FIRST AMENDMENT AGREEMENT
AGREEMENT dated as of December 16, 1996, among XXXXXXX
INTERNATIONAL, INC., XXXXXXX INTERNATIONAL GROUP INC., the several banks and
financial institutions from time to time parties to the Credit Agreement (as
defined below), BANK OF BOSTON CONNECTICUT, as Administrative Agent and SOCIETE
GENERALE, as Documentation Agent.
Background
A. Capitalized terms not otherwise defined shall have the
meanings ascribed to them in the Second Amended and Restated Credit Agreement
dated as of October 28, 1996, among Xxxxxxx International, Inc., Xxxxxxx
International Group Inc. (the "Parent"), the several banks and other financial
institutions from time to time parties to the Credit Agreement (the "Lenders"),
Bank of Boston Connecticut, as Administrative Agent (the "Administrative Agent")
and Societe Generale, as Documentation Agent (as amended, modified or
supplemented from time to time, the "Credit Agreement").
B. Each of the Parent and Borrower has requested that the
Administrative Agent and the Lenders amend the Credit Agreement as hereinafter
set forth.
C. The Administrative Agent and the Required Lenders have
agreed to the request of the Parent and the Borrower subject to the terms and
conditions of this Agreement.
Agreement
In consideration of the Background, which is incorporated by reference,
the parties hereto, intending to be legally bound, agree as follows:
1. Modifications. All the terms and provisions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect except that:
(a) the following definition of "Change of Control"
is hereby added to Section 1.1 of the Credit Agreement:
"Change of Control": the occurrence of any of
the following events: (a) any "Person" (as such term is
defined in Sections 13(d) and 14(d) of the Exchange
Act), other than one or more Permitted Holders controls
directly or indirectly of more than 15% of the total
voting power of the
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Voting Stock of the Parent; (b) the Permitted Holders
"beneficially own" (as such term has the meaning within
the context of Rules 13d-3 and 13d-5), directly or
indirectly, in the aggregate less than 50.1% total
voting power of the Voting Stock of the Parent; or (c)
during any period of two consecutive years, individuals
who at the beginning of such period constituted the
Board of Directors of the Parent (together with any new
directors whose selection by such Board of Directors or
whose nomination for election by the shareholders of
the Parent was approved by vote of 66-2/3% of the
directors of the Parent then still in office who were
either directors at the beginning of such period or
whose election or nomination for election was
previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the
Parent then in office.
(b) the following definition of "Exchange Act" is
hereby added to Section 1.1 of the Credit Agreement:
"Exchange Act": the Securities Exchange Act of
1934, as amended.
(c) the following definition of "Permitted Holders"
is hereby added to Section 1.1 of the Credit Agreement:
"Permitted Holders": Xxxxxxx Xxxxxxx, III, the
Trust under the Will of Xxxxx X. Xxxxxxx for the
benefit of Xxxxxxx Xxxxxxx, III and the Trust under the
Will of Xxxxxxx Xxxxxxx, Xx. for the benefit of Xxxxxxx
Xxxxxxx, III, and the respective heirs, administrators,
personal representatives, successors and assigns of
each of them.
(d) the following definition of "Voting Stock" is
hereby added to Section 1.1 of the Credit Agreement:
"Voting Stock": of a corporation means all
classes of Capital Stock of such corporation then
outstanding and normally entitled to vote in the
election of directors.
(e) Section 7(k) of the Credit Agreement is deleted
and the following is substituted therefor:
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(k) a Change of Control shall occur;
2. Conditions Precedent. This Agreement shall not be
effective until such date, if any, as each of the following conditions precedent
shall have been fulfilled:
(a) this Agreement shall have been duly executed by
the parties hereto;
(b) the Required Lenders shall have consented to the
execution of this Agreement hereof by the Administrative Agent; and
(c) the Administrative Agent shall have received such
other agreements and instruments as the Administrative Agent shall require.
3. Reaffirmation By Borrower. The Borrower acknowledges and agrees, and
reaffirms, that it is legally, validly and enforceably indebted to the Lenders
under the Revolving Credit Notes, the A Term Notes, the B Term Notes and the
Swing Line Note, without defense, counterclaim or offset, and that it is
legally, validly and enforceably liable to the Lenders for all costs and
expenses of collection and attorneys' fees related to or in any way arising out
of this Agreement, the Credit Agreement, the Revolving Credit Notes, the A Term
Notes, the B Term Notes, the Swing Line Note and the other Loan Documents. The
Borrower hereby restates and agrees to be bound by all covenants contained in
the Credit Agreement and the other Loan Documents and hereby reaffirms that all
of the representations and warranties contained in the Credit Agreement remain
true and correct in all material respects. The Borrower represents that except
as set forth in the Credit Agreement, there are not pending or to the Borrower's
knowledge threatened, legal proceedings to which the Borrower or the Guarantor
is a party, that materially or adversely affect the transactions contemplated by
this Agreement or the ability of the Borrower or the Guarantor to conduct its
business. The Borrower acknowledges and represents that the resolutions of the
Borrower dated April 9, 1996, remain in full force and effect and have not been
amended, modified, rescinded or otherwise abrogated.
4. Reaffirmation by Guarantors. The Guarantor acknowledges that it is
legally and validly indebted to the Lenders or the Administrative Agent under
the Guaranty without defense, counterclaim or offset. The Guarantor affirms that
the Guaranty remains in full force and effect and acknowledges that the Guaranty
encompasses, without limitation, the amount of the Revolving Credit Loans, the A
Term Loans, the B Term Loans and the Swing Line Loan.
5. Other Representations By Borrower and Guarantor. The Borrower and
the Guarantor each represents and confirms that (a) no Default or Event of
Default has occurred and is continuing and the Administrative Agent has not
given its consent to or waived any Default or Event of Default and (b) the
Credit Agreement and the other Loan Document are in full force and effect and
enforceable against the Borrower and Guarantor
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in accordance with the terms thereof. The Borrower and the Guarantor each
represents and confirms that as of the date hereof, each has no claim or defense
(and the Borrower and the Guarantor each hereby waive every claim and defense)
against the Administrative Agent and the Lenders arising out of or relating to
the Credit Agreement and the other Loan Documents or the making, administration
or enforcement of the Revolving Credit Loans, the A Term Loans, the B Term Loans
or the Swing Line Loan and the remedies provided for under the Loan Documents.
6. No Waiver By Lenders. The Borrower and the Guarantor each
acknowledges that (a) by the execution by each of this Agreement, neither the
Administrative Agent nor the Lenders are waiving any Default, whether now
existing or hereafter occurring, disclosed or undisclosed, by the Borrower or
the Guarantor under the Loan Documents and (b) the Administrative Agent and the
Lenders reserve all rights and remedies available to them under the Loan
Documents and otherwise.
7. Miscellaneous.
(a) This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
(b) This Agreement and the right and obligations of
the parties hereunder shall be governed by and construed in accordance with, the
laws of the State of New York.
(c) This Agreement shall be deemed a Loan Document
under the Credit Agreement for all purposes.
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The parties hereto have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
XXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Title: Vice President and Chief
Financial Officer
XXXXXXX INTERNATIONAL GROUP INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Title: Vice President
BANK OF BOSTON CONNECTICUT, as
Administrative Agent, Lender, Issuing Lender
and Swing Line Lender
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Title: Vice President
SOCIETE GENERALE, as
Documentation Agent and Lender
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Title: Assistant Vice President
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Other Lenders:
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxx X. Skenk
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Name: Xxxxx X. Skenk
Title: Vice President
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: /s/ Xxxxxx Xxx
--------------------------------
Name: Xxxxxx Xxx
Title: Vice President
XXXXXX COMMERCIAL PAPER, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
IMPERIAL BANK
By: /s/ Xxx Xxxxxxx
--------------------------------
Name: Xxx Xxxxxxx
Title: Senior Vice President
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SOUTHERN PACIFIC THRIFT AND LOAN
ASSOCIATION
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
CRESCENT MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
PENNSYLVANIA LIFE INSURANCE
COMPANY
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
COBANK ACB
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Vice President
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