Lenders hereby (a)
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consents to the consummation by the Company of the Sale/Leaseback Transaction,
on terms and conditions acceptable to the Administrative Agent in its sole
discretion, provided that the Sale/Leaseback Transaction is consummated prior to
December 31, 1999, and (b) agrees that the consummation of such Sale/Leaseback
Transaction shall not violate subsection 10.14 of the Credit Agreement.
3. Xxxx Debt Conversion. Each of the undersigned Lenders hereby (a)
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consents to the Xxxx Debt Conversion, and (b) agrees that the consummation of
such Xxxx Debt Conversion shall not violate subsection 10.11 of the Credit
Agreement.
4. Restructuring Charge. Each of the undersigned Lenders hereby consents
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and agrees that, for the purposes of determining compliance with subsections
10.1 and 10.2 of the Credit Agreement, Consolidated Net Income for the fiscal
quarter ending on April 3, 1999 shall be calculated without regard to the
Restructuring Charge.
IV. Conditions to Effectiveness. This Third Amendment shall become
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effective on the date (the "Amendment Effective Date") on which (a) the Company,
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the Foreign Subsidiary Borrowers and the Lenders shall have executed and
delivered to the Administrative Agent this Third Amendment, (b) the
Administrative Agent shall have received, for the account of each Lender, a fee
in the amount of .0625% of the aggregate amount of the Revolving Credit
Commitments of the Lenders, (c) the Administrative Agent shall have received a
certified copy of resolutions of the Board of Directors of the Company
authorizing this Third Amendment, and
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(d) the Administrative Agent shall have received a satisfactory written
legal opinion of counsel to the Company covering such matters with respect to
this Third Amendment as the Administrative Agent shall reasonably request.
IV. Representations and Warranties. The representations and warranties
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made by the Borrowers in the Loan Documents are true and correct in all material
respects on and as of the Amendment Effective Date, before and after giving
effect to the effectiveness of this Third Amendment, as if made on and as of the
Amendment Effective Date.
V. Payment of Expenses. The Company agrees to pay or reimburse the
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Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Third Amendment, any other documents prepared
in connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
VI. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Credit Agreement and the
Notes are and shall remain in full force and effect.
VII. Governing Law; Counterparts. (a) This Third Amendment and the rights
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and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
(b) This Third Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Third Amendment signed by all the
parties shall be lodged with the Company and the Administrative Agent. This
Third Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
XXXX INDUSTRIES, INC.
By: /s/
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Title:
XXXX-XXXX GMBH & CO., as
a Foreign Subsidiary Borrower
By: /s/
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Title:
BUSHVIOTECHNIK GESELLSCHAFT FUR
OBERFLACHENTECHNIK MBH,
as a Foreign Subsidiary Borrower
By: /s/
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Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
and a Lender
By: /s/
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Title:
MELLON BANK, N.A., as
Co Agent and a Lender
By: /s/
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Title:
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FIRST UNION NATIONAL BANK
By: /s/
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Title:
SUNTRUST BANK, ATLANTA
By: /s/
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Title:
By: /s/
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Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/
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Title:
THE BANK OF NOVA SCOTIA
By: /s/
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Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/
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Title:
By: /s/
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Title:
