EXHIBIT 4.6
XXXXXX GROUP INC.
Revolving Credit Note
$35,000,000 New York, New York
December 6, 1996
FOR VALUE RECEIVED, the undersigned, XXXXXX GROUP INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of FLEET
NATIONAL BANK (the "Lender") on or before the Revolving Credit Maturity Date,
and at such earlier dates as may be required by the Agreement (as defined
below), the lesser of (i) the principal sum of THIRTY FIVE MILLION DOLLARS
($35,000,000) or (ii) the aggregate unpaid principal amount of all Revolving
Credit Loans made by the Lender to the Borrower from time to time pursuant to
the Agreement. The Borrower further promises to pay to the order of the Lender
interest on the unpaid principal amount hereof from time to time outstanding at
the rate or rates per annum determined pursuant to the Agreement, payable on the
dates set forth in the Agreement.
This Note is one of the "Revolving Credit Notes" as referred
to in, and is entitled to the benefits of, the Revolving Credit Agreement, dated
as of December 1, 1991, by and among the Borrower, the Lenders parties thereto
from time to time, and Mellon Bank, N.A., as Agent (as the same may be amended,
modified or supplemented from time to time, the "Agreement"), which among other
things provides for the acceleration of the maturity hereof upon the occurrence
of certain events and for prepayments in certain circumstances and upon certain
terms and conditions. Terms defined in the Agreement have the same meanings
herein.
Except as otherwise set forth in the Agreement, the Borrower
hereby expressly waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note and the Agreement, and an action for amounts
due hereunder or thereunder shall immediately accrue.
This Note shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to principles
of choice of law.
XXXXXX GROUP INC.
By /s/ X. Xxxxxx
--------------------------
Title: V.P. Treasurer
FIFTH AMENDMENT
TO
CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of December 1, 1996, by and between XXXXXX GROUP, INC. the
"Borrower"), the Lenders parties to the Credit Agreement (as defined below) from
time to time (the "Lenders"), and MELLON BANK, N.A., a national banking
association, as Agent (in such capacity, the "agent").
WHEREAS, the Agent, the Lenders and the Borrower are parties
to a certain Credit Agreement dated as of December 1, 1991 (as amended, the
"Credit Agreement"); and
WHEREAS, the Borrower has requested that the Lenders extend
the Revolving Credit Maturity Date for a period of one year;
WHEREAS, the parties desire to add The First National Bank of
Boston as a Lender under the Credit Agreement, as amended hereby;
WHEREAS, the Agent, the Lenders and the Borrower desire to
amend the Credit Agreement as set forth herein; and
WHEREAS, all words and terms used in this Amendment which are
defined in the Credit Agreement are used herein with the same meanings unless
otherwise defined herein or required by the context;
NOW, THEREFORE, in consideration of the foregoing premises and
intending to be legally bound, the Agent, the Lenders and the Borrower hereby
agree as follows:
Section 1. Extension of Revolving Credit Maturity Date.
Pursuant to Section 2.03 of the Credit Agreement and as requested by the
Borrower in a letter to the Agent dated October 15, 1996, the Lenders and the
Agent hereby agree to extend the Revolving Credit Maturity Date for a period of
one year. On and after December 6, 1996 (the "Effective Date"), as provided in
Section 2.03 of the Credit Agreement, the Revolving Credit Maturity Date shall
be December 6, 2001, as such date may be further extended by the Lenders
pursuant to Section 2.03 of the Credit Agreement.
Section 2. Amendments to Credit Agreement.
The Credit Agreement is hereby amended as follows:
(a) Section 1.01 is amended as follows: The term "Reference
Banks" is amended to substitute The First National Bank of Chicago" for "NBD
Bank, N.A."
(b) Section 2.01(a) is hereby amended by substituting the
figure "$150,000,000" for the figure "$100,000,000" in the last sentence
thereof.
(c) The Revolving Credit Committed Amount of each Lender shall
be increased such that the Total Revolving Credit Committed Amount for each
Lender shall be as follows:
Mellon Bank, N.A. $35,000,000
Fleet National Bank 35,000,000
The Chase Manhattan Bank 20,000,000
The First National Bank
of Chicago 20,000,000
KeyBank 20,000,000
The First National
Bank of Boston 20,000,000
(d) From and after the Effective Date of this Amendment, the
Commitment Percentage for each Lender shall be as follows:
Mellon Bank, N.A. 23.3334%
Fleet National Bank 23.3334%
The Chase Manhattan Bank 13.3333%
The First National Bank
of Chicago 13.3333%
KeyBank 13.3333%
The First National
Bank of Boston 13.3333%
(e) Section 2.02(a) is hereby amended by deleting the first
sentence in its entirety and substituting the following therefor:
"The Borrower shall pay to the Agent for the account of each
Lender a commitment fee (the "Commitment Fee") equal to (x)
0.115% per annum if the Borrower's Consolidated Leverage Ratio
is less than 1.15:1, (y) 0.150% per annum if the Borrower's
Consolidated Leverage Ratio is equal to or greater than l.15:1
but less than or equal to 1.40:1 and (z) 0.180% per annum if
the Borrower's Consolidated Leverage Ratio is greater than
1.40:1 (based on a year of 365 or 366 days and actual days
elapsed), for each day from and including the Effective Date
and to but not including the Revolving Credit Maturity Date,
of the amount (not less than zero) equal to (i) such Lender's
Revolving Credit Committed Amount on such day, minus (ii) such
Xxxxxx's Revolving Credit Loans outstanding on such day.
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(f) Section 2.06(b) is hereby deleted and the following
substituted therefor:
"(b) Applicable Margins. The Applicable Margins and interest
rate option for any day shall mean the percentages set forth
below:
(i) the Applicable Margin for each day on which the Borrower's
Consolidated Leverage Ratio is less than 1.15:1 shall mean the
percentage set forth below:
Interest Rate Option Applicable Margin
Base Rate Option O.000%
CD Rate Option 0.425%
Euro-Rate Option 0.300%
(ii) the Applicable Margin for each day on which the
Borrower's Consolidated Leverage Ratio is equal to or greater
than 1.15:1 but less than or equal to 1.40:1 shall mean the
percentage set forth below:
Interest Rate Option Applicable Margin
Base Rate Option O.000%
CD Rate Option 0.475%
Euro-Rate Option 0.350%
and
(iii) the Applicable Margin for each day on which the
Borrower's Consolidated Leverage Ratio is greater than 1.40:1
shall mean the percentage set forth below:
Interest Rate Option Applicable Margin
Base Rate Option 0.075%
CD Rate Option 0.600%
Euro-Rate Option 0.500%"
Section 3. Conditions. The obligation of the Agent and the
Lenders to extend the Revolving Credit Maturity Date shall be subject to
satisfaction by the Borrower of the following conditions precedent:
(a) The Agent shall have received (with a copy for
each Lender) the following documents dated as of the date of
the issuance of the Amendment (the "Closing Date") and in form
and substance satisfactory to the Lenders:
(i) An executed counterpart of this Amendment;
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(ii) Executed original Revolving Credit Notes,
payable to the order of each Lender in the face amount of such
Xxxxxx's Revolving Credit Committed Amount, as set forth
herein, in substantially the form attached as Exhibit A to the
Credit Agreement with the blanks appropriately filled; and
(iii) A certificate signed by a duly authorized
officer of the Borrower stating that (A) the representations
and warranties contained in Article III of the Credit
Agreement (except for Section 3.06 which continues to be true
as of the date set forth therein) are correct on and as of the
Closing Date and as though made on and as of the Closing Date
and (B) no Event of Default and no event, act or omission
which, with the giving of notice or the lapse of time or both,
would constitute such an Event of Default has occurred and is
continuing or would result from the execution and delivery of
the Amendment.
(b) The Agent shall have received (with a copy for
each Lender) such other approvals, certificates, opinions or
documents, in form and substance satisfactory to the Lenders,
as the Lenders may reasonably request.
Section 4. Effect of Amendment. The Credit Agreement, as
amended by this Amendment, is in all respects ratified, approved and confirmed
and shall, as so amended, remain in full force and effect. From and after the
date hereof, all references in any document or instrument to the Credit
Agreement shall mean and include the Credit Agreement, as amended by this
Amendment.
Section 5. Governing Law. This Amendment shall be governed by
and shall be interpreted and enforced in accordance with the laws of the State
of New York.
Section 6. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original, and all of which counterparts, taken together,
shall constitute but one and the same Amendment.
Section 7. Expenses. The Borrower shall reimburse the Lenders
for all costs and expenses (including fees and expenses of counsel to the Agent)
incurred in connection with this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized.
XXXXXX GROUP, INC.
By /s/ X. Xxxxxx
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Title Vice President, Treasurer
MELLON BANK, N.A.,
individually and as Agent
By
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Title
------------------------
FLEET NATIONAL BANK
By
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Title
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THE CHASE MANHATTAN BANK
By
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Title
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THE FIRST NATIONAL BANK
OF CHICAGO
By
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Title
------------------------
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KEYBANK
By
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Title
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THE FIRST NATIONAL BANK
OF BOSTON
By
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Title
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