EXHIBIT 10.1-A
FIRST AMENDMENT AND WAIVER
FIRST AMENDMENT AND WAIVER, dated as of March 16, 1998 (this
"AMENDMENT"), to the Credit Agreement, dated as of January 24, 1997 (as amended,
supplemented, waived or otherwise modified from time to time, the "CREDIT
AGREEMENT"; unless otherwise defined herein, terms which are defined in the
Credit Agreement and used herein are so used as so defined), among XXXXXX, FARGO
& CO. (the "BORROWER"), the several lenders from time to time parties thereto
(the "LENDERS"), XXXXXX COMMERCIAL PAPER INC. ("LCPI") and NATIONSBANK OF TEXAS,
N.A. ("NATIONSBANK"), as arrangers (in such capacity, the "ARRANGERS"), LCPI and
NATIONSBANC XXXXXXXXXX SECURITIES LLC (successor to NationsBank Capital Markets,
Inc.), as syndication agents (in such capacity, the "SYNDICATION AGENTS"), LCPI,
as documentation agent (in such capacity, the "DOCUMENTATION AGENT") and
NationsBank, as administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders waive certain
Events of Default under the Credit Agreement and amend certain provisions of the
Credit Agreement; and
WHEREAS, Required Lenders are willing to consent to the requested
waivers and amendments, but in each case only upon the terms and subject to the
conditions set forth herein;
NOW THEREFORE, in consideration of the premises contained herein, the
parties hereto agree as follows:
1. Waiver. Required Lenders hereby waive any Default or Event of Default
under the Credit Agreement occurring by reason of the Borrower's failure to
comply with any of the provisions of Sections 7.1(a) ("Maintenance of Net
Worth"), 7.1(b) ("Consolidated EBITDA"), or 7.1(c) ("Debt Ratio") as of, or
prior to, December 31, 1997.
2. Definitions. Section 1.1 of the Credit Agreement is hereby amended by
adding the following new defined terms in their proper alphabetical order:
"Consolidated Adjusted EBITDA": for any fiscal period (a) the
sum of (i) Consolidated EBITDA, plus (ii) Net Cargo Losses during such
period (to the extent deducted in computing Consolidated EBITDA), minus
(b) the Maximum Net Cargo Loss Amount for such fiscal period.
"Consolidated Adjusted Net Losses": for any fiscal period (a)
net losses after income taxes of the Borrower and its Subsidiaries
(determined on a consolidated basis without duplication in accordance
with GAAP), plus (b) Net Cargo Losses during such period (to the extent
deducted in determining net losses).
"Consolidated Senior Debt": at any date, all Indebtedness of the
Borrower and its Subsidiaries for borrowed money or the deferred
purchase price of property outstanding under the Credit Agreement or
otherwise, provided that Consolidated Senior Debt will not include (a)
Indebtedness that is expressly subordinated in right of payment to the
Loans, (b) liabilities for taxes, (c) trade payables, and (d)
Indebtedness of the Borrower to a Subsidiary.
"Maximum net Cargo Loss Amount":
(a) for each of the first three fiscal quarters in any fiscal
year of the Borrower: the lesser of (i) Net Cargo Losses during such
fiscal quarter and (ii) the aggregate annual "stop loss amount" in
effect as of the last day of such fiscal quarter under policies insuring
the Borrower and its Subsidiaries for the loss of, or damage to,
property of customers, divided by four; provided that if the amount
under clause (i) above for any fiscal quarter (after all prior
adjustments pursuant to this proviso) exceeds the amount under clause
(ii) above for any fiscal quarter, such excess shall be included in
computing the amount under clause (i) in the following quarter; and
(b) for the last fiscal quarter in any fiscal year of the
Borrower, the "Maximum Net Cargo Loss Amount" shall be (i) aggregate Net
Cargo Losses during such fiscal year, minus (ii) the aggregate Maximum
Net Cargo Loss Amount for the first three fiscal quarters of such fiscal
year.
"Net Cargo Loss": any retained liability (or deductible)
incurred resulting from the loss of, or damage to, property of customers
covered under the Company's cash-in-transit insurance program, inclusive
of any gain sharing adjustments with the insurance carrier and cargo
incentive programs with the employees recorded as required on a GAAP
basis for a fiscal reporting period.
3. Minimum Adjusted Net Profit. Section 7.1(a) of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
(a) Minimum Adjusted Net Profit.
(i) Permit Consolidated Adjusted Net Losses to exceed
$1,000,000 in any fiscal quarter ending on December 31, 1998, or
thereafter; or
(ii) Permit a Consolidated Adjusted Net Loss to occur in
each of any two consecutive fiscal quarters ending after
December 31, 1998.
4. Consolidated Adjusted EBITDA. Section 7.1(b) of the Credit Agreement
is hereby restated in its entirety to read as follows:
(b) Consolidated Adjusted EBITDA. Permit Consolidated Adjusted
EBITDA for the period of four consecutive fiscal quarters ending on the
last day of any fiscal quarter set forth below to be less than the
amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
December 31, 1998 $27,500,000
March 31, 1999 28,000,000
June 30, 1999 29,000,000
Thereafter 30,000,000
5. Debt Ratio. Section 7.1(c) of the Credit Agreement is hereby restated
in its entirety to read as follows:
(c) Debt Ratio. Permit the ratio, as of the last day of any
fiscal quarter, of Consolidated Total Debt on such date to Consolidated
Adjusted EBITDA for the four consecutive fiscal quarters ended on such
date to be greater than the ratio set forth below for such fiscal date:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 1998 7.00
June 30, 1998 7.00
September 30, 1998 7.00
December 31, 1998 6.25
March 31, 1999 6.00
June 30, 1999 6.00
September 30, 1999 6.00
December 31, 1999 5.25
March 31, 2000 5.00
June 30, 2000 5.00
September 30, 2000 5.00
December 31, 2000 4.25
Thereafter 4.00
6. Consolidated Adjusted EBITDA to Debt Service Ratio. Section 7.1(d) of
the Credit Agreement is hereby deleted in its entirety and replaced with the
following:
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(d) Consolidated Adjusted EBITDA to Debt Service Ratio. Permit
the ratio, as of the last day of any fiscal quarter of Consolidated
Adjusted EBITDA for the four consecutive fiscal quarters ended on such
date to Consolidated Debt Service for the same period to be less than
the ratio set forth below for such fiscal date:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 1998 1.25
June 30, 1998 1.25
September 30, 1998 1.25
Thereafter 1.50
7. Consolidated Senior Debt to Adjusted EBITDA Ratio. The following new
Section 7.1(e) is hereby added to the Credit Agreement:
(e) Consolidated Senior Debt to Adjusted EBITDA Ratio: Permit
the ratio, as of the last day of any fiscal quarter, of Consolidated
Senior Debt on such date to Consolidated Adjusted EBITDA for the four
consecutive fiscal quarters ended on such date to be greater than the
ratio set forth below for such fiscal date:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 1998 3.50
June 30, 1998 3.50
September 30, 1998 3.50
December 31, 1998 3.00
March 31, 1999 3.00
June 30, 1999 3.00
September 30, 1999 3.00
December 31, 1999 2.75
March 31, 2000 2.75
June 30, 2000 2.75
September 30, 2000 2.75
Thereafter 2.50
8. Limitation of Capital Expenditures. Section 7.9 of the Credit
Agreement is hereby restated in its entirety to read as follows:
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7.9 Limitation on Capital Expenditures. Make or commit to make (by way
of the acquisition of securities of a Person or otherwise) any expenditure in
respect of the purchase or other acquisition of fixed or capital assets
(excluding any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations) except for
expenditures in the ordinary course of business not exceeding, in the aggregate
for the Borrower and its Subsidiaries during any period of four consecutive
fiscal quarters ending on the last day of any fiscal quarter of the Borrower set
forth below, the amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
March 31, 1998 $15,000,000
June 30, 1998 15,000,000
September 30, 1998 15,000,000
December 31, 1998 15,000,000
March 31, 1999 17,500,000
June 30, 1999 17,500,000
September 30, 1999 17,500,000
December 31, 1999 17,500,000
March 31, 2000 20,000,000
June 30, 2000 20,000,000
September 30, 2000 20,000,000
December 31, 2000 20,000,000
Thereafter 22,500,000
; provided, that up to $2,500,000 for each fiscal year from and including 1998
and thereafter of any such amount if not so expended in the fiscal year for
which it is permitted above may be carried over for expenditure in the next
following year.
9. Schedule of Rates. Schedule II to the Credit Agreement is hereby
replaced with Schedule II attached to this Amendment.
10. General Provisions.
(a) Representations and Warranties. On and as of the date hereof
and after giving effect to this Amendment, the Borrower hereby confirms,
reaffirms and restates the representations and warranties set forth in
the Credit Agreement as if made on and as of the date hereof, except to
the extent that such representations and warranties expressly relate to
a specific earlier date in which case the Borrower hereby confirms,
reaffirms and restates such representations and warranties as of such
earlier date.
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(b) Effectiveness. This Amendment shall become effective as of the
date hereof upon receipt by the Administrative Agent of (i) counterparts of this
Amendment duly executed and delivered by the Borrower and consented to by the
Required Lenders, and (ii) an amendment fee of $115,000 for the pro rata benefit
of all Lenders (based on their respective Commitment percentages).
(c) Continuing Effect: No Other Amendments. Except as expressly waived
hereby, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect in accordance with their respective terms. The
waiver provided for herein is limited to the specific subsection of the Credit
Agreement specified herein and narrowly construed and shall not constitute a
waiver of, or an indication of the Lenders' willingness to waive, any other
provisions of the Credit Agreement or any other Credit Document or the same
subsection for any other date or time period (whether or not such other
provisions or compliance with such subsections for another date or time period
are affected by the circumstances addressed in this Amendment).
(d) Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
(e) Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. A set of the copies of this Amendment signed by the
parties hereto shall be delivered to the Borrower and the Administrative Agent.
(f) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
XXXXXX, FARGO & CO.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
----------------------------
Title: Executive Vice President
---------------------------
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XXXXXX, FARGO & CO.,
a Texas corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Title: Executive Vice President
-------------------------
LFC HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Title: Executive Vice President
-------------------------
XXXXXX, FARGO & CO. OF PUERTO
RICO
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Title: Executive Vice President
-------------------------
LFC ARMORED CAR OF TEXAS INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
----------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
--------------------------
Title: Executive Vice President
-------------------------
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XXXXXX SYNDICATED LOANS INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
---------------------------
Title: Authorized Signatory
---------------------------
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and as a Lender
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
GENERAL ELECTRIC CAPITAL
CORPORATION
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
BANKBOSTON, N.A.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
8
SANWA BUSINESS CREDIT
CORPORATION
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
THE SUMITOMO BANK, LIMITED
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
COMERICA BANK
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
ERSTE BANK DER
OESTERREICHISCHEN SPARKASSEN
AG.
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
9
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
UNION BANK OF CALIFORNIA, N.A.,
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
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SCHEDULE II
APPLICABLE APPLICABLE
EURODOLLAR BASE RATE COMMITMENT
DEBT RATIO MARGIN MARGIN FEE
-----------------------------------------------------------------------------------------------------------------------------------
Greater than or equal to 5.25 2.500% 1.500% 0.500%
Greater than or equal to 5.00 but less than 5.25 2.250% 1.250% 0.500%
Greater than or equal to 4.25 but less than 5.00 1.875% 0.875% 0.450%
Greater than or equal to 3.75 but less than 4.25 1.625% 0.625% 0.375%
Greater than or equal to 3.25 but less than 3.75 1.375% 0.375% 0.375%
Less than 3.25 1.125% 0.125% 0.375%
