1
EXHIBIT 10.1
LIMITED FORBEARANCE AGREEMENT AND
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS LIMITED FORBEARANCE AGREEMENT AND FOURTH AMENDMENT TO CREDIT
AGREEMENT (this "Fourth Amendment"), dated as of August 1, 2001, is entered into
among LLS CORP., an Illinois corporation (the "Borrower"), the institutions
listed on the signature pages hereof that are parties to the Credit Agreement
defined below, BANK OF AMERICA, N.A., as administrative agent (in said capacity,
the "Administrative Agent"), CREDIT SUISSE FIRST BOSTON, as syndication agent
(in said capacity, the "Syndication Agent"), and BANKERS TRUST COMPANY, as
documentation agent (the "Documentation Agent").
BACKGROUND
A. The Borrower, the Lenders, the Documentation Agent, the Syndication
Agent, and the Administrative Agent are parties to that certain Credit
Agreement, dated as of July 30, 1999, as amended by that certain First Amendment
to Credit Agreement, dated as of September 15, 1999, that certain Second
Amendment to Credit Agreement dated as of December 31, 1999, and that certain
Third Amendment to Credit Agreement, dated as of September 8, 2000 (as the same
has been or may be amended, restated or modified from time to time, the "Credit
Agreement").
B. The Borrower has requested that the Lenders forbear from exercising
certain rights available to them as a result of the existing defaults by the
Borrower, and the Determining Lenders have agreed to do so on the terms set
forth herein, and furthermore the Borrower, the Determining Lenders, and the
Administrative Agent desire to make certain amendments to the Credit Agreement.
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are all hereby acknowledged, the Borrower, the
Determining Lenders, and the Administrative Agent covenant and agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. Capitalized terms used in this Fourth
Amendment, to the extent not otherwise defined herein, shall have the same
meanings as in the Credit Agreement, as amended hereby.
2
ARTICLE II
Amendments
Section 2.1 Amendment to Defined Terms in Section 1.1. Effective as of
the date hereof, the following definitions in Section 1.1 of the Credit
Agreement are amended and restated to read in their entirety as follows:
"Applicable Base Rate Margin" means for all Advances, 2.25%.
"Applicable Law" means (a) in respect of any Person, all
provisions of constitutions, statutes, rules, regulations and orders of
governmental bodies or regulatory agencies applicable to such Person and
its properties, including, without limiting the foregoing, all orders
and decrees of all courts and arbitrators in proceedings or actions to
which the Person in question is a party, and (b) in respect of contracts
relating to interest or finance charges that are made or performed in
the State of New York, "Applicable Law" shall mean the laws of the
United States of America, including, without limitation, 12 USC Sections
85 and 86(a), as amended from time to time, and any other statute of the
United States of America now or at any time hereafter prescribing the
maximum rates of interest on loans and extensions of credit, and the
laws of the State of New York.
"Applicable LIBOR Rate Margin" means for all Advances, 3.50%.
"Financial Advisor" has the meaning specified in Section 6.10.
"Fourth Amendment" means that certain Limited Forbearance
Agreement and Fourth Amendment to Credit Agreement dated as of August 1,
2001, among the Borrower, the Administrative Agent, and the Determining
Lenders.
"Interest Period" means the period beginning on the day any LIBOR
Advance is made and ending one, two or three months thereafter (as the
Borrower shall select); provided, however, that all of the foregoing
provisions are subject to the following:
(a) if any Interest Period which would otherwise end on a
day which is not a Business Day, such Interest Period shall be
extended to the next succeeding Business Day, unless the result
of such extension would be to extend such Interest Period into
another calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day;
(b) any Interest Period that begins on the last Business
Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a
calendar month; and
(c) there shall be outstanding at any one time no more
than ten Interest Periods in the aggregate.
-2-
3
"Payment Date" means the last day of the Interest Period for any
LIBOR Advance; provided, however, if the Interest Period for any LIBOR
Advance exceeds one month, "Payment Date" shall also mean each day which
is one month after the first day of such Interest Period.
"Permitted Liens" means, as applied to any Person:
(a) Any Lien in favor of the Lenders or the Administrative
Agent to secure the Obligations hereunder;
(b) (i) Liens on real estate for ad valorem taxes not yet
delinquent, (ii) Liens on leasehold interests created by the
lessor in favor of any mortgagee of the leased premises, and
(iii) Liens for taxes, assessments, governmental charges, levies
or claims not yet delinquent, or in each case for clauses (i) and
(iii) that are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall
have been set aside on such Person's books in accordance with
GAAP, but only so long as no foreclosure, restraint, sale or
similar proceedings have been commenced with respect thereto that
has not been stayed;
(c) Liens of carriers, landlords, warehousemen, mechanics,
laborers and materialmen and other similar Liens incurred in the
ordinary course of business for sums not overdue for a period of
more than 60 days or being contested in good faith, if such
reserve or appropriate provision, if any, as shall be required by
GAAP shall have been made therefor;
(d) (i) Liens incurred in the ordinary course of business
in connection with worker's compensation, unemployment insurance
or similar legislation and (ii) deposits to secure the
performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, insurance contracts,
surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business;
(e) Easements, right-of-way, restrictions and other
similar encumbrances on the use of real property which do not
materially interfere with the ordinary conduct of the business of
such Person or which are set forth in any title policy or "marked
up" commitment thereof delivered pursuant hereto and reasonably
acceptable to the Administrative Agent;
(f) Liens created to secure the purchase price of assets
acquired by such Person or created to secure Indebtedness
permitted by Section 7.1(c), (l) or (n) hereof, which is incurred
solely for the purpose of financing the acquisition of such
assets and incurred at the time of acquisition or within 90 days
thereafter, so long as each such Lien shall at all times be
confined solely to the asset or assets so acquired (and proceeds
thereof), and refinancings, refundings, renewals or extensions
thereof so long as any such Lien remains solely on the asset or
assets acquired and the amount of Indebtedness related thereto is
not increased;
-3-
4
(g) Liens in respect of judgments or awards not
constituting an Event of Default under Section 8.1(h) hereof;
(h) Any Liens which are described on Schedule 1.1(c)
hereto, and Liens resulting from the refinancing, renewal,
refunding, or extension of the related Indebtedness, provided
that the Indebtedness secured thereby shall not be increased and
the Liens shall not cover additional assets of the Borrower
(other than after-acquired title in or on such property and
proceeds of the existing collateral in accordance with the
document creating such Lien);
(i) Liens arising from precautionary UCC financing
statements with respect to operating leases or consignment
arrangements in the ordinary course of business;
(j) Liens in favor of banking institutions arising by
operation of law encumbering deposits (including the right of
setoff) held by such banking institution incurred in the ordinary
course of business and which are within the general parameters
customary in the banking industry;
(k) Liens existing on any property or asset at the time of
acquisition thereof by the Borrower and its Subsidiaries or
existing on the property or assets of any Person that becomes a
Subsidiary after the Agreement Date at the time such Person
becomes a Subsidiary (provided, that (x) such Lien is not created
in contemplation of or in connection with such acquisition or
such Person becoming a Subsidiary, as the case may be, (y) such
Lien shall not apply to any other property or assets of the
Borrower or its Subsidiaries and (z) such Lien shall secure only
those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the
case may be);
(l) any obligations or duties affecting any of the
property of the Borrower or its Subsidiaries to any municipality
or public authority with respect to any franchise, grant, license
or permit which do not materially impair the use of such property
for the purposes for which it is held and do not materially
impair the value of the Collateral;
(m) Liens on property of the Borrower and its Subsidiaries
in favor of landlords securing licenses, subleases and leases
permitted hereunder and not interfering in any material respect
with the business of the Borrower or any of its Subsidiaries;
(n) Licenses, leases or subleases permitted hereunder
granted to others but not interfering in any material respect
with any rights to the Collateral or with the business of the
Borrower or any of its Subsidiaries;
(o) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, insurance contracts,
-4-
5
surety and appeal bonds, performance bonds and other obligations
of a like nature incurred in the ordinary course of business;
(p) Any interest or title of a lessor under any lease
entered into by the Borrower or any of its Subsidiaries in the
ordinary course of its business and covering only the assets so
leased;
(q) Liens not otherwise permitted hereunder which secure
obligations not to exceed $10,000,000 in aggregate amount
outstanding at any time; provided that the Liens secure only such
Indebtedness which would otherwise be permitted pursuant to
Section 7.1(c) or (n) hereof but for the limitations on the
amount of such Indebtedness set forth therein; and
(r) Liens in respect of Indebtedness permitted under
Section 7.11(p).
"Recovery Event" means any settlement of or payment in respect of
any property insurance or casualty insurance claim or any condemnation
proceeding in or deed in lieu thereof relating to any Collateral.
"Revolving Credit Commitment" means $20,800,000 as reduced or
terminated pursuant to Sections 2.6 or 8.2 hereof.
"Subject Event" has the meaning specified in the Fourth
Amendment.
Section 2.2 Amendments to Sections 2.2(a), (b) and (c). Effective as of
the date hereof, Sections 2.2(a), (b) and (c) of the Credit Agreement are
amended and restated to read in their entirety as follows:
(a) Base Rate Advances. In the case of Base Rate Advances (other
than Swing Line Advances), the Borrower, through an Authorized
Signatory, shall give the Administrative Agent prior to 12:00 noon,
Charlotte, North Carolina time, on the date of any proposed Base Rate
Advance irrevocable written notice in substantially the form of Exhibit
K hereto (a "Notice of Borrowing") of its intention to borrow or
reborrow a Base Rate Advance hereunder. Such Notice of Borrowing shall
(i) specify the requested funding date, which shall be a Business Day,
the amount of the proposed aggregate Base Rate Advances to be made by
the Lenders, and whether such Advance is a Revolving Credit Advance,
Facility A Term Loan Advance or Facility B Term Loan Advance, and (ii)
confirm that no Default or Event of Default has occurred and is
continuing.
(b) LIBOR Advances. In the case of LIBOR Advances, the Borrower,
through an Authorized Signatory, shall give the Administrative Agent at
least three Business Days' irrevocable written notice pursuant to a
Notice of Borrowing, of its intention to borrow or reborrow a LIBOR
Advance hereunder. Notice shall be given to the Administrative Agent
prior to 12:00 noon, Charlotte, North Carolina time, in order for such
Business Day to count toward the minimum number of Business Days
required. LIBOR Advances shall in all cases be subject to availability
and to Article 9 hereof. For LIBOR Advances, the Notice of Borrowing
shall (i) specify the requested funding date,
-5-
6
which shall be a Business Day, the amount of the proposed aggregate
LIBOR Advances to be made by Lenders, whether such Advance is a
Revolving Credit Advance, Facility A Term Loan Advance or Facility B
Term Loan Advance, and the Interest Period selected by the Borrower,
provided that no such Interest Period shall extend past the Revolving
Commitment Maturity Date, the Facility A Term Loan Maturity Date or the
Facility Term B Loan Maturity Date, as appropriate, or prohibit or
impair the Borrower's ability to comply with Section 2.5 or 2.8 hereof
and (ii) confirm that no Default or Event of Default has occurred and is
continuing.
(c) Swing Line Advances. In the case of Swing Line Advances, the
Borrower, through an Authorized Signatory, shall give the Swing Line
Bank and the Administrative Agent prior to 2:00 p.m., Charlotte, North
Carolina time, on the date of any proposed Swing Line Advance
irrevocable written notice pursuant to a Notice of Borrowing, of its
intention to borrow or reborrow a Swing Line Advance. Such Notice of
Borrowing shall (i) specify the requested funding date, which shall be a
Business Day and the amount of the proposed Swing Line Advance and (ii)
confirm that no Default or Event of Default has occurred and is
continuing.
Section 2.3 Amendment to Section 2.2(d). Effective as of the date
hereof, the second sentence of Section 2.2(d) of the Credit Agreement is amended
and restated to read in its entirety as follows:
Not later than 12:00 noon, Charlotte, North Carolina time on the date of
any proposed continuation of or a conversion to a Base Rate Advance and
not later than 12:00 noon, Charlotte, North Carolina time at least three
Business Days prior to any proposed continuation of or conversion to a
LIBOR Advance, the Borrower, through an Authorized Signatory, shall give
the Administrative Agent irrevocable written notice in substantially the
form of Exhibit L hereto (a "Notice of Continuation/Conversion"),
stating (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount of the Advance to be converted/continued,
(iii) in the case of a conversion to, or a continuation of, a LIBOR
Advance, the requested Interest Period, and (iv) in the case of a
conversion of a Base Rate Advance to a LIBOR Advance or a continuation
of a LIBOR Advance, stating that no Event of Default has occurred and is
continuing.
Section 2.4 Amendment to Section 2.3(a)(ii). Effective as of the date
hereof, Section 2.3(a)(ii) of the Credit Agreement is amended and restated to
read in its entirety as follows:
(ii) Subject to Section 11.9 hereof, interest on the Base Rate
Advances shall be computed on the basis of a year of 365 or 366 days, as
applicable, for the number of days actually elapsed and shall be payable
in arrears on the last Business Day of each calendar month, and on the
Revolving Commitment Maturity Date, the Facility A Term Loan Maturity
Date or the Facility B Term Loan Maturity Date, as appropriate.
Section 2.5 Amendment to 2.3(c)(ii). Effective as of the date hereof,
Section 2.3(c)(ii) of the Credit Agreement is amended and restated to read in
its entirety as follows:
-6-
7
(ii) Subject to Section 11.9 hereof, interest on Swing Line
Advances shall be computed on the basis of a 365 or 366-day year, as
applicable, for the actual number of days elapsed, and shall be payable
in arrears on the last Business Day of each calendar month, and on the
Revolving Commitment Maturity Date.
Section 2.6 Amendment to Section 2.3(e)(i). Effective as of the date
hereof, the reference to the phrase "Event of Default specified in Section
8.1(b) hereof" in Section 2.3(e)(i) of the Credit Agreement is deleted and the
reference to the phrase "Event of Default has occurred" is inserted in lieu
thereof.
Section 2.7 Amendment to Section 2.5. Effective as of the date hereof,
Section 2.5(b) of the Credit Agreement is amended to amend and restate in their
entirety subsections (ii) and (iv) thereof and to add thereto subsection (vi)
and (vii) to read as follows:
(ii) Prepayments from Sales of Assets. Within 10 Business Days of
the receipt of Net Cash Proceeds from the sale or disposition by the
Borrower or any of its Subsidiaries of any assets (including the Capital
Stock of any Subsidiary) (other than any such sales or dispositions
permitted without compliance herewith under clauses (a) through (g) of
Section 7.5 hereof), the Borrower shall prepay Facility A Term Loan
Advances and Facility B Term Loan Advances in an aggregate principal
amount equal to 100% of such Net Cash Proceeds received. Each such
prepayment shall be applied as provided in Section 2.5(c) hereof.
(iv) Prepayment from Recovery Events. Within 10 Business Days
after receipt of Net Cash Proceeds by the Borrower or any of its
Subsidiaries from any Recovery Event, unless a Reinvestment Notice shall
have been delivered in respect thereof, the Borrower shall prepay
Facility A Term Loan Advances and Facility B Term Loan Advances in an
aggregate principal amount of 100% of such Net Cash Proceeds received,
provided that if a Reinvestment Notice shall have been delivered in
respect thereof, an amount equal to the Reinvestment Prepayment Amount
with respect to the relevant Reinvestment Event shall be applied to
payment of the Advances on the Reinvestment Prepayment Date unless the
Determining Lenders shall otherwise consent in writing. Each such
prepayment shall be applied as provided in Section 2.5(c) hereof.
Notwithstanding the foregoing, from and after August 1, 2001, Borrower
may only deliver a Reinvestment Notice in respect of Net Cash Proceeds
equal to or less than $5,000,000 at any time pending reinvestment
pursuant to a Reinvestment Notice.
(vi) Prepayment from Sales of Capital Stock. Concurrently with
the receipt of Net Cash Proceeds from the sale or disposition by the
Borrower or any of its Subsidiaries to any Person (other than to the
Borrower or any of its Subsidiaries) of any Capital Stock of the
Borrower, the Borrower shall prepay the Facility A Term Loan Advances
and the Facility B Term Loan Advances in an aggregate principal amount
equal to 100% of such Net Cash Proceeds received. Each such prepayment
shall be applied as provided in Section 2.5(c) hereof.
(vii) Prepayment from Litigation Proceeds. Concurrently with the
receipt of any monies from the settlement, release from escrow,
collection or otherwise in respect
-7-
8
of pending and/or threatened litigation claims by the Borrower or any of
its Subsidiaries, the Borrower shall prepay Facility A Term Loan
Advances and Facility B Term Loan Advances in an aggregate principal
amount equal to 100% of such monies received less expenses incurred in
the collection thereof. Each such prepayment shall be applied as
provided in Section 2.5(c) hereof.
Section 2.8 Amendment to Section 2.16(c). Effective as of the date
hereof, the first sentence of Section 2.16(c) of the Credit Agreement is amended
and restated to read in its entirety as follows:
The Borrower will pay to the Issuing Bank an amount equal to each draft
drawn under any Letter of Credit (x) on the Business Day of such drawing
if presented by noon (Charlotte, North Carolina time) and (y) by 11:00
a.m.(Charlotte, North Carolina time) on the first Business Day
thereafter if presented after noon (Charlotte, North Carolina time).
Section 2.9 Amendment to Article 4. Effective as of the date hereof, a
new Section 4.1(x) is hereby added to the Credit Agreement to read as follows:
(x) Collateral. Pursuant to the Loan Documents, the Borrower and
its Subsidiaries have granted to the Administrative Agent for the
benefit of the Lenders perfected Liens upon all or substantially all of
their respective assets.
Section 2.10 Amendment to Section 5.7. Effective as of the date hereof,
Section 5.7 of the Credit Agreement is amended and restated to read in its
entirety as follows:
Section 5.7 Visits and Inspections. The Borrower shall, and shall
cause each of its Subsidiaries to, permit representatives of the
Administrative Agent or any Lender from time to time after reasonable
notice by the Administrative Agent or any Lender to (a) visit and
inspect the properties of the Borrower and its Subsidiaries (i) as often
as the Administrative Agent or any Lender shall reasonably deem
advisable, and (ii) at reasonable times, (b) audit, inspect and make
extracts from and copies of the Borrower's and each such Subsidiary's
books and records, and (c) discuss with the Borrower's and each such
Subsidiary's directors, officers, employees and auditors its business,
assets, liabilities, financial positions, results of operations and
business prospects, provided that the Administrative Agent or such
Lender shall notify the Borrower prior to any contact with such auditors
and give the Borrower the opportunity to participate in such
discussions. The Borrower shall pay the reasonable expenses related to
inspections and audits performed by the Administrative Agent. Prior to
the occurrence of an Event of Default, all such visits and inspections
shall be conducted during normal business hours and, other than visits
and inspections by the Administrative Agent and/or any financial advisor
to the Administrative Agent, shall not be conducted more often than once
per fiscal quarter. Following the occurrence and during the continuance
of an Event of Default, such visits and inspections shall be conducted
at any time requested by the Administrative Agent or any Lender without
any requirement for advance notice.
Section 2.11 Amendment to Section 5.11. Effective as of the date hereof,
Section 5.11 of the Credit Agreement is amended and restated to read in its
entirety as follows:
-8-
9
Section 5.11 Further Assurances. At any time or from time to time
upon reasonable request by the Administrative Agent, the Borrower or any
of its Subsidiaries shall execute and deliver such further documents and
do such other acts and things as the Administrative Agent may reasonably
request in order to effect fully the purposes of this Agreement and the
other Loan Documents and to provide for payment of the Obligations in
accordance with the terms of this Agreement and the other Loan
Documents. At the time of delivery of the financial statements set forth
in Sections 6.1. 6.2 and 6.8 hereof, if the information provided therein
has changed since the last delivery thereof, the Borrower agrees to
update and deliver to the Administrative Agent Schedule 4.1(a) hereto
(with respect to the identities, jurisdictions of organization and
ownership of the Borrower's Subsidiaries). The Borrower agrees to update
the information on Schedule 2 to the Security Agreements promptly upon
discovery that the information provided therein is not complete and
correct in all material respects. On or before August 31, 2001, the
Borrower agrees to execute and deliver, or cause its Subsidiaries to
execute and deliver, to the Administrative Agent Deeds of Trust, in
substantially the form of Exhibit I hereto with respect to any fee owned
real property now owned or hereafter acquired by the Borrower or any
Subsidiary, as applicable, with a fair market value in excess of (a)
$500,000 at any time or (b) $2,000,000 in the aggregate at any time,
together with any existing surveys and environmental reports in form
reasonably satisfactory to the Administrative Agent and title insurance
thereon in form and amount (not to exceed the fair market value thereof)
reasonably satisfactory to the Administrative Agent, and such board
resolutions, officer's certificates, corporate and other documents and
opinions of counsel as the Administrative Agent shall reasonably request
with respect thereto.
Section 2.12 Addition to Article 5. Effective as of the date hereof, a
new Section 5.13 is added to Article 5 of the Credit Agreement to read in its
entirety as follows:
Section 5.13 Deposit and Operating Accounts. The Borrower and its
Subsidiaries shall (a) maintain all of their operating, deposit and all
other accounts with any Lender which is a financial institution and (b)
execute such documents, instruments and agreements as shall be
reasonably necessary to confirm the first priority perfected security
interest of the Administrative Agent for the benefit of the Lenders in
such accounts and all amounts on deposit therein.
Section 2.13 Amendment to Section 6.3. Effective as of the date hereof,
Section 6.3 of the Credit Agreement is amended and restated to read in its
entirety as follows:
Section 6.3 Compliance Certificate. At the time financial
statements are furnished pursuant to Sections 6.1, 6.2 and 6.8 hereof,
the Compliance Certificate, completed as provided therein.
Section 2.14 Amendment to Section 6.4(a)(i). Effective as of the date
hereof, Section 6.4(a)(i) of the Credit Agreement is amended and restated to
read in its entirety as follows:
(i) all final management letters submitted to any Obligor by
accountants in connection with any annual, interim or special audit,
-9-
10
Section 2.15 Additions to Article 6. Effective as of the date hereof,
new Sections 6.8, 6.9, and 6.10 are added to Article 6 to read in their entirety
as follows:
Section 6.8 Monthly Financial Statements and Other Reports.
Within 30 days after the end of each calendar month unaudited
consolidated financial statements of the Borrower and its Subsidiaries
as of the end of such fiscal month and for the elapsed portion of the
year ended with the last day of such fiscal month, setting forth in
comparative form the figures for the corresponding period of the budget,
all in reasonable detail certified by the chief executive officer, chief
financial officer, vice president-finance, or other officer of the
Borrower reasonably acceptable to the Administrative Agent, to be, in
his or her opinion acting solely in his or her capacity as an officer of
the Borrower, complete and correct in all material respects and to
present fairly, in accordance with GAAP, the financial position, results
of operations, and cash flows of the Borrower and its Subsidiaries as of
the end of and for such fiscal month, and for the elapsed portion of the
year ended with the last day of such fiscal month, subject only to the
absence of footnotes and normal year-end adjustments.
Section 6.9 Weekly Reports and Business Plan. The Borrower will
deliver to the Administrative Agent the following financial reports:
(1) Effective as of August 7, 2001, the Borrower will deliver
on or before Wednesday of each week a 10-week rolling cash
flow forecast (including forecasting of receipts and
disbursements).
(2) Effective as of August 7, 2001, the Borrower will deliver
on or before Wednesday of each week a variance report
delineating all material variances from the prior week's
forecast of receipts and disbursements.
(3) On or before September 30, 2001, a satisfactory business
plan which includes a strategy for accomplishing repayment
in full of the Obligations.
Section 6.10 Due Diligence. The Borrower and its Subsidiaries
will at all times cooperate with the reasonable due diligence efforts of
PricewaterhouseCoopers LLP or such other Person as the Administrative
Agent may engage as its financial advisor (the "Financial Advisor"),
including the appraisals of certain fixed assets and the field audit to
be conducted, and legal counsel for the Administrative Agent.
Section 2.16 Amendment to Section 7.1(c). Effective as of the date
hereof, the reference to the dollar amount "$15,000,000" in Section 7.1(c) of
the Credit Agreement is deleted and a reference to the dollar amount
"$5,000,000," is inserted in lieu thereof.
Section 2.17 Amendment to Section 7.1(l). Effective as of the date
hereof, Section 7.1(l) of the Credit Agreement is amended and restated to read
in its entirety as follows:
(l) Indebtedness of all Foreign Subsidiaries of the Borrower for
working capital purposes and overdraft facilities in an aggregate amount
not to exceed the amounts outstanding on July 31, 2001;
-10-
11
Section 2.18 Amendment to Section 7.1(o). Effective as of the date
hereof, Section 7.1(o) of the Credit Agreement is amended and restated and
Section 7.1(p) is added to the Credit Agreement, each to read in its entirety as
follows:
(o) Other unsecured Indebtedness not to exceed $10,000,000 in the
aggregate at any time outstanding;
(p) Other Indebtedness not to exceed $10,000,000 in the aggregate
at any time outstanding, so long as such Indebtedness is provided by a
Lender and which Indebtedness may be secured by the Collateral on a pari
passu basis with respect to the Obligations but shall have a priority
claim upon any funds received (whether through settlement, release from
escrow, collection or otherwise) in respect of claims arising directly
or indirectly from the transactions contemplated by the Courtesy
Recapitalization or otherwise in connection with the purchase of the
Borrower and its Subsidiaries on or about July 30, 1999.
Section 2.19 Amendment to Section 7.3(d). Effective as of the date
hereof, Section 7.3(d) of the Credit Agreement is amended and restated to read
in its entirety as follows:
(d) Investments in (i) Domestic Subsidiaries which have complied
with Section 5.12 hereof, (ii)(A) to the extent made by an Obligor,
Foreign Subsidiaries which have the Borrower or a Domestic Subsidiary as
its direct parent 65% of whose Capital Stock shall be pledged to secure
the Obligations, (B) to the extent made by an indirect Foreign
Subsidiary, any Foreign Subsidiary and (C) to the extent made by an
Obligor or any direct Foreign Subsidiary, indirect Foreign Subsidiaries
not to exceed the aggregate amount outstanding as of August 1, 2001, and
(iii) the Borrower (including, in each of clauses (i) and (ii) any new
Subsidiary);
Section 2.20 Amendment to Section 7.3(j). Effective as of the date
hereof, Section 7.3(j) of the Credit Agreement is amended to add the following
phrase at the beginning thereof:
"On or prior to August 1, 2001,"
Section 2.21 Amendment to Section 7.3(k). Effective as of the date
hereof, Section 7.3(k) of the Credit Agreement is amended and restated to read
in its entirety as follows:
(k) Acquisitions completed on or before August 1, 2001.
Section 2.22 Amendment to Section 7.5. Effective as of the date hereof,
Section 7.5 of the Credit Agreement is amended and restated to read in its
entirety as follows:
Section 7.5 Sale of Assets. The Borrower shall not, and shall not
permit any of its Subsidiaries to, sell (including for discount or
otherwise), lease, transfer or otherwise dispose of assets, except (a)
sales of inventory sold in the ordinary course of business, (b) sales or
other dispositions of assets in the ordinary course of business in which
the Net Cash Proceeds thereof are used within ninety (90) days of the
date of disposition to purchase assets useful in the business of the
Borrower and its Subsidiaries, provided that
-11-
12
the aggregate amount of Net Cash Proceeds outstanding and pending
reinvestment pursuant to this clause (b) shall not exceed $2,500,000 at
any time outstanding, unless the Determining Lenders shall otherwise
consent in writing, provided further that any such Net Cash Proceeds not
reinvested within ninety (90) days after the date of disposition shall
be applied in accordance with Section 2.5(b)(ii) of this Agreement, (c)
sales of Cash and Cash Equivalents in the ordinary course of business,
(d) sales and dispositions (i) from the Borrower or any Domestic
Subsidiary to the Borrower or any other Domestic Subsidiary and (ii)
from any Foreign Subsidiary to the Borrower or any of its Subsidiaries,
(e) transfers resulting from any casualty or condemnation of property or
assets so long as the Net Cash Proceeds thereof are applied in
accordance with Section 2.5(b)(ii) of this Agreement, (f) the sale or
discount of overdue accounts receivable in the ordinary course of
business, in connection with the compromise or collection thereof, and
(g) licenses or sublicenses of intellectual property and general
intangibles and licenses, leases or subleases of other property in each
case in the ordinary course of business and which do not materially
interfere with the business of the Borrower and its Subsidiaries.
Section 2.23 Amendment to Section 7.6. Effective as of the date hereof,
Section 7.6 of the Credit Agreement is amended and restated to read in its
entirety as follows:
Section 7.6 Restricted Payments. The Borrower shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly
declare, pay or make any Restricted Payments, except (a) Dividends
payable by a Subsidiary to the Borrower or another Subsidiary, (b)
Dividends payable in stock and not cash, (c) regularly scheduled
payments of interest on the Senior Subordinated Notes, the Bridge Notes
or any Institutional Debt or dividends payable in kind on any Preferred
Stock in accordance with its terms, (d) Restricted Payments as the
result of the repurchase of the Capital Stock of the Borrower or other
securities of the Borrower from outside directors, employees or members
of management of the Borrower or any Subsidiary of the Borrower on or
prior to August 1, 2001, (e) Restricted Payments as a result of a
purchase of Capital Stock made in order to fulfill the obligations of
the Borrower or its Subsidiaries under an employee stock purchase plan
or similar plan covering employees of the Borrower or any Subsidiary as
from time to time in effect in an aggregate net amount not to exceed
$5,000,000 during the term of this Agreement, and (f) Restricted
Payments made pursuant to the Courtesy Recapitalization prior to August
1, 2001; provided, further, however, the Borrower shall not pay or make
any Restricted Payments permitted by this Section 7.6 unless there shall
exist no Default prior to or after giving effect to any such proposed
Restricted Payment.
Section 2.24 Amendment to Sections 8.1(d) and (k). Effective as of the
date hereof, Sections 8.1(d) and (k) of the Credit Agreement are amended and
restated to read in their entirety as follows:
(d) The Borrower or any of its Subsidiaries shall default in the
performance or observance of any other agreement or covenant contained
in this Agreement not specifically referred to elsewhere in this Section
8.1, and such default shall not be cured within a period of 30 days
after the earlier of (i) the date on which such failure or neglect
-12-
13
first becomes known to a senior officer of the Borrower or (ii) the
delivery of written notice of such breach by the Administrative Agent;
...
(k) The Borrower or any of its Subsidiaries shall default in any
payment in respect of Indebtedness beyond any grace period provided with
respect thereto, or shall default in the performance of any agreement or
instrument under which such Indebtedness is created or evidenced beyond
any applicable grace period, or any other event or condition shall occur
in respect of such Indebtedness, if the effect of such default, event or
condition is to permit or cause the holder of such Indebtedness (or a
trustee on behalf of any such holder) to cause such Indebtedness to
become due, repurchased or redeemed prior to its date of maturity,
provided that a default, event or condition of the type described above
in this Section 8.1(k) shall not constitute an Event of Default under
this Agreement unless, at such time, one or more defaults, events or
conditions of the type described above in this Section 8.1(k) shall have
occurred and be continuing with respect to Indebtedness the outstanding
amount of which exceeds in the aggregate $2,500,000;
Section 2.25 Amendment to Section 11.1(a)(ii). Effective as of the date
hereof, Section 11.1(a)(ii) of the Credit Agreement is amended and restated to
read in its entirety as follows:
(ii) If to the Administrative Agent, at:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxx
With a copy to: Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Agency Services
Section 2..26 Amendment to Section 11.2(a). Effective as of the date
hereof, Section 11.2(a) of the Credit Agreement is amended to add at the end
thereof the following:
(a) and financial advisors to the Administrative Agent.
Section 2.27 Amendment to Exhibit E and Exhibit K. Effective as of the
date hereof, all references to "Exhibit E and Exhibit K" in the Credit Agreement
are deemed to be references to the "Exhibit E and Exhibit K" attached hereto as
Exhibit E and Exhibit K.
-13-
14
ARTICLE III
Representations and Warranties
Section 3.1 By its execution and delivery hereof, the Borrower
represents and warrants that, as of the date hereof and after giving effect to
the amendments contemplated by the foregoing Article II:
(a) the representations and warranties contained in the Credit
Agreement and the other Loan Documents (other than those representations
and warranties that specifically relate to an earlier date or to the
Subject Events as such term is defined in Section 5.1 below) are true
and correct in all material respects on and as of the date hereof as
made on and as of such date;
(b) no event has occurred and is continuing which constitutes a
Default or an Event of Default other than the Subject Events;
(c) the Borrower has full corporate power and authority to
execute and deliver this Fourth Amendment, and this Fourth Amendment
constitutes the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable Debtor Relief Laws and by
general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law) and except as rights to
indemnity may be limited by federal or state securities laws;
(d) neither the execution, delivery and performance of this
Fourth Amendment nor the consummation of any transactions contemplated
herein will conflict with any material Applicable Law, the articles of
incorporation, bylaws or other governance document of the Borrower or
any of its Subsidiaries, or any material indenture, agreement or other
instrument to which the Borrower or any of its Subsidiaries or any of
their respective property may be bound;
(e) no authorization, approval, consent, or other action by,
notice to, or filing with, any governmental authority or other Person
(other than the Board of Directors of the Borrower or any Guarantor), is
required for the execution, delivery or performance by the Borrower of
this Fourth Amendment or the acknowledgment of this Fourth Amendment by
any Guarantor other than (i) those approvals and consents already
obtained, and (ii) consents under immaterial contractual obligations;
(f) the Borrower and its Subsidiaries have granted to the
Administrative Agent for the benefit of the Lenders a first priority
perfected security interest and Lien upon all or substantially all of
the real property and personal property of the Borrower and its Domestic
Subsidiaries, except for Permitted Liens; and
(g) attached hereto as Schedule 5.13 is a listing of all deposit
accounts of the Borrower and its Subsidiaries and the amounts on deposit
therein as of a date no earlier than June 30, 2001.
-14-
15
ARTICLE IV
Conditions Of Effectiveness
Section 4.1 Conditions. The effectiveness of this Fourth Amendment is
subject to the satisfaction of the following conditions precedent:
(a) the Administrative Agent shall receive counterparts of this
Fourth Amendment executed by the Determining Lenders;
(b) the Administrative Agent shall receive counterparts of this
Fourth Amendment executed by the Borrower and acknowledged by each
Guarantor;
(c) the Administrative Agent shall have received a certified
resolution of the Board of Directors of the Borrower authorizing the
execution, delivery and performance of this Fourth Amendment;
(d) the Administrative Agent shall have received an opinion of
counsel to the Borrower, in form and substance satisfactory to the
Administrative Agent;
(e) the Administrative Agent for the pro rata benefit of the
Lenders shall have received payment of all accrued and unpaid interest
on the outstanding Advances;
(f) the Administrative Agent shall receive payment of all
outstanding fees and expenses of counsel and consultants for the
Administrative Agent, including without limitation, the fees and
expenses of the Financial Advisor, Xxxxxxx Xxxxxxx and Xxxxxxx P.C. and
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. and retainers in the amount of $100,000
for the Financial Advisor and $50,000 for Winstead Xxxxxxxx & Xxxxxx
P.C.;
(g) the Administrative Agent shall receive copies of the
amendments to the Consulting Agreements which amend the Consulting
Agreements to provide that management, advisory, consulting and similar
fees owed to any Affiliate of the Borrower or any of its Subsidiaries
may be accrued but shall not be paid to such Affiliate;
(h) the Administrative Agent shall receive, in form and substance
satisfactory to the Administrative Agent and its counsel, such other
documents, certificates and instruments as the Administrative Agent
shall reasonably require; and
(i) the Administrative Agent shall have received an amendment to
the Security Agreement and additional UCC-1 Financing Statements in form
and substance satisfactory to it.
Section 4.2 Amendment Fee. Provided this Fourth Amendment becomes
effective, the Borrower covenants and agrees to pay an amendment fee to the
Administrative Agent on behalf of the Lenders which execute and deliver this
Fourth Amendment to the Administrative Agent (or its counsel) on or before 10:00
a.m. Central Daylight time on August 3, 2001, in an amount equal to the product
of (a) 0.20% multiplied by (b)(i) with respect to each Lender having a portion
of the Revolving Credit Commitment, an amount equal to such Lender's portion of
the
-15-
16
Revolving Credit Commitment after giving effect to this Fourth Amendment, and
(ii) with respect to each Lender which is owed Facility A Term Loan Advances or
Facility B Term Loan Advances, the aggregate principal amount of Facility A Term
Loan Advances and Facility B Term Loan Advances owed to such Lender on the date
of this Fourth Amendment. Such amendment fee shall be earned and due and payable
on August 1, 2001, and shall be paid in immediately available funds, but payment
thereof shall be deferred until October 31, 2001. The Borrower agrees that the
failure to pay the amendment fee provided in this Section 4.2 shall be an Event
of Default under Section 8.1(b)(ii) of the Credit Agreement.
Section 4.3 Guarantor Acknowledgment. By signing below, each of the
Guarantors (i) acknowledges, consents and agrees to the execution and delivery
of this Fourth Amendment, (ii) acknowledges and agrees that its obligations in
respect of its Subsidiary Guaranty are not released, diminished, waived,
modified, impaired or affected in any manner by this Fourth Amendment or any of
the provisions contemplated herein, (iii) ratifies and confirms its obligations
under its Subsidiary Guaranty, and (iv) acknowledges and agrees that it has no
claims or offsets against, or defenses or counterclaims to, its Subsidiary
Guaranty solely as a result of the execution and delivery of this Fourth
Amendment.
ARTICLE V
Limited Forbearance and Other Agreements
Section 5.1 Forbearance. The Borrower has requested that the
Administrative Agent and the Lenders forbear from exercising the rights and
remedies available to them with respect to the Borrower and its Subsidiaries as
a result of the Subject Events (hereinafter defined) during the period from the
date hereof to and including October 31, 2001. The Administrative Agent and the
Determining Lenders hereby agree to forbear from instituting the Default Rate,
prohibiting Advances from being continued as or converted into LIBOR Advances,
and exercising the rights and remedies available to them with respect to the
Borrower and its Subsidiaries as a result of the Subject Events, other than
Blockage Rights, from the date hereof to and including October 31, 2001, subject
to the terms of this Agreement and subject to the occurrence of no further Event
of Default. Upon the earlier of (i) the occurrence of any Event of Default,
other than as a result of the Subject Events, (ii) the commencement of any
collection action by the holders of the Senior Subordinated Notes or any trustee
or representative thereof, or (iii) October 31, 2001, the Administrative Agent's
and the Determining Lenders' agreement herein to forbear from instituting the
Default Rate, prohibiting Advances from being continued as or converted into
LIBOR Advances, and exercising the rights and remedies available to them with
respect to the Borrower and its Subsidiaries as the result of the Subject Events
(other than Blockage Rights) shall at the option of the Determining Lenders
immediately terminate, and the Administrative Agent and the Lenders shall be
entitled immediately to exercise any and all rights and remedies available under
the Credit Agreement and any other Loan Document, at law, in equity, or
otherwise, without notice, demand, presentment, notice of dishonor, notice of
acceleration, notice of intent to accelerate, protest, or other formalities of
any kind, all of which are hereby expressly waived by the Borrower. The Borrower
hereby acknowledges its noncompliance with the Credit Agreement as a result of
the Subject Events, acknowledges the existence of an Event of Default, and
acknowledges that this Fourth Amendment constitutes
-16-
17
notice thereof and waives any and all further notices with respect thereto. The
agreement of the Administrative Agent and the Determining Lenders herein shall
not constitute a waiver of any Default including without limitation the Subject
Events. As used herein, the "Subject Events" means the failure of the Borrower
to comply with the provisions of the Loan Documents described on Schedule 1
hereto for the periods described on Schedule 1. The parties hereto expressly
acknowledge and agree that the agreements of the Administrative Agent and the
Determining Lenders herein shall not in any manner restrict or impair any rights
or remedies available to them with respect to any Persons (including without
limitation the right to send a Blockage Notice, as defined in the Indenture
dated July 30, 1999, pursuant to which the Senior Subordinated Notes were
issued, with respect to the Senior Subordinated Notes) other than the Borrower
and its Subsidiaries (collectively, "Blockage Rights") as a result of the
Defaults which result from the Subject Events.
Section 5.2 Interest Periods. Notwithstanding anything to the contrary
contained herein or in the Credit Agreement, no Interest Period may extend
beyond October 31, 2001, so long as the Subject Events continue to exist as
Defaults.
Section 5.3 Direction to Administrative Agent. Determining Lenders
hereby provide notice to the Administrative Agent that as a result of the
existing Events of Default, the Administrative Agent is hereby delivered notice
of its obligation to apply payments received in accordance with Section
2.10(d)(ii). Determining Lenders hereby direct the Administrative Agent to
execute such documents as shall be necessary to enable the Borrower to incur the
Indebtedness contemplated by Section 7.1(p) of the Credit Agreement, including
without limitation execution of documents (i) subordinating the Lien which
secures the Obligations upon the claims arising directly or indirectly from the
transactions contemplated by the Courtesy Recapitalization or otherwise in
connection with the acquisition of the Borrower and its Subsidiaries on or about
July 30, 1999, to the Lien thereon which secures the Indebtedness contemplated
by Section 7.1(p) of the Credit Agreement, (ii) granting or consenting to a pari
passu Lien upon the Collateral as security for the Indebtedness contemplated by
Section 7.1(p) of the Credit Agreement, and (iii) in respect of intercreditor
arrangements with any Lender of the Indebtedness contemplated by Section 7.1(p)
of the Credit Agreement.
Section 5.4 Additional Advances; Termination of Swing Line Facility. The
Borrower hereby acknowledges and agrees that as of the date hereof the Lenders
shall have no further obligation to make Advances or issue Letters of Credit
under the Credit Agreement, and that any and all payments made after the date
hereof, to the extent applied to the Revolving Credit Advances, shall constitute
permanent reductions in the Revolving Credit Commitment. The Borrower
acknowledges and agrees that as of August 1, 2001, the Swing Line Bank shall
have no further obligation to make Swing Line Advances. Effective as of the date
hereof, all outstanding Swing Line Advances shall be refunded as Revolving
Credit Advances.
-17-
18
ARTICLE VI
Miscellaneous
Section 6.1 Reference To The Credit Agreement.
(a) Upon the effectiveness of this Fourth Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", or
words of like import shall mean and be a reference to the Credit
Agreement, as amended by this Fourth Amendment.
(b) The Credit Agreement, as amended by this Fourth Amendment,
and all other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(c) This Fourth Amendment is a Loan Document and shall be subject
to the terms and provisions of the Credit Agreement applicable to Loan
Documents.
Section 6.2 Costs and Expenses. The Borrower hereby agrees to pay when
due the fees and expenses provided for in Section 11.2 of the Credit Agreement.
Section 6.3 Indemnification. THE BORROWER AND EACH GUARANTOR HEREBY
AGREE TO INDEMNIFY THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE
DOCUMENTATION AGENT, THE CO-AGENTS AND EACH LENDER AND EACH AFFILIATE THEREOF
AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS FROM,
AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS,
DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH
DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (a) THE NEGOTIATION, EXECUTION,
DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN
DOCUMENTS, (b) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (c)
ANY BREACH BY THE BORROWER OR ANY GUARANTOR OF ANY REPRESENTATION, WARRANTY,
COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (d) THE
PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY
HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES
OR ASSETS OF THE BORROWER, ANY GUARANTOR OR ANY OF THEIR SUBSIDIARIES, (e) THE
USE OR PROPOSED USE OF ANY LETTER OF CREDIT, (f) ANY AND ALL TAXES, LEVIES,
DEDUCTIONS, AND CHARGES IMPOSED ON THE ADMINISTRATIVE AGENT, OR ANY OF THE
ADMINISTRATIVE AGENT'S CORRESPONDENTS IN RESPECT OF ANY LETTER OF CREDIT, OR (g)
ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING
RELATING TO ANY OF THE FOREGOING AND ANY LEGAL PROCEEDING RELATING TO ANY COURT
ORDER, INJUNCTION OR OTHER PROCESS OR DECREE RESTRAINING OR SEEKING TO RESTRAIN
THE ADMINISTRATIVE AGENT FROM PAYING ANY AMOUNT UNDER
-18-
19
ANY LETTER OF CREDIT. WITHOUT LIMITING ANY PROVISION OF THE CREDIT AGREEMENT OR
OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO
THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE INDEMNIFIED FROM
AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES,
PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES) ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH PERSON; PROVIDED HOWEVER, NO PERSON SHALL BE INDEMNIFIED
HEREUNDER FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. The provisions of
this Section 6.3 shall survive the termination of the Credit Agreement and this
Fourth Amendment.
Section 6.4 Waiver and Release. IN ADDITION, TO INDUCE THE
ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE DOCUMENTATION AGENT, THE
CO-AGENTS AND THE LENDERS TO AGREE TO THE TERMS OF THIS FOURTH AMENDMENT, THE
BORROWER AND EACH GUARANTOR (BY THEIR EXECUTION BELOW) REPRESENT AND WARRANT
THAT AS OF THE DATE OF THEIR EXECUTION OF THIS FOURTH AMENDMENT THERE ARE NO
CLAIMS OR OFFSETS AGAINST OR DEFENSES OR COUNTERCLAIMS TO THEIR RESPECTIVE
OBLIGATIONS UNDER THE LOAN DOCUMENTS. NOTWITHSTANDING THE FOREGOING, IN THE
EVENT THERE EXIST ANY SUCH CLAIMS, THE BORROWER AND EACH GUARANTOR (BY THEIR
EXECUTION BELOW):
(a) WAIVER. WAIVE ANY AND ALL CLAIMS, OFFSETS, DEFENSES OR
COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF
THEIR EXECUTION OF THIS FOURTH AMENDMENT AND
(b) RELEASE. RELEASE AND DISCHARGE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT, THE DOCUMENTATION AGENT, THE CO-AGENTS AND THE
LENDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED
PARTIES") FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES,
CLAIMS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH THE BORROWER
AND EACH GUARANTOR EVER HAD, NOW HAVE, CLAIMS TO HAVE OR MAY HAVE
AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND FROM OR
IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREBY.
The provisions of this Section 6.4 shall survive termination of the Credit
Agreement and this Fourth Amendment.
Section 6.5 Execution in Counterparts. This Fourth Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken
-19-
20
together shall constitute but one and the same instrument. Signatures
transmitted by facsimile shall be effective as originals.
Section 6.6 Governing Law; Binding Effect. This Fourth Amendment shall
be governed by and construed in accordance with the Laws of the State of New
York without regard to the principles of the conflicts of Laws and the
applicable federal Laws and shall be binding upon the Borrower, the
Administrative Agent, the Syndication Agent, the Documentation Agent and each
Lender and their respective successors and assigns.
Section 6.7 Headings. Section headings in this Fourth Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Fourth Amendment for any other purpose.
Section 6.8 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY
AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. THIS
PROVISION IS A MATERIAL INDUCEMENT TO EACH LENDER ENTERING INTO THIS FOURTH
AMENDMENT.
Section 6.9 Entire Agreement. THE CREDIT AGREEMENT, AS AMENDED BY THIS
FOURTH AMENDMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
================================================================================
REMAINDER OF PAGE LEFT INTENTIONALLY BLANK
================================================================================
-20-
21
IN WITNESS WHEREOF, the parties hereto have executed this Fourth
Amendment as the date first above written.
LLS CORP.
By: /s/ XXX XXXXXXX
---------------------------------
Name: Xxx XxXxxxx
---------------------------
Title: Senior Vice President &
Chief Financial Officer
--------------------------------
BANK OF AMERICA, N.A., as Administrative
Agent and as a Lender
By: /s/ XXXXXX XXXXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxxxx
-------------------------------
Title: Managing Director
------------------------------
CREDIT SUISSE FIRST BOSTON, as Syndication
Agent and as a Lender
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: Vice President
------------------------------
By: /s/ XXXX X'XXXX
------------------------------------
Name: Xxxx X'Xxxx
-------------------------------
Title: Vice President
------------------------------
BANKERS TRUST COMPANY, as
Documentation Agent and as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
-21-
22
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a
Lender
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: Assistant Vice-President
------------------------------
BANK ONE, NA, as a Lender
By: /s/ XXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Corporate Banking Officer
------------------------------
BANK POLSKA KASA OPIEKI, as a Lender
By: /s/ XXXXXX XXXXXX
------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------
Title: Vice President
------------------------------
COMERICA BANK, as a Lender
By: /s/ XXXX X. XXXXXXXX
------------------------------------
Name: Xxxx X. XxXxxxxx
-------------------------------
Title: Vice President
------------------------------
DRESDNER BANK, AG, as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXXX XXXXX FUND, as a Lender
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
23
FLEET NATIONAL BANK, as a Lender
By: /s/ XXXXX X. XXXXXXXX
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
XXXXXX XXXXXXX PRIME INCOME TRUST,
as a Lender
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NATEXIS BANQUES POPULARIES, as a Lender
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE NORTHERN TRUST COMPANY, as a
Lender
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
--------------------------------
Title: Vice President
-------------------------------
US BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
----------------------------------
Title: Vice President
As Agent In Fact for
US Bank National Association
---------------------------------
24
XXX XXXXXX SENIOR FLOATING RATE
FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: Vice President
----------------------------
WASHINGTON MUTUAL BANK, FA (successor in
interest to Bank United of Texas, fsb), as
a Lender
By: /s/ Xxxx Xxx
-----------------------------------
Name: Xxxx Xxx
-----------------------------
Title: Assistant Vice President
----------------------------
XXXXX FARGO BANK, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: Senior Vice President
------------------------------
25
ACKNOWLEDGED, AGREED AND ACCEPTED:
COURTESY CORPORATION
By: /s/ Xxx XxXxxxx
------------------------------------
Name: Xxx XxXxxxx
-------------------------------
Title: Senior Vice President &
Chief Financial Officer
------------------------------------
CREATIVE PACKAGING CORP.
By: /s/ Xxx XxXxxxx
------------------------------------
Name: Xxx XxXxxxx
-------------------------------
Title: Senior Vice President &
Chief Financial Officer
------------------------------------
COURTESY SALES CORP.
By: /s/ Xxx XxXxxxx
------------------------------------
Name: Xxx XxXxxxx
-------------------------------
Title: Senior Vice President &
Chief Financial Officer
------------------------------------
26
SCHEDULE 1
Subject Events
1. Existing Events of Default by reason of the Borrower's failure to
comply with Section 7.8 (Leverage Ratio), and Section 7.9 (Interest Coverage
Ratio), for the Borrower's fiscal quarter ending June 30, 2001, and to make the
scheduled principal payment due on July 31, 2001, pursuant to Sections 2.8(b)
and 2.8(c).
2. An Event of Default under Section 8.1(k) of the Credit Agreement by
reason of the Borrower's failure to make the interest payment due on August 1,
2001, under the Senior Subordinated Notes, and by reason of the default with
respect to the Senior Subordinated Notes which arises by reason of the
Borrower's failure to pay when due the principal amounts of the Facility A Term
Loan Advances and of the Facility B Term Loan Advances due and payable on July
31, 2001.