AMENDMENT NO. 1
REVOLVING CREDIT AND TERM LOAN AGREEMENT
DATED AS OF NOVEMBER 29, 1996
Amendment No. 1 (this "Amendment") dated as of November 29, 1996 to the
Revolving Credit and Term Loan Agreement, dated as of August 22, 1995 (as
amended and in effect from time to time, the "Credit Agreement"), by and among
XXXXX XXXXX, INC. (the "Borrower"), an Indiana corporation having its principal
place of business at 0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx, XX 00000, and THE
FIRST NATIONAL BANK OF BOSTON, a national banking association and the other
financial institutions listed on Schedule 1 thereto and THE FIRST NATIONAL BANK
OF BOSTON as agent for itself and such other financial institutions. Terms which
are used herein without definition and which are defined in the Credit Agreement
shall have the same meaning herein as in the Credit Agreement.
WHEREAS, the Borrower has requested that the Banks amend certain terms
and conditions of the Credit Agreement and the Banks, subject to the terms and
conditions set forth below, have agreed to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, on the
terms and subject to the conditions set forth herein, the parties hereto hereby
agree as follows:
ss. 1. Amendment to the Credit Agreement, Section 5.6. Section 5.6 is
hereby amended by deleting the phrase "annually in advance" in line 5 of such
section 5.6 and substituting the phrase "quarterly in arrears" therefor.
ss.2. Affirmation and Acknowledgment of the Borrower, The Borrower
hereby ratifies and confirms all of its Obligations to the Banks and the
Borrower hereby affirms its absolute and unconditional promise to pay to the
Banks the Loans and all other amounts due under the Credit Agreement, as amended
hereby.
ss.3. Representation and Warranties. The Borrower represents and
warrants to each of the Banks and the Agent as follows:
ss.3.01 Representations and Warranties in Credit Agreement. The
representations and warranties of the Borrower contained in the Credit Agreement
(i) were true and correct when made and (ii) after giving effect to this
Amendment, continue to be true and correct on the date hereof (except to the
extent of changes resulting from transactions contemplated or permitted by the
Credit Agreement, as amended hereby, and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse,
and to the extent that such representations and warranties relate expressly to
an earlier date).
ss.3.02 Authority. The execution and delivery by the Borrower of
this Amendment and the performance by the Borrower of its agreements and
obligations under this Amendment are within its corporate authority,. have been
duly authorized by all necessary corporate action and do not and will not (i)
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contravene any provision of its charter documents or any amendment thereof, (ii)
conflict with, or result in a breach of any material term, condition or
provision of, or constitute a default under or result in the creation of any
mortgage, lien, pledge, 'Charge, security interest or other encumbrance upon any
of its property under any agreement, deed of trust, indenture, mortgage or other
instruments to which it is a party or by which any of its properties are bound
including, without limitation, any of the Loan Documents, (iii) violate or
contravene any provision of any law, statute, rule or regulation to which the
Borrower is subject or any decree, order or judgment of any court or
governmental or regulatory authority, bureau, agency or official applicable to
the Borrower, (iv) require any waivers, consents or approvals by any of its
creditors which have not been obtained, or (v) require any approval, consent,
order, authorization or license by, or giving notice to, or taking any other
action with respect to, any governmental or regulatory authority or agency under
any provision of any law, except those actions which have been taken or will be
taken prior to the date of execution of this Amendment.
ss.3.03 Enforceability of Obligations. This Amendment and the
Credit Agreement, as amended hereby, constitute the legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their respective terms, provided that (i) enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting the rights and remedies of creditors and (ii) the
availability of the remedies of specific performance and injunctive relief may
be subject to the discretion of the court before which any proceedings for such
remedies may be brought.
ss.4. Condition to Effectiveness. This Amendment shall become effective
as of the date hereof subject to the receipt by the Agent of duly executed
counterparts of this Amendment which, when taken together, bear the authorized
signatures of each of the Borrower, and the Majority Banks.
ss.5. Miscellaneous Provisions.
ss.5.01. Except as otherwise expressly provided by this
Amendment, all of the terms, conditions and provisions of the Credit Agreement
shall remain the same. It is declared and agreed by each of the parties hereto
that the Credit Agreement, as amended hereby shall continue in full force and
effect.
ss.5.02.THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN
AGREEMENT UNDER SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
ss.5.03. This Amendment may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
instrument. In making proof of this Amendment it shall not be necessary to
produce or account for more than one counterpart signed by each party hereto by
and against which enforcement hereof is sought.
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ss. 5.04. The Borrower agrees to pay to the Agent, on demand by
the Agent, all reasonable out-of-pocket costs and expenses incurred or sustained
by the Agent in connection with this Amendment (including reasonable legal
fees).
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
XXXXX XXXXX, INC.
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President-Finance &
Chief Financial Office
THE FIRST NATIONAL BANK OF
BOSTON, individually and as Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Director
ABN AMR0 BANK N.V.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. Xxxxxx
--------------------------- ------------------------------------
Name: Xxxxxx X. Xxxx Name: Xxxxx X. Xxxxxx
Title: Vice President Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
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NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President
SOCIETY NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
