AMENDMENT XX. 0
XXXXXXXXX XX. 0 (this "Amendment"), dated as of September 30, 1998,
to that certain Second Amended and Restated Credit Agreement, dated as of
November 19, 1997 (as amended, modified or supplemented to the date hereof, the
"Credit Agreement"), among XXXXXXX-XXXXXX INTERNATIONAL INC., a Delaware
corporation (together with its successors, "Holding"); XXXXXXX-XXXXXX, INC., a
Delaware corporation (together with its successors, "US Borrower");
XXXXXXX-XXXXXX HOLDING AG, a corporation organized under the laws of
Switzerland, (together with its successors, "CH Borrower" and, together with US
Borrower, the "Borrowers"); SAFELINE HOLDING COMPANY, an unlimited liability
company organized under the laws of the United Kingdom ("UK Borrower");
XXXXXXX-XXXXXX INC., a Canadian corporation ("Canadian Borrower"); the several
SUBSIDIARY SWING LINE BORROWERS named therein; the several financial
institutions from time to time party thereto (the "Lenders"); XXXXXXX XXXXX &
CO., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, as Arranger and
Documentation Agent, THE BANK OF NOVA SCOTIA, as Administrative Agent, CREDIT
SUISSE FIRST BOSTON, as a co-agent and as a Swing-Line Lender, ABN AMRO BANK,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, BANKERS TRUST COMPANY, COMPAGNIE
FINANCIERE DE CIC ET DE L'UNION EUROPEENNE, XXXXXXX SACHS CREDIT PARTNERS L.P.,
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY AND SOCIETE GENERAL (each a co-agent
and, together with Credit Suisse First Boston in its capacity as a co-agent, the
"Co-Agents"). Capitalized terms used and not otherwise defined herein shall have
the meanings assigned to those terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS the Borrowers, UK Borrower, Canadian Borrower, the
Subsidiary Swing Line Borrowers and the Lenders wish to amend the Credit
Agreement pursuant to Section 11.1 of the Credit Agreement as herein provided;
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION ONE - AMENDMENTS.
1.1 (a) Section 1.1 is amended by
(1) replacing subsection (a)(v)(5) of the definition of "EBITDA"
with the following:
"any non-recurring cash charges incurred in connection
with any Acquisition by US Borrower or any Subsidiary (other
than the M-T Acquisition or the Safeline Acquisition)
occurring after the Second Amendment and Restatement Date in
an amount not to exceed U.S. $15.0 million per Acquisition
and U.S. $35.0 million in the aggregate,"; and
(2) replacing "U.S. $50.0 million" in the definition of "Swing Line
Commitment" with "U.S. $75.0 million".
(b) Section 2.1(d) is amended by replacing "(the "UK Borrower
Sublimit")" in clause (5) thereof with the following:
"plus the amount invested by UK Borrower pursuant to Section 8.4(x)
(together, the "UK Borrower Sublimit")".
(c) Section 2.3(d) is amended by replacing the word "four" in
the last sentence thereof with the word "six".
(d) Section 2.5(e) is amended by inserting after the first sentence
thereof the following:
"The Euro unit shall be an Agreed Alternative Currency.".
(e) Section 2.16(a) is amended by replacing "U.S. $50.0
million" with "U.S. $75.0 million" and by replacing the
last sentence thereof with the following:
"Notwithstanding any provision in the Credit Agreement to the
contrary, all Swing Line Loans made in U.S. Dollars shall bear
interest based on the Alternate Base Rate or such other rate as may
be agreed to in writing by the Borrower and the US Swing Line
Lender."
(f) Section 7.11 is amended by deleting from the second
sentence thereof "up to U.S. $100.0 million thereof may be used
(g) Section 7.12(B) is amended by:
(1) replacing "U.S. $1.0 million" with "U.S. $5.0 million"; and
(2) inserting immediately before clause (i) thereof the following:
", in each case within 60 days after such creation or
acquisition,".
(h) Section 7.14 is amended by replacing "as soon as reasonably
practicable" with "within 60 days".
(i) Section 7.20 is amended by inserting immediately before clause
thereof the following: ", in each case within 60 days of such
creation or acquisition,".
(j) Section 8.1(v) is amended by replacing "subsection 8.5(n)" with
"subsection 8.5(g)(ii)".
(k) Section 8.4(f) is amended by:
(1) inserting the word "and" immediately before clause (ii)
thereof;
(2) replacing "U.S. $10.0 million" with "U.S.
$25.0 million" in clause (ii) thereof; and
(3) deleting clause (iii) thereof and the word "and"
immediately prior to clause (iii).
(l) Section 8.4(p) is deleted and replaced with the following:
"Investments (including Intercompany Indebtedness and Guaranty
Obligations) by US Borrower or any Subsidiary in any Subsidiary which is
not a Qualified Subsidiary Guarantor or which is not a Wholly-Owned
Subsidiary of US Borrower and not otherwise permitted by subsections (e),
(q), (v) and (w) of this Section 8.4, not to exceed an aggregate amount
outstanding at any time (net of returns, dividends in cash, net cash
proceeds on sale or other cash realizations thereof), when combined with
Investments made pursuant to Section 8.4(e), of the Dollar Equivalent
amount of U.S. $35.0 million; provided, however, that upon request of the
Required Lenders, all such Intercompany Indebtedness shall be evidenced by
subordinated promissory notes in form, and shall be pledged to the
Administrative Agent pursuant to documentation, reasonably satisfactory to
the Required Lenders;".
(m) Section 8.5(g) is amended by inserting "(i)" at the
beginning thereof, by replacing "subsection 8.5(n)
below" with "clause (ii) hereof", and by inserting the
following at the end of the Section:
"and (ii) Indebtedness of the Chinese Subsidiaries pursuant to local
working capital facilities and other Indebtedness not to exceed in the
aggregate at any time outstanding for all Chinese Subsidiaries the Dollar
Equivalent amount of U.S. $15.0 million; provided, however, that such
amount may be increased by an amount up to U.S. $10.0 million so long as a
corresponding reduction is made to the amount available under clause (i)
hereof".
(n) Section 8.5 (h) is amended by replacing "U.S. $10.0
million" with "U.S. $20.0 million".
(o) Section 8.5(l) is amended by replacing "U.S. $10.0 million"
with "U.S. $20.0 million".
(p) The word "and" is inserted at the end of Section 8.5(m), and
Section 8.5(n) is deleted.
(q) Section 8.22 is amended by deleting clause (i) thereof and
renumbering clauses (ii)-(iv) as new clauses (i)-(iii), and by
inserting at the beginning of new clause (i) and at the
beginning of new clause (ii) thereof the following:
"within 60 days after such establishment, creation or acquisition,".
SECTION TWO - CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT.
2.1. The amendments provided for in Section One hereof shall become
effective on the date on which the Administrative Agent shall have received duly
executed counterparts hereof from the Borrowers, UK Borrower, Canadian Borrower,
the Subsidiary Swing Line Borrowers and the Required Lenders. The effectiveness
of this Amendment (other than Section Four) is conditioned upon the accuracy of
the representations and warranties set forth in Section Three.
SECTION THREE - REPRESENTATIONS AND WARRANTIES.
3.1. In order to induce the Lenders to enter into this Amendment, the
Borrowers, UK Borrower, Canadian Borrower and the Subsidiary Swing Line
Borrowers represent and warrant to the Administrative Agent and each of the
Lenders that after giving effect to this Amendment, (i) no Unmatured Event of
Default or Event of Default has occurred and is continuing; and (ii) all of the
representations and warranties in the Credit Agreement after giving effect to
this Amendment are true and correct in all material respects on and as of the
date hereof unless such representation and warranty expressly indicates that it
is being made as of another date, in which case such representation and warranty
was true and correct as of such date. Holding, the Borrowers, UK Borrower,
Canadian Borrower and the Subsidiary Swing Line Borrowers further represent and
warrant (which representations and warranties shall survive the execution and
delivery hereof) to the Administrative Agent and each Lender that:
(i) Each Credit Agreement Loan Party has full corporate or other
power and authority, legal right to execute, deliver and perform its obligations
under this Amendment and has taken all actions necessary to authorize the
execution, delivery and performance of its obligations under this Amendment;
(ii) No consent of any person other than the Lenders, and no
consent, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required in connection with the execution, delivery, performance of any Credit
Agreement Loan Party's obligations, validity or enforceability of this
Amendment;
(iii) This Amendment has been duly executed and delivered on
behalf of each Credit Agreement Loan Party by a duly authorized officer of the
respective Credit Agreement Loan Party and constitutes a legal, valid and
binding obligation of each Credit Agreement Loan Party enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally; and
(iv) The execution, delivery and performance of this Amendment
will not violate any requirement of law or Contractual Obligation of any Credit
Agreement Loan Party.
SECTION FOUR - MISCELLANEOUS.
4.1. Except as herein expressly amended, waived or consented to, the
Credit Agreement and all other agreements, documents, instruments and
certificates executed in connection therewith are ratified and confirmed in all
respects and shall remain in full force and effect in accordance with their
respective terms.
4.2. All references to the Credit Agreement contained in any of the
Basic Documents shall mean the Credit Agreement as amended hereby, and as the
same may at any time be amended, amended and restated, supplemented or otherwise
modified from time to time and as in effect.
4.3 This Amendment may be executed by the parties hereto in one or
more counterparts, each of which shall be an original and all of which shall
constitute one and the same agreement.
4.4. Each of the Credit Agreement Loan Parties agree to reimburse
the Administrative Agent and the Arranger and Documentation Agent for their
out-of-pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Administrative Agent and the Arranger and Documentation Agent.
4.5. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS.
[Remainder of Page Intentionally Left Blank]
S-14
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
XXXXXXX-XXXXXX, INC.,
as a Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX HOLDING AG,
as a Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX INTERNATIONAL INC.,
as Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
SAFELINE HOLDING COMPANY,
as UK Borrower and as a
Subsidiary Swing Line Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX INC.,
as Canadian Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX MANAGEMENT
HOLDING DEUTSCHLAND GMBH,
as a Subsidiary Swing Line
Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX S.A., VEROFLAY,
as a Subsidiary Swing Line
Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX K.K., TAKARAZUKA,
as a Subsidiary Swing Line
Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX GMBH, GREIFENSEE,
as a Subsidiary Swing Line
Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX-XXXXXX LTD., LEICESTER
as a Subsidiary Swing Line
Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
SAFELINE LIMITED,
as a Subsidiary Swing Line
Borrower
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title:
XXXXXXX XXXXX & CO., XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
as Arranger and Documentation
Agent
By: /s/ Xxxxxxxxxxx Xxxxxxx
Name: Xxxxxxxxxxx Xxxxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/ J.R. Trimble
Name: J.R. Trimble
Title: Senior Relationship Manager
THE BANK OF NOVA SCOTIA,
as Canadian Agent
By: /s/ J.R. Trimble
Name: J.R. Trimble
Title: Senior Relationship Manager
CREDIT SUISSE FIRST BOSTON,
as Co-Agent
By: /s/
Name:
Title:
By: /s/
Name:
Title
ABN AMRO BANK N.V.,
as Co-Agent
By: /s/ Xxxxx X. XxXxxxxx, Xx.
Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxxxxxxx X. Helueci
Name: Xxxxxxxxxxx X. Helueci
Title: Vice President
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
as Co-Agent
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
BANKERS TRUST COMPANY,
as Co-Agent
By: /s/ Xxxxxxx LaCrippo
Name: Xxxxxxx LaCrippo
Title: Vice President
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE,
as Co-Agent
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Vice President
XXXXXXX SACHS CREDIT PARTNERS L.P.,
as Co-Agent
By: _____________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY,
as Co-Agent
By: /s/ Takuya Honjo
Name: Takuya Honjo
Title: Senior Vice President
SOCIETE GENERALE,
as Co-Agent
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
BAYERISCHE HYPO-UND VEREINSBANK AG,
as a Lender
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
DG BANK DEUTSCHE GENOSSENSHAFTSBANK AG,
as a Lender
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY,
as a Lender
By: _____________________
Name:
Title:
NATEXIS BANQUE BFCE,
as a Lender
By: _____________________
Name:
Title:
THE FUJI BANK AND TRUST COMPANY,
as a Lender
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Executive Vice President
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY,
as a Lender
By: /s/ Takuya Honjo
Name: Takuya Honjo
Title: Senior Vice President
XXXXXXX XXXXX CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxxxxxx Xxxxxxx
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
XXXXXXX SACHS INTERNATIONAL BANK,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
CREDITANSTALT CORPORATE FINANCE INC.,
as a Lender
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
LTCB TRUST COMPANY,
as a Lender
By: /s/ Koji Sasayama
Name: Kojy Sasayama
Title: Senior Vice President
COMPAGNIE FINANCIERE DE CIC
ET DE UNION EUROPEENNE,
as a Lender
By: _____________________
Name:
Title:
By: _____________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: _____________________
Name:
Title:
COMMERZBANK AG, NEW YORK BRANCH
and/or GRAND CAYMAN BRANCHES,
as a Lender
By: /s/ Andreas Schwung
Name: Andreas Schwung
Title: Vice President
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Assistant Treasurer
NATIONAL CITY BANK,
as a Lender
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Assistant Vice President
ROYAL BANK OF SCOTLAND PLC,
as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
WESTDEUTSCHE GIROZENTRALE LANDESBANK,
as a Lender
By: /s/ Kheil X. XxXxxxxx
Name: Kheil X. XxXxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx III
Name: Xxxxxx X. Xxxxx III
Title: Associate
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA,
as a Lender
By: _____________________
Name:
Title:
SOCIETE GENERALE,
as a Lender
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Director
CRESTAR BANK,
as a Lender
By: /s/ Xxxxxxxx
Name: Xxxxxxxx
Title: Vice President
CREDIT AGRICOLE INDOSUEZ,
as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx, F.V.P.
Title: Head of Corporate Banking
Chicago
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Senior Vice President, Branch
Manager
THE SUMITOMO BANK LTD.
CHICAGO BRANCH,
as a Lender
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
ABN AMRO BANK N.V.,
as a Lender
By: /s/ Xxxxx X. XxXxxxxx, Xx.
Name: Xxxxx X. XxXxxxxx, Xx.
Title: Vice President
By: /s/ Xxxxxxxxxxx X. Helueci
Name: Xxxxxxxxxxx X. Helueci
Title: Vice President
XXXXXX BANK LTD, NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
as a Lender
By: _____________________
Name:
Title:
THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANQUE PARIBAS,
as a Lender
By: /s/ Xxxxx X. Hollowski
Name: Xxxxx X. Hollowski
Title: Vice President
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Director
By: /s/
Name:
Title:
AMSOUTH BANK,
as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Commercial Banking Officer
DLJ CAPITAL FUNDING, INC.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
MICHIGAN NATIONAL BANK,
as a Lender
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Relationship Manager
STAR BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
