SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (this "Amendment") is made as of
this 30th day of June, 1997, by and among Xxxxxxx-Xxxxxxx Company, a California
corporation (the "Borrower"), the Banks (each a "Bank" and collectively, the
"Banks") named in the Credit Agreement referred to below, ABN AMRO Bank N.V., as
letter of credit issuing bank (in such capacity, the "Issuing Bank"), and ABN
AMRO Bank N.V., as Agent, (in such capacity, the "Agent").
RECITALS
A. The Borrower, the Banks, the Issuing Bank, and the Agent have executed
that certain Credit Agreement dated as of November 30, 1995 as amended by that
First Amendment to Credit Agreement dated as of March 7, 1997 (the "Credit
Agreement").
B. The Borrower has requested that the Banks, the Issuing Bank, and the
Agent enter into this Amendment in order to make certain changes in the Credit
Agreement and to reflect certain changes to the syndicate of Banks.
C. Upon the terms and conditions appearing herein, the Banks, the Issuing
Bank and the Agent have agreed to enter into this Amendment.
AGREEMENT
1. Amendments to Credit Agreement.
1.1 With effect as from the "Transfer Date" (defined as the first
Business Day after the Amendment Effective Date, as defined in Section 2 below),
Schedule 1 to the Credit Agreement is amended by replacing the existing Schedule
1 with the Schedule 1 attached hereto as Exhibit A. As of the Transfer Date, the
Commitments of the Banks shall be deemed to be adjusted accordingly. If on the
day preceding the Transfer Date the Effective Amount of Revolving Loans and L/C
Obligations would exceed the Commitments as so adjusted, the Borrower shall upon
the Transfer Date repay such excess together with interest accrued to the
Transfer Date and any amounts required to be paid pursuant to Section 6.02 of
the Credit Agreement. The reduction in the Commitments consequent upon this
Amendment shall be permanent, and the Commitments may not be increased or
otherwise reinstated.
1.2 As from Transfer Date, The First National Bank of Boston (now known
as BankBoston) ("BankBoston") shall cease to be a Bank for the purposes of the
Credit Agreement and this Amendment. On the Transfer Date, BankBoston shall be
deemed to have sold and assigned, without recourse, an amount (the "Transfer
Amount") of the total
1.
aggregate Loans and L/C Obligations outstanding on such date equal to its
Commitment Percentage (as of the day preceding the Transfer Date) thereof. On
the Transfer Date, each of the Banks identified in the first column of Exhibit A
(each a "Continuing Bank") shall be deemed to have purchased such amount of
BankBoston's Loans and L/C Obligations as may be necessary so that the aggregate
outstanding Loans and L/C Obligations are held by the Continuing Banks in
proportion to their Commitment Percentages as set forth on Exhibit A.
1.3 Upon the Transfer Date, BankBoston shall be entitled to receive its
share (determined in accordance with the Credit Agreement) of any accrued
commitment and letter of credit fees for the period up to, but not including,
the Transfer Date.
1.4 By their execution of this Amendment, each of the Banks, the Agent,
the Issuing Bank and the Borrower (notwithstanding any restrictions or
conditions contained in the Credit Agreement) consents to the transactions
described in Sections 1.1, 1.2 and 1.3 above; and the Agent waives the
administrative transfer charge, to the extent that it is payable with respect to
such transactions, pursuant to Section 13.09(b)(ii) of the Credit Agreement.
1.5 Section 1.01 of the Credit Agreement is hereby amended by adding
the following definitions in appropriate alphabetical order:
"Agreement" means this Credit Agreement as it may be amended or
supplemented from time to time.
"Second Amendment Effective Date" means the Amendment Effective Date as
defined in the Second Amendment to this Agreement.
1.6 Section 1.01 of the Credit Agreement is hereby amended by amending
the definition of "Final Maturity Date" to read, in its entirety, as follows:
"Final Maturity Date" means June 29, 1998.
1.7 Section 4.03(a) of the Credit Agreement is hereby amended to read,
in its entirety, as follows:
(a) Commitment Fee. The Borrower agrees to pay to the Agent for the
account of each Bank a commitment fee on the average daily unused portion
(taking into account outstanding Revolving Loans and outstanding L/C
Obligations) of such Bank's Commitment as in effect from time to time from
the Closing Date until the Final Maturity Date at the rate of:
(i) for periods prior to the Second Amendment Effective Date, (A) 0.35%
per annum, for any period when the Debt/EBITDA Ratio is greater than or
equal to
2.
1.00 to 1.00 or (B) 0.25% per annum, for any period when the
Debt/EBITDA Ratio is less than 1.00 to 1.00, and
(ii) for periods on or after the Second Amendment Effective Date,
0.125% per annum
in each case payable quarterly in arrears on the last Business Day of each
calendar quarter in each year, commencing on the first such date after the
Closing Date, and on the earlier of the date such Commitment is terminated
hereunder or the Final Maturity Date.
2. Effectiveness of Amendments to Credit Agreement. Subject to the
satisfaction of the conditions set forth below on or before July 10, 1997, the
provisions of Section 1 shall become effective on the date (the "Amendment
Effective Date") which is the later of (i) July 1, 1997 and (ii) the date on
which the last of the conditions is satisfied.
(a) The Agent shall have received from each of the Borrower, the
Issuing Bank and the Banks a duly executed original of this Amendment;
(b) The Borrower shall have paid any commitment and letter of credit
fees accrued up to the Amendment Effective Date in the manner provided for in
Section 5.01(a) of the Credit Agreement;
(c) No Default or Event of Default shall have occurred and be
continuing on the Amendment Effective Date or will be continuing after giving
effect to the amendments to the Credit Agreement (and the Borrower shall have
delivered to the Agent a certificate to that effect executed by a Responsible
Officer of the Borrower);
(d) Each of the representations and warranties set forth in Article
9.01 of the Credit Agreement shall be true and correct as of the Amendment
Effective Date (and the Borrower shall have delivered to the Agent a certificate
to that effect executed by a Responsible Officer of the Borrower); and
(e) The Borrower shall have delivered to the Banks, at the Borrower's
expense, an originally executed opinion of the Borrower's General Counsel dated
the Amendment Effective Date concerning this Amendment in form and substance
satisfactory to the Agent.
If acceptable to the Agent, any of the above documents may be delivered to
the Agent by facsimile with the original copy to follow by mail or courier. Upon
the apparent satisfaction of the above conditions, the Agent will notify the
Borrower and the Banks of such fact; provided, however that any failure by the
Agent to provide such notice shall have no effect on the effectiveness of the
amendments.
3.
3. Reservation of Rights. The Borrower acknowledges and agrees that neither
the execution and delivery by the Banks of this Amendment shall be deemed to
create a course of dealing or otherwise obligate the Agent or the Banks to
forbear or to execute similar amendments or waivers under the same or similar
circumstances in the future.
4. Miscellaneous.
4.1 Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and effect
and are hereby ratified and confirmed by the parties hereto, and all references
to the Credit Agreement shall henceforth refer to the Credit Agreement as
amended by this Amendment.
4.2 This Amendment shall be binding and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns. No third
party beneficiaries are intended in connection with this Amendment.
4.3 This Amendment shall be governed by and construed in accordance
with the law of the State of California.
4.4 This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute but one in the same agreement. Each of the parties hereto understands
and agrees that this document (and any other document required herein) may be
delivered by any party hereto either in the form of an executed original or an
executed original sent by facsimile transmission to be followed promptly by
mailing of a hard copy original, and that receipt by the Agent of a
facsimile-transmitted document purportedly bearing the signature of a Bank or
the Borrower shall bind such Bank or the Borrower, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile-transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
4.5 This Amendment, reflects the entire agreement among the Borrower,
the Banks and the Agent with respect to the matters set forth herein and therein
and supersedes any prior agreements, commitments, drafts, communications,
discussions and understandings, oral or written, with respect thereto.
4.6 If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
4.7 The Borrower covenants to pay to or reimburse the Agent, upon
demand, for all costs and expenses reasonably incurred in connection with the
preparation, negotiation, review, execution and delivery of this Amendment and
the Disposal Documents.
4.
4.8 All capitalized terms used and not otherwise defined herein shall
have the meanings given to such terms in the Credit Agreement.
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5.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment,
as of the date first above written.
THE BORROWER
XXXXXXX-XXXXXXX COMPANY
By /s/ W. Xxxxx Xxxxxxx
------------------------------------------
Title: President and CEO
By /s/ Xxxx X. Xxxxxxx
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Title: Treasurer
THE AGENT
ABN AMRO BANK N.V.
By /s/ Xxxxx X. Xxx
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Title: Group Vice President
By /s/ Xxxxxxx X. Xxx
------------------------------------------
Title: Corporate Banking Officer
THE BANKS
ABN AMRO BANK N.V., as Bank and Issuing Bank
By /s/ Xxxxx X. Xxx
------------------------------------------
Title: Group Vice President
By /s/ Xxxxxxx X. Xxx
------------------------------------------
Title: Corporate Banking Officer
6.
UNION BANK OF CALIFORNIA, N.A., successor in
interest to Union Bank
By /s/ Xxxx Xxxxxxxxx
------------------------------------------
Title: Vice President
BANK BOSTON, N.A.
By /s/ Xxxx X. Xxxxxxx
------------------------------------------
Title: Vice President
THE FIRST NATIONAL BANK OF MARYLAND
By /s/ Xxxxxx X. Xxxx
------------------------------------------
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By /s/ Xxxxx X. XxXxxxx
------------------------------------------
Title: Managing Director
7.
EXHIBIT A
TO SECOND AMENDMENT TO CREDIT AGREEMENT
Schedule 1 to Credit Agreement
(Commitment and Commitment Percentages)
Commitment
Bank Commitment L/C Commitment Percentage
---- ----------- -------------- ----------
ABN AMRO Bank N.V. $17,500,000 $ 7,000,000 35.0%
Union Bank of California N.A. $12,500,000 $ 5,000,000 25.0%
The First National Bank of Maryland $12,500,000 $ 5,000,000 25.0%
Bank of America National Trust and Savings
Association $ 7,500,000 $ 3,000,000 15.0%
----------- ----------- -----
TOTALS $50,000,000 $20,000,000 100.0%
