EXHIBIT 10.1
EXECUTION COPY
AMENDMENT NO. 1 TO
CREDIT AGREEMENT
This AMENDMENT NO. 1 TO CREDIT AGREEMENT, dated as of
April 3, 1998, is entered into by and among Xxxxxxx Instruments,
Inc., a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders party to
the Credit Agreement referred to below (each a "Lender Party",
and, collectively, the "Lender Parties") whose signatures appear
below, Citicorp USA, Inc., a Delaware corporation, as agent for
such Lender Parties (the "Agent"), and Citicorp Securities, Inc.,
a Delaware corporation, as arranger (the "Arranger").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lender Parties, the Agent and
the Arranger have entered into a Credit Agreement dated as of
October 31, 1997 (such Credit Agreement, as amended, supplemented
or otherwise modified through the date hereof, being hereinafter
referred to as the "Credit Agreement"). Capitalized terms not
otherwise defined in this Amendment have the same meanings as
specified in the Credit Agreement.
(2) Subject to the terms and conditions noted below,
the Borrower and the Required Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
NOW THEREFORE, the Borrower and the Required Lenders
hereby agree as follows:
SECTION 1. Amendments to Credit Agreement. The Credit
Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2,
hereby amended as follows:
(a) The definition of "Net Cash Proceeds" in Section
1.01 thereof is hereby amended by inserting in clause (i) of the
second sentence thereof after the phrase "or Equipment for Resale
or leases, bailment arrangements or rental agreements with
respect thereto", the following phrase:
"(with the exception of any Net Cash Proceeds from the
sale by the Borrower or any Guarantor Subsidiary of any
Equipment for Resale in accordance with Section
5.02(d)(v)(A) hereof)".
(b) Section 2.06(b)(iv) thereof is hereby deleted in
its entirety and replaced by the following:
"(iv) [Intentionally Deleted]."
(c) Section 5.02(a)(xv) thereof is hereby deleted in
its entirety and replaced by the following Section:
"(xv) any Liens arising as a result of a sale of
assets by the Borrower or any Subsidiary of the
Borrower pursuant to Section 5.02(d)(v) or
(vi), provided that (A) in the case of clause (B) of
Section 5.02(d)(v) and Section 5.02(d)(vi), such Liens
shall cover only the assets sold and the proceeds
thereof, and (B) in the case of clause (A) of
Section 5.02(d)(v), such Liens shall only cover
the assets sold and the proceeds thereof and any
leases, bailment arrangements, rental agreements or
other contracts covering such assets or any services,
materials or supplies furnished in connection therewith;".
(d) Section 5.02(d)(v) thereof is hereby deleted in
its entirety and replaced by the following Section:
"(v) (A) the sale by the Borrower or any Guarantor
Subsidiary of any Equipment for Resale for cash in an
amount not less than the net book value thereof, provided
that such property is simultaneously leased back to the
Borrower or such Guarantor Subsidiary (pursuant to a
lease that is not a Capitalized Lease) by the buyer thereof,
and (B) the sale or securitization by the Borrower or any
Guarantor Subsidiary of customer leases and other
receivables for cash in an amount not less than the
fair market value thereof (after taking into account
customary reserves for losses, yield protection, fees
and similar matters);".
(e) Section 5.04(a) thereof is hereby amended by
deleting the table appearing in the middle of such Section and
inserting in lieu thereof the following table:
"Fiscal Quarter Ending Amount
---------------------- ------
December 31, 1997 $69,000,000
March 31, 1998 $69,000,000
June 30, 1998 $84,000,000
September 30, 1998 $99,000,000
December 31, 1998 $134,000,000
March 31, 1999 $149,000,000
June 30, 1999 $174,000,000
September 30, 1999 $199,000,000
December 31, 1999 $234,000,000;".
SECTION 2. Conditions of Effectiveness. This
Amendment shall become effective as of the date first above
written when, and only when, the Agent shall have received
counterparts of this Amendment executed by the Borrower and the
Required Lenders (or as to any of the Lender Parties, advice
satisfactory to the Agent that such Lender party has executed
this Amendment) and counterparts of the consent attached hereto
(the "Consent") executed by each Guarantor Subsidiary. Section 1
hereof shall become effective when, and only when, the Agent
shall have additionally received all of the following documents,
in form and substance satisfactory to the Agent and insufficient
copies for each Lender party:
(a) Certified copies of (i) the resolutions of the Board of
Directors of (A) the Borrower approving this Amendment and the matters
contemplated hereby and (B) each Guarantor Subsidiary evidencing
approval of the Consent and the matters contemplated hereby and thereby
and (ii) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Amendment, the
Consent and the matters contemplated hereby and thereby.
(b) A certificate of the Secretary or an Assistant Secretary of
the Borrower and each Guarantor Subsidiary certifying the names and true
signatures of the officers of the Borrower and each Guarantor Subsidiary
authorized to sign this Amendment and the Consent and the other
documents to be delivered hereunder and thereunder.
(c) A favorable opinion of corporate counsel for the Borrower,
to the effect that this Amendment has been duly authorized, executed and
delivered by the Borrower and a favorable opinion of corporate counsel
for the Guarantor Subsidiaries to the effect that the Consent has been
duly authorized, executed and delivered by each Guarantor Subsidiary.
(d) A certificate signed by a duly authorized officer
of the Borrower stating that:
(i) The representations and warranties contained in each
Loan Document are correct on and as of the date of such
certificate as though made on and as of such date other than any
such representations or warranties that, by their terms, refer to
a date other than the date of such certificate; and
(ii) No event has occurred and is continuing that
constitutes a Default.
SECTION 3. Reference to and Effect on the Loan
Documents. (a) On and after the effectiveness of this Amendment,
each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the
other Loan Documents to "the Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement,
as amended by this Amendment.
(b) The Credit Agreement, as specifically amended by
this Amendment, is and shall continue to be in full force and
effect and is hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of any right, power or remedy of any Lender Party or
the Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
SECTION 4. Costs, Expenses. The Borrower agrees to
pay on demand all costs and expenses of the Agent in connection
with the preparation, execution, delivery and administration,
modification and amendment of this Amendment and the other
instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel
for the Agent) in accordance with the terms of Section 8.04 of
the Credit Agreement.
SECTION 5. Execution in Counterparts. This Amendment
may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed shall be deemed to be a original and all of which taken
together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment.
SECTION 6. Governing Law. This Amendment shall be
governed by, and construed in accordance with, the laws of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
XXXXXXX INSTRUMENTS, INC.,
As Borrower
By /s/ XXXX XXXXX
Xxxx Xxxxx
Title: Treasurer
