AMENDMENT No. 3 TO REVOLVING CREDIT AGREEMENT, dated as
of November 10, 1997, among XXXXX XXXXXX, INC., a corporation organized
under the laws of the State of Delaware (the "Borrower"), and THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), FLEET BANK,
NATIONAL ASSOCIATION, a national banking association organized under the
laws of the United States of America "("Fleet"), COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", New York Branch, a
cooperative banking organization organized under the laws of The
Netherlands ("Rabobank Nederland"), and EUROPEAN AMERICAN BANK, a New
York banking corporation ("EAB"; collectively with Chase, Fleet and
Rabobank Nederland, the "Banks"), and Chase, as Agent for the Banks.
RECITALS:
A. The parties hereto entered into that Revolving
Credit Agreement, dated as of January 31, 1997 (such agreement as it has
been amended through the date hereof, the "Credit Agreement").
B. The parties hereto desire to amend the Credit
Agreement on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO REVOLVING CREDIT AGREEMENT.
This Amendment shall be deemed to be an amendment to
the Credit Agreement and shall not be construed in any way as a
replacement or substitution therefor. All of the terms and provisions of
this Agreement are hereby incorporated by reference into the Credit
Agreement as if such terms were set forth in full therein.
Section 1.1. Section 1.1 of the Credit Agreement is hereby
amended by inserting the following defined terms therein in alphabetical
order:
"Swing Line Loan Commitment" means $15,000,000 (U.S.), as
such amount may be reduced in accordance to Section 2.4A.
"Swing Line Loans" means the loans made by Chase to the
Borrower pursuant to Section 2.4A.
"Swing Line Loan Note" means the promissory note of the
Borrower in favor of Chase evidencing the Swing Line Loans and
substantially in the form of Exhibit 2.4A hereto as such promissory note
may be amended, modified, supplemented, or replaced from time to time.
Section 1.2. The definition of the term "Aggregate
Outstandings" contained in Section 1.1 of the Credit Agreement is hereby
amended to provide in its entirety as follows:
"Aggregate Outstandings" means, at a particular time,
the sum of (a) Aggregate Letters of Credit Outstanding
at such time plus (b) Aggregate Banker's Acceptance
Outstandings, at such time plus (c) the Dollar
Equivalent of the aggregate outstanding principal
amount of all Revolving Credit Loans at such time plus
(d) without duplication, the aggregate outstanding
principal amount of all Swing Line Loans at such time.
Section 1.3. The definition of the term "Loan" contained in
Section 1.1 of the Credit Agreement is hereby amended to provide in its
entirety as follows:
"Loan" means a Revolving Credit Loan, a Swing Line Loan,
a Letter of Credit or Documentary Banker's Acceptance.
Section 1.4. The definition of the term "Notes" contained in
Section 1.1 of the Credit Agreement is hereby amended to provide in its
entirety as follows:
"Notes" means the Revolving Credit Notes and the Swing Line
Note.
Section 1.5. Section 2.4(c) of the Credit Agreement is
hereby amended by deleting the phrase "ten (10) different Interest Periods"
therefrom and substituting the following in its place:
"twelve (12) different Interest Periods".
Section 1.6. Article 2 of the Credit Agreement is hereby
amended by inserting the following new Section 2.4A therein immediately
following Section 2.4 thereof:
Section 2.4A. Swing Line Loans.
(a) Swing Line Loan Commitment. Subject to the terms
and conditions set forth herein, Chase agrees to make revolving loans to
the Borrower in Dollars from time to time from the date hereof to the
Revolving Credit Termination Date (each such loan, a "Swing Line Loan"
and collectively, the "Swing Line Loans"); provided that (i) the
aggregate amount of the Swing Line Loans outstanding at any one time
shall not exceed the Swing Line Loan Commitment and (ii) the Aggregate
Outstandings at any one time may not exceed the Total Revolving Credit
Commitments. The Swing Line Loan Commitment may be reduced or terminated
by Chase, in its sole discretion, upon three Business Days' notice to the
Borrower. Prior to the Revolving Credit Termination Date, Swing Line
Loans may be repaid and reborrowed by the Borrower in accordance with the
provisions hereof. Upon the request of any Bank, Chase shall provide such
Bank a schedule of Swing Line Loans then outstanding.
(b) Method of Borrowing Swing Line Loans. By no later
than 12:00 noon,
New York City time, on the date of the requested borrowing of a Swing Line
Loan, the Borrower shall give written notice (or telephone notice promptly
confirmed in writing) to Chase. Each such notice shall be irrevocable and
shall state (A) that a Swing Line Loan is requested, (B) the date of the
requested Swing Line Loan which shall be a Banking Day) and (C) the principal
amount of the Swing Line Loan requested. Each Swing Line Loan shall bear
interest at such rate and shall have such maturity date as Chase and the
Borrower shall agree upon receipt by Chase of any such notice from the
Borrower, provided, that the maturity date for any Swing Line Loan shall not
in any event be a date more than five (5) Banking Days from the date such
Swing Line Loan is advanced or a date after the Revolving Credit Termination
Date.
(c) Payment and Participations of Swing Line Loans. The
Borrower agrees to repay all Swing Line Loans then outstanding within one
Business Day of demand therefor by Chase, which may be accomplished by
the Borrower requesting a Revolving Credit Loan pursuant to Section 2.4
hereof. The parties hereto intend that each Swing Line Loan will be
refinanced within five (5) Banking Days of the making of such Swing Line
Loan with the proceeds of a Revolving Credit Loan which shall be a LIBOR
Loan. In the event that the Borrower shall fail to repay any Swing Line
Loan within three Business Days after demand therefor by Chase, and in
any event upon (i) a request by Chase, (ii) the occurrence of an Event of
Default described in Sections 10.1(f) or 10.1(i) or (iii) the
acceleration of any Note or termination of the Revolving Credit
Commitments pursuant to Section 10, each other Bank shall irrevocably and
unconditionally purchase from Chase, without recourse or warranty, an
undivided interest and participation in such Swing Line Loan in an amount
equal to such other Bank's Commitment Proportion thereof, by directly
purchasing a participation in such Swing Line Loan in such amount
(regardless of whether the conditions precedent thereto set forth in
Section 5.2 hereof are then satisfied, whether or not the Borrower has
requested a Loan and whether or not the Revolving Credit Commitments are
then in effect, any Event of Default exists or all the Notes have been
accelerated) and paying the proceeds thereof to Chase at 000 Xxxxx
Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, or at such other address as Chase
may designate, in lawful money of the United States of America and in
immediately available funds. Chase agrees to notify each Bank that is
obligated to purchase a participation in Swing Line Loans hereunder of
the occurrence of any event described in clauses (ii) or (iii) above
promptly after Chase becomes aware thereof, but the failure to give such
notice will not affect the obligation of any such Bank to purchase any
such participation. Provided that Chase has provided notice to the Banks
by 2:00 p.m., New York City time, the Banks shall purchase such
participations on the same Banking Day. If any such notice is delivered
after 2:00 p.m., New York City time, the Banks shall be obligated to
purchase such participations on the next succeeding Banking Day. If such
amount is not in fact made available to Chase by any Bank, Chase shall be
entitled to recover such amount on demand from such Bank together with
accrued interest thereon for each day from the date such amount is
require to be paid, at the Federal Funds Rate. If such Bank does not pay
such amount as provided above, and until such time as such Bank makes the
required payment, Chase shall be deemed to continue to have outstanding
Swing Line Loans in the amount of such unpaid participation obligation
for all purposes of the Facility Documents other than those provisions
requiring the other Bank to purchase a participation therein. Further,
such Bank shall be deemed to have assigned any and all payments made of
principal and interest on its Loans, amounts due with respect to any
Letters of Credit or Banker's Acceptances (or its participation interests
therein) and any other amounts due
to it hereunder to Chase to fund Swing Line Loans in the amount of the
participation in Swing Line Loans that such Bank failed to purchase pursuant
to this Section 2.4A(c) until such amount has been purchased (as a result of
such assignment or otherwise). Upon the purchase of a participation interest
in respect of such Swing Line Loan by a Bank pursuant to this Section 2.4A,
the amount so funded shall become a Revolving Credit Loan by the purchasing
Bank hereunder and shall no longer be a Swing Line Loan. On the date that the
Banks are required to purchase participations in Swing Line Loans under this
Section 2.4A, Chase's pro rata share of such Swing Line Loans shall no longer
be a Swing Line Loan hereunder but shall be a Revolving Credit Loan.
(d) Swing Line Note. The Swing Line Loans made by Chase
shall be evidenced by a duly executed promissory note of the Borrower to
Chase in the face amount of the Swing Line Loan Commitment and in
substantially the form of Exhibit 2.4A.
(e) Funding of Swing Line Loans. Upon receipt of a
request for a Swing Line Loan as provided above, Chase will fund such
amount to the Borrower by 2:00 p.m., New York City time, on the date
specified in such request by crediting an account of the Borrower on the
books of Chase.
Section 1.7. Section 2.5 of the Credit Agreement is hereby
amended by deleting the title thereto and substituting the following in its
place: "Minimum Amounts of Loans" and by inserting the following sentence at
the end thereof: "Each Swing Line Loan shall be in a minimum amount of
$500,000 and, if greater in integral multiples of $100,000 in excess thereof."
Section 1.8. Section 2.8 of the Credit Agreement is hereby
amended by inserting a new clause "(c)" at the end thereof which provides as
follows:
"(c) Swing Line Loans, The Borrower shall pay interest
on the outstanding and unpaid principal amount of each
Swing Line Loan made under this Agreement at the fixed
rate per annum agreed to by Chase and the Borrower at
the time such Loan is made. Interest shall be
calculated on the basis of the actual number of days
elapsed divided by a year of (360) days and shall be
paid to Chase for its own account on maturity of such
Swing Line Loan."
Section 1.9. Section 3.3 of the Credit Agreement is hereby
amended by inserting the following sentence at the end thereof: "For purposes
of making calculations under this Section 3.3 only, the unused portion of the
Total Revolving Credit Commitments shall be calculated as if there were no
Swing Line Loans outstanding, regardless of the outstanding principal balance
of Swing Line Loans."
Section 1.10. Section 3.7(a) of the Credit Agreement is
hereby amended by inserting the following phrase at the beginning thereof:
"Except as provided in the last sentence of this Section 3.7(a)," and by
inserting the following sentence at the end thereof: "Notwithstanding the
foregoing, all payments under this Agreement on the Swing Line Note shall be
made in Dollars in immediately available funds to Chase for its own account
not later than 1:00 p.m. New York City time to the office of Chase specified
above."
Section 1.11. Section 11.16 of the Credit Agreement is
hereby amended by deleting the phrase "Except to the extent otherwise provided
in this Agreement" therefrom and substituting the following in its place:
"Except with respect to Swing Line Loans which shall be made by, and shall be
repaid to, Chase for its own account, and except as otherwise provided in this
Agreement."
ARTICLE 2. SUPPLEMENT TO THE CREDIT AGREEMENT
The Credit Agreement is hereby supplemented as follows:
Section 2.1. Simultaneously with the execution and delivery
of this Amendment, the Borrower shall execute and deliver to Chase a Swing
Line Note in the form annexed hereto as Exhibit 2.4A.
Section 2.2. All references in the Credit Agreement and in
the Facility Documents to the "Agreement" shall be deemed to refer to the
Agreement as amended and supplemented hereby; and unless the context otherwise
requires all references in such documents to the Notes shall be deemed to
include the Swing Line Note.
Section 2.3. The Credit Agreement and the Facility Documents
shall each be deemed amended, to the extent necessary, to give effect to the
provisions of this Amendment.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the
Banks that:
Section 3.1. Each and every of the representations and
warranties set forth in Article 6 of the Credit Agreement is true in all
material respects as of the date hereof with respect to the Borrower and, to
the extent applicable, the Guarantors and each of their Subsidiaries and with
the same effect as though made on the date hereof (except when such
representation or warranty by its terms relates to a specific date other than
the date hereof), and is hereby incorporated herein in full by reference as if
fully restated herein in its entirety. In addition, in order to induce the
Banks to enter into this Amendment, the Borrower hereby covenants, represents
and warrants to the Banks that since December 31, 1996, there has been no
material adverse change in the business, operations, assets or financial or
other condition of the Borrower or of the Borrower, the Guarantors and their
Subsidiaries, taken as a whole.
Section 3.2. No Default or Event of Default, as defined in
the Agreement now exists except as specifically waived hereby.
Section 3.3. The Borrower has the requisite corporate power
and authority to enter into, perform and deliver this Amendment and the Swing
Line Note, and any other documents, instruments, agreements or other writings
to be delivered in connection herewith. This Amendment and the Swing Line
Note, and all documents contemplated hereby or delivered in connection
herewith, have each been duly authorized, executed and delivered and the
transactions contemplated herein have been duly authorized by all necessary
corporate action.
Section 3.4. This Amendment and the Swing Line Note and any
other documents, agreements or instruments now or hereafter executed and
delivered to the Banks by the Borrower in connection herewith constitute (or
shall, when delivered, constitute) valid and legally binding obligations of
Borrower, each of which is and shall be enforceable against Borrower in
accordance with their respective terms except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency or other
similar laws affecting creditors rights generally or by the effect of general
principles of equity which may limit the enforceability of
equitable remedies (whether in a proceeding at law or in equity).
Section 3.5. No representation, warranty or statement by the
Borrower contained herein or in any other document to be furnished by the
Borrower in connection herewith contains, or at the time of delivery shall
contain, any untrue statement of material fact, or omits or at the time of
delivery shall omit to state a material fact necessary to make such
representation, warranty or statement not misleading.
Section 3.6. No consent, waiver or approval of any entity is
or will be required in connection with the execution, delivery, performance,
validity or enforcement or priority of this Amendment and the Swing Line Note,
or any other agreements, instruments or documents to be executed and/or
delivered in connection herewith or pursuant hereto.
Section 3.7. Except as previously disclosed to the Banks,
there is no claim, litigation, investigation or proceeding pending or
threatened against or otherwise materially affecting the Borrower's business.
The Borrower's performance of its obligations hereunder and/or the validity or
enforceability of this Amendment and the Swing Line Note are not the subject
of any suit, investigation or proceeding, and the Borrower has no knowledge of
any circumstances indicating that any such suit, investigation or proceeding
is likely or imminent.
ARTICLE 4. CONDITIONS
This Amendment shall become effective only upon
satisfaction of the following conditions precedent:
(a) Chase shall have received each of the following
documents, in form and substance reasonably satisfactory to Chase and its
counsel:
i. this Amendment and the Swing Line Note, duly executed by
the Borrower;
ii. a certificate of the Secretary of the Borrower, dated
the date of this Amendment, attesting to all corporate action taken by such
entity, including resolutions of its Board of Directors authorizing the
execution, delivery and performance of this Amendment, the Swing Line Note and
each other document to be delivered pursuant to this Amendment, together with
a certification that the certificate, articles of incorporation and the
by-laws of the Borrower has not been amended, modified, revoked or rescinded
since the Closing Date;
iii. a certificate of the Secretary of the Borrower dated
the date of this Amendment certifying the names and true signatures of the
officers of such entity authorized to sign this Amendment, the Swing Line Note
and the other documents to be delivered by such entity under this Amendment;
and
iv. such other documents, instruments, approvals, opinions
and evidence as the Banks may reasonably require;
(b) the Borrower shall have obtained all consents, permits
and approvals (if any) required in connection with the execution, delivery and
performance by the Borrower of its obligations hereunder and such consents,
permits and approvals shall continue in full force and effect; and
(c) all legal matters in connection with this financing
shall be reasonably satisfactory to the Banks and their counsel.
ARTICLE 5. MISCELLANEOUS
Section 5.1. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing any
such counterpart.
Section 5.2. This Amendment shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New
York.
Section 5.3. Except as specifically amended hereby, the
Credit Agreement shall remain in full force and effect in accordance with its
terms.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and year first above written.
XXXXX XXXXXX, INC.
By:
---------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Agent and a Bank
By:
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FLEET BANK, NATIONAL ASSOCIATION
By:
---------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
---------------------------
Name:
Title:
EXHIBIT 2.4A
FORM OF
SWING LINE LOAN NOTE
$15,000,000 November 10, 1997
FOR VALUE RECEIVED, XXXXX XXXXXX, INC., a Delaware corporation
(the "Borrower"), hereby promises to pay to the order of THE CHASE
MANHATTAN BANK (the "Lender") at the office of the Lender (or at such
other place or places as the holder of this Swing Line Loan Note may
designate) as set forth in that certain Revolving Credit Agreement dated
as of January 31, 1997 (as the same may be amended, modified, extended or
restated from time to time, the "Agreement") among the Borrower and the
Lender, FLEET BANK, NATIONAL ASSOCIATION, CENTRALE RAIFFEISEN-BOERENLEEN
BANK B.A. "RABOBANK NEDERLAND" and EUROPEAN AMERICAN BANK and the Lender
as Agent for the Banks, $20,000,000 or such lesser amount as shall equal
the aggregate principal amount of all Swing Line Loans made by the Lender
(and not otherwise repaid), pursuant to Section 2.4A of the Agreement, in
lawful money and in immediately available funds, on the dates and in the
principal amounts provided in the Agreement, and to pay interest on the
unpaid principal amount of each Swing Line Loan made by the Lender at
such office, in like money and funds, for the period commencing on the
date of each Swing Line Loan until each Swing Line Loan shall be paid in
full, at the rates per annum and on the dates provided in the Agreement.
This Note is the Swing Line Loan Note referred to in the
Agreement and evidences Swing Line Loans made by the Lender thereunder.
The Lender shall be entitled to the benefits of the Agreement.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed thereto in the Agreement and the terms and conditions
of the Agreement are expressly incorporated herein and made a part
hereof.
The Agreement provides for the acceleration of the maturity of
the Swing Line Loans evidenced by this Swing Line Loan Note upon the
occurrence of certain events (and for payment of collection costs in
connection therewith) and for prepayments of Swing Line Loans upon the
terms and conditions specified therein. In the event this Swing Line Loan
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 attorney fees.
The date, amount and interest rate of each Swing Line Loan made
by the Lender to the Borrower, and each payment made on account of the
principal thereof, shall be recorded by the Lender on its books; provided
that the failure of the Lender to make any such recordation shall not
affect the obligations of the Borrower to make a payment when due of any
amount owing hereunder or under this Swing Line Loan Note in respect to
the Swing Line Loans to be evidenced by this Swing Line Loan Note, and
each such recordation shall be prima facie evidence
of the obligations owing under this Swing Line Loan Note absent manifest
error.
THIS SWING LINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Note to be
executed by its duly authorized officer as of the date first above
written.
XXXXX XXXXXX, INC.
By:
---------------------------------
Name:
Title:
