EXHIBIT 10.58
EXECUTION
CALMAR INC.
SECOND AMENDMENT
TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated as
of July 16, 1997, and entered into by and among Calmar Inc., a Delaware
corporation ("COMPANY"), and the financial institutions listed on the
signature pages hereof, and Credit Agricole Indosuez (formerly Banque Indosuez)
("INDOSUEZ"), as administrative agent (in such capacity, "ADMINISTRATIVE
AGENT"), and is made with reference to that certain Credit Agreement dated as
of August 18, 1995, as amended by that certain First Amendment to Credit
Agreement dated as of October 4, 1996 (as so amended, the "CREDIT AGREEMENT"),
by and among Company, the financial institutions listed on the signature pages
thereto, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. as syndication agent, Bankers Trust Company, as
administrative agent (Bankers Trust Company resigned as administrative agent
effective on the close of business on August 18, 1995, and Mellon Bank, N.A.
("MELLON") became the successor administrative agent; Mellon resigned as
administrative agent effective on October 25, 1996, and Indosuez became the
successor administrative agent), and Mellon, as documentation and collateral
agent (Mellon resigned as documentation and collateral agent effective on
October 25, 1996, and Indosuez became the successor documentation and collateral
agent). Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit Agreement to permit
Company or a Wholly Owned Subsidiary of Company organized in Argentina and a
Wholly Owned Subsidiary of Company organized in Brazil to acquire certain assets
of Company's existing licensee in Argentina and Brazil and to make certain other
amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1.
AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENT TO SECTION 1: DEFINITIONS.
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Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definition, which shall be inserted in proper alphabetical
order:
" `ARGENTINE ACQUISITION' means the acquisition of certain assets of
Magiplast S.A., a corporation organized under the laws of Argentina,
consisting of goodwill, customer lists, machinery, equipment, dies, molds,
patterns, vehicles, furniture, fixtures, computers and computer related
equipment and inventory located in Brazil and Argentina and distribution
rights in certain South American countries."
1.2 AMENDMENTS TO SECTION 7: COMPANY'S NEGATIVE COVENANTS.
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A. Subsection 7.3 of the Credit Agreement is hereby amended by (a)
deleting "and" at the end of clause (v) thereof; (b) deleting the "." at the
end of clause (vi) thereof and substituting therefor "; and"; and (c) adding a
new subsection 7.3(vii) at the end thereof as follows:
"(vii) Company may make and own Investments in a Wholly Owned
Subsidiary organized in Argentina and a Wholly Owned Subsidiary of Company
organized in Brazil for the purpose of consummating the Argentine
Acquisition in accordance with subsection 7.7(vii), provided that the
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amount of such Investments, together with the aggregate amount of all
Investments permitted pursuant to subsection 7.3(iv), shall not at any time
exceed the amount set forth in clause (b) of subsection 7.3(iv)."
B. Subsection 7.7 of the Credit Agreement is hereby amended by (a)
deleting "and" at the end of clause (v) thereof; (b) deleting the "." at the
end of clause (vi) thereof and substituting therefor "; and"; and (c) adding a
new subsection 7.7(vii) at the end thereof as follows:
"(vii) Company or a Wholly Owned Subsidiary of Company organized in
Argentina and a Wholly Owned Subsidiary of Company organized in Brazil may
make the Argentine Acquisition, provided that (a) at the time of such
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acquisition, and after giving effect thereto, no Potential Event of Default
or Event of Default shall have occurred and be continuing, (b) the total
consideration paid by Company and its Subsidiaries in connection with the
Argentine Acquisition and any related covenant not-to-compete shall not
exceed $4,500,000 and (c) if the Argentine Acquisition is made by a Wholly
Owned Subsidiary or Wholly Owned Subsidiaries of Company, Company shall
pledge all of the capital stock of each such Wholly
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Owned Subsidiary to Administrative Agent to secure the Obligations under
the Loan Documents (except to the extent, and only to the extent, such
pledge would result in Company incurring additional liabilities for
taxes)."
SECTION 2.
CONDITIONS TO EFFECTIVENESS
Notwithstanding anything to the contrary herein, this Amendment shall
become effective only upon the satisfaction of all of the following conditions
precedent (the date of satisfaction of such conditions being referred to herein
as the "SECOND AMENDMENT EFFECTIVE DATE"):
A. On or before the Second Amendment Effective Date, Company shall
deliver to Lenders (or to Indosuez, as Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender and its counsel)
the following, each, unless otherwise noted, dated the Second Amendment
Effective Date:
(1) Certified copies of any amendments made to its Certificate of
Incorporation on or after October 25, 1996 (the "PRIOR DELIVERY DATE"),
certified as of the Second Amendment Effective Date by its corporate
secretary or an assistant secretary as being the only amendments thereto
since the Prior Delivery Date (or, if there have been no such amendments
since the Prior Delivery Date, a certificate of its corporate secretary or
an assistant secretary to that effect), together with a good standing
certificate from the Secretary of State of the State of Delaware, dated a
recent date prior to the Second Amendment Effective Date;
(2) Copies of any amendments made to its Bylaws on or after the Prior
Delivery Date, certified as of the Second Amendment Effective Date by its
corporate secretary or an assistant secretary as being the only amendments
thereto since the Prior Delivery Date (or, if there have been no such
amendments since the Prior Delivery Date, a certificate of its corporate
secretary or an assistant secretary to that effect);
(3) Resolutions of its Board of Directors approving and authorizing
the execution and delivery of this Amendment and the performance of the
Amended Agreement (as defined below), certified as of the Second Amendment
Effective Date by its corporate secretary or an assistant secretary as
being in full force and effect without modification or amendment;
(4) Signature and incumbency certificates of its officers executing
this Amendment; and
(5) Executed copies of this Amendment.
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B. On or before the Second Amendment Effective Date, all corporate and
other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Indosuez, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Indosuez and such counsel, and Indosuez
and such counsel shall have received all such counterpart originals or certified
copies of such documents as Indosuez may reasonably request.
SECTION 3.
COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Company represents and warrants
to each Lender that the following statements are true, correct and complete:
A. CORPORATE POWER AND AUTHORITY. Company has all requisite corporate
power and authority to enter into this Amendment, to carry out the transactions
contemplated by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (as so amended, the "AMENDED AGREEMENT").
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Company.
C. NO CONFLICT. The execution and delivery by Company of this Amendment
and the performance by Company of the Amended Agreement do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to Company or any of its Subsidiaries, the Certificate or Articles of
Incorporation or Bylaws of Company or any of its Subsidiaries or any order,
judgment or decree of any court or other agency or government binding on Company
or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than Liens created under any
of the Loan Documents in favor of Collateral Agent on behalf of Lenders), or
(iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of its Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Company of this
Amendment and the performance by Company of the Amended Agreement do not and
will not require any registration with, consent or approval of or notice to, or
other action to, with or by, any federal, state or other governmental authority
or regulatory body.
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E. BINDING OBLIGATION. This Amendment and the Amended Agreement have
been duly executed and delivered by Company and are the legally valid and
binding obligations of Company enforceable against Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT.
The representations and warranties contained in Section 5 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the Second Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier ▇▇▇▇.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 4.
MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
(i) On and after the Second Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words or like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under, the Credit Agreement or any of the other Loan
Documents.
B. FEES AND EXPENSES. Company acknowledges that all costs, fees and
expenses as described in subsection 10.2 of the Credit Agreement incurred by
Agents and their
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respective counsel with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of Company.
C. HEADINGS. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTIONS 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterpart and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of
a counterpart hereof by Company and Requisite Lenders and receipt by Company and
Indosuez of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
CALMAR INC.
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Secretary
CREDIT AGRICOLE INDOSUEZ,
as a Lender and as Administrative Agent,
Collateral Agent and Documentation Agent
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
Notice Address:
Credit Agricole Indosuez
New York Branch
1211 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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OCTAGON CREDIT INVESTORS LOAN PORTFOLIO,
A Unit of The Chase Manhattan Bank,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
INDOSUEZ CAPITAL FUNDING II,
LIMITED, as a Lender
BY: INDOSUEZ CAPITAL
LUXEMBOURG,
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
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▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE
PORTFOLIO,
as a Lender
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET
MANAGEMENT, L.P., as Investment Advisor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
PILGRIM AMERICA PRIME RATE TRUST,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
PRIME INCOME TRUST,
as a Lender
By:
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Name:
Title:
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ML CBO IV (Cayman) LTD
By Protective Asset Management, L.L.C.
As Collateral Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ CPA, CFA
Title: PRESIDENT, PROTECTIVE ASSET
MANAGEMENT, L.L.C.
SENIOR DEBT PORTFOLIO,
as a Lender
BY: BOSTON MANAGEMENT AND RESEARCH, as
Investment Advisor
By:
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Name:
Title:
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT - PORTFOLIO
MANAGER
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