- Amendment to Section 1.1(b)(ii). Effective as of the date hereof,Section 1.1(b)(ii) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(ii) Each Borrower shall repay its Ratable Share of the outstanding balance of the Term Loan in (a) fifteen (15) consecutive quarterly installments (i) the first five (5) of which each shall be in the amount of $1,339,285.71 and be due on the first day of January, April, July and October of each year, commencing July 1, 2003, and (ii) the next eleven (11) of which shall be in the amount of $907,842.51 and be due on the first day of January, April, July and October of each year, commencing on October 1, 2004 (provided, however, that, upon the occurrence of the Grapevine, Texas Real Estate Prepayment, so long as no Default or Event of Default has occurred and is continuing at the time of such payment, the amount of each installment under this subclause (ii) which is due after such occurrence shall be an amount equal to the product of (A) the unpaid balance of the Term Loan outstanding at such time immediately after giving effect to the Grapevine, Texas Real Estate Prepayment, divide d by (B) twenty-eight (28)) and (b) a final installment due on May 14, 2007 shall be in the amount of the remaining principal balance of the Term Loan."
- Amendment to Section 1.3(b)(iv). Effective as of the date hereof,Section 1.3(b)(iv) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(iv) Until the Termination Date, Borrowers shall prepay the Obligations on or before July 15th of each Fiscal Year after Fiscal Year 2003, in an amount equal to fifty percent (50%) of Excess Cash Flow for the immediately preceding Fiscal Year;provided,however, Borrowers shall not be required to make such prepayment if, at the time such prepayment is required, Borrowers and their Subsidiaries shall have on a consolidated basis a Fixed Charge Coverage Ratio for the 12-month period then ended of greater than or equal to 1.50 to 1.00. Any prepayments from Excess Cash Flow paid pursuant to thisclause (iv) during any Separate Borrowing Base Period shall be allocated to each Borrower's Obligations based upon such Borrower's relative contribution to Excess Cash Flow and shall be applied in accordance withSection 1.3(c). Each such prepayment shall be accompanied by a certificate signed by Borrower Representative's chief financial officer certifying the manner in which Excess Cash Flow, the resulting prepayment, and method of allocation to each Borrower's Obligations which certificate shall be in form and substance satisfactory to Agent."
- Amendment to Section 1.3(b)(v). Effective as of the date hereof,Section 1.3(b)(v) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(v) If the Grapevine, Texas Real Estate is not sold on or before June 30, 2004, then Borrowers shall prepay additional amounts on the Term Loan as follows: $500,000 on January 1, April 1, July 1 and October 1 of each year, commencing on July 1, 2004, and continuing until the earlier to occur of: (A) so long as no Default or Event of Default has occurred and is continuing, the occurrence of the Grapevine, Texas Real Estate Prepayment or (B) such time as the sum of all such payments equal an amount which is no less than $6,250,000."
- Amendment to Section 1.11(a). Effective as of the date hereof,Section 1.11(a) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(a) So long as no Default or Event of Default shall have occurred and be continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swing Line Loan, and second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied in accordance with the provisions ofSection 1.3(a); and (iv) mandatory prepayments shall be applied as set forth inSections 1.3(c) and1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Pro Rata Share. As to any other payment, and as to all payments made when a Default or Event of Default has occurred and is continuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all p ayments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of Borrowers as Agent may deem advisable notwithstanding any previous entry by Agent in the Loan Account or any other books and records. In the absence of a specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: (1) to Fees and Agent's expenses reimbursable hereunder; (2) to interest on the Swing Line Loan; (3) to principal payments on the Swing Line Loan; (4) to interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; (5) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described inAnnex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; (6) t o Obligations under the Canadian Facility Guaranty; (7) to all other Obligations (other than those Obligations listed in clause (8) below) provided by any Lender including expenses of Lenders to the extent reimbursable underSection 11.3; and (8) to Obligations consisting of or arising out of (a) hedging obligations provided by any Lender or any of its Affiliates under any foreign exchange contract, commodity exchange contract, commodity swap agreement, currency swap agreement, or other swap, cap or collar arrangement and (b) any agreement evidencing cash management services provided by any Lender or any of its Affiliates including those related to deposit accounts, overdraft protection or automated clearing house transactions."
- Amendment to Section 6.2(c). Effective as of the date hereof, subclause (c) ofSection 6.2 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(c) so long as no Default or Event of Default has occurred and is continuing and the aggregate total outstanding balance of the Revolving Loan and the Swing Line Loan is less than $2,000,000, Borrowers may make investments, subject to Control Letters in favor of Agent for the benefit of Lenders or otherwise subject to a perfected security interest in favor of Agent for the benefit of Lenders, in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one year from the date of acquisition thereof, (ii) commercial paper maturing no more than one year from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor's Ratings Group or Moody's Investors Service, Inc., (iii) certificates of deposit maturing no more than one year from the date of creation thereof, issued by commercial banks incorporated under the laws of the United States of America, each havin g combined capital, surplus and undivided profits of not less than $300,000,000 and having a senior unsecured rating of "A" or better by a nationally recognized rating agency (an "A Rated Bank"), (iv) time deposits, maturing no more than 30 days from the date of creation thereof with A Rated Banks and (v) mutual funds that invest solely in one or more of the investments described in clauses (i) through (iv) above;provided,however, Borrowers may make any of the foregoing investments in an amount not greater than $500,000 in the aggregate if the aggregate total outstanding balance of the Revolving Loan and the Swing Line Loan is $2,000,000 or greater so long as no Default or Event of Default has occurred and is continuing;"
- Amendment to Annex A. Effective as of the date hereof, the definition of "Grapevine, Texas Real Estate Prepayment" is hereby added toAnnex A to the Credit Agreement to read as follows:
"Grapevine, Texas Real Estate Prepayment" shall mean an unscheduled prepayment of the Term Loan on or after August 11, 2004 by Borrowers in an amount not less than $6,250,000, reduced for any amounts paid pursuant toSection 1.3(b)(v) (whether or not in connection with the sale of the Grapevine, Texas Real Estate )."
- Amendment to Annex A. Effective as of the date hereof, the definition of "Fixed Charges" inAnnex A to the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"Fixed Charges" shall mean, with respect to any Person for any fiscal period, (a) the aggregate of all Interest Expense paid or accrued during such period but excluding any non-cash interest on the Make-Whole Obligation and any non-cash write-off or amortization of existing indebtedness loan costs for such period, plus (b) the sum of (i) scheduled payments of principal with respect to Funded Debt, other than the portion thereof consisting of the Term Loan, during such period, plus (ii) scheduled payments of principal with respect to the Term Loan for (A) the twelve (12) month period immediately following such fiscal period if such fiscal period ends on or before May 14, 2006, or (B) the twelve (12) month period ending on April 30, 2006 if such fiscal period ends after May 14, 2006, plus (c) scheduled payments with respect to Capital Lease Obligations during such period, plus (d) cash taxes during such period.
- Amendment to Annex A. Effective as of the date hereof, the definition of "Obligations" inAnnex A to the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"'Obligations' shall mean all loans, advances, debts, liabilities and obligations, for the performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such performance is then required or contingent, or such amounts are liquidated or determinable) owing by any Credit Party to Agent or any Lender, and all covenants and duties regarding such amounts, of any kind or nature, present or future, whether or not evidenced by any note, agreement, letter of credit agreement or other instrument, arising under the Agreement or any of the other Loan Documents. This term includes all principal, interest (including all interest which accrues after the commencement of any case or proceeding by or against any Credit Party in bankruptcy, whether or not allowed in such case or proceeding), Fees, letter of credit reimbursement obligations, hedging obligations under foreign exchange contracts, commodity exchange contracts, commodity swap agreements, currency swap agreeme nts or other swaps, caps and collar arrangements provided by any Lender or any of its Affiliates, expenses, attorneys' fees and any other sum chargeable to any Credit Party under the Agreement or any of the other Loan Documents or other agreement evidencing cash management services provided by any Lender or any of its Affiliates including those related to deposit accounts, overdraft protection or automated clearing house transactions."
- Amendment to Annex C. Effective as of the date hereof, the last sentence ofsubsection (c) ofAnnex C to the Credit Agreement is hereby deleted and replaced with the following:
"No Borrower shall, or shall cause or permit any Subsidiary thereof to, accumulate or maintain cash in Disbursement Accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements;provided,however, Borrowers shall be permitted to maintain cash in Disbursement Accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements so long as (a) no Default or Event of Default has occurred and is continuing, (b) such excess amount has been advanced to such Disbursement Account by Agent, at its option, as an Advance in connection with a net credit balance on the Revolving Loan and the Swing Line Loan in the Loan Account and (c) such excess amount has been invested in accordance with the terms ofSection 6.2(c) hereof."
- Amendment to Annex F. Effective as of the date hereof,subsection (d) ofAnnex F to the Credit Agreement is hereby amended and restated in its entirety to read as follows:
"(d) Each Borrower, at its own expense, shall deliver to Agent (i) upon Agent's request, and in no event less frequently than once annually, but semi-annually during the first loan year, appraisals of Inventory (including Inventory comprised of machinery or equipment which is held by or on behalf of any Borrower for sale or lease), (ii) at least twice a year at Agent's request, an audit of each Borrower's Accounts and Inventory, each such audit to be conducted by an audit firm selected by Agent or by internal resources of Agent and the results of which shall be satisfactory to Agent, (iii) upon Agent's request, and in no event less frequently than once annually an appraisal of its machinery and equipment, and (iv) upon request by Agent, such other appraisals of its assets as Agent may request, including, but not limited to, appraisals of Real Estate (except that if no Default or Event of Default shall have occurred and be continuing, then appraisals of Real Estate will be required no mo re frequently than once annually), all such appraisals to be conducted by an appraiser, and in form and substance, satisfactory to Agent;provided,however, that if each time that undersection (d)(ii) above audits are to be delivered by each Borrower to Agent (A) no Default or Event of Default is existing or has occurred and is continuing, and (B) for the period of ninety (90) consecutive days immediately preceding the date of determination the (i) average Borrowing Availability for such period of the Borrowers, plus (ii) cash proceeds held by the Borrowers in accordance with Annex C or invested pursuant toSection 6.2(c) during such period is greater than $25,000,000, then each Borrower may deliver such audits as are required insection (d)(ii) above once per loan year; and"
- Amendment to Section 11.2. Effective as of the date hereof,Section 11.2 of the Credit Agreement is hereby amended to add the following subclause (f) thereto:
"(f) Upon the Grapevine, Texas Real Estate Prepayment, so long as no Default or Event of Default has occurred and is continuing, Agent shall deliver to Borrower such mortgage releases and other documents necessary or appropriate to evidence the termination of the Lien of Agent and Lenders on the Grapevine, Texas Real Estate."
- Amendment to Schedule 3.19. Effective as of the date hereof,Schedule 3.19 to the Credit Agreement is hereby replaced withSchedule 3.19 attached hereto.
Except as specifically provided in this Amendment, nothing contained in this Amendment shall be construed as a waiver by Agent or any Lender of any covenant or provision of the Credit Agreement, the other Loan Documents, this Amendment, or of any other contract or instrument between Borrowers or any Credit Party and Agent and any Lender, and the failure of Agent or Lenders at any time or times hereafter to require strict performance by Borrowers or any Credit Party of any provision thereof shall not waive, affect or diminish any rights of Agent or Lenders to thereafter demand strict compliance therewith. Agent and Lenders hereby reserve all rights granted under the Credit Agreement, the other Loan Documents, this Amendment and any other contract or instrument between Borrowers or any Credit Party and Agent or any Lender.
