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EXHIBIT 4.4 (f)
First Amendment to the Amended and Restated Revolving
Credit Agreement dated as of November 25, 1992, as
amended and restated as of June 1, 1996, among Xxxxxx
General Corporation, Xxxxxx General LLC, the Banks named
therein and BankBoston, N.A., as agent, dated as of
December 11, 1998
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EXHIBIT 4.4(f)
XXXXXX GENERAL CORPORATION
XXXXXX GENERAL LLC
FIRST AMENDMENT
FIRST AMENDMENT ("Amendment"), dated as of December 11, 1998, among
Xxxxxx General Corporation, a Delaware corporation, Xxxxxx General LLC, a
Delaware limited liability company, the Banks party to the Credit Agreement
referred to below, and BankBoston, N.A. as agent for itself and the other Banks.
The parties agree as follows:
1. REFERENCE TO CREDIT AGREEMENT. Reference is made to the Revolving
Credit and Term Loan Agreement, dated as of November 25, 1992 and
amended and restated as of June 1, 1996, among Xxxxxx General
Corporation, Xxxxxx General LLC, the Banks named therein and
BankBoston, N.A. as agent for itself and the other Banks (such
agreement, the "Credit Agreement"). Capitalized terms which are used
herein without definition and which are defined in the Credit Agreement
shall have the same meanings herein as therein.
2. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
2.1. SECTION 5.12. LIMITATION ON BORROWING. This section is amended
to add the following clause after clause (i) thereof:
(j) CDF Indebtedness in an aggregate amount not to exceed
$15,000,000.
2.2. SECTION 5.13. RESTRICTION ON LIENS. This section is amended to
add the following at the end of clause (h) thereof:
"liens on the CDF Equipment and CDF Contract Rights in favor
of Newcourt Financial Ltd. in order to secure obligations of
Aviation in respect of the CDF Indebtedness; and liens on the
CDF Equipment in favor of Greater Toronto Airports Authority
("GTAA") to secure obligations of Aviation under the Central
De-Icing Facility Services Agreement dated as of December 29,
1997 between GTAA and Aviation, to be amended as of December
18, 1998 pursuant to an amendment in substantially the form
attached hereto (the "Services Agreement");".
2.3. SECTION 5.14. LIMITATION ON LEASE COMMITMENTS. This section is
amended in its entirety to read as follows:
The aggregate of the annual rental payments of the Company and its
Subsidiaries with respect to leases of personal property
having original terms of three years or more, other than
leases on which a Subsidiary of the Company is lessor and the
Company is lessee, shall not exceed $7,500,000 in any fiscal
year.
2.4. SECTION 5.15. INVESTMENTS AND CONTINGENT LIABILITIES. This
section is amended in its entirety to read as follows:
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Neither the Company nor any of its Subsidiaries will make or
have outstanding at any time any investments or contingent
liabilities, including, without limitation, any investments or
contingent liabilities in or with respect to Xxxxxx Kohala
Inc., whether by way of loan, advance, guaranty, letter of
credit exposure, extension of credit, purchase of stocks,
notes, bonds or other securities or evidences of indebtedness,
or acquisition of limited or general partnership interests,
other than:
(a) those in existence on the date of this Agreement and
shown on Schedule 5.15 attached hereto, and any
renewals, extensions or refinancings thereof, provided
that the amount thereof is not increased;
(b) investments in marketable, investment grade, direct or
guaranteed obligations of (i) the United States of
America (referred to as Treasury or Agency securities)
or Repurchase Agreements collateralized by such
obligations; or (ii) any State or municipality thereof,
which mature within seven years from the date of
purchase;
(c) investments in demand deposits, certificates of
deposits, time deposits, banker's acceptances and notes
of any Bank or any domestic or foreign financial
institution having total capital and unimpaired surplus
of at least $1,000,000,000 and which, at the time of
purchase, have been rated by either of Xxxxx'x Investor
Service, Inc. ("Moody's") or Standard and Poor's Rating
Group ("S&P") and the ratings for such financial
institution are not less than P-1/A if rated by Moody's
or A-1/A if rated by S&P;
(d) securities commonly known as "commercial paper",
"master notes" or corporate bonds which mature within
seven years from the date of purchase, in each case
issued by a corporation which at the time of purchase
have been rated by either of Moody's or S&P, and the
ratings for such commercial paper are not less than
"P-1" if rated by Moody's or "A-1" if rated by S&P, and
for such bonds, are not less than "A" if rated by
either Moody's or S&P;
(e) Money market mutual funds that invest in securities
referred to in (b) through (d) above;
(f) (i) the Guaranty, (ii) each Subsidiary Guaranty, and
(iii) unsecured guaranties by the Company of
obligations of Subsidiaries (other than Aviation and
the Foreign Subsidiaries) aggregating no more than
$5,000,000 at any one time outstanding;
(g) those arising in the ordinary course of business or
consistent with the past business practices of the
Company and its Subsidiaries;
(h) investments in Subsidiaries (other than Aviation and
the Foreign Subsidiaries);
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(i) letters of credit (including Letters of Credit) of not
more than $7,000,000 in the aggregate at any one time
outstanding;
(j) the guaranty by the Company of obligations of Aviation,
specifically relating to the financing of CDF Equipment
in an amount not to exceed $10,000,000;
(k) with respect to Aviation, investments permitted under
the Aviation Revolving Credit Agreement;
(l) in addition to the foregoing, investments by the
Company and its subsidiaries not exceeding $3,000,000
in the aggregate at any one time outstanding;
(m) investments in Aviation and the Foreign Subsidiaries
and investments in Joint Ventures, provided that the
aggregate amount by which such investments increase
during the period commencing on the date hereof and
ending on any date of determination (disregarding for
purposes of this calculation an investment of one type
which is replaced by an investment of another type in
an identical amount) shall not exceed $5,000,000; and
(n) investments by the Company in a passenger handling
services entity which is an affiliate of LAGS or
Deutsche Lufthansa AG, as set forth in Paragraph 10.3
of the Purchase Agreement.
2.5. SECTION 5.18 LIMITATIONS ON CAPITAL EXPENDITURES. This section
is amended to insert the following after the second "capital
expenditures" appearing in such section:
other than expenditures in an aggregate amount not to exceed
$15,000,000 for the acquisition or lease of CDF Equipment,
2.6. EXHIBIT A - DEFINITIONS. Definitions shall be amended and
added as follows:
Definitions shall be amended as follows:
CONSOLIDATED CASH INTEREST - Insert after "indebtedness"
appearing in such definition:
other than CDF Indebtedness,
CONSOLIDATED DEBT SERVICE - Insert after "Revolving Credit
Loans" appearing in such definition:
and the CDF Indebtedness
CONSOLIDATED LIABILITIES - Delete all text from immediately
after "equal to" appearing in such definition and add the
following:
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(a) the consolidated deferred tax debits of the Company and
its Subsidiaries, and (b) CDF Indebtedness, all as determined
in accordance with generally accepted accounting principles.
Definitions shall be added in the order required by
alphabetical order as follows:
CDF CONTRACT RIGHTS - Contractual rights of Aviation under
Sections 12.2(b)(i) and 12.3(b)(i) of the Services
Agreement and the contractual right of Aviation under the
Services Agreement to require GTAA to assume or repay
Aviation's obligations in respect of the CDF Indebtedness.
CDF EQUIPMENT - Capital assets to be acquired or leased and
utilized by Aviation in providing deicing services at the
Central Deicing Facility at Xxxxxx X. Xxxxxxx International
Airport in Toronto.
CDF INDEBTEDNESS - The indebtedness of Aviation to unrelated
third party lenders incurred solely for the financing of, and
secured by, the CDF Equipment.
SERVICES AGREEMENT - See paragraph 5.13(h).
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks to
enter into this Amendment, the Company represents and warrants to the
Banks that (i) this Amendment and the Credit Agreement, as amended
hereby (the "Amended Credit Agreement"), have been duly authorized and
are its legal, valid and binding obligations, enforceable against the
Company in accordance with their terms, (ii) this Amendment and the
Amended Credit Agreement do not conflict with any charter document,
agreement, instrument or undertaking binding upon the Company or any of
its properties, (iii) no Default, or situation which with the giving of
notice or the passage of time or both would become a Default, now
exists or will exist after giving effect to this Amendment, and (iv)
the representations and warranties contained in the Credit Agreement
and this Amendment are true and correct as of the date hereof.
4. MISCELLANEOUS. The Amended Credit Agreement and all of the Loan
Documents are each ratified and confirmed as being and continuing in
full force and effect. This Amendment, the Amended Credit Agreement and
the other Loan Documents constitute the entire understanding of the
parties with respect to the subject matter hereof and thereof and
supersede all prior understandings and agreements, whether written or
oral. This Amendment and the Credit Agreement shall be read and
construed as one agreement, and, except as expressly amended hereby,
the Credit Agreement remains unchanged. The headings in this Amendment
are for convenience of reference only and shall not alter, limit or
otherwise affect the meaning hereof. This Amendment is a Loan Document
as defined in the Amended Credit Agreement and may be executed in any
number of counterparts, which together shall constitute one instrument,
and shall bind and inure to the benefit of the parties and their
respective successors and permitted assigns. The Company shall pay all
costs and expenses, including reasonable legal fees and
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disbursements of the Agent's counsel, incurred by the Agent in
preparing this Amendment. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS
RULES) OF THE COMMONWEALTH OF MASSACHUSETTS.
The undersigned have executed this Amendment under seal by a duly
authorized officer as of the date first set forth above.
XXXXXX GENERAL CORPORATION
By:
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Title:
XXXXXX GENERAL LLC
By:
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Title:
BANKBOSTON, N.A.,
for itself and as Agent
By:
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Title:
EUROPEAN AMERICAN BANK
By:
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Title:
THE CHASE MANHATTAN BANK
By:
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