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EXHIBIT 10.36
ELEVENTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT (this "Amendment Agreement") is made and entered
into, effective as of this 8th day of August, 2000, by and among XXXXXXX
AMERICAS CORPORATION, a Delaware corporation ("BAM"), XXXXXXX TECHNOLOGY
LIMITED, a Bermuda corporation ("BTL" and together with BAM, the "Borrowers"),
XXXXXXX TECHNOLOGY COMPANY, INC., a Delaware corporation ("Xxxxxxx" and
together with the Borrowers, the "Credit Parties"), BANK OF AMERICA, N.A.,
successor in interest to NationsBank, N.A., as Agent ("Bank of America" or the
"Agent"), BANK OF AMERICA, N.A., as a Lender, and FLEET NATIONAL BANK
(successor in interest to Bank Boston, N.A.), as a Lender ("Fleet").
W I T N E S S E T H:
WHEREAS, the Credit Parties, the Lenders and the Agent have
entered into that certain Amended and Restated Revolving Credit Agreement dated
as of December 31, 1995 (as heretofore or hereafter amended, modified,
supplemented, amended and restated or replaced, the "Credit Agreement"),
pursuant to which the Lenders have agreed to make certain revolving credit
loans to the Borrowers;
WHEREAS, the parties hereto desire to further amend the Credit
Agreement in the manner herein set forth;
WHEREAS, the Borrowers have (i) informed the Agent that they
have violated Sections 8.1(c) and 8.1(d) of the Credit Agreement for the
four-quarter period ended on June 30, 2000, which violation constitutes an
Event of Default under Section 9.1(c) of the Credit Agreement (the "Violation")
and (ii) requested that the Agent and the Lenders waive the Violation for such
four-quarter period and beyond that to and including September 29, 2000 (the
"Waiver");
WHEREAS, the Borrowers have requested that the Agent and the
Lenders make certain amendments to the Credit Agreement (the "Amendments");
and
WHEREAS, in consideration for the Borrowers' acknowledgment
and acceptance of the terms of this Amendment Agreement, the Agent and Lenders
are willing to grant the Waiver and make the Amendments;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. The term "Credit Agreement" or
"Agreement" (as the case may be) as used herein and in the Loan Documents shall
mean the Credit Agreement as hereby amended and modified, and as further
amended, modified, supplemented, amended and restated or replaced from time to
time as permitted thereby. Unless the context otherwise requires, all terms
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used herein without definition shall have the definitions provided therefor in
the Credit Agreement.
2. Waiver Action. Agent and Lenders hereby grant to
Borrowers the Waiver subject to the following conditions:
(a) The Waiver is limited as specified herein and
shall not constitute an amendment or modification of the
Credit Agreement or any other Loan Document.
(b) The Waiver is granted only for the specific
instance and for the time period specified herein and in no
event shall constitute a waiver for any period other than the
four-quarter period ended on June 30, 2000 and beyond that to
and including September 29, 2000, or in any manner create a
course of dealing or otherwise impair the future ability of
the Agent and the Lenders to declare a Default or Event of
Default under or otherwise enforce the terms of the Credit
Agreement.
3. Credit Agreement Amendments. Subject to the
conditions hereof, the Credit Agreement is hereby amended, effective as of the
date hereof, as follows:
(a) The definition of "Revolving Credit
Termination Date" in Section 1.1 is hereby deleted in its
entirety and the following is inserted in replacement thereof:
"Revolving Credit Termination Date" means the
earlier to occur of (i) September 30, 2001, or (ii)
any other date upon which the Total Commitment shall
terminate in accordance with the terms hereof."
4. Representations and Warranties. Each Credit Party
hereby certifies that:
(a) The representations and warranties made by
each Credit Party in Article VI of the Credit Agreement are
true on and as of the date hereof, with the same effect as
though such representations and warranties were made on the
date hereof.
(b) There has been no material change in the
condition, financial or otherwise, of Xxxxxxx, any Borrower or
any of their respective Subsidiaries since the date of the
most recent financial reports of Xxxxxxx and the Borrowers
received by each Lender under Section 7.1 of the Credit
Agreement;
(c) The business and properties of each Credit
Party and any of their respective Subsidiaries are not, and
since the date of the most recent financial reports of Xxxxxxx
and the Borrowers received by each Lender under Section 7.1 of
the Credit Agreement have not been, adversely affected in any
substantial way as the result of any fire, explosion,
earthquake, accident, strike, lockout, combination of workmen,
flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any
major contracts; and
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(d) No event has occurred and no condition exists which,
upon the effectiveness of the amendments contemplated hereby, will
constitute a Default or an Event of Default on the part of any Credit
Party under the Credit Agreement or any other Loan Document either
immediately or with the lapse of time or the giving of notice, or
both.
5. Conditions Precedent. The effectiveness of this Amendment
Agreement is subject to the receipt by the Agent of (a) five (5) counterparts
of this Amendment Agreement duly executed by all signatories hereto and (b) all
fees payable by the Borrowers to the Agent and the Lenders on or before the
date hereof, including a one-time amendment fee payable to each Lender in an
amount equal to .125% of such Lender's Revolving Loan Commitment.
6. Entire Agreement. This Amendment 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 Amendment Agreement may be changed, modified, waived or
canceled orally or otherwise, except in accordance with the terms of the Credit
Agreement.
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 Amendment Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
9. Credit Agreement and Other Loan Documents. All references in
any of the Loan Documents to the "Credit Agreement" shall mean the Credit
Agreement as amended hereby.
10. Reimbursement. The Borrowers agree to reimburse the Agent and
the Lenders for all costs and out-of-pocket expenses, including attorneys'
fees, incurred in connection with the preparation, execution, and delivery of
this Amendment Agreement.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWERS AND CREDIT PARTIES:
XXXXXXX AMERICAS CORPORATION, as Borrower
and Credit Party
By:
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Name:
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Title:
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XXXXXXX TECHNOLOGY LIMITED, as Borrower and
Credit Party
By:
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Name:
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Title:
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XXXXXXX TECHNOLOGY COMPANY, INC., as Credit
Party
By:
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Name:
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Title:
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AGENT:
BANK OF AMERICA, N.A., successor in interest to
NationsBank, N.A., as Agent for the Lenders
By:
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Name:
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Title:
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SIGNATURE PAGE 1 OF 2
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LENDERS:
BANK OF AMERICA, N.A., successor in interest to
NationsBank, N.A., as Lender
By:
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Name:
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Title:
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FLEET NATIONAL BANK, successor in interest to
BANKBOSTON, N.A., as Lender
By:
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Name:
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Title:
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SIGNATURE PAGE 2 OF 2
