1
THIRD AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT
THIS THIRD AMENDMENT TO REVOLVING CREDIT LOAN AGREEMENT, dated
June 30, 1995 (this "Amendment"), among XXXXXXXX CORPORATION, a Michigan
corporation (the "Company"), the Banks set forth on the signature pages hereof
(collectively, the "Banks" and individually, a "Bank"), and NBD BANK (formerly
known as NBD Bank, N.A.), as agent for the Banks (in such capacity, the
"Agent").
RECITALS
A. The parties hereto have entered into a Revolving Credit Loan
Agreement dated as of July 16, 1993 (as amended, the "Credit Agreement"), which
is in effect.
B. The Company desires to amend the Credit Agreement as herein
provided, to, among other matters, increase the amount of the Commitments
available under the Credit Agreement and add an additional Bank to provide the
increased Commitment amount, and the Banks and the Agent are willing to so amend
the Credit Agreement on the terms set forth herein.
AGREEMENT
Based upon these recitals, the parties agree as follows:
1. Amendment. Upon the Company satisfying the conditions set forth in
paragraph 4 (the date that this occurs being called the "effective date"), the
Credit Agreement shall be amended to read as follows:
(A) The definition of "Banks" in the first paragraph of the Credit
Agreement is deleted, a new definition of "Banks" is added to
Section 1.1, and the definition of "Commitment" is amended, each as
follows:
"Banks" means, collectively, NBD Bank (formerly known as NBD
Bank, N.A.), a Michigan banking corporation, Societe Generale, a
bank organized under the laws of France, and The First National Bank
of Chicago, a national banking association, and each may be
individually referred to as a Bank.
"Commitments" means the commitment of each Bank to make
Revolving Credit Loans pursuant to Section 2.1 and 3.3, and to
participate in Letter of Credit Advances through the Agent pursuant
to Section 2.1, in an amount not exceeding the respective commitment
amounts for each Bank set forth below, as such amount may be reduced
from time to time pursuant to Section 2.2:
2
NBD Bank $40,000,000
Societe Generale 15,000,000
The First National Bank of Chicago 15,000,000
(B) Section 8.1 is amended by deleting existing subsection (iii)
and renumbering existing subsection (iv) as subsection (iii).
(C) The address for notices to The First National Bank of Chicago
under Section 8.2 shall be as follows:
The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxxx
Facsimile No. (000) 000-0000
2. References to Credit Agreement. From and after the effective date
of this Amendment, references to the Credit Agreement in the Credit Agreement
and all other documents issued under or with respect thereto (as each of the
foregoing is amended hereby or pursuant hereto) shall be deemed to be references
to the Credit Agreement as amended hereby.
3. Representations and Warranties. The Company represents and warrants
to the Banks and the Agent that:
(a) (i) The execution, delivery and performance of this Amendment
and all agreements and documents delivered pursuant hereto by the Company have
been duly authorized by all necessary corporate action and do not and will not
violate any provision of any law, rule, regulation, order, judgment, injunction,
or award presently in effect applying to it, or of its articles of incorporation
or By-Laws, or result in a breach of or constitute a default under any material
agreement, lease or instrument to which the Company is a party or by which it or
its properties may be bound or affected; (ii) no authorization, consent,
approval, license, exemption or filing of a registration with any court or
governmental department, agency or instrumentality is or will be necessary to
the valid execution, delivery or performance by the Company of this Amendment
and all agreements and documents delivered pursuant hereto; and (iii) this
Amendment and all agreements and documents delivered pursuant hereto by the
Company are the legal, valid and binding obligations of the Company, enforceable
against it in accordance with the terms thereof.
(b) After giving effect to the amendments contained herein, the
representations and warranties contained in Article IV (other than Section 4.6)
of the Credit Agreement are true and correct on and as of the effective date
hereof with the same force and effect as if made on and as of such effective
date.
3
(c) The consolidated balance sheet of the Company and its
Subsidiaries and the consolidated statements of income, retained earnings, and
cash flows of the Company and its Subsidiaries for the fiscal year ended
June 30, 1994, certified by the Company's accountants, and the interim
consolidated balance sheet of the Company and its Subsidiaries and the interim
consolidated statements of income, retained earnings, and cash flows of the
Company and its Subsidiaries for the 9-month period ended March 31, 1995,
copies of which have been furnished to the Banks, fairly present the
consolidated financial condition of the Company and its Subsidiaries as at the
date thereof, and the consolidated results of operations of the Company and
its Subsidiaries for the respective periods indicated, all in accordance with
generally accepted accounting principles consistently applied (subject in the
case of the interim statements to year-end audit adjustments). There has
been no material adverse change in the business, properties, operations, or
condition, financial or otherwise, of the Company and its Subsidiaries, on a
consolidated basis, since June 30, 1994. There are no liabilities of the
Company or any Subsidiary, fixed or contingent, which are material but are
not reflected in such financial statements or the notes thereto.
(d) No Event of Default has occurred and is continuing or will
exist under the Credit Agreement as of the effective date hereof.
4. Conditions to Effectiveness. This Amendment shall not become
effective until the Agent has received the following documents and the following
conditions have been satisfied, each in form and substance satisfactory to the
Agent:
(a) Copies, certified as of the effective date hereof, of such
corporate documents of the Company, including articles of incorporation, bylaws
(or certifying as to the copies of the articles of incorporation and by-laws
previously delivered to the Banks), and incumbency certificates, and such
documents evidencing necessary corporate action by the Company with respect to
this Amendment and all other agreements or documents delivered pursuant hereto;
(b) A Revolving Credit Note, duly executed by the Company in favor
of The First National Bank of Chicago; and
(c) Such additional agreements and documents, fully executed by
the Company, as may be reasonably requested by the Agent.
5. Miscellaneous. The terms used but not defined herein shall have the
respective meanings ascribed thereto in the Credit Agreement. Except as
expressly amended hereby, the Credit Agreement and all other documents issued
under or with respect thereto are hereby ratified and confirmed by the Banks,
the Agent, and the Company and shall remain in full force and effect, and the
Company hereby acknowledges that it has no defense, offset or counterclaim with
respect thereto.
6. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties may execute this Amendment by signing any
counterpart.
4
7. Expenses. The Company agrees to pay and save the Agent and the
Banks harmless from liability for all costs and expenses of the Agent arising in
respect of this Amendment, including the reasonable fees and expenses of
Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, counsel to the Agent, in
connection with preparing and reviewing this Amendment and any related
agreements and documents.
8. Governing Law. This Amendment is a contract made under, and shall
be governed by and construed in accordance with, the laws of the State of
Michigan applicable to contracts made and to be performed entirely within such
state and without giving effect to the choice law principles of such state.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
XXXXXXXX CORPORATION NBD BANK
By: /s/Xxxxxxx X. Xxxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
----------------------- ---------------------
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxx
Its: Vice President Its: Vice President
SOCIETE GENERALE NBD BANK, as Agent
By: /s/Xxxxxx X. Xxxxxxx By: /s/Xxxxxxx X. Xxxxxxx
---------------------- ----------------------
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Its: Vice President Its: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/Xxxxxxxx X. Xxxxxx
----------------------
Xxxxxxxx X. Xxxxxx
Its: Vice President/Senior
Corporate Banker
