Exhbiit 10.1(h)
WAIVER AND AMENDMENT NO. 5
to the
CREDIT AGREEMENT
This WAIVER and AMENDMENT NO. 5 dated as of March 14, 1997 (this "Waiver
and Amendment") to the CREDIT AGREEMENT dated as of March 6, 1995 (as amended,
the "Agreement") between Xxxxxxx & Yale, Inc., a Massachusetts corporation (the
"Company"), and Fleet National Bank, successor by merger to Fleet National Bank
of Massachusetts, formerly known as Shawmut Bank, N.A. (the "Bank"). All
capitalized terms used and not defined herein shall have the meanings ascribed
to such terms in the Agreement.
In consideration of the mutual covenants contained herein, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
Section 1. Waiver. The Bank confirms waiver of the Event of Default that
has resulted from non-compliance with Subsections 6.01(m) and 6.01(n) of the
Agreement. This waiver is effective as of December 30, 1996; provided, however,
that such waiver is effective only for the period ending December 31, 1996.
Section 2. Amendment of Section 1.01 of Agreement. The definition of "DSCR
Measurement Period" is hereby amended to read as follows:
"DSCR Measurement Period"--(i) The fiscal quarter ending Xxxxx 00, 0000,
(xx) the two-fiscal-quarter period ending June 30, 1997, (iii) the
three-fiscal-quarter period ending September 30, 1997, (iv) the fiscal year
ending December 31, 1997 and (v) thereafter, at the end of each fiscal quarter
commencing with the fiscal quarter ending March 31, 1998, the most recent
four-fiscal-quarter period.
Section 3. Amendment of Section 1.01 of Agreement. The definition of
"Borrowing Base" is hereby amended to read as follows:
"Borrowing Base"--An amount equal to (A) the lesser of
(i) the Committed Revolver Amount or
(ii) (a) 80% of the Net Outstanding Amount of Eligible Receivables from
time to time,
plus
(b) the lesser of (I) $1,500,000 or (II) 40% of Eligible Inventory
from time to time
less (B) Outstanding Letters of Credit.
Section 4. Amendment of Subsection 6.01(m) of the Agreement. Subsection
6.01(m) of the Agreement is hereby amended to read as follows:
(m) The Company will have a maximum net loss or minimum net gain (each
calculated in the manner of Consolidated Net Income) from operations for each
period commencing January 1, 1997 and ending on the dates shown below as
follows:
Period Ending Maximum Net Loss Minimum Net Gain
March 31, 1997 $15,000
June 30, 1997 -0- $ -0-
September 30, 1997 35,000
December 31, 1997 100,000
Section 5. Amendment of Subsection 6.01(n) of the Agreement. Subsection
6.01(n) of the Agreement is hereby amended to read as follows:
(n) The Company will maintain a Consolidated Debt Service Coverage
Ratio (i) for each DSCR Measurement Period ending on or before December 31,
1997, of not less than 1.0 to 1.0 and (ii) for each DSCR Measurement Period
thereafter, of not less than 1.2 to 1.0.
Section 6. Amendment of Subsection 6.01(p) of the Agreement. Subsection
6.01(p) of the Agreement is hereby amended to read as follows:
(p) The Company and its Subsidiaries will not make Consolidated
Capital Expenditures aggregating in excess of $500,000 during any fiscal year.
Section 7. Payment for Waiver and Amendment. The Company agrees to pay to
the Bank a fee of $5,000 plus expenses, including but not limited to reasonable
attorneys' fees, for this Waiver and Amendment No. 5 to the Credit Agreement.
Section 8. Representations and Warranties. The Company represents and
warrants to the Bank as of the effective date of this Waiver and Amendment that
(a) other than the Event of Default described in Section 1 hereof, no Default or
Event of Default has occurred and is continuing or results from the execution
and delivery of this Waiver and Amendment,
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(b) each of the representations and warranties of the Company in the Agreement
shall be true and correct on the effective date of this Waiver and Amendment,
(c) the liens granted pursuant to the Security Agreement are valid and (d) this
Waiver and Amendment is a legal, valid and binding agreement of the Company
enforceable against the Company in accordance with its terms.
Section 9. Other Provisions Still Effective; No Waiver. Except as amended
by this Waiver and Amendment, all other provisions, terms and conditions of the
Agreement shall continue to be effective. This Waiver and Amendment shall not be
deemed a waiver of any defaults that may exist under the Agreement other than
those described in Section 1 hereof.
Section 10. Counterparts. This Waiver and Amendment may be executed in
counterparts each of which shall constitute an original but all of which, when
taken together, shall constitute but one instrument.
Section 11. Effective Date. This Waiver and Amendment shall become
effective, when signed by all the parties hereto, on the date first above
written.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed by their respective authorized officers, and the
Company has caused its seal to be hereunto affixed and attested by its duly
authorized officer, all as of the day and year first above written.
[SEAL] XXXXXXX & YALE, INC.
ATTEST By /s/ Xxxxx Xxxxxxx
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Its Senior Vice President-Finance
By /s/ Xxxxx Xxxxxxx
-------------------------
Its President FLEET NATIONAL BANK
By /s/ Xxxxxx Xxxxxx
---------------------------------
Its Vice President
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