ELEVENTH AMENDMENT
This ELEVENTH AMENDMENT, dated as of January 19, 1996, is
entered into by and among XXXX, INC. (formerly known as Xxxx Industries, Inc.)
(the "Borrower"), the financial institutions listed on the signature pages
hereof under the heading "Lenders" (collectively the "Lenders"), and CITICORP
USA, INC., a Delaware corporation, as Agent (the "Agent") for such Lenders.
PRELIMINARY STATEMENT. The Borrower has entered into a Credit
Agreement dated as of April 26, 1989, as amended by the First Amendment dated as
of July 21, 1989, the Second Amendment dated as of January 25, 1990, the Third
Amendment dated as of April 30, 1990, the Letter Amendment dated as of October
31, 1992, the Fifth Amendment dated as of July 9, 1993, the Sixth Amendment
dated as of September 24, 1993, the Seventh Amendment dated as of May 10, 1994,
the Eighth Amendment dated as of November 29, 1994, the Ninth Amendment dated as
of June 30, 1995, and the Tenth Amendment dated as of November 17, 1995 (said
Credit Agreement, as so amended, being the "Credit Agreement", the terms defined
therein being used herein as therein defined unless otherwise defined herein),
with the Lenders party thereto and the Agent. The Borrower and the Lenders have
agreed to amend and modify the Credit Agreement as hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. The Credit Agreement is,
-----------------------------
effective as of the date hereof and subject to the satisfaction of the
conditions set forth in Section 3 below, hereby amended follows:
(a) Section 1.01 is hereby amended by adding the following definition
in appropriate alphabetical order:
"'Sublease Agreements' means those certain Sublease Agreements,
dated as of September 14, 1992, between the Borrower and State Street
Bank and Trust Company of California, National Association, and W.
Xxxxxxx Xxxxxx as Trustees for the benefit of General Electric Capital
Corporation, Sanwa General Equipment Leasing, Incorporated, ELLCO
Leasing Corporation and JCB Credit Corporation and their respective
successors and assigns, as such agreements may be amended from time to
time."
(b) The definitions of "Net Income Available For Fixed Charges", "Pro
Rata Amount" and "Repayment Date" in Section 1.01 are hereby amended to
read, respectively, as follows:
1
"'Net Income Available for Fixed Charges' means, for any period,
---------------------------------------
net income (or net deficit, as the case may be) before taxes for such
period, as determined in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e), plus amounts
which, in the determination of net income for such period, have been
deducted for (i) the items referred to in the definition of "Fixed
Charges" in this Section 1.01, (ii) depreciation, (iii) in the case of
any such period that includes the month of April 1992, the $50,000,000
special provision which was established by the Borrower in the third
quarter of Fiscal Year 1992, (iv) in the case of any such period that
includes the fiscal month ending May 2, 1993 (A) the cumulative effect
through May 2, 1993 of the accounting changes adopted by the Borrower,
effective as of August 1, l992, as described in the Borrower's Form
10-Q filed with the Securities and Exchange Commission for third
Fiscal Quarter 1993, and (B) the provisions and charges, not in excess
of $38 million in the aggregate, established by the Borrower in the
third Fiscal Quarter of Fiscal Year 1993, (v) non-cash expenses, in an
amount not to exceed $10 million in the aggregate from November 1,
1995 through the Termination Date, that are incurred by Borrower in
connection with one or more exchanges by Borrower of shares of its
common stock for all or any portion of Borrower's Convertible
Subordinated Notes due 2004 or Borrower's Convertible Subordinated
Debentures due 2012 and (vi) non-cash expenses, in an amount not to
exceed Six Million Dollars ($6,000,000), incurred by the Borrower in
connection with the sale of Xxxx Credit Corporation."
"'Pro Rata Amount' means, in respect of any Repayment Date, the
---------------
amount which bears to the total of the Lenders' Commitments the same
ratio as the aggregate principal amount of that prepayment,
redemption, purchase, defeasance or other satisfaction of Debt which
caused such Repayment Date to occur bears to the aggregate principal
amount of such Debt outstanding at the date of (but without giving
effect to) such prepayment, redemption, purchase, defeasance or other
satisfaction; provided, however, with respect to any Repayment Date
-------- -------
described in the last sentence of the definition of 'Repayment Date',
'Pro Rata Amount' means an amount equal to the total of the Lenders'
Commitments multiplied by the quotient of (a) the aggregate amount by
which rent under the Sublease Agreements is to be reduced during the
basic term of the Sublease Agreements as a result
2
of the prepayment or other satisfaction giving rise to such Repayment
Date, divided by (b) the aggregate amount of all rent under the
Sublease Agreements from the date of such prepayment or other
satisfaction until the end of the basic term of the Sublease
Agreements (calculated without regard to such prepayment or other
satisfaction)."
"'Repayment Date' means the date on which any Debt (other than
---------------
(i) Debt resulting from Advances, (ii) Debt owed to any Subsidiary of
the Borrower, and (iii) Debt described in clause (vi) of the
definition of "Debt" contained in Section 1.01) of the Borrower is
prepaid, redeemed, purchased, defeased or otherwise satisfied prior to
the scheduled repayment date or stated maturity thereof; provided,
--------
however, that the date on which any of the following occurs shall not
-------
be a Repayment Date: (a) the satisfaction of Debt through its
surrender to the Borrower in payment for stock issuable upon exercise
of a warrant issued pursuant to the Warrant Agreement dated as of July
31, 1993 between the Borrower and the purchasers identified
therein, (b) the conversion of the Borrower's 7% Convertible
Subordinated Debentures due 2012 and 7 3/4% Convertible Subordinated
Notes due 2004 into common stock of the Borrower in accordance with
their respective terms, (c) prepayments, redemptions, purchases,
defeasances or other satisfactions of Debt (other than Debt evidenced
by the Borrower's 9.35% and 9.33% senior notes due 2000 and 2002,
respectively, 9.25% subordinated notes due 2017, 7% convertible
subordinated notes due 2012, Senior Notes and Subordinated Debt)
aggregating not more than $500,000 in any Fiscal Year, and (d)
prepayments, redemptions, purchases, defeasances and other
satisfactions of convertible Debt for consideration consisting solely
of common stock of the Borrower, and provided, further, that it is
-------- -------
understood and agreed that the scheduled repayment date or stated
maturity of the industrial development bonds (in an aggregate
principal amount up to $16,500,000) related to the Borrower's San
Marcos, Texas facility shall include the date on which such bonds
shall be prepaid, redeemed or purchased in connection with the
expiration of the letter of credit related thereto or upon tender by
the holders thereof in accordance with the terms of the indenture
governing such bonds. 'Repayment Date' shall also mean the date on
which the Borrower prepays or otherwise satisfies prior to the
scheduled payment date any rent, or makes any payment to acquire all
or a portion of any sublessor's interest in any subleased equipment,
under any of the Sublease Agreements; provided, however, that the date
-------- -------
on which
3
any of the following occurs shall not be a Repayment Date: (i)
regularly scheduled payments of periodic rent, as scheduled on
December 31, 1994, (ii) payments of the stipulated loss value with
respect to an item of equipment that shall become worn out, lost,
stolen, destroyed, irreparably damaged in the reasonable determination
of the Borrower, or permanently rendered unfit for use from any cause
whatsoever; (iii) payments of the stipulated loss value with respect
to an item of equipment that the Borrower has discontinued using for
valid operational reasons; (iv) payments made on or about February 28,
2000, to acquire all of a sublessor's interests in the equipment
subleased under a Sublease Agreement in accordance with the early
purchase option set forth in such Sublease Agreement; and (v) payments
made on or after February 28, 2003, the expiration of the basic term
of the Sublease Agreements; and provided, further, that it is
-------- -------
understood that the term 'rent', as used in this definition and the
definition of the term 'Pro Rata Amount', shall mean regularly
scheduled periodic rent and shall not include any fee, cost, expense,
tax indemnity, loss or other charge that the Borrower is required to
pay or reimburse to a sublessor and which may be characterized as
additional or supplemental rent in any of the Sublease Agreements."
(c) Section 5.02(k) is hereby amended by adding to the end thereof a
parenthetical clause to read as follows:
"(except that up to $2,000,000 of the Debt described in clause (iii)
above may be secured by a Lien described in clause (iv) of the
definition of "Permitted Liens" provided that such Debt consists of a
loan from the State or Maryland, or an entity acting in conjuction
with the State of Maryland, to the Company to finance the acquisition
of equipment to be used at the Company's facility in Hagerstown,
Maryland)".
SECTION 2. Waiver. The provisions of Section 5.02(g)(iii) of the
------
Credit Agreement are, eEffective as of the date hereof and subject to the
satisfaction of the conditions set forth in Section 3 below,:
(a) the provisions of Section 5.02(g)(iii) of the Credit Agreement
are hereby waived solely to permit the Amended and Restated Note Agreement,
dated as of May 10, 1994 and relating to Borrower's 9.35% senior notes due
2000, and the Amended and Restated Note Agreement, dated as of May 10, 1994
and relating to Borrower's 9.33% senior notes due 2002, each as amended to
date, to be amended, restated and amalgamated into the Exchange Agreement
and Amended and Restated Note Agreement (the "Amended Agreement")
substantially in
4
the form of the Exchange Agreement and Amended and Restated Note Agreement
delivered to Shearman & Sterling, special counsel to the AgentLenders,
prior to the execution of this Eleventh Amendment; and
(b) the provisions of Section 5.03(l) of the Credit Agreement which
require the Borrower to furnish a copy of the Amended Agreement to each
Lender at least two Business Day prior to the effective date of the Amended
Agreement are hereby waived, provided that (i) the Borrower furnishes a
draft of the Amended Agreement to each Lender at least one Business Day
prior to the effective date of the Amended Agreement, and (ii) the Amended
Agreement executed by the Borrower is substantially similar to the draft of
the Amended Agreement furnished to the Lenders, (it being understood by the
parties that the Borrower has agreed to furnish to each Lender a true and
correct copy of the Amended Agreement promptly after such agreement becomes
effective).
SECTION 3. Conditions of Effectiveness. This Eleventh Amendment
---------------------------
shall become effective as of the date hereof when:
(a) the Agent shall have received counterparts of this Eleventh
Amendment executed by the Borrower and the Majority Lenders, or, as to any
of the Lenders, advice satisfactory to the Agent that such Lenders have
executed counterparts of this Eleventh Amendment;
(b) the Amended Agreement shall have become effective; and
(c) the Sublease Agreement, dated as of September 14, 1992, between
the Borrower and State Street Bank and Trust Company of California,
National Association, and W. Xxxxxxx Xxxxxx as Trustees for the benefit of
General Electric Capital Corporation, as amended to date, shall have been
amended to incorporate by reference the definition of "Net Income Available
For Fixed Charges" contained in Section 1.01 of the Credit Agreement, as
amended by this Eleventh Amendment.
SECTION 4. Reference to and Effect on the Credit Agreement. (a) Upon
-----------------------------------------------
the effectiveness of this Eleventh Amendment, on and after the date hereof each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and each
reference in the Notes to the "Credit Agreement", "thereunder", "thereof",
"therein" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement as amended or otherwise modified by
this Eleventh Amendment.
5
(b) Except as specifically amended above, the Credit Agreement and the
A Notes, and each B Note outstanding on the date hereof, shall remain in
full force and effect and are hereby ratified and confirmed.
(c) Except as the Credit Agreement may expressly be modified hereby,
the execution, delivery and effectiveness of this Eleventh Amendment shall
not operate as a waiver of any right, power or remedy of any Lender or the
Agent under the Credit Agreement or any of the Notes nor constitute a
waiver of any of the provisions contained therein.
SECTION 5. Costs and Expenses. The Borrower agrees to pay on demand
------------------
all costs and expenses of the Agent in connection with the preparation,
execution and delivery of this Eleventh Amendment, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect hereto and with respect to advising the Agent as to its
rights and responsibilities hereunder.
SECTION 6. Execution in Counterparts. This Eleventh 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 together shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Eleventh Amendment, or of any document required to be delivered
hereunder, by telecopier shall be effective as delivery of a manually executed
counterpart of this Eleventh Amendment or such document.
SECTION 7. Governing Law. This Eleventh Amendment shall be governed
-------------
by, and construed in accordance with, the laws of the State of New York.
6
IN WITNESS WHEREOF, the parties hereto have caused this Eleventh
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title: Treasurer
CITICORP USA, INC., as Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------
Title: Assitant Vice President
Lenders
CITIBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Title: Vice President
CITICORP USA, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Title: Assistant Vice President
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxxxxx X. Xxxxxxx
--------------------------
Title: Vice President
MANUFACTURERS BANK
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------
Title: Vice President
7
ROYAL BANK OF CANADA
By: __________________________
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., Los Angeles Agency
By: __________________________
Title:
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By: /s/ Xxxxxx Touffu
------------------
Title: First Vice President
and Regional Manager
By: __________________________
Title:
BANCA COMMERCIALE ITALIANA,
Los Angeles Foreign Branch
By: /s/ Xxxxxx Xxxxxx
------------------
Title: Vice President and
Manager
By: /s/ Xxxx Xxxxxx
----------------
Title: Vice President
BANCO CENTRAL
HISPANOAMERICANO, S.A.
By: /s/ Xxxxxxxxx Xxxxx
---------------------
Title: Executive Vice President
and General Manager
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Title: Senior Vice President
8
