AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment"), dated as of September 11, 1998, among Xxxxxxx Worldwide
Associates, Inc., a Wisconsin corporation (the "Company"), certain consolidated
subsidiaries of the Company which may from time to time become parties thereto
(the "Subsidiaries"), The First National Bank of Chicago, Firstar Bank
Milwaukee, N.A., M&I Xxxxxxxx & Ilsley Bank, The Northern Trust Company, and
Societe Generale (the "Lenders"), and Dresdner Bank ("Dresdner", and taken
together with the Lenders, the "Banks"), and The First National Bank of Chicago
in its capacity as contractual representative for itself and the other Lenders
(the "Agent") under that certain Amended and Restated Credit Agreement dated as
of April 3, 1998 by and among the Company, the Lenders and the Agent (the
"Credit Agreement"). Defined terms used herein and not otherwise defined herein
shall have the meaning given to them in the Credit Agreement.
WHEREAS, the Borrower, the Lenders and the Agent have entered the
Credit Agreement;
WHEREAS, pursuant to Section 2.16 of the Credit Agreement, the Company
has requested that the Credit Agreement be amended to increase the Aggregate
Commitment, the Aggregate Eurocurrency Commitment, the Aggregate Revolving
Commitment (collectively, the "Commitment Changes") and to add Dresdner as a new
Bank thereunder; and
WHEREAS, subject to the terms and conditions hereof, the undersigned
Lenders and the Agent have agreed to the Commitment Changes and the addition of
Dresdner;
NOW, THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Amendment to the Credit Agreement. Effective as of the date first
above written and subject to the execution of this Amendment by the parties
hereto and the satisfaction of the conditions precedent set forth in Section 2
below, the Credit Agreement shall be and hereby is amended as follows:
(a) On and after the date first written above, Dresdner shall for all
purposes be a Bank party to the Credit Agreement and shall have all the rights
and obligations of a Bank under the Credit Agreement and the Notes, with a
Eurocurrency Commitment and Revolving Loan Commitment set forth opposite its
name on Schedule 4 to the Credit Agreement.
(b) The Eurocurrency Commitments and Revolving Loan Commitments set
forth opposite each Lender's signature to the Credit Agreement are hereby
deleted. Such Commitments shall hereafter be recorded on Schedule 4 to the
Credit Agreement, a form of which is attached hereto.
(c) The Table of Contents is hereby amended to insert after "Schedule
2 -- ERISA (Article 3, paragraph i)" the following:
"Schedule 4 -- Commitments".
(d) Section 1.01 is hereby amended as follows:
(i) The definition of "Aggregate Commitment" is hereby modified
to delete therefrom the number "90,000,000" and to substitute therefor the
number "100,000,000".
(ii) The definition of "Aggregate Eurocurrency Commitment" is
hereby modified to delete therefrom the number "18,000,000" and to substitute
therefor the number "20,000,000".
(iii) The definition of "Aggregate Revolving Commitment" is
hereby modified to delete therefrom the number "72,000,000" and to substitute
therefor the number "80,000,000".
(iv) The definition of "Eurocurrency Commitment" is hereby
deleted and replaced with the following:
"Eurocurrency Commitment" shall mean, with respect to any Bank,
the amount set forth opposite such Bank's name on Schedule 4 in the column
entitled "Eurocurrency Commitment", as such amount may be modified from time to
time pursuant to the terms hereof.".
(v) The definition of "Revolving Loan Commitment" is hereby
deleted and replaced with the following:
"Revolving Loan Commitment" shall mean, with respect to any Bank,
the amount set forth opposite such Bank's name on Schedule 4 in the column
entitled "Revolving Loan Commitment", as such amount may be modified from time
to time pursuant to the terms hereof.".
(e) The Schedules to the Credit Agreement are hereby amended by
inserting therein "Schedule 4 -- Commitments" as attached to this Amendment.
(f) The attached Dresdner Bank signature page is hereby inserted
after Societe Generale's signature page to the Credit Agreement.
- 2 -
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,
Dresdner and the Agent;
(b) a Note payable to the order of Dresdner; and
(c) such other documents, instruments and agreements as the Agent may
reasonably request.
3. Notices. Pursuant to Section 10.08, Dresdner designates the address
set forth on the attached signature page marked as the "Dresdner Signature Page
for the Xxxxxxx Worldwide Credit Agreement" as its address for purposes of
notices and other communications under the Credit Agreement and the Notes.
4. 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 except as modified
by the supplemental disclosure made in Exhibit A to this Amendment agrees that
all such covenants, representations and warranties (as so modified) shall be
deemed to have been remade as of the effective date of this Amendment.
5. 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
Amended and Restated Credit Agreement dated as of April 3, 1998, as amended
hereby.
(b) Except as specifically amended above, the Amended and Restated
Credit Agreement dated as of April 3, 1998 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 waiver of any right,
power or remedy of the
- 3 -
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.
6. 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.
7. 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.
8. 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.
9. 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.
- 4 -
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered on the date first above written.
XXXXXXX WORLDWIDE ASSOCIATES, INC.
By: /s/Xxxx X. Xxxxxxx
Name:Xxxx X. Xxxxxxx
Title:SENIOR VICE PRESIDENT
CHIEF FINANCIAL OFFICER,
SECRETARY AND TREASURER
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent
By: ____________________________
Name:
Title:
FIRSTAR BANK MILWAUKEE, N.A.
By: ___________________________
Name:
Title:
M&I XXXXXXXX & XXXXXX BANK
By: ____________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By: ____________________________
Name:
Title:
SOCIETE GENERALE
By: ____________________________
Name:
Title:
DRESDNER BANK
By: _____________________________
Name:
Title:
- 5 -
SCHEDULE 4
COMMITMENTS
Name of Bank Eurocurrency Commitment Revolving Loan
Commitment
The First National Bank of $5,200,000 $20,800,000
Chicago
Firstar Bank Milwaukee, $3,600,000 $14,400,000
N.A.
M&I Xxxxxxxx & Ilsley Bank $2,000,000 $8,000,000
The Northern Trust Company $2,000,000 $8,000,000
Societe Generale $3,600,000 $14,400,000
Dresdner Bank $3,600,000 $14,400,000
DRESNDER BANK
By: ________________________
Name:
Title:
Dresdner Kleinwort Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telex No.:
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
Dresdner's Signature Page for the
Xxxxxxx Worldwide Credit Agreement
Exhibit A to
Amendment No. 1
to the Credit Agreement
dated April 3, 1998
RE: Xxxxx X. Xxxxxxxx and Xxxxxxxx Xxxxxxxxx vs. Uwatec U.S.A., Inc. and
Uwatec A.G.
In June 1997, a jury in the above case rendered a judgment of $1
million against each of Uwatec U.S.A., Inc. and Uwatec A.G. for various
employment and termination of employment claims. Xxxxxxx Worldwide Associates,
Inc. believes that all lost costs and expenses are reimbursable under the Stock
Purchase Agreement dated July 11, 1997 between Xxxxxxx Worldwide Associates,
Inc. and Xxxxx Xxxxxx and Xxxx Xxxxxxx which includes $10 million for
reimbursement of warranty claims.
