Exhibit 10(29)
Execution Copy
AMERICAN BILTRITE INC.
K&M ASSOCIATES L.P.
CREDIT AGREEMENT
Amendment No. 4
This Agreement, dated as of January 27, 2005 (this "Agreement"), is among
American Biltrite Inc., a Delaware corporation ("American Biltrite"), K&M
Associates L.P., a Rhode Island limited partnership ("K&M"; American Biltrite
and K&M being collectively but jointly and severally, the "Borrower"), the
Lenders under the Credit Agreement (as defined below) and Fleet National Bank (a
Bank of America company), as Agent for itself and such Lenders. The parties
agree as follows:
1. Reference to Credit Agreement and Definitions. Reference is made to the
Credit Agreement dated as of October 14, 2003, as amended by Amendment No. 1
dated as of January 24, 2004, Amendment No. 2 dated April 13, 2004 and Amendment
No. 3 dated November 3, 2004, among the parties (as in effect prior to giving
effect to this Agreement, the "Credit Agreement").
2. Credit Agreement; Definitions. This Agreement amends the Credit
Agreement. Terms defined in the Credit Agreement as amended hereby (the "Amended
Credit Agreement") and not otherwise defined herein are used with the meaning so
defined.
3. Amendment of Credit Agreement. Effective upon the date hereof, Section
1 of the Credit Agreement is amended as follows:
3.1. The definition of "Consolidated Adjusted EBITDA" is amended in
its entirety as follows:
"'Consolidated Adjusted EBITDA' means, for any period, the
total of:
(a) Consolidated EBITDA; minus
(b) Capital Expenditures except (i) to the extent attributable
to Capitalized Lease Obligations or (ii) financed with the
proceeds of Financing Debt; minus
(c) any dividends paid or payable in cash by the Company or
any of its Subsidiaries to third parties; minus
(d) the aggregate amount paid by the Company and its
Subsidiaries to repurchase shares of capital stock and options
to purchase shares of capital stock, in each case excluding
any such payments made prior to June 30, 2003; minus
(e) any net income taxes paid or payable in cash by the
Company or any of its Subsidiaries after subtracting any
income tax refunds paid or payable in cash to the Company or
any of its Subsidiaries; provided, however, that the foregoing
shall not include any cash taxes paid or payable in connection
with the sale by Tullahoma Properties, L.L.C. of the warehouse
facility located at 000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX on or
about January 31, 2005."
3.2. The definition of "Consolidated EBITDA" is amended in its
entirety as follows:
"'Consolidated EBITDA' means, for any period, the total of:
(a) Consolidated Net Income; plus
(b) all amounts deducted in computing such Consolidated Net
Income in respect of:
(i) depreciation, amortization and unusual noncash
charges (other than the write-down of current assets),
(ii) interest expense, and
(iii) income tax expense, minus
(c) all cash payments made during such period on account of
reserves, restructuring charges and other noncash charges
added back to Consolidated EBITDA in a previous period;
provided, however that the foregoing shall not include any
cash payments made on account of the reserve for environmental
liabilities for the 10.33 acres of land bordering on Xxx
Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxx, XX owned by Tullahoma
Properties, L.L.C., minus
(d) all amounts included in Consolidated Net Income in respect
of deferred income tax benefits and other noncash income
items, except such amounts that have been deducted from
Consolidated EBITDA in a previous period."
3.3. The definition of "Consolidated Net Income" is amended in its
entirety as follows:
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"'Consolidated Net Income' means, for any period, net income
(or loss) from continuing operations (excluding in all events,
net income (or loss) relating to Janus Flooring Corporation)
of the Company and its Subsidiaries reporting Congoleum on the
equity method, excluding:
(a) extraordinary gains (net of any extraordinary losses up to
the amount of any extraordinary gains),
(b) net income of any Person (other than a Subsidiary) in
which the Company or any of its Subsidiaries has an ownership
interest, unless those net earnings have actually been
received in the form of cash for distributions,
(c) any portion of the net income of any Subsidiary which for
any reason is unavailable to pay dividends to the Company or
any other Subsidiary,
(d) any aggregate net gain (in excess of any net losses)
arising from the sale, exchange or other disposition of
capital assets (such term to include all fixed assets, whether
tangible or intangible, all inventory sold in conjunction with
the disposition of fixed assets, and all securities),
(e) any write-up of any asset,
(f) any gain arising from the acquisition of any securities of
the Company or any of its Subsidiaries,
(g) net income or gain (but not any loss) resulting from a
change in accounting, an extraordinary event or prior period
adjustments,
(h) the income (or loss) of any Person accrued to the date it
becomes a Subsidiary, and
(i) the reserve for environmental liabilities for the 10.33
acres of land bordering on Xxx Xxxxxx Xxxxxxx Xxxx, Xxxxxxxxx,
XX owned by Tullahoma Properties, L.L.C."
4. Representations and Warranties. In order to induce the Agent to enter
into this Agreement, each of the Borrowers jointly and severally represents and
warrants that, immediately after giving effect to this Agreement, no Default
exists.
5. General. The Amended Credit Agreement and all of the Credit Documents
are each confirmed as being in full force and effect. This Agreement, the
Amended Credit
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Agreement and the other Credit Documents referred to herein or therein
constitute the entire understanding of the parties with respect to the subject
matter hereof and thereof and supersede all prior and current understandings and
agreements, whether written or oral. Each of this Agreement and the Amended
Credit Agreement is a Credit Document and may be executed in any number of
counterparts (including by way of facsimile transmission), which together shall
constitute one instrument, and shall bind and inure to the benefit of the
parties and their respective successors and assigns, including as such
successors and assigns all holders of any Credit Obligation. This Agreement
shall be governed by and construed in accordance with the laws (other than the
conflict of law rules) of The Commonwealth of Massachusetts.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
AMERICAN BILTRITE INC.
By /s/ Xxxxxx X. Xxxxx III
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Name: Xxxxxx X. Xxxxx III
Title: Vice President and
Chief Financial Officer
K&M ASSOCIATES L.P.
By: AIMPAR, INC., its General Partner
By /s/ Xxxxxx X. Xxxxx III
------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Vice President
FLEET NATIONAL BANK, as
Agent and Lender under the Credit Agreement
By
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to Amendment No. 4 to Credit Agreement
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
AMERICAN BILTRITE INC.
By
------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Vice President and
Chief Financial Officer
K&M ASSOCIATES L.P.
By: AIMPAR, INC., its General Partner
By
------------------------------------
Name: Xxxxxx X. Xxxxx III
Title: Vice President
FLEET NATIONAL BANK, as
Agent and Lender under the Credit Agreement
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Signature Page to Amendment No. 4 to Credit Agreement
