EXHIBIT 4.13
AMENDMENT NO. 3 TO CREDIT AGREEMENT
Dated as of July 9, 1997
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT ("Amendment") is made
as of July 9, 1997 by and among XXXXXXX WORLDWIDE ASSOCIATES, INC., a
Wisconsin corporation (the "Company"), the financial institutions listed
on the signature pages hereof (the "Banks") and THE FIRST NATIONAL BANK OF
CHICAGO, in its individual capacity as a Bank and as agent (the "Agent")
on behalf of the Banks under that certain Credit Agreement dated as of
November 29, 1995 by and among the Company, the Banks and the Agent (as
amended, the "Credit Agreement"). Defined terms used herein and not
otherwise defined herein shall have the meaning given to them in the
Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Company, the Banks and the Agent are parties to the
Credit Agreement;
WHEREAS, the Company has requested that the Banks amend the
Credit Agreement to provide for the issuance of letters of credit
thereunder and in certain other respects; and
WHEREAS, the Banks and the Agent are willing to amend the Credit
Agreement on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, the Banks and the Agent have agreed to the
following amendments to the Credit Agreement.
1. Amendments to Credit Agreement. Effective as of July 9,
1997 and subject to the satisfaction of the conditions precedent set forth
in Section 2 below, the Credit Agreement is hereby amended as follows:
1.1. Article I of the Credit Agreement is hereby amended to add
alphabetically the following defined terms:
"Issuance Date" means, with respect to any Letter of Credit, the
date on which such Letter of Credit is issued hereunder.
"Issuer" means any Bank which has issued a Letter of Credit
pursuant to the Letter of Credit Facility, and its successors and assigns.
"Issuer's Fee" is defined in Section 2.18(g).
"Letter of Credit" means any standby letter of credit
denominated in Dollars issued for the account of the Company under the
Letter of Credit Facility.
"Letter of Credit Facility" means the Letter of Credit Facility
provided in Section 2.18.
"Letter of Credit Fee" is defined in Section 2.18(g).
"Letter of Credit Obligations" means, at any date of
determination thereof, all liabilities, whether actual or contingent, of
the Company in respect of the Letters of Credit, including without
limitation, the sum of (a) the Dollar Amount of the Reimbursement
Obligations; and (b) the Dollar Amount of the aggregate undrawn face
amount of the outstanding Letters of Credit.
"Letter of Credit Request" is defined in Section 2.18(c).
"Purchase Agreement" means that certain Share Purchase Agreement
dated as of March 17/26, 1997 by and among the Company, Uwatec AG, Xxxxxx
Xxxxxx and Xxxx Xxxxxxx.
"Reimbursement Obligations" means, at any time, the aggregate of
the obligations of the Company to the Issuers and the Banks in respect of
all unreimbursed payments or disbursements made by an Issuer and the Banks
under or in respect of the Letters of Credit.
1.2. Article I of the Credit Agreement is hereby amended by
amending the definition of "Dollar Amount" to add the following at the end
thereof:
"Dollar Amount shall mean in relation to any Letter of
Credit Obligation, the equivalent in Dollars of any such Letter
of Credit Obligation denominated in an Alternative Currency
computed as prescribed in Section 2.18(d)(i), or, if such
methods are for any reason inapplicable, in the manner deemed
most appropriate and customary by the Agent."
1.3. Article I of the Credit Agreement is hereby amended by
amending the definition of "Funded Debt" to insert immediately after the
phrase "shall mean" the following: ", without duplication,", to insert
immediately after "the date of origin)," the following: "including
without limitation the portion of the "Fixed Purchase Price" (as defined
in the Purchase Agreement) which has been deferred in accordance with
Section 2.4 of the Purchase Agreement", and to add the following at the
end thereof: "and (e) all obligations of such Person with respect to
Letters of Credit with an expiry date more than one year from the Issuance
Date (or which can be extended at the option of the account party to an
expiry date more than one year from the Issuance Date)".
1.4. Article I of the Credit Agreement is hereby amended by
amending the definition of "Indebtedness" to insert immediately after the
phrase "shall mean and include" the following: ", without duplication,",
to insert immediately after "and similar agreements)," the following:
"including without limitation the portion of the "Fixed Purchase Price"
(as defined in the Purchase Agreement) which has been deferred in
accordance with Section 2.4 of the Purchase Agreement", and to add the
following at the end thereof: "and (g) all obligations of such Person
with respect to the Letter of Credit Obligations."
1.5. Article I of the Credit Agreement is hereby amended by
amending the definition of "Majority Banks" to add the following at the
end thereof: "and Letter of Credit Obligations".
1.6. Section 2.01(a) of the Credit Agreement is hereby amended
to insert immediately after the phrase "Absolute Rate Loans to" in the
seventh line, the following: "and Letter of Credit Obligations of" and to
add immediately after the phrase "pursuant to Section 2.01(a)" in the
ninth line, the following: "and Letter of Credit Obligations of the
Company".
1.7. Section 2.01(b) of the Credit Agreement is hereby amended
to insert immediately after the phrase "all Eligible Subsidiaries" in the
eighth line, the following: "and Letter of Credit Obligations of the
Company".
1.8. Section 2.11 of the Credit Agreement is hereby amended to
add a new subsection (e) at the end thereof:
(e) If, as of the last Business Day of any fiscal
quarter,the sum of (i) the aggregate outstanding principal
amount of Revolving Loans made pursuant to Section 2.01(a) and
(ii) the Letter of Credit Obligations exceeds the Aggregate
Revolving Commitment, then the Company shall make a mandatory
prepayment of the Revolving Loans in an amount sufficient to
eliminate such excess.
1.9. Section 2.13(a)(i) of the Credit Agreement is hereby
amended to insert immediately after the phrase "its Loans or Notes" the
following: "or its Letters of Credit".
1.10. Section 2.13(a)(iv) of the Credit Agreement is hereby
amended to insert the following immediately after the phrase "its Loan or
Loans", the following: "or its Letters of Credit".
1.11. Section 2.13(c) of the Credit Agreement is hereby
amended to insert immediately after the phrase "its Loans" the following:
"or its Letters of Credit".
1.12. Section 2.15(a) of the Credit Agreement is hereby
amended to insert immediately after the phrase "and the Aggregate
Eurocurrency Commitment", the following: "(treating the Dollar Amount of
the Letter of Credit Obligations as usage of the Aggregate Revolving
Commitment)".
1.13. The Credit Agreement is hereby amended to insert
immediately after Section 2.17, the following new Section 2.18:
2.18. Letters of Credit. Subject to the terms and
conditions of this Agreement, the Company may obtain Letters of
Credit, from time to time during the period commencing on the
date hereof and ending on the Business Day prior to the
Expiration Date. The Company may request any Bank to issue a
Letter of Credit and such Bank may, but is not required to,
issue a Letter of Credit. If no other Bank is willing to issue
a Letter of Credit, First Chicago shall issue such Letter of
Credit. Any Bank issuing a Letter of Credit shall be an Issuer.
Nothing herein contained shall prohibit the Company from
obtaining letters of credit outside of this Credit Agreement.
(a) Types and Amounts. No Issuer (including First Chicago)
shall:
(i) issue any letter of Credit if the aggregate maximum
amount then available for drawing under Letters of Credit, after
giving effect to the Letter of Credit requested hereunder, shall
exceed any limit imposed by law or regulation upon the Issuer;
(ii) issue any Letter of Credit if, after giving effect
thereto, the sum of (a) the Dollar Amount of the Letter of
Credit Obligations and (b) the aggregate unpaid principal
balance of the Revolving Loans would exceed the Revolving Loan
Commitment;
(iii) issue any Letter of Credit if, after giving
effect thereto, the sum of (a) the Dollar Amount of the Letter
of Credit Obligations and (b) the aggregate unpaid principal
balance of the Revolving Loans, Eurocurrency Loans and Absolute
Rate Loans would exceed the Aggregate Commitment;
(iv) issue any Letter of Credit which has an expiration
date on or after the Expiration Date; or
(v) issue any Letter of Credit if the Dollar Amount of the
Letter of Credit Obligations, after giving effect to the Letter
of Credit requested hereunder, shall exceed $20,000,000.
(b) Conditions. In addition to being subject to the
satisfaction of the conditions contained in Article IV, the
obligation of the Issuer to issue any Letter of Credit is subject to
the satisfaction in full of the following conditions:
(i) the Company shall have delivered to the Issuer, with a
copy to the Agent, at such times and in such manner as the
Issuer may reasonably prescribe such documents and materials as
may be required pursuant to the terms of the proposed Letter of
Credit and the proposed Letter of Credit shall be reasonably
satisfactory to the Issuer as to form and content; and
(ii) as of the Issuance Date, no order, judgment or decree
of any court, arbitrator or Governmental Authority shall purport
by its terms to enjoin or restrain the Issuer from issuing the
proposed Letter of Credit and no law, rule or regulation
applicable to the Issuer and no request or directive (whether or
not having the force of law) from any Governmental Authority
with jurisdiction over the Issuer shall prohibit or request that
the Issuer refrain from the issuance of Letters of Credit
generally or the issuance of such proposed Letter of Credit in
particular.
(c) Procedure for Issuance of Letters of Credit.
(i) The Company shall give the Issuer and the Agent
three (3) Business Days' prior written notice of any requested
issuance of a Letter of Credit (except that, in lieu of such
written notice, the Company may give the Issuer (x) notice of
such request by tested telex or other tested arrangement
satisfactory to the Issuer or (y) telephonic notice of such
request if confirmed in writing by delivery to the Issuer
(i) immediately (A) of a telecopy of the written notice required
hereunder which has been signed by an authorized signatory of
the Company or (B) of a telex containing all information
required to be contained in such written notice and
(ii) promptly (but in no event later than the requested time of
issuance) of a copy of the written notice required hereunder
containing the original signature of an authorized signatory of
the Company). Each such notice (each a "Letter of Credit
Request") shall be irrevocable once the relevant Letter of
Credit is issued and shall specify the stated amount of the
Letter of Credit requested, the Issuance Date (which day shall
be a Business Day) of such requested Letter of Credit, the date
on which such requested Letter of Credit is to expire (which
date shall be a Business Day and shall in no event be on or
after the Expiration Date), the purpose for which such Letter of
Credit is to be issued, and the Person for whose benefit the
requested Letter of Credit is to be issued. Promptly after
receipt thereof, the Agent shall notify each Bank of the
contents of each Letter of Credit Request. At the time such
Letter of Credit Request is made, the Company shall also provide
the Issuer and the Agent with a copy of the form of the Letter
of Credit it is requesting be issued. Such Letter of Credit
Request, to be effective, must be received by the Issuer and the
Agent not later than 2:00 p.m. (Chicago time) on the last
Business Day on which notice can be given under this
Section 2.18(c).
(ii) Subject to the terms and conditions of this
Section 2.18(c) and provided that the applicable conditions set
forth in Section 4.01(c), Section 4.01(d) and Section 2.18(b)
have been satisfied, the Issuer shall, on the requested Issuance
Date, issue the requested Letter of Credit for the account of
the Company in accordance with the Issuer's usual and customary
business practices.
(iii) An Issuer shall not amend, renew, extend, or
permit an extension of any Letter of Credit unless the
requirements of this Section 2.18(c) are met as if a new Letter
of Credit were being requested and issued.
(d) Reimbursement Obligations.
(i) The Issuer shall promptly notify the Company and the
Agent and each Bank of any draw under a Letter of Credit. The
Company shall reimburse the Agent for the account of the Issuer,
in immediately available funds, for draws under a Letter of
Credit no later than the Business Day next succeeding the date
of the payment by the Issuer. In the case of any draw under a
Letter of Credit in an Alternative Currency, the Company shall
reimburse the Agent for the account of the Issuer on demand at
the Agent's head office (or at such other place as may be
specified by the Agent) the amount in such Alternative Currency
drawn under such Letter of Credit or the equivalent of the
amount in Dollars at the rate of exchange then quoted by the
Agent for the electronic transfer to the place of payment in the
currency in which such draw was made or, if so required by the
Agent, to pay the Agent at its head office in advance, following
a documentary presentation, in Dollars the equivalent of the
amount required to pay the same. If, for any cause whatsoever,
there exists at the time in question no rate of exchange
generally available to the Agent for effective electronic
transfers of the sort provided for above, the Company agrees to
pay the Agent on demand an amount in Dollars equivalent to the
actual cost of settlement of the Issuer's obligation to the
person presenting the applicable draft under the applicable
Letter of Credit, however and whenever such settlement may be
made by the Issuer.
(ii) Any Reimbursement Obligation with respect to any
Letter of Credit shall bear interest form the date of the
relevant draws under the relevant Letter of Credit at the
interest rate for Borrowings not paid at maturity as calculated
in accordance with Section 2.07(a).
(iii) Any action taken or omitted to be taken by the
Issuer under or in connection with any Letter of Credit, if
taken or omitted in the absence of willful misconduct or gross
negligence, shall not put the Issuer under any resulting
liability to any Bank or, assuming that the Issuer has complied
with the procedures specified in Section 2.18(c) and such Bank
has not given a notice contemplated by Section 2.18(e) that
continues in full force and effect, relieve such Bank of its
obligations hereunder to the Issuer. In determining whether to
pay under any Letter of Credit, the Issuer shall have no
obligation relative to the Banks, the Agent or the Company other
than to confirm that any documents required to be delivered
under such Letter of Credit appear to comply on their face with
the requirements of such Letter of Credit.
(e) Participation; Receipt of Payments.
(i) Immediately upon issuance or extension or renewal by
an Issuer of any Letter of Credit in accordance with the
procedures set forth in Section 2.18(c), each Bank shall be
deemed to have irrevocably and unconditionally purchased and
received from the Issuer, without recourse or warranty, an
undivided interest and participation equal to its Applicable
Percentage in such Letter of Credit (including, without
limitation, all obligations of the Company with respect thereto)
and any security therefor or guaranty pertaining thereto, if
any; provided, that a Letter of Credit issued by the Issuer
shall not be deemed to be a Letter of Credit for purposes of
this Section 2.18(e) if the Issuer and the Agent shall have
received written notice from any Bank on or before one Business
Day prior to the date of its issuance of such Letter of Credit
that one or more of the conditions contained in Article IV is
not then satisfied, and, in the event the Issuer and the Agent
receive such a notice, there shall be no further obligation on
the part of First Chicago or any Issuer to issue any Letter of
Credit until such notice is withdrawn by that Bank or such
condition has been effectively waived in accordance with the
provisions of this Agreement.
(ii) In the event that an Issuer makes any payment under
any Letter of Credit and the Company shall not have repaid such
amount to the Issuer pursuant to Section 2.18(d), the Issuer
shall promptly notify the Agent and each Bank of such failure,
and each Bank shall promptly and unconditionally pay to the
Agent for the account of the Issuer the Dollar Amount of such
Bank's Applicable Percentage of the unreimbursed amount of any
such payment, and the Company's obligations to repay the Banks
with respect to such amounts shall be deemed to be, and treated
as, a Revolving Loan or Loans which shall bear interest at the
interest rate for Borrowings not paid at maturity as calculated
in accordance with Section 2.07(a) unless and until such amounts
are repaid or refinanced pursuant to Section 2.08. The failure
of any Bank to make available to the Agent, in immediately
available funds, its Applicable Percentage of the unreimbursed
amount of any such payment shall not relieve any other Bank of
its obligation hereunder to make available to the Agent, in
immediately available funds, its Applicable Percentage of the
unreimbursed amount of any payment on the date such payment is
to be made, but no Bank shall be responsible for the failure of
any other Bank to make available to the Agent its Applicable
Percentage of the unreimbursed amount of any payment on the date
such payment is to be made.
(iii) Whenever the Agent or an Issuer receives a
payment on account of a Reimbursement Obligation, including any
interest thereon, it shall promptly pay to each Bank which has
funded its participating interest therein, in immediately
available funds, an amount equal to such Bank's Applicable
Percentage thereof.
(iv) The obligations of a Bank to make payments to the
Agent for the account of an Issuer with respect to a Letter of
Credit shall be absolute, unconditional and irrevocable, shall
not be subject to any counterclaim, set-off, qualification or
exception whatsoever and shall be made without any requirement
that the Company satisfy the conditions set forth in
Section 4.01.
(f) Payment of Reimbursement Obligations.
(i) The Company agrees to pay to the Agent for the account
of the Issuer the amount of all Reimbursement Obligations,
interest and other amounts payable to the Issuer under or in
connection with any Letter of Credit immediately when due,
irrespective of any claim, set-off, defense or other right which
the Company or any Subsidiary may have at any time against the
Issuer or any other Person, under all circumstances, including
without limitation, any of the following circumstances:
(A) any lack of validity or enforceability of this
Agreement or any of the other documents, instruments or
agreements executed by the Company in connection therewith;
(B) the existence of any claim, setoff, defense or
other right which the Company or any Subsidiary may have at
any time against a beneficiary named in a Letter of Credit
or any transferee of any Letter of Credit (or any Person
for whom any such transferee may be acting), any Issuer,
any Bank, or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions
(including any underlying transactions between the Company
or any Subsidiary and the beneficiary named in any Letter
of Credit);
(C) any draft, certificate or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
(provided any such draft, certificate or other document
appeared valid on its face when presented to the Issuer);
(D) the surrender or impairment of any security for
the performance or observance of any of the terms of this
Agreement or any of the documents, instruments or
agreements executed by the Company in connection therewith;
or
(E) the occurrence of any Default or Event of
Default.
(ii) In the event any payment by the Company received by
the Agent or an Issuer with respect to a Letter of Credit and
distributed to the Banks on account of their participations is
thereafter set aside, avoided or recovered from the Agent or an
Issuer in connection with any receivership, liquidation,
reorganization or bankruptcy proceeding, each Bank which
received such distribution shall, upon demand by the Agent,
contribute to the Agent or such Issuer such Bank's Applicable
Percentage of the amount set aside, avoided or recovered
together with interest at the ate required to be paid by the
Agent or such Issuer upon the amount required to be repaid by
it.
(g) Compensation for Letters of Credit. The Company shall pay
to the Agent, for the ratable account of each Bank, a Letter of
Credit Fee ("Letter of Credit Fee") in respect of the Letter of
Credit then being issued equal to the LIBOR Margin on such day times
the Dollar Amount on such day (and recalculated on the first Business
Day of each quarter for such quarter) of the maximum face amount of
such Letter of Credit from the Issuance Date thereof until such
Letter of Credit expires or is terminated. Promptly upon its receipt
of such Letter of Credit Fee, the Agent shall pay to each Bank, in
immediately available funds, an amount equal to such Bank's
Applicable Percentage thereof. Any Issuer shall have the right to
receive, for its own account (i) in respect of each Letter of Credit
issued by it, a fee in the amount of 1/8 of 1% per annum of the
Dollar Amount of the maximum face amount of such Letter of Credit
("Issuer's Fee"), and (ii) all of its reasonable and customary costs
of issuing and servicing the Letters of Credit. The Letter of Credit
Fee and the Issuer's Fee shall begin to accrue on the Issuance Date
and shall be payable quarterly in arrears.
1.14. Article IV of the Credit Agreement is hereby amended
to insert immediately after the phrase "to make Loans" in the first
sentence thereof, the following: "or to issue Letters of Credit".
1.15. Section 4.01 of the Credit Agreement is hereby amended
to insert immediately after the phrase "on the date of each Borrowing",
the following: "or the Issuance Date of each Letter of Credit".
1.16. Section 4.01(d) is hereby amended to insert
immediately after the phrase "or refinancing", the following: "or the
Issuance Date of each Letter of Credit".
1.17. Article V of the Credit Agreement is hereby amended to
insert immediately after the phrase "or the Loans," in the first sentence
thereof, the following: "Letter of Credit Obligations,".
1.18. Section 5.08 of the Credit Agreement is hereby amended
to insert immediately after the phrase "of the Loans", the following:
"and Letters of Credit".
1.19. Article VI of the Credit Agreement is hereby amended
to insert immediately after the phrase "of the Loans" in the first
sentence thereof, the following: "Letter of Credit Obligations,".
1.20. Section 6.01(a) of the Credit Agreement is hereby
amended by adding the following language at the end thereof:
"except to the extent any such Current Debt was refinanced with
Funded Debt, in which case such Current Debt, to the extent it
was refinanced with Funded Debt, will not be deemed to
constitute Funded Debt".
1.21. Article VII(b) of the Credit Agreement is hereby
amended to insert immediately after the phrase "of the Notes", the
following: "or the Reimbursement Obligations".
1.22. Article VII(c) of the Credit Agreement is hereby
amended to insert immediately after the phrase "of the Commitment Fee",
the following: ", the Letter of Credit Fee, the Issuer's Fee"; and to
insert immediately after the phrase "(other than principal payments on the
Notes", the following: "or the Reimbursement Obligations."
1.23. Article VII of the Credit Agreement is hereby amended
to add immediately following the phrase in the final paragraph thereof
"terminate forthwith the Revolving Loan Commitments and the Eurocurrency
Commitments", the following "and the obligations to issue Letters of
Credit"; and to insert immediately after the phrase "whereupon the
Revolving Loan Notes, the Eurocurrency Notes and the Competitive Bid
Notes", the following: "and the Letter of Credit Obligations"; and to
insert immediately after the phrase "shall automatically terminate, and
the Revolving Loan Notes, the Eurocurrency Notes and the Competitive Bid
Notes", the following: "and the Letter of Credit Obligations".
1.24. Section 8.04 of the Credit Agreement is hereby amended
to insert immediately after the phrase "the principal of or interest on
any Note", the following: "or with respect to any Letter of Credit
Obligation"; and to insert immediately after the phrase "or the Commitment
Fee" in the third sentence, the following: "the Letter of Credit Fee or
the Issuer's Fee".
1.25. Section 8.05 of the Credit Agreement is hereby amended
to insert immediately after the phrase "of the Notes", the following:
"and the Letter of Credit Obligations"; and to insert immediately after
the phrase "arising out of this Agreement, the Notes," the following:
"the Letters of Credit".
1.26. Section 8.06 of the Credit Agreement is hereby amended
to insert immediately after the phrase "the Notes evidencing such Loans",
the following: "and the Letters of Credit".
1.27. Article IX of the Credit Agreement is hereby amended
to inset immediately after the phrase "of this Agreement or any Note", the
following: "or Letter of Credit"; and to insert immediately after the
phrase "any Revolving Note or Eurocurrency Note", the following: "or
Letter of Credit"; and to insert immediately after the phrase "payment of
any Commitment Fee", the following: "or other fee" and to add the
following at the end thereof: "No amendment of any provision of this
Agreement relating in any way to any Issuing Banks or any or all of the
Letters of Credit shall be effective without the written consent of each
Issuing Bank affected thereby".
1.28. Section 10.02 of the Credit Agreement is hereby
amended to insert immediately after the phrase "obtain payment in respect
of any Note held by it as a result of which the unpaid portion of such
Note is proportionately less than the unpaid portion of the Notes held by
each of the other Banks", the following: "or obtain payment in respect of
any Reimbursement Obligations owed to it as a result of which the unpaid
portion of such Reimbursement Obligations is proportionately less than the
unpaid portion of the Reimbursement Obligations held by each of the other
Banks"; and to insert immediately after the phrase "so that the aggregate
unpaid principal amount of the Notes", the following: "and Reimbursement
Obligations"; and to insert immediately after the phrase "shall be in the
same proportion to the aggregate unpaid principal amount of the Notes",
the following: "and Reimbursement Obligations"; and to insert immediately
after the phrase "then outstanding as the principal amount of the Note",
the following: "and Reimbursement Obligations"; and to insert immediately
after the phrase "to the principal amount of all the Notes", the
following: "and Reimbursement Obligations"; and to insert immediately
after the phrase "agrees that any holder of a participation in any Loan or
Note", the following: "and Reimbursement Obligations".
1.29. Section 10.10 of the Credit Agreement is hereby
amended by inserting immediately after the phrase "the proceeds of any
Loan" in the next to the last sentence thereof, the following: "or Letter
of Credit".
2. Conditions of Effectiveness. This Amendment shall become
effective and be deemed effective as of the date hereof, if, and only if,
the Agent shall have received each of the following:
(a) duly executed originals of this Amendment from the Company
and each of the Banks; and
(b) such other documents, instruments and agreements as the
Agent may reasonably request.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants as follows:
(a) This Amendment and the Credit Agreement as previously
executed and as amended hereby, constitute legal, valid and binding
obligations of the Company and are enforceable against the Company in
accordance with their terms.
(b) Upon the effectiveness of this Amendment, the Company
hereby reaffirms all covenants, representations and warranties made
in the Credit Agreement, to the extent the same are not amended
hereby, and agrees that all such covenants, representations and
warranties shall be deemed to have been remade as of the effective
date of this Agreement.
4. Reference to the Effect on the Credit Agreement.
(a) Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof," "herein" or words of like import shall
mean and be a reference to the Credit Agreement dated as of November 29,
1995, as amended previously and as amended hereby.
(b) Except as specifically amended above, the Credit Agreement
dated as of November 29, 1995 and all other documents, instruments and
agreements executed and/or delivered in connection therewith shall remain
in full force and effect, and are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a wavier of any
right, power or remedy of the Agent or any of the Banks, nor constitute a
waiver of any provision of the Credit Agreement or any other documents,
instruments and agreements executed and/or delivered in connection
therewith.
5. Costs and Expenses. The Company agrees to pay all
reasonable costs, fees and out-of-pocket expenses (including attorneys'
fees and expenses charged to the Agent) incurred by the Agent in
connection with the preparation, execution and enforcement of this
Amendment.
6. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to the conflict
of law provisions) of the State of Illinois.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part
of this Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or
more of the parties to the Amendment on any number of separate
counterparts and all of said counterparts taken together shall be deemed
to constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By: _________________________________
Title: SENIOR VICE PRESIDENT & CFO
THE FIRST NATIONAL BANK OF
CHICAGO, Individually and as Agent
By: _________________________________
Title:________________________________
FIRSTAR BANK MILWAUKEE, N.A.
By: ________________________________
Title: ___________________________
SOCIETE GENERALE
By: ______________________________
Title: _________________________
WACHOVIA BANK OF GEORGIA, N.A.
By: ________________________________
Title: Vice President
M&I XXXXXXXX & ILSLEY BANK
By: _______________________________
Title: __________________________
THE NORTHERN TRUST COMPANY
By: ______________________________
Title: _________________________
