THIRD AMENDMENT
TO
CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
April 24, 1998, is by and among XXXX CORPORATION and XXXX GRAPHICS EUROPE
LIMITED (the "Borrowers"), CERTAIN GUARANTORS IDENTIFIED ON THE SIGNATURE PAGES
HERETO, THE LENDERS IDENTIFIED ON THE SIGNATURE PAGES HERETO and NATTONSBANK,
N.A., as agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement dated as of December 19, 1995,
as amended by that Second Amendment and Restatement of Credit Agreement dated as
of February 20, 1997 (the "Existing Credit Agreement") among the Borrowers, the
Guarantors, the Lenders and the Agent, the Lenders have extended commitments to
make certain credit facilities available to the Borrowers; and
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein
or the context otherwise requires, the following terms used in this
Amendment, including its preamble and recitals, have the following
meanings:
"Amended Credit Agreement" means the Existing Credit Agreement as
amended hereby.
"Third Amendment Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment, including
its preamble and recitals, have the meanings provided in the Amended
Credit Agreement.
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PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Third Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement and all
other Credit Documents shall continue in full force and effect.
SUBPART 2.1. Amendments to Section 1.1.
SUBPART 2.1.1. The following definitions in Section 1.1 of the
Existing Credit Agreement are amended in their entireties to read as
follows:
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in Charlotte, North Carolina are
authorized or required by law to close, except that, (i) when used
in connection with a Revolving Loan that is a Eurodollar Loan, such
day shall also be a day on which dealings between banks are carried
on in U.S. dollar deposits in London, England and New York, New York
and (ii) when used in connection with a Foreign Currency Loan or a
Foreign Letter of Credit, such day shall also be a day on which
dealings in the applicable Available Foreign Currency are being
carried on between banks in London, England with respect to Pounds
Sterling and the interbank eurocurrency market with respect to other
Available Foreign Currencies.
"Determination Date" means each of
(a) (i) the date three Business Days prior to the date that
any Foreign Currency Loan denominated in an Available Foreign
Currency others than Pounds Sterling is made or any Foreign
Letter of Credit denominated in an Available Foreign Currency
others than Pounds Sterling is issued;
(ii) the date that any Foreign Currency Loan denominated
in Pounds Sterling is made or any Foreign Letter of Credit
denominated in Pounds Sterling is issued;
(b) (i) the date three Business Days prior to the date that
any Foreign Currency Loan denominated in an Available Foreign
Currency others than Pounds Sterling is continued from the
current Interest Period for such Foreign Currency Loan into a
subsequent Interest Period;
(ii) the date that any Foreign Currency Loan denominated
in Pounds Sterling is continued from the current Interest
Period for such Foreign Currency Loan into a subsequent
interest Period;
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(c) the date of any drawing under any Foreign Letter of
Credit;
(d) the last Business Day of each March, June, September and
December; and
(e) the date of any reduction of the Revolving Committed
Amount pursuant to the terms of Section 3.4(a).
"Dollar Amount" means (a) with respect to Dollars or an amount
denominated in Dollars, such amount and (b) with respect to an amount of any
Available Foreign Currency or an amount denominated in such Available Foreign
Currency, the Dollar Equivalent of such amount on the applicable date
contemplated in this Amendment.
"Dollar Equivalent" means, on any date, with respect to an amount
denominated in an Available Foreign Currency, the amount of Dollars into which
the Agent could, in accordance with its practice from time to time in the
interbank foreign exchange market, convert such amount of Available Foreign
Currency at its spot rate of exchange (inclusive of all reasonable related costs
of conversion) applicable to the relevant transaction at or about 11:00 A.M.,
London, England time, on such date.
"Foreign Currency Equivalent" means, on any date, with respect to an
amount denominated in Dollars, the amount of any applicable Available Foreign
Currency into which the Agent could, in accordance with its practice from time
to time in the interbank foreign exchange market, convert such amount of Dollars
at its spot rate of exchange (inclusive of all reasonable related costs of
conversion) applicable to the relevant transaction at or about 11:00 A.M.,
London, England time, on such date.
"Interbank Offered Rate" means, for the Interest Period for each
Eurodollar Loan comprising part of the same borrowing (including conversions,
extensions and renewals), a per annum interest rate equal to (i) with respect to
any Revolving Loan that is a Eurodollar Loan, for the Interest Period applicable
thereto, the per annum rate of interest determined by the Agent on the basis of
the offered rates for deposits in Dollars (for a period of time corresponding to
such Interest Period and commencing on the first day of such Interest Period)
which appear on Telerate Page 3750 (or any successor or equivalent page) as of
11:00 a.m. (London time) two Business Days before the first day of such Interest
Period (provided that if at least two such offered rates appear on Telerate Page
3750 (or any successor or equivalent page), the rate in respect of such Interest
Period will be the arithmetic mean of such offered rates), and (ii) with respect
to any Foreign Currency Loan, for the Interest Period applicable thereto, the
sum of (a) the per annum rate of interest determined by the Agent on the basis
of the offered rates for deposits in the relevant Available Foreign Currency
(for a period of time corresponding to such Interest Period and commencing on
the first day of such Interest Period) which appear on Telerate Page 3750 (or
any successor or equivalent page) as of 11:00 a.m. (London time) two Business
Days before the first day of such Interest Period (except in the case of Foreign
Currency Loans denominated in Pounds Sterling which shall be the per annum rate
of interest appearing on the first day of such Interest Period) (provided that
if at least two such offered rates appear on Telerate Page 3750 or any
successor or equivalent page), the rate in respect of such Interest Period will
be the arithmetic mean of such offered rates) plus (b) in the case of any
Foreign Currency Loan denominated in Pounds Sterling, the applicable MLA Cost.
If for any reason the foregoing rates are unavailable from the Telerate service,
then the Interbank Offered Rate shall be a market rate for the applicable Loan
for the applicable Interest Period as determined by the Agent plus, in the case
of any Foreign Currency Loan denominated in Pounds Sterling, the applicable MLA
Cost.
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"Interim Foreign Currency Rate" means, for any day, with respect to any
Foreign Currency Loan or any unreimbursed drawing under a Foreign Letter of
Credit, a rate per annum equal to the sum of (i) the average rate at which
overnight deposits in the applicable Available Foreign Currency and
approximately equal in principal amount to the applicable Foreign Currency Loan
or unreimbursed drawing under a Foreign Letter of Credit are obtainable by the
Agent (or, in the case of any Foreign Letter of Credit, the Issuing Lender) on
such day in the interbank market, adjusted to reflect any direct or indirect
costs of obtaining such deposits plus (ii) in the case of any Foreign Currency
Loan denominated in Pounds Sterling, the applicable MLA Cost. The Interim
Foreign Currency Rate shall be determined for each day by the Agent or Issuing
Lender, as appropriate, and such determination shall be conclusive absent
manifest error.
"MLA Cost" means, with respect to any Foreign Currency Loan denominated
in Pounds Sterling made by any Lender, the cost imputed to such Lender of
compliance with the Mandatory Liquid Assets requirements of the Bank of England
during the Interest Period applicable to such Foreign Currency Loan, expressed
as a rate per annum and determined in accordance with Schedule 1.1B.
SUBPART 2.1.2. The following definitions are added to Section 1.1 of
the Existing Credit Agreement in the appropriate alphabetical order:
"Available Foreign Currency" means Pounds Sterling, French Francs,
Deutsche Marks, Italian Lira and Guilders.
"Deutsche Marks" means the lawful currency of the Federal Republic of
Germany.
"French Francs" means the lawful currency of the Republic of France.
"Guilders" means the lawful currency of the Netherlands.
"Italian Lira" means the lawful currency of the Republic of Italy.
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SUBPART 2.2. Amendments to Section 2.5.
SUBPART 2.2.1. The first sentence of Section 2.5(a) of the Existing
Credit Agreement is amended in its entirety to read as follows:
(a) Foreign Currency Commitment. Subject to the terms and conditions
hereof and in reliance upon the representations and warranties set forth in the
Credit Agreement, each Lender severally agrees to make available to Xxxx Europe
such Lender's Foreign Currency Commitment Percentage of revolving credit loans
in the Available Foreign Currency requested by Xxxx Europe ("Foreign Currency
Loans") from time to time from the date five (5) Business Days subsequent to the
Amendment Effective Date until the date five (5) Business Days prior to the
Termination Date, or such earlier date as the Revolving Commitments shall have
been terminated as provided in the Credit Agreement for the purposes hereinafter
set forth; provided, however, that the Dollar Amount (as determined as of the
most recent Determination Date) of the aggregate amount of Foreign Currency
Loans outstanding at any time shall not exceed FIFTEEN MILLION DOLLARS
($15,000,000.00) (the "Foreign Currency Committed Amount"); provided, further,
(i) with regard to each Lender individually, such Lender's outstanding Foreign
Currency Loans shall not exceed such Lender's Foreign Commitment Percentage of
the Foreign Currency Committed Amount, (ii) with regard to the Lenders
collectively, the sum of the Dollar Amount (as determined as of the most recent
Determination Date) of the aggregate principal amount of outstanding Foreign
Currency Loans plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall not at any time
exceed the aggregate Foreign Currency Committed Amount and (iii) with regard to
the Lenders collectively, the aggregate principal amount of outstanding
Revolving Loans plus Domestic LOC Obligations outstanding plus the aggregate
principal amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans plus the Dollar Amount (as determined as
of the most recent Determination Date) of the aggregate principal amount of
outstanding Foreign Currency Loans plus the Dollar Amount (as determined as of
the most recent Determination Date) of Foreign LOC Obligations outstanding shall
not exceed the Revolving Committed Amount. Foreign Currency Loans shall consist
solely of Eurodollar Loans and may be repaid and reborrowed in accordance with
the provisions hereof, provided, however, that no more than 12 separate
Eurodollar Loans shall be outstanding at any time.
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SUBPART 2.2.2. Subsections (b), (c) and (d) of Section 2.5 of the
Existing Credit Agreement are amended in their entireties to read as
follows:
(b) Foreign Currency Loan Borrowings.
(i) Notice of Borrowing. Xxxx Europe shall request a Foreign
Currency Loan borrowing by written notice (or telephone notice
promptly confirmed in writing) to each office of the Agent specified
in Section 3.14(b) not later than 11:00 A.M., local time in the
place where such borrowing is to be made, on the third Business Day
prior to the date of the requested borrowing. Each such request for
borrowing shall be irrevocable and shall specify (A) that a Foreign
Currency Loan is requested, (B) the requested Available Foreign
Currency, (C) the date of the requested borrowing (which shall be a
Business Day), (D) the aggregate principal amount to be borrowed,
and (E) the Interest Period(s) therefor. If Xxxx Europe shall fail
to specify in any such Notice of Borrowing an applicable Interest
Period, then such notice shall be deemed to be a request for an
Interest Period of one month. The Agent shall give notice to each
Lender promptly upon receipt of each Notice of Borrowing pursuant to
this Section 2.5(b)(i), the contents thereof and each such Lender's
share of any borrowing to be made pursuant thereto.
(ii) Minimum Amounts. Each Foreign Currency Loan shall be in a
minimum aggregate amount equal to the Foreign Currency Equivalent of
$500,000 and integral multiples of $250,000 in excess thereof (or
the remaining amount of the Foreign Currency Committed Amount, if
less).
(iii) Advances. Each Lender will make its Foreign Currency
Commitment Percentage of each Foreign Currency Loan borrowing
available to the Agent as specified in Section 3.14(b), or in such
other manner as the Agent may specify in writing, by 1:00 P.M.,
local time in the place where such deposit is required to be made,
on the date specified in the applicable Notice of Borrowing in the
applicable Available Foreign Currency and in funds immediately
available to the Agent. Such borrowing will then be made available
to Xxxx Europe by the Agent by crediting the account of Xxxx Europe
on the books of such office with the aggregate of the amounts made
available to the Agent by the Lenders and in like funds as received
by the Agent.
(c) Repayment. The principal amount of all Foreign Currency Loans
shall be due and payable in full in the applicable Available Foreign
Currency on the Termination Date.
(d) Interest. Subject to the provisions of Section 3.1, Foreign
Currency Loans shall bear interest at a per annum rate equal to the
Eurodollar Rate plus the Applicable Margin. Interest on Foreign
Currency Loans shall be payable (in the applicable Available Foreign
Currency) in arrears on each Interest Payment Date.
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SUBPART 2.3. Amendments to Section 2.6.
SUBPART 2.3.1. The first sentence of Section 2.6(a) is amended in
its entirety to read as follows:
(a) Issuance. Subject to the terms and conditions hereof and of
the LOC Documents, if any, and any other terms and conditions which
the Issuing Lender may reasonably require, the Lenders will
participate in the issuance by the Issuing Lender, from time to time
and in any Available Foreign Currency, of such Foreign Letters of
Credit from the date five (5) Business Days subsequent to the
Amendment Effective Date until the date five (5) Business Days prior
to the Termination Date as Xxxx Europe may request, in a form
acceptable to the Issuing Lender; provided, however, that (i) the
Dollar Amount (as determined as of the most recent Determination
Date) of the Foreign LOC Obligations outstanding shall not at any
time exceed FIFTEEN MILLION DOLLARS ($15,000,000) (the "Foreign LOC
Committed Amount"), (ii) the sum of the Dollar Amount (as determined
as of the most recent Determination Date) of the aggregate principal
amount of outstanding Foreign Currency Loans plus the Dollar Amount
(as determined as of the most recent Determination Date) of Foreign
LOC Obligations outstanding shall not at any time exceed the
aggregate Foreign Currency Committed Amount and (iii) the sum of the
aggregate principal amount of outstanding Revolving Loans plus
Domestic LOC Obligations outstanding plus the aggregate principal
amount of outstanding Competitive Loans plus the aggregate principal
amount of outstanding Swingline Loans plus the Dollar Amount (as
determined as of the most recent Determination Date) of the
aggregate principal amount of outstanding Foreign Currency Loans
plus the Dollar Amount (as determined as of the most recent
Determination Date) of Foreign LOC Obligations outstanding shall not
at any time exceed the aggregate Revolving Committed Amount. No
Foreign Letter of Credit shall (x) have an original expiry date more
than one year from the date of issuance or (y) as originally issued
or as extended, have an expiry date extending beyond the Termination
Date.
SUBPART 2.3.2. The first and second sentences of Section 2.6(c) are
amended in their entireties to read as follows:
(c) Participation. Each Lender, upon issuance of a Foreign Letter
of Credit, shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Foreign Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its pro rata share of the obligations under such
Foreign Letter of Credit (based on the respective Commitment
Percentages of the Lenders) and shall absolutely, unconditionally
and irrevocably assume, as primary obligor and not as surety, and be
obligated to pay
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in the same Available Foreign Currency as such
Foreign Letter of Credit to the Issuing Lender therefor and
discharge when due, its pro rata share of the obligations arising
under such Foreign Letter of Credit. Without limiting the scope and
nature of each Lender's participation in any Foreign Letter of
Credit, to the extent that the Issuing Lender has not been
reimbursed as required under the Credit Agreement or under any such
Foreign Letter of Credit, each such Lender shall pay to the Issuing
Lender in the same Available Foreign Currency as such Foreign Letter
of Credit its pro rata share of such unreimbursed drawing in same
day funds on the date five (5) Business Days after notification by
the Issuing Lender of an unreimbursed drawing pursuant to the
provisions of subsection (d) hereof.
SUBPART 2.3.3. The fifth sentence of Section 2.6(d) is amended in
its entirety to read as follows:
(d) Reimbursement.
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The Issuing Lender will promptly notify the other Lenders of the
amount of any unreimbursed drawing and each Lender shall promptly
pay, on the Reimbursement Date, to the Agent for the account of the
Issuing Lender in the same Available Foreign Currency as such
Foreign Letter of Credit and in immediately available funds, the
amount of such Lender's pro rata share of such unreimbursed drawing.
SUBPART 2.3.4. The final sentence of Section 2.6(f) is amended in
its entirety to read as follows:
(f) Repayment with Foreign Currency Loans.
*******
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In the event that any Foreign Currency Loan cannot for any reason
be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under
the Bankruptcy Code with respect to Xxxx Europe or any other Credit
Party), then each such Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have
occurred, but adjusted for any payments received from Xxxx Europe on
or after such date and prior to such purchase) from the Issuing
Lender in the same Available Foreign Currency as such Foreign Letter
of Credit such participation in the outstanding Foreign LOC
Obligations as shall be necessary to cause each such Lender to share
in such Foreign LOC Obligations ratably (based upon the respective
Commitment Percentages of the Lenders (determined before giving
effect to any termination of the Commitments pursuant to Section
9.2)), provided that at the time any purchase of participation
pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Issuing Lender, to the extent not
paid to the Issuer by Xxxx Europe in accordance with the terms of
subsection (d) hereof, interest on the principal amount of
participation purchased for each day from and including the day upon
which such borrowing would otherwise have occurred to but excluding
the date of payment for such participation, at the rate equal to the
Interim Foreign Currency Rate.
SUBPART 2.4. Amendment to Section 3.2. The following sentence is
added to Section 3.2 of the Existing Credit Agreement immediately
following the final sentence thereof:
3.2 Extension and Conversion.
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A Foreign Currency Loan in one Available Foreign Currency may not be
converted to a Foreign Currency Loan in another Available Foreign
Currency pursuant to this Section 3.2.
SUBPART 2.5. Amendment to Section 3.7. Subsection (b) of Section 3.7
of the Existing Credit Agreement is amended in its entirety to read as
follows:
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3.7 Unavailability.
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(b) If prior to the first day of any Interest Period, the Agent shall
have determined (which determination shall be conclusive and binding upon the
Borrowers) that deposits in any Available Foreign Currency are not available in
the relevant market to any Lender, the Agent shall give telecopy or telephonic
notice thereof to Xxxx Europe and the Lenders as soon as practicable thereafter.
If such notice is given, (i) any Foreign Currency Loans denominated in such
Available Foreign Currency requested to be made on the first day of such
Interest Period shall be deemed rescinded and (ii) any outstanding Foreign
Currency Loans denominated in such Available Foreign Currency shall be repaid in
full by Xxxx Europe on the first day of such Interest Period. Until such notice
has been withdrawn by the Agent, no further Foreign Currency Loans denominated
in such Available Foreign Currency shall be made or continued, and no Foreign
Letters of Credit denominated in such Available Foreign Currency shall be issued
or extended.
SUBPART 2.6. Amendment to Section 3.8. Subsection (a) of Section 3.8 of
the Existing Credit Agreement is amended in its entirety to read as follows:
3.8 Illegality.
(a) Notwithstanding any other provision in the Credit Agreement, if (i)
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof occurring after the Closing Date shall make it unlawful
for any Lender to make or maintain Eurodollar Loans or Foreign Currency Loans or
issue or extend Foreign Letters of Credit or (ii) there shall have occurred any
change in national or international financial, political or economic conditions
(including the imposition of or any change in exchange controls) or currency
exchange rates which would make it impracticable for any Lender to make Loans or
issue Foreign Letters of Credit denominated in any Available Foreign Currency to
Xxxx Europe, as contemplated by the Credit Agreement, then, by written notice to
the Borrowers and the Agent (which notice shall be withdrawn whenever such
circumstances no longer exist):
(A) such Lender may declare that Eurodollar Loans, Foreign Currency
Loans or Foreign Letters of Credit in the affected currency or
currencies, as the case may be, will not thereafter (for the duration
of such unlawfulness or impracticability) be made or issued by such
Lender under the Credit Agreement, whereupon any request for a
Eurodollar Loan, Foreign Currency Loan or Foreign Letter of Credit in
the affected currency or currencies, as the case may be, shall, as to
such Lender only, (1) if such Loan is not a Foreign Currency Loan, be
deemed a request for a Base Rate Loan, unless such declaration shall be
subsequently withdrawn, (2) if such Loan is a Foreign Currency Loan, be
deemed to have been withdrawn, unless such declaration shall be
subsequently withdrawn and (3) in the case of a Foreign Letter of
Credit, be deemed to have been withdrawn, unless such declaration shall
be subsequently withdrawn; and
(B) such Lender may require that all outstanding Eurodollar Loans or
Foreign Currency Loans in the affected currency or currencies, as the
case may be, made by it be (1) if such Loans are not Foreign Currency
Loans, converted to Base Rate Loans, in which event all such Eurodollar
Loans shall be automatically converted to Base Rate Loans as of the
effective date of such notice as provided in paragraph (b) below or (2)
if such Loans are Foreign Currency Loans, repaid immediately, in which
event all such Foreign Currency Loans in the affected currency or
currencies shall be required to be repaid in full by Xxxx Europe as of
the effective date of such notice as provided in paragraph (b) below.
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SUBPART 2.7. Amendment to Section 3.12. The first sentence of Section
3.12(b) of the Existing Credit Agreement is amended in its entirety to read as
follows:
3.12 Pro Rata Treatment.
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(b) Advances. Unless the Agent shall have been notified in writing
by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such
borrowing available to the Agent, the Agent may assume that such Lender
is making such amount available to the Agent, and the Agent may, in
reliance upon such assumption, make available to the appropriate
Borrower a corresponding amount. If such amount is not made available
to the Agent by such Lender within the time period specified therefor
under the Credit Agreement, such Lender shall pay to the Agent, on
demand, such amount with interest thereon at a rate equal to the
Federal Funds Rate (or, in the case of a Foreign Currency Loan, the
Interim Foreign Currency Rate) for the period until such Lender makes
such amount immediately available to the Agent.
SUBPART 2.8. Amendment to Section 3.13. The fourth sentence of Section
3.13 of the Existing Credit Agreement is amended in its entirety to read as
follows:
3.13 Sharing of Payments.
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Except as otherwise expressly provided in the Credit Agreement, if
any Lender or the Agent shall fail to remit to the Agent or any other
Lender an amount payable by such Lender or the Agent to the Agent or
such other Lender pursuant to the Credit Agreement on the date when
such amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the date
such amount is paid to the Agent or such other Lender at a rate per
annum equal to the Federal Funds Rate (or, in the case of an Available
Foreign Currency, the Interim Foreign Currency Rate).
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SUBPART 2.9. Amendment to Section 3.14.
SUBPART 2.9.1. The second sentence of Section 3.14(a) of the
Existing Credit Agreement is amended in its entirety to read as
follows:
(a) Currency of Payments.
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Without limiting the terms of the preceding sentence, accrued
interest on any Foreign Currency Loans and all fees owing with
respect to Foreign Letters of Credit shall be payable in the same
Available Foreign Currency as such Loans or Foreign Letters of
Credit.
SUBPART 2.9.2. The first and seventh sentences of Section 3.14(b) of
the Existing Credit Agreement are amended in their entireties to read
as follows:
(b) Place and Manner of Payments. Except as otherwise
specifically provided in the Credit Agreement, all payments under
the Credit Agreement shall be made to the Agent in immediately
available funds, without offset, deduction, counterclaim or
withholding of any kind, prior to 2:00 P.M., local time in the place
where such payment is required to be made pursuant to this
subsection (b), on the date due at the office of the Agent: at 000
X. Xxxxx Xxxxxx, Xxxxxxxxxxxx Center, 15th Floor, NCI-001-15-01,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 with respect to payments in Dollars;
at NationsBank, N.A., London, for the account of NationsBank, N.A.,
London Account No. 00000000 with respect to payments in British
Pounds Sterling; at Societe Generale, Paris, for the account of
NationsBank, N.A., London Account No. 001 0ll 042 150 with respect
to payments in French Francs; at Deutsche Bank, Frankfurt, for the
account of NationsBank, N.A., London Account No. 10092723030000,
with respect to payments in Deutsche Marks; at Banca Commerciale
Italiana, Milan, for the account of NationsBank, N.A., London,
Account No. 09779550132, with respect to payments in Italian Lira;
at ABN-AMRO Bank, Amsterdam, for the account of NationsBank, N.A.,
London, Account No. 417777973, with respect to payments in Dutch
Guilders, or at such other place as may be designated by the Agent
to the Borrowers in writing.
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Except as expressly provided otherwise in the Credit Agreement, all
computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days, except with
respect to computation of interest on Foreign Currency Loans
denominated in Pounds Sterling and Base Rate Loans which (unless the
Base Rate is determined by reference to the Federal Funds Rate)
shall be calculated based on a year of 365 or 366 days, as
appropriate.
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SUBPART 2.10. New Section 3.16. The following new Section 3.16 is added
to the Existing Credit Agreement immediately existing Section 3.15 thereof.
3.16. European Monetary Union.
(a) If, as a result of the implementation of European monetary
union, (i) any Available Foreign Currency ceases to be the lawful
currency of its respective issuing nation and is replaced by a European
single currency or (ii) any Available Foreign Currency and a European
single currency are at the same time recognized by the central bank or
comparable authority of the nation issuing such Available Foreign
Currency as lawful currency of such nation and the Agent shall so
request in a notice delivered to Xxxx Europe, then any amount payable
hereunder by the Agent or the Lenders to Xxxx Europe, or by Xxxx Europe
to the Agent or the Lenders, in such currency shall instead be payable
in the European single currency and the amount so payable shall be
determined by translating the amount payable in such currency to such
European single currency at the exchange rate recognized by the
European Central Bank for the purpose of implementing European monetary
union as of the date such payment is due.
(b) Xxxx Europe agrees, at the request of any Lender, to compensate
such Lender for any reasonable loss, cost, expense or reduction in
return that shall be incurred or sustained by such Lender (other than
as a result of such Lender's gross negligence or willful misconduct) as
a result of the implementation of European monetary union, that would
not have been incurred or sustained but for the transactions provided
for herein and that, to the extent that such loss, cost, expense or
reduction is of a type generally applicable to extensions of credit
similar to the extensions of credit hereunder, is generally being
requested from borrowers subject to similar provisions. A certificate
of a Lender (X) setting forth the amount or amounts necessary to
compensate such Lender, (y) describing the nature of the loss or
expense sustained or incurred by such Lender as a consequence thereof
and (z) setting forth a reasonably detailed explanation of the
calculation thereof shall be delivered to Xxxx Europe and shall be
conclusive absent manifest error. Xxxx Europe shall pay to such Lender
the amount shown as due on any such certificate within 10 days after
receipt thereof
(c) Xxxx Europe agrees, at the request of the Agent or the Required
Lenders, at the time of or at any time following the implementation of
European monetary union, to enter into an agreement amending this
Credit Agreement (subject to obtaining the approval of the Agent and
the Required Lenders) in such manner as the Agent and the Required
Lenders shall specify in order to reflect the implementation of such
monetary union to place the parties hereto in the position they would
have been in had such monetary union not been implemented.
SUBPART 2.11. Amendment to Section 11.15. The first sentence of Section
11.15(a) of the Existing Credit Agreement is amended to read as follows:
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11.15 Judgment Currency.
(a) Each Credit Party's obligations under the Credit Agreement to
make payments in Dollars or in any available Available Foreign Currency
(the "Obligation Currency") shall not be discharged or satisfied by any
tender or recovery pursuant to any judgment expressed in or converted
into any currency other than the Obligation Currency, except to the
extent that such tender or recovery results in the effective receipt by
the Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Agent or such Lender under the Credit
Agreement.
SUBPART 2.12. Amendment to Schedule 1.1C. Schedule 1.1C to the Existing
Credit Agreement is deleted and replaced with a new schedule in the form
of Schedule 1.1(C) attached hereto.
SUBPART 2.13. Amendment to Schedule 2.5(e), Schedule 2.5(e) to the
Existing Credit Agreement is deleted and replaced with a new schedule in the
form of Schedule 2.5(e) attached hereto.
SUBPART 2.14. References to Xxxx Europe Limited. All references to Xxxx
Europe Limited appearing in the Credit Agreement or any other Credit Document
are hereby amended to refer to Xxxx Graphics Europe Limited.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Third Amendment Effective Date. This Amendment shall be
and become effective as of the date hereof (the "Third Amendment Effective
Date") when all of the conditions set forth in this Subpart 3.1 shall have
been satisfied, and thereafter this Amendment shall be known, and may be
referred to, as "Third Amendment";
SUBPART 3.1.1. Execution of Counterparts of Amendment. The Agent shall
have received counterparts (or other evidence of execution, including telephonic
message, satisfactory to the Agent) of this Amendment, which collectively shall
have been duly executed on behalf of each of the Borrowers, the Guarantors, the
Agent and the Lenders.
SUBPART 3.1.2 Execution of New Foreign Currency Notes. The Borrower
shall have executed new Foreign Currency Notes in favor of each Lender in the
form of Schedule 2.5(e) attached hereto.
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PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment to any Part
or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement. This
Amendment is a Credit Document executed pursuant to the Existing Credit
Agreement and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such time as this
Third Amendment shall become effective pursuant to the terms of Subpart 3.1 all
references in the Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Credit Agreement as amended by this Third Amendment.
SUBPART 4.4. Representations and Warranties. The Borrowers hereby
represent and warrant that (i) the conditions precedent to the initial Loans and
initial Letters of Credit were satisfied as of the Closing Date (assuming
satisfaction of all requirements in such conditions that an item be in form
and/or substance reasonably satisfactory to the Agent or any Lenders or that any
event or action have been completed or performed to the reasonable satisfaction
of the Agent or any Lenders), (ii) the representations and warranties contained
in Section 6 of the Existing Credit Agreement are correct on and as of the date
hereof as though made on and as of such date and after giving effect to the
amendments contained herein and (iii) no Default or Event of Default exists
under the Existing Credit Agreement on and as of the date hereof
SUBPART 4.5. Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SUBPART 4.6. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NORTH
CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SUBPART 4.7. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[The remainder of this page has been left blank intentionally]
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Each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWERS: XXXX CORPORATION
By /s/ W.E. Xxxxxxxx
---------------------------------------------------
Title: Sr. Vice President - Finance
XXXX GRAPHICS EUROPE LIMITED
By /s/ W.E. Xxxxxxxx
---------------------------------------------------
Title: Director
GUARANTORS: XXXX HOLDINGS, INC.
By /s/ W.E. Xxxxxxxx
---------------------------------------------------
Title: Vice President and Treasurer
XXXX X-ACTO, INC.
By /s/ W.E. Xxxxxxxx
---------------------------------------------------
Title: Sr. Vice President - Treasurer and Secretary
SEAL PRODUCTS, INC.
By /s/ W.E. Xxxxxxxx
---------------------------------------------------
Title: Sr. Vice President/and Secretary
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LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By /s/ Xxxxxx xxxxx
-------------------------
Title: Vice President
BANQUE PARIBAS
By_________________________
Title________________
CORESTATES BANK, N.A.
By_________________________
Title________________
FIRST UNION NATIONAL BANK
By_________________________
Title________________
MELLON BANK, N.A.
By_________________________
Title________________
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LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By_________________________
Title________________
BANQUE PARIBAS
By /s/ Xxxxx Xxxxxxxxx
-------------------------
Title: Vice President
By /s/ Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
CORESTATES BANK, N.A.
By_________________________
Title________________
FIRST UNION NATIONAL BANK
By_________________________
Title________________
MELLON BANK, N.A.
By_________________________
Title________________
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LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By_________________________
Title________________
BANQUE PARIBAS
By_________________________
Title________________
CORESTATES BANK, N.A.
By /s/ Xxxxx X. Leaf
-------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By_________________________
Title________________
MELLON BANK, N.A.
By_________________________
Title________________
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LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By_________________________
Title________________
BANQUE PARIBAS
By_________________________
Title________________
CORESTATES BANK, N.A.
By_________________________
Title________________
FIRST UNION NATIONAL BANK
By /s/ Xxxxx XxXxxxxx
-------------------------
Title: Asst. Vice President
MELLON BANK, N.A.
By_________________________
Title________________
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LENDERS: NATIONSBANK, N.A.,
individually in its capacity as a
Lender and in its capacity as Agent
By_________________________
Title________________
BANQUE PARIBAS
By_________________________
Title________________
CORESTATES BANK, N.A.
By_________________________
Title________________
FIRST UNION NATIONAL BANK
By_________________________
Title________________
MELLON BANK, N.A.
By /s/ Xxxx Xxxxxxxxx
-------------------------
Title: Vice President
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Schedule 1.1C
FORM OF NOTICE OF BORROWING
NationsBank, N.A.,
as Agent for the Lenders
000 X. Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000*
Attention: Agency Services
Ladies and Gentlemen:
The undersigned, [Xxxx Corporation] [Xxxx Graphics Europe Limited]
refers to the Second Amended and Restatement of Credit Agreement dated as of
February 20, 1997 (as it may be amended, modified, extended or restated from
time to time, the "Credit Agreement"), among the Borrowers, the other Credit
Parties party thereto, the Lenders party thereto and NationsBank, N.A., as
Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The undersigned hereby gives you notice that it requests a [Revolving
Loan advance in accordance with the provisions of Section 2.1 of the Credit
Agreement] [Foreign Currency Loan advance in accordance with the provisions of
Section 2.5 of the Credit Agreement] and in connection therewith sets forth
below the terms on which such Loan advance is requested to be made:
(A) Date of Borrowing
(which is a Business Day) _______________________
(B) Principal Amount of
Borrowing _______________________
------------------
*All original notices with respect to Foreign Currency Loans shall be
sent to the address set forth in Section 3.14(b) of the Credit Agreement for
payments in an Available Foreign Currency with a copy to the address set forth
in Section 3.14(b) of the Credit Agreement for payments in Dollars.
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(C) Interest Period and the
last day thereof _______________________
(D) Interest rate basis** _______________________
[(E) Available Foreign Currency _______________________]
The delivery of this Notice of Borrowing shall constitute a
representation and warranty by the undersigned of the correctness of the matters
specified in subsections (ii), (iii), (iv), (v) and (vi) of Sections 5.2.
Very truly yours,
[XXXX CORPORATION]
[XXXX GRAPHICS EUROPE LIMITED]
By___________________________
Title:
---------------------
All Foreign Currency Loans will bear interest on the basis of the Eurodollar
Rate.
-2-
Schedule 2.5(e)
FORM OF
FOREIGN CURRENCY NOTE
April 24, 1998
FOR VALUE RECEIVED, XXXX GRAPHICS EUROPE LIMITED, a United Kingdom
corporation (the "Borrower"), hereby promises to pay to the order of
__________________________, its successors and assigns (the "Lender"), at the
times set forth in the Second Amendment and Restatement of Credit Agreement,
dated as of February 20, 1997, among Xxxx Corporation, the Borrower, the other
Credit Parties party thereto, the Lenders and the Agent (as it may be amended,
modified, extended or restated from time to time, the "Credit Agreement"; all
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement), but in no event later than the Termination Date, the
aggregate unpaid principal amount of all Foreign Currency Loans made by the
Lender to the Borrower pursuant to the Credit Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof at said place and
account, on the dates and at the rates selected in accordance with Section
2.5(d) of the Credit Agreement. Each payment on account of an amount due from
the Borrower hereunder shall be made in the applicable Available Currency at the
place and time of payment set forth in Section 3.14(b) of the Credit Agreement.
Without limiting the terms of the preceding sentence, accrued interest on any
Foreign Currency Loan shall be payable in the same Available Foreign Currency as
such Foreign Currency Loan.
Upon the occurrence and during the continuance of an Event of Default
the balance outstanding hereunder shall bear interest as provided in Section 3.1
of the Credit Agreement. Further, in the event the payment of all sums due
hereunder is accelerated under the terms of the Credit Agreement, this Note, and
all other indebtedness of the Borrower to the Lender shall become immediately
due and payable, without presentment, demand, protest or notice of any kind, all
of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
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All borrowings evidenced by this Note and all payments and prepayments
of the principal hereof and interest hereon and the respective dates thereof
shall be endorsed by the holder hereof on Schedule A attached hereto and
incorporated herein by reference, or on a continuation thereof which shall be
attached hereto and made a part hereof; provided, however, that any failure to
endorse such information on such schedule or continuation thereof shall not in
any manner affect the obligation of the Borrower to make payments of principal
and interest in accordance with the terms of this Note.
IN WITNESS WHEREOF, the Borrower has caused this Note to be duly
executed by its duly authorized officer as of the day and year first above
written.
XXXX GRAPHICS EUROPE LIMITED
By__________________________
Title_______________________
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SCHEDULE A TO THE
FOREIGN CURRENCY NOTE
OF _______________
DATED APRIL 24, 1998
Unpaid Name of
Type Principal Person
of Interest Payments Balance Making
Date Loan Period Principal Interest of Note Notation
---- ---- -------- --------- -------- --------- --------
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