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Exhibit 10(p)
AMENDMENT AGREEMENT NO. 1
to that certain
REVOLVING CREDIT AGREEMENT
dated as of July 22, 1994
This AMENDMENT AGREEMENT NO. 1 (the "Amendment"), dated as of December
31, 1995, is by and among XXXXX INC. (the "Borrower"), THE FIRST NATIONAL BANK
OF BOSTON, FLEET NATIONAL BANK OF MASSACHUSETTS (formerly known as Shawmut
Bank, N.A.), NATIONSBANK OF NORTH CAROLINA, N.A., NATWEST BANK NA (formerly
known as National Westminster Bank USA) and such other lending institutions
that are or may become parties to the Credit Agreement referred to below
(collectively, the "Banks") and THE FIRST NATIONAL BANK OF BOSTON, as agent for
the Banks (the "Agent").
WHEREAS, the Borrower, the Banks and the Agent are parties to that
certain Revolving Credit Agreement dated as of July 22, 1995 (as amended,
restated, modified or supplemented and in effect from time to time, the "Credit
Agreement"), pursuant to which the Banks, upon certain terms and conditions,
have made loans to the Borrower, and
WHEREAS, the Borrower has requested that the Banks agree, and the Banks
have agreed, on the terms and subject to the conditions set forth herein, to
amend certain provisions of the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Sec. 1. DEFINED TERMS. Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have the
same meanings herein as in the Credit Agreement.
Sec. 2. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is
hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended by
amending certain defined terms therein as follows:
(i) The term "Applicable Margin" is hereby amended by deleting
the words "(provided, that for the purpose of calculating such ratio in
connection with determining the Applicable Margin, Consolidated
Principal Payments on Long Term Debt shall exclude payments of principal
on the Private Placement Debt)" in the second through fifth lines
thereof.
(ii) The term "Cash Flow Coverage Ratio" is hereby deleted in
its entirety and replaced with the following new definition:
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Cash Flow Coverage Ratio. The ratio of (i) Consolidated
Operating Cash Flow for any period of four consecutive fiscal
quarters to (ii) the sum, for such period, of Consolidated Total
Interest Expense plus Consolidated Operating Lease Expense.
(iii) The term "Commitment Fee Rate" is hereby amended by
deleting the words "(provided, that for the purpose of calculating such
ratio in connection with determining the Commitment Fee Rate,
Consolidated Principal Payments on Long Term Debt shall exclude payments
of principal on the Private Placement Debt)" in the second through fifth
lines thereof.
(iv) The term "Consolidated Current Liabilities" is hereby
amended by inserting, after the final proviso thereof, the following new
proviso;
; and provided, further, that Consolidated Current Liabilities
shall not include the Private Placement Debt to the extent
otherwise included in the calculation of Consolidated Current
Liabilities.
(v) The term "Consolidated Principal Payments on Long Term
Debt" is hereby deleted in its entirety.
(vi) The term "Earnings Before Interest and Taxes" is hereby
amended by deleting the final period thereof and replacing it with the
following proviso:
; provided that for purposes of calculating Consolidated
Operating Cash Flow as used in the determination of the Cash
Flow Coverage Ratio and for determining the Borrower's
compliance with the covenant set forth in Sec. 8.2 hereof, there
shall be added to Earnings Before Interest and Taxes for the
Borrower's fiscal quarter ending December 31, 1995, the amount
of the Restructuring Charge.
(vii) Section 1.1 of the Credit Agreement is hereby amended by
adding thereto the following new definition:
Restructuring Charge. The restructuring charge or
charges taken by the Borrower in the Borrower's fiscal quarter
ending December 31, 1995 only as described on Schedule 2
attached hereto in an aggregate amount not to exceed
$35,000,000.
(b) Section 7.5.1 of the Credit Agreement is hereby amended by
deleting the ratio "1.30 to 1" in the fifteenth line thereof and replacing it
with the ratio "1.40 to 1".
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(c) Section 8.1 of the Credit Agreement is hereby amended by
deleting the ratio "1.3 to 1" in the third line thereof and replacing it with
the ratio "1.40 to 1".
(d) Section 8.3 of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
SEC. 8.3 CURRENT RATIO. The Borrower will not permit the ratio
of Consolidated Current Assets to Consolidated Current Liabilities, as
at the end of any fiscal quarter of the Borrower ending during the
periods set forth below, to be less than the ratio set forth opposite
the applicable period:
Period Ratio
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Closing Date through 12/30/95 2.00 to 1
12/31/95 through 12/30/96 1.50 to 1
12/31/96 and thereafter 2.00 to 1
(e) Section 8.5 of the Credit Agreement is hereby amended by
deleting the amount "$155,000,000" in the third line thereof and replacing it
with the amount "$140,000,000".
(f) The Credit Agreement is hereby amended by adding thereto
Schedule 2 attached hereto.
SEC. 3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants to the Agent and the Banks as follows:
(a) Representations and Warranties in the Credit Agreement. The
representations and warranties of the Borrower contained in the Credit Agreement
were true and correct when made and continue to be true and correct on and as of
the date hereof as if made on the date hereof except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and to the extent that such representations and warranties relate expressly to
an earlier date. No Default or Event of Default has occurred and is continuing.
(b) Incorporation; Good Standing; Authorization; Enforceability. The
Borrower hereby confirms that the representations and warranties of the Borrower
contained in secs. 5.1.1, 5.1.2 and 5.1.3 of the Credit Agreement are true and
correct on and as of the date hereof as if made on the date hereof.
SEC. 4. EFFECTIVENESS. The effectiveness of this Amendment shall be
subject to the satisfaction of the following conditions precedent:
(a) Delivery of Amendment. This Amendment shall have been duly
executed and delivered by each of the Borrower, the Majority Banks and the
Agent,
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shall be in full force and effect and shall be in form and substance
satisfactory to each of the Banks. The Agent shall have received a fully
executive copy of this Amendment.
(b) Proceedings and Documents. All proceedings in connection with the
transactions contemplated by this Amendment and all documents incident thereto
shall be reasonably satisfactory in substance and form to the Agent, and the
Agent shall have received all information and such counterpart originals or
certified or other copies of such documents as the Agent may reasonably
request.
Sec. 5. MISCELLANEOUS PROVISIONS. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of
the parties hereto that this Amendment shall be a Loan Document under and as
defined in the Credit Agreement, that the Credit Agreement, as amended hereby,
shall continue in full force and effect, and that this Amendment and the Credit
Agreement shall be read and construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER
SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for
more than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) The Borrower hereby agrees to pay the Banks and the Agent, on
demand by the Banks and the Agent, all reasonable out-of-pocket costs and
expense incurred or sustained by such Persons in connection with the
preparation of this Amendment (including reasonable legal fees).
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXX INC.
By: /s/ XXXXX X. XXXXXXXX
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Title: Treasurer
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By:
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Title:
SHAWMUT BANK, N.A.
By:
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Title:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
------------------------------
Title:
NATIONAL WESTMINSTER BANK
USA
By:
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Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXX INC.
By:
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Title:
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: /s/
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Title: Director
SHAWMUT BANK, N.A.
By:
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Title:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
------------------------------
Title:
NATIONAL WESTMINSTER BANK
USA
By:
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Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXX INC.
By:
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Title:
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By:
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Title:
FLEET NATIONAL BANK OF
MASSACHSUETTS
f/k/a Shawmut Bank, N.A.
By: /s/
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Title: Vice Preisdent
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
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Title:
NATIONAL WESTMINSTER BANK
USA
By:
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Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXX INC.
By:
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Title:
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By:
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Title:
SHAWMUT BANK, N.A.
By:
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Title:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By: /s/ Xxxxxx X. Van
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Title: Senior Vice President
NATIONAL WESTMINSTER BANK
USA
By:
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Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
XXXXX INC.
By: /s/
------------------------------
Title:
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By:
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Title:
SHAWMUT BANK, N.A.
By:
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Title:
NATIONSBANK OF NORTH
CAROLINA, N.A.
By:
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Title:
NATWEST BANK N.A. (formerly known
as NATIONAL WESTMINSTER BANK
USA)
By: /s/
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Title: Vice President
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SCHEDULE 2
ACCOUNTING FOR RESTRUCTURING COSTS
The information regarding Accounting for Restructuring Costs has been supplied
to the lending institutions participating in the Revolving Credit Agreement.
