Exhibit 4.22
THIRD AMENDMENT TO THE
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This THIRD AMENDMENT to the Fourth Amendment and Restated Revolving Credit
and Term Loan Agreement, dated as of August 29, 1997 ("Third Amendment"), by and
among (a) Xxxxxxxx Consumers Company, Xxxx Xxxx, Inc., and Shore Stop
Corporation, each a Delaware corporation, (collectively, the "Borrowers"), (b)
BankBoston, N.A. (formerly known as The First National Bank of Boston), The
Travelers Insurance Company, The Travelers Indemnity Company, Senior Debt
Portfolio, Xxxxx Bank N.A., CypressTree Investment Management Company, Inc.,
CypressTree Investment Partners I, Ltd. ("CypressTree I"), and Deeprock &
Company (collectively, the "Banks"), and (c) BankBoston, N.A. as agent for the
Banks (the "Agent").
WHEREAS, the Borrowers, the Banks (other than CypressTree Investment
Management Company, Inc. ("CypressTree"), and Deeprock & Company ("Deeprock"))
and the Agent are parties to that certain Fourth Amended and Restated Revolving
Credit and Term Loan Agreement dated as of July 8, 1996 (as amended and in
effect prior to giving effect to this Amendment, the "Credit Agreement"); and
WHEREAS, each of CypressTree, and Deeprock wishes to become a party to the
Credit Agreement with all of the rights, privileges, and obligations of a "Bank"
thereunder and the other Banks wish to consent to CypressTree, CypressTree I,
and Deeprock so becoming such a party to the Credit Agreement; and
WHEREAS, the Borrowers have requested and the Banks have agreed, subject
to the terms and conditions set forth herein, to modify certain provisions of
the Credit Agreement;
NOW, THEREFORE, the Borrowers, the Banks and the Agent hereby covenant and
agree as follows:
ss.1. Defined Terms. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
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ss.2. Amendment to the Credit Agreement.
(a) Section 1.1 (Definitions) of the Credit Agreement is hereby further
amended by adding or replacing in their entirety the following terms in the
appropriate places in the alphabetical sequence thereof;
Amendment Closing Date. ___________ __, 1997.
Cash Flow Percentage. 75%.
Revolving Credit Maturity Date. (a) June 30, 2000, or (b) December
31, 2000, if all of the Banks listed on Schedule 1(a), in their sole
discretion, shall agree to extend the Revolving Credit Maturity Date for
an additional six months upon the written request of the Borrowers
delivered after July 8, 1998, but prior to January 1, 2000.
Term Loan C. The term loans in an aggregate principal amount
outstanding of $29,750,000 as of the Amendment Closing Date after giving
effect to the transactions contemplated by the Third Amendment, which
loans were made by the Banks listed on Schedule 1(b) to the Borrowers in
an amount equal with respect to each such Bank to such Bank's Term Loan C
Aggregate Amount and which are evidenced by Term Notes C.
Term Loan C Additional Amount. With respect to each Bank listed on
Schedule 1(b), the term loans to be made by such Bank to the Borrowers on
the Amendment Closing Date pursuant to the terms and conditions of the
Third Amendment in the amount set forth opposite such Bank's name on
Schedule 1(b) hereto under the column Term Loan C Additional Amount.
Term Loan C Aggregate Amount. With respect to each Bank listed on
Schedule 1(b), that amount set forth opposite such Bank's name in Schedule
1(b) hereto under the column Term Loan C Aggregate Amount.
Third Amendment. The Third Amendment to the Credit Agreement dated
as of the Amendment Closing Date by and among the Borrowers, the Banks and
the Agent.
(b) Section 3.3 (Mandatory Loan Reduction Period) of the Credit
Agreement is hereby amended by inserting after the phrase "commencing
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with the Calendar Year 1995" the following phrase: "but not including
Calendar Year 1997".
(c) Section 4.1 (Commitment to Lend) of the Credit Agreement is
hereby amended by adding the following sentence to the end of such
section:
Subject to the terms and conditions set forth in the Third
Amendment, each Bank listed on Schedule 1(b) agrees to lend to the
Borrowers on the Amendment Closing Date its Term Loan C Additional
Amount.
(d) Section 4.2.3 (Term Note C) of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
4.2.3. Term Note C. Term Loan C shall be evidenced by separate
promissory notes of the Borrowers in substantially the form of Exhibit J-3
hereto (each a "Term Note C"), dated the Amendment Closing Date and
completed with appropriate insertions. One Term Note C shall be payable to
the order of each Bank listed on Schedule 1(13) in a principal amount
equal to such Bank's Term Loan C Aggregate Amount and representing the
joint and several obligation of the Borrowers to pay to such Bank such
principal amount or, if less, the outstanding amount of such Bank's Term
Loan C Commitment Percentage of Term Loan C, plus interest accrued
thereon, as set forth below. The Borrowers irrevocably authorize each Bank
to make or cause to be made a notation on such Bank's Term Note Record
reflecting the original principal amount of such Bank's Term Loan C
Commitment Percentage of Term Loan C and, at or about the time of such
Bank's receipt of any principal payment on such Bank's Term Note C an
appropriate notation on such Bank's Term Note Record reflecting such
payment. The aggregate unpaid amount set forth on such Bank's Term Note
Record shall be prima facie evidence of the principal amount thereof owing
and unpaid to such Bank, but the failure to record, or any error in so
recording, any such amount on such Bank's Term Note Record shall not
affect the obligations of the Borrowers hereunder or under any Term Note C
to make payments of principal of and interest on any Term Note C when due.
(e) Section 4.3.1 (Term Loan A) of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
4.3.1. Term Loan A. Term Loan A shall be paid in the principal
amount of $14,750,000 on the Amendment Closing Date.
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The remaining balance of $1,350,000 shall be paid in consecutive quarterly
installments, with each quarterly payment in a given Fiscal Year equal to
the amount set forth opposite such Fiscal Year in the table below, such
installments to be due and payable on the last day of each fiscal quarter
commencing on September 30, 1997 and ending on December 31, 2000, with a
final additional payment on December 31, 2000 in an amount equal to the
remaining unpaid principal balance (if any) of Term Loan A.
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Fiscal Year Ending in June of Quarterly Payments Annual Total
----------------------------- ------------------ ------------
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1998 $ 90,146.25 $ 360,585
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1999 $ 90,146.25 $ 360,585
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2000 $104,827.50 $ 419,310
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2001 (Sept. 30, 2000, Dec. 31, 2000) $104,760.00 $ 209,520
==========
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$1,350,000
(f) Section 4.3.2 (Term Loan B) of the Credit Agreement is hereby amended
by substituting the following table for the table currently set forth therein:
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Fiscal Year Ending in June of Quarterly Payments Annual Total
----------------------------- ------------------ ------------
--------------------------------------------------------------------------------
1998 $ 250,000 $ 1,000,000
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1999 $ 250,000 $ 1,000,000
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2000 $ 437,500 $ 1,750,000
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2001 $1,500,000 $ 6,000,000
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2002 $2,000,000 $ 8,000,000
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2003 (Sept. 30, 2002, Dec. 31, 2002) $ 625,000 $ 1,250,000
==========
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$19,000,000
(g) Section 4.3.3 (Term Loan C) of the Credit agreement is hereby amended
by substituting the following table for the table currently set forth therein:
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Fiscal Year Ending in June of Quarterly Payments Annual Total
----------------------------- ------------------ ------------
--------------------------------------------------------------------------------
1998 $ 62,500 $ 250,000
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1999 $ 125,000 $ 500,000
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2000 $ 125,000 $ 500,000
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2001 $ 187,500 $ 750,000
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2002 $ 187,500 $ 750,000
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2003 $2,750,000 $11,000,000
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2004 (Sept. 30, 2003, Dec. 31, 2003) $8,000,000 $16,000,000
==========
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$29,750,000
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(h) Section 9.12 (Use of Proceeds) of the Credit Agreement is hereby
amended by inserting the following sentence to the end of such section:
The Borrowers will use the proceeds of Term Loan C advanced on the
Amendment Closing Date to repay Term Loan A in an amount equal to
$14,750,000, and to pay certain fees and expenses incurred in connection
with the Third Amendment.
(i) The table in Section 11.1 (Debt Service Coverage Ratio) of the Credit
Agreement is hereby amended and restated in its entirety as set forth below:
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Period of Four Consecutive
Fiscal Quarters ending: Ratio
----------------------- -----
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6/30/96, 9/30/96 and 12/31/96 1.10:1.00
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3/31/97 0.85:1.00
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6/30/97 and 9/30/97 0.90:1.00
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12/31/97 0.98:1.00
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3/31/98 1.10:1.00
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6/30/98 and thereafter 1.20:1.00
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(j) The table in Section 11.2 (Cash Flow Ratio) of the Credit Agreement is
hereby amended and restated in its entirety as set forth below.
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Period of Four Consecutive
------ -- ---- -----------
Fiscal Quarters ending: Ratio
------ -------- ------- -----
--------------------------------------------------------------------------------
6/30/96 and 9/30/96 1.000:1.00
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12/31/96 0.850:1.00
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3/31/97 0.770:1.00
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6/30/97 0.810:1.00
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9/30/97 0.830:1.00
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12/31/97 0.900:1.00
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3/31/98 1.000:1.00
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6/30/98 and thereafter (inclusive) 1.10:1.0
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(k) Section 11.7 (Minimum Consolidated EBITDA) of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:.
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The Borrowers will not permit Consolidated EBITDA for each period
consisting of four consecutive fiscal quarters of the Borrowers ending on
a date set forth in the table below to be less than the amount set forth
opposite the relevant period in the table below:
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Period of Four Consecutive Fiscal Minimum Consolidated
------ -- ---- ----------- ------ ------- ------------
Quarters ending: EBITDA
-------- ------- ------
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June 30, 1997 $15,000,000
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December 31, 1997 $16,000,000
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March 31, 1998 $17,500,000
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June 30, 1998 and thereafter $18,000,000
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(l) Section 11 of the Credit Agreement is hereby amended by inserting the
following new Section 11.8:
11.8. Consolidated EBITDA to Consolidated Total Interest Expense.
The Borrowers will not permit the ratio of (a) Consolidated EBITDA for
each period consisting of four consecutive fiscal quarters of the
Borrowers ending on a date set forth in the table below, commencing with
the four quarter period ending March 31, 1998, to (6) Consolidated Total
Interest Expense for such period, to be less than the amount set forth
opposite the relevant date in the table below:
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Period Ratio
------ -----
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3/31/98 1.75:1.00
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6/30/98 and thereafter 1.80:1.00
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(m) Schedule 1 to the Credit Agreement is hereby deleted in its entirety
and Schedule 1 attached hereto is substituted therefore.
(n) Schedule 1(b) to the Credit Agreement is hereby deleted in its
entirety and Schedule 1(b) attached hereto is substituted therefor.
ss.3. Conditions to Effectiveness to Amendment. This Amendment shall
become effective upon satisfaction of each of the following conditions precedent
on the Amendment Closing Date:
(a) receipt by the Agent of this Amendment, executed and delivered by each
of the Borrowers, the Agent and the Banks;
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(b) execution and delivery by the Borrowers to each of the Banks listed on
Schedule 1(b) to the Credit Agreement which either hold or will be advancing
any portion of Term Loan C, a Term Note C in the form of Exhibit J-3 to the
Credit Agreement in an amount equal to such Bank's Term Loan C Commitment
Percentage of $29,750,000;
(c) receipt by the Agent of an opinion of counsel to the Borrowers, in
form and substance satisfactory to the Agent;
(d) execution and delivery by each of CypressTree and Deeprock to the
Agent of an Instrument of Accession substantially in the form of Exhibit A
attached hereto;
(e) a certificate of the Secretary of State of Delaware as to the legal
existence and good standing of each Borrower;
(f) a certificate of an officer of each of the Borrowers certifying as to
(i) no changes to such Borrower's charter and bylaws since July 8, 1996, (ii)
the resolutions of the Board of Directors of such Borrower authorizing and
approving the execution, delivery and performance of this Amendment and the
other documents contemplated hereby and (iii) the incumbency and signature of
officers authorized to execute and deliver this Amendment and the other
documents contemplated hereby; and
(g) payment of a closing fee in the amount of $157,750 for the pro rata
account of each Bank in accordance with each Bank's percentage interest in the
sum of (i) the Revolving Credit Commitments plus (ii) the aggregate principal
amount of the Term Loans outstanding after giving effect to the transactions
contemplated by this Amendment.
ss.4. Affirmation of the Borrowers. Each of the Borrowers hereby affirms
all of its obligations under the Credit Agreement, as amended hereby, and the
Notes (including the new Term Notes C delivered pursuant hereto) and under each
of the other Loan Documents to which it is a party and hereby affirms its
absolute and unconditional promise to pay to the Banks the Loans and all other
amounts due under the Credit Agreement, as amended hereby. Each of the Borrowers
hereby represents, warrants and confirms that the Obligations, as amended
hereby, are and remain secured pursuant to the Security Documents.
ss.5. Consent by Banks.
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(a) Upon execution and delivery of an Instrument of Accession
(substantially in the form of Exhibit A attached hereto) by each of Cypress Tree
and Deeprock and the effectiveness of this Amendment, each of the Banks shall be
deemed to have agreed that CypressTree and Deeprock shall become "Banks," as
such term is used in the Credit Agreement, with all of the rights, privileges,
and obligations of "Banks" under the Credit Agreement and Loan Documents.
(b) Each of the Banks hereby consents to the application of the proceeds
of Term Loan C to prepay Term Loan A in the aggregate amount of $14,750,000,
prior to the pre-payment of Term Loan B and Term Loan C.
ss.6. Representations and Warranties. Each of the Borrowers hereby
represents and warrants to the Banks and the Agent as follows:
(a) Representations and Warranties. The representations and warranties
contained in ss.8 of the Credit Agreement were true and correct in all material
respects when made. The representations and warranties contained in ss.8 of the
Credit Agreement, after giving effect to this Amendment, are true and correct on
the date hereof, except (i) for those representations and warranties which
relate specifically to a particular date, which representations and warranties
were true and correct as of such date and (ii) as otherwise disclosed in writing
by the Borrowers to each of the Banks and the Agent subsequent to the Closing
Date.
(b) Authority. The execution and delivery by each Borrower of this
Amendment and the new Term Notes C to be delivered hereunder, and the
performance by each Borrower of this Amendment, such new Notes and the Credit
Agreement, as amended hereby, (i) are within the corporate authority of such
Borrower, (ii) have been duly authorized by all necessary corporate proceedings,
(iii) do not conflict with or result in any breach or contravention of any
provision of law, statute, rule or regulation to which such Borrower is subject
or any judgment, order, writ, injunction, license or permit applicable to such
Borrower, and (iv) do not conflict with any provision of the corporate charter
or bylaws of such Borrower or any agreement or other instrument binding upon
such Borrower.
(c) Enforceability. This Amendment, the new Term Notes C to be delivered
hereunder and the Credit Agreement, as amended hereby, are valid and legally
binding obligations of each Borrower, enforceable against such Borrower in
accordance with their respective terms and provisions, except as
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enforceability is limited by bankruptcy, insolvency, reorganization, moratorium
or other laws relating to or affecting generally the enforcement of creditor's
rights and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
(d) No Default. No Default or Event of Default exists or will exist after
giving effect to the execution and delivery of this Amendment.
ss.7. No Other Amendments. Except as expressly provided in this Amendment,
all of the terms and conditions of the Credit Agreement and the other Loan
Documents remain unchanged, and the terms and conditions of the Credit Agreement
as amended hereby and the other Loan Documents remain in full force and effect.
ss.8. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
ss.9. Miscellaneous. This Amendment shall be deemed to be a contract under
seal under the laws of The Commonwealth of Massachusetts and shall for all
purposes be construed in accordance with and governed by the laws of The
Commonwealth of Massachusetts. The captions in this Amendment are for
convenience of reference only and shall not define or limit the provisions
hereof. The Borrowers agree to pay to the Agent, on demand by the Agent, all
reasonable out-of-pocket costs and expenses incurred or sustained by the Agent
in connection with the preparation of this Amendment, including reasonable legal
fees.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXXX CONSUMERS
COMPANY
By: /s/ [ILLEGIBLE]
----------------------------------------
Title: Secretary Treasurer & Vice President
XXXX XXXX, INC.
By: /s/ [ILLEGIBLE]
----------------------------------------
Title: Vice President
SHORE STOP CORPORATION
By: /s/ [ILLEGIBLE]
----------------------------------------
Title: Vice President
BANKBOSTON, N.A. (formerly known as
The First National Bank Of Boston),
individually and as Agent
By:
----------------------------------------
Title:
THE TRAVELERS INSURANCE COMPANY
By:
----------------------------------------
Title:
THE TRAVELERS INDEMNITY COMPANY
By:
----------------------------------------
Title:
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXXXXX CONSUMERS
COMPANY
By:
----------------------------------------
Title:
XXXX XXXX, INC.
By:
----------------------------------------
Title:
SHORE STOP CORPORATION
By:
----------------------------------------
Title:
BANKBOSTON, N.A. (formerly known as
The First National Bank Of Boston),
individually and as Agent
By: /s/ [ILLEGIBLE]
----------------------------------------
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By:
----------------------------------------
Title:
THE TRAVELERS INDEMNITY COMPANY
By:
----------------------------------------
Title:
