Exhibit 10.32
THIRD AMENDMENT, dated as of September 25, 1997 (this "Third
Amendment"), among: (i) VDK HOLDINGS, INC., a Delaware corporation ("Holdings");
(ii) VAN XX XXXX'X, INC., a Delaware corporation (the "Borrower"); (iii) the
several lenders and other financial institutions listed on the signature pages
of this Third Amendment (individually, a "Lender", and collectively, the
"Lenders") and (iv) THE CHASE MANHATTAN BANK, a New York banking corporation (as
successor to The Chase Manhattan Bank, N.A.), as Agent, amending the Second
Amended and Restated Credit and Guarantee Agreement, dated as of July 9, 1996
(as amended, supplemented or otherwise modified prior to the date hereof, the
"Credit Agreement"), among the Borrower, Holdings, the Lenders and the Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested the Lenders to agree to amend the
Credit Agreement to adjust the capital expenditures covenant of the Borrower as
set forth in this Third Amendment;
WHEREAS, the Lenders are willing to agree to the amendments requested
by the Borrower,
NOW THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
1. Defined Terms. Unless otherwise defined herein and except as set
forth in this Third Amendment, terms defined in the Credit Agreement are used
herein as therein defined.
2. Amendment to Subsection 8.8. Subsection 8.8 of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in lieu thereof the following new subsection 8.8:
"8.8 Limitation on Capital Expenditures. Make or commit to make
Capital Expenditures in excess of $16,500,000 in the aggregate for the
Borrower and its Subsidiaries during the 1998 fiscal year of the Borrower
and in excess of $12,000,000 in the aggregate for the Borrower and its
Subsidiaries during any subsequent fiscal year of the Borrower, provided,
that (i) Capital Expenditures not in excess of $1,500,000 permitted to be
made during any fiscal year (and not carried over from a prior fiscal year)
and not made during such fiscal year may be carried over and expended
during the next succeeding fiscal year and (ii) Capital Expenditures made
during any fiscal year shall be first deemed made in respect of amounts
carried over from the prior fiscal year and then deemed made in respects of
amounts permitted for such fiscal year."
3. Deletion of Schedule 8.8. The Credit Agreement is hereby amended
by deleting Schedule 8.8 to the Credit Agreement in its entirety.
4. Miscellaneous.
(a) Effectiveness. The amendments provided for herein shall become
effective as of the date hereof (the "Effective Date") upon the receipt by the
Administrative Agent of counterparts of this Third Amendment, duly executed and
delivered by the Borrower, Holdings and the Required Lenders.
(b) Representations and Warranties. After giving effect to the
amendments contained herein, on the Effective Date, the Borrower hereby
confirms, reaffirms and restates the representations and warranties set forth in
Section 5 of the Credit Agreement; provided that each reference in such Section
5 to "this Agreement" shall be deemed to be a reference both to this Third
Amendment and to the Credit Agreement as amended by this Third Amendment.
(c) Continuing Effect; No Other Amendments. Except as expressly
amended or waived hereby, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect. The amendments
contained herein shall not constitute an amendment or waiver of any other
provision of the Credit Agreement or for any purpose except as expressly set
forth herein.
(d) Counterparts. This Third Amendment may be executed in any number
of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all the counterparts shall together
constitute one and the same instrument.
(e) GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
VDK HOLDINGS, INC.
By: /s/ M. Xxxxxx Xxxxxxxx
----------------------
Title: Vice President
VAN XX XXXX'X, INC.
By: /s/ M. Xxxxxx Xxxxxxxx
----------------------
Title: Vice President
THE CHASE MANHATTAN BANK, as Agent
and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Title: Managing Director
4
BANQUE PARIBAS
By:
------------------------------
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
------------------------------
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxx
------------------------------
Title: Vice President
By: /s/ W. Xxxxxx X. Xxxxx
------------------------------
Title: Vice President
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:
------------------------------
Title:
By:
------------------------------
Title:
FLEET NATIONAL BANK (successor in interest
to Fleet Bank of Massachusetts, N.A.)
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Senior Vice President
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxx Xxxxxxx
------------------------------
Title: Vice President
5
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ C. Xxxxxx Picullell
------------------------------
Title: Vice President
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Authorized Signatory
PRIME INCOME TRUST
By:
------------------------------
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
STRATA FUNDING LTD.
By: /s/ Xxxx Xxxxxxxxx
------------------------------
Title: Director
6
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: XXXXXXX XXXXX ASSET MANAGEMENT
L.P., as Investment Adviser
/s/ Xxxxxxx X. Xxxxxxxx
By: ____________________________
Title: Authorized Signatory
BANQUE NATIONALE DE PARIS
By: ____________________________
Title:
By: ____________________________
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
/s/ Xxxxx X. Xxxxxxxxxx
By: ____________________________
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION
/s/ Xxxxxx X. Xxxxxx
By: ____________________________
Title: Vice President
MARINE MIDLAND BANK
/s/ Xxxxxx Xxxxx
By: ____________________________
Title: Authorized Signatory
NEW YORK LIFE INSURANCE COMPANY
By: ____________________________
Title:
0
XXXXXXX XXXXXXX PRIME RATE TRUST
/s/ Xxxxxx X. Xxxxxx
By: __________________________
Title: Senior Vice President
SENIOR HIGH INCOME PORTFOLIO, INC.
/s/ Xxxxxxx X. Xxxxxxxx
By: __________________________
Title: Authorized Signatory
FEDERAL STREET PARTNERS
By: __________________________
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By: __________________________
Title:
