FIFTH AMENDMENT
FIFTH
AMENDMENT
THIS
FIFTH AMENDMENT dated as of December 17, 2010 (this “Amendment”) amends
the Credit Agreement dated as of May 18, 2007 (as amended, the “Credit Agreement”)
among XXXXXXX INDUSTRIES, INC., an Indiana corporation (the “Borrower”), the
LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in
such capacity, the “Administrative
Agent”). Capitalized terms used but not defined herein have
the respective meanings given to them in the Credit Agreement.
WHEREAS,
the Borrower has requested certain amendments to the Credit
Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION
1. AMENDMENTS. Subject
to the conditions precedent set forth in Section 4, the
Credit Agreement is amended as follows:
1.1 Amendments to Definitions in
Section 1.1.
1.1.1 The
following definition of “Successful Refinancing” is added to Section 1.1 in
proper alphabetical sequence:
“Successful
Refinancing” has the meaning assigned to such term in Section
5.13.
1.1.2 The definitions of “Borrowing Base,” “Revolving
Termination Date” and “Term Maturity Date” in Section 1.1 are amended in their
entirety to read as follows, respectively:
“Borrowing Base” means
as of any date, the lesser of (a) the sum of (i) 80% of the amount of all
Eligible Accounts Receivable plus (ii) 50% of the amount of all Eligible
Inventory measured at the lower of cost or fair market value; or (b)
$28,000,000.
“Revolving Termination
Date” means the earlier of (a) May 31, 2011 and (b) the date on which the
Revolving Commitments terminate pursuant to Section 2.8 or Article
VII.
“Term Maturity Date”
means the earlier of (a) May 31, 2011 and (b) the date on which the Term Loans
are declared due and payable pursuant to Article
VII.
1.2 Amendments to Section
2.11(g). Section 2.11(g) is amended in its entirety to read as
follows:
(g) All
prepayments of Term Loans shall be applied in the inverse order of the maturity
of the remaining installments thereof.
1.3 Amendments to Section
5.1
1.3.1 Section
5.1(b) is amended by inserting the following parenthetical clause immediately
after the reference to “45 days” at the beginning of clause (ii)
thereof:
“(or, in
the case of the fiscal quarter ending March 31, 2011, 30 days)”.
1.3.2 Section
5.1(f) is amended to replace the words “20th day”
with the words “10th
day”.
1.3.3 Sections
5.11, 5.12 and 5.13 are hereby amended in their entirety to read as
follows:
5.11 Status Update
Calls. Participate (and, to the extent requested by the
Administrative Agent, cause its advisers to participate) in a conference call
with the Administrative Agent and the Lenders not less than twice during each
calendar month, in each case at a time mutually agreeable to the Administrative
Agent and the Borrower, to update the Administrative Agent and the Lenders on
the status of the refinancing of this Agreement.
5.12 Financial
Advisors.
(a) Continue
to retain Periculum Capital Company, LLC (or another firm reasonably
satisfactory to the Required Lenders) as a financial advisor to the Borrower and
its Subsidiaries and cause such financial advisor to (i) be available to discuss
with the Administrative Agent and the Lenders on a monthly basis, during
business hours and upon reasonable prior notice, the business, financial
condition and operations of the Borrower and its Subsidiaries and (ii) deliver
to the Administrative Agent copies of all management and similar reports
delivered by such financial advisor to the Borrower.
(b) On
or before January 31, 2011, identify an investment banking firm reasonably
satisfactory to the Required Lenders to assist the Borrower in achieving a
Successful Refinancing by supplementing the efforts of, or replacing, the
Borrower’s existing financial advisor (and upon request of the Required Lenders
at any time thereafter, the Borrower shall engage such investment banking firm
for such purpose).
(c) (i)
Cooperate with any financial advisor engaged by the Administrative Agent on
behalf of the Lenders, (ii) provide such advisor with access to all information
of the types provided to Periculum Capital Company, LLC and/or any other
financial advisor retained by the Borrower and (iii) promptly (and in any
event within three Business Days after presentation of an invoice therefor)
reimburse the Administrative Agent for any costs associated with retaining such
advisor.
5.13 Refinancing.
(a) On
or before January 31, 2011, accept a term sheet from a senior lender for a new
senior credit facility that includes revolving availability of not less than
$35,000,000.
(b) On
or before January 31, 2011, enter into a letter of intent, in form and substance
reasonably satisfactory to the Administrative Agent and the Required Lenders,
providing for additional debt and/or equity, if required, in an amount that,
together with the senior credit facility referred to in clause (a) above,
would be sufficient to repay all obligations under this Agreement and provide
the liquidity necessary for the Borrower’s ongoing operations (a “Successful
Refinancing”).
(c) On
or before March 15, 2011, enter into a commitment letter that provides for
additional debt and/or equity, if required, in an amount that, together with the
senior credit facility referred to above will be sufficient to complete a
Successful Refinancing.
(d) Promptly
(and in any event within two Business Days) notify the Administrative Agent and
the Lenders of the expiration or withdrawal of any refinancing proposal or
commitment.
1.4 Amendment to Section
6.4. The text of clause (i) of Section 6.4 is amended in its
entirety to read as follows: “[Reserved]”.
1.5 Amendments to Article
VII.
1.5.1 Clause
(a) of Article VII is amended by inserting the following after the words “any LC
Disbursement” at the end of clause (i):
“or any fee payable pursuant to the
Fifth Amendment to this Agreement”.
1.5.2 Clause
(d) of Article VII is amended by replacing the words “or 5.8” with the
following: “, 5.8, 5.11, 5.12 or 5.13”.
1.6 Amendment to Schedule
6.8. Schedule 6.8 to the Credit Agreement is replaced with
Schedule 6.8
hereto.
SECTION
2. Fees. In
order to induce Lenders to enter into this Amendment, the Borrower shall pay to
the Administrative Agent for the account of the Lenders, pro rata in accordance
with their Total Percentages, the following fees:
(a) An
extension fee of $500,000, which fee shall be fully earned on the Amendment
Effective Date (as such term is defined below). The extension fee
shall be payable in three installments, as follows: (i) a first installment of
$250,000, which shall be due on the Amendment Effective Date; (ii) a second
installment of $125,000, which shall be due on March 31, 2011; provided that if the
Borrower has repaid all obligations under the Credit Agreement on or before such
date, such second installment shall not be required to be paid; and (iii) a
third installment of $125,000, which shall be due on May 15, 2011; provided that if the
Borrower has repaid all obligations under the Credit Agreement on or before such
date, such third installment shall not be required to be paid.
(b) An
amendment fee of $300,000, which fee shall be fully earned on the Amendment
Effective Date. The amendment fee shall be due and payable on the
earlier of (i) the date the Borrower has repaid all obligations under the Credit
Agreement and (ii) the Revolving Termination Date; provided that if the
Borrower has repaid all obligations under the Credit Agreement, (x) on or before
April 30, 2011, such fee shall be reduced to $200,000 and (y) after April 30,
2011 but on or before May 15, 2011, such fee shall be reduced to
$250,000.
Failure to comply with the provisions
of this Section
2 shall constitute an immediate Event of Default under the Credit
Agreement
SECTION
3. REPRESENTATIONS AND
WARRANTIES. The Borrower represents and warrants to the
Administrative Agent and the Lenders that after giving effect to this Amendment:
(a) the representations and warranties of the Borrower set forth in the Credit
Agreement are true and correct in all material respects (except to the extent
stated to relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date); and (b) no Default will exist.
SECTION
4. CONDITIONS
PRECEDENT. This Amendment shall become effective on the date
(the “Amendment
Effective Date”) on which the Administrative Agent shall have received
the following:
(a) Counterparts
of this Amendment signed by the Borrower and the Lenders.
(b) A
Confirmation substantially in the form of Exhibit A signed by
each Loan Party.
(c) Payment
of all invoiced fees and expenses of the Administrative Agent (including
reasonable attorneys’ fees and expenses) in connection herewith.
(d) The
first installment of the extension fee referenced in Section 2(a)
above.
SECTION
5. MISCELLANEOUS.
5.1 Continuing Effectiveness,
etc. After giving effect to this Amendment, the Credit
Agreement shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness
hereof, all references to the Credit Agreement in any Loan Document shall be
deemed to refer to the Credit Agreement as amended hereby.
5.2 Incorporation of Credit
Agreement Provisions. The provisions of Sections 1.3 (Terms
Generally), 9.7 (Severability), 9.10 (Waiver of Jury Trial) and 9.11 (Headings)
of the Credit Agreement are incorporated by reference as if fully set forth
herein, mutatis
mutandis.
5.3 Signing in
Counterparts. This Amendment may be signed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same
agreement. A signature hereto delivered by facsimile or in .pdf
format shall be effective as delivery of an original counterpart.
5.4 Governing
Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.
5.5 Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
[Remainder
Of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be signed by their respective officers thereunto
duly authorized as of the day and year first above written.
| XXXXXXX INDUSTRIES, INC. | |||||
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By |
/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Executive Vice President - Finance
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JPMORGAN
CHASE BANK, N.A., individually
and
as Administrative Agent
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By |
/s/
Xxxxxxx X. Xxxxx
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Name:
Xxxxxxx X. Xxxxx
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Title:
Senior Vice President
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| FIFTH THIRD BANK | |||||
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By |
/s/
Kristof X. Xxxxxxxxx
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Name:
Kristof X. Xxxxxxxxx
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Title:
Vice President
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BANK
OF AMERICA, N.A., as successor to
LaSalle
Bank National Association
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By |
/s/
Xxxxxx X. Xxxxxxx, Xx.
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Name:
Xxxxxx X. Xxxxxxx, Xx.
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Title:
Senior Vice President
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| KEY BANK, NATIONAL ASSOCIATION | |||||
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By |
/s/
Xxxx X. Xxxxxxx
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Name:
Xxxx X. Xxxxxxx
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Title:
Vice President
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RBS
CITIZENS, NATIONAL ASSOCIATION,
successor
by merger with Charter One Bank
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By |
/s/
Xxx Xxxxxx
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Name:
Xxx Xxxxxx
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Title:
Vice President
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ASSOCIATED
BANK
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By |
/s/
Xxxxxxx X. Xxxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Title:
Senior Vice President
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PNC
BANK, NATIONAL ASSOCIATION, as
Successor
to National City Bank
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By |
/s/
Xxxx Xxxxx
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Name:
Xxxx Xxxxx
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Title:
Vice President
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1ST
SOURCE BANK
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By |
/s/
Xxx Xxxxx Xxxxx
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Name:
Xxx Xxxxx Mauro
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Title:
Vice President
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SCHEDULE
6.8
CONSOLIDATED
EBITDA
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Fiscal
Quarter
(ended
on or closest to)
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Fiscal
Quarter then ending
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December
31, 2010
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$1,200,000
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March
31, 2011
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$1,350,000
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EXHIBIT
A
FORM OF
CONFIRMATION
December
17, 2010
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To:
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JPMorgan
Chase Bank, N.A., individually and as
Administrative
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Agent,
and the other financial institutions that are
parties
to the Credit Agreement referred to below
Please
refer to the Fifth Amendment dated as of the date hereof (the “Amendment”) to the
Credit Agreement dated as of May 18, 2007 (the “Credit Agreement”)
among Xxxxxxx Industries, Inc., an Indiana corporation, the Lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative
Agent. Capitalized terms used but not otherwise defined herein have
the respective meanings given to them in the Credit Agreement.
Each of the undersigned hereby confirms
to the Administrative Agent and the Lenders that such undersigned has received a
copy of the Amendment and that, after giving effect to the Amendment and the
transactions contemplated thereby, each Loan Document to which such undersigned
is a party continues in full force and effect and is the legal, valid and
binding obligation of such undersigned, enforceable against such undersigned in
accordance with its terms.
| XXXXXXX INDUSTRIES, INC. | |||||
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By |
/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Executive Vice President - Finance
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| ADORN HOLDINGS, INC. | |||||
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By |
/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Title:
Treasurer and Secretary
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| ADORN, LLC | |||||
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By |
/s/
Xxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxxx
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Treasurer
and Secretary
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