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Exhibit 10.1.5
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT, dated as of March 30,
2001 (this "Amendment"), among AMTROL HOLDINGS, INC., a Delaware corporation
("Holdings"), AMTROL INC., a Rhode Island corporation (the "Borrower"), the
various financial institutions party to the Credit Agreement referred to below
(the "Banks"), MORGAN STANLEY SENIOR FUNDING, INC., as Documentation Agent (in
such capacity, the "Documentation Agent"), and BANKERS TRUST COMPANY, as
Administrative Agent (in such capacity, the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
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WHEREAS, Holdings, the Borrower, the Banks, the Documentation Agent
and the Administrative Agent are parties to a Credit Agreement, dated as of
November 13, 1996 (as amended, modified or supplemented to the date hereof, the
"Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment, the
parties hereto wish to amend, and the Banks party hereto wish grant a waiver to
certain provisions of, the Credit Agreement, in each case as herein provided;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO CREDIT AGREEMENT.
1. Section 3.03(d) of the Credit Agreement is hereby amended by
deleting the date "November 13, 2001" appearing in the table in said Section and
inserting the date "March 30, 2001" in lieu thereof.
2. Section 4.02(A)(e) of the Credit Agreement is hereby amended by
(i) deleting the second parenthetical appearing in said Section and inserting
the text "(other than (x) proceeds from any Capital Call Contribution made
pursuant to the Capital Contribution Agreement, (y) equity issued to management
and other employees of Holdings and its Subsidiaries as provided for in Section
8.09(a)(ii) and (z) in connection with the Equity Financing)" in lieu thereof
and (ii) inserting the text "(excluding any capital contribution received by the
Borrower from Holdings and made by Holdings with the proceeds of any Capital
Call Contribution pursuant to the Capital Contribution Agreement)" immediately
after the text "with any capital contributions" appearing in said Section.
3. Section 4.02(A) of the Credit Agreement is hereby amended by
inserting the following new clause (j) at the end of said Section:
"(j) On the date on which the Borrower receives any cash proceeds
pursuant to a capital contribution from Holdings made with the proceeds of
a Capital Call Contribution
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pursuant to the Capital Contribution Agreement, an amount equal to 100% of
such cash proceeds shall be applied as a mandatory repayment of principal
of the then outstanding Loans; PROVIDED that, notwithstanding the
foregoing, cash proceeds in an amount equal to only 50% of the Capital Call
Contribution Amount of the respective Capital Call Contribution shall be
applied as a mandatory repayment of principal of the then outstanding
Loans, so long as (i) no Default or Event of Default is then in existence
or would result therefrom and (ii) any cash proceeds not required to be
applied to repay Loans as a result of the application of this proviso are
applied to repurchase Senior Subordinated Notes pursuant to, and in
accordance with the terms of, Section 8.08(a); PROVIDED FURTHER that any
cash proceeds not so used to repurchase Senior Subordinated Notes as
contemplated by the preceding proviso within the time period specified in
Section 8.08(a) shall be applied as a mandatory repayment of principal of
the then outstanding Loans as provided above (without regard to the
preceding proviso);".
4. Section 4.02(B)(a) of the Credit Agreement is hereby amended by
(i) deleting the text "to clause (b)" appearing in said Section and inserting
the text "to clauses (b) and (for purposes of succeeding subclause (x) only)
(j)" in lieu thereof and (ii) inserting the following sentence at the end of
said Section:
"Each mandatory repayment of Loans required to be made pursuant to
Section 4.02(A)(j) shall be applied (I) in the event Revolving Loans are
outstanding at the time of such repayment, to the A Term Loans in an amount
equal to the A TF Capital Call Percentage of such prepayment, to the B Term
Loans in an amount equal to the B TF Capital Call Percentage of such
prepayment and to the Revolving Loans in an amount equal to the Revolving
Capital Call Percentage of such prepayment (but subject to clause (II)
below in the event all Revolving Loans are repaid as a result of the
application of this clause (I)) and (II) in the event no Revolving Loans
are outstanding at the time of such repayment (or all outstanding Revolving
Loans have been repaid in full as a result of the application of preceding
clause (I), then any excess amount of such mandatory repayment shall be
applied), to the A Term Loans in an amount equal to the A TF Percentage of
such prepayment and to the B Term Loans in an amount equal to the B TF
Percentage of such prepayment.".
5. Section 7 of the Credit Agreement is hereby amended by inserting
the following new Section 7.16 at the end of said Section:
"7.16 CONTRIBUTIONS. Holdings will contribute as an equity
contribution to the capital of the Borrower upon its receipt thereof, all
cash proceeds and Senior Subordinated Notes received by it from the Fund or
any other Person as a Capital Call Contribution pursuant to the Capital
Contribution Agreement.".
6. Section 8.02(f) of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing immediately prior to the text "(II) any other"
appearing in said Section and inserting a comma in lieu thereof, (ii) inserting
the text "and (III) any other assets comprising all or a portion of a business
which has negative "EBITDA" for the four fiscal quarters immediately preceding
March 30, 2001 or otherwise identified by the Borrower to the
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Administrative Agent on March 30, 2001" immediately after the text "$500,000 in
any fiscal year of the Borrower" appearing in said Section and (iii) deleting
the text "and (f)(II)" appearing in said Section and inserting the text
",(f)(II) and (f)(III)" in lieu thereof.
7. Section 8.06(g) of the Credit Agreement is hereby amended by
inserting the following text at the end of said Section:
", so long as calculations are made by Holdings (and delivered to the
Administrative Agent) of compliance with the covenants contained in
Sections 8.11, 8.12 and 8.13 for the period of four consecutive fiscal
quarters (taken as one accounting period) most recently ended prior to the
date of such Permitted Acquisition (each, a "Calculation Period"), on a PRO
FORMA Basis as if the respective Permitted Acquisition (as well as all
other Permitted Acquisitions theretofore consummated after the first day of
such Calculation Period) had occurred on the first day of such Calculation
Period".
8. Section 8.08(a) of the Credit Agreement is hereby amended by
inserting the following proviso immediately after the text "of the Senior
Subordinated Notes" appearing in said Section:
"; PROVIDED that (i) Senior Subordinated Notes may be repurchased on
the open market with the cash proceeds of any Capital Call Contribution not
required to be applied as a mandatory repayment of Loans pursuant to
Section 4.02(A)(j), so long as (x) no Default or Event of Default then
exists or would result therefrom, (y) such repurchase is made within
fifteen Business Days following the receipt of such proceeds and (z) any
such repurchase of Senior Subordinated Notes is made for no more than the
face amount of such Senior Subordinated Notes and (ii) the Borrower may
retire and cancel Senior Subordinated Notes contributed to it (through
Holdings) pursuant to any Capital Call Contribution, so long as no Default
or Event of Default then exists or would result therefrom".
9. Section 8.11 of the Credit Agreement is hereby amended by (i)
deleting the text "the ratio of (i) Consolidated EBITDA to (ii) Consolidated
Cash Interest Expense" appearing in said Section and inserting the text
"Interest Coverage Ratio" in lieu thereof, (ii) deleting the table appearing in
said Section in its entirety and inserting in lieu thereof the following new
table:
"Fiscal Quarter Ending Closest To: Ratio
---------------------------------- --------
December 31, 1996 1.60:1.0
March 31, 1997 1.60:1.0
June 30, 1997 1.60:1.0
September 30, 1997 1.60:1.0
December 31, 1997 1.55:1.0
March 31, 1998 1.55:1.0
June 30, 1998 1.35:1.0
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September 30, 1998 1.35:1.0
December 31, 1998 1.35:1.0
March 31, 1999 1.35:1.0
June 30, 1999 1.35:1.0
September 30, 1999 1.45:1.0
December 31, 1999 1.50:1.0
March 31, 2000 1.50:1.0
June 30, 2000 1.55:1.0
September 30, 2000 1.60:1.0
December 31, 2000 1.65:1.0
June 30, 2001 1.35:1.0
September 30, 2001 1.30:1.0
December 31, 2001 1.30:1.0
March 31, 2002 1.45:1.0
June 30, 2002 1.90:1.0
September 30, 2002 1.95:1.0
December 31, 2002 2.00:1.0
March 31, 2003 2.10:1.0
June 30, 2003 2.15:1.0
September 30, 2003 2.25:1.0
December 31, 2003 2.30:1.0
March 31, 2004 2.35:1.0
June 30, 2004 2.50:1.0"
and (iii) inserting the following sentence at the end of said Section:
"Notwithstanding anything to the contrary contained in this Agreement,
all calculations of compliance with this Section 8.11 shall be made on a
PRO FORMA Basis.".
10. The Banks hereby waive any Default or Event of Default that has
arisen pursuant to Section 9.03 of the Loan Agreement solely as a result of the
failure of the Borrower to comply with the financial covenant contained in
Section 8.11 (as in effect prior to the Fifth Amendment Effective Date) for (and
only for) the fiscal quarter ended March 31, 2001.
11. Section 8.12 of the Credit Agreement is hereby amended by (i)
deleting the table appearing in said Section in its entirety and inserting in
lieu thereof the following new table:
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"Fiscal Quarter Ending Closest To: Ratio
---------------------------------- --------
December 31, 1996 6.25:1.0
March 31, 1997 6.25:1.0
June 30, 1997 6.25:1.0
September 30, 1997 6.25:1.0
December 31, 1997 6.40:1.0
March 31, 1998 6.60:1.0
June 30, 1998 7.80:1.0
September 30, 1998 7.80:1.0
December 31, 1998 7.80:1.0
March 31, 1999 7.80:1.0
June 30, 1999 7.75:1.0
September 30, 1999 7.25:1.0
December 31, 1999 6.75:1.0
March 31, 2000 6.50:1.0
June 30, 2000 6.50:1.0
September 30, 2000 6.25:1.0
December 31, 2000 5.85:1.0
June 30, 2001 6.75:1.0
September 30, 2001 6.50:1.0
December 31, 2001 6.25:1.0
March 31, 2002 6.00:1.0
June 30, 2002 5.25:1.0
September 30, 2002 4.75:1.0
December 31, 2002 4.50:1.0
March 31, 2003 4.50:1.0
June 30, 2003 4.50:1.0
September 30, 2003 4.40:1.0
December 31, 2003 4.20:1.0
March 31, 2004 3.80:1.0
June 30, 2004 3.25:1.0"
and (ii) inserting the following sentence at the end of said Section:
"Notwithstanding anything to the contrary contained in this Agreement,
all calculations of compliance with this Section 8.12 shall be made on a
PRO FORMA Basis.".
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12. The Banks hereby waive any Default or Event of Default that has
arisen pursuant to Section 9.03 of the Loan Agreement solely as a result of the
failure of the Borrower to comply with the financial covenant contained in
Section 8.12 (as in effect prior to the Fifth Amendment Effective Date) for (and
only for) the fiscal quarter ended March 31, 2001.
13. Section 8.13 of the Credit Agreement is hereby amended by (i)
deleting the table appearing in said Section in its entirety and inserting in
lieu thereof the following new table:
"Fiscal Quarter Ending Closest To: Amount
---------------------------------- -----------
December 31, 1996 $27,800,000
March 31, 1997 $26,640,000
June 30, 1997 $26,640,000
September 30, 1997 $26,640,000
December 31, 1997 $26,640,000
March 31, 1998 $27,330,000
June 30, 1998 $25,000,000
September 30, 1998 $25,000,000
December 31, 1998 $25,000,000
March 31, 1999 $25,000,000
June 30, 1999 $25,000,000
September 30, 1999 $26,000,000
December 31, 1999 $27,000,000
March 31, 2000 $27,000,000
June 30, 2000 $28,000,000
September 30, 2000 $28,500,000
December 31, 2000 $29,500,000
June 30, 2001 $23,000,000
September 30, 2001 $22,000,000
December 31, 2001 $21,000,000
March 31, 2002 $22,000,000
June 30, 2002 $34,000,000
September 30, 2002 $34,500,000
December 31, 2002 $35,000,000
March 31, 2003 $36,000,000
June 30, 2003 $37,000,000
September 30, 2003 $37,500,000
December 31, 2003 $38,500,000
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March 31, 2004 $39,000,000
June 30, 2004 $39,500,000"
and (ii) inserting the following sentence at the end of said Section:
"Notwithstanding anything to the contrary contained in this Agreement,
all calculations of compliance with this Section 8.13 shall be made on a
PRO FORMA Basis.".
14. The Banks hereby waive any Default or Event of Default that has
arisen pursuant to Section 9.03 of the Loan Agreement solely as a result of the
failure of the Borrower to comply with the financial covenant contained in
Section 8.13 (as in effect prior to the Fifth Amendment Effective Date) for (and
only for) the fiscal quarter ended March 31, 2001.
15. Section 8 of the Credit Agreement is hereby amended by inserting
the following new Section 8.16 at the end of said Section:
"8.16 FINANCIAL COVENANT CURE. Notwithstanding anything to the
contrary contained in Section 8.11 or 8.12, in the event that (I) (i)
Holdings' Interest Coverage Ratio for any Test Period ending on the last
day of any fiscal quarter of Holdings set forth in Section 8.11 is less
than the ratio set forth opposite such fiscal quarter in Section 8.11 or
(ii) Holdings' Leverage Ratio on the last day of any fiscal quarter set
forth in Section 8.12 is greater than the amount set forth opposite such
fiscal quarter and (II) the Fund shall have made a capital contribution to
Holdings in such amount and at such times as may be required by Section 2
of the Capital Contribution Agreement (each such contribution, a "Capital
Call Contribution"), compliance with the covenants contained in Sections
8.11 and 8.12 shall be recalculated on a PRO FORMA Basis to give effect to
the repayment of any Loans which shall have been repaid at such time
pursuant to Section 4.02(A)(j) and to the repurchase or retirement of any
Senior Subordinated Notes which shall have been repurchased or retired at
such time.".
16. Section 9.03 of the Credit Agreement is hereby amended by (i)
inserting the text "(other than, at any time prior (and only prior) to March 31,
2002, Sections 8.11 and 8.12)" immediately after the text "or 8" appearing in
clause (a) of said Section, (ii) redesignating clause (b) of said Section as
clause (c) thereof, (iii) inserting the text "or (b)" immediately after the text
"or clause (a)" appearing in clause (c) of said Section (as redesignated
pursuant to clause (ii) above) and (iv) inserting the following new clause (b)
after clause (a) appearing in said Section:
"(b) at any time prior to March 31, 2002, default in the due
performance or observance by it of any agreement or covenant contained in
Section 8.11 or 8.12 and such default shall continue unremedied for period
of at least 45 days (in the case of any default arising on the last day of
a fiscal quarter occurring during the first three fiscal quarters of a
fiscal year of Holdings) or 60 days (in the case of any default arising on
the last day of the last fiscal quarter of any fiscal year of the
Borrower)".
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17. Section 9 of the Credit Agreement is hereby further amended by
inserting the following new Section 9.10 immediately after Section 9.09
appearing in said Section:
"9.10 CAPITAL CONTRIBUTION AGREEMENT. (i) The Capital Contribution
Agreement or any material provision thereof shall cease to be in full force
and effect except in accordance with the terms thereof, (ii) the Fund or
any Person acting on behalf of the Fund shall deny or disaffirm its
obligations under the Capital Contribution Agreement, (iii) the Fund or any
Person acting on behalf of the Fund shall default in the due performance or
observance of any term, covenant or agreement on its part to be performed
or observed pursuant to the Capital Contribution Agreement or (iv) a
Capital Contribution Event of Default under, and as defined in, the Capital
Contribution Agreement shall occur;".
18. The definition of "Consolidated EBITDA" appearing in Section 10
of the Credit Agreement is hereby amended by inserting the following text
immediately after the second proviso appearing in said definition:
"provided further that, for purposes of determining compliance with
Sections 8.11, 8.12 and 8.13 and any determination pursuant to Section
8.06(g), (x) if one or more Permitted Acquisitions is effected on or after
the first day of the respective Test Period or Calculation Period and on or
prior to the date of determination, Consolidated EBITDA shall be calculated
on a PRO FORMA Basis after giving effect to such Permitted Acquisition and
(y) if one or more Significant Asset Sales is effected on or after the
first day of the respective Test Period or Calculation Period and on or
prior to the date of determination, Consolidated EBITDA shall be calculated
on a PRO FORMA Basis after giving effect to such Significant Asset Sale".
19. The definition of "Consolidated Net Income" appearing in Section
10 of the Credit Agreement is hereby amended by inserting the text "except for
determinations expressly required to be made on a PRO FORMA Basis," immediately
after the text "during such period, (ii)" appearing in said definition.
20. The definition of "Credit Document" appearing in Section 10 of
the Credit Agreement is hereby amended by inserting the text ", the Capital
Contribution Agreement" immediately after the text "the Subsidiary Guaranty"
appearing in said definition.
21. The definition of "Excess Cash Flow" appearing in Section 10 of
the Credit Agreement is hereby amended by deleting the text "and/or (i)"
appearing in said definition and inserting the text ", (i) and/or (j)" in lieu
thereof.
22. Section 10 of the Credit Agreement is hereby amended by (i)
deleting the definitions of "Applicable Base Rate Margin" and "Applicable
Eurodollar Margin" appearing in said Section and (ii) inserting the following
new definitions in appropriate alphabetical order in said Section:
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"A TF Capital Call Percentage" shall mean, at any time of
determination, a fraction (expressed as a percentage) the numerator which
is equal to the aggregate principal amount of A Term Loans outstanding at
such time and the denominator which is equal to the sum of (x) the
aggregate principal amount of Term Loans outstanding at such time, (y) the
aggregate principal amount of Swingline Loans and Revolving Loans
outstanding at such time and (z) the aggregate amount of Letter of Credit
Outstandings at such time.
"Acquired EBITDA" shall mean, for any period, Consolidated EBITDA of
the Person or business, division or product line being acquired pursuant to
a Permitted Acquisition for such period (determined in accordance with the
definition of Consolidated EBITDA contained herein, but treating references
therein and in any other defined terms used in determining Consolidated
EBITDA to "Holdings" to instead be references to the Person or business,
division or product line being acquired pursuant to the respective
Permitted Acquisition and without giving effect to clause (iv) of, and the
provisos contained in, the definition of Consolidated EBITDA and to clauses
(iv), (v), (vi), (vii) and (viii) of the definition of Consolidated Net
Income used in determining Consolidated EBITDA).
"Applicable Base Rate Margin" shall mean (i) in the case of A Term
Loans, Revolving Loans and Swingline Loans, 2.50% LESS the Margin Reduction
Discount, if any and (ii) in the B Term Loans, 3.00%.
"Applicable Eurodollar Margin" shall mean (i) in the case of A Term
Loans, Revolving Loans and Swingline Loans, 3.50% less the Margin Reduction
Discount, if any and (ii) in the B Term Loans, 4.00%.
"B TF Capital Call Percentage" shall mean, at any time of
determination, a fraction (expressed as a percentage) the numerator which
is equal to the aggregate principal amount of B Term Loans outstanding at
such time and the denominator which is equal to the sum of (x) the
aggregate principal amount of Term Loans outstanding at such time, (y) the
aggregate principal amount of Swingline Loans and Revolving Loans
outstanding at such time and (z) the aggregate amount of Letter of Credit
Outstandings at such time.
"Calculation Period" shall have the meaning provided in Section
8.06(g).
"Capital Call Contribution" shall have the meaning provided in Section
8.16.
"Capital Call Contribution Amount" shall mean, with respect to any
Capital Call Contribution, an amount equal to the sum of (i) the aggregate
amount of all cash contributed to the Borrower (via Holdings) pursuant to
such Capital Call Contribution and (ii) the aggregate principal amount of
all Senior Subordinated Notes contributed to the Borrower (via Holdings)
pursuant to such Capital Call Contribution.
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"Capital Contribution Agreement" shall mean that certain Capital
Contribution and Support Agreement, dated as of March 30, 2001, among the
Administrative Agent, Holdings, the Borrower and Cypress Merchant Banking
Partners L.P. in the form of Exhibit N hereto, as the same may be amended,
modified and/or supplemented from time to time in accordance with the terms
hereof and thereof.
"Fund" shall mean Cypress Merchant Bank Partners, L.P., a Delaware
limited partnership, and/or Cypress Offshore Partners L.P., a Cayman Island
limited partnership.
"Interest Coverage Ratio" shall mean, as to any Person, for any
period, the ratio of Consolidated EBITDA of such Person to Consolidated
Cash Interest Expense of such Person for such period.
"PRO FORMA Basis" shall mean, in connection with any calculation of
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (w) the incurrence of
any Indebtedness (other than revolving Indebtedness, except to the extent
same is incurred to refinance other outstanding Indebtedness or to finance
Permitted Acquisitions) after the first day of the relevant Calculation
Period or Test Period as if such Indebtedness had been incurred or issued
(and the proceeds thereof applied) on the first day of the relevant
Calculation Period or Test Period, (x) the permanent repayment or
retirement of any Indebtedness (other than revolving Indebtedness, except
to the extent accompanied by a permanent commitment reduction) after the
first day of the relevant Calculation Period or Test Period as if such
Indebtedness had been retired or redeemed on the first day of the relevant
Calculation Period or Test Period, (y) the consummation of any Significant
Asset Sale after the first day of the relevant Calculation Period or Test
Period as if such Significant Asset Sale had been consummated on the first
day of the relevant Calculation Period or Test Period and (z) the Permitted
Acquisition, if any, then being (or proposed to be) consummated as well as
any other Permitted Acquisition consummated after the first day of the
relevant Calculation Period or Test Period and on or prior to the date of
the respective Permitted Acquisition then being (or proposed to be)
effected, with the following rules to apply in connection therewith:
(i) all Indebtedness (x) (other than revolving Indebtedness, except
to the extent same is incurred to refinance other outstanding Indebtedness
or to finance Permitted Acquisitions) incurred or issued after the first
day of the relevant Calculation Period or Test Period (whether incurred to
finance a Permitted Acquisition, to refinance Indebtedness or otherwise)
shall be deemed to have been incurred or issued (and the proceeds thereof
applied) on the first day of the respective Calculation Period or Test
Period and remain outstanding through the date of determination and (y)
(other than revolving Indebtedness, except to the extent accompanied by a
permanent commitment reduction) permanently retired or redeemed after the
first day of the relevant Calculation Period or Test Period shall be deemed
to have been retired or redeemed on the first day of the respective
Calculation Period or Test Period and remain retired through the date of
determination;
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(ii) all Indebtedness assumed to be outstanding pursuant to preceding
clause (i) shall be deemed to have borne interest at (x) the rate
applicable thereto, in the case of fixed rate indebtedness or (y) the rates
which would have been applicable thereto during the respective period when
same was deemed outstanding, in the case of floating rate Indebtedness
(although interest expense with respect to any Indebtedness for periods
while same was actually outstanding during the respective period shall be
calculated using the actual rates applicable thereto while same was
actually outstanding);
(iii) in making any determination of Consolidated EBITDA on a PRO
FORMA Basis, so long as the Acquired EBITDA of the Person or business,
division or product line being acquired pursuant to the respective
Permitted Acquisition has been audited for the entire Calculation Period by
any of the "big six" accounting firms or another accounting firm acceptable
to the Agent, PRO FORMA effect shall be given to any Permitted Acquisition
effected during the respective Calculation Period or Test Period (or
thereafter for purposes of Section 8.06(g)) (and such Acquired EBITDA shall
be included in the calculation of Consolidated EBITDA) as if such Permitted
Acquisition had occurred on the first day of the respective Calculation
Period or Test Period, as the case may be, and taking into account
factually supportable and identifiable cost savings and expenses which
would otherwise be accounted for as an adjustment pursuant to Article 11 of
Regulation S-X under the Securities Act, as if such cost savings or
expenses were realized on the first day of the respective period; and
(iv) in making any determination of Consolidated EBITDA on a PRO FORMA
Basis, PRO FORMA effect shall be given to any Significant Asset Sale
effected during the respective Calculation Period or Test Period (or
thereafter for purposes of Section 8.06(g)) as if same had occurred on the
first day of the respective Calculation Period or Test Period, as the case
may be.
Notwithstanding anything to the contrary contained above, (x) for purposes
of Sections 8.11, 8.12 and 8.13 PRO FORMA effect (as otherwise provided
above) shall only be given for events or occurrences which occurred during
the respective Test Period but not thereafter and (y) for purposes of
Section 8.02 PRO FORMA effect (as otherwise provided above) shall be given
for events or occurrences which occurred during the respective Calculation
Period and thereafter but on or prior to the respective date of
determination.
"Revolving Capital Call Percentage" shall mean, at any time of
determination, a fraction (expressed as a percentage) the numerator which
is equal to the sum of (i) the aggregate principal amount of Swingline
Loans and Revolving Loans outstanding at such time plus (ii) the aggregate
amount of Letter of Credit Outstandings at such time and the denominator
which is equal to the sum of (x) the aggregate principal amount of Term
Loans outstanding at such time, (y) the aggregate principal amount of
Swingline Loans and Revolving Loans outstanding at such time and (z) the
aggregate amount of Letter of Credit Outstandings at such time.
"Significant Asset Sale" shall mean and include (i) any sale or
disposition of any business or asset constituting an Asset Sale, the
"enterprise value" of which business or
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asset (I.E., the aggregate of (x) the Net Cash Proceeds received by the
Borrower and its Subsidiaries from the sale or disposition of such business
or asset and (y) the aggregate amount of Indebtedness assigned to the buyer
in connection with such sale or disposition) equals or exceeds $500,000 and
(ii) that certain sale of assets of the Borrower and its Subsidiaries
identified to the Administrative Agent on March 30, 2001.
23. Section 12.07(a) of the Credit Agreement is hereby amended by
inserting the following proviso immediately after the proviso appearing in said
Section:
"PROVIDED FURTHER, that to the extent expressly required pursuant to
the provisions of this Agreement, certain calculations shall be made on a
PRO FORMA Basis".
24. The Credit Agreement is hereby amended by adding Exhibit N
thereto in the form attached hereto as Exhibit N.
II. MISCELLANEOUS PROVISIONS.
1. In order to induce the Banks to enter into this Amendment, each
of Holdings and the Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Fifth
Amendment Effective Date, after giving effect to this Amendment; and
(b) all of the representations and warranties contained in the
Credit Agreement or the other Credit Documents are true and correct in all
material respects on the Fifth Amendment Effective Date, both before and
after giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Fifth
Amendment Effective Date (it being understood that any representation or
warranty made as of a specific date shall be true and correct in all
material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
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5. This Amendment shall become effective on the date (the "Fifth
Amendment Effective Date") when each of the following conditions shall have been
satisfied:
(i) Holdings, the Borrower and the Required Banks shall have signed a
counterpart hereof (whether the same or different counterparts) and shall
have delivered (including by way of facsimile transmission) the same to the
Administrative Agent at its Notice Office;
(ii) Cypress Merchant Banking Partners L.P., Holdings and the Borrower
shall have duly authorized, executed and delivered the Capital Contribution
Agreement in the form of Exhibit N to the Credit Agreement and the Capital
Contribution Agreement shall be in full force and effect;
(iii) the Borrower shall have paid to the Administrative Agent for
distribution to each Bank that has executed a counterpart hereof on or
prior to 5:00 P.M. (New York time) on March 30, 2001 an amendment fee equal
to 0.25% of the sum of (x) its Revolving Commitment, if any, as in effect
on the Fifth Amendment Effective Date (immediately after giving effect
thereto and to the reduction of the Total Revolving Loan Commitment
required pursuant to Section 3.03(d) of the Credit Agreement (as amended
hereby) PLUS (y) the aggregate outstanding principal amount of its Term
Loans, if any, immediately prior to the Fifth Amendment Effective Date;
(iv) the Administrative Agent shall have received from Cypress
Merchant Banking Partners L.P. certified copies of resolutions of its
Management Committee with respect to the Capital Contribution Agreement and
such resolutions shall be reasonably satisfactory to the Administrative
Agent; and
(v) the Administrative Agent shall have received from Simpson,
Thacher & Bartlett, special New York counsel to the Credit Parties and
Cypress Merchant Banking Partners L.P., an opinion addressed to the
Administrative Agent and each of the Lenders and dated the Fifth Amendment
Effective Date in form and substance reasonably satisfactory to the
Administrative Agent, and covering such matters incident to this Amendment
as the Administrative Agent may reasonably request.
6. From and after the Fifth Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Amendment as of the date first above
written.
AMTROL HOLDINGS, INC.
By: /s/ David P. Spalding
------------------------------------------
Name:
Title:
AMTROL INC.
By: /s/ Larry T. Guillemette
------------------------------------------
Name:
Title:
BANKERS TRUST COMPANY, Individually and as
Administrative Agent
By: /s/ Susan L. LeFevre
------------------------------------------
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
Individually and as Documentation Agent
By: /s/ T. Morgan Edwards II
------------------------------------------
Name:
Title:
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BANKBOSTON, N.A.
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
------------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
------------------------------------------
Name:
Title:
CITIZENS FINANCIAL GROUP INC
By:
------------------------------------------
Name:
Title:
FIRST SOURCE FINANCIAL LLP
By First Source Financial Inc.,
Its manager
By:
------------------------------------------
Name:
Title:
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FLEET NATIONAL BANK
By:
------------------------------------------
Name:
Title:
SOCIETE GENERALE
By: /s/ Cynthia A. Jay
------------------------------------------
Name:
Title:
AMARA-1 FINANCE LTD.
By: /s/ Gregory Stoeckle
------------------------------------------
Name:
Title:
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CERES FINANCE LTD.
By: /s/ Gregory Stoeckle
------------------------------------------
Name:
Title:
KZH PAMCO LLC
By: /s/ Kimberly Rowe
------------------------------------------
Name:
Title:
KATONAH I, LTD.
By: /s/ Ralph Della Rocca
------------------------------------------
Name:
Title:
KZH HIGHLAND - 2 LLC
By: /s/ Kimberly Rowe
------------------------------------------
Name:
Title:
AVALON CAPITAL LTD - 2
By: Invesco Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Gregory Stoeckle
------------------------------------------
Name:
Title:
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