NINTH AMENDMENT AND WAIVER
NINTH AMENDMENT AND WAIVER (this "Amendment"), dated as of June 4,
1997, among XXXXX X. XXXXXXXXX HOLDING COMPANY, INC., a Delaware corporation
("Holding"), XXXXX X. XXXXXXXXX COMPANY, a Delaware corporation (the
"Borrower"), the financial institutions party to the Credit Agreement referred
to below (the "Lenders") and BT COMMERCIAL CORPORATION and THE CHASE MANHATTAN
BANK, as successor in interest to Chemical Bank, as Agents. All capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Holding, the Borrower, the Agents and the Lenders are parties
to a Credit Agreement, dated as of March 3, 1993, as amended, modified and
supplemented to the date hereof (as so amended, modified and supplemented, the
"Credit Agreement"); and
WHEREAS, the parties to the Credit Agreement wish to amend the Credit
Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. Section 8.9 is waived to the extent necessary to permit the
Borrower's Consolidated Net Worth for the date March 31, 1997 to be less than
$75,000,000.
2. Section 8.10 is waived to the extent necessary to permit the
Borrower's Working Capital for the fiscal quarter ending on March 31, 1997 to be
less than $75,000,000.
3. Section 8.11 is waived to the extent necessary to permit the
Borrower's Fixed Charge Coverage Ratio for the fiscal year ending on March 31,
1997 to be less than 1.10 to 1.
4. The definition of "Consolidated Net Worth" appearing in Section
1.1 of the Credit Agreement is hereby amended by (i) deleting the word "and"
appearing at the end of clause (x) thereof and (ii) inserting the following new
clause (z) before the period appearing at the end of clause (y) thereof:
"; and (z) without giving effect to any reduction thereto as a result
of any restructuring charges and other non-recurring charges incurred
by the Borrower in its 1997 fiscal year in an aggregate amount not to
exceed $20,088,000".
5. The definition of "Current Assets" appearing in Section 1.1 of
the Credit Agreement is hereby amended by (i) deleting the words "other than"
appearing in the parenthetical therein and (ii) inserting the word "including"
in lieu thereof.
6. Section 8.10 of the Credit Agreement is amended by (i) deleting
the amount "$75,000,000" appearing therein and (ii) inserting the new amount
"$60,000,000" in lieu thereof.
7. Section 8.11 of the Credit Agreement is hereby deleted in its
entirety and the following new Section 8.11 is inserted in lieu thereof:
"8.11 FIXED CHARGE COVERAGE RATIO. The Borrower will not
permit the Fixed Charge Coverage Ratio for any period of four
consecutive fiscal quarters (or, if shorter, the period beginning on
April 1, 1997 and ending on the last day of each fiscal quarter of the
Borrower specified below), in each case taken as one accounting
period, ended on a date set forth below to be less than the ratio set
forth opposite such date:
Fiscal Quarter
Ended Ratio
-------------- -----
June 27, 1997 1.10 to 1
September 26, 1997 1.15 to 1
December 30, 1997 1.20 to 1
March 31, 1998 and each
quarter thereafter 1.20 to 1".
8. Section 8.1 of the Credit Agreement is hereby amended by deleting
the amount "$30,000,000" appearing in clause (d) thereof and inserting the
amount "$50,000,000" in lieu thereof.
9. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of
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any other provision of the Credit Agreement or any other Credit Document.
10. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with Holding and the Payments Administrator.
11. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
12. This Amendment shall become effective on the date (the "Ninth
Amendment Effective Date") when Holding, the Borrower, the Agents, the Issuing
Bank and the Required Lenders shall have signed a copy hereof (whether the same
or different copies) and shall have delivered (including by way of facsimile
transmission) the same to the Payments Administrator at the Payment Office.
13. From and after the Ninth Amendment Effective Date, all references
in the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to such Credit Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
XXXXX X. XXXXXXXXX HOLDING
COMPANY, INC.
By
---------------------------------
Name:
Title:
XXXXX X. XXXXXXXXX COMPANY
By
---------------------------------
Name:
Title:
AGENTS:
BT COMMERCIAL CORPORATION,
as Agent
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Agent
By
---------------------------------
Name:
Title:
ISSUING BANK:
BANKERS TRUST COMPANY
By
---------------------------------
Name:
Title:
LENDERS:
BT COMMERCIAL CORPORATION
By
---------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
By
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
COMMERCIAL CORPORATION
By
---------------------------------
Name:
Title:
BANK OF SCOTLAND
By
---------------------------------
Name:
Title:
THE CIT GROUP/BUSINESS CREDIT INC.
By
---------------------------------
Name:
Title:
CONGRESS FINANCIAL CORPORATION
By
---------------------------------
Name:
Title:
BANKBOSTON, N.A.
By
---------------------------------
Name:
Title:
FLEET BANK, N.A.
By
---------------------------------
Name:
Title:
MELLON BANK, N.A.
By
---------------------------------
Name:
Title:
SUMMIT COMMERCIAL/GIBRALTAR CORP.
By
---------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A.
By
---------------------------------
Name:
Title:
