XXXXX XXXXXX CORPORATION
FIRST AMENDMENT TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
This FIRST AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT
AGREEMENT (this "Amendment") is dated as of July 24, 1995 and
entered into by and among XXXXX CORONA CORPORATION, a Delaware
corporation, as debtor and debtor-in-possession (the
"Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders")
and CHEMICAL BANK, a New York banking corporation, as agent
for the Lenders (in such capacity, the "Agent"), and, for
purposes of Section 7 hereof, the Credit Support Parties (as
hereinafter defined) named on the signature pages hereto, and
is made with reference to that certain Debtor-In-Possession
Credit Agreement dated as of July 10, 1995 (the "Credit
Agreement"), by and among the Borrower, the Lenders and the
Agent. Capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, the Borrower, the Lenders and the Agent
desire to amend the Credit Agreement to provide, among other
things, that Revolving Credit Loans in an aggregate principal
amount of $3,000,000 shall be converted to, and maintained as,
term loans under the Credit Agreement in order that such term
loans may be secured by the Mortgage;
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Definitions.
A. Section 1.1 of the Credit Agreement is hereby
amended by inserting the following definitions in proper
alphabetical order:
"`First Amendment': that certain First Amendment to
Debtor-In-Possession Credit Agreement dated as of July 24,
1995."
"`First Amendment Effective Date': the date the First
Amendment becomes effective in accordance with its terms."
"`Term Loan Commitment': as to any Lender, the
obligation of such Lender to convert Revolving Loans to, and
maintain as, Term Loans in accordance with subsection 2.25 in
an aggregate principal amount not to exceed the amount set
forth opposite such Lender's name on Schedule 1.1, as such
amount may be reduced from time to time in accordance with the
provisions of this Agreement."
"`Term Loans': the Loans converted to, and maintained
as, term loans pursuant to subsection 2.25."
"`Term Notes': as defined in subsection 2.25(b)."
"`Revolving Credit Commitment': as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to,
or issue or participate in Letters of Credit for the account
of the Borrower in an aggregate principal amount not to exceed
the amount set forth opposite such Lender's name on Schedule
1.1, as such amount may be reduced from time to time in
accordance with the provisions of this Agreement."
B. The definition of "Commitment" contained in
subsection 1.1 of the Credit Agreement is hereby amended and
restated as follows:
"`Commitment': as to any Lender, the sum of its
Term Loan Commitment and its Revolving Credit Commitment."
C. The definition of "Loans" contained in
subsection 1.1 of the Credit Agreement is hereby amended by
inserting the parenthetical "(including the Term Loans and the
Revolving Credit Loans)" immediately after the word "loan" in
such definition.
D. The definition of "Notes" contained in
subsection 1.1 of the Credit Agreement is hereby amended by
inserting the phrase "and the Term Notes" immediately after
the phrase "Revolving Credit Notes."
1.2 Amendments to Section 2: Amount and Terms of
Commitments
A. Subsection 2.1 of the Credit Agreement is hereby
amended by (i) inserting the phrase "Revolving Credit"
immediately before the word "Commitment" in clause (i) of the
first sentence thereof and immediately after the phrase
"Borrower may use the" in the second sentence thereof and (ii)
deleting the phrase "Maximum Available Credit in effect at
such time" and substituting therefor the phrase "remainder of
the Maximum Available Credit in effect at such time minus the
aggregate principal amount of Term Loans outstanding at such
time."
B. Subsection 2.2 of the Credit Agreement is hereby
amended by inserting the phrase "Revolving Credit" immediately
before the word "Commitment" in clause (a) therein.
C. Subsection 2.3 of the Credit Agreement is hereby
amended by inserting the phrase "Revolving Credit" (i)
immediately before the word "Commitments" in the first
sentence thereof and (ii) immediately after the phrase "Each
borrowing under the" in the second sentence thereof.
D. Subsection 2.5 of the Credit Agreement is hereby
amended by adding the following sentence at the end of such
subsection:
"Any reduction in the Commitments shall be
applied
first to the Revolving Credit Commitments and
then
to the Term Loan Commitments."
E. Subsection 2.6 of the Credit Agreement is hereby
amended by adding the following at the end thereof:
"(e) All payments and prepayments of the
Loans
shall be applied first to the Revolving Credit
Loans
and then to the Term Loans."
F. Section 2 of the Credit Agreement is hereby
amended by adding the following subsection 2.25 at the end
thereof:
"2.25 Term Loan. (a) Subject to
the terms and conditions hereof, each Lender hereby agrees to
convert to Term Loans, on the First Amendment Effective Date,
Revolving Credit Loans in an aggregate principal amount equal
to the amount of such Lender's Term Loan Commitment and to
maintain such Loans as Term Loans hereunder. Term Loans
repaid or prepaid may not be reborrowed. All Term Loans shall
be paid in full on the Termination Date. The amount of a
Lender's Term Loan Commitment shall be automatically reduced
on the date, and in the amount, of any payment of such
Lender's Term Loans.
(b) The Term Loans made by each
Lender shall be evidenced by a promissory note substantially
in the form of Exhibit N, with appropriate insertions as to
payee, date and principal amount (a "Term Note"), payable to
the order of such Lender and in a principal amount equal to
the lesser of (i) the initial Term Loan Commitment of such
Lender and (ii) the aggregate unpaid principal amount of all
Term Loans made by such Lender. Each Lender is hereby
authorized to record the date and amount of each payment or
prepayment of principal of the Term Loan made by such Lender
on the schedule annexed to and constituting a part of its Term
Note, and any such recordation shall constitute prima facie
evidence of the accuracy of such information so recorded;
provided that failure to make any such recordation, or any
error in such recordation, shall not affect the rights of such
Lender or the Borrower's obligations in respect of the
applicable Term Loans. Each Term Note shall (x) be dated the
First Amendment Effective Date, (y) be stated to mature on the
Termination Date and (z) provide for the payment of interest
in accordance with subsection 2.7.
Section 2. AMENDMENTS TO SCHEDULES.
Schedule 1.1 of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting in
place thereof a new Schedule 1.1 in the form of Annex I to
this Amendment.
Section 3. AMENDMENTS TO EXHIBITS.
The Credit Agreement is hereby amended by adding as
Exhibit N thereto the form of Term Note attached as Annex II
hereto.
Section 4. CONSENT.
The Lenders hereby consent to the Borrower entering
into (a) a Construction, Operation and Maintenance of Sewer
Easement and License Agreement in the form attached hereto as
Annex III, (b) a License Agreement in the form attached hereto
as Annex IV, (c) an Easement and License Agreement in the form
attached hereto as Annex V, (d) an Easement, License &
Maintenance Agreement in the form attached hereto as Annex VI,
and (e) an Easement Agreement in the form attached hereto as
Annex VII; provided that prior to, or concurrent with, the
effectiveness of such agreements, the X.X. Xxxxxx Contract
shall become effective and the sale contemplated thereby shall
have been consummated.
Section 5. CONDITIONS TO EFFECTIVENESS
Sections 1, 2 and 3 of this Amendment shall become
effective only upon the satisfaction of all of the following
conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "First Amendment
Effective Date"):
A. The Agent shall have received counterparts of
this Amendment executed by the Borrower, each Lender and the
Agent and written or telephonic notification of such execution
and authorization of delivery thereof.
B. The Agent shall have received executed term
notes, substantially in the form attached hereto as Annex II,
drawn to the order of each Lender and with appropriate
insertions.
C. The Agent shall have received a counterpart of
the Mortgage, duly executed by the Borrower.
D. The Bankruptcy Court shall have approved the
execution of this Amendment, and the consummation of the
transactions contemplated hereby, by the Borrower.
Section 6. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Amendment and to amend the Credit Agreement in the manner
provided herein, the Borrower represents and warrants to each
Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. The Borrower has
all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and
delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate
action on the part of the Borrower.
C. No Conflict. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower
of the Amended Agreement do not and will not (i) violate any
provision of any law or any governmental rule or regulation
applicable to the Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the
Borrower or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on
the Borrower or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse
of time or both) a default under any Contractual Obligation of
the Borrower or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of the Borrower or any of its
Subsidiaries (other than any Liens created under any of the
Loan Documents in favor of the Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual
Obligation of the Borrower or any of its Subsidiaries.
D. Governmental Consents. The execution and
delivery by the Borrower of this Amendment and the performance
by the Borrower of the Amended Agreement do not and will not
require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the
Amended Agreement have been duly executed and delivered by the
Borrower and are the legally valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance
with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties
From Credit Agreement. The representations and warranties
contained in Section 3 of the Credit Agreement are and will be
true, correct and complete in all material respects on and as
of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and
is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would
constitute a Default.
Section 7. ACKNOWLEDGEMENT AND CONSENT
Borrower is a party to the Security Agreement and the
Borrower Pledge Agreement pursuant to which the Borrower has
created Liens in favor of the Agent on certain Collateral to
secure the Obligations. Each Subsidiary Guarantor is party to
the Subsidiary Guaranty pursuant to which the Subsidiary
Guarantors have guarantied the Obligations. The Subsidiary
Guarantors party to the Guarantor Pledge Agreement have
created Liens in favor of the Agent to secure the obligations
of such Subsidiary Guarantor under the Subsidiary Guaranty.
The Borrower and the Subsidiary Guarantors are collectively
referred to herein as the "Credit Support Parties."
Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement
and this Amendment and consents to the amendment of the Credit
Agreement effected pursuant to this Amendment. Each Credit
Support Party hereby confirms that each Collateral Document to
which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the
case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and
"Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Collateral Document),
including without limitation the payment and performance of
all such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the
Obligations of the Borrower now or hereafter existing under or
in respect of the Amended Agreement and the Notes.
Each Credit Support Party acknowledges and agrees
that any of the Collateral Documents to which it is a party or
otherwise bound shall continue in full force and effect and
that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit
Support Party represents and warrants that all representations
and warranties contained in the Amended Agreement and the
Collateral Documents to which it is a party or otherwise bound
are true, correct and complete in all material respects on and
as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
Each Credit Support Party (other than the Borrower)
acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such
Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the
amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
Section 8. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement
and the Other Loan Documents.
(i) On and after the First Amendment Effective Date,
each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import
referring to the Credit Agreement, and each reference in 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 Amended
Agreement.
(ii) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified
and confirmed.
(iii) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of the Agent or any
Lender under, the Credit Agreement or any of the other Loan
Documents.
B. Fees and Expenses. The Borrower acknowledges
that all costs, fees and expenses as described in subsection
9.5 of the Credit Agreement incurred by Agent and its counsel
with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of
the Borrower.
C. Headings. Section and subsection headings in
this Amendment are included herein for convenience of
reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive
effect.
D. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. 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 and
delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
XXXXX CORONA CORPORATION,
as debtor and debtor-in-possession
By:
Title:
CHEMICAL BANK, as
Agent and as a Lender
By:
Title:
BANK OF AMERICA ILLINOIS
By:
Title:
SCM (UNITED KINGDOM) LIMITED,
(for purposes of Section 7 only) as a Credit Support Party
By:
Title:
XXXXX XXXXXX OVERSEAS
HOLDINGS, INC., (for purposes of
Section 7 only) as a Credit Support Party
By:
Title:
XXXXX CORONA (UNITED KINGDOM,
LIMITED, (for purposes of Section 7 only) as a Credit Support
Party
By:
Title:
ANNEX I
SCHEDULE 1.1
COMMITMENTS
Revolving Credit Commitment
Term Loan Commitment
Amount Percentage Amount Percentage
Chemical Bank $13,125,000 62.50% $1,875,000 62.50%
Bank of America
Illinois 7,875,000 37.50% 1,125,000 37.50%
Total 21,000,000 100% $3,000,000 100%
ANNEX II
EXHIBIT M
FORM OF
TERM NOTE
$____________ New York, New York
____________, 1995
FOR VALUE RECEIVED, the undersigned, Xxxxx Xxxxxx
Corporation, a Delaware corporation, as debtor and debtor-
in-possession (the ``Borrower''), hereby unconditionally promises
to pay to the order of _______________ (the ``Lender'') at the
office of Chemical Bank, located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, in lawful money of the United States of
America and in immediately available funds, on the Termination
Date the principal amount of (a)_____________ DOLLARS
($___________), or, if less, (b) the aggregate unpaid
principal amount of all Term Loans made by the Lender to the
Borrower pursuant to subsection 2.5 of the Credit Agreement,
as hereinafter defined. The Borrower further agrees to pay
interest in like money at such office on the unpaid principal
amount hereof from time to time outstanding at the rates and
on the dates specified in subsections 2.7 and 2.9 of such
Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a
part hereof the date and amount of each payment or prepayment
of principal of the Term Loans. Each such endorsement shall
constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement
shall not affect the rights of the Lender or the obligations
of the Borrower in respect of such Term Loan.
This Note (a) is one of the Term Notes referred to in the
Debtor-in-Possession Credit Agreement dated as of July 10,
1995 (as amended to the date hereof and as further amended,
supplemented or otherwise modified from time to time, the
``Credit Agreement''), among the Borrower, the Lender, the
other banks and financial institutions from time to time
parties thereto and Chemical Bank, as agent, (b) is subject to
the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as
provided in the Credit Agreement.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall
become, or may be declared to be, immediately due and payable,
all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or
otherwise, hereby waive presentment, demand, protest and all
other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
XXXXX CORONA CORPORATION, as
debtor and debtor-in-possession
By:
Name:
Title:
