AMENDMENT NO. 2 AND SUPPLEMENT TO
REVOLVING CREDIT AGREEMENT
AMENDMENT NUMBER 2 AND SUPPLEMENT TO REVOLVING CREDIT
AGREEMENT, dated as of August 15, 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
corporation 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 in to that Revolving Credit
Agreement, dated as of January 31, 1997 as amended by any Amendment to Revolving
Credit Agreement dated as of June 30, 1997 (the Revolving Credit Agreement, as
so amended, being hereinafter referred to as the "Credit Agreement").
B. The parties hereto desire to amend and supplement the
Credit Agreement on the terms and conditions hereinafter set forth.
C. Any capitalized terms used herein and not defined herein
shall have the meanings given to them in the Credit Agreement.
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. Section 1.1 of the Credit Agreement is hereby
amended by deleting the definition of the term "Revolving Credit Commitment" and
substituting the following in its place:
"Revolving Credit Commitment" means, with respect to each
Bank, the obligation of such Bank to extend credit to the
Borrower hereunder, subject to the terms hereof, in the
following aggregate amounts:
Chase $52,500,000
Fleet 37,500,000
Rabobank Nederland 37,500,000
EAB 22,500,000
Section 1.2. Section 1.1 of the Credit Agreement is hereby
further amended by deleting the definition of the term "Revolving Credit Note"
and substituting the following in its place:
"Revolving Credit Note" means a promissory note of the
Borrower in the form of Exhibit A annexed hereto evidencing
Revolving Credit Loans made by a Bank hereunder, together with
any promissory note issued in substitution or replacement
therefor.
Section 1.3. Section 1.1 of the Credit Agreement is hereby
further amended by deleting the phrase "January 30, 2002" therefrom and
substituting the following in its place: "August 14, 2002".
Section 1.4. Section 2.1 of the Credit Agreement is hereby
amended by deleting the last sentence therefrom and substituting the following
in its place:
"Notwithstanding the foregoing, in no event shall the Dollar
Equivalent of the aggregate principal balance (determined at
the Relevant Exchange Rate) of Revolving Credit Loans
denominated in Approved Currencies other than Dollars exceed
$25,000,000 at any one time."
Section 1.5. Section 2.7(a) of the Credit Agreement is hereby
amended by deleting the second sentence thereof and substituting the following
in its place:
"Notwithstanding the foregoing, at no time shall the sum of
Aggregate Letters of Credit Outstandings plus Aggregate
Banker's Acceptance Outstandings exceed $15,000,000 and no
Letter of Credit or Documentary Banker's Acceptance shall be
issued or created if after giving effect thereto the Aggregate
Outstandings would exceed the Total Revolving Credit
Commitments in effect on such date."
Section 1.6. Section 2.7(a) of the Credit Agreement is hereby
amended by deleting the following phrase from the penultimate sentence thereof:
2
"and no Standby Letter of Credit shall expire more than one
year after its issuance".
Section 1.7. Section 8.2 of the Credit Agreement is hereby
amended by inserting immediately after the reference to "Schedule 6.10 hereto"
the following: ", as such Schedule may be amended from time to time." The Credit
Agreement is hereby further amended by deleting Schedule 6.10 therefrom and by
substituting in its place Schedule 6.10 to this Amendment.
Section 1.8. Section 8.8(b) of the Credit Agreement is hereby
amended by deleting the reference to "$15,000,000" therefrom and by substituting
the following in its place: "$25,000,000."
Section 1.9. Section 8.8(c) of the Credit Agreement is hereby
amended by deleting the reference to "$25,000,000" therefrom and by substituting
the following in its place: "$40,000,000".
Section 1.10. Section 9.1 of the Credit Agreement is hereby
amended to add the following sentence at the end thereof: "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 $35,000,000.
Section 1.11. Section 9.2 of the Credit Agreement is hereby
amended by deleting the phrase "in excess of $15,000,000 in any fiscal year or
$55,000,000 during the term of the Revolving Credit Facility" and substituting
the following in its place: "in excess of $20,000,000 in any fiscal year."
Section 1.12. Section 9.3 of the Credit Agreement is hereby
amended by inserting the following sentence at the end thereof: "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 $35,000,000."
Section 1.13. Section 9.4 of the Credit Agreement is hereby
amended by inserting the following sentence at the end thereof: "For purposes of
calculating compliance with this covenant, Consolidating 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 $35,000,000."
Section 1.14. Section 9.5 of the Credit Agreement is hereby
amended by inserting the following sentence at the end thereof: "For purposes of
calculating compliance with this covenant provided, that the cumulative
adjustment made pursuant to this Section 9.5 during the term of this Agreement
shall not exceed $35,000,000."
3
ARTICLE 2.
SUPPLEMENT TO THE CREDIT AGREEMENT
The Credit Agreement is hereby supplemented as follows:
Section 2.1. Simultaneously with the execution and delivery of
this Amendment, the Borrower shall execute and deliver to each of the Banks a
substituted note (the "Substituted Notes") in the form annexed hereto as Exhibit
A. Upon the execution and delivery of the Substituted Notes, each Bank shall
xxxx its Note "canceled and replaced by Substituted Note" and shall return it to
the Borrower. The unpaid principal balance of Revolving Credit Loans then
outstanding and evidenced by the Note shall be endorsed by each Bank on the
Schedule attached to its Substituted Note as outstanding thereunder.
Section 2.2. All references in the Credit Agreement and in the
Facility Documents to the "Agreement" shall be deemed to refer to the Agreement
as amended and supplemented hereby; and unless the context otherwise requires
all references in such documents to the Notes shall be deemed to refer to the
Substituted Notes.
Section 2.3. The Credit Agreement and the Facility Documents
shall each be deemed amended, to the extent necessary, to give effect to the
provisions of this Amendment.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Banks that:
Section 3.1. 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 the date hereof or to another specific
date), 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 March 29, 1997, 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 3.2. No Default or Event of Default, as defined in the
Agreement now exists except as specifically waived hereby.
Section 3.3. The Borrower has the requisite corporate power
and authority to enter into, perform and deliver this Amendment and the
Substituted Notes, and any other documents, instruments, agreements or other
writings to be delivered in connection herewith. This Amendment and the
Substituted Notes, and all documents contemplated hereby or delivered in
connection
4
herewith, have each been duly authorized, executed and delivered and the
transactions contemplated herein have been duly authorized by all necessary
corporate or partnership action.
Section 3.4. This Amendment and the Substituted Notes 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 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 3.5. 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 3.6. 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 and the Substituted Notes,
or any other agreements, instruments or documents to be executed and/or
delivered in connection herewith or pursuant hereto.
Section 3.7. 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 and the Substituted Notes 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 4.
CONDITIONS
This Amendment shall become effective only upon satisfaction
of the following conditions precedent:
(a) Each Bank shall have received each of the following
documents, in form and substance reasonably satisfactory to such Bank and its
counsel:
(i) this Amendment and the Substituted Notes duly
executed by the Borrower;
(ii) a certificate of the Secretary of the Borrower
and each of the Guarantors, dated the date of this Amendment, attesting to all
corporate action taken by such entity, including resolutions of its Board of
Directors authorizing the execution, delivery and performance
5
of this Amendment and each other document to be delivered pursuant to this
Amendment, together with a certification that the certificate, articles of
incorporation and the by-laws of the Borrower and each of the Guarantors have
not been amended, modified, revoked or rescinded since the Closing Date;
(iii) a certificate of the Secretary of the Borrower
and each of the Guarantors, dated the date of this Amendment, certifying the
names and true signatures of the officers of such entity authorized to sign this
Amendment and the other documents to be delivered by such entity under this
Amendment;
(iv) a certificate of a duly authorized officer of
the Borrower, dated the date of this Amendment, stating that the representations
and warranties in Article 6 are true and correct in all material respects on
such date as though made on and as of such date (except to the extent such
representation or warranty by its terms relates to the date hereof or another
specific date) and that no event has occurred and is continuing which
constitutes a Default or Event of Default;
(v) Guarantee Ratifications, duly executed by each
Guarantor;
(vi) an opinion of counsel for the Borrower and
Guarantors, dated the date of this Amendment, in the form annexed hereto as
Exhibit B;
(vii) satisfactory evidence that the Borrower and
the Guarantors are duly organized, validly existing and in good standing under
the laws of their respective jurisdictions of incorporation and each other
jurisdiction where qualification is necessary;
(viii) such other documents, instruments, approvals,
opinions and evidence as the Banks may reasonably require;
(b) the Borrower shall have paid or caused to be paid to the
Agent for the benefit of the Banks an amendment fee of $35,000 and all other
fees required to be paid hereunder or in connection herewith, and to the Agent
in full all accrued fees and expenses of the Agent in connection with the
preparation, execution and delivery of this Amendment, and the other Facility
Documents and the consummation of the transactions contemplated thereby;
(c) the Borrower and the Guarantors shall have obtained all
consents, permits and approvals (if any) required in connection with the
execution, delivery and performance by the Borrower and the Guarantors of their
obligations hereunder and such consents, permits and approvals shall continue in
full force and effect; and
(d) all legal matters in connection with this financing shall
be reasonably satisfactory to the Banks and their counsel.
6
ARTICLE 5.
MISCELLANEOUS
Section 5.1. 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 5.2. This Amendment shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New York.
Section 5.3. 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:
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
Chief Financial Officer
THE CHASE MANHATTAN BANK, as
Agent and a Bank
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
FLEET BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Name:
Title:
7
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
--------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
--------------------------------
Name:
Title:
8
EXHIBIT A
SUBSTITUTE REVOLVING CREDIT
PROMISSORY NOTE
$_____________ August 15, 1997
(or the Applicable Currency Equivalent thereof)
Xxxxx Xxxxxx, Inc. (the "Borrower"), for value received,
hereby promises to pay to the order of _______________________ (the "Bank"), or
its permitted successors or assigns, at the office of The Chase Manhattan Bank,
at 000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, or its permitted successors
or assigns (the "Agent"), or at the applicable Payment Office of the Agent for
the account of the appropriate Lending Office of the Bank, in lawful money of
the United States (or the Applicable Currency Equivalent thereof as provided in
the Credit Agreement) and in immediately available funds, on the Revolving
Credit Termination Date, the principal sum of _______________________ Dollars
($_________) or the Applicable Currency Equivalent thereof, or the aggregate
unpaid principal amount of all Loans made by the Bank, whichever is less. The
Borrower further promises to pay interest on the unpaid principal balance
hereof, for the period such balance is outstanding, to the Agent for the account
of the Lending Office of the Bank, in like money, at the rates of interest as
provided in the Credit Agreement described below, on the dates and in the manner
provided in such Credit Agreement.
The date and amount of each Loan, the date and amount of each payment
of principal thereof, the principal amount subject thereto, interest rate with
respect thereto and the Applicable Currency thereof shall be recorded by the
Bank on its books and, prior to any transfer of this Note (or, at the discretion
of the Bank, at any other time), endorsed by the Bank on the schedule attached
hereto or any continuation thereof, provided that the failure of the Bank to
make any such recordation shall not in any way effect the Borrower's obligations
to repay the Loans.
This is one of the Substitute Notes referred to in that certain
Revolving Credit Agreement, dated as of January 31, 1997 among the Borrower, the
Banks named therein (including the Bank) and the Agent (as amended, modified or
supplemented from time to time, the "Credit Agreement"), and is subject to all
of the terms and conditions contained therein. All terms not defined herein
shall have the meanings given to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
principal and interest upon the occurrence of certain Events of Default, for
mandatory and voluntary prepayments on the terms and conditions specified
therein and for accrual of interest at the Default Rate in the circumstances
provided in the Credit Agreement.
The Borrower waives presentment, notice of dishonor, protest and any
other notice or formality with respect to this Note.
This Note shall be governed by and interpreted and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
XXXXX XXXXXX, INC.
By:
--------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
2
Amount of Loan
(Expressed in
Approved Amount of Balance
Date Currency) Payment Outstanding Notation By
3
Schedule 6.10
Guarantees
4
