EXHIBIT 10.1(b)(vi)
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AMENDMENT NO. 6
TO CREDIT AGREEMENT
AMENDMENT NO. 6 (this "Amendment No. 6"), dated as of September 30, 2000,
under the Credit Agreement dated as of June 30, 1997, by and among XXXXX
CORPORATION, a Delaware corporation (the "Company"), the Signatory Lenders party
thereto (the "Lenders") and THE BANK OF NEW YORK, as Agent (the "Agent"), as
amended by Amendment No. 1 to Credit Agreement, dated as of August 18, 1999,
Amendment No. 2 to Credit Agreement, dated as of December 20, 1999, Amendment
No. 3 to Credit Agreement, dated as of March 31, 2000, Amendment No. 4 to Credit
Agreement, dated as of June 30, 2000 and Amendment No. 5 to Credit Agreement,
dated as of July 31, 2000 (the "Credit Agreement").
RECITALS
I. Capitalized terms used herein which are not herein defined shall have
the respective meanings ascribed thereto in the Credit Agreement.
II. The Company has requested that the Agent and the Lenders amend the
Credit Agreement in certain respects and the Agent and the Lenders have advised
the Company that they are willing to agree to the Company's request, subject to
the terms and conditions set forth herein.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT
1.1 Additional Definitions. Section 1.1 of the Credit Agreement is
hereby amended by adding the following defined terms in the appropriate
alphabetical order:
"Amendment No. 6": Amendment No. 6 to Credit Agreement, dated as of
September 30, 2000, among the Company, the Lenders party thereto and
the Agent.
"Amendment No. 6 Effective Date": the date on which the conditions set
forth in Section 2.1 of Amendment No. 6 are satisfied.
1.2 Projections. The definition of "Projections" set forth in Section
1.1 of the Credit Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Projections": the projections of the Company dated September 27, 2000,
for the period through December 31, 2000, delivered to the Agent and the
Lenders and annexed to Amendment No. 6 as Schedule A.
1.3 Shareholders' Equity. Section 7.11 of the Credit Agreement is hereby
deleted in its entirety and the following substituted therefor:
7.11 Shareholder's Equity.
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Maintain at all times for each period set forth below its Shareholders'
Equity in an amount not less than the amount set forth opposite such
period:
Period Minimum Shareholders' Equity
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Effective Date to and including $440,000,000
December 31, 1999
January 1, 2000 to and including $400,000,000
March 31, 2000
April 1, 2000 to and including $375,000,000
June 30, 2000
July 1, 2000 to and including $375,000,000
October 2, 2000
October 3, 2000 to and including
November 30, 2000 $375,000,000
December 1, 2000 and thereafter $440,000,000
1.4 Leverage Ratio. Section 8.5 of the Credit Agreement is hereby deleted
in its entirety and the following substituted therefor:
8.5 Leverage Ratio.
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Permit at any time during each period set forth below its ratio of (i)
the sum of (a) Consolidated Indebtedness plus (b) Consolidated Contingent
Obligations to (ii) the sum of (x) Consolidated Indebtedness plus (y)
Consolidated Contingent Obligations plus (z) the Company's Shareholders'
Equity to be greater than the ratio set forth opposite such period:
Period Leverage Ratio
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Effective Date to and including 0.650:1.0
March 31, 2000
April 1, 2000 to and including 0.675:1.0
June 30, 2000
July 1, 2000 to and including 0.675:1.0
October 2, 2000
October 3, 2000 to and including
November 30, 2000 0.675:1.0
December 1, 2000 and thereafter 0.625:1.0
1.5 Fixed Charge Coverage Ratio. Section 8.9 of the Credit Agreement is
hereby deleted in its entirety and the following substituted therefor:
8.9 Fixed Charge Coverage Ratio.
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Permit the Fixed Charge Coverage Ratio to be less than:
(i) 1.25 to 1.00 for the four fiscal quarters (taken as a whole)
ending on December 31, 1999,
(ii) 1.10 to 1.00 for the four fiscal quarters (taken as a whole)
ending on Xxxxx 00, 0000,
(xxx) 0.70 to 1.00 for the four fiscal quarters (taken as a whole)
ending on June 30, 2000, and
(iv) 0.70 to 1.00 for the four fiscal quarters (taken as a whole)
ending on September 30, 2000, and
(v) 1.25 to 1.00 for the four fiscal quarters (taken as a whole)
ending on December 31, 2000, and for each four fiscal quarters (taken
as a whole) ending on the last day of each March, June, September and
December thereafter.
1.6 Sale of Property.
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(a) Permitted Dispositions. Schedule B-1 to Amendment No 3 is hereby
amended by deleting the line "Aviation - FBO's - $27,000,000" and substituting
therefor the following:
"Aviation FBO's $15,700,000, of which
$13,700,000 shall be payable in a first
installment upon the closing of the sale, and
$ 2,000,000 (or such greater amount as may
be due to the Company) shall be payable in
a second installment on or before
January 31, 2001"
(b) Section 8.6 is amended adding the following sub-Section 8.6(v):
"The agreement of the Lenders to permit the Company to
receive the payment of the purchase price of "Aviation -
FBO's" in installments pursuant to Section 8.6(iv) shall not
affect the obligation of the Company to remit the proceeds
of the purchase price, whenever received, to the
Disbursement Account or the Reserve Account in accordance
with Section 8.6(iv) (c) and (d)."
2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
2.1 The effectiveness of the amendments set forth in this Amendment No. 6
is subject to the prior or simultaneous fulfillment of the following conditions:
(a) The Agent shall have received this Amendment No. 6 executed by (i)
a duly authorized officer or officers of the Company and (ii) each of the
Required Lenders;
(b) The Agent shall have received such other documents as it shall have
reasonably requested consistent with the terms hereof;
(c) The representations and warranties set forth in Section 3 hereof
shall be true and correct on and as of the Amendment No. 6 Effective Date;
(d) Holders of Indebtedness under each Covenant Credit Facility shall
have executed, to the extent required by each such Covenant Credit Facility,
waivers or amendments to such credit facilities satisfactory to the Agent and
the Required Lenders containing amendments to the covenants and related
definitions in such credit facilities identical to those set forth in this
Amendment No. 6;
(e) The Agent shall have received a non-refundable amendment fee, for
the pro-rata benefit of the Lenders, equal to $62,500 (1/8 of 1%);
(f) The Agent shall have received (i) payment of all of its
out-of-pocket expenses, including the reasonable fees and expenses of its
counsel Xxxxx, Xxxxxx & Xxxxxx, LLP incurred in connection with the Agreement
and this Amendment No. 6 and (ii) confirmation that all reasonable fees and
expenses due to Ernst & Young Restructuring LLC ("E&Y") and O'Melveny & Xxxxx,
LLP to the Amendment No. 6 Effective Date have been paid; and
(g) The Agent shall have received the Projections.
2.2 The date on which the conditions set forth in Section 2.1 are satisfied
is the "Amendment No. 6 Effective Date".
3. ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES AND AGREEMENTS.
3.1 The Company hereby (a) reaffirms and admits the validity and
enforceability of the Credit Agreement and the other Loan Documents and all of
its obligations thereunder, and (b) represents and warrants to the Agent and
each Lender:
(i) As of the date hereof, there exists no Default or Event of Default,
except for Defaults or Events of Default arising from (1) the failure of
the Company to pay when due the notes payable to Pacific Energy Corp., and
(2) the failure of the Company or its Subsidiary to pay when due the note
payable to Sumitomo Bank having an outstanding principal balance of
approximately $7,800,000.
(ii) The Company has full corporate power and authority to enter into,
execute, deliver and carry out the terms of this Amendment No. 6, which has
been duly authorized by all proper and necessary corporate action, and is
not in violation of its Restated Certificate of Incorporation or By-Laws.
(iii) No consent, authorization or approval of, filing with, notice to,
or exemption by, stockholders, any Governmental Body or any other Person
(except for those which have been obtained, made or given) is required to
authorize, or is required in connection with the execution, delivery and
performance of this Amendment No. 6, the Credit Agreement as amended hereby
or any Loan Document, or is required as a condition to the validity or
enforceability of this Amendment No. 6, the Credit Agreement as amended
hereby or any Loan Document. No provision of any applicable statute, law
(including without limitation, any applicable usury or similar law), rule
or regulation of any Governmental Body will prevent the execution, delivery
or performance of, or affect the validity of, this Amendment No. 6, the
Credit Agreement as amended hereby or any Loan Document.
(iv) This Amendment No. 6 constitutes the valid and legally binding
obligation of the Company enforceable in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting enforcement of creditors' rights
generally or by general principles of equity.
(v) The execution, delivery, carrying out of the terms of this
Amendment No. 6, the Credit Agreement as amended hereby and the Loan
Documents will not constitute a default under, conflict with, require any
consent under (other than consents which have been obtained), or result in
the creation or imposition of, or obligation to create, any Lien upon the
Property or assets of the Company of any of its Subsidiaries pursuant to
the terms of any mortgage, indenture (including, without limitation, the
1992 Senior Note Indenture), contract, agreement, judgment, decree or
order.
3.2 The Company's management acknowledges receipt of a Term Sheet (a
copy of which is annexed hereto) outlining certain terms of intercreditor
arrangements and credit facilities among the Company and the creditors under
"Covenant Lender Credit Facilities" (the "Term Sheet") and intends to recommend
approval of the Term Sheet to its Board of Directors subject to: (i) final
documentation that is satisfactory to the Company; (ii) receipt of all necessary
approvals from the Board of Directors; and (iii) confirmation that all of the
lenders to be party to the credit facilities described in the Term Sheet
(including, without limitation, the Lenders) are also in agreement with the
terms of such Term Sheet, subject to such lenders' receipt of any internal
approvals that such lenders might require, it being understood that the members
of the Steering Committee intend to recommend such approval. The Steering
Committee intends to recommend approval, provided, however, the Company
acknowledges and agrees that (i) the Term Sheet has not been approved or
accepted by any Lender proposed to be a party to the credit facilities described
therein, (ii) the entering into of this Amendment and the other contemplated
amendments to the credit facility indebtedness shall not constitute an
acceptance by any Lender of the Term Sheet, (iii) certain of the Lenders have
not reviewed or endorsed the Term Sheet or the restructuring proposals contained
therein, (iv) no Lender has committed to, or is obligated to, enter into any
restructuring of its credit facilities with the Company or any other Person, and
(v) each Lender is expressly reserving all of its rights and remedies under such
credit facilities (provided that nothing in clauses (iv) and (v) of this
sentence is intended to or does modify the amendments and waivers set forth in
this Amendment No. 6).
3.3 The Company and the Lenders acknowledge and agree that on and
effective October 2, 2000 the Liquidity Subfacility of $50,000,000 and the
corresponding Commitments are terminated and further acknowledge and agree that
as of the date of this Amendment No. 6, no Liquidity Loans are outstanding and
the Company has no obligation to repay the principal amount of any Liquidity
Loan or any interest thereon.
3.4 All references to "this Agreement" in the Credit Agreement and to
"the Credit Agreement" in the other Loan Documents shall be deemed to refer to
the Credit Agreement as amended by this Amendment No. 6.
3.5 Except as specifically set forth herein, the Credit Agreement and
the other Loan Documents shall remain in full force and effect in accordance
with their terms.
4. DISBURSEMENT AND RESERVE ACCOUNTS
4.1 Each of the Company and each Lender hereby consents to the
immediate transfer by the Agent of the sum of $36,500,000 from the Reserve
Account to the Disbursement Account (the "Amendment No. 6 Transfer") of which
(i) $34,500,000 may be released from the Disbursement Account in accordance with
Section 2.25 of the Credit Agreement and (ii) $2,000,000 shall be reserved to be
used exclusively to cash collateralize the $2,000,000 "step-up" of the letter of
credit issued by Commerzbank to General Electric Capital Corporation with
respect to the Hennepin Project (the "Hennepin Reserve"), provided that, prior
to the Company's utilization of the $2,000,000 for such purpose, the Steering
Committee shall have received, reviewed and approved an amendment to the
reimbursement agreement with respect to such letter of credit and an amendment
extending the expiration date of, and increasing the face amount (by such
"step-up") of, such letter of credit.
4.2 The Company represents, warrants and agrees that, as of the
Amendment No. 6 Effective Date and after giving effect to the Amendment No. 6
Transfer, (i) the amount available for disbursement from the Disbursement
Account is $34,799,039 (after giving effect to the Balaji Reserve, the Haripur
Reserve and the Hennepin Reserve); (ii) the amount on deposit in the Reserve
Account is $75,856,779; (iii) no additional funds shall be deposited in the
Disbursement Account and no funds shall be transferred from the Reserve Account
to the Disbursement Account (and the Company is not entitled to have any
additional funds deposited in the Disbursement Account or have any funds
transferred from the Reserve Account to the Disbursement Account), subject to
the prior written consent of the Required Lenders and the requisite creditors
under the Credit Facility Indebtedness; and (iv) the funds in the Disbursement
Account and the Reserve Account have been invested by the Agent as directed by
the Company in accordance with the provisions of Section 2.25(i) of the
Agreement.
5. MISCELLANEOUS.
5.1 This Amendment No. 6 may be executed by facsimile and in any number
of counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment No. 6 to produce or account for more than one counterpart signed by
the party to be charged.
5.2 This Amendment No. 6 is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
5.3 The Company acknowledges and agrees that if and to the extent it
maintains any defenses to its obligations under the Credit Agreement and the
other Loan Documents arising through and including the date hereof, such
defenses are hereby waived and released as a specific condition to the
agreements of the Agent and the Lenders set forth herein, which waiver and
release are unconditional and without limitation.
5.4 The Lenders waive for the purpose, and only for the purpose, of
permitting the Company to obtain disbursements from the Disbursement Account,
the Defaults or Events of Default described in Section 3.1(i), provided that,
and only so long as, neither Pacific Energy nor Sumitomo takes any action (by
legal proceeding or otherwise) to enforce, to compel or to obtain payment of its
notes or reimbursement obligations, as the case may be.
5.5 Each of the Company, the Agent and each Lender acknowledges that
nothing in this Amendment No. 6, the Credit Agreement, as amended hereby, or the
Term Sheet shall in any way limit the rights or remedies of the Agent and the
Lenders upon the occurrence and during the continuance of an Event of Default or
constitute a so-called "standstill agreement" (and neither this Amendment No. 6,
the Term Sheet nor any of the other amendments to the documents governing the
Credit Facility Indebtedness shall be deemed to create any standstill
obligation) between (i) the Company and any of its creditors or (ii) among any
of the Company's creditors, and that each holder of indebtedness of the Company
(including, without limitation, Credit Facility Indebtedness) shall retain all
of its respective rights and remedies with respect to such indebtedness in
accordance with the terms thereof, at law or otherwise.
The parties hereto have caused this Amendment No. 6 to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
XXXXX CORPORATION
By:
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Title:
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AMENDMENT NO. 6 - REVOLVING CREDIT AGREEMENT
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THE BANK OF NEW YORK,
Individually and as Agent
By:
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Title:
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BANK OF AMERICA, N.A.
By:
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Title:
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THE CHASE MANHATTAN BANK
By:
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Title:
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DEUTSCHE BANK AG
New York and/or Cayman
Islands Branches
By:
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Title:
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By:
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Title:
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AMENDMENT NO. 6 - REVOLVING CREDIT AGREEMENT
UBS AG
Stamford Branch
By:
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Title:
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By:
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Title:
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WESTDEUTSCHE LANDESBANK
GIROZENTRALE
By:
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Title:
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By:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Title:
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AMENDMENT NO. 6 - REVOLVING CREDIT AGREEMENT
CREDIT LYONNAIS NEW YORK
BRANCH
By:
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Title:
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FLEET NATIONAL BANK
By:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Title:
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SCHEDULE A
TO AMENDMENT NO. 6 TO CREDIT AGREEMENT
Projections
