Exhibit 4.4
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of September 25, 2003
(the "THIRD 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 by that certain First Amendment to Credit
Agreement, dated as of July 15, 2003 and that certain Waiver and Second
Amendment to Credit Agreement, dated as of July 24, 2003 (as further 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 new definition defining Adjusted EBITDA under Section 1.1 and (ii) an
adjustment to the EBITDA financial covenant contained in Section 10.6.3,
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 Third 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. AMENDMENTs TO THE CREDIT AGREEMENT
3.1 Adjusted EBITDA Definition. Section 1.1 of the Credit Agreement
is hereby amended by inserting, in its proper alphabetic position, the
definition of Adjusted EBITDA to read as follows:
"Adjusted EBITDA means, for any period, EBITDA for the period of the
four fiscal quarters most recently ended, plus (i) restructuring,
nonrecurring, one-time charges mutually agreed upon, (ii) non-cash
expenses mutually agreed upon, and (iii) proforma adjustments mutually
agreed upon for acquisitions."
3.2 Adjusted EBITDA. Section 10.6.3 of the Credit Agreement is hereby
amended in its entirety to read as follows:
"Adjusted EBITDA. Not permit Adjusted EBITDA to be less than the
applicable amount set forth below for such Computation Period:
Computation Periods
Ending Adjusted 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 $13,000,000
times thereafter"
3.3 Exhibit B. All references in the Credit Agreement to Exhibit B
shall be deemed to be references to the revised Exhibit B in the form of
Attachment A attached hereto and made a part hereof.
4. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Third Amendment, the Borrower hereby
certifies, represents and warrants to the Banks that:
4.1 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 Third
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.
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4.2 Authorization
The Borrower is duly authorized to execute and deliver this Third 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.
4.3 No Conflicts
The execution and delivery of this Third 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.
4.4 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.
4.5 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,
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.
4.6 No Event of Default
As of the date hereof, 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.
5. CONDITIONS PRECEDENT
This Third 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 "THIRD AMENDMENT EFFECTIVE DATE"):
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5.1 Third Amendment
This Third Amendment executed by the Borrower and the Banks.
5.2 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 Third Amendment and the related loan documents.
5.3 Other Documents
Such other documents, certificates and/or opinions of counsel as the Banks
may request.
6. GENERAL
6.1 Governing Law; Severability
This Third Amendment shall be construed in accordance with and governed by
the laws of Illinois. Wherever possible each provision of the Credit Agreement
and this Third 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 Third 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 Third Amendment.
6.2 Successors and Assigns
This Third 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.
6.3 Continuing Force and Effect of Loan Documents
Except as specifically modified or amended by the terms of this Third
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 Third
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.
6.4 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
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part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance
of any financing statement or amendment.
6.5 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.
6.6 Expenses
The Borrower shall pay all costs and expenses in connection with the
preparation of this Third 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 Third 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.
6.7 Counterparts
This Third Amendment may be executed in any number of counterparts, all of
which shall constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
to Credit Agreement as of the date first above written.
WITNESS: NASHUA CORPORATION
/s/ Margaret 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
/s/ Erica Scully
- --------------------------------
By: /s/ Brian Sullivan
Name: Brian Sullivan
Title: Vice President
WITNESS: LASALLE BANK NATIONAL
ASSOCIATION, as Issuing Bank and as a
Bank
/s/ Erica Scully
- -------------------------------
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
ATTACHMENT A
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
To: LaSalle Bank National Association, as Agent
Please refer to the Credit Agreement dated as of March 1, 2002 (as amended
or otherwise modified from time to time, the "Credit Agreement") among Nashua
Corporation (the "Company"), various financial institutions and LaSalle Bank
National Association, as Agent. Terms used but not otherwise defined herein are
used herein as defined in the Credit Agreement.
I. Reports. Enclosed herewith is a copy of the [annual audited/monthly] report
of the Company as at _____________, ____ (the "Computation Date"), which
report fairly presents in all material respects the financial condition and
results of operations (subject to the absence of footnotes and to normal
year-end adjustments) of the Company as of the Computation Date and has
been prepared in accordance with GAAP consistently applied.
II. Financial Tests. The Company hereby certifies and warrants to you that the
following is a true and correct computation as at the Computation Date of
the following ratios and/or financial restrictions contained in the Credit
Agreement:
A. SECTION 10.6.1 - MINIMUM FIXED CHARGE COVERAGE RATIO
1. Consolidated Net Income $________
2. Plus: Interest Expense $________
income tax expense $________
depreciation $________
amortization $________
3. Total (EBITDA) $________
4. Income taxes paid $________
5. Capital Expenditures $________
6. Sum of (4) and (5) $________
7. Remainder of (3) minus (6) $________
8. Interest Expense $________
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9. Required payments of
principal of Funded Debt
(including Term Loans but
excluding Revolving Loans) $________
10. Sum of (8) and (9) $________
11. Ratio of (7) to (10) ____ to 1
12. Minimum Required ____ to 1
B. SECTION 10.6.2 - MAXIMUM FUNDED DEBT TO EBITDA RATIO
1. Funded Debt $________
2. EBITDA $________
(from Item A(3) above)
3. Ratio of (1) to (2) ____ to 1
4. Maximum allowed ____ to 1
C. SECTION 10.6.3-MINIMUM ADJUSTED EBITDA
1. EBITDA
(from Item A(3) above) $_________
2. Restructuring, nonrecurring,
one-time charges mutually
agreed upon $_________
3. Non-cash expenses mutually
agreed upon $_________
4. Proforma adjustments mutually
agreed upon for acquisitions $_________
5. Sum of (1), (2), (3), and (4) $_________
6. Minimum required $_________
D. SECTION 10.6.4 - CAPITAL EXPENDITURES
1. Capital Expenditures for the
Fiscal Year $__________
2. Maximum Permitted Capital
Expenditures $__________
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III. Pricing Schedule Computation
TOTAL DEBT TO EBITDA RATIO
1. Total Debt $__________
2. EBITDA (from item A(3) above) $__________
3. Ratio of (1) to (2) ____ to 1
The Company further certifies to you that no Event of Default or Unmatured Event
of Default has occurred and is continuing.
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