EXHIBIT 10.1.30
AMENDMENT AND WAIVER NO. 4 TO THE
CREDIT AGREEMENT
Dated as of December 31, 1998
AMENDMENT AND WAIVER NO. 4 TO THE CREDIT AGREEMENT among Xxxxxxx
Holdings Inc., a Delaware corporation (the "Parent"), Xxxxxxx Fasteners Inc., a
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Delaware corporation (the "Borrower"), PCI Group, Inc., a Delaware corporation
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("PCI"), Xxx Fastener Company, LLC, a Delaware limited liability company
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("Xxx"), Scomex, Inc., a Delaware corporation ("Scomex"), the banks, financial
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institutions and other institutional lenders party to the Credit Agreement
referred to below (collectively, the "Banks") and Credit Agricole Indosuez, as
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administrative agent and collateral agent (the "Administrative Agent").
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PRELIMINARY STATEMENTS:
(1) The Parent, the Borrower, PCI, Xxx, Scomex, the Banks, the
Administrative Agent, Swiss Bank Corporation, Stamford Branch, as documentation
agent and syndication agent, and SBC Warburg Dillon Read Inc., as advisor and
arranger, have entered into a Credit Agreement dated as of November 26, 1997,
and amendments thereto dated as of January 9, 1998, February 20, 1998 and
September 30, 1998 (such Credit Agreement, as so amended, being the "Credit
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Agreement"). Capitalized terms not otherwise defined in this Amendment and
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Waiver have the same meanings as specified in the Credit Agreement.
(2) The Borrower has requested that (i) the requirements of Section
10.10 (Funded Indebtedness to Consolidated EBITDA ratio) for the accounting
period ending on December 31, 1998 be waived, (ii) the requirements of Section
10.08 (Capital Expenditures) be waived for the fiscal year ended on December 31,
1998, (iii) the Fixed Charge Coverage Ratio and the Funded Indebtedness to
Consolidated EBITDA ratio levels set forth in Sections 10.09 and 10.10,
respectively, of the Credit Agreement be amended and (iv) the minimum net worth
level set forth in Section 10.20 of the Credit Agreement be amended.
(3) The Required Banks are, on the terms and conditions stated below,
willing to grant the request of the Borrower as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
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effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3, hereby amended as follows:
(a) The definition of "Applicable Margin" in Section 1.01 is amended in
full to read as follows:
"'Applicable Margin' shall mean a percentage per annum equal to (i) in the
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case of Term Loans and Revolving Loans that are maintained as Base Rate Loans,
2.00% and (ii) in the case of Term Loans and Revolving Loans that are maintained
as Eurodollar Loans, 3.00%."
(b) Section 10.09 is amended in full to read as follows:
"10.09 Fixed Charge Coverage Ratio. The Borrower shall not permit the
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Fixed Charge Coverage Ratio for any period of four consecutive fiscal quarters
of the Borrower, in each case taken as one accounting period, ended on a date
set forth below to be less than the ratio set forth opposite such date:
Fiscal Quarter |
Ended | Ratio
---------------------------|--------------
|
March 31, 1998 | 1.1:1.0
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June 30, 1998 | 1.1:1.0
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September 30, 1998 | 1.1:1.0
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December 31, 1998 | 1.1:1.0
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March 31, 1999 | 1.0:1.0
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June 30, 1999 | 1.0:1.0
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September 30, 1999 | 1.0:1.0
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December 31, 1999 | 1.0:1.0
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March 31, 2000 | 1.0:1.0
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June 30, 2000 | 1.0:1.0
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September 30, 2000 | 1.0:1.0
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December 31, 2000 | 1.0:1.0
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March 31, 2001 | 1.1:1.0
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June 30, 2001 | 1.1:1.0
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September 30, 2001 | 1.1:1.0
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December 31, 2001 | 1.1:1.0
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March 31, 2002 |
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and each fiscal quarter |
thereafter" | 1.15:1.0
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(c) Section 10.10 is amended in full to read as follows:
"10.10 Funded Indebtedness to Consolidated EBITDA. The
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Borrower shall not permit the ratio of Funded Indebtedness
(measured as of the applicable date listed below in this Section
10.10) of the Borrower and its Subsidiaries on a consolidated
basis to Consolidated EBITDA of the Borrower for any period of
four consecutive fiscal quarters of the Borrower, in each case
taken as one accounting period, ending on a date set forth below
to be greater than the ratio set forth opposite such date below:
Fiscal Quarter |
Ended | Ratio
--------------------------|--------------
|
March 31, 1998 | 6.50:1.0
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June 30, 1998 | 6.50:1.0
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September 30, 1998 | 6.50:1.0
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December 31, 1998 | 6.50:1.0
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March 31, 1999 | 7.50:1.0
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June 30, 1999 | 7.50:1.0
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September 30, 1999 | 7.00:1.0
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December 31, 1999 | 6.75:1.0
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March 31, 2000 | 6.40:1.0
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June 30, 2000 | 6.15:1.0
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September 30, 2000 | 6.00:1.0
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December 31, 2000 | 5.75:1.0
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March 31, 2001 | 5.50:1.0
--------------------------|--------------
June 30, 2001 | 5.50:1.0
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September 30, 2001 | 5.50:1.0
--------------------------|--------------
December 31, 2001 | 5.50:1.0
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March 31, 2002 | 5.00:1.0
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June 30, 2002 | 5.00:1.0
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September 30, 2002 | 5.00:1.0
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December 31, 2002 | 5.00:1.0
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March 31, 2003 | 4.50:1.0
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June 30, 2003 | 4.50:1.0
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September 30, 2003 | 4.50:1.0"
and each fiscal quarter |
thereafter |
(d) Section 10.20 is amended in full to read as follows:
"10.20 Minimum Net Worth. The Borrower shall maintain at all
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times an excess of consolidated total assets over consolidated total
liabilities (excluding any amount otherwise included in consolidated
total liabilities as a result of accrued but unpaid scheduled
Dividends), in each case, of the Borrower and its Subsidiaries of not
less than $20,000,000."
SECTION 2. Waivers. The Required Banks hereby agree to waive the
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following:
(a) The requirements of Section 10.10 of the Credit Agreement solely
for the accounting period, consisting of four consecutive fiscal
quarters of the Borrower, ending on December 31, 1998.
(b) The requirements of Section 10.08 of the Credit Agreement solely
for the fiscal year ended December 31, 1998.
SECTION 3. Conditions of Effectiveness. This Amendment and Waiver
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shall become effective as of the date first above written when, and only when
(i) the Administrative Agent shall have received counterparts of this Amendment
and Waiver executed by the Borrower, the other Credit Parties and the Required
Banks or, as to any of the Banks, advice satisfactory to the Administrative
Agent that such Bank has executed this Amendment and Waiver and (ii) the
Administrative Agent shall have additionally received all of the following
documents, each such document (unless otherwise specified) dated the date of
receipt thereof by the Administrative Agent (unless otherwise specified), in
form and substance satisfactory to the Administrative Agent (unless otherwise
specified), and in sufficient copies for each Bank:
(a) Certified copies of (i) the resolutions of the Board of Directors
of (A) each Credit Party approving this Amendment and Waiver and (ii) all
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Amendment and Waiver.
(b) A certificate of the Secretary or an Assistant Secretary of each
Credit Party certifying the names and true signatures such Credit Party
authorized to sign this Amendment and Waiver.
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(c) A certificate signed by a duly authorized officer of the Borrower
stating that:
(i) The representations and warranties contained in Section
4 are correct on and as of the date of such certificate as though made
on and as of such date other than any such representations or
warranties that, by their terms, refer to a date other than the date
of such certificate; and
(ii) No event has occurred and is continuing that
constitutes a Default.
(d) Detailed consolidated financial projections for the fiscal years
ending December 31, 1999, December 31, 2000 and December 31, 2001.
This Amendment and Waiver is subject to the provisions of Section 15.10 of the
Credit Agreement.
SECTION 4. Representations and Warranties of the Credit Parties.
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Each Credit Party represents and warrants as follows:
(a) Corporate Status. Each of the Parent and its Subsidiaries (i)
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is a duly organized and validly existing corporation or limited liability
company in good standing under the laws of the jurisdiction of its
incorporation or organization, (ii) has the corporate or other power and
authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualifications, except for failures
to be so qualified which, in the aggregate, would not be reasonably likely
to have a material adverse effect on the performance, business, assets,
nature of assets, liabilities, operations, properties, condition (financial
or otherwise) or prospects of the Borrower and its Subsidiaries taken as a
whole.
(b) Corporate Power and Authority. Each of the Parent and its
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Subsidiaries has the power to execute, deliver and perform the terms and
provisions of this Amendment and Waiver and the Credit Agreement as amended
by this Amendment and Waiver (collectively, the "Documents") and has taken
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all necessary corporate or other action to authorize the execution,
delivery and performance by it of each of such Documents. Each of the
Parent and its Subsidiaries has duly executed and delivered each of the
Documents to which it is party, and each of such Documents constitutes the
legal, valid and binding obligation of such party enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by general equitable
principles (regardless of whether the issue of enforceability is considered
in a proceeding in equity or at law).
(c) No Violation. Neither the execution, delivery or performance by
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the Parent or any of its Subsidiaries of the Documents to which it is a
party, nor compliance by it with the terms and provisions hereof or
thereof, (i) will contravene any provision of any applicable law, statute,
rule or regulation or any order, writ, judgment, injunction or decree of
any court or governmental instrumentality, (ii) will conflict with or
result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default or event of default under, or result
in the creation or imposition of (or the obligation to create or impose),
any Lien (except pursuant to the Security Documents) upon any of the
property or assets of the Parent or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other agreement, contract or instrument to which the
Parent or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound, or to which it may be subject or (iii) will
violate
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any provision of the Certificate of Incorporation or By-Laws (or similar
organizational documents) of the Parent or any of its Subsidiaries.
(d) Governmental Approvals. No order, consent, approval, license,
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authorization or validation of, or filing, recording or registration with
(except as has been obtained or made on or prior to the Initial Borrowing
Date and as is in full force and effect), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery
and performance of any Document or (ii) the legality, validity, binding
effect or enforceability of any such Document.
(e) Litigation. Other than with respect to matters set forth on
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Schedule VIII to the Credit Agreement, there are no actions, suits or
proceedings pending or, to the best knowledge of the Borrower or any of its
Subsidiaries, threatened that (a) would have a material adverse effect on
the operations or financial condition of the Parent and the Borrower
together with their respective Subsidiaries, taken as a whole, or (b)
involves a reasonable possibility of (i) a material adverse effect on (x)
the ability of any of the Credit Parties to perform their respective
obligations hereunder or under any of the Credit Documents or (y) the
rights, remedies and benefits available to the Agents, the Issuing Bank and
the Banks hereunder or under any of the Credit Documents, or (c) would be
materially inconsistent with the assumptions underlying the forecasts
previously provided to the Agents, the Issuing Bank and the Banks.
(f) The Security Documents. (i) The provisions of the Security
----------------------
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the respective Credit Parties
in the Collateral described therein, and the Collateral Agent, for the
benefit of the Secured Creditors, in the case of the Credit Parties, has, a
fully perfected first Lien on, and security interest in, all right, title
and interest of the respective Credit Parties, in all of the Collateral
described therein, subject to no other Liens other than Permitted Liens.
(ii) The recordation of the Security Agreement in the United
States Patent and Trademark Office, together with filings on Form UCC-
1 in all applicable jurisdictions made pursuant to the Security
Agreement, is effective, under federal and state law, to perfect the
security interest granted to the Collateral Agent in the Trademarks
and Patents covered by the Security Agreement and the filing of the
Security Agreement with the United States Copyright Office, together
with filings on Form UCC-1 made pursuant to the Security Agreement is
effective under federal and state law to perfect the security interest
granted to the Collateral Agent in the Copyrights covered by the
Security Agreement. Each of the Credit Parties party to the Security
Agreement has good and merchantable title to all Collateral described
therein, free and clear of all Liens except those described above in
subsection (i) of this Section 3(f) and in this subsection (ii).
(iii) From and after the Initial Borrowing Date, the
Mortgages create, as security for the obligations purported to be
secured thereby, a valid, enforceable and perfected security interest
in and Lien on all of the Mortgaged Properties in favor of the
Collateral Agent (or such other trustee as may be required or
desirable under local law) for the benefit of the Secured Creditors,
superior to and prior to the rights of all third persons (except that
the security interest created in the Mortgaged Properties may be
subject to the Permitted Encumbrances related thereto) and subject to
no other Liens (other than Permitted Liens). Each of the Borrower and
its Subsidiaries has good and marketable title at the time of the
grant thereof and at all times thereafter to all Mortgaged Properties,
free and clear of all Liens except those described in the first
sentence of this subsection (iii).
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SECTION 5. Further Actions Subsequent to the Effectiveness of
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Amendment and Waiver. The Borrower hereby agrees that at any time and from time
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to time to the extent that the Required Banks or any of the Agents request in
order to fulfill the requirements of any applicable statute, regulation or order
of any governmental body, to preserve, protect, enforce or realize upon the
security interests granted to the Secured Creditors pursuant to the Security
Documents, each Credit Party shall, and shall cause each of its Subsidiaries to,
cooperate with and promptly take all actions necessary to assist the Banks, the
Issuing Bank and the Agents, including, without limitation, to make, execute,
acknowledge, file and/or deliver to the Banks, the Issuing Bank or the Agents,
as the case may be, such information, documents, certificates, reports and other
assurances or instruments, which the Banks, the Issuing Bank or the Agents, as
the case may be, deems appropriate or advisable to comply with such statutes,
regulations or orders so as to preserve, protect, enforce or realize upon such
security interests granted to the Secured Creditors.
SECTION 6. Reference to and Effect on the Credit Documents. (a) On
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and after the effectiveness of this Amendment and Waiver, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Notes and
each of the other Credit Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended by this Amendment and
Waiver.
(b) The Credit Agreement, as specifically amended by this Amendment
and Waiver, is and shall continue to be in full force and effect and is hereby
in all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all Obligations of the Credit
Parties under the Credit Documents, in each case as amended by this Amendment
and Waiver.
(c) The execution, delivery and effectiveness of this Amendment and
Waiver shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Bank or any Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 7. Costs and Expenses. Each of the Parent and the Borrower
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jointly and severally agree to pay on demand all costs and expenses of the
Agents in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and Waiver and the
other instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Agents) in
accordance with the terms of Section 15.01 of the Credit Agreement.
SECTION 8. Execution in Counterparts. This Amendment and Waiver may
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be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment and Waiver by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Waiver.
SECTION 9. Governing Law. This Amendment and Waiver shall be
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governed by, and construed in accordance with, the laws of the State of New
York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
XXXXXXX HOLDINGS INC.
/s/ Xxxxxx X. Xxxxx
executive vice president
chief financial officer
XXXXXXX FASTENERS INC.
/s/ Xxxxxx X. Xxxxx
executive vice president
chief financial officer
PCI GROUP, INC.
/s/ Xxxxxx X. Xxxxx
Secretary
XXX FASTENER COMPANY, LLC
/s/ Xxxxxx X. Xxxxx
Secretary
SCOMEX, INC.
/s/ Xxxxxx X. Xxxxx
Secretary
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CREDIT AGRICOLE INDOSUEZ
as Administrative Agent and as a Bank
/s/ XXXXXXX XXXXXXXXX
VICE PRESIDENT
/s/ XXXXXXXX XXXXXXX
FIRST VICE PRESIDENT
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: INDOSUEZ CAPITAL, as Portfolio
Advisor
/s/ XXX X. XXXXX
MANAGING DIRECTOR
UBS AG, Stamford Branch
/s/ XXXXXX X. XXXXXXX
ASSOCIATE DIRECTOR
LOAN PORTFOLIO, US
/s/ XXXXXX X. SALAZANO
ASSOCIATE DIRECTOR
LOAN PORTFOLIO, US
PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS,
INC., as its Investment Manager
/s/ XXXXXXX XXXXXX, CFA
VICE PRESIDENT
IBJ WHITEHALL BANK & TRUST COMPANY (Formerly
known as IBJ Xxxxxxxx Bank & Trust
Company)
/s/ XXXXXXX X. XXXXXXXX
DIRECTOR
SUMMIT BANK
/s/ XXXXX X. XXXXXXX
VICE PRESIDENT
FLEET BUSINESS CREDIT CORPORATION
/s/ XXXXX X. XXXXXXX
SENIOR VICE PRESIDENT
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