Exhibit 10.58
FIRST AMENDMENT AND WAIVER TO
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF JANUARY 28, 2002
THIS FIRST AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
originally dated as of January 28, 2002 ("FIRST AMENDMENT")* is made and entered
into as of this 30th day of October 2002 by and among XXXXXXX AMERICAS
CORPORATION, XXXXXXX EUROPE CONSOLIDATED INC. AND XXXXXXX ASIA PACIFIC
CORPORATION (collectively, the "BORROWERS"), XXXXXXX TECHNOLOGY COMPANY, INC.,
XXXXXXX TECHNOLOGY CORPORATION, XXXXXXX EUROPE CONSOLIDATED BV, XXXXXXX GRAPHIC
SYSTEMS, INC., XXXXXXX GERMANY GMBH, XXXXXXX JAPAN LTD. AND XXXXXXX KANSA
CORPORATION (collectively the "GUARANTORS"), THE OTHER CREDIT PARTIES SIGNATORY
HERETO, FLEET NATIONAL BANK as Agent and Lender (sometimes hereinafter referred
to as "AGENT" or "FLEET" or "LENDER") and WACHOVIA BANK NATIONAL ASSOCIATION
formerly known as First Union National Bank, as Lender ("Lender").
RECITALS
WHEREAS, As of January 28, 2002 Borrowers, Agent and Lender entered into
that certain Amended and Restated Credit Agreement (the "Existing Credit
Agreement") pursuant to which the Borrowers, Guarantors and certain other Credit
Parties executed and delivered to the Agent the Notes, the Guarantees, the
Security Documents and other documents evidencing and/or securing the
Obligations all as more particularly described in the Existing Credit Agreement
(the "Loan Documents"); and,
WHEREAS, Borrowers have (i) informed the Agent that they have violated
certain Financial Condition Covenants as more particularly set forth in Section
6.1 of the Existing Credit Agreement (the "Violation") which Violation is an
Event of Default thereunder and (ii) requested that the Agent and the Lenders
waive the Violation (the "Waiver"); and,
WHEREAS, the Borrowers have requested that the Agent and the Lenders make
certain amendments to the Existing Credit Agreement and waive certain Event of
Default and the Agent and Lenders are willing to so amend and waive only upon
the terms and conditions set forth in this First Amendment.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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AGREEMENT
A. AMENDMENTS TO CREDIT AGREEMENT. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective as of the date hereof, as follows:
1. All of the Recitals are true and correct and are incorporated herein by
reference and made a part hereof.
2. SECTION 1. DEFINITIONS is amended as follows:
1.1 Defined Terms.
"Alternate Base Rate" is intentionally deleted. All references in
the Credit Agreement to Alternate Base Rate shall be replaced by the
term Base Rate as defined below.
"Amendment Fee" shall mean that fee in the amount of $200,000
payable as set forth herein
"Base Rate" shall mean the Prime Rate plus two (2%) percent per
annum.
"Base Rate Loans" shall mean Loans, the rate of interest applicable
to which is based upon the Base Rate.
"Capital Event" shall have the meaning ascribed to it in Section E
of this First Amendment.
"Credit Agreement" shall mean the Existing Credit Agreement as
hereby amended and modified, and as further amended, modified,
supplemented, amended and restated or replaced from time to time as
permitted thereby. Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the same
meaning ascribed to them in the Credit Agreement.
"Interest Period" is intentionally deleted.
"LIBOR Rate" is intentionally deleted.
"LIBOR Rate Loan" is intentionally deleted.
"Revolving Credit Termination Date" shall mean the earlier of (i)
July 1, 2003 or (ii) an Event of Default.
"Term Loan Maturity Date" shall mean the earlier of (i) July 1, 2003
or (ii) an Event of Default.
"Type" as to any Loan, its nature as a Base Rate Loan.
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3. Schedule I-C to the Credit Agreement entitled "LENDERS, COMMITMENTS AND
ADDRESSES FOR NOTICE" is hereby deleted in its entirety and the attached REVISED
SCHEDULE 1-C is substituted therefore.
4. SECTION 2. AMOUNT AND TERMS OF COMMITMENTS is hereby amended as
follows:
(a) to delete any and all references wherever they appear to
LIBOR, LIBOR Rate, LIBOR Rate Loans, Conversion and
Continuance Options, and Interest Periods, it being understood
and agreed that all Loans made prior to or after the date
hereof shall be Base Rate Loans only.
(b) the following is added after Subparagraph 2.3 (c) as new
Subparagraph 2.3 (d):
"2.3 (d) Amendment Fee. Borrowers shall pay to the Agent
for the benefit of the Lenders an Amendment Fee of $200,000
that is earned and fully due and owing as of the date hereof,
as follows: (i) $100,000 on or before the date of the First
Amendment, and then (ii) $50,000 on or before December 31,
2002, and then (iii) $50,000 on or before March 31, 2003.
Notwithstanding the foregoing, in the event that the
conditional payment described in 2.7 (f) below that is due on
or before December 30, 2002 is indefeasibly paid in full in
cash on or before December 30, 2002 then that portion of the
Amendment Fee due on December 31, 2002 shall be waived; and/or
in the event that the conditional payment due on March 30,
2003 is indefeasibly paid in full on or before March 30, 2003,
then that portion of the Amendment Fee due on or before March
31, 2003 shall be waived.
(c) the following are added after Subparagraph 2.7 (d) as new
Subparagraphs 2.7 (e), 2.7 (f), 2.7 (g) and 2.7 (h):
"2.7 (e) In addition to and not in substitution of any
and all regularly scheduled payments under the Credit
Agreement and/or the Loan Documents, the Borrowers shall make
the following Mandatory Prepayments as permanent reductions to
the Commitment for the pro rata accounts of the Lenders:
(i) $125,000 monthly on the 15th day of each month
beginning on the 15th day of December 2002; and,
(ii) $2,700,000 on or before October 30, 2002; and,
2.7 (f) In addition to and not in substitution of any and all
regularly scheduled payments under the Credit Agreement and/or the
Loan Documents, the
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Borrowers shall make the following payments from any proceeds of
Capital Events:
(i) $5,000,000 on or before December 30, 2002; and
(ii) $5,000,000 on or before March 30, 2003."
2.7 (g) Notwithstanding anything to the contrary contained in
the Credit Agreement from on and after the date hereof, Agent and
Lenders may apply any Mandatory Prepayments and/or conditional
payments to the Obligations for the pro rata accounts of the Lenders
in its sole discretion
2.7 (h) Notwithstanding the foregoing, it is understood and
agreed that the Borrowers shall make best efforts to consummate one
or more Capital Event as more particularly described in Section D
hereof, in order to make the conditional payments described in
Subparagraph 2(f) above. In the event that Borrowers fail to make
all or part of the conditional payments due on or before December
30, 2002 or March 30, 2003 as set forth in Subparagraph 2(f) above,
Borrowers shall notify the Agent in writing as to the reasons for
their inability to make said conditional payments or any part
thereof and shall request in writing that the Agent defer said
conditional payments. Contemporaneously with Borrowers written
notice as aforesaid Borrowers shall pay to the Agent for the benefit
of the Lenders, that portion of the Amendment Fee due as of the date
specified.
(d) SECTION 6. NEGATIVE COVENANTS is hereby amended as follows:
Section 6.1(a) is amended to begin with the fiscal quarter ended
September 30, 2002.
Section 6.1 (b) is deleted in its entirety and the following is
substituted therefore:
"(b) Operating Income. Permit Operating Income of the Parent, on a
consolidated basis, to be less than the following amounts for the
following periods:
FISCAL QUARTER ENDED OPERATING INCOME
(i) December 31, 2002 $945,000
(ii) March 31, 2003 $844,000
(iii) June 30, 2003 $732,000
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B. REPRESENTATIONS AND WARRANTIES. Each Credit Party hereby certifies
that:
1. Except as otherwise set forth in releases or public filings by the
Parent or communicated to Lender by the Parent in writing, the representations
and warranties, covenants and promises made by each Credit Party in Section 3 of
the Credit Agreement and/or in any of the Loan Documents are true and accurate
on and as of the date hereof, with the same force and effect as though such
representations, warranties, covenants and promises were made on the date
hereof.
2. Except as otherwise set forth in releases or public filings by the
Parent or communicated to Lender by the Parent in writing, there has been no
material change in the condition, financial or otherwise of the Borrowers,
Guarantors or other Credit Parties or any of their respective Subsidiaries since
the date of their most recent financial reports received by each Lender under
Section 5 of the Credit Agreement;
3. The business and properties of each Credit party and any of their
respective Subsidiaries are not, and since the date of the most recent financial
reports of the Borrowers received by each Lender under Section 5 of the Credit
Agreement have not been adversely affected in any substantial way as a result of
any fire, explosion, earthquake, accident, strike, lockout, combination of
workmen, flood, embargo, riot, activities or armed forces, war or acts of God or
the public enemy, or cancellation or loss of any major contracts; and,
4. No event has occurred an no condition exists which, upon the
effectiveness of the amendments contemplated hereby, will constitute a Default
or an Event of Default on the part of any Credit party under the Credit
Agreement or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
C. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THE FIRST AMENDMENT.
The effectiveness of this First Amendment is subject to the receipt by the
Agent of (a) five (5) counterparts of this First Amendment duly executed by all
signatories hereto (b) the Amendment Fee and any other fees or costs including
reasonable attorneys fees of staff counsel incurred by the Agent (c) any and all
corporate governance documents requested by the Agent, including but not limited
to corporate and/or partnership resolutions and corporate good standing
certificates for each Credit Party (d) an opinion of counsel satisfactory to
Agent and (e) the Budget and any financial statements due from the Borrowers in
form and substance satisfactory to the Agent. Agent agrees to accept items
enumerated in (c) and (d) subsequent to receipt of the signed First Amendment
but no later than 30 days from Agent's receipt of the signed First Amendment and
acknowledges receipt of statements required under (e).
D. WAIVER ACTION.
1. The Waiver is limited as specified herein and shall not constitute an
amendment or modification of the Credit Agreement or any other Loan Document.
2. The Waiver is granted only for the specific instance and for the time
specified
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herein and in no event shall constitute a waiver for any period other that the
Borrowers' three quarter period ended September 30, 2002 or in any manner create
a course of dealing or otherwise impair the future ability of the Agent and the
Lenders to declare a Default or Event of Default under or otherwise enforce the
terms of the Credit Agreement.
E. CONDITIONS PRECEDENT TO CONTINUED EFFECTIVENESS OF THE FIRST
AMENDMENT.
1. Borrowers shall actively and diligently pursue refinancing the
Obligations ("Refinancing"), and/or the obtaining of additional working capital
and/or Asset Sales, and/or the issuance or sale of any equity securities or
junior debt securities or instruments or any combination thereof ("Capital
Events") in order to insure the full indefeasible payment of the Obligations on
or before the Commitment Termination Date.
2. At all times relevant hereto, Borrowers shall regularly provide to the
Agent, (at least monthly), verbal status reports regarding any and all strategic
alternatives pursued by the Borrowers in connection with the Capital Events
described in SECTION E.1 above.
3. Failure to comply with any term or condition of this First Amendment
shall be a default hereunder. Upon a default under this First Amendment, which
shall be deemed an Event of Default under the Credit Agreement and/or upon the
occurrence of an Event of Default under the Credit Agreement or other Loan
Documents at any time hereafter, which default and/or Event of Default continues
after any applicable cure period, the Agent on behalf of the Lenders may, in its
sole discretion, immediately exercise and enforce any and all rights and
remedies available to the Agent and Lenders under the Credit Agreement, at law
or in equity.
F. MISCELLANEOUS.
1. Release of the Agent and Lenders. By execution of this First Amendment,
the Borrowers, Guarantors and other Credit Parties jointly and severally
acknowledge and confirm that they do not have any offsets, defenses or claims
against the Agent or the Lenders, or any of their officers, agents, directors or
employees whether asserted or unasserted. To the extent that they may have such
offsets, defenses or claims, the Borrowers Guarantors and Credit Parties and
each of their respective successors, assigns, parents, subsidiaries, affiliates,
predecessors, employees, agents as applicable jointly and severally, release and
forever discharge the Agent and the Lenders, and their subsidiaries, affiliates,
officers, directors, employees, agents, attorneys, successors and assigns, both
present and former ("Lender Affiliates") of and from any and all manner of
action and actions, cause and causes of action, suits, debts, controversies,
damages, judgments, executions, claims and demands whatsoever, asserted or
unasserted, in law or in equity which /against the Agent, the Lenders and/or the
Lender Affiliates they ever had, now have or which any to the Borrowers',
Guarantors' or Credit Parties' successors, assigns, parents, subsidiaries,
affiliates, predecessors, employees, agents as applicable, both present and
former ever had or now has, upon or by reason of any manner, cause, causes or
thing whatsoever, including without limitation any presently existing claim or
defense whether or not presently suspected, contemplated or anticipated.
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2. Entire Agreement/Binding Effect. This First Amendment sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter. None of the terms or conditions of
this First Amendment may be changed, modified, waived or canceled orally or
otherwise, except in accordance with the terms of the Credit Agreement. This
First Amendment shall inure to the benefit and bind the respective
representatives, successors and the permitted assigns of the parties hereto.
3. Voluntary Agreement. The Credit Parties represent and warrant they are
represented by legal counsel of their choice, are fully aware of the terms
contained in this First Amendment and have voluntarily and without coercion or
duress of any kind, entered into this First Amendment and the documents executed
in connection herewith.
4. Notices. All notices requests and demands to or upon the respective
parties hereto be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by mail, three days
after being deposited in the mail, postage prepaid (b) in the case of delivery
by hand, when delivered, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows in
the case of the Credit Parties and the Agent or to such address as may be
hereafter notified by the respective parties hereto:
If to any Credit Party c/x Xxxxxxx Technology Company, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn. Xx. Xxxxx X. Xxxxxxx
CFO
Fax: 000-000-0000
If To the Agent: Fleet National BankBoston
000 Xxxx Xxxxxx XXXX00000X
Xxxxxxxx, XX. 06115
Attn. Xx. Xxxxxx Xxxxxxx
Vice President
Fax: 000-000-0000
5. Full Force and Effect of First Amendment. Except as hereby specifically
amended, modified or supplemented, or otherwise previously revised by the
parties, the Credit Agreement and all of the other Security Documents and Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
6. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF parties hereto have caused this First Amendment to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWERS:
XXXXXXX AMERICAS CORPORATION
XXXXXXX EUROPE CONSOLIDATEDINC.
XXXXXXX ASIA PACIFIC CORPORATION
By:
---------------------------------------
Xxxxx X. Xxxxxxx
Title: Vice President
GUARANTORS:
XXXXXXX TECHNOLOGY COMPANY, INC.
By:
---------------------------------------
Xxxxx X. Xxxxxxx
Title: Vice President, CFO &
Treasurer
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XXXXXXX TECHNOLOGY CORPORATION
XXXXXXX GRAPHIC SYSTEMS, INC.
By:
---------------------------------------
Xxxxx X. Xxxxxxx
Vice President
XXXXXXX KANSA CORPORATION
By:
---------------------------------------
Xxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX EUROPE CONSOLIDATED BV
By:
---------------------------------------
Henricus X.X. Xxxxxxxxxx
By:
---------------------------------------
Xxxxx X. Xxxxxxx
Title: Directors
XXXXXXX GERMANY GMBH
By:
---------------------------------------
Xxxx X. Xxxxxxxxxx
Title: Geschaftsfuhrer
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XXXXXXX SWEDEN HOLDING XX
XXXXXXX IVT XX
XXXXXXX JIMEK AB
By:
---------------------------------------
Xxxxxx Xxxxxxx
Title: Managing Director
XXXXXXX JAPAN LTD
By:
---------------------------------------
Tak Miyaoku
Representative Director
LENDER(S):
FLEET NATIONAL BANK
as Administrative Agent and Lender
By:
---------------------------------------
Xxxxxx X. Xxxxxxx
Title: Vice President
WACHOVIA BANK NATIONAL ASSOCIATION formerly
known as First Union National Bank As
Documentation Agent and Lender
By:
---------------------------------------
Xxxxxxx X. Xxxx
Title: Vice President
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SCHEDULE 1-C
TO CREDIT AGREEMENT
LENDERS, COMMITMENTS, AND ADDRESSES FOR NOTICES
Name/Address Commitment as of 10/9/02
Fleet National Bank Revolving Credit Loan-$6,325,000.00
000 Xxxx Xxxxxx Letter of Credit-$1,500,000.00 (EURO)
Xxxxxxxx, XX. 00000 Term Loan-$1,950,000.00
Wachovia National BankBoston Revolving Credit Loan-$6,325,000.00
f/k/a First Union National Bank Letter of Credit-$1,500,000.00 (EURO)
Term Loan-$1,950,000
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