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Exhibit (4)(ii)
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of October 29, 1997
(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 to extend the Revolving
Credit Maturity Date to October 29, 2000; and
WHEREAS, the Lenders 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;
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:
1. Extension of Revolving Credit Maturity Date. The definition of the
term "Revolving Credit Maturity Date" in Section 1.01 of the Credit Agreement is
hereby amended to substitute the date "October 29, 2000" for the date "October
29, 1999".
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, 1997 (the date of such satisfaction being referred to herein
as the "Effective Date"), of the following further conditions precedent:
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(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. By execution of this Amendment, the Borrower certifies
to the Lenders that as of the Effective Date (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.
2. 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, 1995 and December 31, 1996,
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, 1997, 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, 1997 and December 31, 1996, 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, 1996.
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4. Effectiveness of Amendment. This Amendment shall be
effective from and after the Effective Date upon satisfaction of the conditions
precedent referred to herein.
5. 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.
6. 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.
7. 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
---------------------------
Title Treasurer
MELLON BANK, N.A., individually and
as Agent
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title VP
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
----------------------------
Title Vice President
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XXX XXXX XX XXXX XXXXXX
By /s/ Xxxxx X. Xxxxx
----------------------------
Title Sr. Relationship Manager
