EXHIBIT 4.2
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made
and entered into as of the 17th day of September, 2001, by and among XXXXXXX
CORPORATION, an Alabama corporation ("Xxxxxxx"), XXXXXXX EUROPE LIMITED, a
corporation organized under the laws of the United Kingdom ("Xxxxxxx Europe"),
the banks listed on the signature pages hereof (collectively "Banks"), WACHOVIA
BANK, N.A., as Administrative Agent, SUNTRUST BANK (formerly known as SunTrust
Bank, Atlanta), as Syndication Agent, and FIRST UNION NATIONAL BANK, as
Documentation Agent.
RECITALS:
Xxxxxxx, Xxxxxxx Europe, the Administrative Agent, the Syndication
Agent, the Documentation Agent and the Banks are parties to a certain Credit
Agreement dated as of October 15, 1999, as amended by that certain First
Amendment to Credit Agreement dated as of July 25, 2001 (as at any time amended,
the "Credit Agreement"), pursuant to which Banks have made various loans and
other extensions of credit from time to time to Xxxxxxx and Xxxxxxx Europe. The
parties desire to further amend the Credit Agreement as hereinafter set forth.
Xxxxxxx and Xxxxxxx Europe have requested Administrative Agent and
Banks to waive their compliance with certain provisions of the Credit Agreement
from the date hereof through January 15, 2002. Administrative Agent and Banks
are willing to issue such a waiver on the terms set forth below.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of
the conditions precedent set forth in Section 11 of this Amendment, the Credit
Agreement is hereby amended as follows:
a. By deleting the definition of "Restructuring Charges"
from Section 1.01 in its entirety and by substituting in lieu thereof
the following:
"Restructuring Charges" means any and all
restructuring, relocation and other unusual charges incurred
in connection with the Restructuring Program in Fiscal Years
1998 through 2001, not exceeding $357,000,000 on a pre-tax
basis or $233,000,000 on an after-tax basis.
b. By deleting Section 5.21 in its entirety and by
substituting in lieu thereof the following:
SECTION 5.21. MINIMUM CONSOLIDATED TANGIBLE NET
WORTH.
Consolidated Tangible Net Worth will at no time be
less than $435,000,000 plus the sum of (i) 50% of the
cumulative Reported Net Income of the Borrower and its
Consolidated Subsidiaries during any period after the end of
any Fiscal Quarter following the Amendment Date (taken as one
accounting period), calculated quarterly at the end of each
Fiscal Quarter but excluding from such calculations of
Reported Net Income for purposes of this clause (i), any
Fiscal Quarter in which the Reported Net Income of the
Borrower and its Consolidated Subsidiaries is negative, and
(ii) 100% of the cumulative net proceeds of Capital Stock
received during any period after the Amendment Date,
calculated quarterly at the end of each Fiscal Quarter.
c. By deleting Section 5.24 in its entirety and by
substituting in lieu thereof the following:
SECTION 5.24. MAXIMUM CONSOLIDATED TOTAL DEBT.
The amount of Consolidated Total Debt shall (i) not
exceed $605,000,000 at any time from September 17, 2001
through October 31, 2001 and (ii) not exceed $530,000,000 at
any time from November 1, 2001 through January 15, 2002.
d. By deleting paragraph (n) of Section 6.01 and
inserting the following in lieu thereof:
(n) the parties hereto shall not have executed, on or
before January 15, 2002, an amendment and restatement of this
Agreement.
3. ADDITIONAL COVENANTS. To induce Agents and Banks to enter into this
Amendment and to give the waiver set forth in Section 5 of this Amendment,
Xxxxxxx shall (i) on or before September 24, 2001, execute and deliver, and
cause each Significant Domestic Subsidiary to execute and deliver, to
Administrative Agent, a documentation information questionnaire in form and
substance acceptable to Administrative Agent; (ii) on or before October 15,
2001, execute and deliver, and cause each Significant Domestic Subsidiary to
execute and deliver, to a collateral agent designated by the Banks, for the
benefit of the Banks, an unconditional guaranty of payment of the Obligations
(the "Guaranty") and such instruments and agreements as may be requested by
Administrative Agent and Banks to create and perfect a first priority security
interest in and Lien upon all personal property of the Borrower and each
Significant Domestic Subsidiary (subject to no Liens except Liens permitted
under Section 5.17 of the Credit Agreement), wherever located (but only to the
extent that such assets are located in the United States), to secure the payment
and performance of the Obligations and the Guaranty; (iii) on or before October
31, 2001, obtain a signed mandate letter for either (A) additional unsecured,
subordinate financing in amounts and on terms acceptable to the Required Banks
that is to be subordinated to the Debt represented by the Agreement, the Note
Agreements, the SunTrust Loan Agreement, the Elcatex Guaranty and the Chase
Swaps on terms acceptable to the Required Banks (the "Subordinated Financing")
or (B) the restructuring of some or all of Borrower's existing Debt on terms
acceptable to the Required Banks (the "Restructured Financing"); (iv) on or
before October 31, 2001, execute and deliver, and cause each Significant
Domestic Subsidiary to execute and deliver, to a collateral agent designated by
the Banks, for the benefit of the Banks, such instruments and agreements as may
be requested by Administrative Agent and Banks to create and perfect a first
priority
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security interest in and Lien upon all real property of the Borrower and each
Significant Domestic Subsidiary (subject to no Liens except Liens permitted
under Section 5.17 of the Credit Agreement), wherever located (but only to the
extent that such assets are located in the United States and to the extent
required by the Required Banks), to secure the payment and performance of the
Obligations and the Guaranty; (v) on or before November 27, 2001, either cause
to be delivered to Administrative Agent or assist Administrative Agent with
obtaining (a) appraisals on the real and personal property located in the United
States of America of Borrower and each Significant Domestic Subsidiary as
requested by and in form and substance acceptable to Administrative Agent, (b)
field audits of Borrower and each Significant Domestic Subsidiary as requested
by and in form and substance acceptable to Administrative Agent, and (c) ALTA
surveys and environmental assessments of the real property located in the United
States of America owned or leased by Borrower and each Significant Domestic
Subsidiary as requested by and in form and substance acceptable to
Administrative Agent; (vi) on or before December 27, 2001, either cause to be
delivered to Administrative Agent or assist Administrative Agent with obtaining
title insurance commitments with regards to the real property located in the
United States of America owned or leased by Borrower and each Significant
Domestic Subsidiary as requested by and in form and substance acceptable to
Administrative Agent; (vii) use its best efforts to file on or before October
31, 2001, with the United States Securities and Exchange Commission preliminary
proxy materials relating to a special meeting of shareholders of Xxxxxxx at
which meeting the shareholders of Xxxxxxx will be asked to approve actions
which, if approved and implemented, would permit Xxxxxxx to xxxxx Liens for the
benefit of the Debt represented by the Elcatex Guaranty and the Chase Swaps on
the same basis as such Liens are to be granted with respect to the Debt owing
under the Credit Agreement, the Note Agreements and the SunTrust Agreement, and
will thereafter use its best efforts to cause such special meeting of
shareholders to be held, the actions to be presented for approval by the
shareholders at such meeting to be approved and become effective, and such Liens
to be granted, on or before December 31, 2001; and (viii) on or before January
15, 2002, to either (A) close the Subordinated Financing and borrow all amounts
available thereunder or (B) close the Restructured Financing. The Borrower's
failure to comply with any of the foregoing covenants shall constitute an Event
of Default. The covenants in this Section 3 supercede and replace the covenants
contained in Section 3 of the First Amendment to Credit Agreement dated as of
July 25, 2001.
4. LIMITATION ON CERTAIN TRANSACTIONS. Notwithstanding any provisions
of the Credit Agreement which may permit the Borrower to do so, from July 25,
2001 through January 15, 2002, neither the Borrower nor any Subsidiary will
effect any Permitted Asset Disposition, any Debt Offering or any Equity Offering
if after such transaction an Event of Default would be in existence or as a
result of any such transaction the aggregate amount of Net Cash Proceeds
received by the Borrower and any Domestic Subsidiary, on a cumulative basis,
from (i)(A) all Permitted Asset Dispositions after July 25, 2001 would exceed
$10,000,000, or (B) all Permitted Asset Dispositions, Debt Offerings, Equity
Offerings, Insured Losses and Condemnations after July 25, 2001 would exceed
$25,000,000, plus, in either case, (ii) any Net Cash Proceeds received by the
Borrower or any Domestic Subsidiary from any Permitted Asset Disposition, any
Debt Offering, any Equity Offering, any Insured Loss or any Condemnation
occurring after July 25, 2001 which have been or will be used to pay any
principal amount outstanding under the Bridge Loan Documents.
For purposes of this Section 4, the following terms shall have the
following respective meanings:
"Condemnation" means any condemnation or other eminent domain
proceeding instituted against any assets of the Borrower or any
Domestic Subsidiary.
"Debt Offering" means the issuance of any Debt by the Borrower
or any Domestic Subsidiary, including any Debt arising in connection
with a sale/leaseback transaction but
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excluding Debt secured by purchase money Liens and Debt arising under
the Bridge Loan Documents.
"Equity Offering" means the issuance of any Capital Stock or
other equity securities of the Borrower or any Domestic Subsidiary.
"Insured Loss" means a loss suffered by the Borrower or any
Domestic Subsidiary as a result of any theft of or damage to assets of
the Borrower or such Domestic Subsidiary, to the extent of that such
loss is insured against pursuant to any policy of insurance.
"Net Cash Proceeds" means, in each case as set forth in a
statement in reasonable detail delivered by the Borrower to
Administrative Agent:
(i) with respect to any Permitted Asset Disposition,
the excess, if any, of (1) the cash proceeds received in
connection with such disposition over (2) the sum of (A) the
principal amount of any Debt (other than the "Secured
Obligations" (or any similar term as it may be defined under
the Bridge Loan Documents)) that is secured by a Lien upon
such assets and that is required to be paid in connection with
the disposition thereof, plus (B) the reasonable out_of_pocket
expenses incurred by the Borrower or a Domestic Subsidiary
making the Permitted Asset Disposition, as the case may be, in
connection with such Permitted Asset Disposition, plus (C) so
long as no Event of Default is in existence, provisions for
taxes, including income taxes attributable to the Permitted
Asset Disposition;
(ii) with respect to any cash proceeds received by
the Borrower or any Domestic Subsidiary in respect of any Debt
Offering or Equity Offering, all such cash proceeds, after
deducting therefrom all reasonable and customary costs and
expenses incurred by the Borrower or Domestic Subsidiary, as
the case may be, directly in connection with the Debt Offering
or the Equity Offering; and
(iii) with respect to any proceeds from any policy of
insurance in connection with any Insured Loss or proceeds from
any Condemnation, all of such proceeds to the extent that the
same are not either (a) required to be turned over to the
holder of any Debt (other than the holders of the "Secured
Obligations" (or any similar term as it may be defined under
the Bridge Loan Documents )) that is secured by a Lien upon
the assets that are the subject of such Insured Loss or
Condemnation and that is required to be repaid in connection
with such Insured Loss or Condemnation or (b) used by the
Borrower or any Domestic Subsidiary (or held by such Person)
to repair or replace the damaged destroyed, or taken Property
so long as (1) such repair or replacement is promptly
undertaken and concluded and (2) the repaired or replaced
asset is at all times free and clear of Liens other than
Permitted Liens.
"Permitted Asset Disposition" means a disposition of assets by
the Borrower or a Domestic Subsidiary (other than to the Borrower or a
Domestic Subsidiary), to the extent that such asset disposition is not
(i) prohibited by any of the Bridge Loan Documents (or, if prohibited,
such disposition has been consented to by "Administrative Agent" and
the "Required Banks" [as defined in the Bridge Loan Documents or terms
having similar meanings thereunder]), the Credit Agreement (or, if
prohibited, such disposition has been
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consented to by the Administrative Agent and Required Banks), the Note
Agreements (or, if prohibited, such disposition has been consented to
by the requisite holders of the outstanding notes under the provisions
of each Note Agreement) or the SunTrust Loan Agreement (or, if
prohibited, such disposition has been consented to by the lender
thereunder as required under the provisions thereof), (ii) the sale of
inventory in the ordinary course of business of the Borrower or a
Domestic Subsidiary, or (iii) a sale of equipment in the ordinary
course of business of the Borrower or a Domestic Subsidiary and the
proceeds of such disposition are used by the Borrower or such Domestic
Subsidiary (or held by such Person) to replace the equipment disposed
of so long as (1) such replacement is promptly undertaken and concluded
and (2) the replaced Property is at all times free and clear of Liens
other than Permitted Liens.
"Permitted Lien" means any Lien permitted under Section 5.17
of the Credit Agreement.
5. LIMITED WAIVER OF COMPLIANCE WITH SPECIFIED COVENANTS. Borrower has
represented to the Administrative Agent and Banks that Borrower has obtained, or
expects to obtain, from all of the requisite parties under the Note Agreements
and the SunTrust Loan Agreement an agreement to waive compliance with the
covenants set forth in Sections 5.7(a)(3), 5.8, 5.11, 5.12 and 5.15
(collectively, the "Specified Covenants") and the provisions in the SunTrust
Loan Agreement incorporating by reference the Specified Covenants, in each case
for the period ending January 15, 2002. Subject to the satisfaction of the
conditions precedent set forth in Section 11 of this Amendment, the
Administrative Agent and Banks hereby agree, effective as of June 30, 2001, to
waive compliance with the requirements of Section 5.05 for the period ending
January 15, 2002, but only to the extent the failure to comply with such section
relates to intercompany factoring and sales transactions with respects to
accounts receivable of the Borrower and its Subsidiaries.
6. RATIFICATION AND REAFFIRMATION. The Borrower hereby ratifies and
reaffirms the Obligations, each of the Loan Documents and all of the Borrower's
covenants, duties, indebtedness and liabilities under the Loan Documents.
7. ACKNOWLEDGMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Credit Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; all of the
Obligations outstanding under the Credit Agreement are owing and payable without
defense, offset or counterclaim (and to the extent there exists any such
defense, offset or counterclaim on the date hereof, the same is hereby waived by
Borrower); and the unpaid principal amount of the Loans on and as of the close
of business on September 14, 2001, totaled $193,000,000.
8. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Administrative Agent and Banks, to induce Administrative Agent and Banks to
enter into this Amendment, that, after giving effect to the provisions of
Section 5 hereof, no Default or Event of Default exists on the date hereof; the
execution, delivery and performance of this Amendment have been duly authorized
by all requisite corporate action on the part of Borrower and this Amendment has
been duly executed and delivered by Borrower; and all of the representations and
warranties made by Borrower in the Credit Agreement are true and correct on and
as of the date hereof.
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9. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this
Amendment, each reference in the Credit Agreement to "this Agreement,"
"hereunder" or words of like import shall mean and be a reference to the Credit
Agreement, as amended by this Amendment.
10. BREACH OF AMENDMENT. This Amendment shall be part of the Credit
Agreement and a breach of any of any representation, warranty or covenant herein
shall constitute an Event of Default.
11. CONDITIONS PRECEDENT. The effectiveness of the provisions of
Sections 2 and 5 hereof are contingent upon satisfaction of each of the
following conditions precedent: (i) the Borrower's payment to Administrative
Agent, for the ratable account of each Bank executing this Amendment, of an
amendment and waiver fee of $250,000 and (ii) the Borrower's receipt, from the
requisite parties under the Note Agreements and the SunTrust Loan Agreement, a
waiver of compliance with the Specified Covenants for the period ending January
15, 2002, all in form and substance satisfactory to the Administrative Agent.
12. EXPENSES OF ADMINISTRATIVE AGENT. Borrower agrees to pay, on
demand, all costs and expenses incurred by Administrative Agent in connection
with the preparation, negotiation and execution of this Amendment and any other
Loan Documents and any and all amendments, modifications and supplements thereto
and in connection with the satisfaction by the Borrower of the additional
covenants set forth in Sections 3 and 4 of this Amendment, including, without
limitation, the costs and fees of Administrative Agent's legal counsel and any
expenses associated with or incurred in connection with the drafting of any
instrument or agreement referred to herein or contemplated hereby.
13. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective
upon acceptance by Administrative Agent and Banks in Atlanta, Georgia (notice of
which acceptance is hereby waived by the Borrower), whereupon the same shall be
deemed a contract made in Georgia and shall be governed by and construed in
accordance with the internal laws of the State of Georgia.
14. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
15. NO NOVATION, ETC. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Credit Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Credit
Agreement as herein modified shall continue in full force and effect.
16. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed
in any number of counterparts and by different parties to this Amendment on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
17. FURTHER ASSURANCES. Borrower agrees to take such further actions as
the Administrative Agent shall reasonably request from time to time in
connection herewith to evidence or give effect to the amendments set forth
herein or any of the transactions contemplated hereby.
18. SECTION TITLES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
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19. RELEASE OF CLAIMS. TO INDUCE ADMINISTRATIVE AGENT AND BANKS TO
ENTER INTO THIS AMENDMENT, BORROWER HEREBY RELEASES, ACQUITS AND FOREVER
DISCHARGES THE ADMINISTRATIVE AGENT AND EACH BANK, AND ALL OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF THE ADMINISTRATIVE AGENT AND EACH
BANK, FROM ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION
OF ANY KIND OR NATURE (IF THERE BE ANY), WHETHER ABSOLUTE OR CONTINGENT,
DISPUTED OR UNDISPUTED, AT LAW OR IN EQUITY, OR KNOWN OR UNKNOWN, THAT BORROWER
NOW HAS OR EVER HAD AGAINST THE ADMINISTRATIVE AGENT OR ANY BANK ARISING UNDER
OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS. BORROWER REPRESENTS AND
WARRANTS TO ADMINISTRATIVE AGENT AND BANKS THAT BORROWER HAS NOT TRANSFERRED OR
ASSIGNED TO ANY PERSON ANY CLAIM THAT BORROWER EVER HAD OR CLAIMED TO HAVE
AGAINST THE ADMINISTRATIVE AGENT OR ANY BANK.
20. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the date first written above.
BORROWER:
XXXXXXX CORPORATION
By:_________________________________
Name:____________________________
Title:___________________________
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier number: 678_742_8995
Confirmation number: 678_742_8100
XXXXXXX EUROPE LIMITED
By:_________________________________
Name:____________________________
Title:___________________________
c/x Xxxxxxx Corporation
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Telecopier number: 678-742-8995
Confirmation number: 000-000-0000
[Signatures continue on the following page]
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ACCEPTED IN ATLANTA, GEORGIA:
-----------------------------
WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
By: ________________________________
Title:____________________________
Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 30303_1757
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
SUNTRUST BANK,
as Syndication Agent and as a Bank
By: ________________________________
Title:_______________________
Lending Office:
000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
FIRST UNION NATIONAL BANK,
as Documentation Agent and as a Bank
By:_________________________________
Title:________________________
Lending Office:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopier number: 704-383-7999
Confirmation number: 000-000-0000
[Signatures continue on the following page]
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AMSOUTH BANK, as a Bank
By:_________________________________
Title:________________________
Lending Office:
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
THE CHASE MANHATTAN BANK, as a Bank
By:_________________________________
Title: _______________________
Lending Office:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Tio
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
ALIANT BANK, as a Bank
By:_________________________________
Title:________________________
Lending Office:
000 Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
[Signatures continue on the following page]
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COMERICA BANK, as a Bank
By:_________________________________
Title:________________________
Lending Office:
000 Xxxxxxxx Xxxxxx
Mail Code 3280
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopier number: 313-222-3330
Confirmation number: 000-000-0000
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