AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Amendment"), dated as of April __, 2000, among
Xxxxx Technologies, Inc., a Delaware corporation ("Borrower"), the Lenders
party to the Credit Agreement referred to below ("Lenders") and General
Electric Capital Corporation, a New York corporation, as agent for said Lenders
("Agent"), to the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Borrower, Agent and Lenders have entered into that certain
Amended and Restated Credit Agreement, dated as of December 31, 1998 (as
heretofore amended, the "Credit Agreement"; the terms defined in Credit
Agreement being used herein as therein defined, unless otherwise defined
herein);
WHEREAS, Borrower has requested that Agent and Lenders amend the Credit
Agreement to increase the maximum aggregate amount of Permitted Stock Buy Backs
thereunder; and
WHEREAS, Agent and Lenders party hereto are willing to amend the Credit
Agreement, subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereby agree as follows:
SECTION 1. AMENDMENT TO ANNEX A TO THE CREDIT AGREEMENT. Annex A to the
Credit Agreement is hereby amended by deleting from the definition of the term
"Permitted Stock Buy Back" the phrase "$30 million" therein and substituting in
lieu thereof the phrase "$50,000,000".
SECTION 2. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Agent and Lenders as follows:
(a) All of the representations and warranties of Borrower contained in
the Credit Agreement and in the other Loan Documents are true and correct on
the date hereof as though made on such date, except to the extent that any such
representation or warranty expressly relates to an earlier date, for changes
permitted or contemplated by the Credit Agreement or as otherwise disclosed in
writing to Agent and Lenders. No Default or Event of Default has occurred and
is continuing or would result from the transactions contemplated hereby.
(b) The execution, delivery and performance by Borrower of this
Amendment have been duly authorized by all necessary or proper corporate action
and do not require the consent or approval of any Person which has not been
obtained.
(c) This Amendment has been duly executed and delivered by Borrower and
each of this Amendment and the Credit Agreement as amended hereby constitutes a
legal, valid and binding obligation of Borrower, enforceable against Borrower
in accordance with its terms, subject as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
SECTION 3. EFFECT ON THE LOAN DOCUMENTS. (a) Upon the effectiveness of
this Amendment, each reference in any Loan Document to "this Agreement",
"hereunder", "herein", or words of like import, and each reference in any other
Loan Document to such Loan Document, shall mean and be a reference to such Loan
Document as amended hereby.
(b) Except as certain provisions are specifically amended or waived
herein, the Credit Agreement shall remain in full force and effect and is
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a modification of any
right, power, or remedy of the Agent or the Lenders under any of the Loan
Documents, nor constitute a modification of any provision of any of the Loan
Documents.
SECTION 4. EFFECTIVENESS. This Amendment shall become effective as of the
date first set forth above, provided that each of the following conditions has
been satisfied on the date hereof, including the delivery to Agent of each of
the documents set forth below in form and substance satisfactory to Agent:
(a) Counterparts of this Amendment duly executed by Borrower, the
Required Lenders and Agent; and
(b) All of the representations and warranties of Borrower contained in
Section 2 hereof shall be true and correct and certified by a certificate of an
officer of Borrower.
SECTION 5. EXPENSES. Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for Agent with respect
thereto.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by, construed
and enforced in accordance with the laws of the State of New York, without
regard to conflict of laws principles thereof.
SECTION 7. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXX TECHNOLOGIES, INC.
By:_________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender
By:___________________________
Name:
Title:
BANK OF AMERICA, N.A. (formerly NationsBank, N.A.),
as Lender
By:___________________________
Name:
Title:
BANK ONE, MICHIGAN (formerly, NBD BANK), as Lender
By:___________________________
Name:
Title:
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ABN AMRO BANK, N.V., as Lender
By:___________________________
Name:
Title:
NATIONAL CITY BANK, as Lender
By:___________________________
Name:
Title:
THE HUNTINGTON NATIONAL BANK, as Lender
By:___________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Lender
By:___________________________
Name:
Title:
4
AMSOUTH BANK, as Lender
By:___________________________
Name:
Title:
THE PROVIDENT BANK, as Lender
By:___________________________
Name:
Title:
FIRSTAR BANK, N.A.
(formerly, Star Bank, N.A.), as Lender
By:___________________________
Name:
Title:
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