EX-10
XXXXX XXXXXX CORPORATION
FIFTH AMENDMENT TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
This FIFTH AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT
AGREEMENT (this "Amendment") is dated as of September 30, 1996
and entered into by and among XXXXX CORONA CORPORATION, a
Delaware corporation, as debtor and debtor-in-possession (the
"Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders")
and THE CHASE MANHATTAN BANK (formerly known as "Chemical
Bank"), a New York banking corporation, as agent for the
Lenders (in such capacity, the "Agent"), and, for purposes of
Section 4 hereof, the Credit Support Parties (as hereinafter
defined) named on the signature pages hereto, and is made with
reference to that certain Debtor-In-Possession Credit
Agreement dated as of July 10, 1995, as amended by that
certain First Amendment to Debtor-in-Possession Credit
Agreement dated as of July 24, 1995, that certain Second
Amendment to Debtor-in-Possession Credit Agreement dated as of
August 15, 1995 that certain Third Amendment to Debtor-In-
Possession Credit Agreement dated as of December 6, 1995 and
that certain Fourth Amendment to Debtor-In-Possession Credit
Agreement dated as of June 30, 1996 (as so amended, the
"Credit Agreement"), by and among the Borrower, the Lenders
and the Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, the Borrower has requested the Agent and
Lenders to, among other things, (i) extend the maturity date
of the Credit Agreement, (ii) restrict the expiration date of
Letters of Credit as provided herein and (iii) provide for the
amendment of the financial covenants as provided herein; and
WHEREAS, subject to the terms and conditions
contained herein, the Agent and Lenders are willing to consent
to such amendments as provided herein;
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Definitions
The definition of "Termination Date" contained
in subsection 1.1 of the Credit Agreement is hereby amended by
(i) deleting the date "September 30, 1996" therefrom and
substituting therefor the date "December 31, 1996", and (ii)
deleting clause (vi) from such subsection and substituting the
following therefor:
"and (vi) if subsections 6.1(a)
and 6.1(b) have not been amended
by October 16, 1996 in a manner
satisfactory to the Lenders in
their sole discretion in order to
extend the application of such
covenants to December 31, 1996,
October 16, 1996."
1.2 Amendments to Section 2: Amount and Terms of
Commitments
Subsection 2.12(b) is hereby amended by deleting
clause (ii) therefrom and substituting the following therefor:
"(ii) shall expire on or before
June 30, 1997."
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective
only upon the satisfaction of all of the following conditions
precedent (the date of satisfaction of such conditions being
referred to herein as the "Amendment Effective Date"):
A. The Agent shall have received counterparts of
this Amendment (i) executed by the Borrower, each Lender and
the Agent and (ii) for purposes of Section 4 only, executed by
each Credit Support Party (as hereinafter defined) and written
or telephonic notification of such execution and authorization
of delivery thereof.
B. The Bankruptcy Court shall have approved the
execution of this Amendment by the Borrower.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Amendment and to amend the Credit Agreement in the manner
provided herein, the Borrower represents and warrants to each
Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. The Borrower has
all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and
delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate
action on the part of the Borrower.
C. No Conflict. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower
of the Amended Agreement do not and will not (i) violate any
provision of any law or any governmental rule or regulation
applicable to the Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the
Borrower or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on
the Borrower or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse
of time or both) a default under any Contractual Obligation of
the Borrower or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of the Borrower or any of its
Subsidiaries (other than any Liens created under any of the
Loan Documents in favor of the Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual
Obligation of the Borrower or any of its Subsidiaries.
D. Governmental Consents. The execution and
delivery by the Borrower of this Amendment and the performance
by the Borrower of the Amended Agreement do not and will not
require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the
Amended Agreement have been duly executed and delivered by the
Borrower and are the legally valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance
with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties
From Credit Agreement. The representations and warranties
contained in Section 3 of the Credit Agreement are and will be
true, correct and complete in all material respects on and as
of the Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and
is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would
constitute a Default.
Section 4. ACKNOWLEDGEMENT AND CONSENT
The Borrower is a party to the Security Agreement and
the Borrower Pledge Agreement pursuant to which the Borrower
has created Liens in favor of the Agent on certain Collateral
to secure the Obligations. Each Subsidiary Guarantor is party
to the Subsidiary Guaranty pursuant to which the Subsidiary
Guarantors have guarantied the Obligations. The Subsidiary
Guarantors party to the Guarantor Pledge Agreement have
created Liens in favor of the Agent to secure the obligations
of such Subsidiary Guarantor under the Subsidiary Guaranty.
The Borrower and the Subsidiary Guarantors are collectively
referred to herein as the "Credit Support Parties."
Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement
and this Amendment and consents to the amendment of the Credit
Agreement effected pursuant to this Amendment. Each Credit
Support Party hereby confirms that each Collateral Document to
which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the
case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and
"Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Collateral Document),
including without limitation the payment and performance of
all such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the
Obligations of the Borrower now or hereafter existing under or
in respect of the Amended Agreement and the Notes.
Each Credit Support Party acknowledges and agrees
that any of the Collateral Documents to which it is a party or
otherwise bound shall continue in full force and effect and
that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit
Support Party represents and warrants that all representations
and warranties contained in the Amended Agreement and the
Collateral Documents to which it is a party or otherwise bound
are true, correct and complete in all material respects on and
as of the Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
Each Credit Support Party (other than the Borrower)
acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such
Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the
amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
Section 5. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement
and the Other Loan Documents.
(i) On and after the Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein" or words of like import
referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring
to the Credit Agreement shall mean and be a reference to
the Amended Agreement.
(ii) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are
hereby ratified and confirmed.
(iii) The execution, delivery and performance of
this Amendment shall not, except as expressly provided
herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of the
Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.
B. Fees and Expenses. The Borrower acknowledges
that all costs, fees and expenses as described in subsection
9.5 of the Credit Agreement incurred by Agent and its counsel
with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of
the Borrower.
C. Headings. Section and subsection headings in
this Amendment are included herein for convenience of
reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive
effect.
D. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
XXXXX XXXXXX CORPORATION,
as debtor and debtor-in-
possession
By: /s/ Xxxx X.
Xxxxxxxxxxx
Title: Sr. VP & CFO
THE CHASE MANHATTAN BANK
(formerly known as "Chemical
Bank"),
as Agent and as a Lender
By: /c/ Xxxxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS
By: /s/ X. X. Xxxxxxxx
Title: VP
SCM (UNITED KINGDOM) LIMITED,
(for purposes of Section 4 only)
as a Credit Support Party
By:/s/ Xxxx X. Xxxxxxxxxxx
Title:
XXXXX CORONA OVERSEAS
HOLDINGS, INC., (for purposes of
Section 4 only) as a Credit
Support Party
By:/s/ Xxxx X. Xxxxxxxxxxx
Title:
XXXXX CORONA (UK), LIMITED, (for
purposes of Section 4 only) as a
Credit Support Party
By: /s/ Xxx Xxxxxx
Title: Director
