THIRD AMENDMENT TO
XXXXXXXXXX TECHNOLOGY INCORPORATED
CREDIT AGREEMENT
This Third Amendment (this "AMENDMENT") is entered into as of March
2, 1998 by and between XXXXXXXXXX TECHNOLOGY INCORPORATED (the "BORROWER")
and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (in such capacity, the
"AGENT") and Lender. The parties hereto agree as follows:
WHEREAS, the Borrower, the agent, and the Lender have entered into
that certain Credit Agreement dated as of December 8, 1995 as amended by the
First Amendment dated as of June 22, 1996 and the Second Amendment dated as
of February 24, 1997 (as so amended, the "AGREEMENT"); and
WHEREAS, the parties thereto desire to amend the Agreement in certain
respects more fully described hereinafter;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used and not otherwise defined
in this Amendment shall have the meanings attributed to them in the Agreement.
2. AMENDMENT OF AGREEMENT. The Agreement is hereby amended as
follows:
2.1. SECTION 1.1 OF THE AGREEMENT IS MODIFIED TO DELETE THE
DEFINITIONS OF "FACILITY LETTER OF CREDIT COMMITMENT" AND "FACILITY
TERMINATION DATE" CONTAINED THEREIN IN THEIR ENTIRETY AND TO SUBSTITUTE
THE FOLLOWING THEREFOR:
"FACILITY LETTER OF CREDIT COMMITMENT" MEANS $1,500,000.
"FACILITY TERMINATION DATE" MEANS MARCH 15, 1999.
2.2. SECTION 1.1 OF THE AGREEMENT IS FURTHER MODIFIED TO ADD THE
FOLLOWING DEFINITIONS IN THE APPLICABLE ALPHABETICAL LOCATION:
"FACILITY LETTER OF CREDIT BASE RATE" MEANS, WITH RESPECT TO A
FACILITY LETTER OF CREDIT, THE RULE DETERMINED BY THE AGENT TO BE THE RATE AT
WHICH ONE-MONTH DEPOSITS IN U.S. DOLLARS ARE OFFERED BY FIRST CHICAGO TO
FIRST-CLASS BANKS IN THE LONDON INTERBANK MARKET AT APPROXIMATELY 11 A.M.
(LONDON TIME) (i) INITIALLY ON THE EFFECTIVENESS OF THE THIRD AMENDMENT TO
THIS AGREEMENT AND THEREAFTER (ii) TWO BUSINESS DAYS PRIOR TO THE MONTHLY
ANNIVERSARY OF SUCH EFFECTIVE DATE, IN THE APPROXIMATE AMOUNT OF THE
OUTSTANDING FACILITY LETTERS OF CREDIT FOR A ONE-MONTH INTEREST PERIOD.
"FACILITY LETTER OF CREDIT RATE" MEANS, WITH RESPECT TO EACH FACILITY
LETTER OF CREDIT, A RATE PER ANNUM EQUAL TO THE SUM OF (i) (a) THE FACILITY
LETTER OF CREDIT BASE RATE, DIVIDED BY (b) ONE MINUS THE APPLICABLE RESERVE
REQUIREMENT (EXPRESSED AS A DECIMAL), IF ANY, PLUS (ii) TWO PERCENT (2.00%)
PER ANNUM.
2.3 SECTION 2.1 OF THE AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
2.1 [INTENTIALLY BLANK].
2.4 SECTION 2.2.4(a) OF THE AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
(a) THE BORROWER HEREBY AGREES TO PAY THE ISSUING LENDER AND THE
LENDERS A FEE (CALCULATED FOR THE ACTUAL NUMBER OF DAYS ELAPSED ON THE BASIS
OF A YEAR CONSISTING OF 360 DAYS) ON ANY UNDRAWN PORTION OF EACH FACILITY
LETTER OF CREDIT FROM TIME TO TIME OUTSTANDING EQUAL TO THE GREATER OF (a)
THE FACILITY LETTER OF CREDIT RATE APPLICABLE FROM TIME TO TIME OR (b) $1,500
FOR EACH YEAR OR ANY PART THEREOF.
2.5 SECTION 2.2.5(a) OF THE AGREEMENT IS AMENDED TO DELETE THE FINAL
SENTENCE THEREOF IN ITS ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
AMOUNTS WHICH THE BORROWER HAS AGREED TO REIMBURSE THE LENDERS PURSUANT TO
THE PRECEDING SENTENCE SHALL BE DUE ON DEMAND AND SHALL BEAR INTEREST UNTIL
PAID AT A RATE PER ANNUM (CALCULATED FOR THE ACTUAL NUMBER OF DAYS ELAPSED ON
THE BASIS OF YEAR CONSISTING OF 360 DAYS) EQUAL TO THE FLOATING RATE PLUS 2%
PER ANNUM.
2.6 SECTION 2.2.5(b) OF THE AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
(b) [INTENTIONALLY BLANK.]
2.7 SECTION 2.5 OF THE AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
2.5 REDUCTION OF AGGREGATE COMMITMENTS. EFFECTIVE AS OF MARCH 2,
1998, THE AGGREGATE COMMITMENT IS REDUCED TO $1,500,000 AND FROM AND AFTER
MARCH 2, 1998, THE LENDERS SHALL NO LONGER HAVE ANY OBLIGATION TO MAKE LOANS
HEREUNDER.
2.8 SECTION 6.11 OF THE AGREEMENT IS AMENDED TO ADD THE FOLLOWING AT
THE END THEREOF:
Page 2
(x) UNSECURED SUBORDINATED INDEBTEDNESS NOT OTHERWISE PERMITTED
UNDER THIS SECTION 6.11 IN AN AGGREGATE AMOUNT NOT EXCEEDING
$175,000,000 AT ANY ONE TIME OUTSTANDING, THE TERMS OF WHICH
SUBORDINATED INDEBTEDNESS, INCLUDING WITHOUT LIMITATION, THOSE
PERTAINING TO SUBORDINATION, DEFAULT, STANDSTILL, SINKING
FUND, AMORTIZATION, INTEREST RATE, CONVERSION FEATURES,
COVENANTS AND DEFAULTS, SHALL BE IN FORM AND SUBSTANCE
REASONABLY ACCEPTABLE TO THE AGENT AND THE LENDERS. AS THE
BORROWER KNOWS, OTHER BUSINESS UNITS AT THE AGENT ARE
PROVIDING OTHER FINANCIAL SERVICES AND PRODUCTS TO THE
BORROWER IN CONNECTION WITH THE PROPOSED SUBORDINATED
INDEBTEDNESS TRANSACTION. THE BORROWER ACKNOWLEDGES AND
CONSENTS TO THESE MULTIPLE ROLES, AND FURTHER ACKNOWLEDGES
THAT THE FACT THAT ANOTHER UNIT OR AFFILIATE OF THE AGENT IS
PROVIDING ANOTHER SERVICE OR PRODUCT OR PROPOSAL THEREFOR TO
THE BORROWER DOES NOT MEAN THAT SUCH SERVICE, PRODUCT, OR
PROPOSAL IS OR WILL BE ACCEPTABLE TO THE AGENT AND THE LENDERS.
2.8 SECTIONS 6.13 AND 6.14 OF THE AGREEMENT IS AMENDED TO DELETE THE
TERMS THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
6.13. SALE OF ASSETS. THE BORROWER WILL NOT, NOR WILL IT PERMIT
ANY SUBSIDIARY TO, LEASE, SELL OR OTHERWISE DISPOSE OF ITS PROPERTY, TO
ANY OTHER PERSON EXCEPT FOR (i) LEASES, SALES, OR OTHER DISPOSITIONS OF
INVENTORY IN THE ORDINARY COURSE OF BUSINESS, (ii) LEASES, SALES, OR
OTHER DISPOSITIONS BY A SUBSIDIARY OF ANY OF ITS PROPERTY TO THE
BORROWER OR ANY WHOLLY-OWNED SUBSIDIARY OF THE BORROWER, (iii)
DISPOSITIONS OF PROPERTY THAT IS NO LONGER USED OR USEFUL BY OR IN THE
BORROWER'S OR THE DISPOSING SUBSIDIARY'S BUSINESS, (iv) SALES AND
LEASEBACKS PERMITTED UNDER SECTION 6.15, (v) CONTRIBUTIONS OF ASSETS TO
SUBSIDIARIES OTHER THAN HTI EXPORT LTD., (vi) LEASES, SALES OR OTHER
DISPOSITIONS OF ITS PROPERTY, INCLUDING, WITHOUT LIMITATION ACCOUNTS
RECEIVABLE SOLD IN CONFORMITY WITH SECTION 6.14 THAT, TOGETHER WITH ALL
OTHER PROPERTY OF THE BORROWER AND ITS SUBSIDIARIES PREVIOUSLY LEASED,
SOLD OR DISPOSED OF (OTHER THAN DISPOSITIONS PERMITTED UNDER CLAUSE (i)
THROUGH (v) HEREINABOVE) AS PERMITTED BY THIS CLAUSE (vi) DURING THE
TWELVE-MONTH PERIOD ENDING WITH THE MONTH IN WHICH ANY SUCH LEASE, SALE
OR OTHER DISPOSITION OCCURS, DO NOT CONSTITUTE A SUBSTANTIAL PORTION OF
THE PROPERTY OF THE BORROWER AND ITS SUBSIDIARIES, AND (vii)
DISPOSITIONS OF THE ASSETS OF DISSOLVED SUBSIDIARIES TO THE BORROWER OR
ANY SUBSIDIARY.
6.14. SALE OF ACCOUNTS. THE BORROWER WILL NOT, NOR WILL IT PERMIT
ANY SUBSIDIARY TO, SELL OR OTHERWISE DISPOSE OF ANY NOTES RECEIVABLE OR
ACCOUNTS RECEIVABLE, WITH OR WITHOUT RECOURSE; PROVIDED, THE BORROWER
SHALL BE PERMITTED
Page 3
TO CONSUMMATE A TRUE SALE OF ALL OR A PORTION OF ITS ACCOUNTS RECEIVABLE
IN CONNECTION WITH AN ARMS-LENGTH ACCOUNTS RECEIVABLE FACTORING
TRANSACTION PROVIDED (i) ALL CONSENTS, IF ANY, REQUIRED IN CONNECTION
THEREWITH SHALL HAVE BEEN OBTAINED FROM EACH OTHER HOLDER OF THE
BORROWER'S INDEBTEDNESS FOR MONEY BORROWED; (ii) THE BORROWER SHALL HAVE
ESTABLISHED AND SHALL AT ALL TIMES THEREAFTER MAINTAIN A MINIMUM BALANCE
DEPOSIT ACCOUNT WITH THE AGENT IN THE AMOUNT OF $1,500,000; AND (iii) THE
BORROWER SHALL BE IN COMPLIANCE WITH THE TERMS OF SECTION 6.13(vi).
2.9. SECTION 6.19 OF THE AGREEMENT IS AMENDED TO DELETE THE TERMS
THEREOF IN THEIR ENTIRETY AND TO SUBSTITUTE THE FOLLOWING THEREFOR:
6.19. FINANCIAL COVENANTS.
6.19.1. LEVERAGE RATIO. THE BORROWER WILL MAINTAIN, AS AT THE LAST
DAY OF EACH FISCAL QUARTER, A LEVERAGE RATIO OF NOT GREATER THAN (a) 40%
AS OF THE END OF ANY FISCAL QUARTER PRIOR TO THE ISSUANCE OF THE
SUBORDINATED INDEBTEDNESS PERMITTED UNDER SECTION 6.11(x) AND (b) 50% AS
OF THE END OF ANY FISCAL QUARTER AFTER THE ISSUANCE OF THE SUBORDINATED
INDEBTEDNESS PERMITTED UNDER SECTION 6.11(x).
6.19.2. MINIMUM EBITDA. THE BORROWER WILL MAINTAIN EARNINGS BEFORE
INTEREST, TAXES, DEPRECIATION AND AMORTIZATION, AS DETERMINED AS OF THE
LAST DAY OF EACH FISCAL QUARTER FOR THE THREE MONTH PERIOD ENDING ON SUCH
DAY OF AT LEAST THE AMOUNT SET FORTH BELOW OPPOSITE THE DAY IN WHICH
SUCH QUARTER ENDS:
QUARTER ENDED MINIMUM EBITDA
------------- --------------
JUNE 30, 1998 ($12,000,000)
SEPTEMBER 30, 1998 $7,000,000
DECEMBER 31, 1998 $23,000,000
MARCH 31, 1999 $29,000,000
6.19.3. MINIMUM NET WORTH. THE BORROWER WILL MAINTAIN, AS AT THE
LAST DAY OF EACH FISCAL QUARTER, SHAREHOLDER'S EQUITY FOR THE BORROWER
AND ITS CONSOLIDATED SUBSIDIARIES OF NOT LESS THAN THE SUM OF (a)
$217,000,000 PLUS (b) EIGHTY-FIVE PERCENT (85%) OF NET INCOME (IF
POSITIVE) CALCULATED SEPARATELY FOR EACH FISCAL QUARTER ENDING AFTER
DECEMBER 31, 1997, PLUS (c) ONE-HUNDRED PERCENT (100%) OF THE NET CASH
PROCEEDS RESULTING FROM THE ISSUANCE BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES OF ANY CAPITAL STOCK.
Page 4
6.19.4. CAPITAL EXPENDITURES. THE BORROWER WILL NOT, NOR WILL
IT PERMIT ANY SUBSIDIARY TO, EXPEND OR BE COMMITTED TO EXPEND CAPITAL
EXPENDITURES IN THE AGGREGATE FOR THE BORROWER AND ITS SUBSIDIARIES
EXCEEDING $210,000,000 IN ANY FISCAL YEAR OF THE BORROWER.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby confirms and
reaffirms that the representations and warranties contained in Article V of
the Agreement are true and correct in all material respects as of the
Effective Date (as defined in Paragraph 4 of this Amendment) except for
changes reflecting transactions permitted by the Agreement or otherwise
previously consented to by the Lenders, PROVIDED that such representations
and warranties shall be and hereby are amended as follows: each reference
therein to "this Agreement," including, without limitation, such a reference
included in the term "Loan Documents," shall be deemed to be a collective
reference to the Agreement, this Amendment, and the Agreement as amended by
this Amendment. A Default under and as defined in the Agreement as amended by
this Amendment shall be deemed to have occurred if any representation or
warranty made pursuant to the preceding sentence shall be materially false
as of the date on which it was made.
4. EFFECTIVE DATE. This Amendment shall become effective as of the
date first written above (the "EFFECTIVE DATE") upon receipt by the Agent of
each of the following:
(a) counterparts of this Amendment duly executed by the Borrower and the
Agent and the Lender;
(b) payment to the Agent for the account of the Lender an amendment fee
in connection with this Amendment in the amount of $200,000.
5. RATIFICATION. Except as amended hereby, the Agreement shall remain
in full force and effect and is hereby ratified, approved, and confirmed in
all respects. Upon the effectiveness of this Amendment, all references in the
Agreement to "this Agreement" (and all indirect references such as "hereby,"
"herein," "hereof" and "hereunder") shall be deemed to be references to the
Agreement as amended by this Amendment.
6. EXPENSES. The Borrower shall reimburse the Agent for any and all
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees of attorneys for the Agent, which attorneys may be employees
of the Agent) paid or incurred by the Agent in connection with the
preparation, review, execution and delivery of the various commitment letters
and financing proposals previously delivered to the Borrower and in
connection with this Amendment.
7. ENTIRE AGREEMENT. This Amendment, the Agreement as amended by this
Amendment, and the other Loan Documents embody the entire agreement and
understanding among the parties hereto and supersede any and all prior
agreements and understandings
Page 5
among the parties hereto relating to the subject matter hereof; PROVIDED,
HOWEVER, nothing herein shall affect any commitment letter now or hereafter
issued by the Agent or any Lender to the Borrower.
8. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be executed
in any number of counterparts, all of which taken together shall constitute
one Amendment, and any parties hereto may execute this Amendment by signing
any such counterpart. Receipt by the Agent or the Agent's counsel of a
facsimile signature shall be effective as though an original counterpart was
received provided the party executing by facsimile shall be obligated to
promptly provide an original counterpart hereof to the Agent.
9. GOVERNING LAW. This Amendment shall be construed in accordance
with the internal laws (and not the law of conflicts) of the State of
Illinois, but giving effect to federal laws applicable to a national banking
association located in the State of Illinois.
Page 6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
XXXXXXXXXX TECHNOLOGY INCORPORATED
By /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name Xxxx X. Xxxxxxxx
Title CFO
THE FIRST NATIONAL BANK OF CHICAGO,
INDIVIDUALLY AND AS AGENT
By /s/ J. Xxxxxxx Xxxxx
-------------------------------------
J. Xxxxxxx Xxxxx
Managing Director
Page 7
FOURTH AMENDMENT TO
XXXXXXXXXX TECHNOLOGY INCORPORATED
CREDIT AGREEMENT
This Fourth Amendment (this "AMENDMENT") is entered into as of
September 25, 1998 by and between XXXXXXXXXX TECHNOLOGY INCORPORATED (the
"BORROWER") and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (in such
capacity, the "AGENT") and Lender. The parties hereto agree as follows:
WHEREAS, the Borrower, the Agent and the Lender have entered into that
certain Credit Agreement dated as of December 8, 1995, as amended to date (as
so amended, the "AGREEMENT"); and
WHEREAS, the parties thereto desire to further amend the Agreement in
certain respects more fully described hereinafter;
NOW, THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
(a) Section 6.11 of the Agreement is hereby amended to add the
following at the end thereof:
"(xi) Secured Indebtedness in an aggregate principal amount not
exceeding $5,000,000 at any one time outstanding under the
REDI-Loan program administered by the State of South Dakota,
PROVIDED that (x) the terms of such Indebtedness have been
approved by the appropriate agency of such State and (y) the
borrowing and repayment of such Indebtedness will not violate
any term, provision or restriction of any other Indebtedness of
the Borrower or any of its Subsidiaries."
(b) Section 6.18 of the Agreement is hereby amended to add the
following at the end thereof:
"(ix) Liens securing Indebtedness permitted under Section 6.11(xi)
hereof."
(c) Section 6.19.2 of the Agreement is hereby amended by deleting the
table set forth therein and replacing it with a table reading in its entirety
as follows:
QUARTER ENDED MINIMUM EBITDA
------------- --------------
SEPTEMBER 27, 1998 ($22,500,000)
DECEMBER 27, 1998 ($ 5,000,000)
MARCH 28, 1999 $17,000,000
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby confirms and
reaffirms that the representations and warranties contained in Article V of
the Agreement are true and correct in all material respects as of the
Effective Date (as defined in Section 4 of this Amendment) except for changes
reflecting transactions permitted by the Agreement or otherwise previously
consented to by the Lender, provided that such representations and warranties
shall be and hereby are amended as follows: each reference therein to "this
Agreement," including, without limitation, such a reference included in the
term "Loan Documents," shall be deemed to be a collective reference to the
Agreement, this Amendment, and the Agreement as amended by this Amendment. A
Default under and as defined in the Agreement as amended by this Amendment
shall be deemed to have occurred if any representation or warranty made
pursuant to the preceding sentence of this Section 3 shall be materially
false as of the date on which it was made.
4. CONDITIONS PRECEDENT. This Amendment shall become effective on and
as of the date first above written (the "EFFECTIVE DATE") provided that all
of the following conditions precedent shall have been satisfied:
(a) The Agent shall have received a counterpart of this Amendment
duly executed and delivered by the Borrower.
(b) No Default or Unmatured Default shall have occurred and be
continuing.
5. EFFECT ON THE AGREEMENT. Except as expressly amended hereby, all of
the representations, warranties, terms, covenants and conditions of the
Agreement and the other Loan Documents (a) shall remain unaltered, (b) shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms, and (c) are hereby ratified and confirmed in all
respects. Upon the effectiveness of this Amendment, all references in the
Agreement to "this Agreement" (and all indirect references such as "hereby",
"herein", "hereof" and "hereunder") shall be deemed to be references to the
Agreement as amended by this Amendment.
6. EXPENSES. The Borrower shall reimburse the Agent for any and all
reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, review, execution and delivery of this
Amendment.
Page 2
7. ENTIRE AGREEMENT. This Amendment, the Agreement as amended by this
Amendment and the other Loan Documents embody the entire agreement and
understanding among the parties hereto and supersede any and all prior
agreements and understandings among the parties hereto relating to the
subject matter hereof.
8. GOVERNING LAW. This Amendment shall be construed in accordance with
the internal laws (and not the law of conflicts) of the State of Illinois,
but giving effect to federal laws applicable to a national banking
association located in the State of Illinois.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Amendment by signing any such
counterpart. Receipt by the Agent or its counsel of a facsimile signature
shall be effective as though an original counterpart was received provided
the party executing by facsimile shall be obligated promptly to provide an
original counterpart hereof to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to Credit Agreement to be duly executed as of the date first above written.
XXXXXXXXXX TECHNOLOGY INCORPORATED
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Print Name: Xxxx X. Xxxxxxxx
--------------------------
Title: Chief Financial Officer
-------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent
By: /s/ Xxxx Xxxxxxx
----------------------------------
Print Name: Xxxx Xxxxxxx
--------------------------
Title: Vice President
-------------------------------
Page 3
FIFTH AMENDMENT TO
XXXXXXXXXX TECHNOLOGY INCORPORATED
CREDIT AGREEMENT
This Fifth Amendment (this "AMENDMENT") is entered into as of
December 23, 1998 by and between XXXXXXXXXX TECHNOLOGY INCORPORATED (the
"BORROWER") and THE FIRST NATIONAL BANK OF CHICAGO, as Agent (in such
capacity, the "AGENT") and Lender. The parties hereto agree as follows:
WHEREAS, the Borrower, the Agent and the Lender have entered into that
certain Credit Agreement dated as of December 8, 1995, as amended to date (as
so amended, the "AGREEMENT"); and
WHEREAS, the parties thereto desire to further amend the Agreement in
certain respects more fully described hereinafter;
NOW, THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Agreement.
2. AMENDMENTS TO THE AGREEMENT.
(a) The Commitment of The First National Bank of Chicago is hereby
permanently reduced to $1,219,068.
(b) Section 6.11 of the Agreement is hereby amended to add the
following at the end thereof:
"(xii) Secured Indebtedness in an aggregate principal amount not
exceeding $50,000,000 at any one time outstanding under a credit
facility agented by The CIT Group/Business Credit."
(c) Section 6.18 of the Agreement is hereby amended to add the
following at the end thereof:
"(x) Liens securing Indebtedness of the Borrower under private
placements otherwise permitted under Section 6.11 hereof.
(xi) Liens securing Indebtedness of the Borrower permitted under
Section 6.11(xii) hereof."
(d) Section 6.19.1 of the Agreement is hereby amended to read in its
entirety as follows:
"6.19.1. LEVERAGE RATIO. The Borrower will maintain, as at the
last day of each fiscal quarter, a Leverage Ratio of not more than .55
to 1.0."
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby confirms and
reaffirms that the representations and warranties contained in Article V of
the Agreement are true and correct in all material respects as of the
Effective Date (as defined in Section 4 of this Amendment) except for changes
reflecting transactions permitted by the Agreement or otherwise previously
consented to by the Lender, provided that such representations and warranties
shall be and hereby are amended as follows: each reference therein to "this
Agreement," including, without limitation, such a reference included in the
term "Loan Documents," shall be deemed to be a collective reference to the
Agreement, this Amendment, and the Agreement as amended by this Amendment. A
Default under and as defined in the Agreement as amended by this Amendment
shall be deemed to have occurred if any representation or warranty made
pursuant to the preceding sentence of this Section 3 shall be materially false
as of the date on which it was made.
4. CONDITIONS PRECEDENT. This Amendment shall become effective on
and as of the date first above written (the "EFFECTIVE DATE") provided that
all of the following conditions precedent shall have been satisfied:
(a) The Agent shall have received a counterpart of this Amendment
duly executed and delivered by the Borrower.
(b) No Default or Unmatured Default shall have occurred and be
continuing.
5. UNDERTAKING TO RETURN LETTER OF CREDIT. Not later than February
28, 1999, Irrevocable Letter of Credit No. 320052 issued by The First
National Bank of Chicago in favor of Rabobank Nederland on February 7, 1996
shall have been returned by the beneficiary to The First National Bank of
Chicago for cancellation. Failure by the Borrower to return such letter of
credit shall constitute a Default under the Agreement.
6. EFFECT ON THE AGREEMENT. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
Agreement and the other Loan Documents (a) shall remain unaltered, (b) shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms, and (c) are hereby ratified and confirmed in all
respects. Upon the effectiveness of this Amendment, all references in the
Agreement to "this Agreement" (and all indirect references such as "hereby",
"herein", "hereof" and "hereunder") shall be deemed to be references to the
Agreement as amended by this Amendment.
7. EXPENSES. The Borrower shall reimburse the Agent for any and all
reasonable costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Agent, which
attorneys may be employees of the Agent) paid or incurred by the Agent in
connection with the preparation, review, execution and delivery of this
Amendment.
Page 2
8. ENTIRE AGREEMENT. This Amendment, the Agreement as amended by this
Amendment and the other Loan Documents embody the entire agreement and
understanding among the parties hereto and supersede any and all prior
agreements and understandings among the parties hereto relating to the subject
matter hereof.
9. GOVERNING LAW. This Amendment shall be construed in accordance with
the internal laws (and not the law of conflicts) of the State of Illinois, but
giving effect to federal laws applicable to a national banking association
located in the State of Illinois.
10. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Amendment by signing any such
counterpart. Receipt by the Agent or its counsel of a facsimile signature shall
be effective as though an original counterpart was received provided the party
executing by facsimile shall be obligated promptly to provide an original
counterpart hereof to the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to
Credit Agreement to be duly executed as of the date first above written.
XXXXXXXXXX TECHNOLOGY INCORPORATED
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Print Name: Xxxx X. Xxxxx
---------------------------------
Title: Treasurer
--------------------------------------
THE FIRST NATIONAL BANK OF CHICAGO,
individually and as Agent
By: /s/ J. Xxxxxxx Xxxxx
-----------------------------------------
Print Name: J. Xxxxxxx Xxxxx
---------------------------------
Title: First Vice President
--------------------------------------
Page 3
