Exhibit 10.45
AMENDMENT NO. 4 TO CREDIT AGREEMENT
AMENDMENT dated as of December 10, 1999 (the "AMENDMENT") to the
Amended and Restated Credit Agreement dated as of February 28, 1999 and amended
as of May 31, 1999, September 14, 1999 and November 15, 1999 (as amended, the
"CREDIT AGREEMENT") among XXXXXXX INDUSTRIES INC. (the "BORROWER"), the LENDERS
party thereto (the "LENDERS") and THE CHASE MANHATTAN BANK, as Administrative
Agent (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders agree (i) to amend
the provisions of the Credit Agreement requiring (a) certain reductions in the
Borrowing Base scheduled to occur on December 10, 1999 and (b) the receipt by
the Borrower of certain receivables from third parties by December 10, 1999 and
(ii) to waive the Borrower's obligation to comply with certain covenants solely
for the period November 30, 1999 through January 10, 2000; and
WHEREAS, subject to the terms and conditions set forth herein, the
Lenders have agreed to make certain amendments and waivers as provided for
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, from and after Amendment No. 4
Effective Date (defined below), refer to the Credit Agreement as amended hereby.
SECTION 2. SECTION 1.01. Section 1.01 of the Credit Agreement is
amended:
(a) by amending the definition of "BORROWING BASE" to read in its
entirety as follows:
"BORROWING BASE" means, at any date, the amount of the
Borrowing Base as of the date of the Borrowing Base Certificate then
most recently delivered by the Borrower pursuant to Section 5.01(l)
(the "BORROWING BASE
DATE"), determined by calculating the sum of (i) 85% of the aggregate
amount of Eligible Receivables at the Borrowing Base Date PLUS (ii) 50%
of the aggregate amount of Eligible Inventory at the Borrowing Base
Date PLUS (iii) the Facilities Domestic Amount at the Borrowing Base
Date PLUS (iv) (A) as of any Borrowing Base Date occurring on or prior
to January 10, 2000, the greater of the Deemed Foreign Assets Amount or
the Facilities Foreign Amount and (B) as of any Borrowing Base Date
occurring subsequent to January 10, 2000, the Facilities Foreign Amount
PLUS (v) the Crilar Payment Amount at the Borrowing Base Date PLUS (vi)
the Insurance Payment Amount at the Borrowing Base Date PLUS (vii) the
UOP Payment Amount at the Borrowing Base Date; PROVIDED that the sum of
the amounts set forth in clauses (v) through (vii), inclusive, will in
no event, for purposes of the Borrowing Base, exceed $7,343,000 and
shall not be included in the Borrowing Base determined as of any
Borrowing Base Date occurring after January 10, 2000.
and (b) by inserting therein in appropriate alphabetical order
the following defined term:
"AMENDMENT NO. 4 EFFECTIVE DATE" means the date of
effectiveness of Amendment No. 4 to this Agreement.
SECTION 3. SECTION 2.11. Section 2.11 of the Credit Agreement
is amended by relettering clause (e) thereof as clause (f) and by
adding a new clause (e) immediately after clause (d) thereof, to read
in its entirety as follows:
(d) The Borrower agrees to pay to the Administrative Agent,
for the account of each Lender, an amendment fee in connection with
Amendment No. 4 to this Agreement, in an amount equal to 0.25% of the
sum of such Lender's Revolving Commitment and the aggregate Dollar
Amount of such Lender's outstanding Term Loans, in each case as in
effect on the Amendment No. 4 Effective Date. This fee shall be fully
earned as of the Amendment No. 4 Effective Date, and shall be paid by
the Borrower on or before January 10, 2000.
SECTION 4. SECTION 4.03. Solely with respect to any Loan to be
made on the occasion of any Borrowing occurring on or after the
Amendment No. 4 Effective Date and on or prior to January 10, 2000 or
any Letter of Credit to be issued, amended, renewed or extended on or
after the Amendment No. 4 Effective Date and on or prior to January 10,
2000, the Lenders waive any failure by the Borrower to satisfy the
condition precedent set forth in Section 4.03(b) of the Credit
Agreement solely with respect to the
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truth and correctness of the representation and warranty contained in
Section 3.04(c) of the Credit Agreement, but solely to the extent that
such representation and warranty is not true and correct because of
facts, conditions or events that have been disclosed in writing by the
Borrower to the Administrative Agent and the Lenders prior to December
7, 1999.
SECTION 5. SECTION 5.09. Section 5.09 of the Credit Agreement
is amended as follows:
(a) Section 5.09(a) of the Credit Agreement is amended by
adding the following text to the end thereof: "Any such mortgages or
other documents delivered to the Borrower prior to December 20, 1999
shall be executed no later than December 20, 1999. Any such mortgages
or other documents delivered to the Borrower subsequent to December 20,
1999 shall be executed not later than three Business Days of their
receipt by the Borrower."
(b) Section 5.09(e) of the Credit Agreement is amended by
replacing the final sentence thereof with the following sentence: "In
addition, the Borrower shall have received, subsequent to December 10,
1999 and prior to January 10, 2000, not less than $5.3 million on
account of the Crilar Payment Amount, the UOP Payment Amount and the
Insurance Payment Amount (collectively), all of which funds shall be
applied as provided for in Section 2.09 of this Agreement."
SECTION 6. SECTIONS 6.12, 6.13 AND 6.14. The Lenders hereby
waive, solely for the period from and including the Amendment No. 4
Effective Date and to and including January 10, 2000 (the "Waiver
Period") (i) the requirement that the Borrower comply with Sections
6.12, 6.13 and 6.14 of the Credit Agreement and (ii) any Default
arising under clause (d) of Article 7 of the Credit Agreement as a
result of the Borrower's failure to comply with Sections 6.12, 6.13 and
6.14 during the Waiver Period.
SECTION 7. NO OTHER WAIVERS. Other than as specifically
provided herein, nothing contained herein and no action by, or inaction
on the part of, any Lender or the Administrative Agent shall, or shall
be deemed to, operate as a waiver of any right, remedy, power or
privilege of the Administrative Agent or of any Lender under the Credit
Agreement or any other Loan Document or of any other term or condition
of the Credit Agreement or any other Loan Document.
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SECTION 8. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants that, on and as of the Amendment No. 4 Effective Date and
after giving effect to this Amendment, (i) the representations and
warranties of the Obligors set forth in the Loan Documents, including
but not limited to the representation and warranty contained in Section
3.12 of the Credit Agreement but excluding the representation and
warranty contained in section 3.04(c) of the Credit Agreement, are true
and correct, (ii) no Default has occurred and is continuing, (iii) the
Borrower has no reason to believe that either the Crilar Payment Amount
or the UOP Payment Amount will not be paid in full (with the exception
of an agreed $646,000 reduction in the UOP Payment Amount) on or prior
to January 10, 2000 and (iv) the Borrower has no reason to believe that
the Insurance Payment Amount (as defined in the Credit Agreement as
amended hereby) will not be paid in full by the Insurance Providers (as
defined in the Credit Agreement as amended hereby) on or prior to March
15, 2000.
SECTION 9. GOVERNING LAW. This Amendment shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 10. COUNTERPARTS. This Amendment may be signed in any
number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
SECTION 11. EFFECTIVENESS. This Amendment shall become
effective on the date (the "AMENDMENT NO. 4 EFFECTIVE DATE") on which
the Administrative Agent shall have received:
(i) from each of the Borrower and the Required Lenders a
counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Administrative Agent) that
such party has signed a counterpart hereof;
(ii) a certificate of the Chief Financial Officer certifying
that the representations and warranties made by the Borrower pursuant
to Section 8 of this Amendment are true and correct on and as of the
Amendment No. 4 Effective Date; and
(iii) evidence satisfactory to it that the Borrower shall have
paid in full all fees and expenses of the Administrative Agent payable
pursuant to Section 9.03(a) of the Credit Agreement with respect to
which the Borrower shall have received any invoice delivered to the
Borrower at least one Business Day prior
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to the Amendment No. 4 Effective Date, it being understood that the
failure of the Administrative Agent to have provided invoices with
respect to such fees and expenses prior to the Amendment No. 4
Effective Date does not constitute a waiver of, or otherwise affect,
the Administrative Agent's right to reimbursement for such fees and
expenses.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed as of the date first above written.
XXXXXXX INDUSTRIES INC.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK
By:
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Name:
Title:
HIBERNIA NATIONAL BANK
By:
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Name:
Title:
WACHOVIA BANK, N.A.
By:
--------------------------
Name:
Title:
0
XXX XXXX XX XXXX XXXXXX
By:
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Name:
Title:
By:
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
AMSOUTH BANK
By:
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Name:
Title:
BHF (USA) CAPITAL CORPORATION
By:
--------------------------
Name:
Title:
By:
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Name:
Title:
7
COMERICA BANK
By:
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Name:
Title:
NATIONAL BANK OF CANADA
By:
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Name:
Title:
By:
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Name:
Title:
PARIBAS
By:
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Name:
Title:
By:
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Name:
Title:
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