Exhibit 10.10
WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment
No. 1"), dated as of November 15, 1999, among Xxxxxx Xxxxxxxxxx Ltd., a New York
corporation (the "Borrower"), each of the entities identified as Consenting
Obligors on the signature pages hereto (collectively, the "Consenting
Obligors"), the various financial institutions from time to time parties thereto
(collectively, the "Lenders"), DLJ Capital Funding, Inc., as syndication agent
(the "Syndication Agent") for the Lenders, Xxxxxx Financial, Inc., as
documentation agent (the "Documentation Agent") for the Lenders and Fleet
National Bank, as administrative agent (the "Administrative Agent") for the
Lenders.
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Syndication Agent, the
Documentation Agent and the Administrative Agent are parties to the Amended and
Restated Credit Agreement, dated as of August 7, 1998 (as heretofore modified
and supplemented and in effect from time to time, the "Credit Agreement");
WHEREAS, the Borrower has requested the Lenders to (i) waive
compliance with the requirement contained in the Credit Agreement to maintain
certain financial covenants for the period ending December 31, 1999 and (ii)
amend certain provisions of the Credit Agreement;
WHEREAS, all Loans and Obligations shall continue to be and shall be
fully guaranteed pursuant to the Holdco Guaranty and Pledge Agreement, the
Intermediate Holdco Guaranty and Pledge Agreement and the Subsidiary Guaranty
and fully secured by, among other things, the Holdco Guaranty and the Pledge
Agreement, the Intermediate Holdco Guaranty and Pledge Agreement, the Borrower
Pledge Agreement, the Borrower Security Agreement and the Subsidiary Security
Agreement; and
WHEREAS, the Borrower desires, and the Lenders are willing, on the
terms and subject to the conditions hereinafter set forth, to grant the waiver
and amend the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. CERTAIN DEFINITIONS. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 1, including
its preamble and recitals, have the following meanings (such meanings to be
equally applicable to the singular and plural forms thereof):
"ADMINISTRATIVE AGENT" is defined in the preamble.
"AMENDMENT NO. 1" is defined in the preamble.
"AMENDMENT NO. 1 EFFECTIVE DATE" is defined in Subpart 5.1.
"BORROWER" is defined in the preamble.
"CONSENTING OBLIGORS" means each of the entities identified as such on
the signature pages hereof.
"CREDIT AGREEMENT" is defined in the first recital.
"DOCUMENTATION AGENT" is defined in the preamble.
"LENDERS" is defined in the preamble.
"SYNDICATION AGENT" is defined in the preamble.
"WAIVER EFFECTIVE PERIOD" is defined in Subpart 2.1.
SUBPART 1.2. OTHER DEFINITIONS. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment No. 1, including its
preamble and recitals, have the meanings ascribed thereto 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
the Amendment No. 1 Effective Date refer to the Credit Agreement, as amended
hereby.
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PART II
WAIVER OF CERTAIN PROVISIONS OF THE
CREDIT AGREEMENT AS OF THE AMENDMENT NO. 1 EFFECTIVE DATE
Effective on (and subject to the occurrence of) the Amendment No. l
Effective Date, and in reliance upon the representations and warranties made
herein, each of the Lenders hereby agrees that certain terms and provisions of
the Credit Agreement are hereby waived, but only to the extent set forth in this
Part II. Except as expressly so waived, the Credit Agreement shall continue in
full force and effect in accordance with its terms.
SUBPART 2.1. WAIVER OF CERTAIN. FINANCIAL COVENANTS OF ARTICLE VII OF
THE CREDIT AGREEMENT. Compliance by the Borrower with the covenants contained in
(i) clause (b) of Section 7.2.4 of the Credit Agreement restricting the Leverage
Ratio to a maximum of 5.00:1.00 for the Fiscal Quarter ending December 31, 1999
and (ii) clause (c) of Section 7.2.4 of the Credit Agreement restricting the
Interest Coverage Ratio to a minimum of 2.00:1.00 for the Fiscal Quarter ending
December 31, 1999, and any Default or Event of Default that would otherwise
arise under the Credit Agreement by reason of the Borrower's failure to comply
with such covenants, are hereby waived for the period from the Amendment No. 1
Effective Date through (and including) February 15, 2000 (the "WAIVER EFFECTIVE
PERIOD").
PART III
AMENDMENTS TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 1
Effective Date, the Credit Agreement is hereby amended in accordance with this
Part III. Except to the extent amended by this Amendment No. 1, the Credit
Agreement is and shall continue to be in full force and effect and is hereby
ratified and confirmed in all respects.
SUBPART 3.1. AMENDMENTS TO ARTICLE I. Article I of the Credit
Agreement is amended as set forth in this SUBPART 3.1.
(a) The definition of "APPLICABLE MARGINS" contained in
Section 1.1 of the Credit Agreement is amended to (i) replace the ratio
of "2.0:1" appearing in the last row of the first column entitled
"Senior Leverage Ratio" of clause (c) thereof with the ratio of "2.5:1"
and (ii) insert a new paragraph at the end of such definition to read
in its entirety as follows:
"Notwithstanding the foregoing, at all times during
the Waiver Effective Period, the Applicable Margin means with
respect to the unpaid principal amount of (a) each Swing Line
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Loan (each of which shall be borrowed and maintained only as a
Base Rate Loan) and each Revolving Loan and Term-A Loan
maintained as (a)(i) Base Rate Loan 2.25% per annum and (ii)
LIBO Rate Loan, 3.50% per annum and (b) each Term B Loan
maintained as a (i) Base Rate Loan, 2.50% per annum and (ii)
LIBO Rate Loan, 3.75% per annum."
(b) The definition of "REVOLVING LOAN COMMITMENT AMOUNT"
contained in Section 1.1 of the Credit Agreement is amended to insert a
proviso immediately following the reference therein to "Section 2.2" to
read in its entirety as follows:
"; PROVIDED, that at all times during the Waiver Effective
Period, the "Revolving Loan Commitment Amount" shall not
exceed $8,000,000".
(c) The following now definitions are added to Section 1.1 of
the Credit Agreement in their appropriate alphabetical order:
"AMENDMENT NO. 1" means Waiver and Amendment No. 1 to Credit
Agreement, dated as of November 15, 1999, among the Borrower, the
other Obligors party thereto, the Lenders, the Syndication Agent,
the Documentation Agent and the Administrative Agent.
"AMENDMENT NO. 1 EFFECTIVE DATE" shall have the meaning set
forth in Subpart 5.1 of Amendment No. 1.
"WAIVER EFFECTIVE PERIOD" means the period from the Amendment
No. 1 Effective Date through (and including) February 15, 2000.
SUBPART 3.2. AMENDMENTS TO ARTICLE VII. Article VII of the Credit
Agreement is amended as set forth in this Subpart 3.2.
(a) Clause (a) of Section 7.1.1 of the Credit Agreement is
amended to replace existing clause (a) with a new clause (a) to read in
its entirety as follows:
"(a)(i) as soon as available and in any event within
30 days after the end of each calendar month (other than the
months of March, June, September and December) of each Fiscal
Year of the Borrower, consolidated balance sheets of the
Borrower and its Subsidiaries as at the end of such month,
together with the related consolidated statements of income
and cash flows for such month and for the period commencing at
the end of the previous Fiscal Year and ending with the end of
such month, certified as complete and correct by the
president, chief executive officer, treasurer, assistant
treasurer, controller or chief financial
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Authorized Officer of the Borrower, and (ii) as soon as
available and in any event within 60 days after the end of
each of the first three Fiscal Quarters of each Fiscal Year of
the Borrower (or, if the Borrower is required to file such
information on a Form 10-Q with the Securities and Exchange
Commission, promptly following such filing), a consolidated
balance sheet of the Borrower and its Subsidiaries as of the
end of such Fiscal Quarter, together with the related
consolidated statements of income and cash flows for such
Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal
Quarter (it being understood that the foregoing requirement
may be satisfied by delivery of the Borrower's report to the
Securities and Exchange Commission on Form 10-Q, if any),
certified as complete and correct by the president, chief
executive officer, treasurer, assistant treasurer, controller
or chief financial Authorized Officer of the Borrower;"
(b) Clause (a) of Section 7.2.4 of the Credit Agreement is
amended to replace the amount of "$24,000,000" appearing in the first
row of the second column thereof entitled "EBITDA" with the amount of
"$20,000,000".
(c) Section 7.2.5 of the Credit Agreement is amended to (i)
replace the "." at the end of clause (n) thereof with ";and" and (ii)
insert a new clause (o) immediately following existing clause (n) to
read in its entirety as follows:
"(o) no Investments of the type described in clauses
(i), (j) or (k) shall be permitted to be made during the Waiver
Effective Period".
(d) Section 7.2.6 of the Credit Agreement is amended to insert a
proviso immediately following the amount of "$5,000,00" at the end of
clause (c)(iii) thereof to read in its entirety as follows:
"(provided, however, that no Restricted Payment of the type of
described in this clause (c)(iii) shall be permitted to be
made during the Waiver Effective Period)".
PART IV
AFFIRMATION AND CONSENT
SUBPART 4.1. ACKNOWLEDGMENT AND REAFFIRMATION. Each of the Consenting
Obligors hereby acknowledges the amendments to the Credit Agreement pursuant to
the terms and provisions set forth in this Amendment No. 1. Each of the
Consenting Obligors hereby reaffirms, as of the Amendment No. 1 Effective Date,
(i) the covenants and agreements contained in each Loan Document to which it is
a party, including, in each case, as such covenants and agreements may be
modified by this Amendment No. 1, and (ii) its guarantee of payment of the
Obligations pursuant to the Holdco Guaranty and Pledge Agreement (in the case of
Holdco), the Intermediate
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Holdco Guaranty and Pledge Agreement (in the case of Intermediate Holdco) or the
Subsidiary Guaranty (in the case of Hittman).
SUBPART 4.2. REPRESENTATIONS AND WARRANTIES, ETC. Each of the
Consenting Obligors hereby certifies that, as of the date hereof (after giving
effect to the occurrence of the Amendment No. 1 Effective Date), the
representations and warranties made by it in the Holdco Guaranty and Pledge
Agreement (in the case of Holdco), the Intermediate Holdco Guaranty and Pledge
Agreement (in the case of Intermediate Holdco) or the Subsidiary Guaranty (in
the case of Hittman) are true and correct in all material respects with the same
effect as if made on the date hereof (unless stated to relate solely to an
earlier date, in which case such representations and warranties were true and
correct in all material respects as of such earlier date).
SUBPART 4.3. LOAN DOCUMENTS. Each of the Consenting Obligors further
confirms that the Holdco Guaranty and Pledge Agreement (in the case of Holdco),
the Intermediate Holdco Guaranty and Pledge Agreement (in the case of
Intermediate Holdco) or the Subsidiary Guaranty (in the case of Hittman) is and
shall continue to be in full force and effect and the same is hereby ratified
and confirmed in all respects, except that upon the occurrence of the Amendment
No. 1 Effective Date, all references in the Holdco Guaranty and Pledge
Agreement, the Intermediate Holdco Guaranty and Pledge Agreement and the
Subsidiary Guaranty, as the case may be, to the "Credit Agreement", "Loan
Documents", "thereunder", "thereof", or words of similar import shall mean the
Credit Agreement and the Loan Documents, as the case may be, in each case after
giving effect to the amendments and other modifications provided for in this
Amendment No. 1.
SUBPART 4.4. COURSE OF DEALING, ETC. Each of the Consenting Obligors
hereby acknowledges and agrees that the acceptance by the Agents and each Lender
of this document shall not be construed in any manner to establish any course of
dealing on the Agents' or Lender's part, including the providing of any notice
or the requesting of any acknowledgment not otherwise expressly provided for in
any Loan Document with respect to any future amendment waiver, supplement or
other modification to any Loan Document or any arrangement contemplated by any
Loan Document.
PART V
CONDITIONS TO EFFECTIVENESS
SUBPARTS 5.1. AMENDMENT NO. 1 EFFECTIVE DATE. This Amendment No. 1
shall become effective on November 15, 1999 (the "Amendment No. 1 Effective
Date") upon the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Part V.
SUBPART 5.1.1. EXECUTION OF COUNTERPARTS. The Agents shall have
received counterparts of this Amendment No. 1, duly executed by the Borrower,
the Consenting Obligors and the Required Lenders (or evidence thereof
satisfactory to the Agents). The delivery of an
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executed counterpart hereof by the Borrower shall constitute a representation
and warranty by the Borrower that, on the Amendment No. 1 Effective Date, after
giving effect to this Amendment No. 1, all statements set forth in Article VI of
the Credit Agreement, as amended by this Amendment No. 1, are true and correct
as of such date, except to the extent that such statement expressly relates to
an earlier date (in which case such statement shall be true and correct on and
as of such earlier date).
SUBPART 5.1.2. RESOLUTIONS, ETC. The Agents shall have received from
each Obligor a certificate, dated the Amendment No. 1 Effective Date, of its
Secretary or Assistant Secretary as to (i) resolutions of its Board of Directors
then in full force and effect authorizing the execution, delivery and
performance of this Amendment No. 1 and each other Loan Document to be executed
by it, and (ii) the incumbency and signatures of those of its officers
authorized to act with respect to this Amendment No. 1 and each other Loan
Document executed by it, upon which certificate each Agent and each Lender may
conclusively rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of such Obligor canceling or amending such
prior certificate.
SUBPART 5.1.3. PAYMENT OF FEES AND EXPENSES. The Administrative Agent
shall have received, for the account of each Lender which shall have delivered
to the Agents a duly executed counterpart of this Amendment No. 1 by November 4,
1999, an amendment fee in the amount of .25% of such Lender's Loans and
Commitments. In addition, the Borrower hereby agrees to pay and reimburse the
Syndication Agent for all its reasonable fees and expenses incurred in
connection with the negotiation, preparation, execution and delivery of this
Amendment No. 1 and related documents, including all reasonable fees and
disbursements of counsel to the Syndication Agent.
SUBPART 5.1.4. SATISFACTORY LEGAL FORM. The Syndication Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Syndication Agent or
its counsel may reasonably request, and all legal matters incident to the
effectiveness of this Amendment No. 1 shall be satisfactory to the Syndication
Agent and its counsel. All documents executed or submitted pursuant hereto or in
connection herewith shall be reasonably satisfactory in form and substance to
the Syndication Agent and its counsel.
SUBPART 5.2. LIMITATION. Except as expressly provided hereby, all of
the representations, warranties, terms, covenants and conditions of the Credit
Agreement and each other Loan Document shall remain unwaived and shall continue
to be, and shall remain, in full force and effect in accordance with their
respective terms. The modifications and consents set forth herein shall be
limited precisely as provided for herein, and shall not be deemed to be a waiver
of, consent to or modification of any other term or provision of the Credit
Agreement or of any term or provision of any other Loan Document or other
instrument referred to therein or herein, or of any transaction or further or
future action on the part of the Borrower or any other Person
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which would require the consent of the Administrative Agent or any of the
Lenders under the Credit Agreement or any such other Loan Document or
instrument.
PART VI
MISCELLANEOUS
SUBPART 6.1. CROSS-REFERENCES. References in this Amendment No. 1 to
any Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment No. 1. References in this Amendment No. 1 to any Article or
Section are, unless otherwise specified, to such Article or Section of the
Credit Agreement.
SUBPART 6.2. LOAN DOCUMENT PURSUANT TO CREDIT AGREEMENT. This Amendment
No. 1 is a Loan Document executed pursuant to the Credit Agreement and shall
(unless otherwise expressly indicated therein) be construed, administered and
applied in accordance with all of the terms and provisions of the Credit
Agreement, as amended hereby, including Article X thereof.
SUBPART 6.3. SUCCESSORS AND ASSIGNS. This Amendment No. 1 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 6.4. COUNTERPARTS. This Amendment No. 1 may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be an original and all of which shall constitute together but
one and the same agreement.
SUBPART 6.5. GOVERNING LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment No. 1 as of the date first above written.
BORROWER: XXXXXX STREATBATCH LTD.
By:________________________
Name:
Title:
CONSENTING OBLIGORS: WGL HOLDINGS, INC.
By:________________________
Name:
Title:
WGL INTERMEDIATE HOLDINGS,
INC.
By:________________________
Name:
Title:
HITTMAN MATERIALS & MEDICAL
COMPONENTS, INC.
By:________________________
Name:
Title:
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent
and as Lender
By:________________________
Name:
Title:
FLEET NATIONAL BANK,
as Administrative Agent
and as Lender
By:________________________
Name:
Title:
XXXXXX FINANCIAL, INC.,
as Documentation Agent
and as Lender
By:________________________
Name:
Title:
BANKBOSTON, N.A.,
By:________________________
Name:
Title:
PARIBAS, NEW YORK BRANCH
By:________________________
Name:
Title:
By:________________________
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:________________________
Name:
Title:
By:________________________
Name:
Title:
THE CHASE MANHATTAN BANK
By:________________________
Name:
Title:
CITY NATIONAL BANK
By:________________________
Name:
Title:
COMERICA BANK
By:________________________
Name:
Title:
MARINE MIDLAND BANK
By:________________________
Name:
Title:
MANUFACTURERS AND TRADERS
TRUST COMPANY
By:________________________
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and
Research, as Investment
Advisor
By:________________________
Name:
Title:
SENIOR INCOME TRUST
By: Boston Management and
Research, as Investment
Advisor
By:________________________
Name:
Title:
OXFORD STRATEGIC INCOME FUND
By: Boston Management and
Research, as Investment
Advisor
By:________________________
Name:
Title:
CERES FINANCE LTD.
By:________________________
Name:
Title:
STRATA FUNDING
By:________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:________________________
Name:
Title:
AN KAMPEN AMERICAN CAPITAL
SENIOR FLOATING RATE TRUST
By:________________________
Name:
Title:
