FIRST AMENDMENT DATED
AS OF AUGUST 15, 1994
TO CREDIT AGREEMENT
DATED AS OF JUNE 16, 1993
THIS AMENDMENT, dated as of August 15, 1994, is entered into among
XXXXXX CORPORATION, a Delaware corporation (the "Company"), the various
financial institutions parties hereto (collectively, the Lenders"), and
CONTINENTAL BANK (F/K/A Continental Bank N.A., a national banking association),
an Illinois banking corporation having its principal office at 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("Continental"), 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 (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 extend the Stated Maturity Date, reduce pricing, delete certain covenants and
to otherwise amend certain provisions of the Agreement.
C. Therefore, the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT.
1.1 Section 1.1 of the Agreement - Commitment Termination
Date. The definition of "Commitment Termination Date" in Section 1.1 of the
Agreement is hereby amended as of the date hereof by deleting clause (a) thereof
and substituting "(a) Stated Maturity Date"; therefor.
1.2 Section 1.1 of the Agreement - Interest Period. The
definition of "Interest Period" in Section 1.1 of the Agreement is hereby
amended as of the date hereof by deleting the numeral "eight (8)" appearing in
clause (a) thereof and substituting the numeral "twenty (20)" therefor.
1.3 Section 1.1 of the Agreement - Quoted Rate. The
definition of "Quoted Rate" in Section 1.1 of the Agreement is
hereby amended as of the date hereof by deleting the percentage
"0.50%" appearing therein and substituting the percentage "0.25%"
therefor.
1.4 Section 1.1 of the Agreement - Stated Maturity Date. The
definition of "Stated Maturity Date" in Section 1.1 of the Agreement is hereby
amended as of the date hereof by deleting the date "March 31, 1996" appearing
therein and substituting the date "March 31, 1997" therefor.
1.5 Section 3.2.1(b) of the Agreement. Section 3.2.1(b) of the
Agreement is hereby amended as of the date hereof by deleting the percentage
"0.65%" appearing therein and substituting the percentage "0.25%" therefor.
1.6 Section 3.3.1 of the Agreement. Section 3.3.1 of
the Agreement is hereby deleted in its entirety and the following
substituted therefor:
"SECTION 3.3.1 Facility Fee. The Company agrees to pay to the
Agent for the account of each Lender, for the period (including any portion
thereof when its Commitment is suspended by reason of any Borrower's inability
to satisfy any condition of Article V) commencing on the Effective Date and
continuing through the final Commitment Termination Date, a facility fee at the
rate of fifteen hundredths of one-percent (.15%) per annum on such Lender's
Percentage of the Commitment Amount. Such facility fees shall be payable by the
Company in arrears on each Quarterly Payment Date, commencing with the first
such day following August 15, 1994, and on the Commitment Termination Date for
the period then ending."
1.7 Section 5.3.1(a) of the Agreement. Section 5.3.1(a)
of the Agreement is hereby amended and restated in its entirety as
follows:
"(a) the representations and warranties set forth in Article
VI (excluding, however, those contained in Sections 6.6, 6.7, 6.8 and 6.9) shall
be true and correct with the same effect as if then made (unless stated to
relate solely to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date) except for such
changes as are specifically permitted hereunder;"
1.8 Section 7.1.3 of the Agreement. Section 7.1.3 of
the Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Intentionally Omitted."
1.9 Section 7.1.5 of the Agreement. Section 7.1.5 of
the Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Intentionally Omitted."
1.10 Section 7.2.1 of the Agreement. Section 7.2.1 of
the Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Intentionally omitted."
1.11 Section 7.2.3(b) and (d) of the Agreement. Section
7.2.3(b) and (d) of the Agreement are hereby deleted in their
entirety and the following substituted therefor:
"(b) Intentionally omitted."
"(d) Intentionally Omitted."
1.12 Section 7.2.6 of the Agreement. Section 7.2.6 of
the Agreement is hereby deleted in its entirety and the following
substituted therefor:
"Intentionally omitted."
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 FREQUENT TO AMENDMENTS. The amendments
contemplated by Section 1 hereof 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, 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
XXXXXX CORPORATION
By: /s/ X X Xxxxxxxxx
Title: Treasurer
CONTINENTAL BANK, as a Lender
and as Agent
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxxxx X'Xxxxxx
Title: 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 First Amendment dated as of August 15, 1994 ("Amendment") to
Credit Agreement dated June 16, 1993 ("Amendment") between the Company, the
Lenders and Continental Bank, 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 though 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 15th day of August, 1994
/s/ X X Xxxxxxxxx
Treasurer
