EXHIBIT 10.49
AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT (this "Amendment Agreement")
is made and entered into effective as of the 23d day of March, 1998, by and
between BERLITZ INTERNATIONAL, INC, a New York corporation (the "Borrower"),
EACH OF THE GUARANTORS SIGNATORY HERETO (the "Guarantors"), NATIONSBANK,
NATIONAL ASSOCIATION, a national banking association organized and existing
under the laws of the United States, as agent for the Lenders ("Agent") under
the Credit Agreement (as defined below), and the Lenders. Unless the context
otherwise requires, all terms used herein without definition shall have the
definitions provided therefor in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Agent, the Lenders and the Borrower have entered into that
certain Credit Agreement dated as of August 28, 1997, as amended by that certain
Amendment No. 1 to Credit Agreement and Amendment No. 1 to Pledge Agreement
dated as of September 12, 1997, and as further amended by that certain Amendment
No. 2 to Credit Agreement dated as of October 28, 1997 (as hereby and from time
to time amended, supplemented or replaced, the "Credit Agreement"), pursuant to
which the Lenders have agreed to make and have made certain revolving and term
credit facilities available to the Borrower; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in the
manner herein set forth effective as of the date hereof;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. The term "Credit Agreement" or "Agreement" (as the case
may be) as used herein and in the Loan Documents shall mean the Credit Agreement
as hereby amended and modified, and as further amended, modified or supplemented
from time to time as permitted thereby.
2. Amendments. Subject to the conditions hereof, the Credit Agreement
is hereby amended, effective as of the date hereof, as follows:
(a) The following definition is added to the Credit Agreement
in its proper alphabetical position in Section 1.1 of the Credit Agreement:
"Indemnification Percentage" means, with respect to each
Lender at any time, a fraction, (i) the numerator of which shall be the
sum of such Lender's (A) Revolving Credit Commitment and (B) Term Loan
Commitment, and (ii) the denominator of which shall be the sum of (X)
the Total Revolving Credit Commitment and (Y) the Total Term Loan
Commitment; provided that the Indemnification Percentage of each Lender
shall be increased or decreased to reflect any assignments to or by
such Lender effected in accordance with Section 13.1 hereof.
(b) The definition of "Applicable Commitment Percentage" is hereby deleted in
its entirety and the following is inserted in replacement thereof:
"Applicable Commitment Percentage" means, with respect to each Lender
at any time, (i) with respect to the Revolving Credit Facility, any
Revolving Loan, the Letter of Credit Facility and any Letter of Credit
or Reimbursement Obligation thereunder, a fraction, the numerator of
which shall be such Lender's Revolving Credit Commitment set forth on
Exhibit A and the denominator of which shall be the Total Revolving
Credit Commitment, which Applicable Commitment Percentage for each
Lender as of March 23, 1998, after the effectiveness of Amendment No. 3
to Credit Agreement, is as set forth in Exhibit A, and (ii) with
respect to the Term Loan Facility and any Term Loans, a fraction, the
numerator of which shall be such Lender's Term Loan Commitment set
forth on Exhibit A and the denominator of which shall be the Total Term
Loan Commitment, which Applicable Commitment Percentage for each Lender
as of March 23, 1998, after the effectiveness of Amendment No. 3 to
Credit Agreement, is as set forth in Exhibit A; provided that the
Applicable Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender effected in
accordance with Section 13.1 hereof.
C. The definition of "Total Revolving Credit Commitment" is hereby
deleted in its entirety and the following is inserted in replacement thereof:
"Total Revolving Credit Commitment" means a principal amount
equal to $70,000,000, as reduced from time to time in accordance with Section
3.7 hereof.
(d) Section 12.5 of the Credit Agreement is hereby deleted in its
entirety and replaced by the following:
12.5 INDEMNIFICATION. The Lenders agree to indemnify
the Agent (to the extent not reimbursed under Section 13.9
hereof, but without limiting the obligations of the Borrower
under such Section) ratably in accordance with their
respective Indemnification Percentages for any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys'fees),
or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising
out of any Loan Document or the transactions contemplated
thereby or any action taken or omitted by the Agent under any
Loan Document; provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be
indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its
ratable share of any costs or expenses payable by the Borrower
under Section 13.5, to the extent that the Agent is not
promptly reimbursed for such costs and expenses by the
Borrower.
The agreements contained in this Section 12.5 shall survive
payment in full of the Loans and all other amounts payable
under this Agreement.
(e) Exhibit A to the Credit Agreement is hereby amended and
restated in its entirety as set forth on Annex I attached
hereto and incorporated herein by reference.
3. Guarantors. Each Guarantor hereby (i) consents and agrees to the
amendments to the Credit Agreement set forth herein and (ii) confirms its joint
and several guarantee of payment of all the Obligations pursuant to the
Subsidiary Guaranty.
4. Representations and Warranties. The Borrower hereby certifies that:
(a) The representations and warranties made by the Borrower in
Article VIII of the Credit Agreement are true and correct in all material
respects on and as of the date hereof, with the same effect as though such
representations and warranties were made on the date hereof, except to the
extent that such representations and warranties expressly relate to an earlier
date.
(b) No event has occurred and no condition exists which, upon
the consummation of the transaction contemplated hereby, will constitute a
Default or an Event of Default on the part of the Borrower under the Credit
Agreement or any other Loan Document either immediately or with the lapse of
time or the giving of notice, or both.
5. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as
otherwise expressly stated herein, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment Agreement may be changed, modified,
waived or canceled orally or otherwise, except by writing, signed by all the
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach thereof.
6. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
7. Counterparts. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8. Governing Law. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the state of New York.
9. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. Credit Agreement. All references in any of the Loan Documents to
the "Credit Agreement" shall mean the Credit Agreement as amended hereby and all
references to the "Total Revolving Credit Commitment" in any of the Loan
Documents shall mean the Total Revolving Credit Commitment as amended hereby.
11. Successors and Assigns. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrower, the Lenders and the Agent
and their respective successors, assigns and legal representatives; provided,
however, that the Borrower, without the prior consent of the Agent, may not
assign any rights, powers, duties or obligations hereunder.
12. Expenses. Borrower agrees to pay to the Agent and the Lenders all
reasonable out-of-pocket expenses incurred or arising in connection with the
negotiation and preparation of this Amendment Agreement.
[SIGNATURE PAGES FOLLOW.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to Credit Agreement to be duly executed by their duly authorized officers, all
as of the day and year first above written.
BORROWER:
BERLITZ INTERNATIONAL, INC.
By: __________________________________
Name: ________________________________
Title: _________________________________
GUARANTORS:
BERLITZ LANGUAGES, INC.
By: __________________________________
Name: ________________________________
Title: _________________________________
BERLITZ INVESTMENT CORPORATION
By: __________________________________
Name: ________________________________
Title: _________________________________
BERLITZ PUBLISHING COMPANY, INC.
By: __________________________________
Name: ________________________________
Title: _________________________________
BERLITZ DO BRASIL, INC.
By: __________________________________
Name: ________________________________
Title: _________________________________
ELS EDUCATIONAL SERVICES, INC.
By: __________________________________
Name: ________________________________
Title: _________________________________
AGENT AND LENDERS:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders and as a Lender
By: __________________________________
Name: ________________________________
Title: _________________________________
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW
YORK BRANCH
By: __________________________________
Name: ________________________________
Title: _________________________________
BANQUE PARIBAS
By: __________________________________
Name: ________________________________
Title: _________________________________
THE CHUGOKU BANK, LIMITED
By: __________________________________
Name: ________________________________
Title: _________________________________
CORESTATES BANK, N.A.
By: __________________________________
Name: ________________________________
Title: _________________________________
CREDIT AGRICOLE INDOSUEZ
By: __________________________________
Name: ________________________________
Title: _________________________________
THE DAI-ICHI KANGYO BANK, LIMITED
By: __________________________________
Name: ________________________________
Title: _________________________________
FLEET BANK, N.A.
By: __________________________________
Name: ________________________________
Title: _________________________________
THE LONG-TERM CREDIT BANK
OF JAPAN, LTD.
By: __________________________________
Name: ________________________________
Title: _________________________________
PNC BANK, NATIONAL ASSOCIATION
By: __________________________________
Name: ________________________________
Title: _________________________________
THE SAKURA BANK, LIMITED
By: __________________________________
Name: ________________________________
Title: _________________________________
SUMMIT BANK
By: __________________________________
Name: ________________________________
Title: _________________________________
THE SUMITOMO BANK, LIMITED
By: __________________________________
Name: ________________________________
Title: _________________________________
THE BANK OF NOVA SCOTIA
By: __________________________________
Name: ________________________________
Title: _________________________________
ANNEX I
EXHIBIT A
APPLICABLE COMMITMENT PERCENTAGES
LENDER TRANCHE A TRANCHE B APPLICABLE REVOLVING APPLICABLE
TERM LOAN TERM LOAN COMMITMENT CREDIT COMMITMENT
COMMITMENT COMMITMENT PERCENTAGE COMMITMENT PERCENTAGE
(TERM LOAN (REVOLVING
FACILITY) CREDIT FACILITY)
NationsBank, National $2,607,142.83 $9,907,142.87 10.428571429% $8,306,623.40 11.86660485714%
Association
Fleet Bank, N.A. $2,321,428.57 $8,821,428.57 9.285714286% $7,678,051.96 10.96864565714%
Summit Bank $2,321,428.57 $8,821,428.57 9.285714286% $6,392,597.40 9.13228200000%
The Long-Term Credit $2,321,428.57 $8,821,428.57 9.285714286% $6,392,597.40 9.13228200000%
Bank of Japan, Ltd.
The Chugoku Bank, $1,714,285.72 $6,514,285.71 6.857142857% $5,056,883.11 7.22411872857%
Limited
Corestates Bank, N.A. $1,714,285.72 $6,514,285.71 6.857142857% $5,056,883.11 7.22411872857%
The Sumitomo Bank, $1,714,285.72 $6,514,285.71 6.857142857% $3,771,428.57 5.38775510000%
Limited
PNC Bank, National $1,714,285.72 $6,514,285.71 6.857142857% $6,342,337.67 9.00000000000%
Association
The Bank of Nova Scotia $1,428,571.43 $5,428,571.43 5.000000000% $3,142,857.14 4.48979591429%
The Bank of $1,428,571.43 $5,428,571.43 5.714285714% $3,142,857.14 4.48979591429%
Tokyo-Mitsubishi, Ltd.
Banque Paribas $1,428,571.43 $5,428,571.43 5.714285714% $3,142,857.14 4.48979591429%
Credit Agricole $1,428,571.43 $5,428,571.43 5.714285714% $4,428,311.68 6.32615954286%
Indosuez
The Dai-Ichi Kangyo $1,428,571.43 $5,428,571.43 5.714285714% $4,002,857.14 5.71836734286%
Bank, Limited
The Sakura Bank, $1,428,571.43 $5,428,571.43 5.714285714% $3,142,857.14 4.48979591429%
Limited
