EXHIBIT 10.54
AMENDMENT XX. 0
Xxxxxxxxx Xx. 0 (this "Amendment"), dated as of October 3, 1996, to the
Credit Agreement, dated as of May 4, 1995, by and among International Post
Limited, 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. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. 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 definition "Applicable Margin" contained in Section 1.1(b) of
the Credit Agreement is amended as follows:
(a) The grid contained in such definition is amended and restated
in its entirety as follows:
Whenever the Leverage Non-Acquisition Acquisition
Ratio is: ABR Eurodollar Eurodollar LC Fee
---------------------------- ------ --------------- ----------- ------
Greater than 2.00 0.375% 1.750% 1.875% 1.750%
Greater than or equal to
1.00 less than equal to 2.00 0.125% 1.500% 1.625% 1.500%
Less than 1.00 0.125% 1.250% 1.375% 1.250%
(b) Clause (d) of such definition is amended by inserting the
phrase "or if at any time from and after October 3, 1996 and prior to the date,
if any, upon which the Fixed Charge Coverage Ratio shall be less than 1.50:1.00"
immediately after the reference to Section 7.7(d) contained in such clause.
2. Section 1.1 of the Credit Agreement is amended by adding the
following definition in the appropriate alphabetical order:
"Pro-forma Operating Lease Obligation": at any time with respect to
any Person, any obligation or liability of such Person at such time or at any
time thereafter, as lessee under any lease, which in accordance with GAAP is not
required to be capitalized on the balance sheet of such Person.
3. 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
----------------------------------------------- ---------
July 31, 1996 through October 30, 1996 1.10:1.00
October 31, 1996 through January 31, 1997 1.15:1.00
February 1, 1997 through July 31, 1997 1.25:1.00
August 1, 1997 and thereafter 1.50:1.00
4. Section 7.7(b) is amended by (a) deleting the terms "8.6 and 8.7"
contained therein, and (b) inserting the terms "8.6, 8.7 and 8.14" in their
place.
5. Section 8 of the Credit Agreement is amended by adding the following
Section at the end thereof:
8.14 Pro-forma Operating Lease Obligations
At any time, create, incur, assume or suffer to exist any
Pro-forma Operating Lease Obligation, or permit any Subsidiary so to do, except
any one or more of the following Pro-forma Operating Lease Obligations:
(a) Pro-forma Operating Lease Obligations of the Borrower and
the Subsidiaries in respect of leases for property, plant and equipment entered
into to enable the Borrower and the Subsidiaries to satisfy their respective
obligations and liabilities under service contracts, provided that (i) each such
service contract is entered into with a third party and (A) such third party is
an investment grade credit, or (B) all of the obligations and liabilities of
such third party under such service contract are supported by one or more
letters of credit, in each case issued by a financial institution having capital
and undivided surplus of not less than $500,000,000, and (ii) each such lease
shall expire on or prior to the expiration of the corresponding service
contract.
(b) Pro-forma Operating Lease Obligations of the Borrower and
the Subsidiaries in respect of leases for real property, and
(c) other Pro-forma Operating Lease Obligations of the
Borrower and the Subsidiaries, provided that the aggregate amount of all such
Pro-forma Operating Lease Obligations shall at no time exceed $4,000,000 on a
Consolidated basis.
6. Paragraphs 1 - 5 of this Amendment shall not be effective until such
date as each of the following conditions shall have been satisfied:
(a) The 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 $35,000.
(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 such
obligation, (c) represents and warrants that 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 each of the representations and warranties made by it in the Loan
Documents is true and correct with the same effect as though such representation
and warranty had been made on the date hereof.
8. In all other respects, the Loan Documents shall remain in full force
and effect, and no amendment in respect of any term or condition of any Loan
Document contained herein shall be deemed to be an amendment in respect of any
other term or condition contained in any Loan Document.
9. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
10. THIS AMENDMENT IS BEING EXECUTED AND 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/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
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 hereby acknowledges and consents to the execution and
delivery of this Amendment by the Agent:
THE BANK OF NEW YORK,
Individually and as the Issuer
By: /s/ XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FLEET BANK, N.A. (formerly known as
NatWest Bank N.A.)
By: /s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: Vice President
KEY BANK OF NEW YORK
By: /s/ XXXXXXX XXXXXXXX
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
