Exhibit 4.3
WAIVER AND
SECOND AMENDMENT TO CREDIT AGREEMENT
This WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of July 24,
2003 (the "WAIVER AND SECOND AMENDMENT"), is entered into among NASHUA
CORPORATION, a Massachusetts corporation (the "BORROWER"), whose address is 11
Trafalgar Square, 2nd Floor, Nashua, New Hampshire 03063, FLEET NATIONAL BANK, a
national Banking association ("FLEET") and LASALLE BANK NATIONAL ASSOCIATION, a
national Banking association ("LASALLE", TOGETHER WITH FLEET, THE "BANKS" AND AS
AGENT FOR THE BANKS "AGENT"), whose address is 135 South LaSalle Street,
Chicago, Illinois 60603
R E C I T A L S:
A. The Borrower and the Banks entered into that certain Credit Agreement
dated as of March 1, 2002 (as amended, restated and modified from time to time,
the "CREDIT AGREEMENT").
B. At the present time the Borrower requests, and the Banks are agreeable
to (i) a decrease to the EBITDA financial covenant contained in Section 10.6.3
and (ii) a waiver of the violations by the Borrower of the Funded Debt to EBITDA
Ratio and EBITDA covenants set forth in Sections 10.6.2 and 10.6.3,
respectively, pursuant to the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrower and the Banks hereby agree as follows:
A G R E E M E N T S:
1. RECITALS
The foregoing Recitals are hereby made a part of this Waiver and Second
Amendment.
2. DEFINITIONS
Capitalized words and phrases used herein without definition shall have
the respective meanings ascribed to such words and phrases in the Credit
Agreement.
3. AMENDMENT TO THE CREDIT AGREEMENT
EBITDA. Section 10.6.3 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"EBITDA. Not permit EBITDA for any Computation Period to be less
than the applicable amount set forth below for such Computation Period:
Computation Periods
Ending EBITDA
------ ------
September 30, 2003 $11,600,000
December 31, 2003 $12,000,000
March 31, 2004 $12,250,000
June 30, 2004 $12,500,000
September 30, 2004 $12,750,000
December 31, 2004 and all
times thereafter" $13,000,000
4. WAIVER OF DEFAULTED COVENANTS The Borrower has informed the Banks that
(i) the Borrower's Funded Debt to EBITDA Ratio for the fiscal quarter ended
6/27/03 was more than the required 2.75 to 1.00 as set forth in Section 10.6.2
of the Credit Agreement, and as such the Borrower failed to comply with the
Funded Debt to EBITDA Covenant set forth in said Section 10.6.2 for such period,
and (ii) the Borrower's EBITDA for the fiscal quarter ended 6/27/03 was less
than the required Twelve Million Dollars ($12,000,000) as set forth in Section
10.6.3 of the Credit Agreement, and as such the Borrower failed to comply with
the EBITDA covenant set forth in said Section 10.6.3 for such period (each a
"DEFAULTED COVENANT" and collectively the "DEFAULTED COVENANTS"). The Borrower
agrees and acknowledges that, as a result of the occurrence of such Defaulted
Covenants, Events of Default have occurred and are continuing under Section
12.1.4 of the Credit Agreement. The Borrower has therefore requested that the
Banks waive compliance by the Borrower with the Defaulted Covenants for the
fiscal quarter ended 6/27/03, as well as the resulting Events of Default.
The Banks hereby waive: (a) compliance by the Borrower with the Defaulted
Covenants for the fiscal quarter ended 6/27/03, (b) the Events of Default
occurring by reason of the Borrower's failure to comply with the Defaulted
Covenants solely for the fiscal quarter ended 6/27/03, and (c) the Bank's
remedies under the Credit Agreement with respect to the Defaulted Covenants and
the subsequent Events of Default. This waiver shall be narrowly construed and
shall neither extend to any other violations under, or default of, the Credit
Agreement, including but not limited to, a violation of the Funded Debt to
EBITDA Ratio and EBITDA covenants for any future period of time, nor shall this
waiver prejudice any rights or remedies which the Banks may have or be entitled
to with respect to such future violations or defaults.
5. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Waiver and Second Amendment, the
Borrower hereby certifies, represents and warrants to the Banks that:
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5.1 Organization
The Borrower is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts, with full and
adequate corporate power to carry on and conduct its business as presently
conducted. The Borrower is duly licensed or qualified in all foreign
jurisdictions wherein the nature of its activities require such qualification or
licensing. The exact legal name of the Borrower is as set forth in the preamble
of this Waiver and Second Amendment, and the Borrower currently does not
conduct, nor has it during the last five (5) years conducted, business under any
other name or trade name, except that some of its operations were conducted
under the name Rittenhouse, Rittenhouse Paper Company or Rittenhouse, L.L.C.
prior to 2002. The Borrower will not change its name, its organizational
identification number, its type of organization, its jurisdiction of
organization or other legal structure.
5.2 Authorization
The Borrower is duly authorized to execute and deliver this Waiver and
Second Amendment and is and will continue to be duly authorized to borrow monies
under the Credit Agreement, as amended hereby, and to perform its obligations
under the Credit Agreement, as amended hereby.
5.3 No Conflicts
The execution and delivery of this Wavier and Second Amendment and the
performance by the Borrower of its obligations under the Credit Agreement, as
amended hereby, do not and will not conflict with any provision of law or of the
articles of incorporation of the Borrower or of any agreement binding upon the
Borrower.
5.4 Validity and Binding Effect
The Credit Agreement, as amended hereby, is a legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms, except as enforceability may be limited by Bankruptcy, insolvency or
other similar laws of general application affecting the enforcement of
creditors' rights or by general principles of equity limiting the availability
of equitable remedies.
5.5 Compliance with Credit Agreement
The representation and warranties set forth in Section 9 of the Credit
Agreement, as amended hereby, are true and correct with the same effect as if
such representations and warranties had been made on the date hereof, with the
exception that all references to the financial statements shall mean the
financial statements most recently delivered to the Banks and except for such
changes as are specifically permitted under the Credit Agreement. In addition,
except for the Defaulted Covenants, the Borrower has complied with and is in
compliance with all of the covenants set forth in the Credit Agreement, as
amended hereby, including, but not limited to, those set forth in Section 10
thereof.
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5.6 No Event of Default
As of the date hereof and except for the Events of Default occurring as a
result of the Defaulted Covenants, no Event of Default under Section 12 of the
Credit Agreement, as amended hereby, or event or condition which, with the
giving of notice or the passage of time, or both, would constitute an Event of
Default, has occurred or is continuing.
6. CONDITIONS PRECEDENT
This Waiver and Second Amendment shall become effective as of the date
above first written after receipt by the Banks of the following documents (and
the date on which all such conditions precedent have been satisfied or waived by
the Banks shall be called the "WAIVER AND SECOND AMENDMENT EFFECTIVE DATE"):
6.1 Waiver and Second Amendment
This Waiver and Second Amendment executed by the Borrower and the Banks.
6.2 Resolutions
A certified copy of resolutions of the Board of Directors and/or
shareholders of the Borrower authorizing the execution, delivery and performance
of this Waiver and Second Amendment and the related loan documents.
6.3 Other Documents
Such other documents, certificates and/or opinions of counsel as the Banks
may request.
6.4 Waiver and Second Amendment Fee
The Borrower agrees to pay to the Banks a Waiver and Second Amendment Fee
in the amount of $20,000 and 00/100 Dollars ($20,000.00) to be split evenly
between LaSalle Bank National Association and Fleet National Bank.
7. GENERAL
7.1 Governing Law; Severability
This Waiver and Second Amendment shall be construed in accordance with and
governed by the laws of Illinois. Wherever possible each provision of the Credit
Agreement and this Waiver and Second Amendment shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of the Credit Agreement and this Waiver and Second Amendment shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of the Credit Agreement and this Waiver
and Second Amendment.
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7.2 Successors and Assigns
This Waiver and Second Amendment shall be binding upon the Borrower and
the Banks and their respective successors and assigns, and shall inure to the
benefit of the Borrower and the Banks and the successors and assigns of the
Banks.
7.3 Continuing Force and Effect of Loan Documents
Except as specifically modified or amended by the terms of this Waiver and
Second Amendment, all other terms and provisions of the Credit Agreement and the
other Loan Documents are incorporated by reference herein, and in all respects,
shall continue in full force and effect. The Borrower, by execution of this
Waiver and Second Amendment, hereby reaffirms, assumes and binds itself to all
of the obligations, duties, rights, covenants, terms and conditions that are
contained in the Credit Agreement and the other Loan Documents.
7.4 Financing Statements
The Borrower hereby irrevocably authorizes the Banks at any time and from
time to time to file in any jurisdiction any initial UCC financing statements
and/or amendments thereto that (a) describe the Collateral, and (b) contain any
other information required by part 5 of Article 9 of the UCC for the sufficiency
or filing office acceptance of any financing statement or amendment.
7.5 References to Credit Agreement
Each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", or words of like import, and each reference to the Credit Agreement in
any and all instruments or documents delivered in connection therewith, shall be
deemed to refer to the Credit Agreement, as amended hereby.
7.6 Expenses
The Borrower shall pay all costs and expenses in connection with the
preparation of this Waiver and Second Amendment and other related loan
documents, including, without limitation, reasonable attorneys' fees and time
charges of attorneys who may be employees of the Banks or any affiliate or
parent of the Banks. The Borrower shall pay any and all stamp and other taxes,
UCC search fees, filing fees and other costs and expenses in connection with the
execution and delivery of this Waiver and Second Amendment and the other
instruments and documents to be delivered hereunder, and agrees to save the
Banks harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such costs and expenses.
7.7 Counterparts
This Waiver and Second Amendment may be executed in any number of
counterparts, all of which shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Waiver and
Second Amendment to Credit Agreement as of the date first above written.
WITNESS: NASHUA CORPORATION
/s/ Margaret M. Callan By: /s/ John L. Patenaude
Name: John L. Patenaude
Title: Vice President-Finance, Chief
Financial Officer and Treasurer
WITNESS: LASALLE BANK NATIONAL
ASSOCIATION, as Agent
- -------------------------
By: /s/ Brian Sullivan
Name: Brian Sullivan
Title: Vice President
WITNESS: LASALLE BANK NATIONAL
ASSOCIATION, as Issuing Bank and as a
- ------------------------- Bank
By: /s/ Brian Sullivan
Name: Brian Sullivan
Title: Vice President
WITNESS: FLEET NATIONAL BANK, as a Bank
/s/ Signature Illegible By: /s/ Kenneth R. Sheldon
Name: Kenneth R. Sheldon
Title: Vice President
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