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EXHIBIT 4.4(e)
CONFORMED COPY
AMENDMENT NO. 6 TO CREDIT AGREEMENT
AMENDMENT dated as of July 21, 1999 among XXXXXX INDUSTRIES, INC. (the
"BORROWER"), the BANKS listed on the signature pages hereof (the "BANKS"),
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the "AGENT") and XXXXX
FARGO BANK, N.A., as Co-Agent (the "CO-AGENT").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into an Amended and
Restated Credit Agreement dated as of December 22, 1994 (as heretofore amended,
the "AGREEMENT") and desire to amend the Agreement as set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Agreement shall
have the meaning assigned to such term in the Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Agreement shall from and after the date hereof refer to the
Agreement as amended hereby.
SECTION 2. Definition of Consolidated EBIT. The definition of
"Consolidated EBIT" in Section 1.01 is amended to read as follows:
"CONSOLIDATED EBIT" means, for any period, the sum of
Consolidated Net Income for such period plus, to the extent deducted in the
determination of such Consolidated Net Income, Consolidated Interest Expense for
such period and the provision for income taxes for such period; provided that
Consolidated EBIT shall be adjusted to exclude the effect of up to $110,000,000
in non-recurring charges relating to divestiture/exit of non-core businesses and
plant consolidation subsequent to July 31, 1998.
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SECTION 3. Definition of Consolidated EBITDA. The definition of
"Consolidated EBITDA" in Section 1.01 is amended to read as follows:
"CONSOLIDATED EBITDA" means, for any period, the Consolidated
Net Income of the Borrower and its Consolidated Subsidiaries for such period
before cumulative effect of accounting changes, provision for income tax,
interest expense and depreciation and amortization expense; provided that
Consolidated EBITDA shall be adjusted to exclude the effect of up to
$110,000,000 in non-recurring charges relating to divestiture/exit of non-core
businesses and plant consolidation subsequent to July 31, 1998.
SECTION 4. Leverage Ratio. Section 5.05 is amended to read as
follows:
SECTION 5.05. Leverage Ratio. The Leverage Ratio
will at no time exceed 320%.
SECTION 5. Representations and Warranties. The Borrower hereby
represents and warrants that as of the date hereof and after giving effect
hereto:
(a) no Default under the Agreement has occurred and is continuing;
and
(b) each representation and warranty of the Borrower set forth in the
Agreement is true and correct as though made on and as of this date.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts; Effectiveness. This Amendment may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Amendment shall become effective as of the date hereof when the Agent shall
have received duly executed counterparts hereof signed by the Borrower and the
Required Banks (or, in the case of any party as to which an executed counterpart
shall not have been received, the Agent shall have received telegraphic, telex
or other written confirmation from such party of execution of a counterpart
hereof by such party).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as Bank
and Agent
By: /s/ Sovonna L. Day
-----------------------------------
Name: Sovonna L. Day
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
XXXXX FARGO BANK, N.A., as Bank and
Co-Agent
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Felynn X. Xxxxx
-----------------------------------
Name: Felynn X. Xxxxx
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxx X. XxXxxxx
-----------------------------------
Name: Xxxx X. XxXxxxx
Title: Managing Director
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THE BANK OF NEW YORK
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
UBS AG, Stamford Branch
By: /s/ Xxxxxxx Saint
-----------------------------------
Name: Xxxxxxx Saint
Title: Associate Director
Loan Portfolio Support, US
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Associate Director
Loan Portfolio Support, US
THE BANK OF NOVA SCOTIA
By: /s/ X. X. Xxxxxxxx
-----------------------------------
Name: X. X. Xxxxxxxx
Title: Relationship Manager
CIBC INC.
By: /s/
-----------------------------------
Name:
Title:
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Analyst
DRESDNER BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ A. Xxxxxxx Xxxxxx
-----------------------------------
Name: A. Xxxxxxx Xxxxxx
Title: First Vice President
By: /s/ Xxxxxxx Xxxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Assistant Treasurer
MELLON BANK, N.A.
By: /s/ X. Xxxx
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Name: X. Xxxx
Title: Vice President
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BANK OF AMERICA, N.A. [Successor
through merger to NationsBank, N.A.]
By: /s/ Xxxx X. XxXxxxx
-----------------------------------
Name: Xxxx X. XxXxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF
CHICAGO
By: /s/ Xxxxx Xxxxxxx-Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxxx
Title: Customer Service Officer
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: Officer
BANK OF HAWAII
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
