AMENDMENT NO. 5 TO REVOLVING CREDIT AGREEMENT
AMENDMENT No. 5 TO REVOLVING CREDIT AGREEMENT, dated as of May 15,
1998, among XXXXX XXXXXX, INC., a corporation organized under the laws of the
State of Delaware (the "Borrower"), and THE CHASE MANHATTAN BANK, a New York
banking corporation ("Chase"), FLEET BANK, NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States of America
("Fleet"), COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch, a cooperative banking organization organized
under the laws of The Netherlands ("Rabobank Nederland"), and EUROPEAN
AMERICAN BANK, a New York banking corporation ("EAB"; collectively with Chase,
Fleet and Rabobank Nederland, the "Banks"), and Chase, as Agent for the Banks.
RECITALS:
A. The parties hereto entered into that Revolving Credit Agreement,
dated as of January 31, 1997 (such agreement as it has been amended through
the date hereof, the "Credit Agreement").
B. The parties hereto desire to amend the Credit Agreement on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO REVOLVING CREDIT AGREEMENT.
This Amendment shall be deemed to be an amendment to the Credit
Agreement and shall not be construed in any way as a replacement or
substitution therefor. All of the terms and provisions of this Agreement are
hereby incorporated by reference into the Credit Agreement as if such terms
were set forth in full therein.
Section 1.1. Section 1.1 of the Credit Agreement is hereby amended by
inserting the following defined terms therein in alphabetical order:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this
Agreement expected to be January 1, 1999) or the date on which
circumstances arise which (in the reasonable opinion of the
Agent) have substantially the same effect and result in
substantially the same consequences as commencement of the
third stage of EMU as contemplated by the Treaty on European
Union.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of changeover to or operation of a
single or unified European currency (whether known as the euro
or otherwise), being in part the implementation of the third
stage or EMU.
"euro" means the single currency of participating member states
of the European Union.
"euro unit" means the currency unit of the euro.
"Material Adverse Change" or "Material Adverse Effect" means as
to any Person a material adverse change in or effect on (as the
case may be) the business, condition (financial or otherwise),
operations, performance or properties of such Person or other
event or occurrence that could have a material adverse effect
on (i) the ability of any of the Borrower or the Guarantors to
perform its obligations under any of the Facility Documents to
which it is a party or any of its other obligations incurred in
the ordinary course of its business as and when such
obligations are due or (ii) the rights and remedies of the
Agent or any Bank under any Facility Document.
"national currency unit" means the unit of currency (other than
a euro unit) of a participating member state.
"participating member state" means each state so described in
any EMU legislation.
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single Xxxxxxxx Xxx 0000 and the
Maastricht Treaty (which was signed at Maastricht on February
7, 1992, and came into force on November 1, 1993), as amended
from time to time."
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Section 1.2. The definition of the term "Post-Closing Guarantors"
contained in Section 1.1 of the Credit Agreement is hereby amended by deleting
the amount "$10,000,000" in the fourth line thereof in between the words
"States" and "and", and inserting the amount "$25,000,000" in its stead.
Section 1.3. Section 2.4(c) of the Credit Agreement is hereby amended
by deleting the phrase "twelve (12) different Interest Periods" therefrom and
substituting the following in its stead:
"fifteen (15) different Interest Periods".
Section 1.4. Article 6 of the Credit Agreement is hereby amended by
inserting the following new Section therein immediately following Section 6.22
thereof:
"Section 6.23. Year 2000 Compliance.
Any reprogramming required to permit the Borrower to conduct
its business without Material Adverse Effect to the Borrower,
or to the Borrower and its Subsidiaries taken as a whole,
through the proper functioning, in and following the year 2000,
of (i) the Borrower's computer systems and (ii) equipment
containing embedded microchips (including systems and equipment
supplied by others or with which Borrower's systems interface)
and the testing of all such systems and equipment, as so
reprogrammed, will be completed by September 28, 1999. The cost
to the Borrower of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the
Borrower (including, without limitation, reprogramming errors
and the failure of others' systems or equipment) will not
result in a Default or a Material Adverse Effect to the
Borrower, or to the Borrower and its Subsidiaries taken as a
whole. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its
Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to
be, sufficient to permit the Borrower to conduct its business
without Material Adverse Effect to the Borrower, or to the
Borrower and its Subsidiaries taken as a whole."
Section 1.5. Section 8.1(f) of the Credit Agreement is hereby amended
by deleting the amount "$50,000,000" in the fourth line thereof between the
words "exceed" and "at
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any time outstanding", and inserting the amount "$200,000,000" in its stead.
Section 1.6. Section 9.2 of the Credit Agreement is hereby amended by
deleting the amount "$20,000,000" in the fourth line thereof, and inserting
the amount "$50,000,000" in its stead.
Section 1.7. Article 12 of the Credit Agreement is hereby amended by
adding a new Section 12.15 immediately following the last sentence of Section
12.14. Confidentiality thereof, which new Section 12.15 shall be and read in
its entirety as follows:
"Section 12.15. European Economic and Monetary Union.
(a) Effectiveness of Provisions. The provisions of paragraphs
(b) to (i) below (inclusive) shall be effective at and from the
commencement of the third stage of EMU, provided, that if and
to the extent that any such provision relates to any state (or
the currency of such state) that is not a participating member
state on the commencement of the third stage of EMU, such
provision shall become effective in relation to such state (and
the currency of such state) at and from the date on which such
state becomes a participating member state.
(b) Redenomination and Alternative Currencies. Each Obligation
under this Agreement which has been denominated in the national
currency unit of a participating member state shall be
redenominated into the euro unit in accordance with EMU
legislation, provided, however, if and to the extent that any
EMU legislation provides that following the commencement of the
third stage of EMU an amount denominated either in the euro or
in the national currency unit of a participating member state
and payable within that participating member state by crediting
an account of the creditor can be paid by the debtor either in
the euro unit or in that national currency unit, each party to
this Agreement shall be entitled to pay or repay any such
amount either in the euro unit or in such national currency
unit.
(c) Loans. Any Loan in the currency of a participating member
state shall be made in the euro unit.
(d) Banking Day. With respect to any amount denominated or to
be denominated in the euro or a national currency unit, any
reference to a "Banking Day" shall be construed as a reference
to a day (other than a Saturday or Sunday) on which banks are
generally open for
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business in
(i) London and New York City, and
(ii) Frankfurt am Main, Germany (or such principal
financial center or centers in such participating member
state or states as the Administration Agent may from time
to time nominate for this purpose).
(e) Payments to the Agent. Provisions under this Agreement
relating to payments to be made to the Agent, including without
limitation Section 3.7, shall be construed so that, in relation
to the payment of any amount of euro units or national currency
units, such amount shall be made available to the Agent in
immediately available, freely transferable, cleared funds to
such account with such bank in Frankfurt am Main, Germany (or
such other principal financial center in such participating
member state as the Agent may from time to time nominate for
this purpose).
(f) Payments by the Agent to the Banks. Any amount payable by
the Agent to the Banks under this Agreement in the currency of
a participating member state shall be paid in the euro unit.
(g) Payments by the Agent Generally. With respect to the
payment of any amount denominated in the euro or in a national
currency unit, the Agent shall not be liable to the Borrower or
any of the Banks in any way whatsoever for any delay, or the
consequences of any delay, in the crediting to any account of
any amount required by this Agreement to be paid by the Agent
if the Agent shall have taken all relevant steps to achieve, on
the date required by this Agreement, the payment of such amount
in immediately available, freely transferable, cleared funds
(in the euro unit or, as the case may be, in a national
currency unit) to the account with the bank in the principal
financial center in the participating member state which the
Borrower or, as the case may be, any Bank shall have specified
for such purpose. In this paragraph (g), "all relevant steps"
means all such steps as may be prescribed from time to time by
the regulations or operating procedures of such clearing or
settlement system as the Agent may from time to time reasonably
determine for the purpose of clearing or settling payments of
the euro.
(h) Basis of Accrual. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the currency
of any state
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that becomes a participating state shall be inconsistent with
any generally accepted and recognized convention or practice in
the London Interbank Market for the basis of accrual of
interest or fees in respect of the euro, such convention or
practice shall replace such expressed basis effective as of and
from the date on which such state becomes a participating
member state; provided, that if any Loan in the currency of
such state is outstanding immediately prior to such date, such
replacement shall take effect, with respect to such Loan, at
the end of the then current Interest Period.
(i) Rounding and Other Consequential Changes. Without prejudice
and in addition to any method of conversion or rounding
prescribed by any EMU legislation and without prejudice to the
respective liabilities for indebtedness of the Borrower to the
Banks and the Banks to the Borrower under or pursuant to this
Agreement:
(i) each reference in this Agreement to a minimum amount
(or an integral multiple thereof) in a national currency unit to
be paid to or by the Agent shall be replaced by a reference to
such reasonably comparable and convenient amount (or an
integral multiple thereof) in the euro unit as the Agent may
from time to time specify; and
(ii) except as expressly provided in this Section 12.15,
each provision of this Agreement shall be subject to such
reasonable changes of construction as the Agent may from time to
time specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating
member states.
(j) Increased Costs. The Borrower shall from time to time, at
the request of the Agent, pay to the Agent for the account of
each Bank the amount of any cost or increased cost incurred by,
or of any reduction in any amount payable to or in the
effective return on its capital to, or of interest or other
return foregone by, such Bank as a result of the introduction
of, changeover to or operation of the euro in any participating
member state. The determination by any Bank of such amount, if
done in good faith on the basis of any reasonable method,
shall, in the absence of any demonstrable error, be
conclusive."
ARTICLE 2. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
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Section 2.1. Each and every of the representations and warranties set
forth in Article 6 of the Credit Agreement is true in all material respects as
of the date hereof with respect to the Borrower and, to the extent applicable,
the Guarantors and each of their Subsidiaries and with the same effect as
though made on the date hereof (except when such representation or warranty by
its terms relates to a specific date other than the date hereof), and is
hereby incorporated herein in full by reference as if fully restated herein in
its entirety. In addition, in order to induce the Banks to enter into this
Amendment, the Borrower hereby covenants, represents and warrants to the Banks
that since December 31, 1996, there has been no Material Adverse Change in the
Borrower or in the Borrower, the Guarantors and their Subsidiaries, taken as a
whole.
Section 2.2. No Default or Event of Default, as defined in the
Agreement now exists except as specifically waived hereby.
Section 2.3. The Borrower has the requisite corporate power and
authority to enter into, perform and deliver this Amendment and any other
documents, instruments, agreements or other writings to be delivered in
connection herewith. This Amendment and all documents contemplated hereby or
delivered in connection herewith, have each been duly authorized, executed and
delivered and the transactions contemplated herein have been duly authorized
by all necessary corporate action.
Section 2.4. This Amendment and any other documents, agreements or
instruments now or hereafter executed and delivered to the Banks by the
Borrower in connection herewith constitute (or shall, when delivered,
constitute) valid and legally binding obligations of Borrower, each of which
is and shall be enforceable against Borrower in accordance with their
respective terms except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency or other similar laws affecting creditors
rights generally or by the effect of general principles of equity which may
limit the enforceability of equitable remedies (whether in a proceeding at law
or in equity).
Section 2.5. No representation, warranty or statement by the Borrower
contained herein or in any other document to be furnished by the Borrower in
connection herewith contains, or at the time of delivery shall contain, any
untrue statement of material fact, or omits or at the time of delivery shall
omit to state a material fact necessary to make such representation, warranty
or statement not misleading.
Section 2.6. No consent, waiver or approval of any entity is or will
be required in connection with the execution, delivery, performance, validity
or enforcement or priority of this Amendment or any other agreements,
instruments or documents to be executed and/or delivered in connection
herewith or pursuant hereto.
Section 2.7. Except as previously disclosed to the Banks, there is no
claim, litigation, investigation or proceeding pending or threatened against
or otherwise materially affecting the Borrower's business. The Borrower's
performance of its obligations hereunder and/or the
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validity or enforceability of this Amendment are not the subject of any suit,
investigation or proceeding, and the Borrower has no actual knowledge of any
circumstances indicating that any such suit, investigation or proceeding is
likely or imminent.
ARTICLE 3. CONDITIONS.
This Amendment shall become effective only upon satisfaction of the
following conditions precedent:
(a) Chase shall have received each of the following documents, in
form and substance reasonably satisfactory to Chase and its counsel:
i. this Amendment, duly executed by the Borrower;
ii. a certificate of the Secretary of the Borrower, dated the date of
this Amendment, attesting to all corporate action taken by such entity,
including resolutions of its Board of Directors authorizing the execution,
delivery and performance of this Amendment and each other document to be
delivered pursuant to this Amendment, together with a certification that the
certificate, articles of incorporation and the by-laws of the Borrower has not
been amended, modified, revoked or rescinded since the Closing Date;
iii. a certificate of the Secretary of the Borrower dated the date of
this Amendment certifying the names and true signatures of the officers of
such entity authorized to sign this Amendment and the other documents to be
delivered by such entity under this Amendment; and
iv. such other documents, instruments, approvals, opinions and
evidence as the Banks may reasonably require;
(b) the Borrower shall have obtained all consents, permits and
approvals (if any) required in connection with the execution, delivery and
performance by the Borrower of its obligations hereunder and such consents,
permits and approvals shall continue in full force and effect; and
(c) all legal matters in connection with this financing shall be
reasonably satisfactory to the Banks and their counsel.
ARTICLE 4. MISCELLANEOUS.
Section 4.1. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing any
such counterpart.
Section 4.2. This Amendment shall be governed by, and interpreted and
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construed in accordance with, the laws of the State of New York.
Section 4.3. Except as specifically amended hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
Section 4.4. All references in the Credit Agreement and in the
Facility Documents to the "Agreement" shall be deemed to refer to the
Agreement as amended.
Section 4.5. The Credit Agreement and the Facility Documents shall
each be deemed amended, to the extent necessary, to give effect to the
provisions of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
XXXXX XXXXXX, INC.
By:
-------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Agent and a Bank
By:
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FLEET BANK, NATIONAL ASSOCIATION
By:
-------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
-------------------------------
Name:
Title:
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