SECOND AMENDMENT DATED
AS OF SEPTEMBER 29, 1995
TO CREDIT AGREEMENT
DATED AS OF JUNE 16, 1993
THIS AMENDMENT, dated as of September 29, 1995, is entered into among
XXXXXX CORPORATION, a Delaware corporation (the "Company"), the various
financial institutions parties hereto (collectively, the "Lenders"), and BANK OF
AMERICA ILLINOIS (f/k/a CONTINENTAL BANK), an Illinois banking corporation
having its principal office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
("BAI"), as agent ("Agent"), for the Lenders.
R E C I T A L S:
A. The Company, the Agent and the Lenders have entered into a Credit
Agreement, dated as of June 16, 1993, as amended by a First Amendment thereto
dated as of August 14, 1994 (said Credit Agreement, as heretofore and hereby
amended, shall hereinafter be referred to as the "Agreement"; the terms defined
in the Agreement and not otherwise defined herein shall be used herein as
defined in the Agreement).
B. The Company, the Agent and the Lenders wish to amend
the Agreement to revise the definition of Cash Equivalent
Investment and to otherwise amend certain provisions of the
Agreement.
C. Therefore, the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT.
1.1 Global Amendment. All references in the Agreement
to "Continental Bank N.A." or "Continental" are hereby deleted as
of the date hereof and "Bank of America Illinois" and "BAI",
respectively, substituted therefor.
1.2 Section 1.1 of the Agreement - Cash Equivalent Investment.
The definition of "Cash Equivalent Investment" in Section 1.1 of the Agreement
is hereby amended as of the date hereof by deleting it in its entirety and
substituting the following therefor:
"'Cash Equivalent Investment' means, at any time, any
Investment that is classified under GAAP as a short
term investment and consistent with such Person's
internal guidelines regarding liquidity and short
term investments".
2. WARRANTIES. To induce the Agent and the Lenders to
enter into this Amendment, the Company warrants that:
2.1 Authorization. The Company is duly authorized to execute
and deliver this Amendment and is and will continue to be duly authorized to
borrow monies under the Agreement, as amended hereby, and to perform its
obligations under the Agreement, as amended hereby.
2.2 No Conflicts. The execution and delivery of this
Amendment, and the performance by the Company of its obligations under the
Agreement, as amended hereby, do not and will not conflict with any provision of
law or of the articles of incorporation or by-laws of the Company or of any
agreement binding upon the Company.
2.3 Validity and Binding Effect. The Agreement, as amended
hereby, is a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
3. CONDITIONS PRECEDENT TO AMENDMENTS. The amendments
contemplated by Section 1 thereof are subject to the satisfaction
of each of the following conditions precedent:
3.1 Documentation. The Company shall have delivered to the
Agent (with sufficient copies for each Lender) all of the following, each duly
executed and dated the closing date hereof, in form and substance satisfactory
to the Agent:
(a) Amendment. Counterparts of this Amendment.
(b) Certificate. A certificate of the Treasurer of
the Company as to the matters set out in Sections 3.2 and 3.3
hereof.
(c) Other. Such other documents as the Agent may
reasonably request.
3.2 No Default. As of the closing date hereof, no
Default shall have occurred and be continuing.
3.3 Warranties. As of the closing date hereof, the warranties
in Article VI of the Agreement and in Section 2 of this Amendment shall be true
and correct as though made on such date, except for such changes as are
specifically permitted under the Agreement.
4. GENERAL.
4.1 Expenses. The Company agrees to pay the Agent
upon demand for all reasonable expenses, including reasonable
attorneys' and legal assistants' fees (which attorneys and
paralegals may be employees of the Agent), incurred by the Agent
in connection with the preparation, negotiation and execution of this Amendment
and any document required to be furnished herewith.
4.2 Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS.
4.3 Successors. This Amendment shall be binding upon the
Company, the Agent and the Lenders and their respective successors and assigns,
and shall inure to the benefit of the Company, the Agent and the Lenders and the
successors and assigns of the Agent and Lenders.
4.4 Confirmation of the Agreement. Except as amended
hereby, the Agreement shall remain in full force and effect and
is hereby ratified and confirmed in all respects.
4.5 References to the Agreement. Each reference in the
Agreement to "this Agreement," "hereunder," "hereof," or words of like import,
and each reference to the Agreement in any and all instruments or documents
provided for in the Agreement or delivered or to be delivered thereunder or in
connection therewith, shall, except where the context otherwise requires, be
deemed a reference to the Agreement as amended hereby.
4.6 Counterparts. This Amendment may be executed by the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at Chicago, Illinois by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXX CORPORATION
By: /s/ X X Xxxxxxxxx
Title: Treasurer
BANK OF AMERICA ILLINOIS,
as a Lender and as Agent
By: Xxxxxxx X. Xxxxx
Title: Xxxxxxx X. Xxxxx, Vice President
ABN AMRO BANK N.V.
By: Xxxx X. Xxxxxxxx
Title: Xxxx X. Xxxxxxxx, Vice President
By: /s/ Xxxxx X. Xxxxxx
Title: Xxxxx X. Xxxxxx, Vice
President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx X. Xxxxx
Title: Senior Vice President
CERTIFICATE
I, the undersigned, Treasurer of Xxxxxx Corporation ("Company"), DO
HEREBY CERTIFY that:
1. The representations and warranties on the part of the Company
contained in the Second Amendment dated as of September 29, 1995 ("Amendment")
to Credit Agreement dated June 16, 1993 ("Agreement") between the Company, the
Lenders and Bank of America Illinois, as agent (terms not otherwise defined
herein have the same meaning herein as in the Amendment) and the Agreement are
as true and correct at and as of the date hereof as through made on and as of
the date hereof.
2. No Default has occurred and is continuing, or would
result from the consummation of the Amendment on this date.
WITNESS my hand as of the 29th day of September, 1995.
/s/ X X Xxxxxxxxx
Treasurer
