SECOND AMENDMENT, dated as of December 31, 1998 (this "Second Amendment"), ---------------- to the Credit and Guarantee Agreement, dated as of June 26, 1997 (the "Credit ------ Agreement"), among Bush Industries, Inc., a Delaware corporation (the...
SECOND AMENDMENT
SECOND AMENDMENT, dated as of December 31, 1998 (this "Second Amendment"),
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to the Credit and Guarantee Agreement, dated as of June 26, 1997 (the "Credit
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Agreement"), among Xxxx Industries, Inc., a Delaware corporation (the
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"Company"), each Foreign Subsidiary Borrower (as defined in the Credit
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Agreement), (together with the Company, the "Borrowers"), Mellon Bank, N.A., as
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co-agent, the several banks and other financial institutions from time to time
parties thereto (the "Lenders") and The Chase Manhattan Bank, as administrative
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agent for the Lenders (in such capacity, the "Administrative Agent"), as amended
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by a First Amendment, dated as of August 17, 1998, among the Borrowers, Mellon
Bank, N.A., the Lenders and the Administrative Agent.
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrowers;
and
WHEREAS, the Borrowers have requested, and, upon this Second Amendment
becoming effective, the Lenders have agreed, that certain provisions of the
Credit Agreement be amended in the manner provided for in this Second Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used herein
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shall have the meanings given to them in the Credit Agreement.
II. Amendments to Credit Agreement.
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1. Amendments to Section 5. Subsection 5.4(a) of the Credit Agreement is
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hereby amended by deleting the last sentence therein and substituting in lieu
thereof the following:
Each such payment shall be made to the Issuing Lender at its address for
notices specified herein in the currency in which the applicable Letter of
Credit is denominated and in immediately available funds.
2. Amendments to Section 10. (a) Subsection 10.1 of the Credit
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Agreement is hereby amended by deleting said subsection in its entirety and
substituting in lieu thereof the following:
10.1 Consolidated Cash Flow Coverage Ratio. Permit the Consolidated
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Cash Flow Coverage Ratio for any period of an aggregate of four consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set forth
below to be less than the ratio set forth below opposite such fiscal
quarter:
2
Consolidated
Cash Flow
Consolidated Fiscal Quarter Coverage Ratio
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October 3, 1998 through 4.00 to 1.00
and including January 2, 1999
January 3, 1999 through 3.75 to 1.00
and including April 3, 1999
April 4, 1999 through 3.25 to 1.00
and including October 2, 1999
October 3, 1999 through 3.50 to 1.00
and including January 1, 2000
January 2, 2000 and thereafter 4.00 to 1.00
(b) Subsection 10.2 of the Credit Agreement is hereby amended by deleting
said subsection in its entirety and substituting in lieu thereof the following:
10.2 Consolidated Leverage Ratio. Permit the Consolidated Leverage
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Ratio as at the last day of any fiscal quarter set forth below to exceed
the ratio set forth below opposite such fiscal quarter:
Consolidated
Consolidated Fiscal Quarter Leverage Ratio
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October 3, 1998 through 4.00 to 1.00
and including October 2, 1999
October 3, 1999 through 3.50 to 1.00
and including September 30, 2000
October 1, 2000 and thereafter 3.00 to 1.00
3. Amendment to Annex I. Annex I of the Credit Agreement is hereby
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amended by deleting said Annex in its entirety and substituting in lieu thereof
a new Annex I in the form of Annex I to this Second Amendment.
4. Amendment to Schedule III. Section (f) of Schedule III of the Credit
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Agreement is hereby amended by deleting the references "2.2", "4.2", "6.4" and
"6.5" therein and substituting in lieu thereof the references "4.3" and "6.8".
III. Conditions to Effectiveness. This Second Amendment shall become
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effective on the date (the "Amendment Effective Date") on which (a) the Company,
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the Foreign Subsidiary Borrowers and the Lenders shall have executed and
delivered to the Administrative Agent this Second Amendment, (b) the
Administrative Agent shall have received, for the account of each Lender, a fee
in the amount of.125% of the aggregate amount of the Revolving Credit
Commitments of the Lenders, (c) the
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Administrative Agent shall have received a certified copy of resolutions of the
Board of Directors of the Company authorizing this Second Amendment and (d) the
Administrative Agent shall have received a satisfactory written legal opinion of
counsel to the Company covering such matters with respect to this Second
Amendment as the Administrative Agent shall reasonably request.
IV. Representations and Warranties. The representations and warranties
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made by the Borrowers in the Loan Documents are true and correct in all material
respects on and as of the Amendment Effective Date, before and after giving
effect to the effectiveness of this Second Amendment, as if made on and as of
the Amendment Effective Date.
V. Payment of Expenses. The Company agrees to pay or reimburse the
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Administrative Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with this Second Amendment, any other documents prepared
in connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
VI. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Credit Agreement and the
Notes are and shall remain in full force and effect.
VII. Governing Law; Counterparts. (a) This Second Amendment and the rights
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and obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
(b) This Second Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Second Amendment signed by all the
parties shall be lodged with the Company and the Administrative Agent. This
Second Amendment may be delivered by facsimile transmission of the relevant
signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
XXXX INDUSTRIES, INC.
By: /s/
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Title:
XXXX-XXXX GMBH & CO.,
as a Foreign Subsidiary Borrower
By: /s/
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Title:
BUSHVIOTECHNIK GESELLSCHAFT FUR
OBERFLACHENTECHNIK MBH,
as a Foreign Subsidiary Borrower
By: /s/
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Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
and a Lender
By: /s/
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Title:
MELLON BANK, N.A., as
Co-Agent and a Lender
By: /s/
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Title:
5
FIRST UNION NATIONAL BANK
By: /s/
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Title:
SUNTRUST BANK, ATLANTA
By: /s/
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Title:
By: /s/
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Title:
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/
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Title:
THE BANK OF NOVA SCOTIA
By: /s/
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Title:
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH
By: /s/
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Title:
By: /s/
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Title:
6
Annex I
Pricing Grid
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Consolidated Applicable Commitment
Leverage Ratio Margin Fee Rate
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Greater than 3.50 to 1.00 2.00% .40%
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Greater than 3.00 to 1.00 1.50% .30%
but Less than or equal
to 3.50 to 1.00
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Greater than 2.50 to 1.00 1.00% .20%
but Less than or equal
to 3.00 to 1.00
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Greater than 1.75 to 1.00 .75% .15%
but Less than or equal
to 2.50 to 1.00
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Greater than 1.50 to 1.00 .625% .125%
but Less than or equal
to 1.75 to 1.00
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Less than or equal
to 1.50 to 1.00 .50% .125%
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