Exhibit 10.37
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT
AGREEMENT (the "Amendment"), dated as of July
31, 1997, is among XXXXX INDUSTRIES, INC., a
Delaware corporation ("Borrower"), each of the
banks or other lending institutions which is or
may from time to time become a signatory
thereto or any successor or assign thereof
(individually, a "Bank" and, collectively, the
"Banks"), TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association, as
an issuing bank (in such capacity, together
with its successors, any other Banks or any of
their respective Affiliates acting in such
capacity, an "Issuing Bank") and as
administrative agent for itself, the Issuing
Banks and the other Banks (in such capacity,
together with its successors in such capacity,
the "Agent").
RECITALS:
A. Borrower, the Agent, the
Issuing Banks and the Banks have entered into
that certain Credit Agreement dated as of
August 29, 1995, as amended by that certain
First Amendment to Credit Agreement dated as of
March 22, 1996 (such Credit Agreement, as the
same has been and may be amended or modified
from time to time, is hereinafter referred to
as the "Agreement").
B. Borrower, the Agent, the
Issuing Banks and the Banks now desire to enter
into this Amendment to amend certain financial
covenants and as otherwise herein set forth.
NOW, THEREFORE, in
consideration of the premises herein contained
and other good and valuable consideration, the
receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
ARTICLE I
Definitions
Section 1.1. Definitions.
Capitalized terms used in the Amendment, to the
extent not otherwise defined herein, shall have
the same meanings as set forth in the
Agreement, as amended hereby.
ARTICLE II
Amendments
Section 2.1. Amendment to
Definition of Consolidated EBITDA. Effective as
of the date hereof, the definition of
"Consolidated EBITDA" appearing in Section 1.1
of the Agreement is hereby amended to read in
its entirety as follows:
"Consolidated" "EBITDA"
means for any period, with respect
to any Person, Consolidated Net
Income of such Person for such
period (A) plus, without
duplication and to the extent
reflected as a charge in the
statement of such Consolidated Net
Income for such period, the sum of
(i) total income and franchise tax
expenses, (ii) interest expense,
amortization or writeoff of debt
discount and debt issuance costs
and commissions and discounts and
other fees and charges associated
with Debt, (iii) depreciation and
amortization expense, (iv)
amortization of intangibles
(including, but not limited to,
goodwill and organization costs
including, with respect to the
Borrower, costs associated with
the Acquisition), (v) other
non-cash charges (including
non-cash currency exchange
losses), (vi) any extraordinary
and unusual losses (including (1)
costs expensed during fiscal years
ending December 31, 1997 and
December 31, 1998 in association
with plant consolidations
(including but not limited to
costs associated with plant
shutdowns, severance, relocations
and costs related to the start up
of processes required by new
facilities to reach productive
capacity), in an aggregate amount
not to exceed $1,000,000, and (2)
losses on sales of assets other
than inventory sold in the
ordinary course of business) and
(B) minus, without duplication and
to the extent reflected as a
credit or gain in the statement of
such Consolidated Net Income for
such period, the sum of (i) any
extraordinary and unusual gains
(including gains on the sale of
assets, other than inventory sold
in the ordinary course of
business) and (ii) other non-cash
credits or gains (including
non-cash currency exchange gains).
Section 2.2. Interest Coverage
Ratio. Effective as of the
date hereof, Section 11.1
of the
Agreement is hereby amended to read in
its entirety as follows:
Section 11.1 Interest
Coverage Ratio. The Borrower will
not permit its Interest Coverage
Ratio, calculated quarterly
(beginning December 31, 1995) for
the four fiscal quarters of
Borrower ending as of the last day
of each fiscal quarter set forth
below, to be less than the ratio
set forth opposite such fiscal
quarter below. For the purposes
of determining the Interest
Coverage Ratio for the first two
fiscal quarters of Borrower
following the Closing Date,
Consolidated EBITDA for the fiscal
quarters ending June 1995 and
September 1995 shall be deemed to
be $6,300,000 for each such
quarter. The Interest Coverage
Ratio for the four quarters ending
in December 1995 shall be
calculated using (i) the deemed
amounts of Consolidated EBITDA for
the quarters ending June 1995 and
September 1995 and the actual
amount of Consolidated EBITDA for
the fiscal quarter ending in
December 1995 multiplied by two,
and (ii) the actual annualized
amount of Interest Expense for the
quarter or quarters then ended.
Fiscal Quarter Interest Coverage Ratio
Quarter ending December 31, 1995 and
each quarter ending in 1996 1.40 to 1.00
Quarters ending March 31, 1997 and
June 30, 1997 1.60 to 1.00
Quarters ending September 30, 1997
and December 31, 1998 1.50 to 1.00
Quarters ending March 31, 1998 and
June 30, 1998 1.60 to 1.00
Quarters ending September 30, 1998
and December 31, 1998 1.65 to 1.00
Quarters ending in 1999 and
thereafter 1.75 to 1.00
ARTICLE III
Conditions Precedent
Section 3.1. Conditions. The effectiveness
of this Amendment is subject to the satisfaction of the
following conditions precedent:
(a) The Agent shall have received
evidence, which may be a
certificate of an executive
officer of Borrower, that Borrower
has received from Hicks, Muse,
Xxxx & Xxxxx Incorporated or an
affiliate thereof an equity
contribution in an amount not less
than $10,000,000.
(b) The representations and warranties
contained herein and in all other
Loan Documents, as amended hereby,
shall be true and correct as of
the date hereof as if made on the
date hereof, except for those
representations and warranties
that are expressly made as of a
specific date.
(c) No Default shall have occurred and
be continuing.
ARTICLE IV
Ratifications, Representations and Warranties
Section 4.1. Ratifications. The
terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent
terms and provisions set forth in the Agreement
and except as expressly modified and superseded
by the Amendment, the terms and provisions of
the Agreement and the other Loan Documents are
ratified and confirmed and shall continue in
full force and effect. Borrower, the Agent, the
Banks and the Issuing Banks agree that the
Agreement as amended hereby and the other Loan
Documents shall continue to be legal, valid,
binding and enforceable in accordance with their
respective terms.
Section 4.2 Representations and
Warranties. Borrower hereby represents and
warrants to the Agent, the Banks and the Issuing
Banks that (i) the execution, delivery and
performance of this Amendment and any and all
other Loan Documents executed and/or delivered
in connection herewith have been authorized by
all requisite corporate action on the part of
the Borrower and will not violate the articles
of incorporation or bylaws of the Borrower, (ii)
the representations and warranties contained in
the agreement, as amended hereby, and in each
other Loan Document are true and correct on and
as of the date hereof as though made on and as
of the date hereof, (iii) no Default has
occurred and is continuing, and (iv) Borrower is
in full compliance with all covenants and
agreements contained in the Agreement as amended
hereby and the other Loan Documents to which it
is a party.
ARTICLE V
Miscellaneous
Section 5.1 Survival of
Representations and Warranties. All
representations and warranties made in this
Amendment or any other Loan Document including
any Loan Document furnished in connection with
this Amendment shall survive the execution and
delivery of this Amendment and the other Loan
Documents, and no investigation by the Agent,
any Bank, any Issuing Bank or any closing shall
affect the representations and warranties or
the right of the Agent, the Banks and the
Issuing Banks to rely upon them.
Section 5.2 Reference to
Agreement. Each of the Loan Documents,
including the Agreement and any and all other
agreements, documents, or instruments now or
hereafter executed and delivered pursuant to
the terms hereof or pursuant to the terms of
the Agreement as amended hereby, are hereby
amended so that any reference in such Loan
documents to the Agreement shall mean a
reference to the Agreement as amended hereby.
Section 5.3 Expenses of the
Agent. As provided in the Agreement, Borrower
agrees to pay on demand all reasonable costs
and expenses incurred by the Agent in
connection with the preparation, negotiation,
and executive of this Amendment and the other
Loan Documents executed pursuant hereto and any
and all amendments, modifications, and
supplements thereto, including without
limitation the costs and reasonable fees of the
Agent's legal counsel, and all costs and
expenses incurred by the Agent, the Banks and
the Issuing Banks in connection with the
enforcement or preservation of any rights under
the Agreement, as amended hereby, or any other
Loan Document, including without limitation the
costs and reasonable fees of legal counsel for
the Agent and the Issuing Banks and at any time
following and during the continuance of the
Event of Default, of one legal counsel to each
Bank.
Section 5.4 Severability. Any
provision of this Amendment held by a court of
competent jurisdiction to be invalid or
unenforceable shall not impair or invalidate
the remainder of this Amendment and the effect
thereof shall be confined to the provision so
held to be invalid or unenforceable.
SECTION 5.5. APPLICABLE LAW.
THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO
HAVE BEEN MADE AND TO BE PERFORMABLE IN DALLAS,
DALLAS COUNTY, TEXAS AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS.
Section 5.6. Successors and
Assigns. This Amendment is binding upon and
shall inure to the benefit of the Agent, the
Banks, the Issuing Banks and Borrower and their
respective successors and assigns, except
Borrower may not assign or transfer any of its
rights or obligations hereunder without the
prior written consent of the Agent and all of
the Banks.
Section 5.7. Counterparts. The
Amendment may be executed in one or more
counterparts, each of which when so executed
shall be deemed to be an original, but all of
which when taken together shall constitute one
and the same instrument.
Section 5.8. Effect of Waiver.
No consent or waiver, express or implied, by
the Agent and/or any of the Banks to or for any
breach of or deviation from any covenant,
condition or duty by
Borrower or any obligated party shall be deemed
a consent or waiver to or of any other breach
of the same or any other covenant, condition or
duty.
Section 5.9. Headings. The
headings, captions, and arrangements used in
this Amendment are for convenience only and
shall not affect the interpretation of this
Amendment.
Section 5.10. ENTIRE
AGREEMENT. THIS AMENDMENT AND ALL
OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED IN
CONNECTION WITH THIS AMENDMENT EMBODY
THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND
ALL PRIOR COMMITMENTS, AGREEEMENTS,
REPRESENTATIONS AND UNDERSTANDINGS.
WHETHER WRITTEN OR ORAL, RELATING TO
THIS AMENDMENT, AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written above.
BORROWER:
XXXXX INDUSTRIES, INC.
By: /s/XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
AGENT, ISSUING BANK AND BANKS:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Agent, as Issuing Bank
and as a Bank
By: /s/XXXXXXX XXXXXX
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION (formerly First Interstate
Bank of California)
By: /s/XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
NBD BANK
By: /s/XXXXXXX XXXXXXXXX
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/XXXXX XXXX
Name: Xxxxx Xxxx
Title: Assistant Vice President
THE BANK OF NEW YORK
By: /s/R. XXX XXXXX
Name: R. Xxx Xxxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/XXXXXXXXXXX XXXXXX
Name: Xxxxxxxxxxx Xxxxxx
Title: Vice President
The undersigned Guarantor hereby consents and
agrees to this Amendment and agrees that the Subsidiary
Guaranty shall remain in full force and effect and shall
continue to be the legal, valid and binding obligation of
such Guarantor enforceable against such Guarantor in
accordance with its terms.
GUARANTOR:
XXXXX AERO, INC.
By: /s/XXXXX XXXXXXXX
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
