Exhibit 10.1
SIXTH AMENDMENT
SIXTH AMENDMENT, dated as of December 28, 200l (this "Sixth Amendment"),
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to the Credit and Guarantee Agreement, dated as of June 26, 1997 (the "Credit
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Agreement"), among Xxxx Industries, Inc., a Delaware corporation (the
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"Company"), each Foreign Subsidiary Borrower (as defined in the Credit
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Agreement) (together with the Company, the "Borrowers"), the several banks and
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other financial institutions from time to time parties thereto (the "Lenders")
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and JPMorgan Chase Bank, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"), as amended by a First Amendment, dated as
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of August 17, 1998, among the Borrowers, the Lenders and the Administrative
Agent, a Second Amendment, dated as of December 31, 1998, among the Borrowers,
the Lenders and the Administrative Agent, a Third Amendment and Consent, dated
as of March 31, 1999, among the Borrowers, the Lenders and the Administrative
Agent, a Fourth Amendment, dated as of February 29, 2000, among the Borrowers,
the Lenders and the Administrative Agent, and a Fifth Amendment, dated as of May
2, 2000, among the Borrowers, the Lenders and the Administrative Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrowers; and
WHEREAS, the Borrowers have requested, and, upon this Sixth Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Sixth Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used
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herein shall have the meanings given to them in the Credit Agreement.
II. Amendments to Credit Agreement.
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1. Amendments to Subsection 1.1; Additional Definitions. Subsection
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1.1 of the Credit Agreement is hereby amended by adding thereto the following
definition in their appropriate alphabetical order:
"Collateral": all property of the Credit Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Collateral Agreement": the Collateral Agreement, dated as of
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December 28, 2001, made by the Company and its Domestic Subsidiaries
in favor of the Administrative Agent for the benefit of the Lenders, as
the same may be amended, supplemented or otherwise modified from time
to time.
2
"Collateral Agreement Supplement": a supplement to the Collateral
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Agreement, substantially in the form of Annex A to the Collateral
Agreement, whereby a Domestic Subsidiary becomes a "Grantor" under the
Collateral Agreement.
"Qualified Receivables Transaction": any transaction or series
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of transactions that, upon 5 Business Days' prior written notice to the
Administrative Agent (provided that no such notice shall be required
with respect to such transactions entered into by any Foreign
Subsidiary), may be entered into by the Company or any of its
Subsidiaries with any other Person pursuant to which the Company or any
of its Subsidiaries may sell, convey or otherwise transfer to such
Person, or may grant a security interest in, any accounts receivable
(whether now existing or arising in the future) of the Company or any
of its Subsidiaries, and any assets related thereto including, without
limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such
accounts receivable and the proceeds of such receivables.
"Sixth Amendment Effective Date": December 28, 200l.
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2. Amendment to Subsection 1.1: Definition of "Applicable Margin".
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The definition of "Applicable Margin" contained in Subsection 1.1 of the Credit
Agreement is hereby amended by deleting subsection (d) of such definition in its
entirety and substituting in lieu thereof the following:
(d) for each day from and after the Sixth Amendment
Effective Date until the Adjustment Date occurring after the
delivery of financial statements for the fiscal period ending
December 29, 200l pursuant to subsection 9.1(a), the Applicable
Margin shall be 2.75% per annum.
3. Amendment to Subsection 1.1; Definition of "Commitment Fee Rate".
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The definition of "Commitment Fee Rate" contained in Subsection 1.1 of the
Credit Agreement is hereby amended by deleting subsection (d) of such definition
in its entirety and substituting in lieu thereof the following:
(d) for each day from and after the Sixth Amendment
Effective Date until the Adjustment Date occurring after the
delivery of financial statements for the fiscal period ending
December 29, 200l pursuant to subsection 9.1(a), the Commitment
Fee Rate shall be .45% per annum.
4. Amendment to Subsection 1.1; Definition of "Consolidated EBITDA".
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The definition of "Consolidated EBITDA" contained in Subsection 1.1 of the
Credit Agreement is hereby amended by deleting the period from the end of such
definition and substituting in lieu thereof the following:
provided, however, that in any computation of Consolidated EBITDA,
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the following items shall be disregarded: (i) non-cash charges
deducted in determining Consolidated Net Income for the fourth
quarter of the Company's 2001 fiscal year that are associated with
a writedown of inventory in an aggregate amount not to exceed
$8,000,000, (ii) non-cash charges deducted in determining
Consolidated Net Income for any period due to impairments recorded
in
3
accordance with the Financial Accounting Standards Board's
Statement of Financial Accounting Standards No. 121 and 142, (iii)
other non-cash charges deducted in determining Consolidated Net
Income for any period that are associated with a writedown of
intangible assets in an aggregate amount not to exceed $5,000,000
and (iv) any extraordinary or non-recurring non-cash gains that
are included in determining Consolidated Net Income.
5. Amendment to Subsection 1.1; Definition of "Consolidated Net
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Worth". The definition of "Consolidated Net Worth" contained in Subsection 1.1
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of the Credit Agreement is hereby amended by deleting such definition in its
entirety and substituting in lieu thereof the following:
"Consolidated Net Worth": at any date, stockholders equity of the
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Company and its Subsidiaries on a consolidated basis as at such date,
determined in accordance with GAAP, adjusted to exclude (a) non-cash
charges due to impairments recorded in accordance with the Financial
Accounting Standards Board's Statement of Financial Accounting
Standards No. 121 and 142 and (b) other non-cash charges that are
associated with a writedown of intangible assets in an aggregate amount
not to exceed $5,000,000, in each case except to the extent that cash
payments are made in respect of such non-cash charges whether such cash
payments are made during the period in which such charges are recorded
or in any subsequent period.
6. Amendment to Subsection 1.1; Definition of "Revolving Credit
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Termination Date". The definition of "Revolving Credit Termination Date"
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contained in Subsection 1.1 of the Credit Agreement is hereby amended by
deleting such definition in its entirety and substituting in lieu thereof the
following:
"Revolving Credit Termination Date": June 30, 2004.
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7. Amendment to Subsection 1.1; Definition of "Security Documents".
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The definition of "Security Documents" contained in Subsection 1.1 of the Credit
Agreement is hereby amended by deleting such definition in its entirety and
substituting in lieu thereof the following:
"Security Documents": the collective reference to the Pledge
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Agreement, the Domestic Subsidiary Guarantee, the Foreign Subsidiary
Guarantees and the Collateral Agreement and any security document or
similar agreement that may be delivered to the Administrative Agent as
collateral security for any or all of the Obligations, in each case as
amended, supplemented or otherwise modified from time to time.
8. Amendment to Subsection 9.9; Additional Collateral; Further
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Assurances. Subsection 9.9 of the Credit Agreement is hereby amended by deleting
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clause (a) of said subsection in its entirety and substituting in lieu thereof
the following:
(a) With respect to any Person that, subsequent to the
Closing Date, becomes a Domestic Subsidiary, promptly upon the
request of the Administrative Agent: (i) execute and deliver to
the Administrative Agent, for the benefit of the Lenders, a new
pledge agreement or such amendments to the relevant Pledge
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Agreement as the Administrative Agent shall deem necessary or
advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such Subsidiary which is owned
by the Company or any of its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing such Capital Stock,
together with undated stock powers executed and delivered in blank by
a duly authorized officer of the Company or such Subsidiary, as the
case may be, (iii) execute and deliver to the Administrative Agent,
for the benefit of the Lenders, a Domestic Subsidiary Guarantee
Supplement, (iv) execute and deliver to the Administrative Agent, for
the benefit of the Lenders, a Collateral Agreement Supplement, and (v)
if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described
in clauses (i), (ii), (iii) and (iv) immediately preceding, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
9. Amendment to Subsection 10.1; Consolidated Cash Flow Coverage Ratio.
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Subsection 10.1 of the Credit Agreement is hereby amended by deleting said
subsection in its entirety and substituting in lieu thereof the following:
10.1 Consolidated Cash Flow Coverage Ratio. Permit the
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Consolidated Cash Flow Coverage Ratio for any period of an aggregate
of four consecutive fiscal quarters of the Borrower ending with any
fiscal quarter set forth below to be less than the ratio set forth
below opposite such fiscal quarter:
Consolidated
Cash Flow
Consolidated Fiscal Quarter Coverage Ratio
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September 30, 2001 through 3.75 to 1.00
and including December 29, 200l
December 30, 2001 through 3.50 to 1.00
and including June 29, 2002
June 30, 2002 through 3.75 to 1.00
and including September 28, 2002
September 29, 2002 and thereafter 4.00 to 1.00
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10. Amendment to Subsection 10.2; Consolidated Leverage Ratio. Subsection
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10.2 of the Credit Agreement is hereby amended by deleting said subsection in
its entirety and substituting in lieu thereof the following:
10.2 Consolidated Leverage Ratio. Permit the Consolidated
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Leverage Ratio as at the last day of any fiscal quarter set forth
below to exceed the ratio set forth below opposite such fiscal
quarter:
Consolidated
Consolidated Fiscal Quarter Leverage Ratio
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September 30, 2001 through 4.00 to 1.00
and including December 29, 2001
December 30, 2001 through 4.25 to 1.00
and including June 29, 2002
June 30, 2002 through 4.00 to 1.00
and including September 28, 2002
September 29, 2002 through 3.50 to 1.00
and including December 28, 2002
December 29, 2002 and thereafter 3.00 to 1.00
11. Amendment to Subsection 10.3; Maintenance of Consolidated Net Worth.
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Subsection 10.3 of the Credit Agreement is hereby amended by deleting said
subsection in its entirety and substituting in lieu thereof the following:
10.3 Maintenance of Consolidated Net Worth. Permit Consolidated
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Net Worth at any time to be less than $125,000,000 plus 50% of
Consolidated Net Income for each fiscal quarter for which Consolidated
Net Income is a positive number ended between March 30, 2002 and the
date of such determination.
12. Amendment to Subsection 10.5; Limitation on Liens. Subsection 10.5 of
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the Credit Agreement is hereby amended by (i) deleting "and" from the end of
clause (k) thereof, (ii) deleting the period from the end of clause (1) thereof
and substituting in lieu thereof "; and" and (iii) adding the following clause
(m) thereto:
(m) Liens on assets incurred in connection with a Qualified
Receivables Transaction.
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13. Amendment to Subsection 10.8; Limitation on Sale of Assets. Subsection
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10.8 of the Credit Agreement is hereby amended by (i) deleting "and" from the
end of clause (d) thereof, (ii) adding "and" to the end of clause (e) thereof
and (iii) adding the following clause (f) thereto:
(f) sales of accounts receivable and related assets or an
interest therein of the type specified in the definition of "Qualified
Receivables Transaction" made in connection with a Qualified
Receivables Transaction.
14. Amendment to Subsection 10.9; Limitation on Dividends. Subsection 10.9
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of the Credit Agreement is hereby amended by deleting clause (c) thereof in its
entirety and substituting in lieu thereof the following:
(c) the Company may from time to time declare and pay cash
dividends on its common stock, if on the date of such payment or
immediately thereafter and after giving effect thereto, no Event of
Default or Default shall exist, provided, however, that no such
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dividend shall be declared or paid pursuant to this clause (c) if the
Consolidated Leverage Ratio as determined from the financial
statements and compliance certificate relating to the most recently
ending fiscal period delivered pursuant to subsection 9.1(a) and
9.2(b) is greater than 4.00 to 1.00;
15. Amendment to Subsection 10.10; Limitation on Capital Expenditures.
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Subsection 10.10 of the Credit Agreement is hereby amended by deleting said
subsection in its entirety and substituting in lieu thereof the following:
10.10 Limitation on Capital Expenditures. Make or commit to make
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any expenditure in respect of the purchase or other acquisition of
fixed or capital assets (excluding any such asset acquired in
connection with normal replacement and maintenance programs properly
charged to current operations) except for expenditures in the ordinary
course of business not exceeding, in the aggregate for the Company and
its Subsidiaries during any fiscal year of the Company, $15,000,000.
16. Amendment to Subsection 14.1; Amendments and Waivers. Subsection 14.1
(a)(B) of the Credit Agreement is hereby amended by deleting the reference to
"Pledged Stock" contained therein and substituting in lieu thereof "Collateral"
17. Amendment to Annex I. Annex I of the Credit Agreement is hereby
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amended by deleting said Annex in its entirety and substituting in lieu thereof
a new Annex I in the form of Annex I to this Sixth Amendment.
18. Amendment to Schedule I. Schedule I of the Credit Agreement is hereby
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amended by deleting said Schedule in its entirety and substituting in lieu
thereof a new Schedule I in the form of Schedule I to this Sixth Amendment.
III. Conditions to Effectiveness. This Sixth Amendment shall become
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effective on the date on which (a) the Company, the Foreign Subsidiary Borrowers
and the Lenders shall have executed and delivered to the Administrative Agent
this Sixth Amendment; (b) the
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Administrative Agent shall have received counterparts of a Collateral Agreement,
duly executed and delivered by the Company and each Domestic Subsidiary, in a
form reasonably satisfactory to the Administrative Agent and the Company; (c)
the Administrative Agent shall have received the results of a recent lien search
in each of the jurisdictions where Collateral (as defined in the Collateral
Agreement) of the Company or its Domestic Subsidiaries is located, and such
search shall not have revealed any liens on any of the Collateral of the Company
or such Domestic Subsidiaries except for liens permitted by Subsection 10.5 of
the Credit Agreement or discharged on or prior to such date pursuant to
documentation satisfactory to the Administrative Agent; (d) each document
(including any Uniform Commercial Code financing statement) required by the
Security Documents or under law or reasonably requested by the Administrative
Agent to be filed, registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Subsection 10.5 of the
Credit Agreement) shall be in proper form for filing, registration or
recordation; (e) the Administrative Agent shall have received, for the account
of each Lender, a fee in the amount set forth in Annex A hereto as the Sixth
Amendment Fee for such Lender, (f) the Administrative Agent shall have received
a certified copy of resolutions of the Board of Directors of the Company and
each Domestic Subsidiary authorizing this Sixth Amendment and the Collateral
Agreement; and (g) the Administrative Agent shall have received a satisfactory
written legal opinion of counsel to the Company and its Domestic Subsidiaries
covering such matters with respect to this Sixth Amendment and the Collateral
Agreement as the Administrative Agent shall reasonably request.
IV. Representations and Warranties. The representations and
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warranties made by the Borrowers in the Loan Documents are true and correct in
all material respects on and as of the Sixth Amendment Effective Date, before
and after giving effect to the effectiveness of this Sixth Amendment, as if made
on and as of the Sixth Amendment Effective Date.
V. Payment of Expenses. The Company agrees to pay or reimburse the
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Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Sixth Amendment, any other documents prepared
in connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
VI. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Credit Agreement and the
Notes are and shall remain in full force and effect.
VII. Governing Law: Counterparts. (a) This Sixth Amendment and the
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rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.
(b) This Sixth Amendment may be executed by one or more of the
parties to this Sixth Amendment on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Sixth Amendment signed by all the
parties shall be lodged with the Company and the Administrative Agent. This
Sixth Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
XXXX INDUSTRIES, INC.
By: /s/
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Title:
XXXX-XXXX GMBH & CO.,
as a Foreign Subsidiary Borrower
By: /s/
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Title:
XXXX VIOTECHNIK GMBH,
as a Foreign Subsidiary Borrower
By: /s/
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Title:
JPMORGAN CHASE BANK,
as Administrative Agent
and a Lender
By: /s/
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Title:
9
FIRST UNION NATIONAL BANK
By: /s/
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Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/
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Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/
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Title:
HSBC BANK USA
By: /s/
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Title:
FLEET NATIONAL BANK
By: /s/
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Title:
CITIZENS BANK OF PENNSYLVANIA
By: /s/
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Title:
10
Annex I
Pricing Grid
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Consolidated Applicable Commitment
Leverage Ratio Margin Fee Rate
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* 4.00 to 1.00 3.50% .75%
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* 3.75 to 1.00 3.00% .50%
but ** 4.00 to 1.00
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* 3.50 to 1.00 2.75% .45%
but ** 3.75 to 1.00
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* 3.25 to 1.00 2.50% .40%
but ** 3.50 to 1.00
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* 3.00 to 1.00 2.25% .35%
but ** 3.25 to 1.00
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* 2.75 to 1.00 2.00% .30%
but ** 3.00 to 1.00
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* 2.50 to 1.00 1.75% .25%
but ** 2.75 to 1.00
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** 2.50 to 1.00 1.50% .20%
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* denotes more than
** denotes less than equal to
SCHEDULE I
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COMMITMENTS; ADDRESSES
A. Revolving Credit Commitment
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Lender Revolving Credit Commitment
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JPMorgan Chase Bank $ 40,000,000
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Citizens Bank of Pennsylvania $ 36,000,000
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HSBC Bank USA $ 22,000,000
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Fleet National Bank $ 22,000,000
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First Union National Bank $ 20,000,000
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National City Bank of Pennsylvania $ 18,000,000
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PNC Bank, National Association $ 15,000,000
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B. Addresses for Notices
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Citizens Bank of Pennsylvania
0000 Xxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
Telephone: 000-000-0000
Telecopy: 000-000-0000
First Union National Bank
NC 0737
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
PNC Bank, National Association
Corporate Banking
Ninth and Xxxxx Xxxxxxx
Xxx 0000
Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
National City Bank of Pennsylvania
000 Xxxxx Xxxxxx
Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
HSBC Bank USA
Xxx XXXX Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Fleet National Bank
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
ANNEX A
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SIXTH AMENDMENT FEE
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Lender Sixth Amendment Fee
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JPMorgan Chase Bank $ 100,000
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Citizens Bank of Pennsylvania $ 90,000
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HSBC Bank USA $ 55,000
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Fleet National Bank $ 55,000
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First Union National Bank $ 50,000
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National City Bank of Pennsylvania $ 45,000
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PNC Bank, National Association $ 37,500
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