FIFTH AMENDMENT
FIFTH AMENDMENT, dated as of September 30, 1999 (this Fifth
Amendment), to the CREDIT AGREEMENT, dated as of June 12, 1997, among:
(a) XXXXXXXX CORPORATION, a Delaware corporation (the Borrower);
(b) XXXXXXXX HOLDINGS, INC., a Delaware corporation (the Parent);
(c) the Lenders from time to time parties thereto;
(d) SOCIETE GENERALE, as Documentation Agent for the Lenders;
(e) UBS SECURITIES LLC, as Syndication Agent for the Lenders; and
(f) CREDIT SUISSE FIRST BOSTON, as Administrative Agent for the Lenders.
WITNESSETH
WHEREAS, the parties hereto wish to amend certain provisions of the
Credit Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in
the Agreement shall be used as so defined.
2. Amendment to Subsection 1.1. Subsection 1.1 of the Credit
Agreement is hereby amended by:
(a) deleting in its entirety the definition of the term AApplicable Margin
contained therein and by substituting therefor the following:
Applicable Margin=: with respect to:
(a) Tranche B Loans, (i) 3.50% per annum, in the case of Eurodollar
Loans and (ii) 2.50% per annum, in the case of ABR Loans;
provided that, during such time as the Leverage Ratio is greater
than or equal to 6.0 to 1.0, the Applicable Margin with respect
to Tranche B Loans shall be (x) 4.00% per annum, in the case of
Eurodollar Loans and (y) 3.00% per annum, in the case of ABR
Loans; and
(b) Tranche A Loans and Revolving Credit Loans, the rate per annum
set forth under the relevant column heading below opposite the
Leverage Ratio then in effect:
Applicable Margin
Eurodollar
Leverage Ratio ABR Loans Loans
Greater than or equal to
6.0 to 1.0 2.50% 3.50%
Less than 6.0 to 1.0,
but greater than or
equal to 5.0 to 1.00 2.00% 3.00%
Less than 5.0 to 1.0,
but greater than or
equal to 4.5 to 1.0 1.75% 2.75%
Less than 4.5 to 1.0,
but greater than or
equal to 4.0 to 1.0 1.50% 2.50%
Less than 4.0 to 1.0,
but greater than or
equal to 3.5 to 1.0 1.25% 2.25%
Less than 3.5 to 1.0,
but greater than or
equal to 3.0 to 1.0 1.00% 2.00%
Less than 3.0 to 1.0 .75% 1.75%
; provided that any change in the interest rate on a Loan resulting
from a change in the Leverage Ratio of the Borrower and its
Subsidiaries shall become effective as of the opening of business
on the date which is the earlier of (A) the date upon which the
Administrative Agent receives the financial statements required to
be delivered pursuant to subsection 10.1 which evidence such change
in the Leverage Ratio and (B) the date upon which such financial
statements are required to be delivered pursuant to subsection 10.1;
provided, further, that, in the event that the financial statements
required to be delivered pursuant to subsection 10.1(a) or (b), as
applicable, are not delivered when due (after giving effect to the
applicable cure period), then during the period from the date upon
which such financial statements were required to be delivered until
the date upon which they actually are delivered, the Leverage Ratio
shall be deemed for purposes of this definition to be greater than
or equal to 6.0 to 1.0; and provided, further, however, that the
"Applicable Margin" from time to timefor Swing Line Loans shall be
the same as the "Applicable Margin" then in effect for ABR Loans.
(b) deleting in its entirety the definition of the term Clean-Down Amount
contained therein and by substituting therefor the following:
Clean Down Amount: the amount equal to $10,000,000 for the 1998
fiscal year and $15,000,000 for each fiscal year (other than the
19 (fiscal year) thereafter; provided that with respect to each
such fiscal year such amount shall be increased by the lesser of
(a) $15,000,000 and (b) the aggregate principal amount of the
Revolving Credit Loans borrowed to consummate the acquisition
permitted by subsection 11.10(n)(i). Notwithstanding the foregoing,
the Clean-Down Amount for the 1999 fiscal year shall be $34,000,000.
3. Amendment to Subsection 11.1(a). Subsection 11.1(a) of the
Credit Agreement hereby is amended by:
(a) deleting therefrom the ratio 1.50 to 1.00" which is set forth opposite
the Third Fiscal Quarter 1999" and by substituting therefor the ratio
1.25 to 1.00"; and
(b) deleting therefrom the ratio 1.85 to 1.00" which is set forth opposite
the Fourth Fiscal Quarter 1999" and by substituting therefor the ratio
1.50 to 1.00.
4. Amendment to Subsection 11.1(b). Subsection 11.1(b) of the
Credit Agreement hereby is amended by:
(a) deleting therefrom the ratio 6.00 to 1.00" which is set forth opposite
the Third Fiscal Quarter 1999" and by substituting therefor the ratio
7.80 to 1.00"; and
(b) deleting therefrom the ratio 5.00 to 1.00" which is set forth opposite
the Fourth Fiscal Quarter 1999" and by substituting therefor the ratio
6.75 to 1.00.
4. Effective Date. This Fifth Amendment will become effective
as of the date hereof (the Fifth Amendment Effective Date) upon
(i) its execution by the Parent, the Borrower and the Required
Lenders in accordance with the terms of the Credit Agreement and
(ii) payment to each of the Lenders that executes and delivers
this Fifth Amendment to the Administrative Agent prior to October
12, 1999 (or such later date as the Administrative Agent and the
Borrower may agree) of an amendment fee equal to .25% of such
Lenders Commitments and Loans on the Fifth Amendment Effective Date.
5. Representations and Warranties. The Parent and the Borrower
represent and warrant to each Lender that (a) this Fifth Amendment
constitutes the legal, valid and binding obligation of the Parent
and the Borrower, enforceable against it in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, fraudulent conveyances, reorganization, moratorium or
similar laws affecting creditors' rights generally, by general
equitable principles (whether enforcement is sought by proceedings
in equity or at law) and by an implied covenant of good faith and
fair dealing, (b) the representations and warranties made by the
Credit Parties in the Credit Documents are true and correct in all
material respects on and as of the date hereof (except to the extent
that such representations and warranties are expressly stated to
relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material
respects on and as of such earlier date) and (c) no Default or
Event of Default has occurred and is continuing as of the date
hereof.
6. Continuing Effect. Except as expressly waived or amended
hereby, the Agreement shall continue to be and shall remain in full
force and effect in accordance with its terms. This Fifth Amendment
shall constitute a Credit Document.
7. Governing Law. This Fifth Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the State
of New York.
8. Counterparts. This Fifth Amendment may be executed by the
parties hereto in any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one
and the same instrument.
9. Payment of Expenses. The Borrower agrees to pay and reimburse
the Administrative Agent for all of its out-of-pocket costs and
reasonable expenses incurred in connection with this Fifth Amendment,
including, without limitation, the reasonable fees and disbursements
of counsel to the Administrative Agent.
10. Acknowledgment with Respect to Various Credit Documents. Each
Credit Party, by its execution and delivery of a copy of this Fifth Amendment,
hereby consents to the extensions of credit pursuant to the Credit Agreement.
Each Credit Party further acknowledges and agrees to the provisions of this
Fifth Amendment and hereby agrees for the benefit of the Lenders that all
extensions of credit (including without limitation all Tranche B Loans)
pursuant to the Credit Agreement (as same is amended by this Fifth Amendment,
and as same may be further amended, modified or supplemented from time to
time) shall be fully entitled to all benefits of (and shall be fully
guaranteed pursuant to) the Master Guarantee and Collateral Agreement and
shall be fully secured pursuant to, and in accordance with the terms of, all
the Security Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
XXXXXXXX CORPORATION
By:
Title:
XXXXXXXX HOLDINGS, INC.
By:
Title:
CREDIT SUISSE FIRST BOSTON, as
Administrative Agent and as a Lender
By:
Title:
By:
Title:
Lender Name:
By:
Title:
ACKNOWLEDGED AND AGREED
ERO, INC. ERO INDUSTRIES, INC.
By: By:
Name:
Title:
ERO MARKETING, INC. PRISS PRINTS, INC.
By: By:
Name:
Title:
IMPACT, INC. ERO CANADA, INC.
By: By:
Name:
Title:
AMAV INDUSTRIES INC.
By:
