Exhibit 10.54
Execution Copy
AMENDMENT AND WAIVER AGREEMENT NO. 4
TO
CREDIT AGREEMENT
AMENDMENT AND WAIVER AGREEMENT NO. 4 dated as of March 21, 2003 (this
"AGREEMENT"), to that certain Credit Agreement (as amended, modified, restated
or supplemented from time to time, the "CREDIT AGREEMENT"), dated as of June 20,
2002, made by and among Manufacturers' Services Limited, a Delaware corporation
(the "PARENT"), Manufacturers' Services Salt Lake City Operations, Inc., a
Delaware corporation ("MSSLCO"), Manufacturers' Services Western U.S.
Operations, Inc., a California corporation ("MSWUSO"), Manufacturers' Services
Central U.S. Operations, Inc., a Minnesota corporation ("MSCUSO"), MSL Xxxxxx
Operations, Inc., a Delaware corporation ("MSLLO"), MSL Midwest Operations,
Inc., a Delaware corporation ("MSLMO"; and together with the Parent, MSSLCO,
MSWUSO, MSCUSO and MSLLO, each a "BORROWER" and, collectively, the "BORROWERS"),
the financial institutions party thereto from time to time (the "LENDERS"), Bank
of America, N.A., as administrative agent (in such capacity, together with any
successor in such capacity, the "ADMINISTRATIVE AGENT"), Credit Suisse First
Boston, Cayman Islands Branch, as syndication agent, General Electric Capital
Corporation, as documentation agent, and Banc of America Securities LLC and
Credit Suisse First Boston, Cayman Islands Branch, as co-book managers and
co-lead arrangers, and the Guarantors party thereto.
The Borrowers, the Guarantors, the Majority Lenders and the
Administrative Agent desire to waive and amend certain provisions of the Credit
Agreement.
NOW, THEREFORE, subject to the condition precedent set forth in Section 4
hereof, the Borrowers, the Guarantors, the Majority Lenders and the
Administrative Agent hereby agree as follows:
SECTION 1 CAPITALIZED TERMS.
SECTION 1.1 Capitalized terms used herein and not defined herein
shall have the respective meanings assigned to such terms in
the Credit Agreement.
SECTION 2 WAIVERS TO THE CREDIT AGREEMENT.
SECTION 2.1 The Administrative Agent and the Majority Lenders hereby
waive the provisions of Section 7.25 of the Credit Agreement
as they relate to the period of four consecutive fiscal
quarters of the Parent ending June 30, 2003; PROVIDED, that
the Fixed Charge Coverage Ratio for such four consecutive
fiscal quarter period shall not be less than 0.70:1
SECTION 2.2 The Administrative Agent and the Majority Lenders hereby
waive the provisions of Section 7.26 of the Credit Agreement
as they relate to the
period of four consecutive fiscal quarters of the Parent
ending June 30, 2003; PROVIDED, that EBITDA (excluding
corporate overhead charges) for such four consecutive
fiscal quarter period shall not be less than $20,000,000.
SECTION 2.3 Except for the specific waivers set forth in Sections
2.1 and 2.2, nothing herein shall be deemed to be a waiver
of any covenant or agreement contained in the Credit
Agreement, and the Borrowers and Guarantors hereby agree
that all of the covenants and agreements contained in the
Credit Agreement are hereby ratified and confirmed in all
respects.
SECTION 3 AMENDMENTS TO THE LOAN AND SECURITY AGREEMENT.
SECTION 3.1 The definition of "EBITDA" in Appendix A to the Credit
Agreement is hereby amended in its entirety to read as
follows:
"EBITDA" means, with respect to any fiscal period of the
Parent, Adjusted Net Earnings from Operations, plus, to
the extent deducted in the determination of Adjusted Net
Earnings from Operations for that fiscal period, (a)
interest expenses, (b) (x) non-cash restructuring charges,
(y) the non-cash charge in the amount of $5,412,000 in the
fiscal quarter of the Parent ending December 31, 2002
relating to the $8,150,000 of indebtedness of Sonic Blue
Corporation owing to the Parent as of March 21, 2003 and
(z) other non-cash charges (excluding writeoffs of
inventory and, except as provided in subclause (y) above,
any provisions made for bad debt); PROVIDED, that in the
case of each of subclauses (x), (y) and (z) above, in the
event the Parent or any Subsidiary at any time makes or
receives, as applicable, any cash payment in respect of
any such non-cash charge, such cash payment shall be
deducted from EBITDA in the fiscal period in which such
payment is made or received, (c) Federal, state, local and
foreign income taxes, (d) depreciation and (e)
amortization."
SECTION 3.2 Section 7.10 of the Credit Agreement is hereby amended
by deleting "270 days" where it appears in the first line
thereof and substituting "360 days" therefor.
SECTION 3.3 Section 7.33 of the Credit Agreement is hereby amended
by deleting "270 days" where it appears in such section and
substituting "360 days" therefor.
SECTION 4 CONDITIONS PRECEDENT. This Agreement shall become effective on such
date as the following conditions have been satisfied in full:
SECTION 4.1 Counterparts of this Agreement executed by the
Borrowers, the Guarantors, the Majority Lenders and the
Administrative Agent shall have been delivered to the
Administrative Agent.
SECTION 4.2 The Borrowers shall have paid to the Administrative
Agent, for the ratable benefit of the Lenders who have
delivered to the Administrative Agent an executed signature
page to this Agreement prior to 2:00 p.m. on March 21, 2003,
an amendment fee in the amount of $150,000.
SECTION 5 MISCELLANEOUS
SECTION 5.1 Each of the Borrowers reaffirms and restates the
representations and warranties set forth in Article 6 of the
Credit Agreement and all such representations and warranties
shall be true and correct on the date hereof with the same
force and effect as if made on such date (except insofar as
such representation and warranties relate expressly to an
earlier date). Each of the Borrowers and Guarantors
represents and warrants (which representations and
warranties shall survive the execution and delivery hereof)
to the Administrative Agent and the Lenders that:
(a) It has the corporate power and authority to
execute, deliver and carry out the terms and provisions of
this Agreement and has taken or caused to be taken all
necessary corporate action to authorize the execution,
delivery and performance of this Agreement;
(b) No consent of any other person (including, without
limitation, shareholders or creditors of any Borrower or
Guarantor), and no action of, or filing with any
governmental or public body or authority is required to
authorize, or is otherwise required in connection with the
execution, delivery and performance of this Agreement;
(c) This Agreement and the other instruments and
documents contemplated hereby have been duly executed and
delivered by a duly authorized officer on behalf of such
party, and constitute a legal, valid and binding obligation
of such party enforceable against such party in accordance
with its terms, subject to bankruptcy, reorganization,
insolvency, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and the exercise
of judicial discretion in accordance with general principles
of equity; and
(d) The execution, delivery and performance of this
Agreement and the other instruments and documents
contemplated hereby will not violate any law, statute or
regulation, or any order or decree of any court or
governmental instrumentality, or conflict with, or result in
the breach of, or constitute a default under any contractual
obligation of such party.
SECTION 5.2 Except as herein expressly amended or waived nothing
herein shall be deemed to be a waiver of any covenant or
agreement contained in the Credit Agreement, and each
Borrower and Guarantor hereby agrees that all of the
covenants and agreements contained in the Credit Agreement
and the other Loan Documents are hereby ratified and
confirmed in all
respects and shall remain in full force and effect in
accordance with their respective terms.
SECTION 5.3 All references to the Credit Agreement in the Credit
Agreement or any other Loan Document and the other documents
and instruments delivered pursuant to or in connection
therewith shall mean the Credit Agreement as amended hereby
and as the Credit Agreement may in the future be amended,
restated, supplemented or modified from time to time.
SECTION 5.4 This Agreement may be executed by the parties hereto
individually or in combination, in one or more counterparts,
each of which shall be an original and all of which shall
constitute one and the same agreement.
SECTION 5.5 Delivery of an executed counterpart of a signature page
by telecopier shall be effective as delivery of a manually
executed counterpart.
SECTION 5.6 This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New
York.
SECTION 5.7 The parties hereto shall, at any time and from time to
time following the execution of this Agreement, execute and
deliver all such further instruments and take all such
further action as may be reasonably necessary or appropriate
in order to carry out the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have entered into this Agreement on the
date first above written.
"BORROWERS"
MANUFACTURERS' SERVICES LIMITED
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MANUFACTURERS' SERVICES
SALT LAKE CITY OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MANUFACTURERS' SERVICES
WESTERN U.S. OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MANUFACTURERS' SERVICES
CENTRAL U.S. OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL XXXXXX OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL MIDWEST OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
"GUARANTORS"
MANUFACTURERS' SERVICES LIMITED
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MANUFACTURERS' SERVICES
SALT LAKE CITY OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MANUFACTURERS' SERVICES
WESTERN U.S. OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MANUFACTURERS' SERVICES
CENTRAL U.S. OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL XXXXXX OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL MIDWEST OPERATIONS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL SPV SPAIN, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL HOLDINGS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
MSL INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Treasurer
"ADMINISTRATIVE AGENT"
BANK OF AMERICA, N.A.,
as the Administrative Agent
By: /s/ Xxxxx Xxxxx
-----------------------------------
Title: AVP
"REVOLVING LENDERS"
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxx
-----------------------------------
Title: AVP
CREDIT SUISSE FIRST BOSTON,
CAYMAN ISLANDS BRANCH
By:/s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxxx
--------------- ------------------
Title: Director Associate
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
UPS CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Title: Managing Director
CONGRESS FINANCIAL CORPORATION (CENTRAL)
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Title: First Vice President
HSBC BUSINESS CREDIT (USA) INC
By: /s/ Xxx Xxxxx
-----------------------------------
Title: VicePresident
ORIX FINANCIAL SERVICES, INC.
By: /s/ Xxxx Nowekowski
-----------------------------------
Title: Vice President
"TERM LENDERS"
XXXXXXX CAPITAL LTD.
By: Citadel Partnership,
Portfolio Manager
By: GLB Partners, L.P.,
its General Partner
By: Citadel Investment Group, L.L.C.,
its General Partner
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Title: Portfolio Manager
