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EXHIBIT 10.23
FOURTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment Agreement") is made and entered into as of this 12th
day of September, 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 NationsBank
of North Carolina, National Association), as Agent (the "Agent") for the lenders
(the "Lenders") party to the Credit Agreement (defined below), NATIONSBANK,
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
that certain Amended and Restated Revolving Credit Agreement dated as of
December 31, 1995 (as amended, the "Credit Agreement"), pursuant to which the
Lenders have agreed to make certain revolving credit loans to BAM and BTL as
Borrowers; and
WHEREAS, the parties hereto desire further to amend the Credit
Agreement in the manner 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 supplemented
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
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Less than 2.00 to 1.00 1.00%
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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 2.00%
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 the 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 Net Income" is hereby
amended by inserting the following proviso at the end:
; provided, however, that for all purposes hereunder
other than Section 8.1(a) and Section 8.2, the calculation of
Consolidated Net Income for any four-quarter period which
includes the Fiscal Quarter ended December 31, 1996, shall
exclude 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;
(c) Section 4.2 of the Credit Agreement is hereby amended by
deleting the last paragraph thereof in its entirety, without
replacement.
(d) Section 8.1(c) of the Credit Agreement is hereby amended
by deleting the last paragraph thereof in its entirety, without
replacement.
(e) Section 8.1(d) of the Credit Agreement is hereby deleted
in its entirety and the following is inserted in replacement thereof:
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(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
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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
June 30, 1997, and
September 30, 1997
The period of four 1.15 to 1.00
consecutive Fiscal
Quarters ended
December 31, 1997
The period of four 1.30 to 1.00
consecutive Fiscal
Quarters ended
March 31, 1998
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The period of four 1.45 to 1.00
consecutive Fiscal
Quarters ended
June 30, 1998,
September 30, 1998 and
December 31, 1998
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 required 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.
(e) 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. 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.
4. 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 otherwise, 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;
(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
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(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.
5. 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.
6. 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.
7. 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.
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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.
BORROWERS:
▇▇▇▇▇▇▇ AMERICAS CORPORATION
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
▇▇▇▇▇▇▇ TECHNOLOGY LIMITED
By:
-----------------------------
Name:
-----------------------------
Title:
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AGENT:
NATIONSBANK, N.A., as Agent for the
Lenders
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
LENDERS:
NATIONSBANK, N.A., as Lender
By:
-----------------------------
Name:
-----------------------------
Title:
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BANK OF BOSTON CONNECTICUT,
as Lender
By:
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Name:
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Title:
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GUARANTORS:
▇▇▇▇▇▇▇ TECHNOLOGY COMPANY, INC.
By:
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Name:
-----------------------------
Title:
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▇▇▇▇▇▇▇ EUROPE CONSOLIDATED, INC.
By:
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Name:
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Title:
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▇▇▇▇▇▇▇ ASIA PACIFIC CORPORATION
By:
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Name:
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Title:
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▇▇▇▇▇▇▇ TECHNOLOGY CORPORATION
By:
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Name:
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Title:
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KANSA CORPORATION
By:
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Name:
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Title:
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▇▇▇▇▇▇▇ GRAPHIC SYSTEMS, INC.
By:
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Name:
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Title:
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ENKEL CORPORATION
By:
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Name:
-----------------------------
Title:
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Exhibit A
to Fourth 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 $_____________
(c) (a) divided by (b) = _______ 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 $_____________
(c) (a) divided by (b) = _______ to 1.00
(d) Applicable Unused Fee Rate
based on table in definition _______%
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