Exhibit 4.01
AMENDMENT NO. 3 TO THE
CREDIT AGREEMENT
Dated as of September 30, 1998
AMENDMENT NO. 3 TO THE CREDIT AGREEMENT among Xxxxxxx Holdings Inc., a
Delaware corporation (the "Parent"), Xxxxxxx Fasteners Inc., a Delaware
corporation (the "Borrower"), PCI Group, Inc., a Delaware corporation ("PCI"),
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Xxx Fastener Company, LLC, a Delaware limited liability company ("Xxx"), Scomex,
Inc., a Delaware corporation ("Scomex"), the banks, financial institutions and
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other institutional lenders parties to the Credit Agreement referred to below
(collectively, the "Banks") and Credit Agricole Indosuez, as administrative
agent and collateral agent (the "Administrative Agent").
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PRELIMINARY STATEMENTS:
(1) The Parent, the Borrower, PCI, Xxx, Scomex, the Banks, the
Administrative Agent, Swiss Bank Corporation, Stamford Branch, as documentation
agent and syndication agent, and SBC Warburg Dillon Read Inc., as advisor and
arranger, have entered into a Credit Agreement dated as of November 26, 1997,
and amendments thereto dated as of January 9, 1998, and February 20, 1998 (such
Credit Agreement, as so amended, being the "Credit Agreement"). Capitalized
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terms not otherwise defined in this Amendment have the same meanings as
specified in the Credit Agreement.
(2) The Borrower has entered into a letter of intent to acquire
(the "Acquisition"), a Connecticut corporation, for approximately $6,300,000. In
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connection with the Acquisition, the Borrower has requested that the definition
of "Consolidated EBITDA" be revised to reflect certain cost savings achieved by
the Borrower over the past year.
(3) The Required Banks are, on the terms and conditions stated
below, willing to grant the request of the Borrower and the Borrower and the
Required Banks have agreed to further amend the Credit Agreement as hereinafter
set forth.
SECTION 1. Amendments to Credit Agreement. The definition of
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"Consolidated EBITDA" in Section 1.01 of the Credit Agreement is, effective as
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of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 2, hereby amended by (i) deleting the word "and"
immediately following the phrase "for such period" in the fourth line thereof
and (ii) adding immediately preceding the phrase "less the sum of " continued in
the sixth line thereof the following:
", and (v) for each 12 consecutive month period containing any of
the quarters ended on March 31, 1998, June 30, 1998 or September
30, 1998, an amount equal to (1) if such period contains one such
quarter, $511,851, (2) if such period contains two such quarters,
$1,023,702 and (3) if such period contains three such quarters,
$1,535,553 (which amount reflects a reduction of salaried and
temporary labor during such quarters)".
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SECTION 2. Conditions of Effectiveness. This Amendment shall become
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effective as of the date first above written when, and only when, the
Administrative Agent shall have received counterparts of this Amendment executed
by the Borrower, the other Credit Parties and the Required Banks or, as to any
of the Banks, advice satisfactory to the Administrative Agent that such Bank has
executed this Amendment and Section 1 shall become effective when, and only
when, the Administrative Agent shall have additionally received all of the
following documents, each such document (unless otherwise specified) dated the
date of receipt thereof by the Administrative Agent (unless otherwise specified)
and in sufficient copies for each Bank, in form and substance satisfactory to
the Administrative Agent (unless otherwise specified) and in sufficient copies
for each Bank:
(a) A certificate signed by a duly authorized officer of the Borrower
stating that:
(i) The representations and warranties contained in Section 3
are correct on and as of the date of such certificate as though made
on and as of such date other than any such representations or
warranties that, by their terms, refer to a date other than the date of
such certificate; and
(ii) No event has occurred and is continuing that constitutes a
Default.
(b) Detailed consolidated financial projections for the fiscal
years ending December 31, 1999, December 31, 2000 and December 31, 2001.
The effectiveness of this Amendment is conditioned upon the accuracy of the
factual matters described herein. This Amendment is subject to the provisions of
Section 15.10 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Credit Parties. Each
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Credit Party represents and warrants as follows:
(a) Corporate Status. Each of the Parent and its Subsidiaries (i) is a
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duly organized and validly existing corporation or limited liability
company in good standing under the laws of the jurisdiction of its
incorporation or organization, (ii) has the corporate or other power and
authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (iii) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualifications, except for failures
to be so qualified which, in the aggregate, would not be reasonably likely
to have a material adverse effect on the performance, business, assets,
nature of assets, liabilities, operations, properties, condition (financial
or otherwise) or prospects of the Borrower and its Subsidiaries taken as a
whole.
(b) Corporate Power and Authority. Each of the Parent and its
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Subsidiaries has the power to execute, deliver and perform the terms and
provisions of this Amendment and the Credit Agreement as amended by this
Amendment (collectively, the "Documents") and has taken all necessary
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corporate or other action to authorize the execution, delivery and
performance by it of each of such Documents. Each of the Parent and its
Subsidiaries has duly executed and delivered each of the Documents to which
it is party, and each of such Documents constitutes the legal, valid and
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binding obligation of such party enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors' rights generally or by general equitable principles
(regardless of whether the issue of enforceability is considered in a
proceeding in equity or at law).
(c) No Violation. Neither the execution, delivery or performance by
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the Parent or any of its Subsidiaries of the Documents to which it is a
party, nor compliance by it with the terms and provisions hereof or
thereof, (i) will contravene any provision of any applicable law, statute,
rule or regulation or any order, writ, judgment, injunction or decree of
any court or governmental instrumentality, (ii) will conflict with or
result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default or event of default under, or result
in the creation or imposition of (or the obligation to create or impose),
any Lien (except pursuant to the Security Documents) upon any of the
property or assets of the Parent or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement or loan
agreement, or any other agreement, contract or instrument to which the
Parent or any of its Subsidiaries is a party or by which it or any of its
property or assets is bound, or to which it may be subject or (iii) will
violate any provision of the Certificate of Incorporation or By-Laws (or
similar organizational documents) of the Parent or any of its Subsidiaries.
(d) Governmental Approval. No order, consent, approval, license,
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authorization or validation of, or filing, recording or registration with
(except as has been obtained or made on or prior to the Initial Borrowing
Date and as is in full force and effect), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, (i) the execution, delivery
and performance of any Document or (ii) the legality, validity, binding
effect or enforceability of any such Document.
(e) Litigation. Other than with respect to matters set forth on
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Schedule VIII to the Credit Agreement, there are no actions, suits or
proceedings pending or, to the best knowledge of the Borrower or any of its
Subsidiaries, threatened that (a) would have a material adverse effect on
the operations or financial condition of the Parent, Merger Sub, KSCO and
the Borrower together with their respective Subsidiaries, taken as a whole,
or (b) involves a reasonable possibility of (i) a material adverse effect
on (x) the ability of any of the Credit Parties to perform their respective
obligations hereunder or under any of the other Credit Documents or (y) the
rights, remedies and benefits available to the Agents, the Issuing Bank and
the Banks hereunder or under any of the other Credit Documents, or (ii)
adversely affecting the validity or enforceability of any Documents, or
which would be materially inconsistent with the assumptions underlying the
forecasts previously provided to the Agents, the Issuing Bank and the
Banks.
(f) The Security Documents. (i) The provisions of the Security
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Agreement are effective to create in favor of the Collateral Agent for the
benefit of the Secured Creditors a legal, valid and enforceable security
interest in all right, title and interest of the respective Credit Parties
in the Collateral described therein and, the Collateral Agent, for the
benefit of the Secured Creditors, will have, upon making the necessary
filings in the appropriate filing office, a fully perfected first Lien on,
and security interest in, all right, title and interest of the respective
Credit Parties, in all of the Collateral described therein, subject to no
other Liens other than Permitted Liens.
(ii) The recordation of the Security Agreement in the United States
Patent and Trademark Office, together with filings on Form UCC- 1 in all
applicable jurisdictions made pursuant to the Security Agreement, will be
effective, under federal and state law, to perfect the security interest
granted to the Collateral Agent in the Trademarks and Patents covered by
the Security Agreement and the filing of the Security Agreement with the
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United States Copyright Office together with filings on Form UCC- 1 made
pursuant to the Security Agreement will be effective under federal and
state law to perfect the security interest granted to the Collateral Agent
in the Copyrights covered by the Security Agreement. Each of the Credit
Parties party to the Security Agreement has good and merchantable title to
all Collateral described therein, free and clear of all Liens except those
described above in subsection (a) above and in this subsection (b).
(iii) From and after the Initial Borrowing Date, the Mortgages
create, as security for the obligations purported to be secured thereby, a
valid and enforceable and, upon making the necessary filings in the
appropriate filing office, perfected security interest in and Lien on all
of the Mortgaged Properties in favor of the Collateral Agent (or such other
trustee as may be required or desirable under local law) for the benefit of
the Secured Creditors, superior to and prior to the rights of all third
persons (except that the security interest created in the Mortgaged
Properties may be subject to the Permitted Encumbrances related thereto)
and subject to no other Liens (other than Permitted Liens). Each of the
Borrower and its Subsidiaries has good and marketable title at the time of
the grant thereof and at all times thereafter to all Mortgaged Properties,
free and clear of all Liens except those described in the first sentence of
this subsection (iii).
SECTION 4. Reference to and Effect on the Credit Documents. (a) On and
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after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof' or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Credit Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, as specifically amended by this Amendment,
is and shall continue to be in full force and effect and is hereby in all
respects ratified and confirmed. Without limiting the generality of the
foregoing, the Security Documents and all of the Collateral described therein do
and shall continue to secure the payment of all Obligations of the Credit
Parties under the Credit Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Bank or any Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. Costs and Expenses. Each of the Parent and the Borrower
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jointly and severally agree to pay on demand all costs and expenses of the
Agents in connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Agents) in
accordance with the terms of Section 15.01 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
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in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
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construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
XXXXXXX HOLDINGS INC.
/S/ XXXXXX X. XXXXX
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EXECUTIVE VICE PRESIDENT
CHIEF FINANCIAL OFFICER
XXXXXXX FASTENERS INC.
/S/ XXXXXX X. XXXXX
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EXECUTIVE VICE PRESIDENT
CHIEF FINANCIAL OFFICER
PCI GROUP, INC.
/S/ XXXXXX X. XXXXX
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SECRETARY
XXX FASTENER COMPANY, LLC
/S/ XXXXXX X. XXXXX
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SECRETARY
SCOMEX, INC.
/S/ XXXXXX X. XXXXX
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SECRETARY
CREDIT AGRRICOLE INDOSUEZ
As Administrative Agent and as a Bank
/S/ XXXXXXX XXXXXXXXX
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/S/ XXXXXXXX XXXXXXX
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INDOSUEZ CAPITAL FUNDING IV, L.P.
By: INDOSUEZ CAPITAL, as Portfolio Advisor
/S/ XXXXXXXXX XXXXXXXXX
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UBS AG, Stamford Branch
/S/ XXXXX X. XXXX
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EXECUTIVE DIRECTOR
LOAN PORTFOLIO SUPPORT, US
/S/ XXXXXXX X. XXXXXX
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ASSOCIATE DIRECTOR
LOAN PORTFOLIO SUPPORT, US
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PILGRIM AMERICA PRIME RATE TRUST
By: PILGRIM AMERICA INVESTMENTS, INC.,
as its Investment Manager
/S/ XXXXXX XXXXXX, CFA
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VICE PRESIDENT
IBJ XXXXXXXX BANK & TRUST COMPANY
/S/ XXXX X. XXXXXX
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MANAGING DIRECTOR
SUMMIT BANK
/S/ XXXXX X. XXXXXXX
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VICE PRESIDENT
SANWA BUSINESS CREDIT CORPORATION
/S/ XXXXXXXX X. XXXXXX
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VICE PRESIDENT
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