EXHIBIT 10.1
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AND
AMENDMENT NO. 1 TO PLEDGE AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT AND AMENDMENT NO. 1 TO PLEDGE
AGREEMENT (this "Agreement") is made and entered into as of this 12th day of
September, 1997 by and between BERLITZ INTERNATIONAL, INC., a New York
corporation (the "Borrower"), each of the undersigned subsidiaries of the
Borrower (the "Subsidiary Pledgors", and together with the Borrower, the
"Pledgors", and each individually a "Pledgor"), NATIONSBANK, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States, in its capacity as a Lender ("NationsBank"), and each
other financial institution executing and delivering a signature page hereto and
each other financial institution which may hereafter execute and deliver an
instrument of assignment with respect to the Credit Agreement described below
pursuant to SECTION 13.1 thereof (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"), and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States, as Agent (the "Agent") for the
Lenders party to the Credit Agreement described below.
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower, the Agent and the Lenders have entered into a Credit
Agreement dated as of August 28, 1997 (the "Credit Agreement");
WHEREAS, the Pledgors and the Agent, on behalf of the Lenders, have entered
into that certain Pledge Agreement dated as of August 28, 1997 (the "Pledge
Agreement");
WHEREAS, the Borrower and the Agent and the Lenders have agreed, subject to
the terms and conditions of this Agreement, to amend the Credit Agreement to,
among other things, amend and update SCHEDULE 8.4 thereto;
WHEREAS, the Pledgors and the Agent have agreed, subject to the terms and
conditions of this Agreement, to amend the Pledge Agreement with respect to
certain pledges contained therein and to amend and update SCHEDULE I thereto,
among other things;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein set forth, it is hereby agreed as follows:
1. DEFINITIONS. The term "Credit Agreement" as used herein and in the
Credit Agreement and the other Loan Documents shall mean the Credit Agreement as
hereby amended and as from time to time further amended or modified. The term
"Pledge Agreement" as used herein and in the Credit Agreement and the other Loan
Documents shall mean the Pledge Agreement as hereby amended and as from time to
time further amended or modified. Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the meaning provided
therefor in the Credit Agreement or the Pledge Agreement, as applicable.
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2. AMENDMENT TO CREDIT AGREEMENT. Subject to the conditions set forth
herein, the Credit Agreement shall be and hereby is amended, effective as of the
date hereof, by deleting SCHEDULE 8.4 in its entirety and inserting in
replacement thereof the amended SCHEDULE 8.4 set forth as Exhibit A hereto.
3. AMENDMENT TO PLEDGE AGREEMENT. Subject to the conditions set forth
herein, the Pledge Agreement shall be and hereby is amended, effective as of the
date hereof, as follows:
(a) The third "WHEREAS" clause of the Pledge Agreement is hereby deleted in
its entirety and the following is inserted in replacement thereof:
WHEREAS, as collateral security for the payment and performance
of the Borrower's obligations under the Credit Agreement and the
Subsidiary Pledgors' obligations under the Guaranty, each Pledgor is
willing to pledge and grant to the Agent for the benefit of the
Lenders a security interest in all or a portion of the issued and
outstanding shares of capital stock, whether now in existence or
hereafter issued, of each of its Subsidiaries required to be subject
to a Pledge Agreement pursuant to the Credit Agreement (the "Pledged
Stock"), including without limitation the Pledged Stock in such
Subsidiaries more particularly described on SCHEDULE I hereto (such
Subsidiaries, together with all other Subsidiaries whose capital stock
may be required to be subject to a Pledge Agreement from time to time,
are hereinafter referred to collectively as the "Pledged
Subsidiaries"); and
(b) The first paragraph of Section 2 of the Pledge Agreement is hereby
deleted in its entirety and the following is inserted in replacement
thereof:
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Each Pledgor hereby represents and warrants to the Agent for the
benefit of the Lenders that (i) all of the issued and outstanding
shares of capital stock of the Pledged Subsidiaries owned by the
Pledgor (the "Stock") are validly issued and outstanding, fully paid
and nonassessable and constitute all the authorized, issued and
outstanding shares of capital stock of each of the Pledged
Subsidiaries of such Pledgor, (ii) the Pledged Stock constitutes the
number of shares of the authorized Stock of the Pledged Subsidiaries
set forth in the column labeled "No. shares Pledged" on SCHEDULE I
hereto, (iii) such Pledgor is the registered and record and beneficial
owner of the Stock, free and clear of all Liens, charges, equities,
encumbrances and restrictions on pledge or transfer (other than Liens
in favor of the Agent and the Lenders and restrictions imposed by
applicable law), (iv) such Pledgor has full corporate power, legal
right and lawful authority to execute this Agreement and to pledge,
assign and transfer the Pledged Stock in the manner and form hereof,
and (v) the pledge, assignment and delivery of the Certificated
Pledged Stock to the Agent for the benefit of the Lenders pursuant to
this Agreement creates, together with the delivery of the certificates
evidencing the Certificated Pledged Stock, which delivery has
heretofore been accomplished, a valid and perfected first priority
security interest in the Certificated Pledged Stock in favor of the
Agent for the benefit of the Lenders, securing the payment of the
Secured Obligations. Except as permitted under SECTIONS 10.3 OR 10.5
of the Credit Agreement, none of the Pledged Stock (nor any interest
therein or thereto) shall be sold, transferred or assigned, nor any
Lien created therein, without the Agent's prior written consent, which
may be withheld for any reason. Each Pledgor covenants with the Agent
for the benefit of the Lenders that it shall at all times cause the
Certificated Pledged Stock to be represented by the certificates now
and hereafter delivered to the Agent in accordance with SECTION 1
hereof and that it shall not cause, suffer or permit any of the
Pledged Subsidiaries to issue any capital stock, or securities
convertible into, or exercisable or exchangeable for, capital stock,
at any time during the term of this Agreement other than to the
Pledgors and subject to this Agreement pursuant to SECTION 17 hereof.
(c) SCHEDULE I is hereby deleted in its entirety and the amended SCHEDULE I
set forth as Exhibit B hereto is inserted in replacement thereof.
4. BORROWER'S REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents, warrants and certifies that:
(1) The representations and warranties made by it in Article VIII of
the Credit Agreement are true and correct in all material respects on and
as of the date hereof before and after giving effect to this Agreement;
(2) The Borrower has the power and authority to execute and perform
this Agreement and has taken all action required for the lawful execution,
delivery and performance thereof;
(3) No Default or Event of Default has occurred and is continuing on
the date hereof, or will occur after giving effect to this Agreement.
5. PLEDGORS' REPRESENTATIONS AND WARRANTIES. Each Pledgor hereby
represents, warrants and certifies that it has the power and authority to
execute and perform this Agreement and has taken all action required for the
lawful execution, delivery and performance thereof.
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6. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding and
agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior negotiations and agreements among the parties relative to
such subject matter. None of the terms or conditions of this Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
9. ENFORCEABILITY. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
[Signature pages follow.]
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER AND PLEDGOR:
BERLITZ INTERNATIONAL, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
OTHER PLEDGORS:
BERLITZ INVESTMENT CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
BERLITZ LANGUAGES, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
BERLITZ DO BRASIL, INC.
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent and as Lender
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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