AMERICAN BILTRITE INC. K&M ASSOCIATES L.P. AMENDED & RESTATED CREDIT AGREEMENT Amendment No. 4
Exhibit
4.1
K&M
ASSOCIATES L.P.
AMENDED
& RESTATED CREDIT AGREEMENT
Amendment
No. 4
This
Agreement, dated as of December 31, 2007 (the “Agreement”),
is among American Biltrite Inc., a Delaware corporation (the “Company”),
K&M Associates L.P., a Rhode Island limited partnership (“K&M”;
the Company and K&M being collectively but jointly and severally, the “Domestic
Borrower”), American Biltrite (Canada) Ltd., a corporation governed by
the Canada Business Corporations Act (the “Canadian
Borrower”), the Canadian Lenders and Domestic Lenders from
time to time party hereto, Bank of America, National Association, successor by
merger to Fleet National Bank (“Bank of
America”), both in its capacity as a Domestic Lender and in its capacity
as domestic administrative agent for the Lenders, and Bank of America, National
Association, acting through its Canada branch (“Bank of
America Canada”), both in its capacity as a Canadian Lender and in its
capacity as Canadian administrative agent for the Lenders.
1. Credit
Agreement; Definitions. Reference is made to the Amended and
Restated Credit Agreement dated as of September 26, 2006 (as amended and in
effect prior to giving effect to this Agreement, the “Credit
Agreement”) among the Company, K&M, the Canadian Borrower and the
Canadian Lenders and the Domestic Lenders from time to time party thereto, Bank
of America, as Domestic Agent, and Bank of America Canada, as Canadian
Agent. This Agreement amends the Credit Agreement and waives certain
terms thereof that otherwise would have existed as of December 31,
2007. Terms defined in the Credit Agreement as amended hereby and not
otherwise defined herein are used with the meaning so defined.
2. Amendment
of Credit Agreement. Effective as of December 31, 2007, the
Credit Agreement is hereby amended as follows:
2.1. Deletion of
Section 6.5.3. Section 6.5.3 of the Credit Agreement (“Income
or Loss from Continuing Operations”) is hereby amended and restated to read in
its entirety: “Intentionally omitted.”
2.2. Amendment
of Section 6.5.5. Section 6.5.5 of the Credit Agreement is
hereby amended and restated to read in its entirety as
follows:
|
“6.5.5 Consolidated
Adjusted EBITDA to Consolidated Fixed Charges. On and
after September 30, 2006, on the last day of each fiscal quarter of the
Company, Consolidated Adjusted EBITDA for the period of four consecutive
fiscal quarters then ending shall exceed 100% of Consolidated Fixed
Charges for the 12-month period ending on such date; provided,
however,
that the $4,000,000 principal payment by the
Company
|
to
Prudential under the Note Purchase Agreement on August 28, 2006 shall be
excluded for purposes of such calculation; provided
further,
however,
that to the extent deducted in calculating Consolidated Net Income for such
periods, the amounts set forth in the table below shall be added to Consolidated
Adjusted EBITDA for purposes of such calculation in the respective fiscal
quarter of the Company ending on the date set forth opposite each such
amount:
Amount
Added to Consolidated
Adjusted EBITDA |
Fiscal
Quarter of the
Company |
$2,461,000
|
December
31, 2007
|
$2,341,000
|
March
31, 2008
|
$1,596,000
|
June
30, 2008
|
$1,476,000
|
September
30, 2008
|
3. Waiver. This
Agreement hereby expressly waives the covenant defaults under Sections 6.5.3 and
6.5.5 of the Credit Agreement that may otherwise have existed as of December 31,
2007.
4. Representations
and Warranties. In order to induce the Lenders to enter into
this Agreement, each of the Borrowers jointly and severally represents and
warrants that, immediately after giving effect to this Agreement, no Default
shall exist.
5. Payment of
Fee. Upon or prior to the effectiveness of this Agreement, the
Domestic Borrower or the Canadian Borrower shall pay to the Domestic Agent, for
the account of the Domestic Lenders and the Canadian Lenders, a fee in the
aggregate amount of $50,000, as a condition to the effectiveness of this
Agreement and the transactions contemplated hereby.
6. General. Except
as specifically amended and waived hereby, the Credit Agreement and all of the
Credit Documents are each confirmed as being in full force and effect as so
amended and waived. This Agreement, the Credit Agreement and the
other Credit Documents referred to herein or therein constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior and current understandings and agreements,
whether written or oral. Each of this Agreement and the Credit
Agreement is a Credit Document, and this Agreement may be executed in any number
of counterparts (including by way of facsimile transmission), which together
shall constitute one instrument, and shall bind and inure to the benefit of the
parties and their respective successors and assigns, including as such
successors and assigns all holders of any Credit Obligation. This
Agreement shall be governed by and construed in accordance with the laws (other
than the conflict of law rules) of The Commonwealth of
Massachusetts.
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remainder of this page intentionally has been left blank.]
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Each of
the undersigned has caused this Agreement to be executed and delivered by its
duly authorized officer as an agreement under seal as of the date first above
written.
By /s/Xxxxxx
X. Xxxxx III
Name:
Xxxxxx X. Xxxxx III
Title:
Vice President-Finance
K&M
ASSOCIATES L.P.
By: AIMPAR,
INC., its General Partner
By /s/Xxxxxx
X. Xxxxx III
Name:
Xxxxxx X. Xxxxx III
Title:
Vice President-Finance
AMERICAN
BILTRITE (CANADA) LTD.
By /s/Xxxxxxx
X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
President
Domestic
Lender:
BANK OF
AMERICA, NATIONAL ASSOCIATION
By /s/ Xxxx X.
Xxxxxxxxx
Name:
Xxxx X. Xxxxxxxxx
Title: Senior Vice
President
Bank of
America, N.A.
Massachusetts
Middle Market Division
000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Signature
Page to Amendment No. 4 to Credit Agreement
Canadian
Lender:
BANK OF
AMERICA, NATIONAL ASSOCIATION,
ACTING THROUGH ITS CANADA BRANCH
ACTING THROUGH ITS CANADA BRANCH
By /s/ Xxxxxx
Xxx
Name:
Xxxxxx Xxx
Title:
Vice President
Bank of
America, N.A., acting through its Canada branch
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxx
X0X 0X0
Xxxxxx
Signature
Page to Amendment No. 4 to Credit Agreement