EXHIBIT 10.53
AMENDMENT NO. 3
---------------
Amendment No. 3 (this "Amendment"), dated as of November 30, 1995, to
the Credit Agreement, dated as of May 4, 1995, by and among International Post
Limited (the "Borrower"), the Lenders party thereto, and The Bank of New York,
as the Issuer and as the Agent (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement").
RECITALS
I. The Borrower and the Agent wish to amend the Credit Agreement upon
the terms, and subject to the conditions, herein contained.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Agent hereby
agree as follows:
1. The defined term "Fixed Charge Coverage Ratio" contained in Section
1.1(b) of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Fixed Charge Coverage Ratio": (i) as of the fiscal quarter
ending October 31, 1995, the ratio of (a) EBITDA in respect of the fiscal
quarter then ended minus all capital expenditures (other than those made with
property insurance proceeds) during such fiscal quarter made by the Borrower and
the Subsidiaries on a Consolidated basis, to (b) Fixed Charges in respect of
such fiscal quarter, (ii) as of the fiscal quarter ending January 31, 1996, the
ratio of (a) EBITDA in respect of the two consecutive fiscal quarters then ended
minus all capital expenditures (other than those made with property insurance
proceeds) during such two consecutive fiscal quarters made by the Borrower and
the Subsidiaries on a Consolidated basis, to (b) Fixed Charges in respect of
such two consecutive fiscal quarters, (iii) as of the fiscal quarter ending
April 30, 1996, the ratio of (a) EBITDA in respect of the three consecutive
fiscal quarters then ended minus all capital expenditures (other than those made
with property insurance proceeds) during such three consecutive fiscal quarters
made by the Borrower and the Subsidiaries on a Consolidated basis, to (b) Fixed
Charges in respect of such three consecutive fiscal quarters, and (iv) as of
each fiscal quarter ending on or after July 31, 1996, the ratio of (a) EBITDA in
respect of the four consecutive fiscal quarters then ended minus all capital
expenditures (other than those made with property insurance proceeds) during
such four consecutive fiscal quarters made by the Borrower and the Subsidiaries
on a Consolidated basis, to (b) Fixed Charges in respect of such four
consecutive fiscal quarters. For purposes of this definition, "EBITDA" shall
mean EBITDA of the Borrower and the Subsidiaries on a Consolidated basis.
2. The defined term "Leverage Ratio" contained in Section 1.1(b) of the
Credit Agreement is hereby amended and restated in its entirety as follows:
"Leverage Ratio": (i) as of the fiscal quarter end October
31, 1995, the ratio of (a) the sum of (1) the aggregate liquidation preference
value of all preferred stock (including without limitation, Preferred Stock)
issued by the Borrower, plus (2) all Indebtedness of the Borrower and the
Subsidiaries on a Consolidated basis on such date, to (b) four multiplied by
EBITDA in respect of the fiscal quarter then ended, (ii) as of the fiscal
quarter end January 31, 1996, the ratio of (a) the sum of (1) the aggregate
liquidation preference value of all preferred stock (including without
limitation, Preferred Stock) issued by the Borrower, plus (2) all Indebtedness
of the Borrower and the Subsidiaries on a Consolidated basis on such date, to
(b) two multiplied by EBITDA in respect of the two consecutive fiscal quarters
then ended, (iii) as of the fiscal quarter end April 30, 1996, the ratio of (a)
the sum of (1) the aggregate liquidation preference value of all preferred stock
(including without limitation, Preferred stock) issued by the Borrower, plus (2)
all Indebtedness of the Borrower and the Subsidiaries on a Consolidated basis on
such date, to (b) (4/3) multiplied by EBITDA in respect of the three consecutive
fiscal quarters then ended, and (iv) as of each fiscal quarter ending on or
after July 31, 1996, the ratio of (a) the sum of (1) the aggregate liquidation
preference value of all preferred stock (including without limitation, Preferred
Stock) issued by the Borrower, plus (2) all Indebtedness of the Borrower and the
Subsidiaries on a Consolidated basis on such date, to (b) EBITDA in respect of
the four consecutive fiscal quarters then ended. For purposes of this
definition, (x) "EBITDA" shall mean EBITDA of the Borrower and the Subsidiaries
on a Consolidated basis, and (y) with respect of the Approved Subordinated Debt
and the Other Subordinated Debt, and the liquidation preference value in respect
of preferred stock issued by the Borrower, shall each be as set forth on the
balance sheet of the Borrower as of such fiscal period end.
3. Section 6.4 of the Credit Agreement is amended and restated in its
entirety as follows:
6.4 Acquisition Loans
In connection with each Acquisition Loan, (a) the Borrower
shall have delivered to the Agent (for delivery to each Lender) each of the
Acquisition Notes, executed by the Borrower, (b) the Leverage Ratio at the
fiscal quarter end (in respect of which a Compliance Certificate shall have been
delivered to each Lender pursuant to Section 7.l7 (d)) immediately preceding the
date of such Loan shall not exceed 2.75:1.00, and (c) the Fixed Charge Coverage
Ratio at the fiscal quarter end (in respect of which a Compliance Certificate
shall have been delivered to each Lender pursuant to Section 7.7(d)) immediately
preceding the date of such Loan shall be greater than or equal to 1.50:1.00.
4. Section 7.12 of the Credit Agreement is amended and restated in its
entirety as follows:
7.12 Fixed Charge Coverage Ratio
At each fiscal quarter end occurring during each period set
forth below, have a Fixed Charge Coverage Ratio greater than or equal to the
ratio set forth adjacent to such period:
Period Ratio
------------------------------------------ ---------
October 1, 1995 through October 31, 1995 0.65:1.00
November 1, 1995 through January 31, 1996 0.80:1.00
February 1, 1996 through April 30, 1996 1.20:1.00
May 1, 1996 and thereafter 1.50:1.00
5. Section 8.4(f) (viii) of the Credit Agreement is amended by (a)
deleting the words "Section 7.11" and inserting in its place "Sections 7.11 and
7.12", and (b) deleting the words "such Section" and inserting in their place
the words "such Sections".
6. Sections 1-5 of this Amendment shall not be effective until such
time as each of the following conditions precedent shall have been fulfilled:
(a) Required Lenders shall have consented to the execution and
delivery hereof by the Agent.
(b) The Borrower shall have paid to the Agent, for the pro rata
account of the Lenders, an amendment fee in the sum of $45,000.
(c) All legal matters incident to the execution and delivery of
this Amendment shall be reasonably satisfactory to Special Counsel.
7. The Borrower hereby (a) reaffirms and admits the validity and
enforceability of all the Loan Documents and its obligations thereunder, (b)
agrees and admits that it has no valid defenses to or offsets against any of its
obligations to the Agent, the Issuer or the Lenders under the Loan Documents,
(c) represents and warrants that, after giving effect hereto, no Default or
Event of Default has occurred or is continuing, and (d) agrees to pay the
reasonable fees and disbursements of Special Counsel to the Agent incurred in
connection with the preparation, negotiation and closing of this Amendment, and
(e) represents and warrants that all of the representations and warranties
contained in the Loan Documents are true and correct on and as of the date
hereof.
8. In all other respects, the Agreement and the other Loan Documents
shall remain in full force and effect.
9. This Amendment may be executed in any number of counterparts, each
of which shall be an original and all of which shall constitute one agreement.
It shall not be necessary in making proof of this Amendment to produce or
account for more than one counterpart signed by the party against which
enforcement is sought.
10. THIS AMENDMENT IS BEING DELIVERED IN AND IS INTENDED TO BE
PERFORMED IN THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
duly executed on its behalf.
THE BANK OF NEW YORK,
as the Agent
By: /s/ XXX X. XXXXX
Name: Xxx X. Xxxxx
Title: Vice President
INTERNATIONAL POST LIMITED
By: /s/ XXXXXXX X. XXXXXX
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
Each of the following Lenders hereby acknowledges and consents to the execution
and delivery of this Amendment by the Agent:
THE BANK OF NEW YORK
By: /s/ XXX X. XXXXX
Name: Xxx X. Xxxxx
Title: Vice President
FLEET BANK
By: /s/ XXXX X. XXXXXXXX
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
NATWEST BANK N.A.
By: /s/ XXXXXX XXXXXXXXX
Name: Xxxxxx XxXxxxxxx
Title: Vice President
