AMENDMENT NO. 1
TO
CREDIT AGREEMENT
AMENDMENT NO. 1 (the "Amendment") TO "CREDIT AGREEMENT" (as defined
below), dated as of December 30, 1999, among Xxxxxx International, Inc., a
Delaware corporation (the "Borrower"), the financial institutions party to the
Credit Agreement (the "Lenders"), and Fleet Capital Corporation, in its capacity
as administrative agent for itself as a Lender and the other Lenders (the
"Administrative Agent") under that certain Credit Agreement, dated as of
November 22, 1999, by and among the Borrower, the Lenders and the Administrative
Agent (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"). Defined terms used herein and not
otherwise defined herein shall have the meaning given to them in the Credit
Agreement.
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
agreed to amend the Credit Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises set forth above, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Borrower, the Lenders and the Administrative Agent
agree as follows:
1. Amendment to the Credit Agreement. Effective as of the date first
above written, unless otherwise specified herein, and subject to the execution
of this Amendment by the parties hereto and the satisfaction of the conditions
precedent set forth in Section 2 below, the Credit Agreement shall be and hereby
is amended as follows:
a. Section 2.13(d)(ii) is hereby amended to delete therefrom
the phrase "it shall be assumed for purposes of determining the
Applicable Floating Margin and Applicable Eurodollar Margin that the
Interest Coverage Ratio was less than 1.5 to 1.0" and to substitute
therefor the phrase "it shall be assumed for purposes of determining
the Applicable Floating Margin and Applicable Eurodollar Margin that
the Interest Coverage Ratio was less than 1.25 to 1.0."
b. Section 7.3(A) of the Credit Agreement is hereby amended to
delete therefrom clauses (x) and (xi) and to substitute therefor the
following clauses(x) and (xi):
"(x) Indebtedness of a Subsidiary payable to the Borrower or
any other Subsidiary; provided, however, that the aggregate of
such Indebtedness shall not exceed $5,000,000;"
"(xi) Indebtedness of the Borrower payable to any Subsidiary;"
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c. Section 7.3(C) of the Credit Agreement is hereby amended to
delete therefrom clause (ii) and to substitute therefor the following:
"(ii) Permitted Existing Liens and any Liens on or against any
real property owned by any of the Borrower's Subsidiaries that
are organized under the laws of a jurisdiction other than the
United States;"
d. Section 7.3(F)(ii) of the Credit Agreement is hereby
amended in its entirety as follows:
"(ii) the Borrower, prior to any such Acquisition, shall have
delivered to the Administrative Agent and the Lenders pro
forma projections, based on information reasonably acceptable
to the Administrative Agent and the Lenders, demonstrating
that after giving effect to such Acquisition, the Borrower
would be in compliance with the terms of this Agreement for
the period beginning on the date such Acquisition is
consummated and ending on the first anniversary thereof;
provided, however, that the Borrower need not deliver any pro
forma projections for any Acquisition the purchase price of
which is less than $7,500,000"
e. Section 9.3(vi) of the Credit Agreement is hereby amended
in its entirety as follows:
"(vi) Release a material portion of the Collateral or release
any guarantor that has guaranteed the Obligations from its
guaranty of such Obligations."
f. Section 9.3(vii) of the Credit Agreement is hereby amended
in its entirety as follows;
"(vii) Amend any percentage in the Borrowing Base or decrease
the amount of the Availability Reserve or otherwise materially
modify the manner in which the Borrowing Base is determined."
g. Section 9.3 of the Credit Agreement is hereby amended to
insert immediately after clause (viii) the following clause (ix):
(ix) Take any action or enforce any rights or remedies against
any real property of the Borrower that is subject to a Lien in
favor of the Administrative Agent on behalf of the Lenders."
h. Exhibit A to the Credit Agreement is hereby deleted
therefrom and the attached Exhibit A is hereby substituted therefor.
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2. Conditions Precedent. This Amendment shall become effective as of
the date above written, if, and only if, the Administrative Agent has received
an executed copy of this Amendment from the Borrower, the Lenders and the
Administrative Agent.
3. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants as follows:
a. This Amendment and the Credit Agreement, as amended hereby,
constitute legal, valid and binding obligations of the Borrower and are
enforceable against the Borrower in accordance with their terms.
b. Upon the effectiveness of this Amendment, the Borrower
hereby reaffirms all representations and warranties made in the Credit
Agreement, and to the extent the same are not amended hereby, agrees
that all such representations and warranties shall be deemed to have
been remade as of the date of delivery of this Amendment, unless and to
the extent that any such representation and warranty is stated to
relate solely to an earlier date, in which case such representation and
warranty shall be true and correct as of such earlier date.
4. Reference to and Effect on the Credit Agreement.
a. Upon the effectiveness of Section 1 hereof, on and after
the date hereof, each reference in the Credit Agreement to "this Credit
Agreement," "hereunder," "hereof," "herein" or words of like import
shall mean and be a reference to the Credit Agreement as amended
hereby.
b. The Credit Agreement, as amended hereby, and all other
documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are
hereby ratified and confirmed.
c. Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or the
Lenders, nor constitute a waiver of any provision of the Credit
Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
5. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws (including Section 735 ILCS 105/5-1 et seq. but
otherwise without regard to conflict of law provisions) of the State of
Illinois.
6. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
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7. Counterparts. This Amendment may be executed by one or more of the
parties to the Amendment on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
on the date first above written.
XXXXXX INTERNATIONAL, INC.
By: ----------------------------------
Name: ----------------------------------
Title: ----------------------------------
FLEET CAPITAL CORPORATION,
individually and as Administrative Agent
By: ----------------------------------
Name: ----------------------------------
Title: ----------------------------------
NATIONAL CITY COMMERCIAL FINANCE,
INC.
By: ----------------------------------
Name: ----------------------------------
Title: ----------------------------------
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SCHEDULE 1
TO
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
EXHIBIT A
TO
CREDIT AGREEMENT
Commitments
REVOLVING LOAN COMMITMENTS
Lender Amount of Revolving % of Revolving Loan
Loan Commitment Commitment
FLEET CAPITAL
CORPORATION $57,000,000 79.166667%
NATIONAL CITY
COMMERCIAL FINANCE $15,000,000 20.833333%
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