THIRD AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Amendment Agreement") is made and entered into as of
this 14th day of February, 1997, by and among ▇▇▇▇▇▇▇ AMERICAS CORPORATION, a
Delaware corporation ("BAM"), ▇▇▇▇▇▇▇ TECHNOLOGY LIMITED, a Bermuda corporation
("BTL"), ▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC., a Delaware corporation ("▇▇▇▇▇▇▇"),
NATIONSBANK, N.A., a national banking association (formerly known as Nations
Bank of North Carolina, National Association), as Agent (the "Agent") for the
lenders (the "Lenders") party to the Credit Agreement (defined below), NATIONS
BANK, N.A., as Lender ("NationsBank"), and BANK OF BOSTON CONNECTICUT, as
Lender ("Bank of Boston").
W I T N E S S E T H:
WHEREAS, BAM, BTL, ▇▇▇▇▇▇▇, the Lenders and the Agent have entered into
thatcertain Amended and Restated Revolving Credit Agreement dated as of December
31, 1995 (asamended, the "Credit Agreement"), pursuant to which the Lenders
have agreed to make certaino BAM and BTL as Borrowers; and
WHEREAS, the parties hereto desire further to amend the Credit Agreement
in themanner herein set forth effective as of the date hereof;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. The term "Credit Agreement" or "Agreement" (as the case
may be)as used herein and in the Loan Documents shall mean the Credit Agreement
as hereby amended and modified, and as further amended, modified or supplemen
▇▇▇ from time to time as permitted thereby. Unless the context otherwise
requires, all terms used herein without definition shall have the definitions
provided therefor in the Credit Agreement.
2. Amendments. Subject to the conditions hereof, the Credit Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Applicable Margin" is hereby deleted in its
entirety and
the following is inserted in replacement thereof:
"Applicable Margin" means (a) initially, 1.50% and (b)
commencing on February 15, 1997, the margin set forth below opposite
the applicable Consolidated Indebtedness for Money Borrowed/Cash Flow
Ratio with respect to the LIBOR Loans:
Consolidated Indebtedness for Applicable
Money Borrowed/Cash Flow Ratio Margin
Less than 2.00 to 1.00 1.00%
Less than or equal to 1.25%
2.50 to 1.00 and greater
than or equal to 2.00
to 1.00
Less than or equal to 1.50%
3.00 to 1.00 and greater
than 2.50 to 1.00
Less than or equal to 1.75%
3.50 to 1.00 and greater
than 3.00 to 1.00
Greater than 3.50 to 1.00 2.50%
provided, however, that the Applicable Margin shall be adjusted on each Rate
Change Date from and after February 15, 1997, based upon the Consolidated
Indebtedness for Money Borrowed/Cash Flow Ratio for the period comprised of the
four consecutive Fiscal Quarters ended on the immediately preceding Calculation
Date, to be the margin set out above opposite the applicable Consolidated
Indebtedness for Money Borrowed/Cash Flow Ratio. Such change in the
Applicable Margin shall be applicable to all LIBOR Loans extended, renewed,
continued or converted on or after such Rate Change Date. If Consolidated
Cash Flow shall be equal to or less than zero for any period of calculation
of Consolidated Indebtedness for Money Borrowed/Cash Flow
Ratio, the Applicable Margin shall be the highest percentage set forth above for
such period.
(b) The definition of "Consolidated Funded Debt" is hereby deleted in its
entirety and the following is inserted in replacement thereof:
"Consolidated Funded Debt" means, for any period, the sum of (i) the aggregate
total Funded Debt of ▇▇▇▇▇▇▇ and its Subsidiaries on a consolidated basis on
the last day of such period plus (ii) the current maturities of all Indebtedness
under the Joint and Several Senior Notes issued pursuant to the Senior Note
Agreement due during such period, all in accordance with GAAP;
(c) The definition of "Senior Note Agreement" is hereby amended by adding after
the words "(as defined therein)" in the last line thereof the words, "as from
time to time amended, modified or supplemented."
(d) The definition of "Senior Note Documents" is hereby amended by adding after
the words "(as defined in the Senior Note Agreement)" in the last line thereof
the words, "all as from time to time amended, modified or supplemented".
(e) Section 4.2 of the Credit Agreement is hereby amended by inserting a new
paragraph at the end of such section which shall read as follows:
In addition to the foregoing conditions to Advances, the Lenders shall have
no obligation to make any Advance after September 30, 1997 until such time
as the Borrowers and ▇▇▇▇▇▇▇ shall have complied with the requirements of
Section 7.1(a) and (c) with respect to the Fiscal Quarter ended September 30,
1997, notwithstanding the 45 day period provided in Section 7.1(a) for the
delivery of the financial information and certifications provided therein.
(f) Section 8.1(a) of the Credit Agreement is hereby amended by (i) deleting
the date "June 30, 1995" in the third line thereof and inserting in replacement
thereof the date "January 1, 1997" and (ii) deleting the dollar figure
"$80,000,000" in the third line thereof and inserting in replacement thereof
the dollar figure "$45,000,000" .
(g) Section 8.1(b) of the Credit Agreement is hereby amended by deleting the
figure "1.3" in the third line thereof and inserting in replacement thereof the
figure "1.1".
(h) Section 8.1(c) of the Credit Agreement is hereby amended by (i) deleting
the reference to "2.50 to 1.00" in the second tier of ratios therein and
inserting in replacement thereof the ratio "2.25 to 1.00" and (ii) adding the
following paragraph at the end thereof:
For the purposes of compliance with this Section 8.1(c) only (but not for
the purposes of determining the Applicable Margin at any time), in calcu-
ating the ratio of Consolidated Funded Debt to Consolidated Cash Flow for any
four-quarter period which includes the Fiscal Quarter ended December 31, 1996,
there shall be excluded therefrom the effect of the charge in the amount of
$46,036,000 relating to the Misomex operations of ▇▇▇▇▇▇▇ incurred in the
Fiscal Quarter ended December 31, 1996.
(i) Section 8.1(d) of the Credit Agreement is hereby deleted and the following
is inserted in replacement thereof:
(d) Fixed Charge Ratio. Permit the Consolidated Fixed Charge Ratio for the
period indicated below to be less than the ratio set forth below opposite such
period below:
Required Consolidated
Period Fixed Charge Ratio
The period of four 2.50 to 1.00
consecutive Fiscal
Quarters ended
December 31, 1995
The period of four 2.25 to 1.00
consecutive Fiscal
Quarters ended
March 31, 1996
The period of four 2.50 to 1.00
consecutive Fiscal
Quarters ended
June 30, 1996
Each period of four 2.25 to 1.00
consecutive Fiscal
Quarters ended
September 30, 1996 and
December 31, 1996
Each period of four 2.25 to 1.00
consecutive Fiscal
Quarters ended
March 31, 1997
and June 30, 1997
Each period of four 3.50 to 1.00
consecutive Fiscal
Quarters ended
September 30, 1997,
December 31, 1997 and
each March 31, June 30,
September 30 and December 31
thereafter
For the purposes of this Section 8.1(d) only, in calculating Consolidated Fixed
Charge Ratio for any four-quarter period which includes the Fiscal Quarter
ended December 31, 1996, there shall be excluded therefrom the effect of the
charge in an amount not in excess of $46,036,000 relating to the Misomex
operations of ▇▇▇▇▇▇▇ incurred in the Fiscal Quarter ended December 31, 1996.
The foregoing notwithstanding, if at any time after December 31, 1996, any
current maturities of Funded Debt related to the Senior Note Documents are
prepaid, extended or altered in any respect such that they no longer qualify or
are no longer categorized, as current maturities of Funded Debt, then the re
quired minimum
Consolidated Fixed Charge Ratio shall thereafter be 3.50 to 1.00, provided
that if all current maturities with respect to the Senior Note Documents
subsequently qualify, and are categorized, as current maturities of Funded Debt,
then the required minimum Consolidated Fixed Charge Ratio shall revert to
the levels set forth in the preceding columns.
(j) Section 8.2 of the Credit Agreement is hereby deleted in its entirety and
the following is inserted in replacement:
8.2. Restricted Payments. (a) ▇▇▇▇▇▇▇ will not make, and the Borrowers will
not permit ▇▇▇▇▇▇▇ to make, any Restricted Payments, unless the aggregate of
all such Restricted Payments made by ▇▇▇▇▇▇▇ after January 1, 1997 does not
exceed the sum of (x) $1,000,000; plus (y) the net cash proceeds received by
▇▇▇▇▇▇▇ from the issuance of shares of Eligible Capital Stock; plus (z)(i) 50%
of the Consolidated Net Income from January 1, 1997 through ▇▇▇▇▇▇▇'▇ Fiscal
Quarter most recently ended for which financial statements have been (or are
required to have been) furnished to the Agent or any Lender in accordance with
Section
7.1(a) or 7.1(b), as the case may be, taken as a single accounting period or,
(ii) in the event Consolidated Net Income for such period shall be a negative
number, 100% of such amount (expressed as a negative number); provided,
further, however, that no Restricted Payment shall be permitted by ▇▇▇▇▇▇▇ if
an Event of Default or Default exists immediately before or immediately
after such payment or would otherwise reasonably be anticipated to result
therefrom.
(b) No Borrower will make, and neither Borrower nor ▇▇▇▇▇▇▇ will permit
any ▇▇▇▇▇▇▇ Subsidiary or any Borrower Subsidiary to make, any
Restricted Payments (other than dividends by any ▇▇▇▇▇▇▇ Subsidiary or
distributions on any other securities of any ▇▇▇▇▇▇▇ Subsidiary held by either
Borrower or ▇▇▇▇▇▇▇) if an Event of Default or Default exists immediately
before or immediately after such payment or would otherwise reasonably be
anticipated to result therefrom.
(c) In calculating compliance with paragraph (a) above, stock repurchases
made by the Borrower during the period from October 1, 1996 through February
7, 1997 in an aggregate amount not in excess of $230,000 shall not be counted
against the amount set forth in paragraph (a) above.
(k) Section 11.2 of the Credit Agreement is hereby amended by deleting
11.2(d) in its entirety and inserting the following in replacement thereof:
(d) if to NationsBank or the Agent:
NationsBank, National Association
One Independence Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
NationsBank, National Association
Corporate Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telefacsimile: ▇▇▇-▇▇▇-▇▇▇▇
(l) Exhibits D-1 and D-2 to the Credit Agreement is hereby amended by adding
the following as an addressee on the first page thereof:
NationsBank, National Association
Corporate Banking
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
(m) Exhibit J to the Credit Agreement is hereby deleted in its entirety and a
new Exhibit J is added in replacement thereof in the form attached hereto as
Exhibit A.
3. Amendment Fee. The Borrowers shall on the date hereof pay to the Agent
for the benefit of the Lenders an amendment fee in the amount of $25,000.
4. Guarantors. Each Guarantor has joined in the execution of this Amendment
Agreement for the purpose of (i) agreeing to the amendments to the Credit
Agreement and (ii) confirming its guarantee of payment of all the Obligations.
5. Representations and Warranties. ▇▇▇▇▇▇▇ and each Borrower hereby
certifies that:
(a) The representations and warranties made by ▇▇▇▇▇▇▇ or any Borrower in
Article VI of the Credit Agreement are true on and as of the date hereof,
with the same effect as though such representations and warranties were made on
the date hereof, except to the extent that such representations and warranties
expressly relate to an earlier date.
(b) There has been no material change in the condition, financial or other-
wise, of ▇▇▇▇▇▇▇, any Borrower or any of their respective Subsidiaries since
the date of the most recent financial reports of ▇▇▇▇▇▇▇ and the Borrowers
received by each Lender under Section 7.1 of the Credit Agreement, other than
changes in the ordinary course of business and the effect of the disposition of
the Misomex operations, none of which has been a material adverse change;
(c) The business and properties of ▇▇▇▇▇▇▇, any Borrower or any of their
respective Subsidiaries are not, and since the date of the most recent financial
reports of ▇▇▇▇▇▇▇ and the Borrowers received by each Lender under Section 7.1
of the Credit Agreement have not been, adversely affected in any substantial
way as the result of any fire, explosion, earthquake, accident, strike, lockout
combination of workmen, flood, embargo, riot, activities of armed forces, war
or acts of God or the public enemy, or cancellation or loss of any major
contracts; and
(d) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, will constitute a Default
or an Event of Default on the part of ▇▇▇▇▇▇▇ or any Borrower under the Credit
Agreement or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter.
7. Full Force and Effect of Agreement. Except as hereby specifically amended,
modified or supplemented, the Credit Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
8. Counterparts. This Amendment Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
▇▇▇▇▇▇▇ AMERICAS CORPORATION
By:________________________________
Name:______________________________
Title:______________________ _________
▇▇▇▇▇▇▇ TECHNOLOGY LIMITED
By:________________________________
Name:______________________________
Title:_____________________________
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
By:________________________________
Name:______________________________
Title:_____________________________
NATIONSBANK, N.A., as Agent for the Lenders
By:________________________________
Name:______________________________
Title:_______________________________
NATIONSBANK, N.A., as Lender
By:________________________________
Name:______________________________
Title:_______________________________
BANK OF BOSTON CONNECTICUT, as Lender
By:________________________________
Name:______________________________
Title:_______________________________
OTHER GUARANTORS
▇▇▇▇▇▇▇ EUROPE CONSOLIDATED, INC.
By:________________________________
Name:______________________________
Title:_______________________________
▇▇▇▇▇▇▇ ASIA PACIFIC CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION
By:________________________________
Name:______________________________
Title:_______________________________
KANSA CORPORATION
By:________________________________
Name:______________________________
Title:_____________________________
▇▇▇▇▇▇▇ GRAPHIC SYSTEMS, INC.
By:________________________________
Name:______________________________
Title:_______________________________
MISOMEX OF NORTH AMERICA, INC.
By:________________________________
Name:______________________________
Title:_____________________________
ENKEL CORPORATION
By:________________________________
Name:______________________________
Title:_______________________________
Exhibit A
to Third Amendment
EXHIBIT J
1. Determination of Applicable Margin
(a) Consolidated Indebtedness
for Money Borrowed
(i) Consolidated Funded Debt $_____________
(ii) Current Debt for Loans $_____________
(iii) Current Portion of
Capital Leases $_____________
(iv) Total $_____________
(b) Consolidated Cash Flow $_____________
(without exclusion of the charge
attributable to Misomex)
(c) (a) divided by (b) 3D _______ to 1.00
(d) Applicable Margin based on _______%
table in definition
2. Determination of Applicable Unused Fee Rate
(a) Consolidated Indebtedness
for Money Borrowed
(i) Consolidated Funded Debt $_________________
(ii) Current Debt for Loans $_________________
(iii) Current Portion of $_________________
Capital Leases
(iv) Total $______________
(b) Consolidated Cash Flow $_________________
(without exclusion of the charge
attributable to Misomex)
(c) (a) divided by (b) 3D _______ to 1.00
(d) Applicable Unused Fee Rate
based on table in definition _______%