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EXHIBIT 10.33
EXECUTION COPY
AMENDMENT NO. 4 AND WAIVER
to
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 AND WAIVER is entered into as of March 30, 2001 by
and among XXXXXXX TIRE GROUP, INC., a Delaware corporation, WINSTON TIRE
COMPANY, a California corporation, THE SPEED MERCHANT, INC., a California
corporation, CALIFORNIA TIRE COMPANY, a California corporation (the
"Borrowers"), the financial institutions party from time to time to the Loan
Agreement (as hereinafter defined) (the "Lenders"), and FLEET CAPITAL
CORPORATION, a Rhode Island corporation, as administrative agent (the
"Administrative Agent") for the Lenders.
Preliminary Statement
The Borrowers, the Lenders and the Administrative Agent are parties to
the Second Amended and Restated Loan and Security Agreement dated as of March 6,
2000, as amended by Amendment No. 1 dated as of July 20, 2000, Amendment No. 2
dated as of February 2, 2001 and Amendment No. 3 dated as of February 14, 2001
(the "Loan Agreement"; terms defined therein, unless otherwise defined herein,
being used herein as therein defined).
The Borrowers are in default of certain financial covenants set forth
in the Loan Agreement as a result of which the Lenders are entitled to exercise
their remedies under the Loan Agreement (the "Existing Defaults"). The Borrowers
have requested that the Lenders waive the Existing Defaults and amend the Loan
Agreement as hereinafter set forth and the Lenders have agreed to grant such
waivers and so to amend the Loan Agreement, upon and subject to the terms and
conditions of this Amendment.
Statement of Agreement
NOW, THEREFORE, in consideration of the Loan Agreement, the Loans
outstanding thereunder, the mutual covenants set forth therein and herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment to Loan Agreement. Subject to the provisions of
SECTION 3, the Loan Agreement is hereby amended by:
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(a) amending Section 1.1 Definitions by deleting therefrom the
definitions "Applicable Margin", "Borrowing Base", "EBIT", " EBITDA" and
"Revolving Credit Facility" and substituting therefor the following respective
definitions:
"Applicable Margin" from and after the Amendment No. 4
Effective Date means as to each Type of Loan, the Tier I rate per annum
set forth under the appropriate caption on the pricing matrix attached
hereto as ANNEX B, subject to quarterly adjustment as follows: From and
after delivery of the consolidated quarterly financial statements of
Xxxxxxx and its Consolidated Subsidiaries for the Fiscal Quarter ending
on or about June 30, 2001 and each Fiscal Quarter ending thereafter and
the related officer's certificate in accordance with the respective
provisions of SECTIONS 10.1(B) and 10.3, the foregoing percentages will
be adjusted, PROVIDED that no Default or Event of Default has occurred
and is continuing, effective the first day of the calendar month that
begins at least 10 days after delivery of such financial statements for
such Fiscal Quarter or any succeeding Fiscal Quarter, to the
percentages set forth in ANNEX B that correspond to the Leverage Ratio
reflected in such financial statements and the related certificate.
"Borrowing Base" means at any time an amount equal to the
lesser of:
(a) the aggregate Commitments, MINUS the sum of
(i) the Letter of Credit Reserve, PLUS
(ii) the Rent Reserve, PLUS
(iii) any Additional Reserves, and
(b) an amount equal to
(i) 85% (or such lesser percentage as the
Administrative Agent may in its reasonable credit judgment
determine from time to time) of the face value of Eligible
Receivables due and owing at such time, PLUS
(ii) the lesser of
(A) 65% (or such lesser percentage as the
Administrative Agent may in its reasonable credit judgment
determine from time to time) of the lesser of cost determined
on a FIFO (or first-in-first-out) accounting basis and fair
market value of Eligible Inventory consisting of tires, at
such time, and
(B) $100,000,000, PLUS
(iii) the lesser of
(A) 50% (or such lesser percentage as the
Administrative Agent may in its reasonable credit judgment
determine from time to time) of the lesser
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of cost determined on a FIFO (or first-in-first-out)
accounting basis and fair market value of Eligible Inventory
other than tires, at such time, and
(B) $40,000,000, MINUS
(iv) the sum of
(A) the Letter of Credit Reserve, PLUS
(B) the Rent Reserve, PLUS
(C) the Dilution Reserve, PLUS
(D) the Minimum Availability Reserve, PLUS
(E) any Additional Reserves.
"EBIT" for any specified accounting period for a specified
Person, means Net Income of such Person(s) for such period before
provision for net interest expense and income taxes PLUS, in the case
of EBIT of Xxxxxxx, up to $3,500,000 in non-recurring charges related
to what is commonly referred to by the Borrowers as the "Xxxxx
Settlement" deducted in computing Net Income of Xxxxxxx for such
specified period.
"EBITDA" for any specified accounting period for a specified
Person means EBIT for such period for such Person PLUS depreciation and
amortization expense deducted in computing such EBIT.
"Revolving Credit Facility" means the credit facility
providing for Revolving Credit Loans based upon the Borrowing Base and
described in SECTION 2.1 up to an aggregate principal amount at any one
time outstanding not to exceed $180,000,000 or such lesser or greater
amount as shall be agreed upon from time to time in writing by the
Administrative Agent, the Syndication Agent, the Documentation Agent,
the Lenders and the Borrowers.
(b) amending Section 1.1 Definitions by adding the following
definitions thereto in the appropriate alphabetical order:
"Amendment No. 4" means the Amendment No. 4 and Waiver to the
Second Amended and Restated Loan and Security Agreement between the
Borrowers, the Lenders and the Administrative Agent dated as of March
30, 2001.
"Amendment No. 4 Effective Date" means the date on which
Amendment No. 4 shall have become effective in accordance with its
terms.
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"EBITDA - Xxxxxxx Group" means for any specified accounting
period, EBITDA of Xxxxxxx and its Consolidated Subsidiaries other than
Winston on a consolidated basis for such period, as reported in
accordance with GAAP.
"EBITDA - Winston" means for each of the four Fiscal Quarters
of Fiscal Year 2000 (i) ($657,000), (ii) ($3,251,000), (iii)
($3,842,000) and (iv) ($13,009,000), respectively, and for any
specified accounting period ending after the last day of Fiscal Year
2000, EBITDA of Winston for such period, as reported pursuant to
SECTION 10.1(C).
"Leverage Ratio" means as of any specified date, the ratio of
(a) total Debt of Xxxxxxx and its Consolidated Subsidiaries on a
consolidated basis as of such date to (b) the sum of (i) EBITDA -
Xxxxxx, plus (ii) EBITDA - Winston for the period of four consecutive
Fiscal Quarters ended on or most recently before such date; PROVIDED,
HOWEVER, that from and after the earlier of the date on which (x)
Xxxxxxx no longer owns, directly or indirectly, any shares of the
capital stock of Winston or (y) a balance sheet of Winston prepared on
a basis consistent with the financial statements prepared and submitted
pursuant to SECTION 10.1(C) would reflect no assets or liabilities,
EBITDA - Winston shall not be included in the calculation of the
Leverage Ratio.
"Minimum Availability Reserve" means $15,000,000 or such
greater amount as the Administrative Agent may in its reasonable credit
judgment determine from time to time.
"Series C Preferred Stock Purchase Agreement" means the Share
Purchase Agreement dated as of March 30, 2001 among Xxxxxxx,
Charlesbank Equity Fund IV, Limited Partnership, and The 1818 Mezzanine
Fund, L.P., as in effect on the Amendment No. 4 Effective Date and as
amended after the Amendment No. 4 Effective Date in accordance with the
terms of this Agreement.
(c) amending Section 4.6(b) Termination of Agreement by amending
subpart (iv) thereof by substituting the phrase "the earlier of March 30, 2001
and the Amendment No. 4 Effective Date" for the phrase "the Effective Date" the
three times it appears therein;
(d) amending Section 8.12(c) Cash Receipts and Disbursements Forecasts;
Borrowing Base Certificate in its entirety to read as follows:
(c) Cash and Collateral Reporting. The Borrowers shall deliver
to the Administrative Agent (i) not less frequently than weekly the
forecasted cash receipts and disbursements, in form and substance
satisfactory to the Administrative Agent, of Xxxxxxx and its
Subsidiaries, on a consolidated basis, for the succeeding 13 weeks,
(ii) not later than Wednesday of each week, a Borrowing Base
Certificate prepared as of the close of business on the preceding
Friday, (iii) not less frequently than weekly, as requested by the
Administrative Agent, a weekly summary accounts payable aging, and
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(iv) on the 20th day of each calendar month, a Borrowing Base
Certificate prepared as of the last Business Day of the preceding
Fiscal Month.
(e) amending Section 10.1 Financial Statements by redesignating
subsection (c) as subsection (d) and inserting therein immediately following
subsection (b) a new subsection (c) to read as follows:
(c) Winston Financial Statements. As soon as available after
the end of each Fiscal Month, but in any event within 30 days after the
end of each Fiscal Month (or 45 days after the end of any Fiscal Month
that is the last Fiscal Month of a Fiscal Quarter), copies of the
unaudited balance sheet of Winston as at the end of such Fiscal Month
and the related unaudited statements of operations and cash flows for
Winston for such Fiscal Month and for the portion of the Fiscal Year
through such Fiscal Month, certified by a Financial Officer as
presenting fairly the financial condition and results of Winston to the
maximum extent possible as if it were a continuing operation (subject
to audit adjustments) for the applicable period(s);
(f) amending Section 10.3 Officer's Certificate by amending subsection
(a) thereof in its entirety to read as follows:
(a) setting forth as at the end of such Fiscal Quarter or
Fiscal Year, as the case may be, the calculations required to establish
whether or not the Borrowers were in compliance with the requirements
of SECTIONS 11.1, 11.2 and 11.5 as at the end of each respective period
and the calculations necessary to determine the Leverage Ratio as at
the end of each respective period, and
(g) amending Section 11.1 Financial Covenants in its entirety to read
as follows:
SECTION 11.1 Financial Covenants.
(a) Minimum EBITDA. Permit EBITDA - Xxxxxxx Group or EBITDA -
Winston, for any period specified on SCHEDULE 11.1(A) attached hereto,
to be less (or more negative) than the amount set forth opposite such
period on SCHEDULE 11.1(A).
(b) Minimum Fixed Charge Coverage. Permit the ratio of (i) the
sum of EBITDA - Xxxxxxx Group, plus EBITDA - Winston, plus, during the
period from the Amendment No. 4 Effective Date through the last day of
the first Fiscal Quarter of Fiscal Year 2002, $12,000,000 (attributable
to the amount of equity contributed in cash to Xxxxxxx on or
immediately prior to the Amendment No. 4 Effective Date), minus cash
taxes paid, minus Capital Expenditures (other than Financed Capex) to
(ii) the sum of interest expense, plus scheduled principal payments on
Debt (other than the Loans), in each case for Xxxxxxx and its
Consolidated Subsidiaries (and Winston, to the extent not otherwise
included therein) on a consolidated basis, for any period specified on
SCHEDULE
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11.1(B) attached hereto, to be less than the ratio set forth opposite
such period on SCHEDULE 11.1(B).
(c) Minimum Tangible Capital Funds. At any time during any
Fiscal Month specified on SCHEDULE 11.1(C) attached hereto, permit the
sum of Net Worth (including, without duplication, any amount of equity
contributed in cash to Xxxxxxx from time to time on or after the
Amendment No. 4 Effective Date, but excluding the effect of any gain or
loss recognized by Xxxxxxx in connection with the disposition of
Winston, and excluding up to $3,379,000 attributable to an adjustment
to deferred taxes of Xxxxxxx resulting in a negative adjustment to Net
Worth effective December 30, 2000), plus the outstanding principal
amount of the Senior Notes, minus the aggregate net book value of all
intangible assets, to be less than the amount set forth opposite such
Fiscal Month.
(h) amending Section 11.4 Acquisitions in its entirety to read as
follows:
SECTION 11.4 Acquisitions. Acquire, after the Amendment No. 4
Effective Date, any Business Unit or Investment or, after the Amendment
No. 4 Effective Date, maintain any Investment other than Permitted
Investments.
(i) amending Section 11.5 Capital Expenditures in its entirety to read
as follows:
SECTION 11.5 Capital Expenditures. Make or incur any Capital
Expenditures (excluding Financed Capex) in the aggregate in excess of
(i) $6,750,000 for Fiscal Year 2001 and (ii) $12,000,000 for any Fiscal
Year thereafter, PROVIDED that any amount of such allowance not used in
a Fiscal Year may be carried forward, but only to the succeeding Fiscal
Year.
(j) amending Section 11.11 Amendments of Other Agreements by
redesignating clause (iii) thereof as clause (iv) and inserting a new clause
(iii) immediately following clause (ii) thereof to read as follows:
(iii) the Series C Preferred Stock Purchase Agreement
(k) amending Section 15.9(b)(iii) in its entirety to read as follows:
(iii) except to the extent expressly provided in SECTIONS 4.7
and 14.1, no amendment shall be made to the definition of any of the
following terms, "Applicable Margin", "Borrowing Base" (except as
otherwise expressly contemplated hereunder) and the defined terms used
in such definition, EXCEPT that the Required Lenders may reduce the
Minimum Availability Reserve to an amount less than $15,000,000,
"Eligible Assignee", "Proportionate Share", "Ratable", "Ratable Share",
"Commitment Percentage", "Secured Obligations", or "Commitment";
(l) amending Section 15.2(a)(iv) by deleting therefrom the phrase "two
times per year" and substituting therefor the phrase "three times per year";
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(m) further amending the Loan Agreement by deleting Annex A -
Commitments and Annex B - Pricing Matrix and substituting therefor a new Annex A
- Commitments and a new Annex B - Pricing Matrix in the forms attached hereto as
ANNEX 1 and ANNEX 2, respectively, and adding thereto new Schedules 11.1(a),
11.1(b) and 11.1(c) in the respective forms attached hereto as ANNEXES 3, 4 and
5.
Section 2. Waiver. Effective in accordance with SECTION 3 hereof, the
Lenders hereby waive compliance and the effects of noncompliance by the
Borrowers with (a) the provisions of Section 11.1(a) (Minimum Net Worth) and
Section 11.1(c) (Minimum Interest Coverage Ratio) of the Loan Agreement as of
and for the Fiscal Year ended December 30, 2000 and (b) the provisions of
Section 9.4 (Conduct of Business) to the extent that classifying the operations
of Winston as "discontinued" would otherwise result in a violation thereof.
Section 3. Effectiveness of Amendment. The provisions of SECTIONS 1 and
2 of this Amendment shall become effective as of the date hereof on the date
(the "Amendment Effective Date") on which the Administrative Agent shall have
received (1) an amendment fee in the amount of $450,000 for the Ratable account
of the Lenders and (2) the following documents, each of which shall be
satisfactory in form and substance to the Administrative Agent and in sufficient
copies for each Lender:
(a) at least seven copies of this Amendment duly executed by the
Borrowers, the Subsidiary Guarantors and the Lenders;
(b) a certificate of the president or chief financial officer of
Xxxxxxx stating that, to the best of his knowledge and based on an examination
sufficient to enable him to make an informed statement, after giving effect to
the Amendment,
(i) all of the representations and warranties made or deemed
to be made under the Loan Agreement are true and correct in
all material respects on and as of the Amendment Effective
Date, and
(ii) no Default or Event of Default exists;
and the Administrative Agent shall be satisfied as to the truth and accuracy
thereof;
(c) evidence satisfactory to it that the Investors (as defined in the
Series C Preferred Stock Purchase Agreement) have made or committed to make an
additional cash equity contribution to Xxxxxxx in an aggregate amount not less
than $12,000,000 on terms and conditions satisfactory to the Administrative
Agent and the Lenders in their reasonable discretion;
(d) an appraisal of all Inventory of the Loan Parties performed by
Hilco Appraisal Services, LLC, or another qualified independent appraiser
acceptable to the Administrative Agent, in form and substance satisfactory to
the Administrative Agent;
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(e) evidence satisfactory to the Administrative Agent that, effective
as of the last day of Fiscal Year 2000, the net assets of Winston shall appear
on the consolidated balance sheet of Xxxxxxx and its Consolidated Subsidiaries
as "held for sale" and the business of Winston shall be accounted for as a
discontinued operation; and
(f) such other documents and instruments as the Administrative Agent
may reasonably request.
Section 4. Additional Event of Default. The failure by the Investors
(as defined in the Series C Preferred Stock Purchase Agreement) to satisfy
timely their respective commitments to make additional cash equity contributions
to Xxxxxxx in an aggregate amount not less than $12,000,000, in each case upon
the terms set forth in the Series C Preferred Stock Purchase Agreement, shall,
at the option of the Required Lenders, constitute an Event of Default under the
Loan Agreement.
Section 5. Representations and Warranties. Each Borrower hereby makes
the following representations and warranties to the Administrative Agent and the
Lenders, which representations and warranties shall survive the delivery of this
Amendment and the making of additional Loans under the Loan Agreement as amended
hereby:
(a) Authorization of Agreements. Each Borrower has the right and power,
and has taken all necessary action to authorize it, to execute, deliver and
perform this Amendment and each other agreement contemplated hereby to which it
is a party in accordance with their respective terms. This Amendment and each
other agreement contemplated hereby to which it is a party has been duly
executed and delivered by the duly authorized officers of such Borrower and each
is, or each when executed and delivered in accordance with this Amendment will
be, a legal, valid and binding obligation of such Borrower, enforceable in
accordance with its terms.
(b) Compliance of Agreements with Laws. The execution, delivery and
performance of this Amendment and each other agreement contemplated hereby to
which such Borrower is a party in accordance with their respective terms do not
and will not, by the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to such Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation or by-laws
or any shareholders' agreement of such Borrower or any of its
Subsidiaries, any material provisions of any indenture, agreement or
other instrument to which such Borrower, any of its Subsidiaries or any
of such Borrower's or such Subsidiaries' property may be bound or any
Governmental Approval relating to such Borrower or any of its
Subsidiaries, or
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(iii) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter
acquired by such Borrower other than the Security Interest.
Section 6. Effect of Amendment. From and after the Amendment Effective
Date, all references in the Loan Agreement and in any other Loan Document to
"this Agreement," "the Loan Agreement," "hereunder," "hereof" and words of like
import referring to the Loan Agreement, shall mean and be references to the Loan
Agreement as amended by this Amendment. Except as expressly amended hereby, the
Loan Agreement and all terms, conditions and provisions thereof remain in full
force and effect and are hereby ratified and confirmed. 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 and the Lenders under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
Section 7. Counterpart Execution; Governing Law.
(a) Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed signature page of any party hereto by facsimile
transmission shall be as effective as delivery of a manually delivered
counterpart thereof.
(b) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
conflicts of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
BORROWERS:
XXXXXXX TIRE GROUP, INC.
[CORPORATE SEAL]
Attest: By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------
/s/ J. Xxxxxxx Xxxxxxx Title: President & CEO
---------------------- ---------------------
[Assistant] Secretary
WINSTON TIRE COMPANY
[CORPORATE SEAL]
Attest: By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ J. Xxxxxxx Xxxxxxx ----------------------
---------------------- Title: Chairman
[Assistant] Secretary ---------------------
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------
Title: Vice President
----------------------
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THE SPEED MERCHANT, INC.
[CORPORATE SEAL]
Attest: By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ J. Xxxxxxx Xxxxxxx ----------------------
---------------------- Title: Chairman
[Assistant] Secretary ---------------------
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------
Title: Vice President
----------------------
CALIFORNIA TIRE COMPANY
[CORPORATE SEAL]
Attest: By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
/s/ J. Xxxxxxx Xxxxxxx ----------------------
---------------------- Title: Chairman
[Assistant] Secretary ---------------------
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------
Title: Vice President
----------------------
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FLEET CAPITAL CORPORATION, as
Administrative Agent and as a Lender
By: /s/ Xxxxxxx X. XxXxxxx
---------------------------------
Xxxxxxx X. XxXxxxx
---------------------------------
Senior Vice President
---------------------------------
BANK OF AMERICA, N.A., as Syndication
Agent and as a Lender
By: /s/ ???????????????
---------------------------------
Name:
---------------------------
Title:
---------------------------
FIRST UNION NATIONAL BANK, as
Documentation Agent and as a Lender
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------
Title: Vice President
---------------------------
MELLON BANK, N.A., as a Lender
By: /s/ Xxxxx X. ??????
---------------------------------
Name: Xxxxx X. ??????
---------------------------
Title: V.P.
---------------------------
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------
Title: Vice President
---------------------------
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GUARANTORS:
Acknowledged and consented to this
3rd day of April 2001:
T.O. XXXX TIRE COMPANY, INC.
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------
Name: J. Xxxxxxx Xxxxxxx
-----------------------
Title: Vice President
----------------------
T.O. XXXX HOLDING CO., INC.
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------
Name: J. Xxxxxxx Xxxxxxx
-----------------------
Title: Vice President
----------------------
XXXX INVESTMENT COMPANY
By: /s/ J. Xxxxxxx Xxxxxxx
-----------------------------
Name: J. Xxxxxxx Xxxxxxx
-----------------------
Title: Vice President
----------------------
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ANNEX 1
COMMITMENTS
--------------------------------------------------------------------------------
LENDER COMMITMENT COMMITMENT (IN $)
PERCENTAGE
--------------------------------------------------------------------------------
Fleet Capital Corporation 32.50% 58,500,000
--------------------------------------------------------------------------------
First Union National Bank 22.50% 40,500,000
--------------------------------------------------------------------------------
Bank of America, N.A. 22.50% 40,500,000
--------------------------------------------------------------------------------
Mellon Bank, N.A. 11.25% 20,250,000
--------------------------------------------------------------------------------
PNC Bank, National Association 11.25% 20,250,000
================================================================================
TOTAL 100% 180,000,000
--------------------------------------------------------------------------------
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ANNEX 2
PRICING MATRIX
--------------------------------------------------------------------------------------------------------------------
Tier LEVERAGE EURODOLLAR RATE BASE RATE UNUSED COMMITMENT
RATIO LOANS LOANS FEE
--------------------------------------------------------------------------------------------------------------------
Tier I > 5.50 to 1 3.25% 2.00% 0.500%
-
--------------------------------------------------------------------------------------------------------------------
> 5.00 to 1 and
-
Tier II < 5.50 to 1 3.00% 1.75% 0.500%
--------------------------------------------------------------------------------------------------------------------
> 4.50 to 1 and
-
Tier III < 5.00 to 1 2.75% 1.50% 0.500%
--------------------------------------------------------------------------------------------------------------------
> 4.00 to 1 and
-
Tier IV < 4.50 to 1 2.50% 1.25% 0.375%
--------------------------------------------------------------------------------------------------------------------
> 3.50 to 1 and
-
Tier V < 4.00 to 1 2.00% 0.75% 0.375%
--------------------------------------------------------------------------------------------------------------------
Tier VI < 3.50 to 1 1.75% 0.50% 0.375%
--------------------------------------------------------------------------------------------------------------------
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ANNEX 3
SCHEDULE 11.1(a)
EBITDA - Xxxxxxx Group
The period of four consecutive
Fiscal Quarters ending with: EBITDA - Xxxxxxx Group
------------------------------ ----------------------
The last day of the first Fiscal Quarter
of Fiscal Year 2001 $37,000,000
The last day of the second Fiscal Quarter
of Fiscal Year 2001 $37,000,000
The last day of the third Fiscal Quarter
of Fiscal Year 2001 $34,000,000
The last day of the fourth Fiscal Quarter
of Fiscal Year 2001 $35,000,000
The last day of the first Fiscal Quarter
of Fiscal Year 2002 $36,000,000
The last day of the second Fiscal Quarter
of Fiscal Year 2002 $37,500,000
The last day of the third Fiscal Quarter
of Fiscal Year 2002 $39,500,000
The last day of the fourth Fiscal Quarter of
Fiscal Year 2002 and the last day of each $41,000,000
Fiscal Quarter ending thereafter
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Minimum EBITDA - Winston
Period EBITDA - Winston
------ ----------------
The first and second Fiscal Quarters of
Fiscal Year 2001 ($8,000,000)
The first, second and third Fiscal Quarters
of Fiscal Year 2001 ($8,000,000)
The period of four consecutive Fiscal
Quarters ending on the last day of Fiscal Year 2001 ($8,000,000)
The period of four consecutive Fiscal Quarters
ending on the last day of the first Fiscal Quarter
of Fiscal Year 2002 ($3,400,000)
The period of four consecutive Fiscal Quarters
ending on the last day of the second Fiscal Quarter ($300,000)
of Fiscal Year 2002
Each period of four consecutive Fiscal Quarters
ending thereafter $0
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ANNEX 4
SCHEDULE 11.1(b)
Period Ratio
------ -----
The second Fiscal Quarter of Fiscal
Year 2001 1.70 to 1
The second and third Fiscal Quarters
of Fiscal Year 2001 1.60 to 1
The second, third and fourth Fiscal
Quarters of Fiscal Year 2001 1.50 to 1
The period of four consecutive Fiscal
Quarters ending on the last day of the
first Fiscal Quarter of Fiscal Year 2002 1.20 to 1
The periods of four consecutive Fiscal
Quarters ending on the last day of the
second and third Fiscal Quarters of Fiscal 1.00 to 1
Year 2002
The periods of four consecutive Fiscal
Quarters ending on the last day of the
fourth Fiscal Quarter of Fiscal Year 2002 1.10 to 1
and the last day of each Fiscal Quarter
ending thereafter
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ANNEX 5
SCHEDULE 11.1(c)
During the Fiscal Month Tangible Capital Funds
----------------------- ----------------------
April, 2001 $28,000,000
May, 2001 $28,000,000
June, 2001 $30,000,000
July, 2001 $30,000,000
August, 2001 $30,000,000
September, 2001 $34,000,000
October, 2001 $34,000,000
November, 2001 $34,000,000
December, 2001 $34,000,000
January, 2002 $34,000,000
February, 2002 $34,000,000
March, 2002 $34,000,000
April, 2002 $35,000,000
May, 2002 $35,000,000
June, 2002 $37,000,000
July, 2002 $37,000,000
August, 2002 $37,000,000
September, 2002 $40,000,000
October, 2002 $40,000,000
November, 2002 $40,000,000
December, 2002 $40,000,000
Each Fiscal Month thereafter $40,000,000, as increased by
$2,000,000 on the last day of
the Fiscal Months of
June and December of each
Fiscal Year commencing on
the last day of the Fiscal
Month of June, 2003
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