EXHIBIT 10.2
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment" or "Fourth
Amendment") has been executed and made effective as of the 15th day of July,
2003, (the "Fourth Amendment Effective Date"), by INDIAN-XXXXXX XX, a Swiss
corporation, ("Company"), and BANK ONE, NA, successor by merger to BANK ONE,
INDIANA, NATIONAL ASSOCIATION, a national banking association ("Bank").
RECITALS
1. Company and Bank (collectively, the "Parties") are parties to
a Credit Agreement, dated as of May 15, 2000, which has been amended by a First
Amendment to Credit Agreement dated as of May 14, 2001, a Second Amendment to
Credit Agreement dated as of May 13, 2002, and a Third Amendment to Credit
Agreement dated as of July 3, 2002 (as in effect immediately prior to the
execution of this Amendment, the "Existing Agreement").
2. The Parties have determined that it is in their best interests
to amend the Existing Agreement, effective as of the Fourth Amendment Effective
Date, as set forth in this Fourth Amendment, and subject to the terms and
conditions of this Fourth Amendment.
AGREEMENT
NOW THEREFORE, in consideration of the Recitals and for other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by each of the Parties to this Fourth Amendment, it is agreed as
follows:
1. Definitions. Terms which are defined in the Existing Agreement
shall have the same meanings in this Amendment as are ascribed to them in the
Existing Agreement, as amended hereby, excepting only those terms which are
expressly defined in this Amendment, which shall have the meanings ascribed to
them in this Amendment.
2. Amendments to Existing Agreement.
(a) Amendments to Definitions. The following definitions, which
are set forth in Section 1.02 of the Existing Agreement, are amended and
restated in their entirety as of the Third Amendment Effective Date to read as
follows:
"MAXIMUM AVAILABILITY" means as of the date any determination thereof
is to be made, the lesser of: (i) the Borrowing Base as of such date,
and (ii) the following amounts during the respective time periods
described:
$20,000,000.00 Fourth Amendment Effective Date through August 31,
2003
$30,000,000.00 September 1, 2003 through scheduled Maturity Date
"SCHEDULED MATURITY DATE" means October 15, 2003 and any subsequent
date to which the Commitment may be extended by Bank pursuant to the
terms of Section 2.01(d).
(b) New Definitions. Section 1.02 of the Existing Agreement is
hereby amended, effective as of the Fourth Amendment Effective Date, by adding
thereto in appropriate alphabetical sequence the following new definitions:
The term "FOURTH AMENDMENT" means the Fourth Amendment to Credit
Agreement, dated as of the Fourth Amendment Effective Date, executed by
and between the Parties.
The term "FOURTH AMENDMENT EFFECTIVE DATE" is used as defined in the
Preamble of the Fourth Amendment.
(c) Partial Amendment of Section 2.01(b). Section 2.01(b) of the
Existing Agreement is amended in part as the Fourth Amendment Effective Date by
amending and restating the first sentence thereof to read as follows:
"(b) Method of Borrowing. The Obligation of the Company to repay
the Loan shall be evidenced by a promissory note (the "NOTE") of the
Company (in form and substance substantially the same as EXHIBIT "I"
attached to the Fourth Amendment)."
3. Representations and Warranties. Company represents and
warrants to Bank that:
(a) (i) The execution, delivery and performance of this Amendment
and all agreements and documents delivered pursuant hereto by 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 writ presently in effect applying to Company, or its articles of
incorporation, or result in a breach of or constitute a default under any
material agreement, lease or instrument to which Company is a party or by which
it or any of its properties may be bound or affected; (ii) no authorization,
consent, approval, license, exemption or filing of a registration with any court
or governmental authority, department, agency or instrumentality is or will be
necessary to the valid execution, delivery or performance by 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
Company are the legal, valid and binding obligations of Company, as a signatory
thereto, and are enforceable against Company in accordance with the terms
thereof.
(b) After giving effect to the amendments contained in this
Amendment, the representations and warranties contained in Article III of the
Agreement are true and correct on and as of the Fourth Amendment Effective Date
with the same force and effect as if made on and as of the Fourth Amendment
Effective Date, except that the representation in Section 3.01(d) of the
Agreement shall be deemed to refer to the Financial Statements of Company most
recently delivered to Bank prior to the Fourth Amendment Effective Date.
(c) No Event of Default has occurred and is continuing or will
exist under the Agreement as of the Fourth Amendment Effective Date.
4. Conditions. The obligation of Bank to execute and to perform
this Amendment shall be subject to full satisfaction of the following conditions
precedent on or before the Fourth Amendment Effective Date:
(a) Copies, certified as of the Fourth Amendment Effective Date,
of such corporate documents of Company, as Bank may request evidencing necessary
corporate action by Company with respect to this Fourth Amendment.
(b) This Amendment and the Note dated as of the Fourth Amendment
Effective Date shall have been duly executed and delivered by Company to Bank
and this Amendment shall have been executed by Bank.
(c) Bank shall have received such additional agreements, documents
and certifications, fully executed by Company as may be reasonably requested by
Bank.
5. Supplemental Documents and Further Assurances. Company shall
at any time on or after the Fourth Amendment Effective Date, and upon the
request of Bank, execute and deliver, or cause to be executed and delivered,
such additional documents, agreements and instruments as may be reasonably
required by Bank or appropriate to give full force and effect to the intents and
purposes of this Amendment and the Agreement. Company's failure to comply with
the terms of this Section 5 within thirty (30) days after Bank's request shall
at Bank's sole discretion and election be deemed an Event of Default under
Section 7.01 of the Agreement.
6. Binding on Successors and Assigns. All of the terms and
provisions of this Amendment shall be binding upon and inure to the benefit of
the Parties and each of their respective
successors, assigns and legal representatives.
7. Governing Law/Entire Agreement/Survival. This Amendment is a
contract made under, and shall be governed by and construed in accordance with,
the laws of the State of Indiana applicable to contracts made and to be
performed entirely within such state and without giving effect to the choice or
conflicts of laws, rules or principles of any foreign or domestic jurisdiction.
This Amendment constitutes and expresses the entire understanding between the
Parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, commitments, inducements or conditions, whether
express or implied, oral or written. All covenants, agreements, undertakings,
representations and warranties made in this Amendment shall survive the
execution and delivery of this Amendment, and shall not be affected by any
investigation made by any Person. Except as expressly provided otherwise in this
Amendment, the Existing Agreement, as amended hereby, remains in full force and
effect in accordance with its terms and provisions.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly
executed and delivered by their respective duly authorized signatories as of the
Fourth Amendment Effective Date.
INDIAN-XXXXXX XX, BANK ONE, NA., successor by merger to
a corporation organized and existing BANK ONE, INDIANA,
under the laws of Switzerland NATIONAL ASSOCIATION
By: By:
__________________________ _______________________
Xxxx Xxxxxxxxx (Director)
______________________________________
("Company") (Printed Name and Title)
("Bank")
REVOLVING NOTE
$30,000,000.00 Dated: July 15, 2003
Due: October 15, 2003
FOR VALUE RECEIVED, on or before October 15, 2003, INDIAN-XXXXXX XX, a
corporation organized and existing under the laws of Switzerland ("COMPANY"),
unconditionally promises to pay to the order of BANK ONE, NA, successor by
merger to BANK ONE, INDIANA, NATIONAL ASSOCIATION, a national banking
association ("BANK"), at Bank One Tower, Mail Code IN 1-0046, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, XX 00000, or such other place as Bank may designate by
written notice to Company, the principal sum of Thirty Million Dollars and
00/100 ($30,000,000.00), or so much of such amount as may be disbursed by Bank
as Advances made on the Loan under the terms of the Credit Agreement (as
hereinafter defined), together with interest thereon at the rates and calculated
as provided in the Credit Agreement. Interest accruing on the principal balance
of this Note outstanding from time to time shall be due and payable by Company
on such dates and in accordance with the terms of the Credit Agreement. All
amounts paid on this Note shall be applied in accordance with the terms of the
Credit Agreement.
This Note is the "Note" referred to in the Credit Agreement, to which
reference is made for the conditions and procedures under which Advances,
payments, readvances and repayments may be made prior to the maturity of this
Note, for the terms upon which Company may make prepayments from time to time
and at any time prior to the maturity of this Note and the terms of any
prepayment premiums, penalties and other charges which may be due and payable in
connection therewith, and for the terms and conditions upon which the maturity
of this Note may be accelerated and the unpaid balance of principal and accrued
interest thereon declared immediately due and payable.
If any installment of principal or interest due under the terms of this
Note prior to maturity is not paid in full within ten (10) days of the date when
due, then Bank at its option and without prior notice to Company, may assess a
late payment fee in an amount equal to the greater of Twenty Five and 00/100
Dollars ($25.00) or Five Percent (5%) of the amount past due up to the maximum
of $1,500.00 per late charge. Each late payment fee assessed shall be due and
payable on the earlier of the next regularly scheduled interest payment date or
the maturity of this Note. Waiver by Bank of any late payment fee assessed, or
the failure of Bank in any instance to assess a late payment fee shall not be
construed as a waiver by Bank of its right to assess late payment fees
thereafter.
If any installment of interest due under the terms of this Note falls
due on a day which is not a Banking Day, the due date shall be extended to the
next succeeding Banking Day and interest will be payable at the applicable rate
for the period of such extension.
All amounts payable under this Note shall be payable without relief
from valuation and appraisement laws, and with all collection costs and
attorneys' fees.
The holder of this Note, at its option, may make extensions of time for
payment of the indebtedness evidenced by this Note, or approve reductions of the
payments thereon, release any Collateral securing payment of such indebtedness
or accept a renewal Note or Notes therefor, all without notice to Company or any
endorser(s), and Company and all endorsers hereby severally consent to any such
extensions, reductions, releases and renewals, all without notice, and agree
that any such action shall not release or discharge any of them from any
liability hereunder. Company and endorser(s), jointly and severally, waive
demand, presentment for payment, protest, notice of protest and
notice of nonpayment or dishonor of this Note and each of them consents to all
extensions of the time of payment thereof.
As used in this Note, the term "Credit Agreement" means that certain
Credit Agreement, dated as of May 15, 2000, by and between Company and Bank, as
the same has been or hereafter may be amended, modified and/or restated from
time to time and at any time. Terms which are defined in the Credit Agreement
and which are not otherwise defined in this Note shall have the same meanings in
this Note as are ascribed to them in the Credit Agreement. The principal amount
of this Note outstanding from time to time shall be determined by reference to
the books and records of Bank on which shall be recorded each Advance under the
Loan evidenced by this Note, and all payments by Company on account of such
Loan. Such books and records shall be deemed prima facie to be correct as to
such matters, absent demonstrative or manifest error.
This Note is made under and will be governed in all cases by the
substantive laws of the State of Indiana without reference to the choice or
conflicts of laws rules or principles of any foreign or domestic jurisdiction.
INDIAN-XXXXXX XX, a corporation organized
and existing under the laws of Switzerland
By: _____________________________________
Xxxx Xxxxxxxxx (Director)
