FIRST AMENDMENT AND SUPPLEMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT AND SUPPLEMENT TO CREDIT AGREEMENT (this "FIRST
AMENDMENT") is made and entered into as of the 17th day of July, 1995 (the
"Effective Date"), among XXXXXX CORPORATION, a Delaware corporation
("BORROWER"); THE BANK OF NOVA SCOTIA, ("SCOTIABANK"), as Agent (in such
capacity "AGENT"), for itself and each of the other lenders that is a
signatory to or which becomes a signatory to the hereinafter identified
Credit Agreement (Scotiabank and such other lenders collectively "LENDERS").
RECITALS
A. On November 29, 1994, Borrower, Agent and Lenders entered into a
certain Credit Agreement (said Credit Agreement, as modified by four (4)
letters dated as of January 27, 1995, April 12, 1995, May 22, 1995, and May
30, 1995, the "CREDIT AGREEMENT") whereby, upon the terms and conditions
therein stated, the Lenders agreed to make certain loans and extend certain
credit to the Borrower.
B. Borrower, Agent and Lenders mutually desire to amend certain
aspects of the Credit Agreement to provide for certain dividends to be paid
on Borrower's common stock.
C. In consideration of the mutual covenants and agreements herein
contained, Borrower, Agent and Lenders hereby agree that the Credit Agreement
shall be amended as follows:
1. CERTAIN DEFINITIONS. As used in this First Amendment, the terms
"AGENT", "BORROWER", "CREDIT AGREEMENT", "EFFECTIVE DATE", "FIRST AMENDMENT"
and "LENDERS" shall have the meanings indicated above; and unless otherwise
defined herein, all terms beginning with a capital letter which are defined
in the Credit Agreement shall have the same meanings herein as therein unless
the context hereof otherwise requires.
2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 DEFINED TERMS. The term "AGREEMENT" is hereby amended to mean the
Credit Agreement, as amended and supplemented by this First Amendment and as
the same may from time to time be further amended or supplemented.
2.2 ADDITIONAL DEFINED TERMS. Section 1.02 of the Credit Agreement is
hereby further amended and supplemented by adding the following new
definition, which reads in its entirety as follows:
"'FIRST AMENDMENT' shall mean that certain First Amendment and
Supplement to Credit Agreement dated as of July 17, 1995, among the Borrower,
Agent and Lenders."
2.3 RESTRICTED PAYMENTS. Section 9.04 of the Credit Agreement is
hereby amended in its entirety to read as follows:
"Section 9.04 RESTRICTED PAYMENTS. The Borrower or
any Restricted Subsidiary will not declare or pay any
dividend, purchase, redeem or otherwise acquire for value
any of its stock now or hereafter outstanding, return any
capital to its stockholders or make any distribution of
its assets to its stockholders or repay, purchase,
repurchase, defease or make any prepayments on the Senior
Unsecured Notes; PROVIDED, HOWEVER, so long as no Default
has occurred and is continuing hereunder or would occur
as a consequence thereof, the Borrower and any Restricted
Subsidiary may declare (A) and pay (i) dividends payable
in Capital Stock of the Borrower, or (ii) dividends or
distributions payable to the Borrower or any Restricted
Subsidiary, and (B) dividends on the common stock of the
Borrower during the four fiscal quarters immediately
following the fiscal quarter ended June 30, 1995, but in
no event shall the aggregate amount of such dividends
declared and paid with respect to such four fiscal
quarters exceed $4,000,000."
3. DEFAULT. Any default under this First Amendment shall constitute a
default under the Credit Agreement.
4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Bank that:
(i) There exists no default or event of default, or
any condition or act which constitutes, or with
notice or lapse of time or both would constitute, an
Event of Default under the Credit Agreement, as
hereby amended and supplemented;
(ii) The Borrower has performed and complied with
all covenants, agreements and conditions contained
in the Credit Agreement, as hereby amended and
supplemented, required to be performed or complied
with by it; and
(iii) The representations and warranties of the
Borrower contained in the Credit Agreement, as
hereby amended and supplemented, were true and
correct when made, and are true and correct in all
material respects at and as of the time of delivery
of this First Amendment.
5. EXTENT OF AMENDMENTS. Except as expressly herein set forth, all of
the terms, conditions, defined terms, covenants, representations, warranties
and all other provisions of the Credit Agreement are herein ratified and
confirmed and shall remain in full force and effect.
6. COUNTERPARTS. This First Amendment may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one
and same instrument.
7. REFERENCES. On and after the Effective Date hereof, the terms
"AGREEMENT," "hereof," "herein," "hereunder," and terms of like import when
used in the Credit Agreement
shall, except where the context otherwise requires, refer to the Credit
Agreement, as amended and supplemented by this First Amendment.
This First Amendment shall benefit and bind the parties hereto, as well
as their respective assigns, successors, heirs and legal representatives.
EXECUTED as of the date first above written.
BORROWER: XXXXXX CORPORATION
By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
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Title: Executive Vice President
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LENDERS AND AGENT: THE BANK OF NOVA SCOTIA,
Individually and as Agent
By: THE BANK OF NOVA SCOTIA,
ATLANTA AGENCY
By: /s/ A.S. Xxxxxxxxxx
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Name: A.S. Xxxxxxxxxx
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Title: Assistant Agent
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NATIONAL BANK OF CANADA MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx X. Xxxxx
----------------------------- -----------------------------
Name: Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxx
----------------------------- -----------------------------
Title: Assistant Vice President Title: Vice President
----------------------------- -----------------------------
By: /s/ Xxxxxxx X. Xxxxxxx THE FIRST NATIONAL BANK OF
----------------------------- CHICAGO
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
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DEN NORSKE BANK AS By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Assistant Vice President
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By: /s/ Xxxxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxxxx X. Xxxxxx, Xx. THE FUJI BANK LIMITED
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Title: Senior Vice President
-----------------------------
By: /s/ Xxxxxx X. Xxxxxxxx III
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By: /s/ Xxxx Xxxxxx Name: Xxxxxx X. Xxxxxxxx III
----------------------------- --------------------------------------
Name: Xxxx Xxxxxx Title: Vice President and Joint Manager
----------------------------- --------------------------------------
Title: Vice President
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BANK OF AMERICA ILLINOIS
SOCIETE GENERALE, SOUTHWEST
AGENCY
By: /s/ W. Xxxxxx Xxxxxxx
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Name: W. Xxxxxx Xxxxxxx
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Title: Vice President
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By: /s/ Xxxxxx Dessenne
-----------------------------
Name: Xxxxxx Dessenne
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Title: Assistant Vice President
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By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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