EXHIBIT 10.4
AMENDMENT NUMBER TWO AND WAIVER, dated as of October 7, 1997 ("Amendment
and Waiver"), to the Credit Agreement dated as of January 8, 1997 as amended by
Amendment No. 1 dated as of June 2, 1997 (the "Credit Agreement"), among
COINMACH CORPORATION, a Delaware corporation (the "Borrower"), COINMACH LAUNDRY
CORPORATION, a Delaware corporation ("Holdings"), the lending institutions from
time to time party thereto (each a "Bank" and collectively, the "Banks"),
BANKERS TRUST COMPANY, as Administrative Agent, FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Syndication Agent and XXXXXX COMMERCIAL PAPER, INC., as
Documentation Agent (the "Agents"). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the Credit Agreement.
WHEREAS, the Borrower intends to incur Indebtedness through the issuance of
the 11 3/4% New Notes (as defined in Section 2 hereof); and
WHEREAS, the Borrower intends to apply more than 50% of the cash proceeds
from the issuance of the 11 3/4% New Notes as a mandatory repayment of
outstanding Term Loans in accordance with the requirements of Section 4.02 (f);
and
WHEREAS, the Borrower intends to repay the outstanding principal amount of
the Tranche A Term Loan in its entirety with the cash proceeds received from the
issuance of the 11 3/4% New Notes and thereafter apply the residual amount of
such cash proceeds on a pro rata basis to the Initial Tranche B Term Loans and
Additional Tranche B Term Loans in accordance with the requirements of Sections
4.02 (j) and (k); and
WHEREAS, in connection with the issuance of the 11 3/4% New Notes, the
Borrower intends to amend the indenture under which the 11 3/4% Notes were
issued in the manner described in the Borrower's Consent Solicitation Statement
dated October 1, 1997, a copy of which has been provided to the Agents; and
WHEREAS, in connection with the foregoing the Borrower has requested that
the Agents and the Banks amend and waive certain provisions of the Credit
Agreement; and
WHEREAS, the Agents and the Banks have considered and agreed to the
Borrower's requests, upon the terms and conditions set forth in this Amendment
and Waiver; and
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WHEREAS, the consent of the Supermajority Banks is necessary to effect this
Amendment and Waiver;
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - WAIVER.
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The Banks hereby consent to and agree to waive compliance by Holdings and
the Borrower with any provision of the Credit Agreement which might otherwise
prohibit the issuance of the 11 3/4% New Notes, the amending of the Indenture
under which the 11 3/4% Notes were issued, and the application of cash proceeds
first to the Tranche A Term Loans and then pro rata to the Tranche B Term Loans,
including without limitation, Sections 4.02, 9.04 and 9.11 of the Credit
Agreement.
SECTION TWO - AMENDMENT TO CREDIT AGREEMENT.
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The Credit Agreement is amended as hereinafter provided in this Section
One, effective as of October 7, 1997 (the "Amendment and Waiver Effective
Date").
2.1. Amendment to Section 11 of the Credit Agreement
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Section 11.01 shall be amended by adding the following new
definition, in the appropriate alphabetical order.
"11 3/4% New Notes' shall mean the 11 3/4% Notes due 2005 issued
pursuant to an indenture dated as of October 8, 1997 between the Borrower and
State Street Bank and Trust Company, as Trustee."
SECTION THREE - REPRESENTATIONS AND WARRANTIES.
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Holdings and the Borrower each hereby confirms, reaffirms and
restates the representations and warranties made by it in Section 7 of the
Credit Agreement and all such representations and warranties are true and
correct in all material respects as of the date hereof (it being understood
and agreed that any representation or warranty which by its terms is made as
of a specified date shall be required to be true and correct only as of such
specified date), except such representations and warranties need not be true
and correct to the extent that changes in the facts and conditions on which
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such representations and warranties are based are required or permitted under
the Credit Agreement or such changes arise out of events not prohibited by the
covenants set forth in Sections 8 and 9 of the Credit Agreement or otherwise
permitted by consents or waivers. Holdings and the Borrower each hereby
further represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to the Agents and each Bank that:
(a) Holdings and the Borrower each has the corporate power and
authority to execute, deliver and perform this Amendment and Waiver and has
taken all corporate actions necessary to authorize the execution, delivery and
performance of this Amendment and Waiver;
(b) No consent of any person other than all of the Banks and the
Agents parties hereto, and no consent, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration
with, any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability against the Borrower or
Holdings of this Amendment and Waiver;
(c) This Amendment and Waiver has been duly executed and delivered
on behalf of each of Holdings and the Borrower by a duly authorized officer or
attorney-in-fact of Holdings and the Borrower, as the case may be, and
constitutes a legal, valid and binding obligation of each of Holdings and the
Borrower, as the case may be, enforceable against each of Holdings and the
Borrower in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance, preferential
transfer, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors' rights and remedies generally, (b)
general principles of equity (whether such enforceability is considered in a
proceeding in equity or at law), and by the discretion of the court before
which any proceeding therefor may be brought, or (c) public policy
considerations or court administrative, regulatory or other governmental
decisions that may limit rights to indemnification or contribution or limit or
affect any covenants or agreements relating to competition or future
employment; and
(d) The execution, delivery and performance of this Amendment and
Waiver will not violate (i) any provision of law applicable to Holdings or the
Borrower or (ii) any contractual obligation of either Holdings or the
Borrower,
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other than such violations that would not reasonably be expected to result in,
singly or in the aggregate, a Material Adverse Effect.
SECTION FOUR - MISCELLANEOUS.
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(a) Except as herein expressly amended, the Credit Agreement and
all other agreements, documents, instruments and certificates executed in
connection therewith, except as otherwise provided herein, are ratified and
confirmed in all respects and shall remain in full force and effect in
accordance with their respective terms.
(b) This Amendment and Waiver may be executed by the parties hereto
in one or more counterparts, each of which shall be an original and all of which
shall constitute one and the same agreement.
(c) THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICT OF LAWS.
(d) This Amendment and Waiver shall not constitute a consent or
waiver to or modification of any provision, term or condition of the Credit
Agreement, other than such terms, provisions, or conditions that are required to
consummate the transactions contemplated by this Amendment and Waiver. All
terms, provisions, covenants, representations, warranties, agreements and
conditions contained in the Credit Agreement, as amended hereby, shall remain in
full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
and Waiver to be duly executed as of the date first above written.
COINMACH LAUNDRY CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Senior Vice President
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COINMACH CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
----------------------
Title: Senior Vice President
----------------------
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BANKERS TRUST COMPANY,
Individually and as
Administrative Agent
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, Individually
and as Syndication Agent
By: /s/ Xxxxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxxxx X. Xxxxx
--------------------
Title: Managing Director
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XXXXXX COMMERCIAL PAPER INC.,
Individually and as
Documentation Agent
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
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Title: Authorized Signatory
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FLEET NATIONAL BANK,
as a Lender
By:__________________________
Name:
Title:
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BANKBOSTON, N.A. as a Lender
By:________________________
Name:
Title:
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XXXX XX XXXXXXXX, as a Lender
By: /s/ Xxxxx ChinTat
----------------------
Name: Xxxxx ChinTat
--------------------
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:___________________________
Name:
Title:
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XXXXXX FINANCIAL, INC., as a Lender
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Vice President
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THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
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Title: Vice President and
------------------
Portfolio Manager
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MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx XX
-----------------------------
Name: Xxxxxxx X. Xxxxxxx XX
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Title: Managing Director
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XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:_____________________________
Name:
Title:
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XXXXXXX XXXXXXX PRIME RATE TRUST
By: /s/ Xxxxxx Tiffen
----------------------------
Name: Xxxxxx Tiffen
----------------------------
Title: Senior Vice President
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PRIME INCOME TRUST,
as a Lender
By:__________________________
Name:
Title:
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SENIOR DEBT PORTFOLIO
By: Boston Management and
Research as Investment Advisor
By:____________________________
Name:
Title:
