EXHIBIT 10(b)(iii)
AMENDMENT NO. 3
TO CREDIT AGREEMENT
AMENDMENT NO. 3 (this "AMENDMENT NO. 3"), dated as of March 31, 2000,
under the Credit Agreement dated as of June 30, 1997, by and among XXXXX
CORPORATION, a Delaware corporation (the "COMPANY"), the Signatory Lenders party
thereto (the "LENDERS") and THE BANK OF NEW YORK, as Agent (the "AGENT"), as
amended by Amendment No. 1 to Credit Agreement, dated as of August 18, 1999, and
Amendment No. 2 to Credit Agreement, dated as of December 20, 1999 (the "CREDIT
AGREEMENT").
RECITALS
I. Capitalized terms used herein which are not herein defined shall have
the respective meanings ascribed thereto in the Credit Agreement.
II. The Company has requested that the Agent and the Lenders (a) reduce
the Aggregate Commitments from $200,000,000 to $100,000,000, (b) amend the
Credit Agreement to create a secured revolving credit subfacility and (c) amend
the Credit Agreement in certain other respects.
III. The Agent and the Lenders have advised the Company that they are
willing to agree to the Company's request subject to the terms and conditions
set forth herein.
Accordingly, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT -- GENERAL.
1.1 Section 1.1 of the Credit Agreement is hereby amended by adding
the following defined terms in the appropriate alphabetical order:
"AMENDMENT NO. 3": Amendment No. 3 to Credit Agreement, dated
as of March 31, 2000, among the Company, the Lenders party thereto and the
Agent.
"AMENDMENT NO. 3 EFFECTIVE DATE": the date on which the conditions
set forth in Section 3.1 of Amendment No. 3 are satisfied.
"CAPITAL EXPENDITURES": for any period, the sum of the aggregate of
all expenditures (paid in cash or for which the Company or any Subsidiary is
obligated as a result of the acquisition by the Company or such Subsidiary of
any fixed or capital asset during such period or the rendition of services to
the Company or such Subsidiary in respect of any fixed or capital asset) by the
Company and the Subsidiaries on a Consolidated basis
during such period for fixed or capital assets (excluding any capitalized
interest and any such asset acquired in connection with normal replacement and
maintenance programs properly charged to current operations and excluding any
replacement assets acquired with the proceeds of insurance).
"COVENANT CREDIT FACILITIES": any loan agreement, loan document,
agreement or indenture that contains covenants (however designated, and
including negative, affirmative or financial covenants) which (a) require the
maintenance of minimum Shareholder's Equity (b) prescribe a Fixed Charge
Coverage Ratio, (c) prohibit or restrict the sale, assignment, transfer or
disposition of any Property of the Company or any Subsidiary or (d) restrict the
granting of the Lien granted in favor of the Agent pursuant to paragraph 2.27 or
require equivalent security over any Property or assets of the Company or any
Subsidiary, and which loan agreements, loan documents, agreements and indentures
are described on Schedule D to Amendment No. 3.
"CREDIT FACILITY INDEBTEDNESS": the Indebtedness of the Company and
its Subsidiaries described on Schedule C to Amendment No. 3 together with any
Hedging Agreement entered into in connection therewith.
"DISBURSEMENT ACCOUNT": the disbursement account maintained by the
Company at BNY in accordance with paragraph 2.25.
"DISPOSITION CLOSING COSTS": any required closing fees, costs and
expenses directly attributable to a Permitted Disposition.
"DISPOSITION RELATED DEBT": the debt that is secured by or related
to the Property sold in a Permitted Disposition as set forth on Schedule E to
Amendment No. 3.
"GUARANTEE": of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or any
Indebtedness, lease, dividend or other obligation (a "PRIMARY OBLIGATION") of
any other Person (a "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, including any obligation of the guarantor, directly or indirectly
(i) to purchase any primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the purchase
or payment of any primary obligation or (B) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of a primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the beneficiary of any primary
obligation of the ability of a primary obligor to make payment of a primary
obligation, (iv) otherwise to assure or hold harmless the beneficiary of a
primary obligation against loss in respect thereof and (v) in respect of the
liabilities of any partnership in which a secondary obligor is a general
partner, except to the extent that such liabilities of such partnership are
nonrecourse to such secondary obligor and its separate property, provided,
however, that the term "Guarantee" shall not include (x) the endorsement of
instruments for deposit or collection in the ordinary course of business or (y)
the indemnification provisions
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contained in the purchase agreements with respect to the Property described on
Schedules X-0, X-0 and B-3 to Amendment No. 3. The amount of any Guarantee shall
be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by the guarantor in good faith.
"HEDGING AGREEMENT": any interest rate swap, cap or collar
arrangement or any other derivative product customarily offered by banks or
other financial institutions to their customers in order to reduce the exposure
of such customers to interest rate fluctuations.
"NET CASH PROCEEDS": cash proceeds received from a sale, assignment,
transfer or other disposition of Property minus (a) taxes paid or payable in
cash in connection therewith at the time such sale, assignment, transfer or
other disposition is consummated, (b) Disposition Closing Costs and (c)
Disposition Related Debt.
"PERMITTED DISPOSITION": as defined in paragraph 8.6(iv).
"PROCEEDS DISBURSEMENT REQUEST": a notice of the Company in the form
of Exhibit B to Amendment No. 3, specifying (i) the aggregate amount of Net Cash
Proceeds requested to be disbursed from the Disbursement Account, (ii) the
requested disbursement date and (iii) the intended use of such Net Cash Proceeds
and certifying, representing and warranting that (x) no Default or Event of
Default has occurred and is continuing and (y) such Net Cash Proceeds shall be
used in accordance with and for the purposes and in the categories and in the
amounts set forth in the Projections except as otherwise permitted by paragraph
8.14 of this Agreement.
"PROJECTIONS": the projections of the Company dated March 16, 2000
(Revised) delivered to the Agent and the Lenders in the form of Schedule A to
Amendment No. 3.
"RESERVE ACCOUNT": the blocked reserve account maintained by the
Company at BNY under the dominion and control of the Agent.
"RESTRUCTURING COSTS": the fees and expenses (including reasonable
attorneys' and accountants' fees and expenses) (i) payable by the Company or any
Subsidiary in connection with (x) the execution and delivery of Amendment No. 3
(including, without limitation, fees and expenses in connection with the grant
by the Company and certain of its Subsidiaries of Liens in favor of the Agent on
certain of their property), (y) the amendments to or waivers of the Covenant
Credit Facilities contemplated by, and executed and delivered contemporaneously
with, Amendment No. 3 and (z) the extension of maturity dates of Indebtedness
and expiry dates of letters of credit which mature or expire, as the case may
be, prior to the Liquidity Subfacility Termination Date to a date that is not
earlier than the Liquidity Subfacility Termination Date, and (ii) incurred by
the Company in an amount of up to $5,000,000 in connection with the issuance by
the Company of any Stock after the
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Amendment No. 3 Effective Date, in each case accrued or capitalized as a cost of
issuance in accordance with GAAP.
"SALES LOSSES": losses incurred by the Company or any Subsidiary in
connection with any Permitted Disposition determined in accordance with GAAP.
"SPRINGING CREDIT EVENT": any event or any event that with the
giving of notice of the passage of time or both results in a Springing Credit
Obligation.
"SPRINGING CREDIT OBLIGATION": any agreement or obligation of the
Company or any Subsidiary under any loan document, indenture, or other agreement
to provide a letter of credit or other credit support.
"STEERING COMMITTEE": the informal committee of creditors of the
Company and/or its Subsidiaries composed of the Agent and other creditors of the
Company represented by O'Melveny & Xxxxx LLP as of the Amendment No. 3 Effective
Date.
1.2 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Aggregate Commitments" in its entirety and
substituting the following therefor:
"AGGREGATE COMMITMENTS": the sum of the Commitments set
forth in Exhibit A to Amendment No. 3 (which as of the
Amendment No. 3 Effective Date equals $100,000,000), as the
same may be reduced pursuant to paragraph 2.5 (Reduction of
Commitments) or 2.18 (Extension of Termination Date).
1.3 Section 1.1 of the Credit agreement is hereby amended by
deleting the definition of "Commitment" in its entirety and substituting the
following therefor:
"COMMITMENT": as to any Lender, the amount set forth
next to the name of such Lender in Exhibit A to Amendment No.
3 under the heading "Commitment," as such Commitment may be
reduced pursuant to paragraphs 2.5 or 11.7(b).
1.4 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Commitment Percentage" in its entirety and
substituting the following therefor:
"COMMITMENT PERCENTAGE": as to any Lender, the percentage that
the Commitment of such Lender bears to the Aggregate Commitments, as
set forth opposite the name of such Lender in Exhibit A to Amendment
No. 3 under the heading "Commitment Percentage", as such percentage
may be reallocated pursuant to paragraph 2.18 (whereupon such
percentage shall become such Lender's Reallocated Commitment
Percentage, as such term is
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hereinafter defined) or decreased upon an assignment permitted under
paragraph 11.7(b).
1.5 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Eligible Assignee" in its entirety and substituting
the following therefor:
"ELIGIBLE ASSIGNEE": an assignee which is a commercial bank,
an insurance company, a finance company, a financial institution,
any fund that invests in loans or any other "accredited investor"
(as defined in Regulation D promulgated under the Securities Act of
1933, as amended), but in any event excluding the Company and its
Subsidiaries and Affiliates.
1.6 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Fixed Charge Coverage Ratio" in its entirety and
substituting the following therefor:
"FIXED CHARGE COVERAGE RATIO": the ratio of (i) the sum of
Operating Income, Interest Expense, Rent Expense, and, to the extent
deducted from the determination of Operating Income in accordance
with GAAP, Restructuring Costs and Sales Losses, if any, to (ii) the
sum of Interest Expense and Rent Expense,
all on a Consolidated basis.
1.7 Section 2.24 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
Section 2.24 REDUCTION OF COMMITMENTS; AVAILABILITY
OF COMMITMENTS AND PRICING OPTIONS.
The Company agrees that, notwithstanding any other
provision of this Agreement, (x) on the Amendment No. 3 Effective
Date, the Aggregate Commitments shall be permanently reduced from
$200,000,000 to $100,000,000 and the Commitment of each Lender shall
be reduced pro rata as set forth on Exhibit A to Amendment No. 3,
and (y) during the period from the Amendment No. 3 Effective Date to
and including the date on which the Required Lenders, in their sole
discretion, agree to reinstate the ability of the Company to borrow
Loans under the Commitments (as reduced hereby) and request the
issuance of Letters of Credit and to reinstate the availability of
Competitive Bid Loan and CD Loans:
(i) the Company shall not be entitled to request
and the Lenders shall not be obligated to make any additional Loans,
except Liquidity Loans;
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(ii) the Company shall not be entitled to request
and the Issuing Bank shall not be required to issue any additional
Letters of Credit;
(iii) the Company shall be entitled to elect
Interest Periods of only 30 days for Eurodollar Loans;
(iv) the Company may not and shall not request any
Competitive Bid Borrowings; and
(v) the Company may not and shall not request any
CD Loan and may not and shall not request that any Loan be converted
to a CD Loan.
1.8 Section 2 of the Credit Agreement is hereby amended by adding
a new Section 2.25 to read as follows:
2.25. DISBURSEMENT ACCOUNT, RESERVE ACCOUNT AND
COLLATERAL FOR SUBFACILITY.
(a) SECURITY INTERESTS - DISBURSEMENTS ACCOUNT
AND RESERVE ACCOUNT.
The Company acknowledges and agrees that, pursuant
to the Security Documents, the Disbursement Account and the Reserve
Account and the Net Cash Proceeds from time to time deposited in or
credited to the Disbursement Account and the Reserve Account and all
interest and earnings thereon secure the Subfacility Obligations.
(b) SET-OFF - DISBURSEMENT ACCOUNT AND RESERVE
ACCOUNT.
The Company acknowledges that the Net Cash
Proceeds from time to time deposited and held in the Disbursement
Account or in the Reserve Account shall, in addition to the rights
of the Agent therein pursuant to the Security Documents, be subject
to the Agent's right of setoff (which may be exercised upon the
occurrence of an Event of Default which is continuing) up to an
amount not to exceed the aggregate amount of Indebtedness and
obligations of the Company outstanding from time to time under this
Agreement, including, without limitation, Indebtedness and
obligations of the Company under the Liquidity Subfacility; provided
that any amounts set off by the Agent after the occurrence of an
Event of Default or otherwise in excess of the aggregate amount of
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Indebtedness and obligations of the Company under the Liquidity
Subfacility shall be held by the Agent to be applied for the benefit
of all holders of Credit Facility Indebtedness on terms and
conditions to be agreed to by the Agent, the Required Lenders and
the requisite creditors under the Credit Facility Indebtedness (or,
if such agreement is not reached, in accordance with the order of a
court of competent jurisdiction).
(c) RELEASE OF NET CASH PROCEEDS FROM
DISBURSEMENT ACCOUNT.
The Company may from time to time but not more
frequently than once each calendar week request that the Agent
release Net Cash Proceeds from the Disbursement Account by
delivering to the Agent a Proceeds Disbursement Request not later
than 11:00 A.M., New York City time, one (1) Business Day prior to
the requested disbursement date (the "DISBURSEMENT DATE"). Provided
that the Agent shall have received a Proceeds Disbursement Request
in accordance with the terms hereof, the Agent, not later than 11:00
A.M., New York City time on the Disbursement Date, shall release the
Net Cash Proceeds covered by such Proceeds Disbursement Request to
the Company.
(d) DISPOSITION OF NET CASH PROCEEDS - DISBURSEMENT
ACCOUNT AND RESERVE ACCOUNT.
Except for (i) the right of the Company to request
the release of Net Cash Proceeds from the Disbursement Account
pursuant to paragraph 2.25(c) hereof, (ii) the rights of the Agent,
for the ratable benefit of the Lenders, as secured party and (iii)
the right of set-off of the Agent (as limited by paragraph 2.25(b)),
(A) none of the Company, any Subsidiary, any Lender, or the holder
of Indebtedness of the Company or any Subsidiary shall have any
right to request the release or disbursement of any funds in the
Disbursement Account or the Reserve Account and (B) any and all
funds deposited in the Disbursement Account and Reserve Account
(other than the funds deposited in the Reserve Account, which shall
secure, and may be applied in satisfaction of, the obligations of
the Company and the Subsidiary Guarantors in respect of the
Liquidity Subfacility in accordance with the terms of this Agreement
and the Security Documents) shall be held in such accounts pending
the execution of an agreement among the Company, the Agent, the
Required Lenders and the requisite creditors under the Credit
Facility Indebtedness (or, if such
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agreement is not reached, the order of a court of competent
jurisdiction).
(e) SUBSTITUTION AND RELEASE OF COLLATERAL.
The Agent and the Lenders agree that provided no
Default or Event of Default has occurred and is continuing, the
Agent and the Lenders promptly will:
(i) release their security interest in the
Collateral (including the Disbursement Account but not the Reserve
Account) upon the written request of the Company after Xxxxx
Services Corporation shall have deposited Net Cash Proceeds received
by Xxxxx Services Corporation from the sale of the "food and
beverage" business or another business sold by Xxxxx Services
Corporation permitted to be sold hereunder of not less than
$51,000,000 in the Reserve Account as substitute collateral for the
Collateral; and
(ii) release their security interest in the
Collateral (including the Disbursement Account and the Reserve
Account) upon (A) the repayment in full of the Liquidity Loans and
all accrued interest thereon and the termination of the Liquidity
Subfacility, (B) the cancellation of the Liquidity Subfacility by
the Company at any time that no Liquidity Loans are outstanding or
(C) receipt by the Agent of Net Cash Proceeds from the sale of the
Aviation Business and the simultaneous repayment in full of the
Liquidity Loans and all accrued interest thereon and termination of
the Liquidity Subfacility, which release shall be simultaneous with
such sale and the receipt of such Net Cash Proceeds and repayment.
The Agent and the Lenders shall execute and deliver to the Company
such instruments and documents as the Company may reasonably request
to evidence such release, at the sole cost and expense of the
Company.
(f) DUTIES OF THE AGENT WITH RESPECT TO DISBURSEMENT
ACCOUNT AND RESERVE ACCOUNT.
(i) The duties, responsibilities and obligations
of the Agent with respect to the Disbursement Account and the
Reserve Account shall be limited to those expressly set forth herein
and no duties, responsibilities or obligations shall be inferred or
implied. The Agent shall not be subject to, nor required to comply
with, any other agreement to which the Company is a party, even
though reference thereto may be made herein, or to comply with any
direction or instruction (other than those contained herein or
delivered
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in accordance with this Agreement) from the Company or any entity
acting on its behalf. The Agent shall not be required to, and shall
not, expend or risk any of its own funds or otherwise incur any
financial liability in the performance of any of its duties as Agent
under this paragraph 2.25.
(ii) If at any time the Agent is served with any
judicial or administrative order, judgment, decree, writ or other
form of judicial or administrative process which in any way affects
the Disbursement Account or the Reserve Account (including but not
limited to orders of attachment or garnishment or other forms of
levies or injunctions or stays relating to the transfer of the
Disbursement Account or the Reserve Account), the Agent is
authorized to comply therewith in any manner as it or its legal
counsel of its own choosing deems appropriate; and if the Agent
complies with any such judicial or administrative order, judgment,
decree, writ or other form of judicial or administrative process,
the Agent shall not be liable to any of the parties hereto or to any
other person or entity even though such order, judgment, decree,
writ or process may be subsequently modified or vacated or otherwise
determined to have been without legal force or effect.
(iii) The Agent shall not be liable for any action
taken or omitted or for any loss or injury resulting from its
actions or its performance or lack of performance of its duties
under this paragraph 2.25 in the absence of gross negligence or
willful misconduct on its part. In no event shall the Agent be
liable (i) for acting in accordance with or relying upon any
instruction, notice, demand, certificate or document from the
Company or any entity acting on behalf of the Company, (ii) for any
consequential, punitive or special damages, (iii) for the acts or
omissions of its nominees, correspondents, designees, subagents or
subcustodians, or (iv) for an amount in excess of the amount then
deposited in or credited to the Disbursement Account or the Reserve
Account.
(iv) If any fees, expenses or costs incurred by,
or any obligations owed to, the Agent under this paragraph 2.25 are
not promptly paid when due, the Agent may reimburse itself therefor
from the Disbursement Account or the Reserve Account and may sell,
convey or otherwise dispose of any amounts or property deposited in
or credited to such accounts for such purpose.
(v) The Agent may consult with legal counsel and
the accounting firm retained by the Steering Committee at
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the reasonable expense of the Company as to any matter relating to
the administration of the Disbursement Account or the Reserve
Account, and the Agent shall not incur any liability in acting in
good faith in accordance with any advice from such counsel or
accounting firm.
(vi) The Agent shall not incur any liability for
not performing any act or fulfilling any duty, obligation or
responsibility under this paragraph 2.25 by reason of any occurrence
beyond the control of the Agent (including but not limited to any
act or provision of any present or future law or regulation or
governmental authority, any act of God or war, or the unavailability
of the Federal Reserve Bank wire or telex or other wire or
communication facility).
(vii) The Agent shall not be responsible in any
respect for the form, execution, validity, value or genuineness of
documents or securities deposited hereunder, or for any description
therein, or for the identity, authority or rights of persons
executing or delivering or purporting to execute or deliver any such
document, security or endorsement.
(viii) The Company shall be liable for and shall
reimburse and indemnify the Agent and hold the Agent harmless from
and against any and all claims, losses, liabilities, costs, damages
or expenses (including reasonable attorneys' and accountants' fees
and expenses) (collectively, "LOSSES") arising from or in connection
with or related to the Disbursement Account or the Reserve Account
or with respect to the Agent's custody and administration of the
Disbursement Account and the Reserve Account (including but not
limited to Losses incurred by the Agent in connection with its
successful defense, in whole or in part, of any claim of gross
negligence or willful misconduct on its part), provided, however,
that nothing contained herein shall require the Agent to be
indemnified for Losses caused by its gross negligence or willful
misconduct.
(ix) In the event of any ambiguity or uncertainty
in any notice, instruction or other communication received by the
Agent hereunder, the Agent may, in its sole discretion, refrain from
taking any action other than retain possession of the Disbursement
Account and the Reserve Account.
(x) In the event of any dispute between or
conflicting claims by the Company and/or any other person or entity
with respect to the Disbursement Account or the Reserve Account, the
Agent shall be entitled, in its sole discretion, to refuse to comply
with any and all claims, demands or instructions with respect to the
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Disbursement Account or the Reserve Account so long as such dispute
or conflict shall continue, and the Agent shall not be or become
liable in any way to the Company for failure or refusal to comply
with such conflicting claims, demands or instructions. The Agent
shall be entitled to refuse to act until, in its sole discretion,
either (1) such conflicting or adverse claims or demands shall have
been determined by a final order, judgment or decree of a court of
competent jurisdiction, which order, judgment or decree is not
subject to appeal, or settled by agreement between the conflicting
parties as evidenced in a writing satisfactory to the Agent or (2)
the Agent shall have received security or an indemnity satisfactory
to it sufficient to hold it harmless from and against any and all
Losses which it may incur by reason of so acting. The Agent may, in
addition, elect, in its sole discretion, to commence an interpleader
action or seek other judicial relief or orders as it may deem, in
its sole discretion, necessary. The costs and expenses (including
reasonable attorneys' fees and expenses) incurred in connection with
such proceeding shall be paid by the Company.
1.9 Section 3.1 of the Credit Agreement is hereby amended by (i)
adding to the heading thereof the phrase "; OTHER FEES.", (ii) renumbering the
existing paragraph as Section 3.1(a) and (iii) adding a new Section 3.1(b) at
the end thereof to read in its entirety as follows:
(b) The Company agrees to pay to the Agent for the pro rata
account of each Lender a fee in the amount of $500,000, payable on
the earlier to occur of (i) the date on which the Company and its
Subsidiaries shall have received gross proceeds in an aggregate
amount of $500,000,000 from all sales, assignments, transfers or
other dispositions of PROPERTY after the Amendment No. 3 Effective
Date in accordance with the terms hereof and (ii) the date on which
the Loans and all other obligations under this Agreement (including,
without limitation, all interest, fees and expenses payable to the
Agent or the Lenders hereunder) shall have been paid and performed
in full and the Commitments terminated.
1.10 Section 7.2 of the Credit Agreement is hereby amended by
adding a new Section 7.2(g) thereto to read in its entirety as follows:
(g)(i) As soon as available, but in any event not later than
Wednesday of each week, weekly updates of the monthly cash flow
statements of the Company and its Subsidiaries in a format
consistent with past practice.
(ii) Conduct weekly meetings and conference calls with the
Agent, the Lenders under this Agreement and the Steering Committee
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to discuss and review such matters as the Agent and the Steering
Committee deems appropriate, including, without limitation, reports
with respect to, and explanations of, any material variances between
the Projections and the Company's and its Subsidiaries' actual
results of operations.
(iii) As soon as available, deliver to the Agent notice of any
Springing Credit Event and any demand under a Springing Credit
Obligation.
1.11 Section 7.11 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
7.11 SHAREHOLDERS' EQUITY.
Maintain at all times for each period set forth below its
Shareholders' Equity in an amount not less than the amount set forth
below opposite such period:
PERIOD MINIMUM SHAREHOLDERS' EQUITY
Effective Date to and including
December 31, 1999 $440,000,000
January 1, 2000 to and
including July 31, 2000 $400,000,000
August 1, 2000 and thereafter $440,000,000
1.12 Section 7 of the Credit Agreement is hereby amended by adding
a new Section 7.12 to read in its entirety as follows:
7.12 CERTAIN AMENDMENTS.
Use its best efforts to extend the maturity date or expiry
date of any Indebtedness or Credit Facility Indebtedness which
matures or expires, as the case may be, prior to the Liquidity
Subfacility Termination Date (other than with respect to the
periodic renewal of the Credit Facility Indebtedness described in
items 9 through 12 on Schedule C to Amendment No. 3) to a date that
is not earlier than the Liquidity Subfacility Termination Date.
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1.13 Section 8.1 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
8.1 INDEBTEDNESS.
Create, incur, assume or suffer to exist, or permit any
Subsidiary to create, incur, assume or suffer to exist, any
liability for Indebtedness, except:
(i) Indebtedness under the Loan Documents; and
(ii) Credit Facility Indebtedness (including any Credit
Facility Indebtedness incurred under commitments available on the
Amendment No. 3 Effective Date provided that the proceeds of such
Credit Facility Indebtedness are not applied to repay the principal
amount of any other Indebtedness), any Indebtedness of the Company
or any Subsidiary outstanding as of the Amendment No. 3 Effective
Date, any Indebtedness representing capitalized interest on any
Credit Facility Indebtedness and any extensions, renewals and
replacements of any such Indebtedness or Credit Facility
Indebtedness that do not increase the outstanding principal amount
thereof (other than as a result of the capitalization of interest).
1.14 Section 8.2 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
8.2 LIENS.
Create, incur, assume or suffer to exist any Lien on any
of its or its Subsidiaries' Property or assets, whether now owned or
hereafter acquired, securing any Indebtedness or obligation, or
permit any Subsidiary to do so, except (i) Permitted Liens (other
than of the type described in subparagraph (ix) of the definition of
"Permitted Liens"), (ii) Liens granted pursuant to the Security
Documents, (iii) Liens existing on the Amendment No. 3 Effective
Date that were permitted under this Agreement or under any other
Covenant Credit Facilities and (iv) equal and ratable Liens
permitted by paragraph 8.15.
1.15 Section 8.4 of the Credit Agreement is hereby amended by (i)
deleting the semi-colon and the word "and" at the end of clause (iii) thereof
and substituting therefor a period and (ii) deleting clause (iv) thereof in its
entirety.
1.16 Section 8.6 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
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8.6 SALE OF PROPERTY.
Sell, assign, exchange, lease, transfer or otherwise
dispose of any Property, whether now owned or hereafter acquired, to
any Person, or permit any Subsidiary so to do, except:
(i) the use of cash by the Company or such Subsidiary in
the ordinary course of business and transfers of cash under the
Company's cash management system in the ordinary course of business;
(ii) dispositions by one Subsidiary to the
Company or a wholly-owned subsidiary of the Company;
(iii) (a) sales of inventory in the ordinary course of
business, (b) sales, assignments, transfers or other dispositions in
the ordinary course of business consistent with past practice of any
Property that, in the reasonable opinion of the Company or such
Subsidiary, as the case may be, is obsolete and (c) sales,
assignments, transfers or other dispositions of any Property that,
in the reasonable opinion of the Company or such Subsidiary, as the
case may be, is no longer useful in the conduct of its business as
currently conducted having a fair market value in the good faith
determination of the Company of not more than $5,000,000 in the
aggregate, provided that all Net Cash Proceeds from such sales,
assignments, transfers or dispositions are deposited in the
Disbursement Account or the Reserve Account, as the case may be, in
accordance with paragraph 8.6(iv); and
(iv) sales, assignments, transfers or other dispositions
of the Property described on Schedules X-0, X-0 and B-3 to Amendment
No. 3 (together with the sales, assignments, transfers and
dispositions described in paragraph 8.6(iii)(c), each a "PERMITTED
DISPOSITION" and collectively, the "PERMITTED DISPOSITIONS") for
cash and non-cash consideration (including assumption of
Indebtedness) payable or received on the date of such Permitted
Disposition provided that:
(a) the Net Cash Proceeds of each such Permitted
Disposition with respect to the Property described on Schedule B-1
to Amendment No. 3 shall be in an amount of not less than 90% of the
amount set forth on Schedule B-1 to Amendment No. 3 opposite the
description of such Property,
14
(b) the Net Cash Proceeds of each such Permitted
Disposition with respect to the Property described on Schedule B-2
to Amendment No. 3 shall be in an amount of not less than 75% of the
amount set forth on Schedule B-2 to Amendment No. 3 opposite the
description of such Property,
(c) all Net Cash Proceeds of each Permitted
Disposition (other than Net Cash Proceeds applied in repayment of
the Liquidity Loans and the permanent reduction of the Liquidity
Subfacility Amount pursuant to paragraph 2.6) in an aggregate amount
for all Permitted Dispositions of up to the sum of (x) $100,000,000
and (y) the Restructuring Costs shall be deposited directly on the
date of receipt by the Company or such Subsidiary in the
Disbursement Account, which Net Cash Proceeds shall be held and
disbursed in accordance with paragraph 2.25 of this Agreement,
(d) the Net Cash Proceeds of any Permitted
Disposition (other than Net Cash Proceeds applied in repayment of
the Liquidity Loans and the permanent reduction of the Liquidity
Subfacility Amount pursuant to paragraph 2.6) in excess of the sum
of (x) $100,000,000 for all asset sales in the aggregate and (y) the
Restructuring Costs shall be deposited directly on the date of
receipt by the Company or such Subsidiary in the Reserve Account,
which Net Cash Proceeds shall be held and disbursed in accordance
with paragraph 2.25 of this Agreement,
(e) no Default or Event of Default shall have
occurred and be continuing on the date of and after giving effect to
such Permitted Disposition,
(f) promptly after execution of such agreement or
contract but in any event not less than 10 Business Days prior to
such sale, the Company shall have furnished the Agent a copy of the
agreement or contract for the sale of the applicable Property and a
statement setting forth, on a PRO FORMA basis, the total
consideration to be paid to the Company (or other seller) under the
agreement or contract for the sale for such Property and the
estimated amount, if any, of the Disposition Closing Costs and
Disposition Related Debt to be assumed or to be paid from the
consideration for the sale and the Net Cash Proceeds to be realized
(by the Company or other seller) from the sale after the deduction
or payment of the Disposition Closing Costs and Disposition Related
Debt (each a "PRO-FORMA SALE STATEMENT"), and within 5 Business Days
after the consummation of such sale, the Company shall deliver to
the Agent a closing statement
15
or such other statement indicating any material variance between the
Pro Forma Sale Statement and the actual amount received and paid in
connection with such sale, and
(g) notwithstanding the foregoing, all Net Cash
Proceeds of the sale, assignment, transfer or other disposition of
the Collateral shall first be applied as a mandatory prepayment of
the Liquidity Loans and to permanently reduce the Liquidity
Subfacility Amount in accordance with paragraph 2.6(b).
1.17 Section 8.9 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
8.9 FIXED CHARGE COVERAGE RATIO.
Permit the Fixed Charge Coverage Ratio to be less than:
(i) 1.25 to 1.00 for the four fiscal quarters (taken as
a whole) ending on December 31, 1999,
(ii) 1.10 to 1.00 for the four fiscal quarters (taken as
a whole) ending on Xxxxx 00, 0000,
(xxx) 0.95 to 1.00 for the four fiscal quarters ending
on June 30, 2000, and
(iv) 1.50 to 1.00 for any four fiscal quarters (taken as
a whole) ending on the last day of each September, December, March
and June thereafter.
1.18 Section 8 of the Credit Agreement is hereby amended by adding
new Sections 8.11, 8.12, 8.13, 8.14 and 8.15 at the end thereof to read in their
entirety as follows:
8.11 INVESTMENTS, LOANS, ADVANCES AND GUARANTEES.
At any time, purchase or otherwise acquire (including
pursuant to any merger with any Person), hold or invest in any
capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the
foregoing and any derivative product) of, make or permit to exist
any loans to or advances on behalf of, incur any Guarantees in
respect of any obligations of, or make or permit to exist any
investment or any other interest in, any other Person (all of which
are sometimes referred to
16
herein as "INVESTMENTS"), (or permit any Subsidiary to do any of the
foregoing) except:
(i) Investments in cash and cash equivalents and in
normal business banking accounts on deposit with or issued by,
federally insured institutions;
(ii) Investments in Hedging Agreements entered into in
connection with Credit Facility Indebtedness;
(iii) Investments described in the Projections not
otherwise prohibited by the terms hereof;
(iv) Guarantees of Indebtedness and Credit
Facility Indebtedness permitted by paragraph 8.1;
(v) Investments existing on the Amendment No. 3
Effective Date;
(vi) Advances to the Ottawa Senators Hockey Club
Corporation under the commitment of the Company in effect on the
Amendment No. 3 Effective Date (and as thereafter amended in
accordance with the terms hereof);
(vii) with respect to existing (or permitted pursuant to
paragraph 8.1) debt financing on projects of the Company's energy
business, any Investments made from time to time of amounts
deposited in debt service reserve funds and other funds and accounts
created under the indenture pertaining to such debt financing,
provided that such Investments are made in accordance with the terms
of the related indenture, including, without limitation, provisions
dealing with permitted investments; and
(viii) the Investments described in clauses (i) and (ii)
of paragraph 8.12.
8.12 ACQUISITIONS.
At any time, make, or enter into an agreement to make
(or permit any Subsidiary to make or enter into an agreement to
make), any Acquisition or make any deposit in connection with any
potential Acquisition except (i) for the Acquisition by the Company
of an interest in Gulf Electric Public Company Limited (Thailand)
for an aggregate purchase price not to exceed $28,000,000 and (ii)
for activities in respect of the acquisition or development of new
facilities,
17
projects or investments for the Company's energy business, so long
as (1) any activity engaged in by the Company or any Subsidiary or
any agreement entered into by the Company or any Subsidiary with
respect to such activities may be terminated or cancelled by the
Company or such Subsidiary without liability to the Company or such
Subsidiary other than the forfeiture of any deposit made by the
Company or such Subsidiary, and (2) any deposits made by the Company
or any of its Subsidiaries (irrespective of the form of the deposit,
including without limitation, cash deposits or bonds) in respect of
the activities or agreements described in Section 8.12 (ii) shall
not exceed $2,500,000 in the aggregate.
8.13 PAYMENTS OF INDEBTEDNESS.
Except as specifically set forth in the Projections (in
the categories and in the amounts set forth therein):
(i) pay or obligate itself to pay (or permit any
Subsidiary to pay or obligate itself to pay), in whole or in part,
the principal amount of any Indebtedness or Credit Facility
Indebtedness; provided, however, so long as no Default or Event of
Default then exists or results therefrom, the Company and any
Subsidiary may pay or prepay:
(1) Indebtedness or Credit Facility Indebtedness
permitted to be paid pursuant to paragraph 8.15;
(2) reimbursement obligations for drawings under letters
of credit made to fund scheduled interest payments;
(3) reimbursement obligations for drawings under letters
of credit solely to the extent that the amount available for
drawing under any such letter of credit after giving effect to
such payment increases by an amount equal to such payment; and
(4) reimbursement obligations for drawings under letters
of credit made from the proceeds of the remarketing notes or
other obligations, so long as such payments are made solely
out of the proceeds of the remarketing of the notes or other
obligations with respect to which such letters of credit were
issued and the applicable letters of credit remain
outstanding, or
18
(ii) incur or make (or permit any Subsidiary to incur or
make) any payment in respect of lease buyout obligations.
8.14 CAPITAL EXPENDITURES.
Incur (or permit any Subsidiary to incur) Capital
Expenditures; provided, however, so long as no Default or Event of
Default then exists or results therefrom, (a) the Company and its
Subsidiaries may make the Capital Expenditures in accordance with
the categories and amounts set forth in the Projections, subject to
(i) reallocation of amounts among categories as a result of cost and
expense savings and (ii) prospective cost overruns with respect to
the Jazzland project in an amount not to exceed $12,000,000 (based
on a budgeted total cost for such project of $110,000,000) and (b)
the operating Subsidiaries of the Company may make Capital
Expenditures in the ordinary course of business consistent with past
practice, provided that such Capital Expenditures do not require the
contribution of funds from the Company or any Subsidiary of the
Company in excess of the amounts permitted by clause (a) above.
8.15 MOST FAVORED NATION COVENANTS.
(a) Prepay, redeem, purchase, defease or otherwise
satisfy or amend, modify or extend (or permit any Subsidiary to
prepay, redeem, purchase, defease or otherwise satisfy or amend,
modify or extend) any existing Indebtedness or Credit Facility
Indebtedness, except:
(i) Disposition Related Debt,
(ii) extensions, renewals and replacements of
Indebtedness or Credit Facility Indebtedness permitted by
paragraph 8.l and, without duplication, payments permitted by
paragraph 8.13(i),
(iii) extension of the maturity of the
indebtedness represented by the Amended and Restated
Promissory Note, dated February 17, 2000, from Xxxxx Power
Corporation to Pacific Enterprises Energy Management Services
in the amount of $22,913,605.00 and related credit support,
(iv) Indebtedness of the Company and its
Subsidiaries in respect of the Subfacility under this
Agreement and the other Loan Documents, or
19
(v) to the extent that, contemporaneously
therewith or prior thereto, the Commitments of the Lenders are
reduced and the Loans are repaid in an equal and ratable
manner;
(b) grant (or permit any Subsidiary to grant) any Lien
in respect of any of its Property, Stock or assets to secure any
existing Indebtedness, except:
(i) Liens permitted under Section 8.2 of
this Agreement, or
(ii) to the extent that the Company's (or such
Subsidiary's) obligations under this Agreement and the other
Loan Documents are contemporaneously therewith or prior
thereto equally and ratably secured, or
(c) pay (or permit any Subsidiary to pay) any fee or
other similar consideration to any holder of any Indebtedness to
amend or waive any term or provision thereof at a rate or amount
greater than that paid or payable to the Agent and the Lenders
pursuant to paragraph 3.1(b) hereof and Section 3.1(g)(ii) of
Amendment No. 3; provided, however, the Company may pay to creditors
under Credit Facility Indebtedness a fee of up to one-quarter
percent (1/4%) of the principal amount of any outstanding Credit
Facility Indebtedness that matures prior to the Liquidity
Subfacility Termination Date, or the amount available for drawing
under any letter of credit outstanding under any Credit Facility
Indebtedness that expires prior to the Liquidity Subfacility
Termination Date, as consideration for the extension of such
maturity date or expiry date to a date that is not earlier than the
Liquidity Subfacility Termination Date, which fee shall be applied
on account of any fee comparable to the fee described in paragraph
3.1(b) hereof payable to such creditors.
1.19 Section 9.1 of the Credit Agreement is hereby amended by (i)
deleting the reference in Section 9.1(f) to "$25,000,000" and substituting
therefor "$1,000,000", (ii) adding the phrase "or Credit Facility Indebtedness"
after the term "Indebtedness" in Section 9.1(f), (iii) deleting the period at
the end of Section 9.1(j) thereof and substituting a semi-colon therefor and
(iv) adding new Sections 9.1(k), 9.1(l), 9.1(m), 9.1(n) and 9.1(o) at the end
thereof to read in their entirety as follows:
(k) except as specifically contemplated by paragraphs 2.25(e)
and 2.27(d), any material Lien purported to be created under any
Security Document shall cease to be, or shall be asserted by the
Company or any Subsidiary not to be, a valid and perfected Lien on,
20
and security interest in, any Collateral, with the priority required
by the applicable Security Document and such default, if not the
result of any action or failure to act on the part of the Company or
any Subsidiary, continues for a period of thirty (30) days or more;
or any Subsidiary Guarantee or any provision thereof shall cease to
be in full force or effect as to the relevant Subsidiary Guarantor,
or any Subsidiary Guarantor or Person acting by or on behalf of such
Subsidiary Guarantor shall deny or disaffirm such Subsidiary
Guarantor's obligations under the relevant Subsidiary Guarantee, or
any Subsidiary Guarantor shall default in any material respect in
the due performance or observance of any term, covenant or agreement
on its part to be performed or observed pursuant to its Subsidiary
Guarantee; or
(l) any letter of credit, bond or other credit or liquidity
support shall have been terminated after its then stated expiration
or termination date or shall have not been renewed beyond its then
stated expiration or termination date, unless not later than five
(5) days prior to such expiration or termination date, such letter
of credit, bond or other credit or liquidity support is replaced
with another such instrument on terms and conditions permitted under
this Agreement (including, without limitation, the fees payable in
connection with the issuance thereof); or
(m) the occurrence of any Springing Credit Event and a demand,
by any holder of a Springing Credit Obligation, for the issuance of
a letter of credit, bond or other credit or liquidity support and
such demand is not resolved on terms that do not violate the terms
of this Agreement prior to the date on which the party making such
demand is entitled to take remedial action under the applicable
agreement (provided that a reduction in the annual fees payable to
Xxxxx Xxxxxx Systems of Xxxxxxxxxx Inc. in an amount not to exceed
$1,000,000 in connection with the service agreement between the
Northeast Maryland Solid Waste Facility and Xxxxx Xxxxxx Systems of
Xxxxxxxxxx Inc. shall not constitute an Event of Default); or
(n) The Company or any Subsidiary shall pay or prepay the
principal amount of any Indebtedness or Credit Facility
Indebtedness, or repurchase any Indebtedness, in cash or in
property, or set aside in any manner any cash or property in respect
of any Indebtedness or Credit Facility Indebtedness, except as
specifically permitted in paragraph 8.13 or 8.15; or
21
(o) The proceeds of any advances to the Ottawa Senators Hockey
Club Corporation under the commitment of the Company to make
advances to the Ottawa Senators Hockey Club Corporation in effect on
the Amendment No. 3 Effective Date (and thereafter amended in
accordance with the terms hereof) are used to repay the principal
amount of any Indebtedness or Credit Facility Indebtedness except as
provided under such commitment as in effect on the Amendment No. 3
Effective Date (and thereafter amended in accordance with the terms
hereof).
1.20 Section 11.7(b) of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety and substituting the
following therefor:
(b) Each Lender may, at any time and from time to time, sell,
assign, transfer or negotiate, on a pro rata basis, a constant (and
not varying) percentage of all of such Lender's rights and
obligations with respect to its Commitment and its related Loans,
obligations with respect to Letters of Credit and Notes, or if its
Commitment shall have been terminated, its Loans, its obligations
with respect to Letters of Credit and its Notes (provided that no
Lender may sell, assign, transfer or negotiate any of its rights and
obligations with respect to any Loan without selling, assigning,
transferring or negotiating to the purchaser, assignee or transferee
thereof a pro rata share in all such Lender's Loans, including
Liquidity Loans) (x) to one or more other Lenders (or to Affiliates
of such Lender or such other Lenders) upon prior written notice to
the Company, the L/C issuing Bank and the Agent or (y) to any other
Eligible Assignee upon the prior written consent of the Agent, the
L/C Issuing Bank and, so long as no Event of Default then exists,
the Company (which consents shall not be unreasonably withheld or
delayed), provided that if such purchaser, assignee or transferee is
not another Lender or an Affiliate of a Lender, (i) such selling,
assigning or transferring Lender shall continue to hold at all times
at least $2,500,000 of its original Commitment, or (ii) each such
sale, assignment, transfer or negotiation shall be in an amount not
less than the lesser of (A) $2,500,000 and (B) all of such Lender's
Commitment and (iii) such selling, assigning or transferring Lender
shall have paid to the Agent an assignment fee (the "ASSIGNMENT
FEE") of $3,500 payable to the Agent.
2. AMENDMENTS TO CREDIT AGREEMENT -- LIQUIDITY SUBFACILITY.
2.1 Section 1.1 of the Credit Agreement is hereby amended by adding
the following defined terms in the appropriate alphabetical order:
22
"AVIATION BUSINESS": the discontinued aviation business of the
Company.
"COLLATERAL": any and all "Collateral" as defined in any Security
Document.
"COLLATERAL CERTIFICATE": as defined in paragraph 2.27(b).
"CZECH CREDIT AGREEMENT": the Credit Agreement between Czech-Xxxxx
Airhandling, spol. s.r.o. and Xxxxx International Europe, Inc. in the principal
amount of $17,451,804.
"CZECH LOAN ASSIGNMENT": the assignment by Xxxxx International
Europe, Inc. of the Czech Loan (as defined in the Czech Credit Agreement) to the
Agent for the benefit of the Lenders, in form and substance satisfactory to the
Agent, as amended, modified, supplemented, restated or replaced from time to
time.
"CZECH MORTGAGE": the first perfected Lien (or local law equivalent)
given by Czech-Xxxxx Airhandling, spol. s.r.o. to the Agent for the ratable
benefit of the Lenders, encumbering the cargo terminal owned by Czech-Xxxxx
Airhandling, spol. s.r.o. at Praha-Ruzyne Airport in the Czech Republic.
"DOMESTIC COLLATERAL": any and all "Collateral" as defined in any
Domestic Security Document.
"DOMESTIC SECURITY DOCUMENTS": collectively, the Security Agreement,
the Mortgage, the Domestic Subsidiary Guarantee and all other instruments and
documents delivered pursuant to paragraph 2.27 (other than Non-Domestic Security
Instruments) to secure any of the obligations of the Company or any Domestic
Subsidiary Guarantor under the Liquidity Subfacility.
"DOMESTIC SUBSIDIARY": each Subsidiary that is organized under the
laws of the United States of America, any state thereof, the District of
Columbia or any territory thereof.
"DOMESTIC SUBSIDIARY GUARANTEE": the Subsidiary Guarantee by and
among the Domestic Subsidiary Guarantors, the Company and the Agent, in form and
substance satisfactory to the Agent, as amended, modified, supplemented,
restated or replaced from time to time.
"DOMESTIC SUBSIDIARY GUARANTOR": Xxxxx Services Corporation,
Xxxxx Aviation, each Domestic Subsidiary of Xxxxx Aviation and any other
party to the Domestic Subsidiary Guarantee other than Xxxxx Allied
Maintenance Securities Inc. and the Fuel Facilities Group.
"FUEL FACILITIES GROUP": the companies listed on part (a) of
Schedule F to Amendment No. 3.
23
"GUARANTEE SUPPLEMENT": a Guarantee Supplement in the form annexed
to the Subsidiary Guarantee.
"LIQUIDITY AVAILABILITY PERIOD": the period from the Liquidity
Subfacility Effective Date to, but excluding, the Liquidity Subfacility
Termination Date.
"LIQUIDITY BORROWING": a borrowing of principal amounts pursuant to
paragraph 2.26 consisting of Liquidity Loans of the same Type made by each
Lender.
"LIQUIDITY BORROWING REQUEST": a borrowing request in form and
substance satisfactory to the Agent.
"LIQUIDITY LOANS": Loans made as Base Rate Loans or Eurodollar Loans
pursuant to paragraph 2.26.
"LIQUIDITY SUBFACILITY": the secured subfacility provided for under
paragraph 2.26.
"LIQUIDITY SUBFACILITY AMOUNT": $50,000,000, as such amount may be
reduced from time to time pursuant to paragraph 2.6(b).
"LIQUIDITY SUBFACILITY EFFECTIVE DATE": the date on which the
conditions set forth in Section 4.1 of Amendment No. 3 are satisfied.
"LIQUIDITY SUBFACILITY TERMINATION DATE": July 31, 2000.
"MORTGAGE": the first perfected mortgage given by Xxxxx Projects,
Inc., to the Agent, for the ratable benefit of the Lenders, encumbering
the office building located in Fairfield, New Jersey.
"NON-DOMESTIC COLLATERAL": any and all "Collateral" (or any similar
term describing the assets on which the Agent has been granted a Lien) as
defined in any Non-Domestic Security Instrument.
"NON-DOMESTIC SECURITY INSTRUMENTS": collectively, the Czech Credit
Agreement Assignment, the Czech Mortgage and each instrument, document or
agreement delivered pursuant to paragraph 2.27 granting or purporting to grant
in favor of the Agent for the benefit of the Lenders a Lien on, or assigning or
purporting to assign to the Agent for the benefit of the Lenders, any other
Property or assets of, or any Stock of, any Non-Domestic Subsidiary to secure
the obligations of the Company or any Subsidiary Guarantor under this Agreement
or any of the Loan Documents, in each case as amended, modified, supplemented,
restated or replaced from time to time.
"NON-DOMESTIC SUBSIDIARY": each Subsidiary of Xxxxx Services
Corporation that is not a Domestic Subsidiary and is engaged in the Aviation
Business.
24
"NON-DOMESTIC SUBSIDIARY GUARANTEE": collectively, each Guarantee by
any Non-Domestic Subsidiary Guarantor in favor of the Agent, in form and
substance satisfactory to the Agent, as amended, modified, supplemented,
restated or replaced from time to time.
"NON-DOMESTIC SUBSIDIARY GUARANTOR": each Non-Domestic Subsidiary of
Xxxxx Aviation and any other party to any Non-Domestic Subsidiary Guarantee.
"XXXXX AVIATION": Xxxxx Aviation, Inc. a wholly owned Subsidiary
of Xxxxx Services Corporation.
"ORIGINAL NOTE" and "ORIGINAL NOTES": as defined in
paragraph 2.4(a).
"1992 SENIOR NOTE INDENTURE": the Indenture dated March 1, 1992
between the Company and The Bank of New York, as trustee, providing for the
issuance of the Company's 9-1/4% debentures due March 1, 2022, as amended,
modified or supplemented from time to time.
"PERFECTION CERTIFICATE": a certificate in the form of Annex
A to the Security Agreement or any other form approved by the Agent.
"SECURED LIQUIDITY NOTE" and "SECURED LIQUIDITY NOTES": as defined
in paragraph 2.4(b).
"SECURED PARTIES": as defined in the Security Agreement.
"SECURITY AGREEMENT": a Security Agreement and Assignment, by and
among the Loan Parties party thereto and the Agent, in form and substance
satisfactory to the Agent, as amended, modified, supplemented, restated or
replaced from time to time.
"SECURITY DOCUMENTS": collectively, upon the execution and delivery
thereof, the Domestic Security Documents, the Non-Domestic Subsidiary
Guarantees, the Non-Domestic Security Instruments and all other instruments and
documents delivered pursuant to paragraph 2.27 to secure any of the obligations
of the Company and each Subsidiary Guarantor under this Agreement or any of the
Loan Documents.
"SUBSIDIARY GUARANTEE": collectively, the Domestic Subsidiary
Guarantee and the Non-Domestic Subsidiary Guarantees.
"SUBSIDIARY GUARANTOR": the Domestic Subsidiary Guarantors and the
Non-Domestic Subsidiary Guarantors.
2.2 The definition of "Affected Principal Amount" set forth in
Section 1.1 of the Credit Agreement is hereby amended by adding the phrase "or
paragraph 2.26(a)" after the phrase "paragraph 2.2" in clause (i) thereof.
25
2.3 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Base Rate Loans" in its entirety and substituting
the following therefor:
"BASE RATE LOANS": R/C Loans or Liquidity Loans (or any
portions thereof) at such time as they (or such portions) are made
or are being maintained at a rate of interest based upon the Base
Rate.
2.4 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Borrowing Date" in its entirety and substituting the
following therefor:
"BORROWING DATE": any date specified in a Borrowing Request
delivered pursuant to paragraphs 2.2, 2.3, 2.20 or 2.26 as a date on
which the Company requests the Lenders to make Loans comprising an
R/C Borrowing, a Liquidity Borrowing or a Competitive Bid Borrowing
or the L/C Issuing Bank to issue a Letter of Credit.
2.5 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Borrowing Request" in its entirety and substituting
the following therefor:
"BORROWING REQUEST": an R/C Borrowing Request, a
Liquidity Borrowing Request, Competitive Bid Borrowing Request or
L/C Issuance Request, as the case may be.
2.6 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Conversion Date" in its entirety and substituting
the following therefor:
"CONVERSION DATE": with respect to R/C Loans or Liquidity
Loans, the date on which a Eurodollar or CD Loan is converted to a
Base Rate Loan, or the date on which a Base Rate Loan is converted
to a Eurodollar or CD Loan, or the date on which a Eurodollar Loan
is converted to a CD Loan or a new Eurodollar Loan or the date on
which a CD Loan is converted to a Eurodollar Loan or a new CD Loan,
all in accordance with paragraph 2.7. Notwithstanding the foregoing,
at all times after the Amendment No. 3 Effective Date, no Base Rate
Loan or Eurodollar Loan may be converted to a CD Loan, and no CD
Loan may be converted to a new CD Loan.
2.7 The definition of "Interest Period" set forth in Section 1.1 of
the Credit Agreement is hereby amended by adding the phrase "or Liquidity
Borrowing" after the phrase "R/C Borrowing" in the introductory clause of
paragraph (a) thereof.
2.8 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Loan" in its entirety and substituting the following
therefor:
26
"LOAN": an R/C Loan, a Liquidity Loan or a Competitive
Bid Loan, as the case may be.
2.9 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Loans" in its entirety and substituting the
following therefor:
"LOANS": R/C Loans, Liquidity Loans or Competitive Bid
Loans, collectively.
2.10 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Loan Documents" in its entirety and substituting the
following therefor:
"LOAN DOCUMENTS" means, collectively, this Agreement, the
Notes, the Security Documents, the Letters of Credit, the
Applications for Letters of Credit and all other agreements,
instruments and documents executed or delivered in connection
herewith.
2.11 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Loan Parties" in its entirety and substituting the
following therefor:
"LOAN PARTIES" means, collectively, the Company and each
Subsidiary Guarantor.
2.12 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Note" and "Notes" in their entirety and substituting
the following therefor:
"NOTE" and "NOTES": as defined in paragraph 2.4(b).
2.13 The definition of "Remaining Interest Period" set forth in
Section 1.1 of the Credit Agreement is hereby amended by adding the phrase "or
paragraph 2.26" after the phrase "paragraph 2.2" in clause (i) thereof.
2.14 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Required Lenders" in its entirety and substituting
the following therefor:
"REQUIRED LENDERS": at any time when no Loans are outstanding
(whether or not Letters of Credit are then outstanding) or there are
R/C Loans, Liquidity Loans and Competitive Bid Loans outstanding,
Lenders having Commitments equal to more than 66 2/3% of the
Aggregate Commitments. At any time when only R/C Loans are
outstanding (whether or not Letters of Credit are then outstanding),
Lenders holding Original Notes having an unpaid principal balance
equal to more than 66 2/3% of the aggregate Loans outstanding. At
any time when only Liquidity Loans are outstanding (whether or not
Letters of Credit are then outstanding), Lenders
27
holding Secured Liquidity Notes having an unpaid principal balance
equal to more than 66 2/3% of the aggregate Loans outstanding. At
any time when only Competitive Bid Loans are outstanding (whether or
not Letters of Credit are then outstanding), Lenders having
Commitments equal to more than 66 2/3% of the Aggregate Commitments
(whether used or unused), except that for purposes of paragraph
9.2(a)(i) and paragraphs 9.2(a)(ii)(B), the term "Required Lenders"
shall mean Lenders holding more than 66 2/3% of the outstanding
Competitive Bid Loans if no Letters of Credit are then outstanding,
but if Letters of Credit are also then outstanding, such term shall
mean Lenders holding more than 66 2/3% of the outstanding
Competitive Bid Loans and Lenders having more than 66 2/3% of the
Letter of Credit Exposure.
2.15 Section 1.1 of the Credit Agreement is hereby amended by
deleting the definition of "Type" in its entirety and substituting the following
therefor:
"TYPE": R/C Loans made hereunder as Base Rate Loans,
Eurodollar Loans or CD Loans, as the case may be and Liquidity Loans
made hereunder as Base Rate Loans or Eurodollar Loans, as the case
may be.
2.16 Section 2.4 of the Credit Agreement is hereby amended by (i)
renumbering the existing paragraph as Section 2.4(a), (ii) deleting each
reference therein to "Note" or "Notes" and substituting therefor "Original Note"
or "Original Notes", as the case may be, and (iii) adding a new Section 2.4(b)
at the end thereof to read in its entirety as follows:
(b) The Liquidity Loans made by each Lender shall be evidenced
by a promissory note of the Company, in form and substance
satisfactory to the Agent (each, as endorsed or modified from time
to time, including all replacements thereof and substitutions
therefor, a "SECURED LIQUIDITY NOTE" and, collectively with the
Secured Liquidity Notes of all other Lenders, the "SECURED LIQUIDITY
NOTES"; and together with the Original Note of such Lender, a "NOTE"
and, collectively with the Notes of all other Lenders, the "NOTES"),
payable to the order of such Lender and representing the obligation
of the Company to pay the lesser of (a) the amount of the Liquidity
Subfacility Amount or (b) such lesser amount as shall equal the
aggregate unpaid principal balance of all Liquidity Loans made by
such Lender, in each case with interest thereon as prescribed in
paragraph 2.8. Each Lender is hereby authorized to record (i) the
date and amount of each Liquidity Loan made by such Lender, (ii) its
character as a Base Rate Loan, a Eurodollar Loan, or a combination
28
thereof, (iii) the Interest Period and interest rate applicable to
Eurodollar Loans, and (iv) the date and amount of each conversion
of, and each payment or prepayment of principal of, any Liquidity
Loans, on the schedule (and any continuations thereof) annexed to
and constituting a part of its Secured Liquidity Note. No failure to
so record or any error in so recording shall affect the obligation
of the Company to repay the Liquidity Loans, with interest thereon,
as herein provided. Each Secured Liquidity Note shall (1) be dated
the first Liquidity Borrowing Date, (2) be stated to mature on the
Liquidity Subfacility Termination Date, and (3) bear interest for
the period from and including the date thereof on the unpaid
principal balance thereof from time to time outstanding at the
applicable interest rate or rates per annum determined as provided
in paragraph 2.8. Interest on each Secured Liquidity Note shall be
payable as specified in paragraph 2.8.
2.17 Section 2.5(a) of the Credit Agreement is hereby amended by
adding the phrase ", Liquidity Loans" immediately after the phrase "R/C Loans"
in the first sentence thereof.
2.18 Section 2.6(a) of the Credit Agreement is hereby amended by (i)
adding the phrase "or Liquidity Loans" immediately after the term "R/C Loans" in
the first sentence thereof, (ii) adding the phrase "or Liquidity Loans, as the
case may be" after the term "R/C Loans" in the fifth sentence thereof and (iii)
adding a new sentence at the end thereof to read in its entirety as follows:
Upon each prepayment of the Liquidity Loans under this paragraph
2.6(a), the Liquidity Subfacility Amount shall be permanently
reduced by the principal amount of such prepayment.
2.19 Section 2.6(b) of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
(b) MANDATORY PREPAYMENTS.
(i) The Company shall prepay the R/C Loans and the
Competitive Bid Loans in the amounts, if any, and on the dates set
forth in paragraph 2.18(a) or paragraph 2.18(b).
(ii) In addition to any other mandatory repayments or
commitment reductions pursuant to this paragraph 2.6(b), on each
date after the Amendment No. 3 Effective Date upon which the Company
or any of its Subsidiaries shall receive any proceeds from any sale,
assignment, transfer or other disposition of any Property
constituting all or any part of the Collateral, the Liquidity
Subfacility Amount shall be permanently reduced and the Company
shall prepay
29
the aggregate unpaid Liquidity Loans in an amount equal to 100% of
the Net Cash Proceeds with respect to such sale, assignment,
transfer or other disposition.
2.20 Section 2.8 of the Credit Agreement is hereby amended by (i)
deleting the third parenthetical phrase in the first sentence of Section 2.8(b)
in its entirety and substituting "(as determined under paragraph 2.3 or as set
forth in paragraph 2.8(a) or 2.8(d))" therefor and (ii) adding a new Section
2.8(d) at the end thereof to read in its entirety as follows:
(d) LIQUIDITY LOANS PRIOR TO MATURITY. Prior to maturity, the
outstanding principal balance of the Liquidity Loans shall bear
interest on the unpaid principal balance thereof at the applicable
interest rate or rates per annum set forth below:
LOAN TYPE RATE
Each Base Rate Loan Base Rate plus 1.00%
Each Eurodollar Loan Eurodollar Rate for the
applicable Interest Period
plus 3.00%
2.21 Section 2 of the Credit Agreement is hereby amended by adding
new Sections 2.26 and 2.27 to read in their entirety as follows:
2.26 LIQUIDITY LOANS.
(a) Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Liquidity Loans to
the Company from time to time during the Liquidity Availability
Period in an aggregate principal amount at any one time outstanding
not to exceed such Lender's Commitment Percentage of the Liquidity
Subfacility Amount, provided that (i) the aggregate unpaid principal
balance of all Liquidity Loans at any one time outstanding shall not
exceed the Liquidity Subfacility Amount and (ii) the aggregate
unpaid principal balance of all Liquidity Loans, R/C Loans and
Competitive Bid Loans at any one time outstanding, plus the Letter
of Credit Exposure at such time, shall not exceed the Aggregate
Commitments. During such period, the Company may borrow, prepay in
whole or in part and reborrow Liquidity Loans, all in accordance
with the terms and conditions hereof. Subject to the provisions of
paragraphs 2.3 and 2.7, Liquidity Loans may be (a) Base Rate Loans
or (b) Eurodollar Loans, or any combination thereof. Notwithstanding
the foregoing, in the event that the Agent shall not have obtained a
perfected first
30
priority Lien (or the equivalent thereof under the relevant local
law) on the Non-Domestic Collateral on or before the Liquidity
Subfacility Effective Date except for the Collateral described in
the proviso to paragraph 2.27(a), the aggregate unpaid principal
balance of all Liquidity Loans outstanding at any one time shall not
exceed the lesser of $30,000,000 and the Liquidity Subfacility
Amount at such time until the Agent shall have obtained a perfected
first priority Lien (or the equivalent thereof under the relevant
local law) on the Non-Domestic Collateral. Upon the Agent obtaining
a perfected first priority Lien (or the equivalent thereof under the
relevant local law) on the Non-Domestic Collateral pursuant to (and
subject to the limitations set forth in) paragraph 2.27, the
aggregate unpaid principal balance of all Liquidity Loans
outstanding at any one time shall not exceed the Liquidity
Subfacility Amount, subject to the provisions of the first sentence
of this paragraph 2.26(a).
(b) The Company may borrow Liquidity Loans on any
Business Day occurring on or after the Liquidity Subfacility
Effective Date and ending on the Liquidity Subfacility Termination
Date, by giving the Agent an irrevocable telephonic (to be promptly
confirmed in writing) or fax or other written notice of borrowing
(each a "LIQUIDITY BORROWING REQUEST") no later than 11:00 A.M., New
York City time, three Business Days prior to each requested
Borrowing Date, in the case of Eurodollar Loans, and no later than
11:00 A.M., New York City time, two Business days prior to the
requested Borrowing Date, in the case of Base Rate Loans, specifying
(i) the aggregate amount of Liquidity Loans to be borrowed, (ii) the
requested Borrowing Date, and (iii) whether the borrowing is to be
of Eurodollar Loans, Base Rate Loans, or a combination thereof. Each
borrowing of Eurodollar Loans comprising all or a portion of a
Liquidity Borrowing shall be in an aggregate principal amount equal
to $5,000,000 or such amount plus a whole multiple of $1,000,000.
Each borrowing of Base Rate Loans comprising all or a portion of a
Liquidity Borrowing shall be in an aggregate principal amount equal
to $1,000,000 or such amount plus a whole multiple thereof or, if
less, the unused amount of the Liquidity Subfacility Amount. Upon
receipt of each notice of borrowing from the Company, the Agent
shall promptly notify each Lender thereof. Subject to its receipt of
the notice referred to in the preceding sentence, each Lender will
make the amount of its Commitment Percentage of each Liquidity
Borrowing available to the Agent for the account of the Company at
the office of the Agent set forth in paragraph 11.2 not later than
12:00 Noon, New York City time, on the Liquidity Borrowing Date
requested by the Company, in funds immediately available to the
Agent at such office.
31
The amounts so made available to the Agent on a Liquidity Borrowing
Date will then, subject to the satisfaction of the terms and
conditions of this Agreement as determined by the Agent, be made
available on such date to the Company by the Agent at the office of
the Agent specified in paragraph 11.2 by crediting the account of
the Company on the books of such office with the aggregate of said
amounts in like funds as received by the Agent.
(c) Unless the Agent shall have received prior notice
from a Lender (by telephone or otherwise, such notice to be
confirmed by fax or other writing) that such Lender will not make
available to the Agent such Lenders' pro rata share of the Liquidity
Loans requested by the Company, the Agent may assume that such
Lender has made such share available to the Agent on such Liquidity
Borrowing Date in accordance with this paragraph, provided that such
Lender received notice of the proposed Liquidity Borrowing from the
Agent, and the Agent may, in reliance upon such assumption, make
available to the Company on such Liquidity Borrowing Date a
corresponding amount. If and to the extent such Lender shall not
have so made such pro rata share available to the Agent, such Lender
and the Company severally agree to pay without duplication to the
Agent forthwith on demand such corresponding amount (to the extent
not previously paid by the other), together with interest thereon
for each day from the date such amount is made available to the
Company until the date such amount is paid to the Agent, at a rate
per annum equal to, in the case of the Company, the applicable
interest rate set forth in paragraph 2.8, and, in the case of such
Lender, the Federal Funds Rate in effect on each such day (as
determined by the Agent). Such payment by the Company, however,
shall be without prejudice to its rights against such Lender. If
such Lender shall pay to the Agent such corresponding amount, such
amount so paid shall constitute such Lender's Liquidity Loan as part
of such Liquidity Loans for purposes of this Agreement, which
Liquidity Loan shall be deemed to have been made by such Lender on
the Liquidity Borrowing Date applicable to such Liquidity Loans.
2.27. SECURITY
(a) In order to secure the due payment and performance
by the Company of its obligations in respect of the Liquidity Loans
and of the Subsidiary Guarantors of their obligations in respect of
the Subsidiary Guarantees (the "SUBFACILITY OBLIGATIONS"), the
Company shall, and cause the Subsidiary Guarantors to, grant to the
Agent for the ratable benefit of the Lenders
32
a Lien on the Collateral in accordance with the Security Documents;
provided, however, that nothing in this Agreement or any of the
other Loan Documents shall require the Company or any Subsidiary
Guarantor to grant to the Agent a Lien on any Non-Domestic
Collateral (other than pursuant to the Czech Loan Assignment and the
Czech Mortgage) to the extent (and only to the extent) that the
granting of such Lien (i) would violate the terms of any material
written agreement to which the Company or any Subsidiary Guarantor
is a party or by which the Company, any Subsidiary Guarantor or such
Non-Domestic Collateral is bound as of the Liquidity Subfacility
Effective Date, (ii) contravene any applicable law, statute, rule or
regulation or any order, writ, injunction or decree of any
Governmental Body or (iii) result in material adverse tax
consequences to the Company.
(b) In the event that the Company or any Subsidiary
Guarantor is unable as a result of the circumstances described in
clauses (i), (ii) or (iii) of paragraph 2.27(a) to grant to the
Agent a Lien on any of the Non-Domestic Collateral, the Company
shall deliver to the Agent a certificate (the "COLLATERAL
CERTIFICATE") in form and substance satisfactory to the Agent
identifying the Collateral on which the Agent will not obtain a Lien
and setting forth in reasonable detail the reasons that the Company
or such Subsidiary Guarantor is unable to grant such Lien, together
with such supporting documentation (including, without limitation,
copies of agreements translated into English and calculations of
estimated tax consequences) as the Agent may reasonably request.
(c) Upon receipt by the Agent with respect to each
Non-Domestic Subsidiary of (i) a Lien on the Non-Domestic Collateral
in accordance with this Agreement and the Security Documents or (ii)
one or more Collateral Certificates with respect to the Non-Domestic
Collateral on which the Agent is not entitled to obtain a Lien
pursuant to the proviso to paragraph 2.27(a), the Agent shall
promptly notify each Lender in writing of the receipt by the Agent
of such Liens and certificates and the date, which shall be a date
not earlier than 3 Business Days after the date of such notice, on
which the limitation on the outstanding principal amount of
Liquidity Loans set forth in the penultimate sentence of paragraph
2.26(a) shall terminate which shall be not later than 5 Business
Days after the Agent shall have received such Liens and
Certificates.
(d) Provided no Default or Event of Default has occurred
and is continuing, the Agent and the Lenders promptly will:
33
(i) release their security interest in the
Collateral (including the Disbursement Account but not the Reserve
Account) upon the written request of the Company after Xxxxx
Services Corporation shall have deposited Net Cash Proceeds received
by Xxxxx Services Corporation from the sale of the "food and
beverage" business of not less than $51,000,000 in the Reserve
Account as substitute collateral for the Collateral; and
(ii) release their security interest in the
Collateral (including the Disbursement Account and the Reserve
Account) upon (A) the repayment in full of the Liquidity Loans and
all accrued interest thereon and the termination of the Liquidity
Subfacility, (B) the cancellation of the Liquidity Subfacility by
the Company at any time that no Liquidity Loans are outstanding or
(C) receipt by the Agent of Net Cash Proceeds from the sale of the
Aviation Business and the simultaneous repayment in full of the
Liquidity Loans and all accrued interest thereon and termination of
the Liquidity Subfacility, which release shall be simultaneously
with such sale and the receipt of such Net Cash Proceeds and
repayment. The Agent and the Lenders shall execute and deliver to
the Company such instruments and documents as the Company may
reasonably request to evidence such release, at the sole cost and
expense of the Company.
2.22 Section 3.1(a) of the Credit Agreement is hereby amended by
adding the phrase "and all Liquidity Loans" after the phrase "all R/C Loans" in
subclause (i) of clause (b) of the first sentence thereof.
2.23 Section 3.2 of the Credit Agreement is hereby amended by
deleting the first two sentences thereof in their entirety and substituting the
following therefor:
With respect to the R/C Loans and Liquidity Loans, each
borrowing by the Company from the Lenders, any conversion of R/C
Loans or Liquidity Loans from one Type to another, and any reduction
of the Commitments (other than a reduction arising under paragraph
2.18), shall be made pro rata according to the Commitment Percentage
of each Lender. All payments (including prepayments) made by the
Company to the Agent on account of principal of or interest on the
R/C Loans and the Liquidity Loans, all payments in respect of
unreimbursed obligations for the Letters of Credit, and any
reduction of the participation in the face amount of a Letter of
Credit, shall be made pro rata according to the outstanding
principal amount of each Lender's R/C Loans or Liquidity Loans, as
the case may be, and all payments (including prepayments) made by
the Company on account of principal of or interest on the
Competitive Bid Loans comprising
34
the same Competitive Bid Borrowing shall be made as specified in
paragraphs 2.3(c) and 2.3(d).
2.24 Section 6.3 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
6.3 BORROWING REQUEST.
With respect to any request for Loans or the issuance of
a Letter of Credit, the Agent shall have received an R/C Borrowing
Request, a Liquidity Borrowing Request, a Competitive Bid Borrowing
Request or L/C Issuance Request, as the case may be, duly executed
by an Authorized Signatory of the Company, accompanied by, with
respect to each request for a Letter of Credit, an Application for
Letter of Credit.
2.25 Section 7.1 of the Credit Agreement is hereby amended by
adding the following new Section 7.1(d) at the end thereof to read in its
entirety as follows:
(d) concurrently with any delivery of financial statements
under subsection (a) above commencing with fiscal year 2000, a
certificate executed by the Chief Financial Officer and the general
counsel of the Company (i) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming
that there has been no change in such information since the date of
such certificate or the date of the most recent certificate
delivered pursuant to this subsection (d), (ii) certifying that all
Uniform Commercial Code financing statements or other appropriate
filings, recordings or registrations, including all refilings,
rerecordings and re-registrations, containing a description of the
Collateral have been filed of record in each governmental, municipal
or other appropriate office in each jurisdiction identified pursuant
to clause (i) above in accordance with the Security Documents and
(iii) identifying in the format of Schedule 8 to the Perfection
Certificate Equity Interests (as defined in the Security Agreement),
of the Company and each Subsidiary Guarantor in existence on the
date thereof and not then listed on such Schedules or previously so
identified to the Agent.
2.26 Section 7 of the Credit Agreement is hereby amended by adding
a new Section 7.12 to read in its entirety as follows:
7.12 ADDITIONAL SUBSIDIARIES.
In the event that on or after the Amendment No. 3 Effective
Date, any Person shall become a Subsidiary of
35
Xxxxx Aviation or of any of its Subsidiaries (other than solely as a
result of the corporate reorganization of the Company's aviation
business and such Person is a party to, and such Person's assets and
Capital Stock are subject to, the Security Documents), the Company
shall (i) notify the Agent in writing thereof within three Business
Days thereof, (ii) cause such Person to execute and deliver to the
Agent a Guarantee Supplement and to become a party to each
applicable Security Document in the manner provided therein within
five Business Days thereafter and to promptly take such actions to
create and perfect Liens on such Person's assets to secure such
Person's obligations under the Loan Documents as the Agent or the
Required Lenders shall reasonably request in accordance with the
Security Documents, (iii) cause any shares of Stock of such new
Subsidiary owned by or on behalf of any Loan Party to be pledged
pursuant to the Security Agreement within five Business Days
thereafter, (iv) cause each such new Subsidiary to deliver to the
Agent any shares of Stock of any Subsidiary that are owned by or on
behalf of such new Subsidiary within five Business Days after such
Subsidiary is formed or acquired in accordance with the Security
Documents, and (v) deliver to the Agent a Perfection Certificate
with respect to such Subsidiary, such additional Financing
Statements, Grants of Security Interest and Powers of Attorney (as
each such term is defined in the Security Agreement) certificates,
instruments and opinions as the Agent may request.
2.27 Section 11.1 of the Credit Agreement is hereby amended by (i)
adding new clauses (x) and (xi) at the end of the first proviso thereof to read
in their entirety as follows:
or (x) release any Subsidiary Guarantor from its obligations under
the Subsidiary Guarantee (except as expressly provided therein,
under paragraphs 2.25(e) and 2.27(d) or as a result of the
termination of the existence of such Subsidiary Guarantor in a
transaction permitted by paragraph 8.6), or (xi) release all or
substantially all of the Collateral from the Liens of the Security
Documents (except as may be expressly permitted thereunder, under
paragraphs 2.25(e) or 2.27(d) or in connection with a transaction
permitted by paragraph 8.6)
and (ii) by adding a new sentence at the end thereof to read in its
entirety as follows:
Notwithstanding the foregoing, the Agent, the Lenders and the
Company acknowledge and agree that paragraph 2.25 (Disbursement
Account, Reserve Account and Collateral for Subfacility) may not be
amended to (x) limit the set off rights of the Agent in respect of
the Disbursement Account and the Reserve Account as set forth in
36
paragraph 2.25, (y) change the provisions relating to the
application of any amounts set off by the Agent in respect of the
Disbursement Account or the Reserve Account in excess of the amounts
necessary to satisfy the Subfacility Obligations or (z) change the
provisions relating to the disbursement of funds from the
Disbursement Account and the Reserve Account, without the consent of
the Agent, the Required Lenders and the requisite creditors under
the Credit Facility Indebtedness.
3. CONDITIONS TO EFFECTIVENESS OF AMENDMENT.
3.1 The effectiveness of the amendments set forth in Sections 1 and
2 of this Amendment No. 3 is subject to the prior or simultaneous fulfillment of
the following conditions on or before 4:00 P.M. New York City time on April 27,
2000:
(a) The Agent shall have received this Amendment No. 3 executed
by (i) a duly authorized officer or officers of the Company and (ii) the
Required Lenders;
(b) The Agent shall have received such other documents as it
shall have reasonably requested consistent with the terms hereof;
(c) Holders of Indebtedness under any Covenant Credit Facility
shall have executed, to the extent required by each such Covenant Credit
Facility, waivers or amendments to such credit facilities satisfactory to the
Agent and the Required Lenders (i) containing amendments to the covenants and
related definitions in such credit facilities identical to those set forth in
Section 1 of this Amendment No. 3 and (ii) containing agreements by such holders
to (A) waive compliance by the Company or any of its Subsidiaries with, or
amend, any provision of any instrument, document or agreement evidencing such
Indebtedness requiring the sharing of any collateral securing the Liquidity
Loans and (B) waive any default or event of default currently existing or
occurring as a result of (x) the incurrence by the Company of Indebtedness under
the Liquidity Loan subfacility, (y) the Guarantee by the Guarantors of the
obligations of the Company in respect of the Liquidity Loans or (z) the granting
of the liens and security interest to secure the obligations in respect of the
Liquidity Loans and the obligations of the Subsidiary Guarantors under the
Subsidiary Guarantee;
(d) The Agent shall have received payment of all of its
out-of-pocket expenses, including the reasonable fees and expenses of its
counsel Xxxxx, Xxxxxx & Xxxxxx, LLP incurred in connection with this Amendment
No. 3;
(e) The Agent shall have received the arrangement fee due to the
Agent pursuant to the agreement between the Agent and the Company;
37
(f) The Agent shall have received confirmation that the
attorneys and accountants for the Steering Committee have received retainer
payments of $500,000 in the aggregate;
(g) The Agent shall have received (i) a non-refundable
Subfacility fee, for the pro-rata benefit of the Lenders, equal to $1,000,000
and (ii) a non-refundable amendment fee, for the pro-rata benefit of the
Lenders, equal to $187,500;
(h) The Agent shall have received for deposit in the
Disbursement Account and, if applicable, the Reserve Account the Net Cash
Proceeds of any Permitted Disposition closed prior to the Amendment No. 3
Effective Date; and
(i) The representations and warranties contained in the Credit
Agreement (other than the representations and warranties made as of a specific
date) shall be true and correct in all material respects on and as of the
Amendment No. 3 Effective Date, other than such exceptions as set forth on a
disclosure certificate to be delivered to the Agent by the Company on or before
the Amendment No. 3 Effective Date so long as such exceptions do not disclose
the occurrence of a Material Adverse Change since the date of the Projections.
3.2 The date on which the conditions set forth in Section 3.1 are
satisfied is the "AMENDMENT NO. 3 EFFECTIVE DATE" and until the conditions set
forth in Section 3.1 are satisfied, the amendments set forth in Section 1 and 2
of this Amendment No. 3 are not effective. In the event that the conditions set
forth in Section 3.1 have not been satisfied on or before 4:00 p.m. New York
City time on April 27, 2000, this Amendment No. 3 shall terminate and shall be
of no force or effect.
4. CONDITIONS TO EFFECTIVENESS AND AVAILABILITY OF LIQUIDITY
SUBFACILITY.
4.1 The obligation of each Lender to make any Liquidity Loan up to
an aggregate principal amount of all Liquidity Loans for all Lenders of
$30,000,000 on a Liquidity Borrowing Date is subject to the satisfaction of the
following conditions precedent as of the date of such Liquidity Loan:
(a) The Agent shall have received the Secured Liquidity Notes
duly executed by an Authorized Signatory of the Company;
(b) The Agent shall have received a counterpart of each of the
Security Agreement, the Domestic Subsidiary Guarantee, and each other Domestic
Security Document, each dated the Liquidity Subfacility Effective Date, signed
by the Company and each Subsidiary party thereto (or a facsimile of a signature
page thereof signed by the Company and each such Subsidiary party thereto)
together with the following:
38
(i) a completed Perfection Certificate, dated the Liquidity
Subfacility Effective Date and signed by both a Financial Officer and the
general counsel of the Company, together with all attachments contemplated
thereby;
(ii) one or more stock certificates, evidencing 100% of the
issued and outstanding Capital Stock of Xxxxx Aviation and each Domestic
Subsidiary owned by Xxxxx Aviation or any other Domestic Subsidiary
Guarantor (other than the Stock of the Subsidiaries in the Fuel Facilities
Group), in each case, together with undated stock powers with respect
thereto, executed in blank by the Company or such Domestic Subsidiary
Guarantor, as the case may be, and bearing a signature guarantee in all
respects satisfactory to the Agent, if requested by the Agent;
(iii) Uniform Commercial Code Financing Statements for each
Domestic Subsidiary Guarantor covering accounts receivable, goods,
machinery, equipment and other Collateral described in the Domestic
Security Documents, executed by such Domestic Subsidiary Guarantor
(subject, with respect to the Property described in part (b) of Schedule F
hereto to the Liens described on part (b) of Schedule F), for the
jurisdictions set forth on Schedule 3 to the Security Agreement;
(iv) executed counterparts of mortgages, deeds of trust or
similar documents in form and substance satisfactory to the Agent
(collectively, as amended, restated, supplemented or otherwise modified
from time to time, the "MORTGAGE") covering the real property of Xxxxx
Projects, Inc. located in --------- Fairfield, New Jersey, together with
mortgagee title insurance policies issued by title insurers reasonably
satisfactory to the Agent in amounts reasonably satisfactory to the Agent
(which policies shall include, without limitation, an endorsement for
future advances under the Credit Agreement), a survey, in form and
substance satisfactory to the Agent to such real property certified by a
licensed professional surveyor satisfactory to the Agent and such other
instruments, documents and agreements in connection with the execution,
delivery and recording of the Mortgage and granting of a Lien on such real
property in favor of the Agent as the Agent may reasonably request; and
(v) such instruments, documents and agreements as the Agent may
reasonably request in connection with the establishment of the
Disbursement Account and the Reserve Account, and the granting of a Lien
thereon in favor of the Agent for the benefit the Lenders;
(c) The Agent shall have received certificates, dated the Liquidity
Subfacility Effective Date, of the Secretary or Assistant Secretary of the
Company and each Domestic Subsidiary Guarantor (i) attaching a true and complete
copy of the resolutions of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and substance satisfactory
to the Agent and to Special Counsel) taken by it to authorize this Amendment No.
3, the Loan Documents to be executed by it in connection herewith and the
transactions contemplated hereby and thereby, (ii) attaching a true and complete
copy of
39
its certificate of incorporation and by-laws, and (iii) setting forth
the incumbency of its officer or officers who may sign the Loan Documents to
which it is a party, including therein a signature specimen of such officer or
officers, together with such other documents as the Agent or Special Counsel
shall reasonably require;
(d) There shall have occurred no Material Adverse Change and there
shall not exist any material litigation in respect of the Company, its
Subsidiaries or its businesses, or any material undisclosed liability of the
Company or any of its Subsidiaries, in each case since the date of the
Projections, and the Agent shall have received a certificate of an Authorized
Signatory of the Company to such effect;
(e) Each of the conditions set forth in Section 3.1 of this
Amendment No. 3 and in Section 6 of the Credit Agreement shall have been
satisfied;
(f) The Agent shall have received the financial statements of the
Company and its Subsidiaries described in Section 7.1(a) of the Credit Agreement
as at and for the year ending December 31, 1999, together with the unqualified
opinion of the Accountants with respect thereto;
(g) The Agent shall have received projected financial statements for
the energy division of the Company for the fiscal year ending December 31, 2000,
in form and substance satisfactory to the Agent and the Required Lenders;
(h) The Agent shall have received such other documents as it shall
have reasonably requested; and
(i) The Agent shall have received an opinion of counsel to the
Company and the Domestic Subsidiary Guarantors, addressed to the Agent and the
Lenders, dated the Liquidity Subfacility Effective Date, in form and substance
satisfactory to the Special Counsel.
4.2 The obligation of the Lenders to make any Liquidity Loan in excess of
an aggregate principal amount of $30,000,000 on a Liquidity Borrowing Date is
subject to the satisfaction of the following conditions precedent as of the date
of such Liquidity Loan:
(a) The Agent shall have received with respect to each Non-Domestic
Subsidiary Guarantor (1) the Czech Loan Assignment and the Czech Mortgage and
(2) (x) a Collateral Certificate and/or (y) a counterpart of each of the other
Non-Domestic Security Instrument, in each case executed by the Company and such
Non-Domestic Subsidiary Guarantor (or a facsimile of a signature page thereof
signed by the Company and such Non-Domestic Subsidiary Guarantor) together with
the following:
(i) a completed Perfection Certificate, signed by both a
Financial Officer and the general counsel of the Company, together with
all
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attachments contemplated thereby, with respect to each Non-Domestic
Subsidiary Guarantor; and
(ii) one or more stock certificates, evidencing not less
than 65% of the issued and outstanding Capital Stock of each
Non-Domestic Subsidiary owned by Xxxxx Aviation or any other
Subsidiary Guarantor, in each case, together with undated stock powers
(or the equivalent, if any, under local law) with respect thereto,
executed in blank by the Company or such Subsidiary Guarantor, as the
case may be, and bearing a signature guarantee in all respects
satisfactory to the Agent, if requested by the Agent;
(b) The Agent shall have received certificates, dated the
Liquidity Subfacility Effective Date, of the Secretary or Assistant Secretary of
each Non-Domestic Subsidiary Guarantor (i) attaching a true and complete copy of
the resolutions of its Board of Directors and of all documents evidencing other
necessary corporate action (in form and substance satisfactory to the Agent and
to Special Counsel) taken by it to authorize the Non-Domestic Security
Instruments to be executed by it and the transactions contemplated thereby, (ii)
attaching a true and complete copy of its certificate of incorporation and
by-laws, and (iii) setting forth the incumbency of its officer or officers who
may sign the Loan Documents to which it is a party, including therein a
signature specimen of such officer or officers, together with such other
documents as the Agent or Special Counsel shall reasonably require;
(c) There shall have occurred no Material Adverse Change and
there shall not exist any material litigation in respect of the Company, its
Subsidiaries or its businesses, or any material undisclosed liability of the
Company or any of its Subsidiaries, in each case since the date of the
Projections;
(d) Each of the conditions set forth in Section 6 of the Credit
Agreement shall have been satisfied; and
(e) The Agent shall have received such other documents as it
shall have reasonably requested.
4.3 The date on which the conditions set forth in Section 4.1 are
satisfied is the "LIQUIDITY SUBFACILITY EFFECTIVE DATE".
5. ACKNOWLEDGMENTS, REPRESENTATIONS AND WARRANTIES AND AGREEMENTS.
5.1 The Company hereby (a) reaffirms and admits the validity and
enforceability of the Credit Agreement and the other Loan Documents and all of
its obligations thereunder, and (b) represents and warrants to the Agent and
each Lender:
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(i) As of the date hereof, there exists no Default or Event of
Default.
(ii) The Company has full corporate power and authority to enter
into, execute, deliver and carry out the terms of this Amendment No. 3 and the
Loan Documents to which it is a party, and to make the borrowings and to incur
the other obligations contemplated hereby and thereby, to issue, deliver and
carry out the terms of the Secured Liquidity Notes and to incur the obligations
provided for in the Credit Agreement as amended hereby and in the Secured
Liquidity Notes, all of which have been duly authorized by all proper and
necessary corporate action and are not in violation of its Restated Certificate
of Incorporation or By-Laws.
(iii) Each Subsidiary Guarantor has full corporate power and
authority to enter into, execute, deliver and carry out the terms of the Loan
Documents to which it is a party and to incur the obligations contemplated
thereby, all of which have been duly authorized by all proper and necessary
corporate action and are not in violation of its Certificate of Incorporation or
By-Laws (or equivalent governing documents).
(iv) No consent, authority or approval of, filing with, notice to,
or exemption by, stockholders, any Governmental Body or any other Person (except
for those which have been obtained, made or given) is required to authorize, or
is required in connection with the execution, delivery and performance of this
Amendment No. 3, the Credit Agreement as amended hereby or any Loan Document, or
is required as a condition to the validity or enforceability of this Amendment
No. 3, the Credit Agreement as amended hereby or any Loan Document. No provision
of any applicable statute, law (including, without limitation, any applicable
usury or similar law), rule or regulation of any Governmental Body will prevent
the execution, delivery or performance of, or affect the validity of, this
Amendment No. 3, the Credit Agreement as amended hereby or any Loan Document.
(v) This Amendment No. 3 constitutes, and the Loan Documents to be
executed and delivered in connection herewith, when issued, executed and
delivered pursuant hereto for value received, will constitute, the valid and
legally binding obligations of the Company and the Subsidiary Guarantors
enforceable in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting enforcement of creditors' rights
generally or by general principles of equity.
(vi) The execution, delivery, carrying out of the terms of this
Amendment No. 3, the Credit Agreement, as amended hereby and the Loan Documents
(including, without limitation, the granting of a Lien on the Collateral
pursuant to the Security Documents) or the borrowing of any Liquidity Loan will
not constitute a default under, conflict with, require any consent under (other
than consents which have been obtained), or result in the creation or imposition
of, or obligation to create, any Lien upon the Property or assets of the Company
or any of its Subsidiaries pursuant to the terms of any
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mortgage, indenture (including, without limitation, the 1992 Senior Note
Indenture), contract, agreement, judgment, decree or order.
(vii) Schedule D to this Amendment No. 3 sets forth a true, correct
and complete list of all Covenant Credit Facilities and each holder of any
Indebtedness under any such facility as of the date hereof.
(viii) Xxxxx Services Corporation is a direct, wholly-owned
Subsidiary of the Company. Xxxxx Services Corporation on the Amendment No. 3
Effective Date owns beneficially and of record the Stock of the Subsidiaries
that own all of the Property and assets of the Aviation Business (except for the
Company's direct minority interest in the joint venture, Aeropuentos Argentina
2000 S.A.) and the Company's discontinued entertainment business (including the
Stock of the Company's Subsidiaries that own the discontinued food and beverage
business), and except for Xxxxx Allied Maintenance Securities Inc., the Fuel
Facilities Group, Xxxxx Flight Services Group, Inc., Xxxxx Flight Properties,
Inc. and FRC Holdings, Inc., has owned such Subsidiaries, Properties and assets
for not less than five years (or such shorter time period as such Subsidiaries,
Properties and assets have been owned directly or indirectly by the Company).
(ix) All Disposition Related Debt either (a) is secured by a Lien on
the Property being sold in the Permitted Disposition related thereto or (b) is a
direct obligation of (i) the Subsidiary that owns the Property being sold in
such Permitted Disposition or (ii) a Subsidiary whose right to the proceeds of
such sale is structurally senior to any such right of the Company. All
Disposition Related Debt paid upon sale shall be paid solely from the proceeds
of sale.
(x) The sole assets of the Subsidiaries that comprise the Fuel
Facilities Group are pipes, tanks and related structures owned or held for the
benefit of airlines serviced by the Fuel Facilities Group.
5.2 The Company specifically and unconditionally acknowledges and
reaffirms its indebtedness to the Agent and the Lenders in the outstanding
principal amount of $50,000,000 under the terms of the Credit Agreement and the
other Loan Documents, together with all accrued and unpaid interest to the date
hereof, interest to be accrued and other costs, charges and expenses as may
accrue or become due under the terms of the Credit Agreement and the other Loan
Documents, including but not limited to reasonable fees and expenses of counsel.
The Company acknowledges and agrees that if and to the extent it maintains any
defenses to its obligations under the Credit Agreement and the other Loan
Documents arising through and including the date hereof, such defenses are
hereby waived and released as a specific condition to the agreements of the
Agent and the Lenders set forth herein, which waiver and release are
unconditional and without limitation.
5.3 The Company hereby acknowledges that all sales, assignments, transfers
or other dispositions of Property (other than the Property described on
Schedules X-0, X-0 and B-3 hereto and sales, assignments, transfers or other
dispositions of Property
43
permitted by Section 8.6 of the Credit Agreement) after the Amendment No. 3
Effective Date shall be subject to the prior review and written consent of the
Agent and the Required Lenders.
5.4 All references to "this Agreement" in the Credit Agreement and
to "the Credit Agreement" in the other Loan Documents shall be deemed to refer
to the Credit Agreement as amended by this Amendment No. 3. All reference to the
"representations and warranties" in the Credit Agreement or in the other Loan
Documents shall be deemed to include the representations and warranties set
forth in Section 5.1 of this Amendment No. 3.
5.5 Except as specifically set forth herein, the Credit Agreement
and the other Loan Documents shall remain in full force and effect in accordance
with their terms.
5.6 The Company hereby acknowledges that the Agent and the Lenders
and holders of the Credit Facility Indebtedness may form the Steering Committee
in order to, among other things, coordinate the monitoring of the Company's
performance and the repayment of the Company's and its Subsidiaries'
Indebtedness. In connection therewith, and without limiting the Company's
obligations under Section 11.5 of the Credit Agreement, the Company shall pay or
reimburse the Steering Committee for all of its reasonable fees and expenses,
including, without limitation, fees and expenses incurred in connection with the
engagement on behalf of the Steering Committee of an accounting firm and a law
firm selected by the Steering Committee in their discretion.
5.7 In the event that the Company shall pay or become obligated to
pay to any holder of any Credit Facility Indebtedness or any agent or trustee
for any syndicate of holders of any Credit Facility Indebtedness in connection
with the consent by such holder or syndicate of holders to the waiver or
amendment of any provision of any instrument, document or agreement evidencing
such Credit Facility Indebtedness to conform any such instrument, document or
agreement to the terms of the Credit Agreement (as amended hereby) and this
Amendment No. 3 any fee (each such fee a "CREDIT FACILITY FEE") in excess of
0.375% of the principal amount of such Credit Facility Indebtedness held by such
holder or syndicate of holders, the Company shall pay to the Agent for the
ratable benefit of the Lenders (simultaneously with the payment of each such
Credit Facility Fee) an additional non-refundable fee equal to the difference
between (x) the product of (i) a fraction, the numerator of which is the
aggregate amount of such Credit Facility Fee and the denominator of which is the
principal amount of such Credit Facility Indebtedness, multiplied by (ii)
$50,000,000 and (y) $187,500.
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5.8 Each of the Company, the Agent and each Lender acknowledges
that nothing in this Amendment No. 3 or the Credit Agreement as amended
hereby shall in any way limit the rights or remedies of the Agent and the
Lenders upon the occurrence and during the continuance of an Event of Default
or constitute a so-called "standstill agreement" (and neither this Amendment
No. 3 nor any of the other amendments to the documents governing the Credit
Facility Indebtedness shall be deemed to create any standstill obligation)
between (i) the Company and any of its creditors or (ii) among any of the
Company's creditors, and that each holder of indebtedness of the Company
(including, without limitation, Credit Facility Indebtedness) shall retain
all of its respective rights and remedies with respect to such indebtedness
in accordance with the terms thereof, at law or otherwise.
6. MISCELLANEOUS.
6.1 This Amendment No. 3 may be executed by facsimile and in any
number of counterparts, each of which shall be an original and all of which
shall constitute one agreement. It shall not be necessary in making proof of
this Amendment No. 3 to produce or account for more than one counterpart
signed by the party to be charged.
6.2 This Amendment No. 3 is being delivered in and is intended to
be performed in the State of New York and shall be construed and enforceable
in accordance with, and be governed by, the internal laws of the State of New
York without regard to principles of conflict of laws.
The parties hereto have caused this Amendment No. 3 to be duly executed
and delivered by their proper and duly authorized officers as of the day and
year first above written.
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AMENDMENT NO. 3 - REVOLVING CREDIT AGREEMENT
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AMENDMENT NO. 3 - REVOLVING CREDIT AGREEMENT
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AMENDMENT NO. 3 - REVOLVING CREDIT AGREEMENT
48
