EXHIBIT 10.35
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Third Amendment") is made
and entered into effective as of the 29th day of September, 1997, by and between
XXXXXXX RESEARCH CORPORATION, a Delaware corporation ("Borrower"), SOUTHTRUST
BANK, NATIONAL ASSOCIATION, a national banking association f/k/a SouthTrust Bank
of Alabama, National Association ("SouthTrust"), REGIONS BANK, an Alabama state
banking corporation f/k/a First Alabama Bank ("Regions"), and CORESTATES BANK,
N.A., a national banking association ("Corestates") (SouthTrust, Regions, and
Corestates being collectively referred to herein as the "Banks").
RECITALS:
A. Borrower and Banks are parties to that certain Credit Agreement dated
August 16, 1995, as amended by that certein First Amendment to Credit Agreement
dated March 31, 1997, and as further amended by that certain Second Amendment to
Credit Agreement dated June 24, 1997 (as amended, the "Credit Agreement")
pursuant to which Banks have made a $73,500,000 line of credit loan to the
Borrower. Capitalized terms used herein shall have the meanings ascribed to such
terms in the Credit Agreement.
B. Borrower has requested that the Commitment Termination Date be extended
to November 30, 1997, and as a condition to such extension, Banks have required
the execution of this Third Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Article I of the Credit Agreement is hereby amended by deleting the
definition of "Commitment Termination Date" in its entirety and by inserting in
lieu thereof the following definition:
"COMMITMENT TERMINATION DATE" means the first to occur of (1) November 30, 1997,
or such later date as Borrower and Banks may agree upon in writing pursuant to
Section 2.11 hereof, it being agreed that Banks shall have no obligation to
extend the commitment Termination Date, or (2) the date that Banks, by reason of
an Event of Default, suspend the making of further Advances.
2. No right of Banks with respect to the Credit Agreement or any of the
other Loan Documents are or will be in any manner released, destroyed,
diminished, or otherwise adversely affected by this Third Amendment.
3. Except as hereby expressly modified and amended, the Credit Agreement
shall remain in full force and effect, and the Credit Agreement, as amended, is
hereby ratified and affirmed in all respects. Borrower confirms that it has no
defenses or setoffs with respect to its obligations pursuant to the Credit
Agreement as amended hereby.
4. Borrower represents and warrants to Banks that all representations and
warranties contained in the Credit Agreement are true and correct as of the date
hereof, and no Event of Default or Potential Default has occurred or exists.
5. All references to the Credit Agreement in any of the other Loan
Documents shall be deemed to refer, from and after the date hereof, to the
Credit Agreement as amended hereby.
6. This Third Amendment shall inure to the benefit of and be binding upon
the parties hereto, and their respective successors and assignors.
7. This Third Amendment may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute one and the same instrument.
8. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY WAIVES ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR
CAUSE OF ACTION (I) ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS
THIRD AMENDMENT, THE CREDIT AGREEMENT, OR THE OTHER LOAN DOCUMENTS, OR (II) IN
ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS
OF THE PARTIES HERETO WITH RESPECT TO THE FOREGOING OR IN CONNECTION WITH THE
TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR THE EXERCISE OF ANY
PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BORROWER AGREES THAT BANKS MAY FILE A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF
BORROWER IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY, AND THAT, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
BETWEEN BORROWER AND BANKS SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, the parties have caused this Third Amendment to be
properly executed and delivered by their duly authorized officers to be
effective as of the day and year first above written.
XXXXXXX RESEARCH CORPORATION,
A DELAWARE CORPORATION
By: Xxxxx X. Xxxxxxx
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Its Chief Financial Officer
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SOUTHTRUST BANK, NATIONAL
ASSOCIATION, A NATIONAL BANKING ASSOCIATION
By: Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Its Assistant Vice President
REGIONS BANK,
AN ALABAMA STATE BANKING CORPORATION F/K/A
FIRST ALABAMA BANK
By: Xxxxxxx X. Xxxxxx
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Its Vice President
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CORESTATES BANK, N.A.,
A NATIONAL BANKING ASSOCIATION
By: Xxxxx Leaf
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Its Vice President
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