EXHIBIT 4.17
FIRST AMENDMENT
FIRST AMENDMENT dated as of December 13, 2002 (this
"Amendment"), to the CREDIT AGREEMENT, dated as of December 20, 2001, among
XXXXXXX & XXXXXX PRODUCTS CO., a Delaware corporation (the "Company"), XXXXXXX &
XXXXXX CANADA INC., a Canadian corporation, XXXXXXX & XXXXXX PLASTICS, LTD., a
Canadian corporation, XXXXXXX & XXXXXX CORPORATION, a Delaware corporation
("Holdings"), the financial institutions parties thereto (the "Lenders"), CREDIT
SUISSE FIRST BOSTON, as syndication agent, DEUTSCHE BANK SECURITIES INC.
(formerly known as DEUTSCHE BANC ALEX. XXXXX INC.) and XXXXXXX XXXXX CAPITAL
CORPORATION, as co-documentation agents, JPMORGAN CHASE BANK, a New York banking
corporation ("JPMorgan Chase Bank"), as administrative agent (in such capacity,
the "Administrative Agent"), and X.X. XXXXXX BANK CANADA, a Canadian chartered
bank, as Canadian administrative agent.
WHEREAS pursuant to the Credit Agreement, the Lenders have
agreed to make certain loans to the Borrowers; and
WHEREAS the Company has requested that certain provisions of
the Credit Agreement be modified in the manner provided for in this Amendment,
and the Lenders are willing to agree to such modifications as provided for in
this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined
herein shall have the meanings given to them in the Credit Agreement, as amended
hereby.
2. Amendments to Section 1.01. Section 1.01 of the Credit
Agreement is hereby amended as follows:
(a) the definition of "Capital Expenditures" is hereby amended
by adding the following at the end thereof:
"Notwithstanding the foregoing and any contrary provision
herein, to the extent that the Borrowers or any Restricted
Subsidiary purchases, leases or otherwise acquires assets from
any person in a manner which would be subject to Section 6.08
and, but for the first parenthetical herein, would constitute
a Capital Expenditure, Holdings may elect to treat the
expenditure for such transaction as a Capital Expenditure and
such expenditure shall be deemed to be a Capital Expenditure
and shall not be subject to the restrictions of Section 6.08."
(b) the definition of "EBITDA" is hereby amended (but not for
purposes of determining the Applicable Margin) by deleting
"$25,000,000" in clause (xii) thereof and substituting "$55,000,000" in
its place.
(c) the definition of "Excluded Collateral" is hereby amended
by deleting clause (v) thereof and adding the following in its place:
"(v) accounts receivable, related security,
collections and proceeds with respect thereto sold, or
purported to be sold, pursuant to a Permitted Receivables
Financing (but only for so long as such accounts receivable,
related security, collections and proceeds are subject to a
Permitted Receivables Financing);"
(d) the definition of "Foreign Subsidiary Letter of Credit" is
hereby amended by inserting the following language before the clause
"or the Brazilian Subsidiary" at the end thereof:
", except to the extent that Indebtedness has been
incurred under clause (viii) of Section 6.01(c),".
(e) the definition of "Prepayment Event" is hereby amended by
deleting the word "and" which precedes clause (ii) thereof and adding
the following at the end of clause (ii) and before the proviso clause:
"and (iii) any arrangement or transaction entered
into in accordance with clause (d) of Section 6.06."
3. Amendment to Section 2.19. Section 2.19(a) of the Credit
Agreement is hereby amended by replacing the phrase "the Letter of Credit
Exposure in respect of Indebtedness of the Brazilian Subsidiary shall not exceed
$30,000,000 and" in clause (i)(y) thereof with the following phrase "the Letter
of Credit Exposure in respect of Indebtedness of the Brazilian Subsidiary shall
not exceed an amount equal to $30,000,000 less the amount of any Indebtedness
incurred under clause (viii) of Section 6.01(c) and".
4. Amendments to Section 5.
(a) Section 5.04(a)(ii) of the Credit Agreement is hereby
amended by (i) adding the phrase "and Waterstone Insurance Inc."
immediately following the phrase "Carcorp., Inc." therein; (ii)
deleting the word "is" immediately following the phrase "Carcorp.,
Inc." and adding the word "are" in its place and (iii) deleting the
phrase "Unrestricted Subsidiary" therein and adding the phrase
"Unrestricted Subsidiaries" in its place.
(b) Section 5.04(b)(ii) of the Credit Agreement is hereby
amended by (i) adding the phrase "and Waterstone Insurance Inc."
immediately following the phrase "Carcorp., Inc." therein; (ii)
deleting the word "is" immediately following the phrase "Carcorp.,
Inc." and adding the word "are" in its place and (iii) deleting the
phrase "Unrestricted Subsidiary" therein and adding the phrase
"Unrestricted Subsidiaries" in its place.
5. Amendments to Section 6.01.
(a) Section 6.01(a) of the Credit Agreement is hereby amended
by adding the following proviso at the end thereof:
"; provided that the amount permitted under the preceding
clauses (ii) and (iv) (to the extent relating to clause (ii)) shall be
reduced by the amount of any Indebtedness incurred under clause (viii)
of Section 6.01(c)" ;"
(b) Section 6.01(c) of the Credit Agreement is hereby amended
by deleting clauses (iv) through (vi) thereof in their entirety and adding the
following in its place:
"(iv) any Foreign Restricted Subsidiary to the Company or to
any Domestic Restricted Subsidiary in a net aggregate principal amount
not at any time in excess of $150,000,000 and evidenced by one or more
Intercompany Notes pledged to the Applicable Collateral Agent under the
applicable Security Document if the outstanding principal amount of
such Indebtedness exceeds $10,000,000 in the aggregate, (v) Holdings to
the Company in an aggregate principal amount not greater than
$6,000,000 at any time, (vi) Xxxxxxx & Xxxxxx Plastics, to any Domestic
Restricted Subsidiary in a net aggregate amount principal amount not to
exceed $35,000,000, evidenced by one or more Intercompany Notes pledged
to the Collateral Agent under the Guarantee and Collateral Agreement,"
(c) Section 6.01(c) of the Credit Agreement is further amended
by deleting the semicolon at the end of clause (vii) thereof and adding the
following at the end thereof:
",(viii) the Brazilian Subsidiary to the Company or to any
Domestic Restricted Subsidiary (which Indebtedness may be loaned by the
Company or a Domestic Restricted Subsidiary through a Foreign
Restricted Subsidiary of the Company and on-loaned by such Foreign
Restricted Subsidiary to the Brazilian Subsidiary) in an aggregate
principal amount not at any time in excess of $30,000,000 (exclusive of
capitalized interest) and evidenced by one or more of the Intercompany
Notes held by the Company or a Domestic Restricted Subsidiary pledged
to the Applicable Collateral Agent under the applicable Security
Document if the outstanding principal amount of such Indebtedness
exceeds $10,000,000 in the aggregate and (ix) any Foreign Restricted
Subsidiary to the Company or to any Domestic Restricted Subsidiary
representing an Investment permitted to be made as an intercompany loan
by the Company and its Domestic Restricted Subsidiaries in such Foreign
Restricted Subsidiary pursuant to Sections 6.07 (k), (m), (n) and (o)
and the last paragraph of Section 6.07 and evidenced by one or more
Intercompany Notes pledged to the Applicable Collateral Agent under the
applicable Security Document if the outstanding principal amount of
such Indebtedness exceeds $10,000,000 in the aggregate;"
6. Amendments to Section 6.06. Section 6.06 of the Credit
Agreement is hereby amended by (i) deleting the word "and" before clause (c)
thereof and adding a comma in its place and (ii) adding the following after
clause (c) thereof:
", (d) such arrangements or transactions with respect to any
of the real property of the Borrowers or any of the Restricted
Subsidiaries located at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx
and at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx X0X 0X0 so long as the Net
Proceeds thereof are used to prepay the Term Loans in accordance with
Section 2.12(g)(i) as though such arrangements or transactions
constitute Prepayment
Events; and (e) any such arrangements or transactions (with respect to
property not constituting Collateral or, if constituting Collateral,
property that remains as Collateral) solely between wholly owned
Foreign Restricted Subsidiaries or solely between wholly owned Domestic
Restricted Subsidiaries (other than any Domestic Restricted
Subsidiaries that are not Guarantors)."
7. Amendments to Section 6.07.
(a) Section 6.07(d) of the Credit Agreement is hereby amended
by deleting such Section in its entirety and adding the following in its place:
"(d) intercompany loans permitted to be incurred as
Indebtedness under Sections 6.01 (c) (other than clause (viii) thereof)
and (r) and Guarantees permitted under Section 6.01;"
(b) Section 6.07(j) of the Credit Agreement is hereby amended
deleting the phrase immediately preceding the first comma in its entirety and
adding the following in its place:
"Investments to the extent that the consideration therefor is
capital stock of Holdings and/or"
(c) Section 6.07(k) of the Credit Agreement is hereby amended
by deleting such Section in its entirety and adding the following in its place:
"(k) other Investments, including joint ventures and
Investments in Unrestricted Subsidiaries, provided that the
consideration for all such Investments (whether cash or property as
valued at the time of such Investment, but excluding any capital stock
of Holdings or the proceeds thereof) does not exceed (net of any return
representing return of capital of (but not return on) any such
Investment) at any time $50,000,000 in the aggregate;"
(d) Section 6.07 of the Credit Agreement is further amended by
(i) deleting the word "and" at the end of clause (l) thereof, (ii) deleting the
period at the end of clause (m) thereof and adding a semicolon in its place and
(iii) inserting the following below clause (m):
"(n) the acquisition by any Restricted Subsidiary of the
business of Delphi Corporation and its subsidiaries conducted
principally at facilities in Logrono, Spain; La Rioja, Spain; Xxxxxxxx,
Spain; and Azambuja, Portugal and related assets, provided that the
purchase price for such acquisition (whether cash or property, as
valued at the time of such Investment) does not exceed the equivalent
of euro 15,000,000 together with the assumed liabilities, subject to
purchase price adjustments based upon the assets and/or working capital
delivered at closing; and
(o) Investments in Foreign Restricted Subsidiaries to the
extent necessary to meet statutory capital requirements."
(e) The final paragraph of Section 6.07 of the Credit
Agreement is amended by deleting the second sentence thereof in its entirety and
adding the following in its place:
"Holdings and its Subsidiaries will not make Investments in the Italian
JV or any of its businesses or purchase any Capital Stock of the
Italian JV (whether by the purchase of Capital Stock or assets or
otherwise) after the Closing Date, except (i) Investments made pursuant
to Section 6.07(k), (ii) Investments in the form of a Guarantee of (or
letter of credit support for) Indebtedness of the Italian JV as
permitted by Section 6.01(a) or (iii) Investments necessary to meet the
Italian JV's statutory capital requirements. Notwithstanding anything
herein to the contrary, if no Default or Event of Default exists or
would exist after giving effect thereto, the Company and the Restricted
Subsidiaries may either (i) expend up to $23,140,000 (subject to
purchase price adjustments of up to an additional $5,000,000 related to
the Italian JV as provided in Section 5.20(c) in the Tac-Trim Purchase
Agreement) to purchase Capital Stock of the Italian JV on a basis
similar to the put/call arrangements set forth in Section 5.20 of the
Tac-Trim Purchase Agreement at the times provided therein (or such
earlier times as the Company may agree) if such purchase is accretive
to Holdings (i.e., after giving effect to such purchase and the
financing thereof, if any, and taking into account, without
duplication, Indebtedness and outstanding factoring arrangements of the
Italian JV and letters of credit issued for the account of or for the
benefit of the Italian JV the pro forma Leverage Ratio of Holdings,
calculated in a manner, and taking into account pro forma adjustments,
satisfactory to the Administrative Agent, decreases) or (ii) purchase
the remaining equity interests in the Italian JV not owned by them for
an aggregate purchase price (whether cash or property, as valued at the
time thereof, but excluding up to $10,000,000 of existing Indebtedness
of the Italian JV) not to exceed $20,000,000."
8. Amendment to Section 6.08. Section 6.08(e) of the Credit
Agreement is hereby amended by adding the following at the end thereof:
"and sales or other dispositions of worn-out, obsolete or
surplus equipment in the ordinary course of business"
9. Amendments to Exhibit A.
(a) Exhibit A-7 to the Credit Agreement is hereby amended
deleting the phrase "Adjusted LIBO Rate plus five (5) percent" in the
first paragraph therein and adding the following in its place:
"[Insert interest rate, which interest rate shall be a
market-based rate based upon the then prevailing market conditions]"
(b) Exhibit A-7 of the Credit Agreement is further amended by
deleting the phrase immediately preceding the proviso in third sentence
of the second paragraph therein and adding the following in its place:
"Payments of interest on this Intercompany Note shall be
payable [Insert times when interest is payable] and on the Maturity
Date by transfer of immediately available funds to such account of
Payee as Payee may designate,"
10. Representations and Warranties. The Company hereby
represents and warrants to the Administrative Agent and the Lenders that, as of
the date hereof and after giving effect to the amendments and waivers contained
herein:
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Company of
this Amendment has been duly authorized by all necessary corporate and other
action and does not and will not require any registration with, consent or
approval of, notice to or action by, any person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligation of
the Company, enforceable against each in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
(c) All representations and warranties of each Loan Party set
forth in the Loan Documents as amended hereby are true and correct in all
material respects.
11. Conditions Precedent to Effectiveness. This Amendment
shall become effective on the date on which each of the following conditions is
satisfied (the "Effective Date"):
(a) The Administrative Agent shall have received counterparts
thereof duly executed and delivered by the Company, Holdings, the Borrowers and
the Required Lenders;
(b) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
(including reasonable fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan Document;
and
(c) The Company shall have paid to the Administrative Agent,
in immediately available funds, for the account of each Lender that has
delivered (including by telecopy) an executed counterpart of this Amendment to
the Administrative Agent or its counsel prior to 5:00 p.m., New York time, on
December 13, 2002, an amendment fee in an amount separately agreed to by the
Company and such Lender.
12. Expenses. The Company agrees to pay or reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Administrative Agent.
13. Governing Law; Counterparts. (a) This Amendment and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(a) This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Company, the Canadian Borrowers,
Holdings, the Agents, and the Lenders have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
above written.
XXXXXXX & XXXXXX PRODUCTS CO.
By
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Title:
XXXXXXX & XXXXXX CORPORATION
By
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Title:
XXXXXXX & XXXXXX CANADA INC.
By
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Title:
XXXXXXX & XXXXXX PLASTICS, LTD.
By
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Title:
JPMORGAN CHASE BANK, as
Administrative Agent, Collateral
Agent and as a Lender
By
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Title:
Address for Notices:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
Telecopy: (212) 000-
XXXXXXXX XXXXX XXXX, XXXXXXX
BRANCH, as Canadian
Administrative Agent,
Canadian Collateral Agent
and Canadian Lender
By
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Title:
Address for Notices:
000 Xxx Xxxxxx, Xxxxx 0000
Royal Bank Plaza, South Tower
Toronto, Ontario M5J 2J2
Attention: Corporate Banking Officer
Telecopy: (000) 000-0000
Signature page to the First Amendment,
dated as of December 13, 2002, to the
Credit Agreement, dated as of December
20, 2001, among Xxxxxxx & Xxxxxx
Products Co., Xxxxxxx & Xxxxxx Canada
Inc., Xxxxxxx & Xxxxxx Plastics, Ltd.,
Xxxxxxx & Xxxxxx Corporation, the
financial institutions parties thereto,
the syndication agent and
co-documentation agents named therein,
JPMorgan Chase Bank, as administrative
agent, and X.X. Xxxxxx Bank Canada, as
Canadian administrative agent
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[Name of Lender]
by ________________________________
Title:
