AMENDMENT No. 4 TO REVOLVING CREDIT AGREEMENT, dated as of
December 10, 1997, among XXXXX XXXXXX, INC., a corporation organized under the
laws of the State of Delaware (the "Borrower"), and THE CHASE MANHATTAN BANK,
a New York banking corporation ("Chase"), FLEET BANK, NATIONAL ASSOCIATION, a
national banking association organized under the laws of the United States of
America "("Fleet"), COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", New York Branch, a cooperative banking organization
organized under the laws of The Netherlands ("Rabobank Nederland"), and
EUROPEAN AMERICAN BANK, a New York banking corporation ("EAB"; collectively
with Chase, Fleet and Rabobank Nederland, the "Banks"), and Chase, as Agent
for the Banks.
RECITALS:
A. The parties hereto entered into that Revolving Credit Agreement,
dated as of January 31, 1997 (such agreement as it has been amended
through the date hereof, the "Credit Agreement").
B. The parties hereto desire to amend the Credit Agreement on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO REVOLVING CREDIT AGREEMENT.
This Amendment shall be deemed to be an amendment to the Credit
Agreement and shall not be construed in any way as a replacement or
substitution therefor. All of the terms and provisions of this Agreement are
hereby incorporated by reference into the Credit Agreement as if such terms
were set forth in full therein.
Section 1.1. The last sentence of Section 9.1 of the Credit Agreement
is hereby amended and restated to provide in its entirety as follows: "For
purposes of calculating compliance with this covenant, Consolidated Net Worth
and Net Income shall each be adjusted to add back non-recurring merger and
acquisition costs; provided, that the cumulative adjustment made pursuant to
this Section 9.1 during the term of this Agreement shall not exceed
$65,000,000."
Section 1.2. The last sentence of Section 9.3 of the Credit Agreement
is hereby amended and restated to provide in its entirety as follows: "For
purposes of calculating compliance with this covenant, Consolidated Net Profit
shall be adjusted to add back non-recurring merger and acquisition costs;
provided, that the cumulative adjustment made pursuant to this Section 9.3
during the term of this Agreement shall not exceed $65,000,000."
Section 1.3. The last sentence of Section 9.4 of the
Credit Agreement is hereby amended and restated to provided in its entirety as
follows: "For purposes of calculating compliance with this covenant,
Consolidated Operating Income shall be adjusted to add back non-recurring
merger and acquisition costs; provided, that the cumulative adjustment made
pursuant to this Section 9.4 during the term of this Agreement shall not
exceed $65,000,000."
Section 1.4. The last sentence of Section 9.5 of the Credit Agreement
is hereby amended and restated to provide in its entirety as follows: "For
purposes of calculating compliance with this covenant, Consolidated EBITDA
shall be adjusted to add back non-recurring merger and acquisition costs;
provided, that the cumulative adjustment made pursuant to this Section 9.5
during the term of this Agreement shall not exceed $65,000,000."
ARTICLE 2. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Banks that:
Section 2.1. Each and every of the representations and warranties set
forth in Article 6 of the Credit Agreement is true in all material respects as
of the date hereof with respect to the Borrower and, to the extent applicable,
the Guarantors and each of their Subsidiaries and with the same effect as
though made on the date hereof (except when such representation or warranty by
its terms relates to a specific date other than the date hereof), and is
hereby incorporated herein in full by reference as if fully restated herein in
its entirety. In addition, in order to induce the Banks to enter into this
Amendment, the Borrower hereby covenants, represents and warrants to the Banks
that since December 31, 1996, there has been no material adverse change in the
business, operations, assets or financial or other condition of the Borrower
or of the Borrower, the Guarantors and their Subsidiaries, taken as a whole.
Section 2.2. No Default or Event of Default, as defined in the
Agreement now exists except as specifically waived hereby.
Section 2.3. The Borrower has the requisite corporate power and
authority to enter into, perform and deliver this Amendment, and any other
documents, instruments, agreements or other writings to be delivered in
connection herewith. This Amendment, and all documents contemplated hereby or
delivered in connection herewith, have each been duly authorized, executed and
delivered and the transactions contemplated herein have been duly authorized
by all necessary corporate action.
Section 2.4. This Amendment and any other documents, agreements or
instruments now or hereafter executed and delivered to the Banks by the
Borrower in connection herewith constitute (or shall, when delivered,
constitute) valid and legally binding obligations of Borrower, each of which
is and shall be enforceable against Borrower in accordance with their
respective terms except to
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the extent that such enforcement may be limited by applicable bankruptcy,
insolvency or other similar laws affecting creditors rights generally or by
the effect of general principles of equity which may limit the enforceability
of equitable remedies (whether in a proceeding at law or in equity).
Section 2.5. No representation, warranty or statement by the Borrower
contained herein or in any other document to be furnished by the Borrower in
connection herewith contains, or at the time of delivery shall contain, any
untrue statement of material fact, or omits or at the time of delivery shall
omit to state a material fact necessary to make such representation, warranty
or statement not misleading.
Section 2.6. No consent, waiver or approval of any entity is or will
be required in connection with the execution, delivery, performance, validity
or enforcement or priority of this Amendment or any other agreements,
instruments or documents to be executed and/or delivered in connection
herewith or pursuant hereto.
Section 2.7. Except as previously disclosed to the Banks, there is no
claim, litigation, investigation or proceeding pending or threatened against
or otherwise materially affecting the Borrower's business. The Borrower's
performance of its obligations hereunder and/or the validity or enforceability
of this Amendment are not the subject of any suit, investigation or
proceeding, and the Borrower has no knowledge of any circumstances indicating
that any such suit, investigation or proceeding is likely or imminent.
ARTICLE 3. MISCELLANEOUS
Section 3.1. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing any
such counterpart.
Section 3.2. This Amendment shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York.
Section 3.3. Except as specifically amended hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the day and year first above written.
XXXXX XXXXXX, INC.
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as
Agent and a Bank
By:
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Name: Xxxxxx X. Xxxxx
Title: Vice President
FLEET BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
----------------------------
Name:
Title:
By:
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Name:
Title:
EUROPEAN AMERICAN BANK
By:
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Name:
Title:
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