Exhibit 10.204
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of February 9, 2001, by and among CATALINA
LIGHTING, INC., a Florida corporation ("Domestic Borrower"), CATALINA
INTERNATIONAL PLC, a limited company organized under the laws of England and
Wales (Registered in England No. 03949382) ("Holdings Borrower"), and RING
LIMITED (formerly known as Ring PLC), a limited company organized under the laws
of England and Wales (Registered in England No. 29796) ("Sterling Borrower";
Domestic Borrower, Holdings Borrower and Sterling Borrower are collectively
referred to herein as the "Borrowers" and individually as a "Borrower"),
SUNTRUST BANK, a Georgia banking corporation ("SunTrust"), and the other banks
and lending institutions that are signatories to this Amendment (SunTrust and
such other banks and lending institutions, collectively, the "Lenders"),
SUNTRUST BANK, in its capacities as Administrative Agent for the Lenders (the
"Administrative Agent"), as Domestic Issuing Bank (the "Domestic Issuing Bank")
and as Domestic Swingline Lender (the "Domestic Swingline Lender"), as UK
Swingline Lender (the "UK Swingline Lender") and as UK Issuing Bank (the "UK
Issuing Bank").
W I T N E S S E T H
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Domestic Swingline Lender, the Domestic Issuing Bank, the UK Swingline Lender
and the UK Issuing Bank entered into that certain Amended and Restated Revolving
Credit and Term Loan Agreement, dated as of September 22, 2000, (as amended,
restated, supplemented, or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Domestic Swingline Lender, the Domestic Issuing Bank, the UK Swingline Lender
and the UK Issuing Bank entered into that certain First Amendment to Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of December 22,
2000;
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the
Domestic Swingline Lender, the Domestic Issuing Bank, the UK Swingline Lender
and the UK Issuing Bank are amending the Credit Agreement so as to make certain
changes in the terms and conditions of the Credit Agreement as are more fully
set forth herein.
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the
Borrowers, the Lenders, the Administrative Agent, the Domestic Swingline Lender,
the Domestic Issuing Bank, the UK Swingline Lender and the UK Issuing Bank
hereby amend the Credit Agreement as follows:
A. AMENDMENT
1. Unless otherwise specifically defined herein, each term used
herein which is defined in the Credit Agreement shall have 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 the date hereof refer to the Credit Agreement as
amended hereby.
2. Exhibit G to the Credit Agreement is hereby replaced by the
attached Exhibit G.
3. Section 1.01 of the Credit Agreement is hereby amended so as
to add the following new definitions:
"Initial Additional Capital" shall mean a transaction or a
series of transactions to generate funds whereby the Domestic Borrower
(x) enters into documentation satisfactory to the Administrative Agent
and the Lenders evidencing the Domestic Borrower's incurrence of
Subordinated Debt, in addition to Required Subordinated Debt, which
shall mature no earlier than the later of (i) six months after the
Revolving Credit Termination Date, (ii) the Term A Loan Maturity Date,
and (iii) the Term B Loan Maturity Date which shall have terms and
conditions acceptable to Administrative Agent and the Required Lenders
in their sole discretion, including but not limited to, matters
involving payment blockage, scheduled payments on the Subordinated
Debt, the definition of senior Indebtedness, and standstill provisions;
(y) makes a sale of part of its fixed assets; or (z) accomplishes an
equity infusion relating to the issuance of common or preferred stock,
and whereby the net cash proceeds of such transaction or series of
transactions shall be no less than $5,000,000.
"Required Subordinated Debt" shall have the meaning set forth
in section 8.07.
"Secondary Additional Capital" shall mean a transaction or a
series of transactions to generate funds whereby the Domestic Borrower
(x) enters into documentation satisfactory to the Administrative Agent
and the Lenders evidencing the Domestic Borrower's incurrence of
Subordinated Debt, in addition to Required Subordinated Debt, which
shall mature no earlier than the later of (i) six months after the
Revolving Credit Termination Date, (ii) the Term A Loan Maturity Date,
and (iii) the Term B Loan Maturity Date which shall have terms and
conditions acceptable to Administrative Agent and the Required Lenders
in their sole discretion, including but not limited to, matters
involving payment blockage, scheduled payments on the Subordinated
Debt, the definition of senior Indebtedness, and standstill provisions;
(y) makes a sale of its assets; or (z)
accomplishes an equity infusion relating to the issuance of common or
preferred stock, and whereby the net cash proceeds of such transaction
or series of transactions shall be no less than $5,000,000; provided,
however, any funds raised as Secondary Additional Capital shall be in
addition to and shall not include any Initial Additional Capital.
4. Section 1.01 of the Credit Agreement is hereby amended so
that, from and after the date hereof, the definitions of "Applicable Base Rate
Margin," "Applicable LIBOR Margin," and "Consolidated Excess Cash Flow" set
forth therein shall read as follows:
"Applicable Base Rate Margin" shall mean, for the period
commencing January 1, 2001 and continuing until such time that the
Leverage Ratio reflected by the annual financial statements required
under Section 8.07(a) or the quarterly financial statements for each
Fiscal Quarter required under Section 8.07(b) is less than 3.50:1:00
calculated as of the relevant determination date for the preceding four
fiscal quarter period then ending, 2.00% per annum. If the Leverage
Ratio reflected by the annual financial statements required under
Section 8.07(a) or the quarterly financial statements for each Fiscal
Quarter required under Section 8.07(b) becomes less than 3.50:1:00
calculated as of the relevant determination date for the preceding four
fiscal quarter period then ending, then, at such time, the Applicable
Base Rate Margin shall mean the applicable percentage per annum
determined from the chart set forth below:
The Applicable Base Rate Margin
If the Leverage Ratio is: For the Loans is:
------------------------- -----------------
Less than 1.50:1.00 0.75%
Greater than or equal to 1.00%
1.50:1.00 but less than
2.00:1.00
Greater than or equal to 1.25%
2.00:1.00 but less than
2.50:1.00
Greater than or equal to 1.50%
2.50:1.00 but less than
3.00:1.00
Greater than or equal to 1.75%
3.00:1.00 but less than
3.50:1.00
Greater than or equal to 2.00%
3.50:1.00
Each change in the Applicable Base Rate Margin resulting from
a change in the Leverage Ratio shall be effective on the second
Business Day immediately following the date of delivery to the
Administrative Agent of the annual financial
statements required under Section 8.07(a), or the quarterly financial
statements for each Fiscal Quarter required under Section 8.07(b), as
applicable, in each case together with the compliance certificate
required by Section 8.07(c), indicating such change; provided, however,
that for the period commencing on the Closing Date and ending on the
six month anniversary of the Closing Date, the Applicable Base Rate
Margin shall be 1.75% per annum. Notwithstanding the foregoing, at any
time during which the Domestic Borrower has failed to deliver such
financial statements and certificates when required by Section 8.07(a),
(b), and (c), as applicable, the Applicable Base Rate Margin shall be
2.00% per annum, which shall not include any increase in the Applicable
Base Rate Margin contemplated in Section 8.10, until such time as the
delinquent financial statements are delivered, at which time the
Applicable Base Rate Margin shall be reset as provided above.
Notwithstanding the foregoing, if the Domestic Borrower fails to obtain
Initial Additional Capital by July 31, 2001, as specified in Section
8.10 herein or fails to obtain Secondary Additional Capital by October
31, 2001, as specified in Section 8.10 herein, then Applicable Base
Rate Margin shall be increased as provided for in Section 8.10 herein.
Provided, further, the Applicable Base Rate Margin shall remain at
2.00% per annum, which shall not include any increase in the Applicable
Base Rate Margin contemplated in Section 8.10, until such time that the
Fixed Charge Coverage Ratio is greater than 1.20:1.00.
"Applicable LIBOR Margin" shall mean, for the period
commencing January 1, 2001 and continuing until such time that the
Leverage Ratio reflected by the annual financial statements required
under Section 8.07(a) or the quarterly financial statements for each
Fiscal Quarter required under Section 8.07(b) is less than 3.50:1:00
calculated as of the relevant determination date for the preceding four
fiscal quarter period then ending, 4.75% per annum. If the Leverage
Ratio reflected by the annual financial statements required under
Section 8.07(a) or the quarterly financial statements for each Fiscal
Quarter required under Section 8.07(b) becomes less than 3.50:1:00
calculated as of the relevant determination date for the preceding four
fiscal quarter period then ending, then, at such time,
the Applicable LIBOR Margin shall mean the applicable percentage per
annum determined from the chart set forth below:
The Applicable LIBOR Margin For
If the Leverage Ratio is: the Loans is:
------------------------ ------------
Less than 1.50:1.00 1.75%
Greater than or equal to 2.00%
1.50:1.00 but less than
2.00:1.00
Greater than or equal to 2.25%
2.00:1.00 but less than
2.50:1.00
Greater than or equal to 2.50%
2.50:1.00 but less than
3.00:1.00
Greater than or equal to 2.75%
3.00:1.00 but less than
3.50:1.00
Greater than or equal to 3.00%
3.50:1.00
Each change in the Applicable LIBOR Margin resulting from a
change in the Leverage Ratio shall be effective on the second Business
Day immediately following the date of delivery to the Administrative
Agent of the annual financial statements required under Section
8.07(a), or the quarterly financial statements for each Fiscal Quarter
required under Section 8.07(b), as applicable, in each case together
with the compliance certificate required by Section 8.07(c), indicating
such change; provided, however, that for the period commencing on the
Closing Date and ending on the six month anniversary of the Closing
Date, the Applicable LIBOR Margin shall be 2.75% per annum.
Notwithstanding the foregoing, at any time during which the Domestic
Borrower has failed to deliver such financial statements and
certificates when required by Section 8.07(a), (b), and (c), as
applicable, the Applicable LIBOR Margin shall be 4.75% per annum, which
shall not include any increase in the Applicable LIBOR Margin
contemplated in Section 8.10, until such time as the delinquent
financial statements are delivered, at which time the Applicable LIBOR
Margin shall be reset as provided above. Notwithstanding the foregoing,
if the Domestic Borrower fails to obtain Initial Additional Capital by
July 31, 2001, as specified in Section 8.10 herein or fails to obtain
Secondary Additional Capital by October 31, 2001, as specified in
Section 8.10 herein, then Applicable LIBOR Margin shall be increased as
provided for in Section 8.10 herein. Provided, further than in no event
shall the Applicable LIBOR Margin for any UK Swingline Loan be less
than 1.00%. Provided, further, the Applicable LIBOR Margin shall remain
at 4.75% per annum, which
shall not include any increase in the Applicable Base Rate Margin
contemplated in Section 8.10, until such time that the Fixed Charge
Coverage Ratio is greater than 1.20:1.00.
"Consolidated Excess Cash Flow" shall mean, for any Fiscal
Year, Consolidated Adjusted EBITDA (A) minus the sum of (i)
Consolidated Interest Expense for such Fiscal Year, (ii) principal
payments made on Consolidated Total Debt (including voluntary and
mandatory prepayments of Consolidated Total Debt made during such
Fiscal Year), (iii) Consolidated Tax Expense paid during such Fiscal
Year, and (iv) Consolidated Capital Expenditures made during such
Fiscal Year up to $2,250,000, (B) plus or minus (i) extraordinary gains
and/or losses and (ii) changes in Consolidated Working Capital from the
last day of the prior Fiscal Year to the last day of such Fiscal Year.
5. Section 5.08 (b) of the Credit Agreement is hereby amended so
as to read as follows:
(b) The Borrowers shall prepay the Loans in accordance with
Section 5.08(e) below in an amount equal to one hundred percent (100%)
of the Net Cash Proceeds from (i) the issuance of Required Subordinated
Debt, (ii) Initial Additional Capital or (iii) Secondary Additional
Capital, when incurred, pursuant to Section 8.10 hereof, provided that,
so long as no Default or Event of Default has occurred and is
continuing, and the Borrowers shall have prepaid the Loans from the Net
Cash Proceeds of the issuance of Required Subordinated Debt pursuant to
Section 8.10 in an amount equal to at least $7,500,000 and prepaid the
Net Cash Proceeds of Initial Additional Capital and Secondary
Additional Capital, the Borrowers shall be required to prepay the Loans
in accordance with Section 5.08(e) below in an amount equal to fifty
percent (50%) of the Net Cash Proceeds from the issuance of any other
Subordinated Debt. Such prepayment shall be made on the day such
Subordinated Debt transaction is consummated.
6. Section 8.05 of the Credit Agreement is hereby amended so as
to add the following new subsection (c):
(c) Deliver to the Lenders (x) such appraisals or updated
appraisals of the fixed assets of the Credit Parties (including,
without limitation all Equipment and real property) at the Tupelo
Warehouse and (y) appraisals of the fixed assets of the Credit Parties
(including, without limitation, Equipment and real property) of the
properties located at (i) Van-Line Ltd., Xxxxxxxxx Xxxxx, Xxxx Xxxx,
Xxxxxxx Xxxxx, XX00 0XX, Xxxxxxx and (ii) BMAC Ltd., Broadway, Hyde
Cheshire, SK14 4QF, England, such appraisals to be conducted by an
appraiser, and in form and substance, reasonably satisfactory to the
Required Lenders, in each case conducted at the expense of the Domestic
Borrower.
7. Section 8.07(b) and 8.07(c) of the Credit Agreement are hereby
amended so as to read as follows:
(b) Quarterly Financial Statements, Monthly Financial
Statements. As soon as available and in any event within 45 days after
the end of each Fiscal Quarter that is not the end of a Fiscal Year,
balance sheets of the Consolidated Companies and the Sterling Borrower
as at the end of such Fiscal Quarter presented on a consolidated basis
and the related statements of income, retained earnings and cash flows
of the Consolidated Companies and the Sterling Borrower for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, presented on a consolidated basis setting forth in each
case in comparative form the figures for the corresponding quarter and
the corresponding portion of the Domestic Borrower's and the Sterling
Borrower's previous Fiscal Year, all in reasonable detail, and
certified by the chief financial officer of the Domestic Borrower that
such financial statements fairly present in all material respects the
financial condition of the Consolidated Companies and the Sterling
Borrower as at the end of such Fiscal Quarter on a consolidated basis,
and the results of operations and statements of cash flows of the
Consolidated Companies and the Sterling Borrower for such Fiscal
Quarter and such portion of the Fiscal Year, in accordance with GAAP
consistently applied (subject to normal year-end audit adjustments and
the absence of certain footnotes). In addition, as soon as available
and in any event within 35 days after the end of each month that is not
the end of a Fiscal Quarter and within 45 days after the end of each
month that is also the end of a Fiscal Quarter, balance sheets of the
Consolidated Companies and the Sterling Borrower as at the end of such
month presented on a consolidated basis and the related statements of
income, retained earnings and cash flows of the Consolidated Companies
and the Sterling Borrower for such month, all in reasonable detail, and
certified by the chief financial officer of the Domestic Borrower that
such financial statements fairly present in all material respects the
financial condition of the Consolidated Companies and the Sterling
Borrower as at the end of such month on a consolidated basis, and the
results of operations and statements of cash flows of the Consolidated
Companies and the Sterling Borrower for such month, in accordance with
GAAP consistently applied (subject to normal year-end audit adjustments
and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsection (a) and with the
financial statements required pursuant to subsection (b) above for the
Fiscal Quarter or month as applicable, a certificate of a Senior
Officer substantially in the form of Exhibit G, to the effect that,
based upon a review of the activities of the Consolidated Companies and
such financial statements during the period covered thereby, to his
knowledge, (i) there exists no Event of Default and no Default under
this
Agreement, or if there exists an Event of Default or a Default
hereunder, specifying the nature thereof and the proposed response
thereto, (ii) demonstrating in reasonable detail calculations
demonstrating compliance with Section 8.08 and Section 9.12 as at the
end of such Fiscal Year or such Fiscal Quarter, (iii) stating whether
any change in GAAP or the application thereof has occurred since the
date of the Domestic Borrower's most recently delivered audited
financial statements, (iv) listing the outstanding balance of all
Intercompany Notes as of the end of such period, (v) listing the
proposed asset sales of the Consolidated Companies, including the
projected time table for sales and contracts pending, and (vi)
detailing and comparing the current monthly financial statements in
narrative form as to the projected financial statements of the
Consolidated Companies.
8. Section 8.10 of the Credit Agreement is hereby amended so as
to read as follows:
Section 8.10 Subordinated Debt Placement and Sale of Assets.
(a) On or prior to March 31, 2002, the Administrative Agent shall have
received documentation satisfactory to the Administrative Agent and the
Lenders evidencing the Domestic Borrower's incurrence of not less than
$7,500,000 in new Subordinated Debt (the "Required Subordinated Debt")
, plus documentation satisfactory to the Administrative Agent and the
Lenders evidencing additional capital equal to the sum of (a) such
portion of the Initial Additional Capital that was not generated by the
Domestic Borrower on or before July 31, 2001, or thereafter, and (b)
such portion of the Secondary Additional Capital that was not generated
by Domestic Borrower on or before October 31, 2001, or thereafter, and
in the event any Subordinated Debt is included in such generation of
capital, it shall mature no earlier than the later of (i) six months
after the Revolving Credit Termination Date, (ii) the Term A Loan
Maturity Date, and (iii) the Term B Loan Maturity Date which shall have
such terms and conditions acceptable to Administrative Agent and the
Required Lenders in their sole discretion, including but not limited
to, matters involving payment blockage, scheduled payments on the
Subordinated Debt, the definition of senior Indebtedness, and
standstill provisions. Without limiting the foregoing, all Obligations,
including the Obligations to pay principal of and interest on the Loans
and L/C Obligations shall constitute senior Indebtedness as that or any
similar term is defined in any instrument evidencing or applicable to
any Subordinated Debt incurred under this Section 8.10 which shall be
entitled to the benefits of the subordination provisions contained in a
Subordination Agreement.
(b) The Domestic Borrower shall use its best efforts to
deliver to Administrative Agent prior to July 31, 2001, documentation
satisfactory to the Administrative Agent and the Lenders evidencing the
Initial Additional Capital; provided, however, if the Domestic Borrower
fails to deliver to Administrative
Agent prior to July 31, 2001, documentation satisfactory to the
Administrative Agent and the Lenders evidencing the Initial Additional
Capital, the Applicable Base Rate Margin and the Applicable LIBOR
Margin shall be increased by an additional 1.00% per annum; provided,
further, the Domestic Borrower shall use its best efforts to deliver to
Administrative Agent prior to October 31, 2001, documentation
satisfactory to the Administrative Agent and the Lenders evidencing the
Secondary Additional Capital; provided, however, if the Domestic
Borrower fails to deliver to Administrative Agent prior to October 31,
2001, documentation satisfactory to the Administrative Agent and the
Lenders evidencing the Secondary Additional Capital the Applicable Base
Rate Margin and the Applicable LIBOR Margin shall be increased by an
additional 1.00% per annum.
(c) If the Domestic Borrower fails to deliver to
Administrative Agent prior to July 31, 2001, documentation satisfactory
to the Administrative Agent and the Lenders evidencing the Initial
Additional Capital but later delivers satisfactory documentation
evidencing the Initial Additional Capital, then the Applicable Base
Rate Margin and the Applicable LIBOR Margin shall be decreased by 1.00%
per annum. If the Domestic Borrower fails to deliver to Administrative
Agent prior to October 31, 2001, documentation satisfactory to the
Administrative Agent and the Lenders evidencing the Secondary
Additional Capital but later delivers satisfactory documentation
evidencing the Secondary Additional Capital, then the Applicable Base
Rate Margin and the Applicable LIBOR Margin shall be decreased by 1.00%
per annum.
(d) Each payment made pursuant to this Section 8.10(b)
shall be applied to the Term A Notes or Term B Notes in accordance with
Section 5.08(e).
9. Section 8.08 (a) and 8.08 (b) of the Credit Agreement is
hereby amended so as to read as follows:
Section 8.08 Financial Covenants.
(a) Maximum Leverage Ratio. Maintain at all times,
calculated as of the last day of each Fiscal Quarter (i) commencing
with the Fiscal Quarter beginning on October 1, 2000 through the Fiscal
Quarter ending on December 31, 2000, a Leverage Ratio of no greater
than 5.5:1.00, (ii) commencing with the Fiscal Quarter beginning on
January 1, 2001 through the Fiscal Quarter ending on March 31, 2001, a
Leverage Ratio of no greater than 6.75:1.00, (iii) commencing with the
Fiscal Quarter beginning on April 1, 2001 through the Fiscal Quarter
ending on June 30, 2001, a Leverage Ratio of no greater than 5.5:1.00,
(iv) commencing with the Fiscal Quarter beginning on July 1, 2001
through the Fiscal Quarter ending on September 30, 2001, a Leverage
Ratio of no greater than 4.5:1.00, (iv) commencing with the Fiscal
Quarter October 1, 2001 through the Fiscal Quarter ending on December
31, 2001, a Leverage Ratio of no greater than
3.25:1.00 and (v) commencing with the Fiscal Quarter beginning January
1, 2002, and thereafter, a Leverage Ratio of no greater than 3.25:1.00.
(b) Minimum Fixed Charge Coverage Ratio. Maintain at all
times, calculated as of the last day of each Fiscal Quarter (i)
commencing with the Fiscal Quarter beginning on October 1, 2000 through
the Fiscal Quarter ending on December 31, 2000, a Fixed Charge Coverage
Ratio of not less than 0.50:1.00, (ii) commencing with the Fiscal
Quarter beginning on January 1, 2001 through the Fiscal Quarter ending
on March 31, 2001, a Fixed Charge Coverage Ratio of not less than
0.25:1.00, (iii) commencing with the Fiscal Quarter beginning on April
1, 2001 through the Fiscal Quarter ending on June 30, 2001, a Fixed
Charge Coverage Ratio of not less than 0.50:1.00, (iv) commencing with
the Fiscal Quarter beginning on July 1, 2001 through the Fiscal Quarter
ending on September 30, 2001, a Fixed Charge Coverage Ratio of not less
than 0.50:1.00, (v) commencing with the Fiscal Quarter beginning on
October 1, 2001 through the Fiscal Quarter ending on December 31, 2001,
a Fixed Charge Coverage Ratio of not less than .75:1.00, (vi)
commencing with the Fiscal Quarter beginning January 1, 2002 through
the Fiscal Quarter ending on March 31, 2002, a Fixed Charge Coverage
Ratio of not less than 1.00:1.00, (vii) commencing with the Fiscal
Quarter beginning on April 1, 2002 through the Fiscal Quarter ending on
September 30, 2002, a Fixed Charge Coverage Ratio of not less than
1.20:1.00, and (viii) commencing with the Fiscal Quarter beginning on
October 1, 2002 and thereafter, a Fixed Charge Coverage Ratio of not
less than 1.30:1.00.
10. Section 8.09(c) of the Credit Agreement is hereby amended so
as to read as follows:
(c) The Borrowers (other than the Sterling Borrower)
shall use all reasonable endeavors to procure that:
(i) the Sterling Borrower delists, converts to a private
limited company, completes the Whitewash Procedure, executes the
Sterling Borrower Guaranty and the UK Security Amendment Agreement as
soon as reasonably and legally practicable and in any event no later
than March 31, 2001; and
(ii) each member of the Sterling Borrower Group (other
than dormant companies) and any other member of the Sterling Borrower
Group which is or becomes a Material Foreign Subsidiary after the date
hereof, delists where necessary, converts to a private company,
completes the Whitewash Procedures and executes a UK Subsidiary
Guaranty Accession Agreement and a UK Security Accession Agreement as
soon as reasonably and legally practicable and in any event no later
than March 31, 2001 (or in the case of any subsequent Material Foreign
Subsidiary within the later of March 31, 2001 or two months of its
becoming a Material Foreign Subsidiary).
11. Section 9.03(b) of the Credit Agreement is hereby amended so
as to read as follows:
(b) Sell, lease, or otherwise dispose of its accounts,
property or other assets (including capital stock of Subsidiaries),
other than (i) sales, leases or other dispositions of assets by a
Borrower to another Credit Party or a Credit Party to a Borrower, (ii)
sales, leases or other dispositions of assets by a Subsidiary to a
Credit Party or to the Borrower, (iii) sales of inventory in the
ordinary course of business, (iv) sales of obsolete, worn out,
excessively damaged or unusable equipment, fixtures or inventory and
(v) sales made in accordance with 8.10(b), the net proceeds of which
are paid to the Administrative Agent for the benefit of the Lenders as
applied and prescribed in Section 5.08(b);
12. Section 9.12 of the Credit Agreement is hereby amended so as
to read as follows:
Section 9.12 Consolidated Capital Expenditures. Without
consent of the Required Lenders, make Capital Expenditures during any
Fiscal Year in excess of the sum of, (i) $2,250,000, and (ii) Permitted
Hong Kong Capital Expenditures.
B. MISCELLANEOUS
1. Except as expressly set forth herein, this Amendment shall be
deemed not to waive or modify any provision of the Credit or the other Credit
Documents, and all terms of the Credit Agreement, as amended hereby, shall be
and shall remain in full force and effect and shall constitute a legal, valid,
binding and enforceable obligations of the Borrowers, the Lenders, the
Administrative Agent, the Domestic Swingline Lender, the Domestic Issuing Bank,
the UK Issuing Bank and the UK Swingline Lender. For the avoidance of doubt, all
amendments to the Applicable Base Rate Margin and the Applicable LIBOR Margin
contained herein shall apply to all existing Loans and all future Loans. All
references to the Credit Agreement shall hereinafter be references to the Credit
Agreement as amended by this Amendment.
3. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA AND ALL APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
4. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same document.
5. This Amendment shall be binding on, and shall inure to the
benefit of, the successors and assigns of the parties hereto.
6. In the event that any part of this Agreement shall be found to
be illegal or in violation of public policy, or for any reason unenforceable at
law, such finding shall not invalidate any other part thereof.
7. TIME IS OF THE ESSENCE UNDER THIS AGREEMENT.
8. The parties agree that their signatures by telecopy or
facsimile shall be effective and binding upon them as though executed in ink on
paper but that the parties shall exchange original ink signatures promptly
following any such delivery by telecopy or facsimile.
9. The Borrowers agree to pay all costs and expenses of the
Administrative Agent and the Lenders incurred in connection with the
preparation, execution, delivery and enforcement of this Amendment, including
the reasonable fees and out-of-pocket expenses of Administrative Agent's
counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the date first above written.
CATALINA LIGHTING, INC.,
as a Borrower
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
CATALINA INTERNATIONAL PLC,
as a Borrower
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Director
RING LIMITED (formerly known as
Ring PLC), as a Borrower
By: /s/ Xxxxxx Xxxxx
----------------
Name: Xxxxxx Xxxxx
Title: Director
SUNTRUST BANK,
as Administrative Agent, as Domestic
Issuing Bank, as Domestic Swingline
Lender, UK Swingline Lender, UK Issuing
Bank and as a Lender
By: /s/ W. Xxxxx Xxxxxx
-------------------
Name: W. Xxxxx Xxxxxx
Title: Vice President
REPUBLIC BANK, as a Lender
/s/ Xxxxxxxx Xxxxxx
-------------------
By: Xxxxxxxx Xxxxxx S.V.P.
-----------------------
Name:
BANK UNITED FSB, as a Lender
------------------------------
By:
Name:
DRESDNER BANK
LATEINAMERIKA, AG, MIAMI
AGENCY, as a Lender
------------------------------
By:
Name:
XXXXXXXX BANK, as a Lender
/s/ Xxxxxx X. Xxxxxxx
By: Xxxxxx X. Xxxxxxx
Name: Senior Vice President
LASALLE BANK NATIONAL
ASSOCIATION, as a Lender
/s/ Xxxxxxx Xxxxxx
------------------
By:
Name:
UNION PLANTERS BANK, N.A.,
as a Lender
/s/ Xxx X. Xxxxxx
-----------------
By:
Name:
EXHIBIT G
FORM OF COMPLIANCE CERTIFICATE
To: SunTrust Bank, as Agent
000 Xxxx Xxx Xxxx Xxxx.
0xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Ladies and Gentlemen:
The undersigned ________________, being the ______________ of
CATALINA LIGHTING, INC., a Florida corporation (referred to herein as the
"Domestic Borrower") hereby delivers this Compliance Certificate pursuant to
Section 8.07(c) of that Amended and Restated Revolving Credit and Term Loan
Agreement, dated as of September 22, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), by and among the
Domestic Borrower, CATALINA INTERNATIONAL PLC, a corporation organized under the
laws of England and Wales (Registered in England No. _____) ("Holdings
Borrower"), and RING LTD, a corporation organized under the laws of England and
Wales (Registered in England No. _______) ("Sterling Borrower"), SUNTRUST BANK,
a Georgia banking corporation ("SunTrust"), and the other banks and lending
institutions that are signatories to the Credit Agreement (SunTrust and such
other banks, lending institutions and insurance companies, collectively, the
"Lenders"), SUNTRUST BANK, in its capacity as Administrative Agent for the
Lenders (the "Administrative Agent"), as Domestic Issuing Bank (the "Domestic
Issuing Bank") and as the Domestic Swingline Lender (the "Domestic Swingline
Lender"), and SunTrust Bank, as UK Issuing Bank (the "UK Issuing Bank"), and as
UK Swingline Lender (the "UK Swingline Lender"). Capitalized terms used herein
and not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
1. The officer executing this certificate is the
___________________ of the Domestic Borrower and as such is duly authorized to
execute and deliver this Certificate on behalf of the Consolidated Companies.
2. The calculations set forth on the Attachment hereto are true
and accurate computations of the financial covenants and tests as set forth in
the Credit Agreement.
3. As of the date hereof no Default or Event of Default exists.
Dated this ___ day of ____________, ____.
-----------------------------------
Name:
Title:
ATTACHMENT TO COMPLIANCE CERTIFICATE
ALL TERMS USED HEREIN SHALL HAVE THE MEANING
ASCRIBED TO SUCH TERMS IN THE CREDIT AGREEMENT
A. LEVERAGE RATIO
1. Indebtedness of the Consolidated Companies (Sum of paragraphs (a) - (i) below): $_________
(a) All obligations of the Consolidated Companies for borrowed money: $_________
(b) All obligations of the Consolidated Companies evidenced by
bonds debentures notes, drafts, bankers' acceptances or other
similar instruments: $_________
(c) All obligations of the Consolidated Companies to pay the
deferred purchase price of property or services (other than
trade accounts payable that are not past due by more than
ninety (90) days and other obligations accrued in the
ordinary course of business and earn-outs or similar
arrangements): $_________
(d) All obligations of the Consolidated Companies under leases required
to be capitalized under GAAP: $_________
(e) All obligations or liabilities of others secured by any Lien
upon property of the Consolidated Companies whether or not
such obligation $_________ or liability is assumed:
(f) All obligations of the Consolidated Companies under Interest Rate
Contracts or Currency Contracts: $_________
(g) All obligations of the Consolidated Companies in respect of
letters of credit (including all contingent reimbursement
obligations, whether or not any draws under such letters of
credit have been presented for payment) and all drafts,
bankers acceptances or similar instruments issued in
connection therewith: $_________
(h) The aggregate development, construction and acquisition cost
of property leased to the Consolidated Companies pursuant to
a Synthetic Lease and all obligations of such person with
respect to asset securitization programs: $_________
2. 50% of aggregate L/C Obligations of Eligible Trade L/Cs for the
Consolidated Companies: $_________
3. Consolidated Total Debt
Line 1 minus Line 2 $_________
4. Consolidated EBITDA (sum of paragraphs (a) - (b) plus (c), (d), or (e) as
applicable below): $_________
(a) Consolidated Net Income for such period, $_________
(b) (To the extent deducted in determining Consolidated Net Income)
(i) Consolidated Tax Expense for such period, $_________
(ii) Consolidated Interest Expense for such period, $_________
(iii) Consolidated Depreciation for such period, $_________
(iv) Consolidated Amortization for such period, and $_________
(v) Other non-cash charges determined on a $_________
consolidated basis in accordance with GAAP
(c) For the period ending on the last day of the fourth Fiscal Quarter
of Fiscal Year 2000, $976,000 for a severance payment to Xxxxxxx X.
Xxxxxxx $_________
(d) For the periods ending on the last day of each of the
_____, _____ and ____ Fiscal Quarters of the Fiscal Year
_____, $583,000 for losses incurred in connection with the
sale of M&F Components; and $_________
(e) For the periods ending on the last day of Fiscal Quarter during
Fiscal Year 2001 and Fiscal Year 2002, $250,000 for payments under
the non compete agreement with Xxxxxxx X. Xxxxxxx. $_________
For the period beginning on September 30, 2000 through June 20,
(f) 2001, the Sterling Borrower public company expenses up to an
aggregate annual amount of $500,000. $_________
(g) For the period beginning on September 30, 2000 through March 31, $_________
2001, legal and investment advisory fees incurred by Ring PLC with
respect to its sale to Domestic Borrower up to an aggregate annual
amount of $739,257.
(h) For the period beginning on September 30, 2000, through March 31,
2001, any Pension Expense associated with the sale of the
Engineering Division up to an aggregate annual amount of $578,687. $_________
5. Leverage Ratio (ratio of Line 3 to Line 4): __________
6. Maximum Leverage Ratio:
(i) Commencing with the Fiscal Quarter beginning on October 1,
2000 through the Fiscal Quarter ending on December 31, 2000, a
Leverage Ratio of no greater than 5.5:1.00,
(ii) Commencing with the Fiscal Quarter beginning on January
1, 2001 through the Fiscal Quarter ending on March 31, 2001, a
Leverage Ratio of no greater than 6.75:1.00,
(iii) Commencing with the Fiscal Quarter beginning on April 1,
2001 through the Fiscal Quarter ending on June 30, 2001, a
Leverage Ratio of no greater than 5.5:1.00,
(iii) Commencing with the Fiscal Quarter beginning on July 1,
2001 through the Fiscal Quarter ending on September 30, 2001,
a Leverage Ratio of no greater than 4.5:1.00,
(iv) Commencing with the Fiscal Quarter beginning on July 1,
2001 through the Fiscal Quarter ending on September 30, 2001,
a Leverage Ratio of no greater than 4.5:1.00,
(v) Commencing with the Fiscal Quarter October 1, 2001 through
the Fiscal Quarter ending on December 31, 2001, a Leverage
Ratio of no greater than 3.25:1.00, and
(vi) Commencing with the Fiscal Quarter beginning January 1,
2002, and thereafter, a Leverage Ratio of no greater than
3.25:1.00.
7. Default Indicated? __________
B. FIXED CHARGE COVERAGE RATIO
1. Consolidated EBITDA: $________
2. Consolidated Capital Expenditures (excluding Permitted
Go-Gro Capital Expenditures): $________
3. Consolidated Cash Tax Expense paid: $________
4. Item 1 minus Item 2 minus Item 3: $________
5. The greater of Item 4 or $0: $________
6. Consolidated Interest Expense: $________
7. Current maturities of Consolidated Total Debt: $________
8. Current maturities of Capital Leases: $________
9. Ring Preferred Dividends: $________
10. Item 6 plus Item 7 plus Item 8 plus Item 9: $________
11. Fixed Charge Coverage Ratio- ratio of Item 5 to 10: ________
12. Minimum Fixed Charge Coverage Ratio
(i) Commencing with the Fiscal Quarter beginning on October 1,
2000 through the Fiscal Quarter ending on December 31, 2000, a
Fixed Charge Coverage Ratio of not less than 0.50:1.00,
(ii) Commencing with the Fiscal Quarter beginning on January
1, 2001 through the Fiscal Quarter ending on March 31, 2001, a
Fixed Charge Coverage Ratio of not less than 0.25:1.00,
(iii) Commencing with the Fiscal Quarter beginning on April 1,
2001 through the Fiscal Quarter ending on June 30, 2001, a
Fixed Charge Coverage Ratio of not less than 0.50:1.00,
(iv) Commencing with the Fiscal Quarter beginning on July 1,
2001 through the Fiscal Quarter ending on September 30, 2001,
a Fixed Charge Coverage Ratio of not less than 0.50:1.00,
(v) Commencing with the Fiscal Quarter beginning on October 1,
2001 through the Fiscal Quarter ending on December 31, 2001, a
Fixed Charge Coverage Ratio of not less than .75:1.00,
(vi) Commencing with the Fiscal Quarter beginning January 1,
2002 through the Fiscal Quarter ending on March 31, 2002, a
Fixed Charge Coverage Ratio of not less than 1.00:1.00,
(vii) Commencing with the Fiscal Quarter beginning on April 1,
2002 through the Fiscal Quarter ending on September 30, 2002,
a Fixed Charge Coverage Ratio of not less than 1.20:1.00, and
(viii) Commencing with the Fiscal Quarter beginning on October
1, 2002 and thereafter, a Fixed Charge Coverage Ratio of not
less than 1.30:1.00.
13. Default Indicated? __________
C. CONSOLIDATED NET WORTH
1. Initial Minimum Compliance Level $43,000,000
2. After September 30, 2000, 50% of Consolidated Net $_________
Income (if positive)
3. Required Consolidated Net Worth (Item 1 plus Item 2) $_________
----
4. Total stockholders equity of consolidated companies $_________
5. Default Indicated? __________
D. CONSOLIDATED CAPITAL EXPENDITURES (Calendar Year End Only)
1. Permitted Go-Gro Capital Expenditures $_________
Calendar Year Amount Allowed
------------- --------------
Calendar Year ending
December 31, 2000 $5,000,000
Calendar Year ending
December 31, 2001 $5,000,000
2. $2,250,000
3. Permitted Consolidated Capital Expenditures- Item 1 plus
Item 2 $_________
4. Actual Consolidated Capital Expenditures $_________
5. Default Indicated? __________
E. EXCESS CASH FLOW (Fiscal Year end only)
1. Consolidated EBITDA $_________
2. Consolidated Interest Expense $_________
3. Principal Payments made on Consolidated Total Debt $_________
4. Consolidated Cash Tax Expense $_________
5. Consolidated Capital Expenditures $_________
(not to exceed $2,250,000 plus Permitted Hong Kong Capital
Expenditures)
6. Sum of Item 2 plus Item 3 plus Item 4 plus Item 5 $_________
7. Extraordinary gains and/or losses $_________
8. Changes in consolidated working capital $_________
9. Excess Cash Flow- Item 1 minus Item 6 plus or minus
Item 7 plus or minus Item 8 $_________
10. Default Indicated? __________
F. LISTING OF PROPOSED ASSETS SALES (MONTH END):
[LIST]
G. NARRATIVE OF MONTHLY FINANCIALS COMPARED TO
PROJECTIONS (MONTH END)
