Exhibit 10.47
AMENDMENT NO. 6 TO CREDIT AGREEMENT
AMENDMENT dated as of January 20, 2000 (the "AMENDMENT") to the Amended
and Restated Credit Agreement dated as of February 28, 1999 and amended as of
May 31, 1999, September 14, 1999, November 15, 1999, December 10, 1999 and
January 10, 2000 (as amended, the "CREDIT AGREEMENT") among XXXXXXX INDUSTRIES
INC. (the "BORROWER"), the LENDERS party thereto (the "LENDERS") and THE CHASE
MANHATTAN BANK, as Administrative Agent (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders agree (i) to amend
certain of the provisions of the Credit Agreement requiring certain reductions
in the Borrowing Base scheduled to occur on January 20, 2000 and (ii) to waive
the Borrower's obligation to comply with certain covenants solely for the period
January 20, 2000 through March 10, 2000; and
WHEREAS, subject to the terms and conditions set forth herein, the
Lenders have agreed to make certain amendments and waivers as provided for
herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, from and after Amendment No. 6
Effective Date (defined below), refer to the Credit Agreement as amended hereby.
SECTION 2. SECTION 1.01. Section 1.01 of the Credit Agreement is
amended:
(a) by amending the definition of "BORROWING BASE" to read in its
entirety as follows:
"BORROWING BASE" means, at any date, the amount of the
Borrowing Base as of the date of the Borrowing Base Certificate then
most recently delivered by the Borrower pursuant to Section 5.01(l)
(the "BORROWING BASE
DATE"), determined by calculating the sum of (i) 85% of the aggregate
amount of Eligible Receivables at the Borrowing Base Date PLUS (ii) 50%
of the aggregate amount of Eligible Inventory at the Borrowing Base Date
PLUS (iii) the Facilities Domestic Amount at the Borrowing Base Date
PLUS (iv) (A) as of any Borrowing Base Date occurring on or prior to the
earlier of (1) the time at which the Borrower receives a Deemed Foreign
Assets Termination Notice and (2) March 10, 2000, the greater of the
Deemed Foreign Assets Amount or the Facilities Foreign Amount and (B) as
of any subsequent Borrowing Base Date, the Facilities Foreign Amount.
and (b) by inserting therein in appropriate alphabetical order
the following defined terms:
"AMENDMENT NO. 6 EFFECTIVE DATE" means the date of
effectiveness of Amendment No. 6 to this Agreement.
"DEEMED FOREIGN ASSETS TERMINATION NOTICE" means a written
notice, signed by the Required Lenders in their sole discretion,
advising the Borrower that the Deemed Foreign Assets Amount may not,
subsequent to the time of such notice, be included in the Borrowing
Base.
SECTION 3. SECTION 2.11. Section 2.11 of the Credit Agreement
is amended by relettering clause (f) thereof as clause (g) and by
adding a new clause (f) immediately after clause (e) thereof, to read
in its entirety as follows:
(f) The Borrower agrees to pay to the Administrative Agent
(for the account of the Lenders pro rata in proportion to the sum of
each Lender's Revolving Commitment and outstanding Term Loans as of the
Amendment No. 6 Effective Date) an amendment fee in connection with
Amendment No. 6 to this Agreement, in an amount equal to $150,000.00.
This fee shall be fully earned as of the Amendment No. 6 Effective
Date, and shall be paid by the Borrower on or before the later of March
10, 2000 or such later date as shall be agreed to by the Required
Lenders.
SECTION 4. SECTION 4.03. Solely with respect to any Loan to be
made on the occasion of any Borrowing occurring on or after the
Amendment No. 6 Effective Date and on or prior to March 10, 2000 or any
Letter of Credit to be issued, amended, renewed or extended on or after
the Amendment No. 6 Effective Date and on or prior to March 10, 2000,
the Lenders waive any failure by the Borrower to satisfy the condition
precedent set forth in Section 4.03(b) of the Credit Agreement solely
with respect to the
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truth and correctness of the representation and warranty contained in
Section 3.04(c) of the Credit Agreement, but solely to the extent that
such representation and warranty is not true and correct because of
facts, conditions or events that have been disclosed in writing by the
Borrower to the Administrative Agent and the Lenders prior to January
14, 2000.
SECTION 5. SECTIONS 6.12, 6.13 AND 6.14. The Lenders hereby waive,
solely for the period from and including the Amendment No. 6 Effective
Date and to and including the earlier of (1) the time at which the
Borrower receives a Deemed Foreign Assets Termination Notice and (2)
March 10, 2000 (the "Waiver Period"), (i) the requirement that the
Borrower comply with Sections 6.12, 6.13 and 6.14 of the Credit
Agreement and (ii) any Default arising under clause (d) of Article 7 of
the Credit Agreement as a result of the Borrower's failure to comply
with Sections 6.12, 6.13 and 6.14 during the Waiver Period.
SECTION 6. NO OTHER WAIVERS. Other than as specifically provided
herein, nothing contained herein and no action by, or inaction on the
part of, any Lender or the Administrative Agent shall, or shall be
deemed to, operate as a waiver of any right, remedy, power or privilege
of the Administrative Agent or of any Lender under the Credit Agreement
or any other Loan Document or of any other term or condition of the
Credit Agreement or any other Loan Document.
SECTION 7. REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants that, on and as of the Amendment No. 6 Effective Date and
after giving effect to this Amendment, (i) the representations and
warranties of the Obligors set forth in the Loan Documents, including
but not limited to the representation and warranty contained in Section
3.12 of the Credit Agreement but excluding the representation and
warranty contained in section 3.04(c) of the Credit Agreement, are true
and correct and (ii) no Default has occurred and is continuing.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 9. COUNTERPARTS. This Amendment may be signed in any number
of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
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SECTION 10. EFFECTIVENESS. This Amendment shall become effective on
the date (the "AMENDMENT NO. 6 EFFECTIVE DATE") on which the
Administrative Agent shall have received:
(i) from each of the Borrower and the Required Lenders a
counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Administrative Agent) that
such party has signed a counterpart hereof;
(ii) a certificate of the Chief Financial Officer certifying
that the representations and warranties made by the Borrower pursuant
to Section 6 of this Amendment are true and correct on and as of the
Amendment No. 6 Effective Date; and
(iii) evidence satisfactory to it that the Borrower has paid
in full all fees and expenses of the Administrative Agent payable
pursuant to Section 9.03(a) of the Credit Agreement with respect to
which the Borrower shall have received any invoice delivered to the
Borrower at least one Business Day prior to the Amendment No. 6
Effective Date, it being understood that the failure of the
Administrative Agent to have provided invoices with respect to such
fees and expenses prior to the Amendment No. 6 Effective Date does not
constitute a waiver of, or otherwise affect, the Administrative Agent's
right to reimbursement for such fees and expenses.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth
Amendment to be duly executed as of the date first above written.
XXXXXXX INDUSTRIES INC.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK
By:
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Name:
Title:
HIBERNIA NATIONAL BANK
By:
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Name:
Title:
WACHOVIA BANK, N.A.
By:
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Name:
Title:
0
XXX XXXX XX XXXX XXXXXX
By:
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Name:
Title:
By:
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
AMSOUTH BANK
By:
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Name:
Title:
BHF (USA) CAPITAL CORPORATION
By:
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Name:
Title:
By:
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Name:
Title:
6
COMERICA BANK
By:
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Name:
Title:
NATIONAL BANK OF CANADA
By:
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Name:
Title:
By:
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Name:
Title:
PARIBAS
By:
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Name:
Title:
By:
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Name:
Title:
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