FIFTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "Fifth
Amendment") dated as of February 5, 1997, is to that Amended and Restated Credit
Agreement dated as of October 30, 1995 (as amended by that First Amendment to
Amended and Restated Credit Agreement dated as of December 8, 1995, as further
amended by that Second Amendment to Amended and Restated Credit Agreement dated
as of November 14, 1996, as further amended by that Third Amendment to Amended
and Restated Credit Agreement dated as of November 21, 1996, as further amended
by that Fourth Amendment to Amended and Restated Credit Agreement dated as of
December 30, 1996, and as amended and modified hereby and as further amended and
modified from time to time hereafter, the "Credit Agreement"; terms used but not
otherwise defined herein shall have the meanings assigned in the Credit
Agreement), by and among NIMBUS CD INTERNATIONAL, INC., as Parent and Guarantor,
NIMBUS MANUFACTURING INC., as U.S. Borrower, NIMBUS MANUFACTURING (UK) LIMITED,
as U.K. Borrower, the Lenders party thereto and NATIONSBANK, N.A., as Agent (the
"Agent").
W I T N E S S E T H
WHEREAS, the Lenders have, pursuant to the terms of the Credit Agreement,
made available to the Borrowers a $50,000,000 revolving credit facility;
WHEREAS, the Borrowers wish to amend the Credit Agreement to modify
certain provisions contained therein;
WHEREAS, the Requisite Lenders have agreed to the requested amendment on
the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
A. The Credit Agreement is amended in the following respect:
1. The definition of "Consolidated Capital Expenditures" in Section
1.1 of the Credit Agreement is amended and modified to read as follows:
"Consolidated Capital Expenditures" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash
or other consideration or accrued as a liability and including that
portion of Capital Leases which is capitalized on the consolidated
balance sheet of Company and its Subsidiaries) by Company and its
Subsidiaries during that period then in conformity with GAAP, are
included in "purchases of property, plant or equipment" or
comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries plus (ii) to the extent not
covered by clause (i) of this definition, the aggregate of all
expenditures by Company and its Subsidiaries during that period to
acquire (by purchase or otherwise) the business, property (except
inventory in the ordinary course of business) or fixed assets of any
Person, or stock or other evidence of beneficial ownership of any
Person that, as a result of the acquisition of such stock or other
evidence, becomes a Subsidiary of Company; provided, however, that
Investments with respect to share capital contributions to
EuroNimbus S.A. permitted pursuant to Section 7.3 shall not be
included in the determination of Consolidated Capital Expenditures
hereunder."
2. Sections 7.1(v) and 7.1(vi) of the Credit Agreement are
amended and modified to read as follows:
"(v) Company may become and remain liable with respect to
Indebtedness to any of its wholly-owned Subsidiaries, and any
wholly-owned Subsidiary of Company (other than EuroNimbus S.A. in
the event it becomes a wholly-owned Subsidiary) may become and
remain liable with respect to Indebtedness to Company or any other
wholly-owned Subsidiary of Company provided that (a) all such
intercompany Indebtedness shall be evidenced by promissory notes,
(b) all such intercompany Indebtedness owned by Company to any of
its respective Subsidiaries shall be subordinated in right of
payment to the payment in full of the Obligations pursuant to the
terms of the applicable promissory notes or an intercompany
subordination agreement, and (c) any payment by Company or by any
Subsidiary of Company under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any intercompany
Indebtedness owed by Company or by such Subsidiary to Company or to
any of its Subsidiaries for whose benefit such payment is made;
(vi) Company and its Subsidiaries may become and remain liable
with respect to other Indebtedness in an aggregate principal amount
not to exceed $3,000,000, less the aggregate amount of any liability
with respect to Contingent Obligations outstanding pursuant to
clause (b) of subsection 7.4(ii); provided, however, that with
respect to the fiscal years ending March 31, 1998 and March 31, 1999
only, EuroNimbus S.A. may become and remain liable with respect to
other Indebtedness in an aggregate amount at any time outstanding
not to exceed $12,000,000; provided, further, that at any time
occurring thereafter, EuroNimbus S.A. may become and remain liable
with respect to other Indebtedness in an aggregate amount at any
time outstanding not to exceed $16,500,000."
3. Section 7.3 of the Credit Agreement is amended and modified
in its entirety to read as follows:
"7.3 Investments; Joint Ventures.
Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, make or own any Investment
in any Person, including any Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may make and own
other Investments (excluding Investments in EuroNimbus
S.A.) in an aggregate amount not to exceed $1,500,000; and
(iii) Company and its Subsidiaries may make and own
Investments with respect to share capital contributions to
EuroNimbus S.A. in an aggregate amount not to exceed
$5,000,000."
B. Notwithstanding the provisions of Sections 6.09 and 6.10 of the Credit
Agreement, the Lenders hereby confirm and agree that EuroNimbus S.A. shall not
be required to become a Subsidiary Guarantor under the Credit Agreement;
provided, however, if Company or any of its Subsidiaries shall at any time
during the term of the Credit Agreement pledge or otherwise encumber the capital
stock of EuroNimbus S.A., then an Event of Default shall be deemed to have
occurred under the terms of the Credit Agreement.
C. Company hereby represents and warrants that (except as otherwise
permitted under the terms of the Credit Agreement) with respect to any grants
extended to, or in favor of, EuroNimbus S. A. by (a) the Government of the
Grand Duchy of Luxembourg or any agency or instrumentality thereof (the
"Government), neither Company nor any of its Subsidiaries (other than
EuroNimbus S. A.) shall incur any repayment obligation to the Government
under any circumstances, and (b) with respect to the Societe Nationale de
Credit et d'Investissement ("SNCI"), neither Company nor any of its
Subsidiaries (other than EuroNimbus S.A.) shall incur any repayment
obligation to SNCI under any circumstances.
D. The Borrowers will execute such additional documents as are
reasonably requested by the Lenders to reflect the terms and conditions of
this Fifth Amendment.
E. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits) remain in full force and effect.
F. This Fifth Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Fifth Amendment to produce or
account for more than one such counterpart.
G. This Fifth Amendment and the Credit Agreement, as amended hereby, shall
be deemed to be contracts made under, and for all purposes shall be construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Fifth Amendment to Amended and Restated Credit Agreement to be duly
executed under seal and delivered as of the date and year first above written.
COMPANY: NIMBUS CD INTERNATIONAL, INC.,
as Parent and Guarantor
By___________________________________
Name_________________________________
Title__________________________________
U.S. BORROWER NIMBUS MANUFACTURING INC.
By___________________________________
Name_________________________________
Title__________________________________
U.K. BORROWER NIMBUS MANUFACTURING (UK) LIMITED
By___________________________________
Name_________________________________
Title__________________________________
BANKS NATIONSBANK, N.A., individually in its capacity
as a Lender and in its capacity as Agent
By___________________________________
Name_________________________________
Title__________________________________
BANK OF SCOTLAND
By___________________________________
Name_________________________________
Title__________________________________
MIDLAND BANK, PLC
By___________________________________
Name_________________________________
Title__________________________________
