AMENDMENT NO. 4
THIS AMENDMENT NO. 4 (this "Amendment") to the Credit Agreement (as
defined below) is entered into as of October 25, 1996 by and among The
Xxxxxxx Company, Inc. (the "Company"), certain foreign subsidiaries of the
Company party thereto (each a "Foreign Borrower" and, collectively, together
with the Company, the "Borrowers"), the Lenders (as defined below) party
hereto and Credit Suisse, as agent for the Lenders (the "Agent").
WHEREAS, the Borrowers, certain lenders (the "Lenders") and the Agent
are party to the Amended and Restated Credit Agreement dated as of August 3,
1995 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"; capitalized terms used but not defined herein shall have
their respective meanings specified in the Credit Agreement); and
WHEREAS, the Borrowers have requested that the Lenders and the Agent
agree, and Required Lenders party hereto and the Agent are willing, to amend
the Credit Agreement, on the terms and conditions of this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT. Subject to the
satisfaction of the conditions to effectiveness specified in Section 5
hereof, the Credit Agreement is hereby amended as follows:
(a) AMENDMENTS TO SECTION 1.01 (CERTAIN DEFINED TERMS).
(i) The definition of "Applicable Margin" in Section 1.01 shall be
amended as follows:
(A) the table that sets forth the Applicable LIBOR Loan Margin
opposite the Total Debt to EBITDA Ratio shall be deleted in its entirety,
and the table set forth on Attachment I shall be substituted therefor.
(B) the table that sets forth the Applicable LIBOR Loan Margin for
Local Loans opposite the Total Debt to EBITDA Ratio shall be deleted in
its entirety, and the table set forth on Attachment II shall be substituted
therefor.
(ii) The definition of "EBITDA" in Section 1.01 shall be amended by
deleting the word "and" immediately prior to clause (g) thereof and
inserting the following words immediately after such clause:
"AND (h) WITH RESPECT TO ANY PERIOD THAT INCLUDES THE THIRD OR THE
FOURTH FISCAL QUARTER OF 1996, RESTRUCTURING CHARGES IN AN AMOUNT NOT
TO EXCEED $64,800,000 TAKEN IN SUCH FISCAL PERIODS"
(b) AMENDMENT TO SECTION 2.05(a) (FACILITY FEE). Section 2.05(a) of
the Credit Agreement shall be amended by deleting in its entirety the table
that sets
forth the Applicable Rate opposite the Total Debt to EBITDA Ratio, and the
table set forth on Attachment III shall be substituted therefor.
(c) AMENDMENT TO SECTION 5.01(k) (MAINTENANCE OF TOTAL DEBT TO
EBITDA RATIO). Section 5.01(k) of the Credit Agreement shall be amended by
deleting in its entirety the table that sets forth the Total Debt to EBITDA
Ratio, and the table set forth on Attachment IV shall be substituted therefor.
(d) AMENDMENT TO SECTION 5.01(l) (MAINTENANCE OF INTEREST COVERAGE
RATIO). Section 5.01(l) of the Credit Agreement shall be amended by deleting
in its entirety the table that sets forth the Interest Coverage Ratio, and
the table set forth on Attachment V shall be substituted therefor.
(e) AMENDMENT TO SECTION 5.02(b) (DEBT). Section 5.02(b)(iii)(C) of the
Credit Agreement shall be amended by deleting clause (3) thereof in its
entirety, and the following shall be substituted therefor:
"(3) THE AGGREGATE PRINCIPAL AMOUNT OF INTERCOMPANY DEBT (OTHER THAN
INTERCOMPANY ACCOUNTS OF THE COMPANY PAYABLE BY FOREIGN SUBSIDIARIES OF
THE COMPANY AS SPECIFIED ON SCHEDULE 1.01-F) OWING TO THE COMPANY FROM ALL
FOREIGN SUBSIDIARIES SHALL NOT EXCEED $50,000,000 AT ANY ONE TIME OUTSTANDING"
(f) AMENDMENT TO SECTION 5.02(e) (INVESTMENTS IN OTHER PERSONS).
Section 5.02(e)(i)(B) of the Credit Agreement shall be deleted in its
entirety, and the following shall be substituted therefor:
"(B) ACQUISITIONS OF SUBSTANTIALLY ALL OF THE OUTSTANDING CAPITAL STOCK OF
ANY PERSON OR A SUBSTANTIAL PORTION OF THE ASSETS, OR ANY BUSINESS LINE,
OF ANY PERSON, OF A NATURE SIMILAR TO THE NATURE OF, OR THAT CONSTITUTE
REASONABLE EXTENSIONS OF, THE BUSINESS CARRIED ON BY THE COMPANY AND ITS
SUBSIDIARIES AS OF THE ORIGINAL CLOSING DATE; PROVIDED THAT
(w) THE AGGREGATE AMOUNT OF ACQUISITIONS CONSUMMATED AFTER OCTOBER 25,
1996 SHALL NOT EXCEED:
(I) $10,000,000 IN ANY FISCAL YEAR (THE "BASE AMOUNT") PROVIDED,
THAT FOR ANY FISCAL YEAR COMMENCING WITH THE 1997 FISCAL YEAR, THE BASE
AMOUNT MAY BE INCREASED BY CARRYING OVER TO ANY SUCH FISCAL YEAR ANY
PORTION OF THE BASE AMOUNT (INCLUDING, WITHOUT LIMITATION, THE PORTION
OF SUCH BASE AMOUNT REPRESENTING UNUSED AMOUNTS FROM ANY PRIOR FISCAL
YEAR) NOT UTILIZED IN THE IMMEDIATELY PRECEDING FISCAL YEAR; AND
(II) ON AND AFTER JANUARY 1, 1999, AN AMOUNT NOT TO EXCEED 50% OF
CUMULATIVE CONSOLIDATED NET INCOME FOR THE PERIOD COMMENCING WITH THE
FISCAL QUARTER COMMENCING ON JANUARY 1, 1999 THROUGH THE FISCAL QUARTER
ENDING IMMEDIATELY PRIOR TO ANY DATE OF ANY SUCH ACQUISITION;
(x) NOTWITHSTANDING THE FOREGOING LIMITATIONS OF THIS SECTION
5.02(e)(i)(B), THE COMPANY OR ANY OF ITS WHOLLY-OWNED
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SUBSIDIARIES MAY ACQUIRE CAPITAL STOCK OF ADG AND CAPITAL STOCK AND ASSETS
OF DISTRIBUTORS OF PRODUCT OF ADG, EACH AS NOT OWNED BY THE COMPANY OR ANY
OF ITS WHOLLY-OWNED SUBSIDIARIES PRIOR TO OCTOBER 25, 1996, IN AN AGGREGATE
AMOUNT NOT TO EXCEED $15,000,000;
(y) FOR PURPOSES OF THIS SECTION 5.02(e)(i)(B) ONLY, CUMULATIVE
CONSOLIDATED NET INCOME SHALL BE DETERMINED WITHOUT GIVING EFFECT TO
THE PARENTHETICAL IN THE DEFINITION THEREOF; AND
(z) THE AGGREGATE PURCHASE PRICE FOR SUCH ACQUISITIONS SHALL INCLUDE
CASH PAID AND DEBT ISSUED OR ASSUMED IN CONNECTION THEREWITH (WITHOUT
DUPLICATION),"
(g) AMENDMENT TO SECTION 5.02(f) (RESTRICTED PAYMENTS). Section
5.02(f)(x)(B) of the Credit Agreement shall be deleted in its entirety, and
the following shall be substituted therefor:
"(B) IF THE DATE OF SUCH PAYMENT IS PRIOR TO JANUARY 1, 1999, NO SUCH
PAYMENT SHALL BE IN RESPECT OF DIVIDENDS ON THE COMPANY'S COMMON STOCK,
AND, AFTER GIVING EFFECT TO SUCH PAYMENT, THE AGGREGATE AMOUNT OF ALL
SUCH PAYMENTS MADE BY THE COMPANY IN RESPECT OF REPURCHASES OF SHARES OF
ITS COMMON STOCK MADE PRIOR TO JANUARY 1, 1999 BUT AFTER OCTOBER 25, 1996
SHALL NOT EXCEED $10,000,000 IN ANY FISCAL YEAR, AND
(C) IF THE DATE OF SUCH PAYMENT IS ON OR AFTER JANUARY 1, 1999, THEN AFTER
GIVING EFFECT TO SUCH PAYMENT THE AGGREGATE AMOUNT OF PAYMENTS BY THE
COMPANY OF CASH DIVIDENDS IN RESPECT OF ITS COMMON STOCK AND REPURCHASES
OF SHARES OF ITS COMMON STOCK MADE ON AND AFTER JANUARY 1, 1999 SHALL NOT
EXCEED 25% OF CUMULATIVE CONSOLIDATED NET INCOME FOR THE PERIOD COMMENCING
WITH THE FISCAL QUARTER COMMENCING ON JANUARY 1, 1999 THROUGH THE FISCAL
QUARTER ENDING IMMEDIATELY PRIOR TO THE DATE OF PROPOSED PAYMENT OF SUCH
DIVIDEND, PROVIDED THAT FOR PURPOSES OF THIS CLAUSE (C) ONLY, CUMULATIVE
CONSOLIDATED NET INCOME SHALL BE DETERMINED WITHOUT GIVING EFFECT TO THE
PARENTHETICAL IN THE DEFINITION THEREOF,"
(h) AMENDMENT TO SECTION 8.02 (NOTICES, ETC.). Section 8.02 of the
Credit Agreement shall be amended effective as of November 1, 1996 by
deleting the address for notices to the Borrowers set forth therein and
substituting the following therefor:
"1767 DENVER XXXX XXXXXXXXX
XXXXXX, XXXXXXXX 00000
ATTENTION: CHIEF FINANCIAL OFFICER"
(i) INSERTION OF NEW SCHEDULE 1.01-F (FOREIGN RECEIVABLES). A new
Schedule 1.01-F to the Credit Agreement in the form of Attachment VI shall be
inserted in its appropriate numeric location.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Each Borrower represents
and warrants as of the date hereof that: (a) this Amendment has been duly
executed and delivered by such Borrower and that this Amendment constitutes
such
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Borrower's legal, valid and binding obligation, enforceable against such
Borrower in accordance with its terms, (b) after giving effect the amendments
contemplated hereby, no Default has occurred and is continuing and (c) the
representations and warranties in Article IV of the Credit Agreement are true
and correct in all material respects on and as of the date hereof (or, if any
such representation or warranty is expressly stated to have been made as of a
specific earlier date, as of such date). It shall be an Event of Default for
all purposes of the Credit Agreement if any of the representations and
warranties made herein shall be, or shall prove to have been, false or
misleading as of the time made in any material respect.
SECTION 3. CONFIRMATION OF COMPANY GUARANTY. The Company hereby (a)
reaffirms and restates as of the date hereof the obligations of the Company
pursuant to the Company Guaranty, (b) confirms that the Guaranteed
Obligations (as defined in the Company Guaranty) shall include, without
limitation, the Obligations of each Foreign Borrower under the Credit
Agreement and each other Loan Document, as each may be amended hereby and (c)
agrees that each reference to the Credit Agreement or words of similar import
in each Loan Document shall be a reference to the Credit Agreement as amended
hereby.
SECTION 4. NO OTHER CONSENTS, WAIVERS OR AMENDMENTS. Except as
specifically provided in this Amendment, no other consents, waivers or
amendments are made or permitted hereby to the Credit Agreement. All other
terms and conditions of the Credit Agreement remain in full force and effect
and apply fully to this Amendment.
SECTION 5. EFFECTIVENESS. This Amendment shall become effective on the
date (the "Amendment Effective Date") that the following conditions precedent
shall have been satisfied:
(a) The receipt by the Agent of all fees of the Agent and the
Lenders that are due to the extent such fees have been presented to a
Borrower for payment;
(b) The receipt by the Agent of the following documents (each
document to be received by the Agent shall be in form and substance
satisfactory to the Agent):
(i) a copy of this Amendment, duly executed by the Borrowers,
the Agent and Required Lenders;
(ii) a copy of the Confirmation of Subsidiary Guaranty that
follows the signature pages hereof, duly executed by each of the
Subsidiaries party to the Subsidiary Guaranty; and
(iii) such other approvals, opinions or documents as the
Required Lenders or the Agent may reasonably request.
(c) Each of the representations and warranties made by each
Borrower in Section 2 hereof shall be true and correct.
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(d) No event has occurred and is continuing that constitutes a
Default under the Credit Agreement on the date hereof or on the Amendment
Effective Date, or after giving effect to the transactions contemplated
hereby.
Upon such effectiveness, the Agent shall promptly notify the Company and each
of the Lenders of such effectiveness.
SECTION 6. COUNTERPARTS. This Amendment may be executed in any number
of counterparts, each of which shall be identical and all of which, when
taken together, shall constitute one and the same instrument, and any of the
parties hereto may execute this Amendment by signing any such counterpart.
SECTION 7. BINDING EFFECT. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the day and year first above written.
THE XXXXXXX COMPANY, INC., as a
Borrower
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President
XXXXXXX JAPAN CO., LTD., as a Borrower
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
XXXXXXX (DEUTSCHLAND) GmbH, as a
Borrower
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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XXXXXXX XXXXXX LIMITED, as a
Borrower
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director and Secretary
XXXXXXX UK PLC, as a Borrower
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director and Secretary
COLEMAN SVB S.r.l., as a Borrower
By: /s/ XXXXXXX LENDERS
----------------------------------
Name: Xxxxxxx Lenders
Title: Director
CREDIT SUISSE, as Agent and a
Lender
By: /s/ XXXX XXXXXXXXX
----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Member of Senior Management
By: /s/ XXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Associate
THE CHASE MANHATTAN BANK, as a
Lender
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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CITIBANK, N.A., as a Lender
By: /s/ XXXXX XXXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxxx
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Lender
By: /s/ XXXXXXX XXXXXXXXX
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
THE LONG TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY,
as a Lender
By: /s/ XXXX XXXXXXXX
----------------------------------
Name: Xxxx Xxxxxxxx
Title: Deputy General Manager
NATIONSBANK (CAROLINAS), N.A., as a
Lender
By: /s/ XXXX X. XXXXXX
----------------------------------
Name: Xxxx X. Xxxxxx
Title: Associate
TORONTO DOMINION (TEXAS), INC.,
as a Lender
By: /s/ XXXX XXXXXXX
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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BOATMEN'S NATIONAL BANK ATTENTION
Effective October 18, 1996, BANK IV, National Association, has merged and
become a part of BOATMEN'S NATIONAL BANK. Documents executed before that date
bearing the former name of BANK IV, National Association will remain fully
effective: it is not necessary to execute new documents simply to reflect the
change of name.
We may for a time continue to use some documents bearing the former name of
BANK IV, National Association. Any such document will be fully effective, and
any reference to BANK IV, National Association, should be read as a reference
to BOATMEN'S NATIONAL BANK.
BANK IV, N.A., as a Lender
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
THE YASUDA TRUST & BANKING
COMPANY, LIMITED, CHICAGO
BRANCH, as a Lender
By: /s/ XXXXXX X. XXXX
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Deputy General Manager
THE FIRST NATIONAL BANK OF BOSTON,
as a Lender
By: /s/ XXXXXXX X. XXXX, XX.
----------------------------------
Name: Xxxxxxx X. Xxxx, Xx.
Title: Director
THE FUJI BANK LIMITED, as a Lender
By: /s/ XXXXX XXXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A., as a Lender
By: /s/ XXXXXXXX XXXXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: General Manager
By: /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: First Vice President
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THE NIPPON CREDIT BANK, LTD., as a
Lender
By: /s/ XXXXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President & Manager
THE BANK OF NEW YORK, as a Lender
By: /s/ XXXXXX XXXX
----------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
INDUSTRIAL BANK OF JAPAN, as a Lender
By: /s/ XXXXX XXX
----------------------------------
Name: Xxxxx Xxx
Title: Senior Vice President
and Senior Manager
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ XXXXX XXXXXXXX
----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
By: /s/
----------------------------------
Name:
Title:
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BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Lender
By: /s/ XXXXX X. XXXXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Assistant Treasurer
By: /s/ XXXXXXX X. XXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: VP-Group Manager
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH, as a Lender
By: /s/
----------------------------------
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/
----------------------------------
Name:
Title:
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BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Lender
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH, as a Lender
By: /s/ XXXXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Joint General Manager
FIRST BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/
----------------------------------
Name:
Title:
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BANQUE FRANCAISE DU COMMERCE
EXTERIEUR, as a Lender
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH, as a Lender
By:
----------------------------------
Name:
Title:
FIRST BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/ XXXXXX XXXXXX
----------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
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