AMENDMENT NO. 3
AND WAIVER
to
CREDIT AGREEMENT
Dated as of December 21, 1992
THIS AMENDMENT NO. 3 AND WAIVER ("Amendment") is entered into as
of February 10, 1997 by and among ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., a Wisconsin
corporation, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Ltd., a corporation formed under the laws
of the United Kingdom, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ GmbH, a corporation formed under
the laws of the Republic of Germany, and the institutions identified on
the signature pages hereof as Agent and Lenders which are signatories
hereto. Capitalized terms used herein but not defined herein shall have
the meanings provided in the Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, the U.S. Borrower, the Multicurrency Borrowers, and the
Lenders are parties to that certain Credit Agreement dated as of December
21, 1992, as heretofore amended (together with the Exhibits and Schedules
thereto, the "Credit Agreement"), pursuant to which the Lenders have
agreed to provide certain financial accommodations to the U.S. Borrower
and Multicurrency Borrowers;
WHEREAS, the U.S. Borrower has requested certain amendments to
financial covenants set forth in Section 5.01 of the Credit Agreement for
fiscal quarters ending in 1997 and the waiver of Lenders' rights and
remedies arising due to its failure to comply with certain financial
covenants set forth in Section 5.01 for the fiscal quarter ending December
31, 1996;
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 parties hereto hereby agree as follows:
1. Amendment to Credit Agreement; Waiver. Effective as of
February 10, 1997, upon satisfaction of the conditions precedent set forth
in Section 2 below, (a) the Credit Agreement is hereby amended to (i) add
the following provision at the end of (A) Section 5.01(b):
For purposes of calculating the Interest Coverage Ratio for fiscal
quarters ending in 1997, the calculation shall be made without regard
to the charges for Fraser contracts/restructuring; RAM
warranty/returns; and balance sheet valuation adjustments in an
aggregate amount not to exceed $80,100,000, on a pre-tax basis,
occurring in the fiscal quarter ending December 31, 1996.
and (B) Section 5.01(c):
For purposes of calculating the Fixed Charge Coverage Ratio for
fiscal quarters ending in 1997, the calculation shall be made without
regard to the charges for Fraser contracts/restructuring; RAM
warranty/returns; and balance sheet valuation adjustments in an
aggregate amount not to exceed $80,100,000, on a pre-tax basis,
occurring in the fiscal quarter ending December 31, 1996.
and (ii) delete the provisions of Section 8.02(iii) thereof in their
entirety and substitute the following therefor:
(iii) if the Agent, c/o Citicorp Securities, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇, Telecopier No. (▇▇▇) ▇▇▇-▇▇▇▇, Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇;
(b) the rights and remedies of the Lenders arising due to the U.S.
Borrower's failure to comply with the requirements of Section 5.01(b) and
Section 5.01(c) as of the end of its fiscal quarter ending December 31,
1996 are hereby waived, including, without limitation, Lenders' right
under Section 3.02 to not make Advances or Multicurrency Advances and the
Issuing Bank's right under Section 3.02 to not issue Letters of Credit, in
each instance, due to the breach of the provisions of Section 5.01(b) and
Section 5.02(c) as aforesaid, and
(c) pre-default interest payable under the Agreement which is calculated
based on an Applicable Eurocurrency Rate Margin shall be calculated from
and after January 1, 1997 based solely on Performance Level IV and the
amount of the Facility Fee payable for the period commencing on January 1,
1997 and ending on the Termination Date shall be calculated based solely
on Performance Level IV.
2. Conditions to Effectiveness. This Amendment shall become
effective as of February 10, 1997 upon receipt by the Agent, by no later
than February 5, 1997, of executed counterparts of this Amendment signed
on behalf of the U.S. Borrower, the Multicurrency Borrowers, and Lenders
constituting at least the Majority Lenders.
3. Representations, Warranties and Covenants.
3.1 The U.S. Borrower hereby represents and warrants that this
Amendment and the Credit Agreement, as amended hereby, constitute the
legal, valid and binding obligations of the U.S. Borrower and the
Multicurrency Borrowers and are enforceable against the U.S. Borrower and
Multicurrency Borrowers in accordance with their terms.
3.2 The U.S. Borrower hereby represents and warrants that,
before and after giving effect to this Amendment, no Event of Default or
Potential Event of Default has occurred and is continuing except under
Section 5.01 with respect to the non-compliance described in Section 1(b)
hereinabove.
3.3 The U.S. Borrower and each Multicurrency Borrower hereby
reaffirms all agreements, covenants, representations and warranties made
in the Credit Agreement, to the extent the same are not amended hereby,
and made in the other Loan Documents to which it is a party; and agrees
that all such agreements, covenants, representations and warranties shall
be deemed to have been remade as of the effective date of this Amendment.
To the extent the Credit Agreement is amended hereby to modify or add
agreements, covenants and/or representations and warranties, such
agreements, covenants and/or representations and warranties are made as of
the date on which this Amendment becomes effective with respect thereto.
4. Reference to and Effect on the Credit Agreement.
4.1 Upon the effectiveness of this Amendment, 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 as amended hereby.
4.2 Except as specifically amended above, the Credit Agreement
shall remain in full force and effect, and is hereby ratified and
confirmed.
4.3 The parties to this Amendment hereby acknowledge that the
Event of Default arising due to the U.S. Borrower's failure to comply with
the requirements of Section 5.01(b) and Section 5.01(c) for the fiscal
quarter ending December 31, 1996 as aforesaid has not resulted, and is not
reasonably likely to result, in a Material Adverse Effect. The execution,
delivery, and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or
remedy of the Agent or Lenders, or constitute a waiver of any provision of
any of the Loan Documents.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
6. 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.
7. Counterparts. This Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts, each of
which shall be deemed an original and all of which, taken together, shall
be deemed to constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ GmbH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LTD.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Treasurer
CITIBANK, N.A., as Agent and
Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
Title: Attorney-in-Fact
FIRSTAR BANK MILWAUKEE, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ A. S. ▇▇▇▇▇▇▇▇▇▇
Name: A. S. ▇▇▇▇▇▇▇▇▇▇
Title: Sr. Team Leader-Loan
Operations
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
COMMERZBANK AKTIENGESELLSCHAFT GRAND CAYMAN
BRANCH
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Treasurer
By /s/ ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
FIRST BANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE NORTHERN TRUST COMPANY
By /s/ ▇▇▇▇▇ F. T. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ F. T. ▇▇▇▇▇▇▇
Title: Vice President
