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Exhibit 4(ii)
FOURTH AMENDMENT TO CREDIT AGREEMENT
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THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of October 29, 1996
(this "Amendment"), by and between XXXXXXX-XXXXXX CORPORATION, a Delaware
corporation (the "Borrower"), the lenders parties hereto from time to time (the
"Lenders", as defined further below), the Issuing Banks referred to herein (the
"Issuing Banks") and MELLON BANK, N.A., a national banking association, as agent
for the Lenders and the Issuing Banks hereunder (in such capacity, together with
its successors in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Issuing Banks and the Agent are
parties to a Credit Agreement, dated as of October 29, 1991 (as amended, the
"Credit Agreement"), pursuant to which the Lenders have made Loans to the
Borrower and certain Issuing Banks have issued Letters of Credit on behalf of
the Borrower and its Subsidiaries; and
WHEREAS, the Borrower has requested the Lenders (i) to extend the Revolving
Credit Maturity Date to October 29, 1999 and (ii) make certain other changes to
the Credit Agreement; and
WHEREAS, NationsBank, N.A. (formerly NationsBank of North Carolina, N.A.)
("NationsBank") does not wish to continue as a Lender under the Credit
Agreement; and
WHEREAS, the Lenders (other than NationsBank) are willing to so extend the
Revolving Credit Maturity Date and to amend the Credit Agreement upon the terms
and conditions hereinafter set forth; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them in the Credit Agreement;
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NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.
The Credit Agreement is hereby amended as follows:
(a) Section 1.01 is amended as follows:
(i) The definition of the term "Revolving Credit Maturity Date" is amended
to substitute the date "October 29, 1999" for the date "October 29, 1998".
(ii) The definition of the term "Lender" is amended by adding the words ";
PROVIDED, HOWEVER, as of the Effective Date of this Fourth Amendment,
NationsBank of North Carolina, N.A. is not a Lender hereunder notwithstanding
that it is listed on the signature pages hereof" immediately following the
phrase "ceasing to be Lenders".
(b) The Revolving Credit Committed Amount of each Lender shall be increased
such that the Total Revolving Credit Committed Amount for each Lender shall be
as follows:
Mellon Bank, N.A. $9,500,000
PNC Bank,
National Association 6,500,000
The Bank of Nova Scotia 6,500,000
(c) In accordance with Sections 1(a) and 1(b) above, after the Effective
Date of this Amendment, the Commitment Percentage for each Lenders shall be as
follows:
Mellon Bank, N.A. 42.2222%
PNC Bank,
National Association 28.8889%
The Bank of Nova Scotia 28.8889%
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SECTION 2. CONDITIONS PRECEDENT. The effectiveness of this Amendment is
subject to the accuracy as of the date hereof of the representations and
warranties herein contained, to the performance by the Borrower of its
obligations to be performed hereunder on or before the date hereof and to the
satisfaction, on or before October 29, 1996 (the date of such satisfaction being
referred to herein as the "Effective Date"), of the following further conditions
precedent:
(a) AMENDMENT. Each Lender shall have received a counterpart of this
Amendment, duly executed by the Borrower.
(b) REPRESENTATIONS AND WARRANTIES; EVENTS OF DEFAULT AND POTENTIAL
DEFAULTS. The representations and warranties contained in Section 3 hereof
shall be true and correct on and as of the Effective Date with the same
effect as though made on and as of such date. On the Effective Date, no
Event of Default and no Potential Default shall have occurred and be
continuing or shall exist or shall occur or exist after giving effect to
this Amendment and the transactions contemplated hereby. On the Effective
Date, there shall have been delivered to the Agent a certificate, dated the
Effective Date and signed on behalf of the Borrower by the President,
Treasurer or chief financial officer of the Borrower, that (a) the
representations and warranties set forth in Section 3 hereof are true and
correct on and as of such date and (b) on such date no Event of Default or
Potential Default has occurred and is continuing or exists or will occur or
exist after giving effect to this Amendment and the transactions
contemplated hereby.
(c) PROCEEDINGS AND INCUMBENCY. On the Effective Date, there shall
have been delivered to the Agent, with an original counterpart for each
Lender, a certificate dated the Effective Date and signed on behalf of the
Borrower by the Secretary or an Assistant Secretary of the Borrower,
certifying as to (i) true copies of the articles of incorporation and
bylaws of the Borrower as in effect on such date (or a certificate of the
Secretary or Assistant Secretary of the Borrower to the effect that there
have been no changes in such articles of incorporation or bylaws from the
forms thereof previously delivered to the Agent and the Lenders or, if
there have been any such changes, attaching copies thereof), (ii) true
copies of all corporate action taken by the Borrower relative to this
Amendment and (iii) the names, true signatures and incumbency of the
officer or officers of the Borrower authorized to execute and deliver this
Amendment and the other documents and instruments to be executed and
delivered under the Credit Agreement, as amended hereby. The Agent shall be
entitled to conclusively rely on such certificate unless and until a later
certificate revising the prior certificate has been furnished to the Agent.
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(d) OPINIONS OF COUNSEL. On the Effective Date, there shall have been
delivered to the Agent written opinions, dated the Effective Date, of
General Counsel to the Borrower in form and substance satisfactory to the
Agent and as to such matters incident to the transactions contemplated
hereby as the Agent may reasonably request.
(e) DETAILS, PROCEEDINGS AND DOCUMENTS. All legal details and
proceedings in connection with the transactions contemplated by this
Amendment shall be satisfactory to the Lenders, and, on the Effective Date,
the Agent shall have received all such counterpart originals or certified
or other copies of such documents and proceedings in connection with such
transactions, in form and substance satisfactory to the Agent and the
Lenders, as the Agent or any Lender may reasonably request.
(f) SATISFACTION OF NATIONSBANK OBLIGATIONS. The Agent and each Lender
shall have received from NationsBank confirmation in form and substance
satisfactory to the Agent that the Obligations of Borrower to NationsBank
have been discharged. Upon the Effective Date, NationsBank shall have no
further Commitments, obligations or responsiblities under the Credit
Agreement.
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(g) SUBSTITUTE NOTES. The Borrower shall have delivered to the Agent
for each Lender new notes in the form attached as Exhibit A to the Credit
Agreement with the blanks appropriately filled evidencing the change in the
Revolving Credit Committed Amounts of the Lenders as set forth in Section
1(b) of this Fourth Amendment. Upon receipt of such substitute notes, each
of the Lenders shall return their original note to the Agent which shall
forward such notes to the Borrower with an appropriate designation.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Agent and the Lenders that the representations and
warranties set forth in the Credit Agreement, as amended by this Amendment, are
true and correct on and as of the date hereof as if made on and as of the date
hereof, and that no Event of Default or Potential Default has occurred and is
continuing or exists on and as of the date hereof; provided, however, that, for
purposes of the foregoing, all references in the Credit Agreement to "this
Agreement" shall be deemed to be references to this Amendment and the Credit
Agreement as amended by this Amendment. In addition, the reference in Section
4.05 of the Credit Agreement to the financial statements of the Borrower and its
consolidated Subsidiaries as of December 31, 1989 and December 31, 1990 shall be
deemed to be a reference to the financial statements of the Borrower and its
consolidated Subsidiaries as of December 31, 1994 and December 31, 1995,
respectively, the reference in such Section to the parallel interim consolidated
financial statements for and as of the end of the six months ended June 30, 1991
shall be deemed to be a reference to the parallel interim consolidated financial
statements for and as of the end of the second fiscal quarter of the fiscal year
beginning January 1, 1996, and the references in the last sentence of Section
4.05 of the Credit Agreement to June 30, 1991 and December 31, 1990 shall be
deemed to be references to June 30, 1996 and December 31, 1995, respectively;
and the reference in Section 4.10 of the Credit Agreement to December 31, 1990
shall be deemed to be a reference to December 31, 1995.
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SECTION 4. AGREEMENT AMONG LENDERS. To effectuate the changes contemplated
by Sections 1(a)(ii), 1(b) and 1(c) of this Amendment, the Agent and each Lender
agree that, on the Effective Date, the proceeds of each Lender's increased
Revolving Credit Committed Amount will be used (i) to increase each Lender's
interest in each outstanding Letter of Credit by the amount necessary to make
such Lender's percentage interest in any such outstanding Letter of Credit equal
to such Lender's Commitment Percentage and (ii) to distribute to NationsBank by
wire transfer in immediately available funds the amount of (a) such Lender's
Commitment Percentage times (b) the amount of Obligations owing by the Borrower
to NationsBank. Each of the parties hereto agrees that such distribution or
payment to NationsBank is being made on behalf of and with the acknowledgement
and consent of the Borrower in order to satisfy the Obligations owing by the
Borrower to NationsBank.
SECTION 5. EFFECTIVENESS OF AMENDMENT. This Amendment shall be effective
from and after the Effective Date upon satisfaction of the conditions precedent
referred to herein.
SECTION 6. EFFECT OF AMENDMENT. The Credit Agreement, as amended by this
Amendment, is in all respects ratified, approved and confirmed and shall, as so
amended, remain in full force and effect.
SECTION 7. GOVERNING LAW. This Amendment shall be deemed to be a contract
under the laws of the State of New York and for all purposes shall be governed
by and construed and enforced in accordance with the laws of said State.
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SECTION 8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
XXXXXXX-XXXXXX CORPORATION
By /s/ Xxxx Xxxxxxxx
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Title Treasurer
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MELLON BANK, N.A., individually
and as Agent
By /s/ Xxxxxx X. Xxxx Xx.
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Title Xxxxxx X. Xxxx Xx.
Vice President
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PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx XX
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Title V.P.
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THE BANK OF NOVA SCOTIA
By /s/ Xxxxx S, Xxxxx
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Title Sr. Relationship Manager
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NATIONSBANK, N.A. (formerly
NATIONSBANK OF NORTH
CAROLINA, N.A.)
By /s/ Xxxxxx X. Xxxx
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Title Xxxxxx X. Xxxx
Corporate Finance Office
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