Exhibit 10.4
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT dated as of December 5, 1997 among XXXXXX & XXXXX CORPORATION
(the "Borrower"), the BANKS listed on the signature pages hereof (the
"Banks") and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"Agent').
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into a Credit
Agreement dated as of March 29, 1995 (as heretofore amended, the
"Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as specified
below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof," "hereunder," "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. AMENDMENT OF DEFINITIONS. The definition of "Consolidated
Operating Cash Flow" in Sectiion 1.01 of the Agreement is amended to read as
follows:
"Consolidated Operating Cash Flow" means, for any fiscal quarter, the
sum of the consolidated net income of the Borrower and its Consolidated
Subsidiaries for such fiscal quarter plus, to the extent deducted in
determining such consolidated net income for such fiscal quarter,
depreciation and amortization.
SECTION 3. RECEIVABLES SALES. The amount of "$100,000,000" in Section
5.12(b) is changed to "250,000,000."
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
(a) no Default has occurred and is contuing; and
(b) each representation and warranty of the Borrower set forth in the
Agreement is true and correct as though made on and as of such date.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. COUNTERPARTS; EFFECTIVENESS. This Amendment may be signed
in any number of counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective as of the date hereof when
the Agent shall have received duly executed counterparts hereof signed by the
Borrower and the Required banks (or, in the case of any party as to which an
executed counterpart shall not have been received, the Agent shall have
received telegraphic, telex or other written confirmation from such party of
execution of a counterpart hereof by such party).
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXX & XXXXX CORPORATION
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Assistant Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxxx Xxxxx
--------------------------------
Title: Vice President
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Title: Director
By /s/ Xxxxxx X. Xxxxx
--------------------------------
Title: Assistant Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By /s/ Xxxxxxx Xxx O'Dell II
--------------------------------
Title: Senior Vice President
ABN AMRO BANK N.V.
ATLANTA AGENCY
By /s/ Xxxxxxx X. Xxxx
--------------------------------
Title: Vice President
By /s/ X.X. Xxxxxxx
--------------------------------
Title: Senior Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ F.C.H. Xxxxx
--------------------------------
Title: Senior Manager Loan Operations
CIBC, INC.
By /s/ Xxxxxxx X. Xxx
--------------------------------
Title: Executive Director, CIBC
Xxxxxxxxxxx Corp. as Agent
NORTHERN TRUST COMPANY
By /s/ Xxxx Xxxxxx
--------------------------------
Title: Vice President
PNC BANK, KENTUCKY, INC.
By /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: Vice President
THE SUMITOMO BANK, LTD.
By /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------
Title: Joint General Manager
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as successor by
merger to FIRST FIDELITY BANK, N.A.
By /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
THE BANK OF NEW YORK
By /s/ Xxx Xxxxx Xxxxxx
--------------------------------
Title: Assistant Vice President
FIRST AMERICAN NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Vice President
UNION PLANTERS NATIONAL BANK
By /s/ Xxxxxxxxx Xxxxx
--------------------------------
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Agent
By /s/ Xxxxxxx Xxxxx
--------------------------------
Title: Vice President
