FIRST AMENDMENT
TO
TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT, dated as of October 23,
1997 (this "FIRST AMENDMENT"), is entered into between Recoil Pty (f/k/a RCL
Pty), an unlimited liability company organized under the laws of the State of
Victoria, Australia (the "BORROWER"), and General Electric Capital Corporation,
a New York corporation (the "LENDER") and relates to that certain Term Loan
Agreement dated as of August 12, 1996, between the Borrower and the Lender (the
"CREDIT AGREEMENT").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender have entered into the Credit
Agreement; and
WHEREAS, the Borrower has requested that the Lender amend the Credit
Agreement (i) to add the Commercial Paper Rate (as defined herein) as a basis
for determining the rate of interest payable on the Term Loan, (ii) to convert
the Term Loan from Index Rate to Commercial Paper Rate as of the date of this
amendment and (iii) to effect other amendments, all as more fully described
herein.
NOW, THEREFORE, in consideration of the above premises, the Borrower
and the Lender agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined
herein have the meanings assigned to them in the Credit Agreement.
2. AMENDMENTS TO THE CREDIT AGREEMENT. Upon the "Effective Date" (as
defined in SECTION 4 below), the Credit Agreement is hereby amended as follows:
2.1 AMENDMENTS TO SECTION 1.01. Section 1.01 of the Credit Agreement
is amended as follows:
(a) The following definition of Commercial Paper Rate is added in
proper alphabetical order:
"COMMERCIAL PAPER RATE" means the published rate (or the mid-point
in the range of such rates, if more than one rate is published) for
30-day dealer-placed commercial paper (high grade unsecured notes
sold through dealers by major corporations in multiples of $1,000)
as quoted in the "Money Rates" section of THE WALL STREET JOURNAL
or, in the event such report shall not so
appear, in such other publication as Lender may, from time to time,
specify to Borrower. The Commercial Paper Rate in effect for each
month shall be determined as of the first Business Day of that
month.
(b) The following definition of Commercial Paper Rate Loan is added
in proper alphabetical order:
"COMMERCIAL PAPER RATE LOAN" means a Term Loan which bears interest as
provided in Section 2.02(a).
(c) The following definition of Convert, Conversion and Converted is
added in proper alphabetical order:
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion of
a Term Loan of one Type into a Term Loan of another Type pursuant to
Section 2.04.
(d) The following definition of Index Rate Loan is added in proper
alphabetical order:
"INDEX RATE LOAN" means a Term Loan which bears interest at a rate per
annum equal at all times to the Index Rate, as in effect from time to
time as interest accrues.
(e) The following definition of Type is added in proper alphabetical
order:
"TYPE" of Term Loan means a Commercial Paper Rate Loan or an Index
Rate Loan, as the case may be.
2.2 AMENDMENT TO SECTION 2.02(a). Section 2.02(a) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
2.02. INTEREST. (a) RATE OF INTEREST. The Term Loan and the
outstanding principal balance of all other Obligations shall bear interest
on the unpaid principal amount thereof from the date the Term Loan is made
and such other Obligations are due and payable until paid in full, except
as otherwise provided in SECTION 2.02(c) or SECTION 2.04, at a rate per
annum equal at all times to the sum of the Commercial Paper Rate, as in
effect from time to time as interest accrues, plus 1.50% per annum.
2.3 AMENDMENT TO SECTION 2.02(c). Section 2.02(c) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(c) DEFAULT INTEREST. Notwithstanding the rates of interest
specified in SECTION 2.02(a) or elsewhere in this Agreement, effective
immediately upon (i) the occurrence of an Event of Default described in
SECTION 10.01(a) or (ii) the occurrence
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of any other Event of Default and notice from the Lender of the
effectiveness of this SECTION 2.02(c), and for as long thereafter as
such Event of Default shall be continuing, the principal balance of the
Term Loan, and the principal balance of all other Obligations, shall
bear interest at a rate which is two percent (2.0%) per annum in excess
of the Index Rate.
2.4 NEW SECTION 2.04. A new Section 2.04 shall be added to the
Credit Agreement as follows:
2.04. INTEREST RATE PROTECTION. If either (a) by reason of
circumstances affecting the commercial paper market generally, adequate and
reasonable means do not exist for ascertaining the Commercial Paper Rate or
(b) the Commercial Paper Rate ceases to reflect adequately and fairly the
cost to the Lender (as determined by the Lender) of making or maintaining
Commercial Paper Rate Loans, the Lender shall as soon as practicable give
notice (which may be by telephone, followed by writing) thereof to the
Borrower. If such notice is given, any outstanding Commercial Paper Rate
Loans shall be Converted to Index Rate Loans. As soon as practicable after
withdrawing such notice, the Lender shall Convert any outstanding Index
Rate Loans to Commercial Paper Rate Loans.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Lender that, as of the Effective Date and after giving effect to
this First Amendment:
(a) All of the representations and warranties of the Borrower
contained in this First Amendment, the Credit Agreement and the other Loan
Documents are true and correct in all material respects on and as of the
Effective Date, as if then made (other than representations and warranties
which expressly speak as of a different date, which shall be true and
correct in all material respects as of that date);
(b) No Potential Event of Default or Event of Default has occurred or
is continuing or will result after giving effect to this First Amendment;
and
(c) The Borrower has not voluntarily, by operation of law or
otherwise, assigned, conveyed, transferred or encumbered, either directly
or indirectly, in whole or in part, any right to or interest in any of the
"Released Claims" (as defined in SECTION 6 below) purported to be released
by this First Amendment.
4. EFFECTIVE DATE. This First Amendment shall become effective as of the
date first written above (the "EFFECTIVE DATE") upon the satisfaction of each of
the following conditions:
(a) the Lender shall have received each of the following documents,
in each case in form and substance satisfactory to the Lender:
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(i) counterparts hereof executed by the Borrower and the Lender;
(ii) a certificate of the chief financial officer or a director
of the Borrower certifying that all conditions precedent to the
effectiveness of this First Amendment have been satisfied;
(iii) a certificate of an officer or director of the Borrower
dated the Effective Date certifying (A) the names and true signatures
of the incumbent officers of the Borrower authorized to sign this
First Amendment and the other Transaction Documents executed in
connection with this First Amendment to which it is a party, (B) that
the Organizational Documents of the Borrower have not been amended or
otherwise modified since the date of the most recent certification
thereof by an officer or director of the Borrower delivered to the
Lender and remain in full force and effect as of the Effective Date
and (C) the resolutions of the board of directors of a direct or
indirect Parent of Borrower approving and authorizing the execution,
delivery and performance of this First Amendment and the other
Transaction Documents executed in connection with this First Amendment
to which the Borrower is a party; and
(iv) such additional documentation as the Lender may reasonably
request;
(b) no law, regulation, order, judgment or decree of any Governmental
Authority shall, and the Lender shall not have received any notice that
litigation is pending or threatened which is likely to, enjoin, prohibit or
restrain the consummation of the transactions contemplated by this First
Amendment, except for such laws, regulations, orders or decrees, or pending
or threatened litigation that in the aggregate could not reasonably be
expected to result in a Material Adverse Effect;
(c) all of the representations and warranties of the Borrower
contained in this First Amendment, the Credit Agreement and the other Loan
Documents shall be true and correct in all material respects on and as of
the Effective Date, as if then made (other than representations and
warranties which expressly speak as of a different date, which shall be
true and correct in all material respects as of that date);
(d) all corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the transactions
contemplated by this First Amendment shall be satisfactory in all respects
in form and substance to the Lender; and
(e) no Event of Default or Potential Event of Default shall have
occurred and be continuing on the Effective Date or will result after
giving effect to this First Amendment.
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5. OUTSTANDING INDEBTEDNESS. The Borrower hereby acknowledges and agrees
that as of September 30, 1997, the aggregate outstanding principal amount of the
Term Loan under the Credit Agreement was $4,000,000 and that such principal
amount is payable pursuant to the Credit Agreement, as amended hereby, without
offset, withholding, counterclaim or deduction of any kind. The Borrower, for
itself and on behalf of its officers and directors, and its respective
predecessors, successors and assigns (collectively, the "RELEASORS"), hereby
waives, releases and forever discharges the Lender, and its parent corporation,
Subsidiaries and Affiliates, officers, directors, shareholders employees,
attorneys, agents and servants, and its respective predecessors, successors,
heirs and assigns (collectively, the "LENDER PARTIES"), from any and all claims
of every type, kind, nature, description or character, known and unknown,
whensoever arising out of any actions or omissions of the Lender Parties, except
all such claims of Affiliates of Lender arising out of sales of inventory in the
ordinary course of business, occurring any time up to and including the date
hereof, which in any way arise out of, are connected with or relate to the
Credit Agreement or any other Loan Documents (the "RELEASED CLAIMS") and agrees
not to bring any action in any judicial, administrative or other proceeding
against the Lender Parties, alleging any such Released Claim or otherwise in
connection with any such Released Claim.
6. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the Effective Date, each reference in the Credit Agreement
to "this Agreement", "hereunder", "hereof" or words of like import, and
each reference in the other Loan Documents to the Credit Agreement, shall
mean and be a reference to the Credit Agreement as amended hereby.
(b) This First Amendment shall be limited solely to the matters
expressly set forth herein and shall not (i) constitute an amendment of any
other term or condition of the Credit Agreement or any other Loan Document,
(ii) prejudice any right or rights which the Lender or Lender Parties may
now have or may have in the future under or in connection with the Credit
Agreement or any other Loan Document, (iii) require the Lender to agree to
a similar transaction on a future occasion, (iv) be deemed or construed as
an admission of liability with respect to the Released Claims or otherwise
by the Lender Parties or (v) create any rights herein to another Person or
other beneficiary or otherwise, except to the extent specifically provided
herein.
(c) Except to the extent specifically consented to herein, the
respective provisions of the Credit Agreement and the other Loan Documents
shall not be amended, modified, impaired or otherwise affected hereby, and
such documents and the Obligations under each of them are hereby confirmed
in full force and effect.
7. MISCELLANEOUS. This First Amendment is a Loan Document. The headings
herein are for convenience of reference only and shall not alter or otherwise
affect the meaning hereof.
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8. COUNTERPARTS. This First Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
9. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, this First Amendment has been duly executed as of
the date first above written.
SIGNED by Xxxxx X. Xxxxxx )
as authorized representative of )
Recoil Pty in the presence of: ) ------------------------------
) By executing this First
) Amendment the signatory
) warrants that the signatory is
) duly authorized to execute
------------------------------ ) this First Amendment on behalf
Signature of Witness ) of Recoil Pty.
)
)
SIGNED by Xxxxx X. Xxxxxx )
as authorized representative of )
General Electric Capital Corporation )
in the presence of: )
) ------------------------------
) By executing this First
) Amendment the signatory
------------------------------ ) warrants that the signatory is
Signature of Witness ) duly authorized to execute
this First Amendment on behalf
of General Electric Capital
Corporation.
