AMENDMENT NO. 5 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENT ("Amendment No. 5") is made this
29th day of December, 1995 by and among SDI OPERATING PARTNERS, L.P.
("Borrower"), SUN DISTRIBUTORS, L.P., the sole limited partner of Borrower
("GUARANTOR"), each a Delaware limited partnership with offices at 0000 Xxx
Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, SDI PARTNERS I, L.P., a
Delaware Limited Partnership with offices at 0 Xxxxx Xxxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxxxx 00000-0000, the sole general partner of Borrower and Guarantor
("SDIPI"); CORESTATES BANK, N.A., a national banking association with offices at
Broad and Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, for itself and as
Agent for the Banks identified below ("Agent"); and THE BANK OF NOVA SCOTIA and
THE FUJI BANK, LIMITED (together with Agent, collectively, the "Banks").
WITNESSETH:
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WHEREAS, Agent and Banks entered into a Credit Agreement dated December 22,
1992, an Amendment No. 1 to Credit Agreement dated April 22, 1993, and Amendment
No. 2 to Credit Agreement dated January 14, 1994, and Amendment No. 3 to Credit
Agreement dated March 2, 1994 and an Amendment No. 4 to Credit Agreement dated
December 31, 1994 (as amended from time to time, including by this Amendment No.
5, the "Credit Agreement") with Borrower, in which SDIPI joined for purposes of
making certain representations and covenants and Guarantor joined to guaranty
the indebtedness of Borrower thereunder, and pursuant to which, the Banks agreed
to provide to Borrower advances and letters of credit up to an aggregate
principal amount outstanding at any time of Fifty Million Dollars ($50,000,000),
subject to the terms and conditions set forth therein;
WHEREAS, Agent, Banks, Borrower, SDIPI and Guarantor wish to enter into
this Amendment No. 5 to extend the Termination Date, agree upon an exclusion to
the term Distributions in determining Fixed Charges for purposes of calculating
the Fixed Charge Coverage Ratio set forth in Paragraph 6.17 hereof, and amend
the covenant set forth in Paragraph 6.21 of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements herein
set forth and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment
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No. 5 shall have the meanings given to them in the Credit Agreement.
2. Extension of Termination Date.
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a. The Banks hereby agree to extend the Termination Date to December
31, 1997. All procedural requirements of Paragraph 2.1 (b) of the Credit
Agreement are hereby waived by the Banks in connection with the foregoing
extension, but are not waived in connection with any subsequent request of the
Borrower to extend the Termination Date.
b. The Borrowers hereby agree to pay Agent on behalf of Banks an
extension fee of Ten Thousand Dollars ($10,000), which fee shall be shared by
Banks on the basis of their respective Pro Rata Shares.
3. Fixed Charge Coverage Ratio. For purposes of Paragraph 6.17 hereof,
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in connection with calculating the Fixed Charge Coverage Ratio, Fixed Charges
shall be calculated by subtracting for Distributions, Distributions to fund Tax
Distributions (as defined in the Guarantor's Agreement of Limited Partnership)
to Partners (as defined in Guarantor's Agreement of Limited Partnership) with
respect to taxes on capital gains recognized by Borrower as a result of sales of
capital or trade or business assets by Borrower to the extent of cash received
by Borrower in respect of such sale and included in Operating Partnership
Available Cash (as defined in Borrower's Agreement of Limited Partnership) for
the Fiscal Year in which the Distribution is proposed to be made.
4. Distributions. paragraph 6.21 of the Credit Agreement is hereby
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amended and restated in its entirety as follows:
Maintain, as of the last day of each fiscal quarter, a ratio of (a)
Distributions paid in each Rolling Period less Distributions to fund Tax
Distributions (as defined in the Guarantor's Agreement of Limited
Partnership) to Partners (as defined in Guarantor's Agreement of Limited
Partnership) with respect to taxes on capital gains recognized by Borrower
as a result of sales of capital or trade or business assets by Borrower to
the extent of cash received by Borrower in respect of such sale and
included in Operating Partnership Available Cash (as defined in Borrower's
Agreement of Limited Partnership) for the Fiscal Year in which the
Distribution is proposed to be made, to (b) Consolidated EBITDA less
Management Fees
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expensed in the same Rolling Period, not to exceed .55 to 1.0 for any
such Rolling Period ending on or before December 31, 1994; not to
exceed .78 to 1.0 for any such Rolling Period ending on or before
December 31, 1995; and not to exceed .60 to 1.0 for any Rolling Period
ending any time after December 31, 1995; it being agreed that nothing
in this Paragraph shall permit Borrower to make Distributions not
otherwise permitted by Paragraph 7.6 hereof, or which are proposed to
be made at a time when Borrower is not in compliance with, or which
would cause Borrower to cease to comply with, all other covenants set
forth in Articles 6 or 7 hereof.
5. Affirmation. Borrower, SDIPI and Guarantor (to the extent
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applicable) hereby affirm all of the provisions of the Credit Agreement, as
amended, including by this Amendment No. 5, and agree that the terms and
conditions of the Credit Agreement shall continue in full force and effect as
supplemented and amended hereby.
6. Miscellaneous.
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a. This Amendment No. 5 and any other Amendment Document shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania.
b. Borrower agrees to reimburse Agent for all reasonable costs and
expenses (including but not limited to, reasonable attorneys' fees and
reasonable disbursements) which Agent may pay or incur in connection with the
preparation of this Amendment No. 5 and the preparation or review of other
documents executed or delivered in connection herewith.
c. All terms and provisions of this Amendment No. 5 shall be for
the benefit of and be binding upon and enforceable by the respective successors
and assigns of the parties hereto.
d. This Amendment No. 5 may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document and each such counterpart shall be deemed an original.
e. The execution, delivery and performance of this Amendment No. 5
shall not effect a waiver of any right, power or remedy of Banks under
applicable law or under the Credit
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Agreement and the agreements and documents executed in connection therewith or
constitute a waiver of any provision thereof.
IN WITNESS WHEREOF, the undersigned by their duly authorized officers, have
executed this Amendment No. 5 the day and year first written above.
SDI OPERATING PARTNERS, L.P.,
By: SDI Partners I, L.P., its
general partner
By: XXXXXX/SDI, INC., its
general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President-Finance
& CFO
SUN DISTRIBUTORS L.P., as Guarantor
By: SDI Partners I, L.P., its
general partner
By: XXXXXX/SDI, INC., its
general partner
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President-Finance
& CFO
SDI PARTNERS I, L.P., to the extent
it is a party to the Credit
Agreement
By: XXXXXX/SDI, INC., its general
partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President - Finance
& CFO
CORESTATES BANK, N.A., individually
and in its capacity as Agent
hereunder
By:
----------------------------------
Title:
[EXECUTIONS CONTINUED]
Agreement and the agreements and documents executed in connection therewith or
constitute a waiver of any provision thereof.
IN WITNESS WHEREOF, the undersigned by their duly authorized officers, have
executed this Amendment No. 5 the day and year first written above.
SDI OPERATING PARTNERS, L.P.,
By: SDI Partners I, L.P., its
general partner
By: XXXXXX/SDI, INC., its
general partner
By:
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Title:
SUN DISTRIBUTORS L.P., as Guarantor
By: SDI Partners I, L.P., its
general partner
By: XXXXXX/SDI, INC., its
general partner
By:
------------------------------
Title:
SDI PARTNERS I, L.P., to the extent
it is a party to the Credit
Agreement
By: XXXXXX/SDI, INC., its general
partner
By:
----------------------------------
Title:
CORESTATES BANK, N.A., individually
and in its capacity as Agent
hereunder
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Senior Vice President
[EXECUTIONS CONTINUED]
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XXX XXXX XX XXXX XXXXXX
By: /s/ J. XXXX XXXXXXX
---------------------------------
Title: J. XXXX XXXXXXX
AUTHORIZED SIGNATORY
THE FUJI BANK, LIMITED
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Title: Vice President and Manager
