Exhibit 10.44
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT dated as of November __, 1999 (the "AMENDMENT") to the
Amended and Restated Credit Agreement dated as of February 28, 1999 and amended
as of May 31, 1999 and September 14, 1999 (as amended, the "CREDIT AGREEMENT")
among XXXXXXX INDUSTRIES INC. (the "BORROWER"), the LENDERS party thereto (the
"LENDERS") and THE CHASE MANHATTAN BANK, as Administrative Agent (the
"ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lenders agree to amend a
provision of the Credit Agreement requiring the receipt by the Borrower of
certain receivables from third parties by a date certain; and
WHEREAS, subject to the terms and conditions set forth herein, the
Lenders have agreed to make the requested amendment;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein that is defined in the Credit Agreement
has the meaning assigned to such term in the Credit 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 Credit Agreement shall, from and after Amendment No. 3
Effective Date (defined below), refer to the Credit Agreement as amended hereby.
SECTION 2. SECTION 5.09(e). Section 5.09(e) of the Credit Agreement is
amended by replacing the expression "November 15, 1999" therein with the
expression "December 10, 1999".
SECTION 3. NO OTHER WAIVERS. Other than as specifically provided
herein, nothing contained herein and no action by, or inaction on the part of,
any Lender or the Administrative Agent shall, or shall be deemed to, operate as
a waiver of any right, remedy, power or privilege of the Administrative Agent or
of any Lender under the Credit Agreement or any other Loan Document or of any
other term or condition of the Credit Agreement or any other Loan Document.
SECTION 4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants that, on and as of the Amendment No. 3 Effective Date, (i) the
representations and warranties of the Obligors set forth in the Loan Documents,
including but not limited to the representation and warranty contained in
Section 3.12 of the Credit Agreement but excluding the representation and
warranty contained in section 3.04(c) of the Credit Agreement, are true and
correct, (ii) no Default has occurred and is continuing, (iii) the Borrower has
no reason to believe that either the Crilar Payment Amount or the UOP Payment
Amount will not be paid in full (with the exception of an agreed $646,000
reduction in the UOP Payment Amount) on or prior to December 10, 1999 and (iv)
the Borrower has no reason to believe that the Insurance Payment Amount (as
defined in the Credit Agreement as amended hereby) will not be paid in full by
the Insurance Providers (as defined in the Credit Agreement as amended hereby)
on or prior to March 15, 2000.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. COUNTERPARTS. 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.
SECTION 7. EFFECTIVENESS. This Amendment shall become effective on the
date (the "AMENDMENT NO. 3 EFFECTIVE DATE") on which the Administrative Agent
shall have received:
(i) from each of the Borrower and the Required Lenders a counterpart
hereof signed by such party or facsimile or other written confirmation (in form
satisfactory to the Administrative Agent) that such party has signed a
counterpart hereof;
(ii) a certificate of the Chief Financial Officer (x) certifying that
the representations and warranties made by the Borrower pursuant to Section 4 of
this Amendment are true and correct on and as of the Amendment No. 3 Effective
Date;
(iii) evidence satisfactory to it that the Borrower shall have paid in
full all fees and expenses of the Administrative Agent payable pursuant to
Section 9.03(a) of the Credit Agreement with respect to which the Borrower shall
have received any invoice delivered to the Borrower at least one Business Day
prior to the Amendment No. 3 Effective Date, it being understood that the
failure of the Administrative Agent to have provided invoices with respect to
such fees and expenses prior to the Amendment No. 3 Effective Date does not
constitute a waiver of, or otherwise affect, the Administrative Agent's right to
reimbursement for such fees and expenses.
2
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment
to be duly executed as of the date first above written.
XXXXXXX INDUSTRIES INC.
By:
---------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By:
---------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
---------------------------
Name:
Title:
0
XXX XXXX XX XXXX XXXXXX
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------
Name:
Title:
AMSOUTH BANK
By:
---------------------------
Name:
Title:
BHF-BANK AKTIENGESELLSCHAFT
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
4
COMERICA BANK
By:
---------------------------
Name:
Title:
NATIONAL BANK OF CANADA
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
PARIBAS
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
5
