1
Exhibit 4.2
FIRST AMENDMENT dated as of February
26, 1999 (this "FIRST AMENDMENT") to the
Amended and Restated Credit Agreement dated
as of January 8, 1999 (as amended, modified
or otherwise supplemented through the date
hereof, the "CREDIT AGREEMENT"), among
Xxxxxxx & Xxxxx, Inc., the Lenders (as
defined in the Credit Agreement), Bank One,
N.A., as Administrative Agent and Issuing
Bank, The Bank of Nova Scotia, as Issuing
Bank, ABN AMRO Bank N.V., as Issuing Bank,
and NationsBank, N.A., as Documentation and
Syndication Agent
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this First Amendment, and as hereinafter
amended, modified, supplemented, extended or restated from time to time, being
called the "AMENDED CREDIT AGREEMENT").
The parties hereto have agreed, subject to the terms and conditions
hereof, to amend the Credit Agreement as provided herein.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENT TO THE CALCULATION OF CONSOLIDATED NET INCOME. The
definition of Consolidated Net Income, as set forth in Section 1.01 of the
Credit Agreement, is hereby deleted in its entirety and the following is hereby
substituted therefor:
""CONSOLIDATED NET INCOME" shall mean, for any period for any
person, net income or loss of such person and its Consolidated
Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP; provided, that, there shall be excluded from such
calculation of net income or loss (a) the income of any person in which
any other person (other than such person or any of its subsidiaries or
any director holding qualifying shares in accordance with applicable
law) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to such person or any of
its Wholly Owned Subsidiaries by such other person during such periods,
(b) the income (or loss) of any other person accrued prior to the date
it becomes a subsidiary of such person or is merged into or
consolidated with such person or any of its subsidiaries or the date
that such other person's assets are acquired by such person or any of
its subsidiaries, (c) the income of any subsidiary of such person to
the extent that the declaration or payment of dividends or similar
distributions by such subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to that subsidiary, except that, with respect to
the Borrower and its Consolidated Subsidiaries, the income of Pfaudler
shall not be subject to exclusion from
2
the Borrower's Consolidated Net Income pursuant to this clause (c)
solely because of negative retained earnings existing as of the Closing
Date that prevent, under German law, the payment of dividends by
Pfaudler; (d) any after-tax gains attributable to sales of assets out
of the ordinary course of business and (e) (to the extent not included
in clauses (a) through (d) above) any non-cash extraordinary gains; and
PROVIDED, FURTHER, that solely for purposes of calculating compliance
with the Consolidated Leverage Ratio pursuant to the terms of Section
6.14(b) for the applicable periods ending February 28, 1999, May 31,
1999 and August 31, 1999, expenses incurred by the Borrower in
connection with the closing of its Fairfield, California manufacturing
facility shall be excluded from the calculation of net income or loss,
as long as such expenses do not exceed $3,100,000 in actual
out-of-pocket cash expenses and $5,470,000 in aggregate cash and
non-cash charges."
SECTION 2. EFFECTIVENESS. This First Amendment shall become effective
only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the "FIRST
AMENDMENT EFFECTIVE DATE"):
(a) The Administrative Agent shall have received duly executed
counterparts of this First Amendment which, when taken together, bear
the authorized signatures of the Borrower, the Agents, each Issuing
Bank and each Lender.
(b) The Administrative Agent shall be satisfied that the
representations and warranties set forth in Section 2 are true and
correct on and as of the First Amendment Effective Date.
(c) There shall not be any action pending or any judgment,
order or decree in effect which, in the judgment of the Administrative
Agent or the Lenders, is likely to restrain, prevent or impose
materially adverse conditions upon performance by the Borrower of its
obligations under the Amended Credit Agreement.
(d) The Administrative Agent shall have received such other
documents, legal opinions, instruments and certificates relating to
this First Amendment as they shall reasonably request and such other
documents, legal opinions, instruments and certificates shall be
satisfactory in form and substance to the Administrative Agent and the
Lenders. All corporate and other proceedings taken or to be taken in
connection with this First Amendment and all documents incidental
thereto, whether or not referred to herein, shall be satisfactory in
form and substance to the Administrative Agent and the Lenders.
(e) The Borrower shall have paid to the Administrative Agent,
for the ratable account of all Lenders, an amendment fee equal to
$160,000.00.
(f) The Borrower shall have paid all expenses referred to in
Section 4 of this First Amendment.
SECTION 3. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
-2-
3
STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 4. EXPENSES. The Borrower shall pay all fees and expenses of
counsel to the Administrative Agent outstanding as of the date hereof and all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Lenders in connection with the preparation, negotiation, execution, delivery and
enforcement of this First Amendment. The agreement set forth in this Section 4
shall survive the termination of this First Amendment and the Amended Credit
Agreement.
SECTION 5. COUNTERPARTS. This First Amendment may be executed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed counterpart of a signature page to this First Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this First
Amendment.
SECTION 6. CREDIT AGREEMENT. Except as expressly set forth herein, the
amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Administrative Agent or the Lenders under the Credit Agreement, nor shall they
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement. The
amendments provided herein shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to by such amendments.
Except as expressly amended herein, the Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof. As used in the
Credit Agreement, the terms "Agreement", "herein", "hereinafter", "hereunder",
"hereto" and words of similar import shall mean, from and after the date hereof,
the Amended Credit Agreement.
IN WITNESS WHEREOF, the Borrower and the Lenders have caused this First
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
XXXXXXX & XXXXX, INC.,
as Borrower
by
_________________________________
Name:
Title:
BANK ONE, N.A., as Administrative
Agent, Issuing Bank and Lender
by
_________________________________
-3-
4
Name:
Title:
NATIONSBANK, N.A., as Documentation and
Syndication Agent and Lender
by
_________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as Issuing
Bank and Lender
by
_________________________________
Name:
Title:
ABN AMRO BANK N.V., as Issuing Bank and
Lender
by
_________________________________
Name:
Title:
by
_________________________________
Name:
Title:
NATIONAL CITY BANK, Successor by merger
to NATIONAL CITY BANK OF COLUMBUS,
as a Lender
by
_________________________________
Name:
Title:
