EXHIBIT 10.01.01
EXECUTION COPY
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the "Amendment") is made as
of March 25, 2002 by and among XXXXXXXX & STRUGGLES INTERNATIONAL, INC. (the
"Borrower"), the financial institutions listed on the signature pages hereof
(the "Lenders"), and JPMORGAN CHASE BANK, as Administrative Agent (the
"Administrative Agent"), under that certain Credit Agreement dated as of
December 28, 2001 by and among the Borrower, the financial institutions party
thereto, and the Administrative Agent (the "Credit Agreement"). Defined terms
used herein and not otherwise defined herein shall have the meaning given to
them in the Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to the Credit Agreement; and
WHEREAS, the Borrower has requested that the Administrative Agent and
the requisite number of Lenders under Section 9.02 of the Credit Agreement amend
the Credit Agreement on the terms and conditions set forth herein; and
WHEREAS, the Borrower, the requisite number of Lenders under Section
9.02 of the Credit Agreement, and the Administrative Agent have agreed to amend
the Credit Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto have agreed to the following amendments to the Credit Agreement:
1. Amendments to the Credit Agreement. Effective as of March 25,
2002 and subject to the satisfaction of the conditions precedent set forth in
Section 2 below, the Credit Agreement is hereby amended as follows:
1.1. Article I of the Credit Agreement is amended by inserting a new
definition therein which shall read as follows:
"Excess Debt" means an amount equal to the aggregate principal amount
unsecured indebtedness incurred and outstanding under Section 6.01(j)
in excess of $10,000,000.
1.2. The definition of "Designated Charges" appearing in Article I of the
Credit Agreement is amended by deleting the reference to "$65,435,000"
appearing therein and substituting "$80,000,000" in lieu thereof.
1.3. The definition of "Applicable Rate" appearing in Article I of the
Credit Agreement is amended and restated in its entirety to read as
follows:
"Applicable Rate" means, for any day, with respect to any ABR
Loan or Eurocurrency Revolving Loan, or with respect to the facility
fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread", "Eurocurrency
Spread" or "Facility Fee Rate", as the case may be, based upon the
Fixed Charge Coverage Ratio as reflected in the then most recently
delivered Financials but subject to the following:
ABR Eurocurrency Facility
Fixed Charge Coverage Ratio: Spread Spread Fee Rate
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Category 1: 0.25% 1.25% 0.50%
Less than 1.00: 1.00
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Category 2: 0.125% 1.125% 0.375%
Greater than or equal to
1.00:1.00 but less than
1.75:1.00
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Category 3: 0% 1.000% 0.25%
Greater than or equal to
1.75:1.00 but less than
2.5:1.00
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Category 4: 0% 0.80% 0.20%
Greater than or equal to
2:50:1.00
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For purposes of the foregoing,
(i) the Fixed Charge Coverage Ratio shall be determined by
calculating Consolidated EBITDA, Consolidated Interest Expense
and Consolidated Capital Expenditures (i) for the Borrower's
fiscal quarter ending on March 31, 2002, for the period of one
fiscal quarter then ending, (ii) for the Borrower's fiscal
quarter ending on June 30, 2002, for the period of two fiscal
quarters then ending, (iii) for the Borrower's fiscal quarter
ending on September 30, 2002, for the period of three fiscal
quarters then ending, (iv) for the Borrower's fiscal quarter
ending on December 31, 2002, for the period of four fiscal
quarters then ending and (v) for each of the Borrower's fiscal
quarters thereafter, for the relevant period required as of such
fiscal quarter under Section 6.12.2;
(ii) if the Borrower fails to deliver the Financials to the
Administrative Agent at the time required pursuant to Section
5.01, then the Fixed Charge Coverage Ratio shall be deemed to be
Category 1 above until five Business Days after such Financials
are so received;
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(iii) adjustments, if any, to the Applicable Rate shall be effective
five Business Days after the Administrative Agent has received
the applicable Financials (it being understood and agreed that
each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next
such change);
(iv) notwithstanding the foregoing, during the period commencing on
the date hereof and ending on the date the Borrower has
delivered to the Administrative Agent the Financials for the
Borrower's fiscal quarter ending June 30, 2002, the Fixed Charge
Coverage Ratio shall be deemed to be Category 1 above; and
(v) each determination of the Applicable Rate made by the
Administrative Agent in accordance with the foregoing shall be
conclusive and binding on the Borrower and each Lender if
reasonably determined.
1.4. Sections 2.01 and 2.06(b) of the Credit Agreement are amended by
adding "plus the Excess Debt" immediately after the references to "the
total Revolving Credit Exposures" appearing therein.
1.5. Section 2.03(b) of the Credit Agreement is amended by deleting the
reference to "one Business Day before" appearing therein and
substituting "on" in lieu thereof.
1.6. Section 5.01(a) of the Credit Agreement is amended by deleting the
reference to "90" appearing therein and substituting "100" in lieu
thereof.
1.7. Section 5.01(b) of the Credit Agreement is amended by deleting the
reference to "45" appearing therein and substituting "50" in lieu
thereof.
1.8. Section 5. 01(d)(ii) of the Credit Agreement is amended and restated
to read as follows: "(ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.01(e), 6.01(f),
6.01(h), 6.01(j), 6.04, 6.06, 6.10, 6.11 and 6.12 including, in the
case of Section 6.01(j), a detailed description and amounts of any and
all Excess Debt then outstanding, and".
1.9. Section 6.01(j) of the Credit Agreement is amended by deleting the
reference to "$10,000,000" appearing therein and substituting
"$25,000,000" in lieu thereof.
1.10. Section 6.12.1 of the Credit Agreement is amended and restated to
read as set forth below:
SECTION 6.12.1. Minimum Consolidated EBITDA. The Borrower will
not permit at any time Consolidated EBITDA, determined as of the end
of each of its fiscal quarters set forth below for the applicable
measurement period set forth below ending with the end of such fiscal
quarter to be less than the applicable amount set forth below:
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CONSOLIDATED
FISCAL QUARTER MEASUREMENT EBITDA SHALL NOT
ENDING PERIOD THEN ENDING BE LESS THAN:
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March 31, 2002 1 fiscal quarter $ (4,000,000)
June 30, 2002 1 fiscal quarter $ 4,000,000
September 30, 2002 2 fiscal quarters $ 12,000,000
December 31, 2002 3 fiscal quarters $ 17,000,000
March 31, 2003 4 fiscal quarters $ 25,000,000
June 30, 2003 4 fiscal quarters $ 25,000,000
September 30, 2003 4 fiscal quarters $ 35,000,000
December 31, 2003 4 fiscal quarters $ 35,000,000
March 31, 2004 and each 4 fiscal quarters $ 45,000,000
fiscal quarter thereafter
1.11. Section 6.12.2 of the Credit Agreement is amended and restated to
read as set forth below:
SECTION 6.12.2. Fixed Charge Coverage Ratio. The Borrower will
not permit the ratio (the "Fixed Charge Coverage Ratio"), determined
as of the end of each of its fiscal quarters set forth below for the
applicable measurement period set forth below ending with the end of
such fiscal quarter, of (i) Consolidated EBITDA to (ii) Consolidated
Interest Expense plus Consolidated Capital Expenditures, all
calculated for the Borrower and its Subsidiaries on a consolidated
basis, to be less than the applicable ratio set forth below:
FIXED CHARGE
FISCAL QUARTER MEASUREMENT COVERAGE RATIO SHALL
ENDING PERIOD THEN ENDING NOT BE LESS THAN:
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June 30, 2002 1 fiscal quarter 0.40:1.00
September 30, 2002 2 fiscal quarters 0.55:1.00
December 31, 2002 3 fiscal quarters 0.70:1.00
March 31, 2003 4 fiscal quarters 1.00:1.00
June 30, 2003 4 fiscal quarters 1.00:1.00
September 30, 2003 and 4 fiscal quarters 1.50:1.00
each fiscal quarter
thereafter
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1.12. Section 6.12.3 of the Credit Agreement is amended and restated to
read as set forth below:
SECTION 6.12.3. Leverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters set
forth below, of (i) Consolidated Total Indebtedness to (ii)
Consolidated EBITDA for the applicable measurement period set forth
below ending with the end of such fiscal quarter, to be greater than
1.50 to 1.0:
MEASUREMENT PERIOD THEN
FISCAL QUARTER ENDING ENDING
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June 30, 2002 1 fiscal quarter
September 30, 2002 2 fiscal quarters
December 31, 2002 3 fiscal quarters
March 31. 2003 and each fiscal 4 fiscal quarters
quarter thereafter
; provided that the parties hereto acknowledge and agree that (i)
Consolidated EBITDA for the fiscal quarter ending on June 30, 2002
shall be multiplied by 4, (ii) Consolidated EBITDA for the fiscal
quarter ending on September 30, 2002 shall be multiplied by 2 and
(iii) Consolidated EBITDA for the fiscal quarter ending on December
31, 2002 shall be multiplied by 4/3.
2. Conditions of Effectiveness. The effectiveness of this Amendment
is subject to the conditions precedent that the Administrative Agent shall have
received (a) duly executed signature pages to this Amendment from the Borrower,
the requisite number of Lenders under Section 9.02 of the Credit Agreement, and
the Administrative Agent and (b) for the ratable account of each Lender party
hereto, an amendment fee in an amount equal to 0.10% of such Lender's
Commitment.
3. Representations and Warranties of the Borrower.
(a) The Borrower hereby represents and warrants that this Amendment and
the Credit Agreement, as previously executed and as amended hereby,
constitute legal, valid and binding obligations of the Borrower and
are enforceable against the Borrower in accordance with their terms
(except as enforceability may be limited by bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights
generally).
(b) Upon the effectiveness of this Amendment and after giving effect
hereto, the Borrower hereby (i) reaffirms all covenants,
representations and warranties made in the Credit Agreement as amended
hereby, and agrees that all such covenants, representations and
warranties shall be true and correct as of the effective date of this
Amendment (unless such representation and warranty is made as of a
specific date, in which case such representation and warranty shall be
true and correct as of such date) and (ii) certifies to the Lenders
and the Administrative Agent that no Default or Event of Default has
occurred and is continuing.
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4. References to the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement (including any
reference therein to "this Agreement," "hereunder," "hereof," "herein"
or words of like import referring thereto) or in any other Loan
Document shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered
in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent or the Lenders, nor
constitute a waiver of any provision of the Credit Agreement or any
other documents, instruments and agreements executed and/or delivered
in connection therewith.
5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
7. Counterparts. 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.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
XXXXXXXX & STRUGGLES
INTERNATIONAL, INC., as the Borrower
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: CFO
JPMORGAN CHASE BANK, individually
and as Administrative Agent
By:/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
LASALLE BANK NATIONAL
ASSOCIATION
By:/s/ Xxx X Xxxx
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Name: Xxx X Xxxx
Title: Commercial Banking Officer
THE NORTHERN TRUST COMPANY
By:/s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT
SIGNATURE PAGE TO AMENDMENT No. 1 TO CREDIT AGREEMENT
