Exhibit 4.01
AMENDMENT NO. 6 TO THE CREDIT AGREEMENT
Dated as of September 30, 1999
AMENDMENT NO. 6 TO THE CREDIT AGREEMENT among Xxxxxxx
Holdings Inc., a Delaware corporation (the "Parent"), Xxxxxxx Fasteners Inc., a
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Delaware corporation (the "Borrower"), PCI Group, Inc., a Delaware corporation
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("PCI"), Xxx Fastener Company, LLC, a Delaware limited liability company
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("Xxx"), Scomex, Inc., a Delaware corporation ("Scomex"), the banks, financial
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institutions and other institutional lenders party to the Credit Agreement
referred to below (collectively, the "Banks") and Credit Agricole Indosuez, as
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administrative agent and collateral agent (the "Administrative Agent").
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PRELIMINARY STATEMENTS:
(1) The Parent, the Borrower, PCI, Xxx, Scomex, the Banks,
the Administrative Agent, Swiss Bank Corporation, Stamford Branch, as
documentation agent and syndication agent, and SBC Warburg Dillon Read Inc., as
advisor and arranger, have entered into a Credit Agreement dated as of November
26, 1997, and amendments and waivers thereto dated as of January 17, 1998,
February 20, 1998, September 30, 1998, December 31, 1998 and June 30, 1999 (such
Credit Agreement, as so amended, being the "Credit Agreement"). Capitalized
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terms not otherwise defined in this Amendment have the same meanings as
specified in the Credit Agreement.
(2) The Borrower has requested that Section 5.02(A)(c),
with respect to the September 30, 1999 Scheduled Term Loan Repayment date, be
amended so that such Scheduled Term Loan Repayment will be due on October 31,
1999.
(3) The Required Banks are, on the terms and conditions
stated below, willing to grant the request of the Borrower as hereinafter set
forth.
SECTION 1. Amendment to the Credit Agreement. Section
---------------------------------
5.02(A)(c) of the Credit Agreement is hereby amended in full to read as follows:
"(c) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 5.02(A), the Borrower shall be
required to repay on each date set forth below the principal amount of the Term
Loans, to the extent then outstanding, set forth below opposite such date (each
such repayment as the same may be reduced as provided in Sections 5.01 and
5.02(B), a "Scheduled Term Loan Repayment"):
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Scheduled Repayment Date Amount
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December 31, 1998 $1,000,000
March 31, 1999 $ 750,000
June 30, 1999 $ 750,000
October 31, 1999 $ 750,000
December 31, 1999 $ 750,000
March 31, 2000 $1,250,000
June 30, 2000 $1,250,000
September 30, 2000 $1,250,000
December 31, 2000 $1,250,000
March 31, 2001 $1,500,000
June 30, 2001 $1,500,000
September 30, 2001 $1,500,000
December 31, 2001 $1,500,000
March 31, 2002 $1,500,000
June 30, 2002 $1,500,000
September 30, 2002 $1,500,000
December 31, 2002 $1,500,000
March 31, 2003 $2,250,000
June 30, 2003 $2,250,000
September 30, 2003 $2,250,000
November 26, 2003 $ 250,000"
SECTION 2. Conditions of Effectiveness. This Amendment shall become
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effective as of the date first above written when, and only when (i) the
Administrative Agent shall have received counterparts of this Amendment
executed by the Borrower, the other Credit Parties and the Required Banks or, as
to any of the Banks, advice satisfactory to the Administrative Agent that such
Bank has executed this Amendment and (ii) the Administrative Agent shall have
additionally received a certificate, dated the date hereof, in form and
substance satisfactory to the Administrative Agent, signed by a duly authorized
officer of the Borrower stating that:
(i) The representations and warranties contained in Section 3 are
correct on and as of the date of such certificate as though made on and as
of such date other than any such representations or warranties that, by
their terms, refer to a date other than the date of such certificate; and
(ii) No event has occurred and is continuing that constitutes a
Default.
This Amendment is subject to the provisions of Section 15.10 of the Credit
Agreement.
SECTION 3. Representations and Warranties of the Credit Parties.
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Each Credit Party represents and warrants as follows:
(a) Corporate Status. Each of the Parent and its Subsidiaries (i) is
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a duly organized and validly existing corporation or limited liability
company in good standing under the laws of the jurisdiction of its
incorporation or organization, (ii) has the corporate or other power and
authority to own its property and assets and to transact the
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business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing
in each jurisdiction where the ownership, leasing or operation of property
or the conduct of its business requires such qualifications, except for
failures to be so qualified which, in the aggregate, would not be
reasonably likely to have a material adverse effect on the performance,
business, assets, nature of assets, liabilities, operations, properties,
condition (financial or otherwise) or prospects of the Borrower and its
Subsidiaries taken as a whole.
(b) Corporate Power and Authority. Each of the Parent and its
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Subsidiaries has the power to execute, deliver and perform the terms and
provisions of this Amendment and the Credit Agreement as amended by this
Amendment (collectively, the "Documents") and has taken all necessary
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corporate or other action to authorize the execution, delivery and
performance by it of each of such Documents. Each of the Parent and its
Subsidiaries has duly executed and delivered each of the Documents to which
it is party, and each of such Documents constitutes the legal, valid and
binding obligation of such party enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law).
(c) No Violation. Neither the execution, delivery or performance by
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the Parent or any of its Subsidiaries of the Documents to which it is a
party, nor compliance by it with the terms and provisions hereof or
thereof, (i) will contravene any provision of any applicable law, statute,
rule or regulation or any order, writ, judgment, injunction or decree of
any court or governmental instrumentality, (ii) will conflict with or
result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default or event of default under, or result
in the creation or imposition of (or the obligation to create or impose),
any Lien (except pursuant to the Security Documents) upon any of the
property or assets of the Parent or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other agreement, contract or instrument to which the
Parent or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound, or to which it may be subject or (iii) will
violate any provision of the Certificate of Incorporation or By-Laws (or
similar organizational documents) of the Parent or any of its Subsidiaries.
(d) Governmental Approvals. No order, consent, approval, license,
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authorization or validation of, or filing, recording or registration with
(except as has been obtained or made on or prior to the Initial Borrowing
Date and as is in full force and effect), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery
and performance of any Document or (ii) the legality, validity, binding
effect or enforceability of any such Document.
(e) Litigation. Other than with respect to matters set forth on
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Schedule VIII to the Credit Agreement, there are no actions, suits or
proceedings pending or, to the best knowledge of the Borrower or any of its
Subsidiaries, threatened that (a) would have a material adverse effect on
the operations or financial condition of the Parent and the
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Borrower together with their respective Subsidiaries, taken as a whole, or
(b) involves a reasonable possibility of (i) a material adverse effect on
(x) the ability of any of the Credit Parties to perform their respective
obligations hereunder or under any of the Credit Documents or (y) the
rights, remedies and benefits available to the Agents, the Issuing Bank and
the Banks hereunder or under any of the Credit Documents, or (c) would be
materially inconsistent with the assumptions underlying the forecasts
previously provided to the Agents, the Issuing Bank and the Banks.
(f) The Security Documents. (i) The provisions of the Security
----------------------
Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the respective Credit Parties
in the Collateral described therein, and the Collateral Agent, for the
benefit of the Secured Creditors, in the case of the Credit Parties, has, a
fully perfected first Lien on, and security interest in, all right, title
and interest of the respective Credit Parties, in all of the Collateral
described therein, subject to no other Liens other than Permitted Liens.
(ii) The recordation of the Security Agreement in the United States
Patent and Trademark Office, together with filings on Form UCC-1 in all
applicable jurisdictions made pursuant to the Security Agreement, is
effective, under federal and state law, to perfect the security interest
granted to the Collateral Agent in the Trademarks and Patents covered by
the Security Agreement and the filing of the Security Agreement with the
United States Copyright Office, together with filings on Form UCC-1 made
pursuant to the Security Agreement is effective under federal and state law
to perfect the security interest granted to the Collateral Agent in the
Copyrights covered by the Security Agreement. Each of the Credit Parties
party to the Security Agreement has good and merchantable title to all
Collateral described therein, free and clear of all Liens except those
described above in subsection (i) of this Section 3(f) and in this
subsection (ii).
(iii) From and after the Initial Borrowing Date, the Mortgages create,
as security for the obligations purported to be secured thereby, a valid,
enforceable and perfected security interest in and Lien on all of the
Mortgaged Properties in favor of the Collateral Agent (or such other
trustee as may be required or desirable under local law) for the benefit of
the Secured Creditors, superior to and prior to the rights of all third
persons (except that the security interest created in the Mortgaged
Properties may be subject to the Permitted Encumbrances related thereto)
and subject to no other Liens (other than Permitted Liens). Each of the
Borrower and its Subsidiaries has good and marketable title at the time of
the grant thereof and at all times thereafter to all Mortgaged Properties,
free and clear of all Liens except those described in the first sentence of
this subsection (iii).
SECTION 4. Conditions Subsequent to the Effectiveness of Amendment.
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(a) The Borrower hereby agrees (x) to deliver to the Administrative Agent in
form and substance satisfactory to the Administrative Agent:
(i) a weekly receipts and disbursements analysis with
weekly comparisons of actual performance to projected performance
until the Administrative Agent shall notify the Borrower that
such analysis is no longer required;
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(ii) a Borrowing Base Certificate each week (in addition to
the requirements of Section 9.01(k) of the Credit Agreement)
until the Administrative Agent shall notify the Borrower that
such weekly Borrowing Base Certificate is no longer required;
(iii) a weekly accounts payable and accounts receivable
aging schedule, until the Administrative Agent shall notify the
Borrower that such aging schedule is no longer required; and
(iv) within 30 days of the date first above written,
certified copies of (i) the resolutions of the Board of Directors
of each Credit Party approving this Amendment and (ii) all
documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Amendment.
(y) that at any time and from time to time to the extent that
the Required Banks or any of the Agents request in order to fulfill the
requirements of any applicable statute, regulation or order of any
governmental body, to preserve, protect, enforce or realize upon the
security interests granted to the Secured Creditors pursuant to the
Security Documents, each Credit Party shall, and shall cause each of its
Subsidiaries to, cooperate with and promptly take all actions necessary to
assist the Banks, the Issuing Bank and the Agents, including, without
limitation, to make, execute, acknowledge, file and/or deliver to the
Banks, the Issuing Bank or the Agents, as the case may be, such
information, documents, certificates, reports and other assurances or
instruments, which the Banks, the Issuing Bank or the Agents, as the case
may be, deems appropriate or advisable to comply with such statutes,
regulations or orders so as to preserve, protect, enforce or realize upon
such security interests granted to the Secured Creditors.
(b) The Borrower will use its best efforts to cooperate with counsel
to the Administrative Agent to complete a satisfactory review of security and
related loan documentation, not later than October 31, 1999.
(c) Upon the Administrative Agent's request, the Borrower shall
cooperate with a field audit of the Borrower's accounts receivable and
inventory.
SECTION 5. Reference to and Effect on the Credit Documents. (a) On
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and after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Credit Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, as specifically amended by this Amendment,
is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed. Without limiting the generality of the
foregoing, the Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all Obligations of the Credit
Parties under the Credit Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a Amendment of any right,
power or remedy of
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any Bank or any Agent under any of the Loan Documents, nor constitute a
Amendment of any provision of any of the Loan Documents.
SECTION 6. Costs and Expenses. Each of the Parent and the Borrower
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jointly and severally agree to pay on demand all costs and expenses of the
Agents in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Agents) in
accordance with the terms of Section 15.01 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed
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in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed 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 counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of an original executed counterpart of
this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
XXXXXXX HOLDINGS INC.
By
Name:
Title:
XXXXXXX FASTENERS INC.
By
Name:
Title:
PCI GROUP, INC.
By
Name:
Title:
XXX FASTENER COMPANY, LLC
By
Name:
Title:
SCOMEX, INC.
By
Name:
Title:
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CREDIT AGRICOLE INDOSUEZ
as Administrative Agent and as a Bank
By
Name:
Title:
By
Name:
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: INDOSUEZ CAPITAL, as Portfolio Advisor
By
Name:
Title:
UBS AG, Stamford Branch
By
Name:
Title:
By
Name:
Title:
PILGRIM PRIME RATE TRUST
By: PILGRIM INVESTMENTS, INC., as its investment
manager
By
Name:
Title:
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IBJ WHITEHALL BANK & TRUST
COMPANY (Formerly known as
IBJ Xxxxxxxx Bank & Trust
Company)
By
Name:
Title:
SUMMIT BANK
By
Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
By
Name:
Title:
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