EXHIBIT 4.5
EXECUTION
COPY
FOURTH AMENDMENT dated as of March 31, 1999 (the "Amendment") to REVOLVING
CREDIT AGREEMENT dated as of June 2, 1997 (the "Credit Agreement") between
XXXXXX XXX MARKETING, INC. (the "Borrower") and THE CIT GROUP/COMMERCIAL
SERVICES, INC. ("CIT"). Terms which are capitalized in this Amendment and not
otherwise defined shall have the meanings ascribed to them in the Credit
Agreement.
WHEREAS, the Borrower has requested CIT's consent to the modification of certain
of the financial covenants contained in the Credit Agreement; and
WHEREAS, CIT has agreed to such modification of the Credit Agreement, on the
terms and subject to the fulfillment of the conditions contained in this
Amendment;
NOW, THEREFORE, in consideration of the mutual promises contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - AMENDMENT. Upon the fulfillment of the conditions contained in
Section Two hereof, effective as of December 1, 1998, the Credit Agreement is
hereby amended to provide as follows:
(A) SECTION 10.17. MINIMUM RATIO OF CONSOLIDATED CURRENT ASSETS TO
CONSOLIDATED CURRENT LIABILITIES. Section 10.17 is deleted in its entirety and
the following is substituted in lieu thereof:
"10.17 Minimum Ratio of Consolidated Current Assets to Consolidated
Current Liabilities. The Borrower will not permit the ratio of the
Parent's Consolidated Current Assets to the Parent's Consolidated
Current Liabilities to be less than (a) 2.60 to 1.00 as of the end of
the second fiscal quarter of 1997, (b) 2.60 to 1.00 as of the end of
the third fiscal quarter of 1997, (c) 2.60 to 1.00 as of the end of the
fourth fiscal quarter of 1997, (d) 3.00 to 1.00 as of the end of the
first fiscal quarter of 1998, (e) 3.10 to 1.00 as of the end of the
second and third fiscal quarters of 1998, (f) 2.60 to 1.00 as of the
end of the fourth fiscal quarter of 1998 and (g) 2.80 to 1.00 as of the
end of each fiscal quarter thereafter, provided, however, that solely
for purposes of determining the Borrower's compliance with this
covenant, the calculation of the Parent's Consolidated Current
Liabilities, as of any date of determination, shall exclude the
aggregate principal amount of any Loans and Letter of Credit Exposure
outstanding as of such date, and provided further, that in the event
that (i) the ratio of the Parent's Consolidated Current Assets to its
Consolidated Current Liabilities for any referenced period is less than
the minimum ratio prescribed for such period, (ii) the Parent's failure
to maintain such ratio shall have been caused solely by the Parent's
payment of dividends on its capital stock or its repurchase of
outstanding shares of such stock, (iii) the proceeds of a dividend on
the Borrower's capital stock, paid by it to the Parent, shall have
funded the payment or repurchase described in clause (ii) hereof and
(iv) the payment made by the Borrower described in clause (iii) hereof
shall have been made strictly in accordance with the terms of Section
10.06 of this Agreement, then, in such event, such failure to maintain
such ratio shall not be an Event of Default under this Agreement."
(B) SECTION 10.20. CAPITAL EXPENDITURES. Section 10.20 is deleted in
its entirety, and the following is substituted in lieu thereof:
"10.20 Capital Expenditures. The Borrower shall not make Capital
Expenditures in an amount greater than (a) $1.5 million in the
aggregate for the period from the Closing Date through January 3, 1998,
(b) $3,642,000 in the aggregate for the 1998 fiscal year and (c) $2.5
million in the aggregate for the 1999 fiscal year, and for each fiscal
year thereafter, provided, however, that if the aggregate amount of
Capital Expenditures actually made during any such fiscal year (or
lesser period, if applicable) shall be less than the limit with respect
thereto set forth above (such limit, without giving effort to any
increase therein pursuant to this proviso, the "base amount"), then the
amount of such short fall (the "rollover amount") may be added to the
amount of Capital Expenditures permitted to be made for the immediately
succeeding fiscal year, provided further that any Capital Expenditures
made during any fiscal year for which any rollover amount shall have
been so added shall be applied first, to the base amount for such year
and second, to the rollover amount added to such fiscal year."
SECTION TWO- CONDITIONS PRECEDENT. This Amendment shall become effective on the
date when all of the following conditions, the fulfillment of each of which is a
condition precedent to the effectiveness of this Amendment, shall have occurred:
(A) CIT shall have received a fully executed counterpart or original of
this Amendment;
(B) CIT shall have received a Certificate of the Secretary of the
Borrower relating to the adoption of the resolutions of the Board of Directors
of the Borrower, approving this Amendment;
(C) Upon the effectiveness of this Amendment, all representations and
warranties set forth in the Credit Agreement (except for such inducing
representations and warranties that were only required to be true and correct as
of a prior date) shall be true and correct in all material respects on and as of
the effective date hereof, and no Event of Default shall have occurred and be
continuing;
(D) No event or development shall have occurred since the date of
delivery to CIT of the most recent financial statements of the Parent and its
Subsidiaries which event or development has had or is reasonably likely to have
a Material Adverse Effect;
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(E) All corporate and legal proceedings and all documents and
instruments executed or delivered in connection with this Amendment shall be
satisfactory in form and substance to CIT and its counsel; and
(F) CIT shall have received such further agreements, consents,
instruments and documents as may be necessary or proper in the reasonable
opinion of CIT and its counsel to carry out the provisions and purposes of this
Amendment.
SECTION THREE-REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants (which representations and warranties shall survive the execution
and delivery hereof) to CIT that:
(A) The Borrower has the corporate power, authority and legal right to
execute, deliver and perform this Amendment, and the instruments, agreements,
documents and transactions contemplated hereby, and has taken all actions
necessary to authorize the execution, delivery and performance of this
Amendment, and the instruments, agreements, documents and transactions
contemplated hereby;
(B) No consent of any Person (including, without limitation,
stockholders or creditors of the Borrower or creditors of the Parent, as the
case may be) other than CIT, and no consent, permit, approval or authorization
of, exemption by, notice or report to, or registration, filing or declaration
with (collectively a "Consent") any governmental authority, is required in
connection with the execution, delivery, performance, validity or enforceability
of this Amendment, and the instruments, agreements, documents and transactions
contemplated hereby;
(C) This Amendment has been duly executed and delivered on behalf of
the Borrower by its duly authorized officer, and constitutes the legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms;
(D) The Borrower is not in default under any indenture, mortgage, deed
of trust, or other material agreement or material instrument to which it is a
party or by which it may be bound. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof will (i) violate any law or regulation
applicable to it, or (ii) cause a violation by the Borrower, of any order or
decree of any court or government instrumentality applicable to it, or (iii)
conflict with, or result in the breach of, or constitute a default under, any
indenture, mortgage, deed of trust, or other material agreement or material
instrument to which the Borrower is a party or by which it may be bound, or (iv)
result in the creation or imposition of any lien, charge, or encumbrance upon
any of the property of the Borrower, except in favor of CIT, to secure the
Obligations, or (v) violate any provision of the Certificate of Incorporation,
By-Laws or any capital stock provisions of the Borrower;
(E) No Event of Default has occurred and is continuing; and
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(F) Since the date of CIT's receipt of the financial statements of the
Parent and Subsidiaries on a consolidated and consolidating basis for the period
ending on November 28, 1998,
no change or event has occurred which has had or is reasonably likely to have a
Material Adverse Effect.
SECTION FOUR-GENERAL PROVISIONS.
(A) Except as herein expressly amended, the Credit Agreement and all
other agreements, documents, instruments and certificates executed in connection
therewith, are ratified and confirmed in all respects and shall remain in full
force and effect in accordance with their respective terms.
(B) All references in the Related Documents and Loan Documents to the
Credit Agreement shall mean the Credit Agreement as amended as of the effective
date hereof, and as amended hereby and as hereafter amended, supplemented or
modified from time to time. From and after the date hereof, all references in
the Credit Agreement to "this Agreement," "hereof," "herein," or similar terms,
shall mean and refer to the Credit Agreement as amended by this Amendment.
(C) This Amendment may be executed by the parties hereto individually
or in combination, in one or more counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement.
(D) This Amendment shall be governed and controlled by the laws of the
State of New York without reference to its choice of law principles.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXXX XXX MARKETING, INC.
/s/
By: _______________________________________
Name:
Title:
THE CIT GROUP/COMMERCIAL
SERVICES, INC.
/s/
By: _______________________________________
Name:
Title:
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