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SEVENTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS SEVENTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT (this "Amendment Agreement") is made and entered into as of
this 11th day of August, 1999, by and among XXXXXXX AMERICAS CORPORATION, a
Delaware corporation ("BAM"), XXXXXXX TECHNOLOGY LIMITED, a Bermuda corporation
("BTL" and together with BAM, the "Borrowers"), XXXXXXX TECHNOLOGY COMPANY,
INC., a Delaware corporation ("Xxxxxxx" and together with the Borrowers, the
"Credit Parties"), BANK OF AMERICA, N.A., f/k/a Bank of America National Trust
and Savings Association, successor by merger to Bank of America, N.A., f/k/a
NationsBank, N.A. ("Bank of America" or the "Agent"), BANK OF AMERICA, N.A., as
a Lender, and BANKBOSTON, N.A. (successor by merger to Bank of Boston
Connecticut), as a Lender ("BankBoston").
W I T N E S S E T H:
WHEREAS, the Credit Parties, the Lenders and the Agent have entered
into that certain Amended and Restated Revolving Credit Agreement dated as of
December 31, 1995 (as heretofore or hereafter amended, modified, supplemented,
amended and restated or replaced, the "Credit Agreement"), pursuant to which the
Lenders have agreed to make certain revolving credit loans to the Borrowers; and
WHEREAS, the parties hereto desire to further amend the Credit
Agreement in the manner herein set forth;
WHEREAS, the Borrowers have (i) informed the Agent that they have
violated Section 8.1(d) of the Credit Agreement for the four-quarter period
ended on June 30, 1999, which violation constitutes an Event of Default under
Section 9.1(c) of the Credit Agreement (the "Violation") and (ii) requested that
the Agent and the Lenders waive the Violation (the "Waiver");
WHEREAS, in consideration for the Borrowers' acknowledgment and
acceptance of the terms of this Amendment Agreement, the Agent and Lenders are
willing to grant the Waiver for the four-quarter period ended on June 30, 1999;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. The term "Credit Agreement" or "Agreement" (as the case
may be) as used herein and in the Loan Documents shall mean the Credit Agreement
as hereby amended and modified, and as further amended, modified, supplemented,
amended and restated or replaced
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from time to time as permitted thereby. Unless the context otherwise requires,
all terms used herein without definition shall have the definitions provided
therefor in the Credit Agreement.
2. Waiver Action. To the extent the Violation occurred because of the
incurrence of 1999 Special Charges (as defined in Section 3(a) below), Agent and
Lenders hereby grant to Borrowers the Waiver subject to the following
conditions:
(a) The Waiver is limited as specified herein and shall not
constitute an amendment or modification of the Credit Agreement or any
other Loan Document.
(b) The Waiver is granted only for the specific instance and
for the time period specified herein and in no event shall constitute a
waiver for any period other than the Borrowers' four quarter period
ended June 30, 1999 or in any manner create a course of dealing or
otherwise impair the future ability of the Agent and the Lenders to
declare a Default or Event of Default under or otherwise enforce the
terms of the Credit Agreement.
3. Credit Agreement Amendments. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective as of the date hereof, as follows:
(a) The definition of "1999 Special Charges" is hereby added
to Section 1.1 of the Credit Agreement as follows:
"1999 Special Charges" means special charges to income taken
by Borrowers during the four quarter period ending June 30, 1999 in an
aggregate amount not to exceed $3,300,000, which special charges relate
to (a) staff layoffs and plant closings or (b) claims associated with
Xxxxxxx'x former pre-press operations.
(b) The definition of "Consolidated Fixed Charge Ratio" in
Section 1.1 of the Credit Agreement is hereby amended by adding the
following to the end of such definition:
"provided further that for the purposes of
calculating the Consolidated Fixed Charge Ratio for the period
of the four consecutive Fiscal Quarters ended June 30, 1999,
the effect of the 1999 Special Charges shall also be
excluded;"
4. Representations and Warranties. Each Credit Party hereby certifies
that:
(a) The representations and warranties made by each Credit
Party in Article VI of the Credit Agreement are true on and as of the
date hereof, with the same effect as though such representations and
warranties were made on the date hereof.
(b) There has been no material change in the condition,
financial or otherwise, of Xxxxxxx, any Borrower or any of their
respective Subsidiaries since the date of the most recent financial
reports of Xxxxxxx and the Borrowers received by each Lender under
Section 7.1 of the Credit Agreement;
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(c) The business and properties of each Credit Party and any
of their respective Subsidiaries are not, and since the date of the
most recent financial reports of Xxxxxxx and the Borrowers received by
each Lender under Section 7.1 of the Credit Agreement have not been,
adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workmen, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts; and
(d) No event has occurred and no condition exists which, upon
the effectiveness of the amendments contemplated hereby, will
constitute a Default or an Event of Default on the part of any Credit
Party under the Credit Agreement or any other Loan Document either
immediately or with the lapse of time or the giving of notice, or both.
5. Conditions Precedent. The effectiveness of this Amendment Agreement
is subject to the receipt by the parties hereto of five (5) counterparts of this
Amendment Agreement duly executed by all signatories hereto.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except in accordance with the terms of the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. Counterparts. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. Credit Agreement and Other Loan Documents. All references in any of
the Loan Documents to the "Credit Agreement" shall mean the Credit Agreement as
amended hereby.
10. Reimbursement. The Borrowers agree to reimburse the Agent and the
Lenders for all costs and out-of-pocket expenses, including attorneys' fees,
incurred in connection with the preparation, execution, and delivery of this
Amendment Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWERS AND CREDIT PARTIES:
XXXXXXX AMERICAS CORPORATION, as Borrower and
Credit Party
By:
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Name:
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Title:
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XXXXXXX TECHNOLOGY LIMITED, as Borrower and Credit
Party
By:
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Name:
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Title:
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XXXXXXX TECHNOLOGY COMPANY, INC., as Credit Party
By:
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Name:
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Title:
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AGENT:
BANK OF AMERICA, N.A., f/k/a Bank of America
National Trust and Savings Association, successor
by merger to Bank of America, N.A., f/k/a
NationsBank, N.A., as Agent for the Lenders
By:
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Name:
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Title:
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LENDERS:
BANK OF AMERICA, N.A., f/k/a Bank of America
National Trust and Savings Association, successor
by merger to Bank of America, N.A., f/k/a
NationsBank, N.A., as Lender
By:
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Name:
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Title:
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BANKBOSTON, N.A., successor by merger to Bank of
Boston Connecticut, as Lender
By:
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Name:
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Title:
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