Exhibit 10.0.1
AMENDMENT AND WAIVER NO. 1
TO
CREDIT AGREEMENT
DATED AS OF JANUARY 20, 1998
THIS AMENDMENT AND WAIVER NO. 1 TO CREDIT AGREEMENT ("Amendment")
is made as of August 12, 1999 by and among ▇▇▇▇▇▇▇ DENVER, INC. (f/k/a
▇▇▇▇▇▇▇ Denver Machinery Inc., the "Borrower"), the financial
institutions listed on the signature pages hereof as lenders (the
"Lenders"), THE FIRST NATIONAL BANK OF CHICAGO, individually as a
Lender, as LC Issuer and as agent (the "Agent") for the Lenders under
that certain Credit Agreement dated as of January 20, 1998 by and among
the Borrower, the Lenders and the Agent (as amended, modified or
restated, the "Credit Agreement"). Defined terms used herein and not
otherwise defined herein shall have the meaning given to them in the
Credit Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders and the Agent are parties to
the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders waive
certain provisions of the Credit Agreement and amend the Credit Agreement in
certain respects; and
WHEREAS, the Lenders and the Agent are willing to waive certain
provisions of the Credit Agreement and amend the Credit Agreement on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Lenders and the Agent have agreed to the
following waivers of and amendments to the Credit Agreement.
1. AMENDMENTS TO CREDIT AGREEMENT. Effective as of August 12,
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1999 and subject to the satisfaction of the conditions precedent set
forth in Section 3 below, the Credit Agreement is hereby amended as
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follows:
1.1. ARTICLE I OF THE CREDIT AGREEMENT IS HEREBY AMENDED AS
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FOLLOWS:
1.1.1. THE DEFINITIONS OF "AGREED CURRENCIES," "BUSINESS
DAY," "EUROCURRENCY BASE RATE" AND "OBLIGOR SUBSIDIARY" ARE
DELETED IN THEIR ENTIRETY AND THE FOLLOWING SUBSTITUTED THEREFOR:
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"AGREED CURRENCIES" means (i) Dollars, (ii) so long as such
currencies remain Eligible Currencies, Pounds Sterling,
French Francs, Deutsche Marks, Canadian Dollars, Swiss
Francs, Japanese Yen, Italian Lire and Dutch Guilders;
(iii) from and after becoming generally available in the
international currency and exchange markets, euro only for
so long as the euro is and remains an Eligible Currency, and
(iv) any other Eligible Currency which the Borrower requests
the Agent to include as an Agreed Currency hereunder and
which is acceptable to one-hundred percent (100%) of the
Lenders; provided that the Agent shall promptly notify each
Lender of each such request and each Lender shall be deemed
not to have agreed to each such request unless its written
consent thereto has been received by the Agent within five
(5) Business Days from the date of such notification by the
Agent to such Lender.
"BUSINESS DAY" means (i) with respect to any borrowing,
payment or rate selection of Eurocurrency Advances, a day
(other than Saturday or Sunday) on which banks generally are
open in Chicago and New York for the conduct of
substantially all of their commercial lending activities and
on which dealings in United States Dollars and the other
Agreed Currencies (other than the euro) are carried on in
the London interbank market, (ii) with respect to any
Advances denominated in euro, a day (other than Saturday or
Sunday) on which a clearing system determined by the Agent
to be suitable for clearing or settlement of the euro is
open for business, and (iii) for all other purposes, a day
(other than Saturday or Sunday) on which banks generally are
open in Chicago and New York for the conduct of
substantially all of their commercial lending activities.
"EUROCURRENCY BASE RATE" means, with respect to a
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Eurocurrency Advance for any specified Eurocurrency Interest
Period:
(a) for any Eurocurrency Advance in any Alternate
Currency other than euro, either:
(i) the rate of interest per annum equal to the
rate for deposits in the applicable Agreed Currency in
the approximate amount of the pro rata share of the
Agent of such Eurocurrency Advance with a maturity
approximately equal to such Interest Period which
appears on Telerate Page 3740 or Telerate Page 3750,
as applicable, or, if there is more than one such
rate, the average of such rates rounded to the nearest
1/100 of 1%, as of 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest
Period or
(ii) if no such rate of interest appears on
Telerate Page 3740 or Telerate Page 3750, as
applicable, for any specified Interest Period, the
rate at which deposits in the applicable Agreed
Currency are offered by the Agent to first-class banks
in the London interbank market at approximately 11:00
a.m. (London time) two (2) Business Days prior to the
first day of such Interest Period, in the approximate
amount of the Pro Rata Share of First Chicago of such
Eurocurrency Advance and having a maturity
approximately equal to such Interest Period; and
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(b) with respect to any Eurocurrency Advance in euro
for any Interest Period, the interest rate per annum equal
to the rate determined by the Agent to be the rate at which
deposits in euro appear on that page of the Bloomberg's or
Reuters' Screen which displays British Bankers Association
Interest Settlement Rates for deposits in euro for such
Interest Period or, if such page or service shall cease to
be available, such other page or such other service (as the
case may be) for the purpose of displaying British Bankers
Association Interest Settlement Rates for euro as the Agent,
in its discretion, shall select; provided, that if no such
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rate is displayed for euro and the relevant Interest Period
and there is no euro alternative service on which two or
more such quotations for euro are displayed, then
Eurocurrency Base Rate shall be an interest rate per annum
equal to rate per annum at which deposits in euro are
offered by the Agent for that Interest Period to prime banks
in the London interbank market on or about 11:00 a.m.
(London time) on the date which is two (2) Business Days
prior to the first day of such Interest Period.
The terms "Telerate Page 3740" and "Telerate Page 3750" mean
the display designated as "Page 3740" and "Page 3750", as
applicable, on the Associated Press-Dow ▇▇▇▇▇ Telerate
Service (or such other page as may replace Page 3740 or Page
3750, as applicable, on the Associated Press-Dow ▇▇▇▇▇
Telerate Service or such other service as may be nominated
by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers'
Association interest rate settlement rates for the relevant
Agreed Currency). Any Eurocurrency Base Rate determined on
the basis of the rate displayed on Telerate Page 3740 or
Telerate Page 3750, or on the Bloomberg's or Reuter's
Screen, in accordance with the foregoing provisions of this
subparagraph shall be subject to corrections, if any, made
in such rate and displayed by the Associated Press-Dow ▇▇▇▇▇
Telerate Service, or Bloomberg's or Reuters, as applicable,
within one hour of the time when such rate is first
displayed by such service.
"OBLIGOR SUBSIDIARY" means (i) a Subsidiary which is a party
to a Subsidiary Guaranty or (ii) a Material Foreign
Subsidiary in connection with which a Pledge Agreement has
been executed.
1.1.2. INSERT THE FOLLOWING DEFINITIONS IN THE APPROPRIATE
ALPHABETICAL LOCATIONS:
"EURO" means the euro referred to in Council
Regulation (EC) No. 1103/97 dated June 17, 1997 passed by
the Council of the European Union, or, if different, the
then lawful currency of the member states of the European
Union that participate in the third stage of the Economic
and Monetary Union.
"NATIONAL CURRENCY UNIT" means the unit of currency
(other than a euro unit) of each member state of the
European Union that participates in the third stage of the
Economic and Monetary Union.
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1.2. SECTION 2.12 IS AMENDED AS FOLLOWS:
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1.2.1. TO DELETE THE THIRD SENTENCE THEREFROM AND
SUBSTITUTE THE FOLLOWING THEREFOR:
Each Advance shall be repaid or prepaid and each payment of
interest thereon shall be paid in the currency in which such
Advance was made or, where such currency has converted to
the euro, in the euro.
1.2.2. TO ADD THE FOLLOWING AT THE END THEREOF:
For purposes of this Section 2.12, the commencement of the
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third stage of European Economic and Monetary Union shall
not constitute the imposition of currency control or
exchange regulations.
1.3. THE FOLLOWING SHALL BE INSERTED AT THE END OF ARTICLE
II AS SECTION 2.23:
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2.23. European Economic and Monetary Union.
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2.23.1. Advances in Euro. If any Advance made
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would, but for the provisions of this Section 2.23.1,
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be capable of being made in either the euro or in a
National Currency Unit, such Advance shall be made in
the euro unless otherwise consented to by the Agent.
2.23.2. Rounding and Other Consequential Changes.
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With effect on and after the date hereof:
(i) without prejudice to any method of conversion or
rounding prescribed by any legislative measures
of the Council of the European Union, each
reference in this Agreement to a fixed amount or
to fixed amounts in a National Currency Unit to
be paid to or by the Agent shall,
notwithstanding any other provision of this
Agreement, be replaced by a reference to such
comparable and convenient fixed amount or fixed
amounts in the euro as the Agent may from time
to time specify; and
(ii) the Agent may notify the other parties to this
Agreement of any modifications to this Agreement
which the Agent (acting reasonably and after
consultation with the other parties to this
Agreement) determines to be necessary as a
result of the commencement of the third stage of
the European Economic and Monetary Union.
Notwithstanding any other provision of this
Agreement, any modifications of which the Agent
so notifies the other parties shall take effect
in accordance with the terms of such
notification. So far as possible, such
modifications shall be such as to put the
parties in the same position as if the euro
Implementation Date had not occurred. However,
if and to the
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extent that the Agent determines that it is not
possible to put the parties in such position,
the Agent may give priority to putting the
Agent, the Arranger and the Lenders into such
position.
1.4 SECTION 6.15 IS AMENDED TO ADD THE FOLLOWING TO THE END
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THEREOF:
In addition to the foregoing provisions, if any
Foreign Subsidiary becomes a Material Foreign
Subsidiary (whether through investment, add-on
acquisitions, growth or otherwise), the Borrower shall
or shall cause its applicable domestic Subsidiary
promptly (but in any event within 60 days following
the end of the fiscal quarter during which such
Foreign Subsidiary becomes a Material Foreign
Subsidiary) to execute a Pledge Agreement with respect
to the stock of such material Foreign Subsidiary,
provided the Lien created under such Pledge Agreement
shall be extended equally and ratably to the Senior
Noteholders pursuant to a collateral sharing
agreement, intercreditor agreement or collateral trust
agreement executed with the Senior Noteholders or with
respect to the Indebtedness evidenced by the Senior
Notes on terms and conditions reasonably acceptable to
the Agent; and shall deliver appropriate corporate
resolutions, opinions and other documentation in form
and substance satisfactory to the Agent in connection
therewith; provided, however, that the provisions of
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this sentence shall not be applicable to ▇▇▇▇▇▇▇
Denver ▇▇▇▇▇▇ GmbH, provided the Borrower is in
compliance with the provisions of Section 6.24.
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1.5 SECTION 6.23 IS AMENDED TO ADD THE FOLLOWING AT THE END
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THEREOF:
Notwithstanding anything herein to the contrary, for purposes of
calculating compliance with the provisions of this Section 6.23 as
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of the end of the fiscal quarter ending September 30, 1999, there
shall be excluded from such calculations the amount of Capital
Expenditures incurred during the previous 12-month period with
respect to the Borrower's Peachtree facility in Atlanta, Georgia
so long as the aggregate amount (without limitation as to time) of
Capital Expenditures expended for such facility do not exceed
$9,000,000.
1.5 SECTION 6.24 IS AMENDED TO DELETE THE PHRASE "(OTHER
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THAN OY TAMROTOR AB)" CONTAINED THEREIN AND TO SUBSTITUTE IT WITH
"(OTHER THAN OY TAMROTOR AB OR ANY OTHER FOREIGN SUBSIDIARY OF THE
BORROWER INTO WHICH OY TAMROTOR AB IS MERGED OR LIQUIDATED)".
2. Waivers. Effective as of the date hereof and subject to the
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satisfaction of the conditions precedent set forth in Section 3 below,
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the Lenders hereby waive:
(a) the Borrower's non-compliance with the provisions of
Section 6.23 of the Credit Agreement for the quarters ending
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December 31, 1998, March 31, 1999 and June 30, 1999 resulting from
Capital Expenditures incurred with respect to the Borrower's
Peachtree facility in Atlanta, Georgia so long as the aggregate
amount (without limitation
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as to time) of Capital Expenditures expended for such facility do
not exceed $9,000,000; and
(b) the Borrower's non-compliance with the provisions of
Section 6.10 of the Credit Agreement with respect to Subsidiaries
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(other than Foreign Subsidiaries) of the Borrower created or
acquired since the date of the Credit Agreement.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
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effective and be deemed effective as of August 12, 1999, if, and only
if, the Agent shall have received each of the following:
(a) duly executed originals of this Amendment from the
Borrower and each of the Lenders;
(b) a duly executed supplement to the Subsidiary Guaranty
in form and substance acceptable to the Agent or a duly executed
Subsidiary Guaranty, substantially in the form of Exhibit "B" to
the Credit Agreement, duly executed and delivered by each
Subsidiary of the Borrower (other than Foreign Subsidiaries) which
have become Subsidiaries since the date of the Credit Agreement,
together with:
(i) copies of the articles or certificate of incorporation
of such Subsidiaries, together with all amendments, and a
certificate of good standing, both certified by the appropriate
governmental officer in its jurisdiction of incorporation;
(ii) copies, certified by the Secretary or Assistant
Secretary of such Subsidiaries, of its by-laws and of its Board of
Directors' resolutions authorizing its execution of the Subsidiary
Guaranty and certifying that no amendments have been made to its
articles or certificate of incorporation subsequent to the date of
certification by the applicable governmental officer referred to
in item (i) above;
(iii) an incumbency certificate, executed by the Secretary
or Assistant Secretary of such Subsidiaries, which shall identify
by name and title and bear the signature of the officers of such
Subsidiary authorized to sign the Subsidiary Guaranty; and
(iv) an opinion of such Subsidiaries' counsel with respect
to the Subsidiary Guaranties, in substantially the form of the
opinion received at the closing of the Credit Agreement;
(c) a reaffirmation from each of the Borrower's other
Subsidiaries which are parties to a Subsidiary Guaranty in the
form of Exhibit A attached hereto and made a part hereof; and
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(d) such other documents, instruments and agreements as
the Agent may reasonably request.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS. The
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Borrower hereby represents and warrant as follows:
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(a) This Amendment and the Credit Agreement as previously
executed and as amended hereby, constitute legal, valid and binding
obligations of the Borrower and are enforceable against the Borrower in
accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Borrower
hereby reaffirms all covenants, representations and warranties made in
the Credit Agreement and other loan documents, to the extent the same
are not amended hereby, and agrees that all such covenants,
representations and warranties shall be deemed to have been remade as of
the effective date of this Amendment.
(c) Other than the Defaults waived pursuant to Section 2
above, no Default or Unmatured Default has occurred under the Credit
Agreement.
5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
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(a) Upon the effectiveness of Section 1 hereof, on and
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after the date hereof, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Credit Agreement, as amended
previously and as amended hereby.
(b) Except as specifically amended and waived above, the
Credit Agreement and all other documents, instruments and agreements
executed and/or delivered in connection therewith shall remain in full
force and effect, and are hereby ratified and confirmed.
(c) Except to the limited extent set forth in Section 2
above, the execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of the Agent or
any of the Lenders, nor constitute a waiver of any provision of the
Credit Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
6. COSTS AND EXPENSES. The Borrower agrees to pay all
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reasonable costs, fees and out-of-pocket expenses (including attorneys'
fees and expenses charged to the Agent) incurred by the Agent in
connection with the preparation, arrangement, execution and enforcement
of this Amendment.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE
CONFLICT OF LAW PROVISIONS) OF THE STATE OF ILLINOIS.
8. HEADINGS. Section headings in this Amendment are included
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herein for convenience of reference only and shall not constitute a part
of this Amendment for any other purpose.
9. COUNTERPARTS. This Amendment may be executed by one or more
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of the parties to the Amendment on any number of separate counterparts
and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A facsimile signature page
hereto sent to the Agent or the Agent's counsel shall be effective as a
counterpart signature provided each party executing such a facsimile
counterpart agrees to deliver originals to the Agent thereof.
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IN WITNESS WHEREOF, this Amendment and Waiver No. 1 has been
duly executed as of the day and year first above written.
▇▇▇▇▇▇▇ DENVER, INC. (formerly known as
▇▇▇▇▇▇▇ DENVER MACHINERY INC.),
as Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President, Corporate
Secretary & Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
Individually as a Lender,
as LC Issuer and as Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ BANK PLC,
as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President
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CREDIT AGRICOLE INDOSUEZ,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President, Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: First Vice President
Managing Director
▇▇▇▇▇▇ TRUST & SAVINGS BANK,
as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANK OF AMERICA, NATIONAL ASSOCIATION
(f/k/a NationsBank, N.A.), as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
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EXHIBIT A
TO
AMENDMENT NO. 1
Reaffirmation of Subsidiary Guaranty
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Attached
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REAFFIRMATION
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Each of the undersigned hereby acknowledges receipt of a copy of
Amendment and Waiver No. 1 to the Agreement dated as of January 20,
1998, by and among ▇▇▇▇▇▇▇ Denver, Inc. (f/k/a ▇▇▇▇▇▇▇ Denver Machinery,
Inc.), the Lenders and the Agent (as so amended thereby, the "Credit
Agreement") which Amendment and Waiver No. 1 is dated as of August 12,
1999 (the "Amendment"). Capitalized terms used in this Reaffirmation
and not defined herein shall have the meanings given to them in the
Credit Agreement. Without in any way establishing a course of dealing
by the Agent or any Lender, the undersigned reaffirms the terms and
conditions of the Subsidiary Guaranty dated as of January 20, 1998
executed by it and acknowledges and agrees that such Subsidiary Guaranty
and each and every other Loan Document executed by the undersigned in
connection with the Credit Agreement remain in full force and effect and
are hereby ratified, reaffirmed and confirmed. All references to the
Credit Agreement contained in the above-referenced documents shall be a
reference to the Credit Agreement as so amended by the Amendment and as
the same may from time to time hereafter be amended, modified or
restated.
▇▇▇▇▇▇▇ DENVER INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Vice President, Corporate Secretary & Treasurer
▇▇▇▇▇▇▇ DENVER HOLDINGS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Vice President, Corporate Secretary & Treasurer
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▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Vice President, Corporate Secretary & Treasurer
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TCM INVESTMENTS, INC. (individually and as
successor to the business previously
conducted by Adex, Inc.)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Secretary & Treasurer
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