NINTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS NINTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment Agreement") is made and entered into, effective as of
this __th day of ________, 2000, by and among XXXXXXX AMERICAS CORPORATION, a
Delaware corporation ("BAM"), XXXXXXX TECHNOLOGY LIMITED, a Bermuda
corporation ("BTL" and together with BAM, the "Borrowers"), XXXXXXX
TECHNOLOGY COMPANY, INC., a Delaware corporation ("Xxxxxxx" and together with
the Borrowers, the "Credit Parties"), BANK OF AMERICA, N.A., successor in
interest to NationsBank, N.A., as Agent ("Bank of America" or the "Agent"),
BANK OF AMERICA, N.A., as a Lender, and BANKBOSTON, N.A. (successor in
interest to Bank of Boston Connecticut), as a Lender ("BankBoston").
W I T N E S S E T H:
WHEREAS, the Credit Parties, the Lenders and the Agent have entered into
that certain Amended and Restated Revolving Credit Agreement dated as of
December 31, 1995 (as heretofore or hereafter amended, modified, supplemented,
amended and restated or replaced, the "Credit Agreement"), pursuant to which
the Lenders have agreed to make certain revolving credit loans to the
Borrowers;
WHEREAS, the parties hereto desire to further amend the Credit Agreement in
the manner herein set forth;
WHEREAS, the Borrowers have (i) informed the Agent that they have violated
Section 8.1(d) of the Credit Agreement for the four-quarter period ended on
December 31, 1999, which violation constitutes an Event of Default under
Section 9.1(c) of the Credit Agreement (the "Violation") and (ii) requested
that the Agent and the Lenders waive the Violation (the "Waiver");
WHEREAS, the Borrowers have requested that the Agent and the Lenders make
certain amendments to the Credit Agreement (the "Amendments"); and
WHEREAS, in consideration for the Borrowers' acknowledgment and acceptance
of the terms of this Amendment Agreement, the Agent and Lenders are willing
to grant the Waiver for the four-quarter period ended on December 31, 1999
and make the Amendments;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. The term "Credit Agreement" or "Agreement" (as the case may
be) as used herein and in the Loan Documents shall mean the Credit Agreement
as hereby amended and modified, and as further amended, modified,
supplemented, amended and restated or replaced from time to time as permitted
thereby. Unless the context otherwise requires, all terms used herein without
definition shall have the definitions provided therefor in the Credit Agreement.
2. Waiver Action. Agent and Lenders hereby grant to Borrowers the Waiver
subject to the following conditions:
(a) The Waiver is limited as specified herein and shall not constitute an
amendment or modification of the Credit Agreement or any other Loan Document.
(b) The Waiver is granted only for the specific instance and for the time
period specified herein and in no event shall constitute a waiver for any
period other than the Borrowers' four quarter period ended December 31, 1999
or in any manner create a course of dealing or otherwise impair the future
ability of the Agent and the Lenders to declare a Default or Event of Default
under or otherwise enforce the terms of the Credit Agreement.
3. Credit Agreement Amendments. Subject to the conditions hereof, the Credit
Agreement is hereby amended, effective as of the date hereof, as follows:
(a) The definition of "Revolving Credit Termination Date" in Section 1.1 is
hereby deleted in its entirety and the following is inserted in replacement
thereof:
"Revolving Credit Termination Date" means the earlier to occur of (i) March
31, 2001, or (ii) any other date upon which the Total Commitment shall
terminate in accordance with the terms hereof."
4. Representations and Warranties. Each Credit Party hereby certifies that:
(a) The representations and warranties made by each Credit Party in Article
VI of the Credit Agreement are true on and as of the date hereof, with the same
effect as though such representations and warranties were made on the date
hereof.
(b) There has been no material change in the condition, financial or otherwise,
of Xxxxxxx, any Borrower or any of their respective Subsidiaries since the date
of the most recent financial reports of Xxxxxxx and the Borrowers received by
each Lender under Section 7.1 of the Credit Agreement;
(c) The business and properties of each Credit Party and any of their
respective Subsidiaries are not, and since the date of the most recent
financial reports of Xxxxxxx and the Borrowers received by each Lender under
Section 7.1 of the Credit Agreement have not been, adversely affected in any
substantial way as the result of any fire, explosion, earthquake, accident,
strike, lockout, combination of workmen, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancelllation or loss
of any major contract; and
(d) No event has occurred and no condition exists which, upon the
effectiveness of the amendments contemplated hereby, will constitute a Default
or an Event of Default on the part of any Credit Party under the Credit
Agreement or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
5. Conditions Precedent. The effectiveness of this Amendment Agreement is
subject to the receipt by the Agent of (a) five (5) counterparts of this
Amendment Agreement duly executed by all signatories hereto and (b) all fees
payable by the Borrowers to the Agent and the Lenders on or before the date
hereof.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. None of the terms or conditions of
this Amendment Agreement may be changed, modified, waived or canceled orally
or otherwise, except in accordance with the terms of the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. Counterparts. This Amendment Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. Credit Agreement and Other Loan Documents. All references in any of the
Loan Documents to the "Credit Agreement" shall mean the Credit Agreement as
amended hereby.
10. Reimbursement. The Borrowers agree to reimburse the Agent and the
Lenders for all costs and out-of-pocket expenses, including attorneys' fees,
incurred in connection with the preparation, execution, and delivery of this
Amendment Agreement.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
BORROWERS AND CREDIT PARTIES:
XXXXXXX AMERICAS CORPORATION, as Borrower and Credit Party
By: ____________________________________________
Name:__________________________________________
Title: ___________________________________________
XXXXXXX TECHNOLOGY LIMITED, as Borrower and Credit Party
By: ____________________________________________
Name:__________________________________________
Title: ___________________________________________
XXXXXXX TECHNOLOGY COMPANY, INC., as Credit Party
By:_____________________________________________
Name: __________________________________________
Title:___________________________________________
AGENT:
BANK OF AMERICA, N.A., successor in interest to NationsBank, N.A., as Agent for
the Lenders
By: ____________________________________________
Name:__________________________________________
Title:___________________________________________
SIGNATURE PAGE 1 OF 2
LENDERS:
BANK OF AMERICA, N.A., successor in interest to NationsBank, N.A., as Lender
By: ___________________________________________
Name:_________________________________________
Title:__________________________________________
BANKBOSTON, N.A., successor in interest to Bank of Boston Connecticut, as Lender
By: ____________________________________________
Name:__________________________________________
Title:___________________________________________
SIGNATURE PAGE 2 OF 2
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Doc. No.309979
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