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EXHIBIT 10(x)
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X. XXXXXXXX, INC.
AS BORROWER
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS BANKS
AND
KEYBANK NATIONAL ASSOCIATION
AS AGENT
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AMENDMENT NO. 2
DATED AS OF
AUGUST 14, 1997
TO
CREDIT AGREEMENT
DATED AS OF
MARCH 13, 1995
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AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of August 14, 1997,
among X. XXXXXXXX, INC., a Delaware corporation( herein, together with its
successors and assigns, the "BORROWER"); the financial institutions listed on
the signature pages hereof (the "BANKS"); and KEYBANK NATIONAL ASSOCIATION, a
national banking association which is successor by merger to Society National
Bank, as Agent for the Banks under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower entered into the Credit Agreement, dated as of March
13, 1995, and the First Amendment to Credit Agreement, dated as of February 26,
1996 (as so amended, the "CREDIT AGREEMENT"; with the terms defined therein, or
the definitions of which are incorporated therein, being used herein as so
defined).
(2) It is contemplated that on the Effective Date (as hereinafter
defined), (i) two of the Banks named in the Credit Agreement will assign their
entire outstanding Loans and Commitments under the Credit Agreement to one or
more of the other Banks party to the Credit Agreement, and will thereafter have
no further obligations under the Credit Agreement, (ii) certain additional
financial institutions will become parties to the Credit Agreement as Banks, and
(iii) the Commitments of the Banks will be revised and the aggregate Commitments
increased from $75,000,000 to $100,000,000.
(3) In connection with the foregoing, the Borrower has requested the
Banks and the Agent to amend certain of the provisions of the Credit Agreement,
all as more fully set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS.
1.1. COMMITMENT AMOUNTS. Effective on the Effective Date, (i) Annex A
to the Credit Agreement is amended to read in its entirety as set forth in Annex
A hereto; and (ii) the phrase "Seventy-Five Million Dollars ($75,000,000)",
which appears in Section 2.1.A of the Credit Agreement, is changed to "One
Hundred Million Dollars ($100,000,000)".
1.2. EXTENSION OF MATURITY. Effective on the Effective Date, the date
"February 28, 2001", which appears in the definition of the term Termination
Date in Article I of the Credit Agreement and again in the fourth paragraph of
Section 2.1.A of the Credit Agreement, is changed to "August 14, 2002" in both
such instances.
1.3. PRICING. Effective on the Effective Date,
(I) LIBOR MARGIN: the phrase "one-quarter of one percent (1/4
of 1%)", which appears in the definition of the term Libor Margin in
Article I of the Credit Agreement, is changed to "Seventeen and
one-half basis points (17.5 basis points)";
(II) RACD MARGIN: the phrase "three-eighths percent (3/8 of
1%)", which appears in the definition of the term RACD Margin in
Article I of the Credit Agreement, is changed to "Thirty basis points
(30.0 basis points)"; and
(III) FACILITY FEE: the phrase "one-eighth percent (1/8 of
1%)", which appears in Section 2.5 of the Credit Agreement, is changed
to "Seven and one-half basis points (7+1/2 basis points)".
1.4. MINIMUM CONSOLIDATED TANGIBLE NET WORTH. Effective on the
Effective Date, Section 7.2 of the Credit Agreement is amended to read in its
entirety as follows:
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SECTION 7.2 MINIMUM CONSOLIDATED TANGIBLE NET WORTH. The
Borrower will not permit its Consolidated Tangible Net Worth as of the
end of any fiscal year end to be less than the sum of (a) $285,000,000,
and (b) 25% of the positive net income for each completed fiscal year
of the Borrower, commencing with the fiscal year beginning September 1,
1996 (there being no reduction in the event the net income for any
fiscal year is a deficit).
1.5. CONSENT TO ASSIGNMENTS. As contemplated by Section 12.9 of the
Credit Agreement, the Borrower and the Agent hereby consent to the assignments
to which reference is made in Preliminary Statement (2) and section 4(c) hereof.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1. FINANCIAL STATEMENTS, ETC. The Borrower has furnished to the Banks
and the Agent complete and correct copies of (i) the audited consolidated
balance sheet of the Borrower and its consolidated subsidiaries as of August 31,
1996 and the related consolidated statements of income, shareholders' equity and
cash flows of the Borrower and its consolidated subsidiaries for the fiscal year
then ended, all certified without qualification by its independent public
accountants, and (ii) the unaudited consolidated balance sheet of the Borrower
and its consolidated subsidiaries as of May 31, 1997 and the related
consolidated statements of income and cash flows of the Borrower and its
consolidated subsidiaries for the fiscal quarter and nine nonths then ended. All
such financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied (except as stated therein),
and fairly present the financial position of the Borrower and its consolidated
subsidiaries as of the dates indicated and the consolidated results of their
operations and cash flows for the periods then ended, subject in the case of
such unaudited financial statements to the effect of normal year-end audit
adjustments.
2.2. REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, are true and correct on and as of the date hereof
as though made on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier specified date, in
which case such representations and warranties are hereby reaffirmed as true and
correct when made.
2.3. COMPLIANCE. The Borrower is in compliance in all material respects
with all covenants and agreements contained in the Credit Agreement, as amended
hereby.
2.4. NO EVENT OF DEFAULT, ETC. No condition or event has occurred or
exists which constitutes or which, after notice or lapse of time or both, would
constitute an Event of Default.
SECTION 3. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. CONDITIONS TO THIS AMENDMENT.
This Amendment shall become effective if, and on the date (the
"EFFECTIVE DATE"), on or before August 31, 1997, when all of the following
conditions shall be satisfied:
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(a) EXECUTION OF AMENDMENT BY BORROWER AND AGENT. This
Amendment shall have been executed by the Borrower and the Agent, and
counterparts hereof as so executed shall have been delivered to the
Agent.
(b) EXECUTION OF AMENDMENT BY BANKS. The Agent shall have been
notified by all of the Banks whose names appear on the signature page
hereof that such Banks have executed this Amendment (which notification
may be by facsimile or other written confirmation of such execution).
(c) TRANSFER OF COMMITMENTS AND LOANS. The Banks which were
original parties to the Credit Agreement but are not named in Annex A
hereto shall have assigned all of their Commitments and Loans to one or
more of the Banks party hereto so that, after giving effect thereto,
the outstanding Syndicated Loans of the Banks party hereto shall be in
the proportions reflected in such Annex.
(d) REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties of the Borrower contained in this
Amendment shall be true and correct on and as of such date as though
made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier specified
date, in which case such representations and warranties need only have
been true and correct when made.
(e) CERTIFIED RESOLUTIONS. The Agent shall have received, in
sufficient quantity for the Agent and the Banks, certified copies of
the resolutions of the Board of Directors of the Borrower, approving
the Credit Agreement, this Amendment and each document contemplated
hereby to which the Borrower is a party.
(f) INCUMBENCY CERTIFICATE. The Agent shall have received, in
sufficient quantity for the Agent and the Banks, a certificate of the
Secretary or an Assistant Secretary of the Borrower, certifying the
names and true signatures of the officers of the Borrower authorized to
sign the documents to which the Borrower is a party which may be
executed and delivered in connection herewith.
(g) NOTES. The Agent shall have received, for the account of
the Banks party hereto, a Syndicated Note and a Bid-Option Note for
each such Bank, each duly completed and executed by the Borrower.
(h) OPINION OF COUNSEL. The Agent shall have received, in
sufficient quantity for the Agent and the Banks, an opinion letter of
Berick, Xxxxxxxx & Xxxxx Co., L.P.A., special counsel to the Borrower,
dated on or prior to such date, in substantially the form attached
hereto as Exhibit A, and covering such additional matters incident to
the transactions contemplated hereby as the Agent or any Bank may
reasonably request.
The Agent shall notify the Borrower and each Bank in writing of the Effective
Date.
SECTION 5. MISCELLANEOUS.
5.1. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the Borrower, each Bank and the Agent and their
respective permitted successors and assigns.
5.2. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made in this Amendment shall survive the execution and delivery
of this Amendment, and no investigation by the Agent or any Bank or any
subsequent Loan shall affect the representations and warranties or the right of
the Agent or any Bank to rely upon them.
5.3. REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and
all other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit
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Agreement as amended hereby, are hereby amended so that any reference therein to
the Credit Agreement shall mean a reference to the Credit Agreement as amended
hereby. Whenever reference is made in any such other document to the amount of
the credit facilities provided for in the Credit Agreement, such reference shall
be deemed amended to refer to the amount of the credit facilities provided for
in the Credit Agreement as amended hereby.
5.4. EXPENSES. As provided in the Credit Agreement, but without
limiting any terms or provisions thereof, the Borrower agrees to pay on demand
all costs and expenses incurred by the Agent in connection with the preparation,
negotiation, and execution of this Amendment, including without limitation the
costs and fees of the Agent's special legal counsel, regardless of whether this
Amendment becomes effective in accordance with the terms hereof, and all costs
and expenses incurred by the Agent or any Bank in connection with the
enforcement or preservation of any rights under the Credit Agreement, as amended
hereby.
5.5. SEVERABILITY. Any term or provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.6. APPLICABLE LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of Ohio.
5.7. HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.8. ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.9. COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
[The balance of this page is intentionally blank.]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered
as of the date first above written.
X. XXXXXXXX, INC.
BY: /s/ B.R. Colbow
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TITLE: Treasurer
KEYBANK, NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS AGENT
BY: /s/ Xxxxx X. Xxxxxx
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VICE PRESIDENT
NBD BANK, N.A.
BY: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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VICE PRESIDENT
NATIONAL CITY BANK, NORTHEAST
BY: /s/ Xxxxx X. Xxxxxxxx
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SENIOR VICE PRESIDENT
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
BY: /s/ Xxxxxxxx X. Xxxxx
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VICE PRESIDENT
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ANNEX A
Name Maximum Amount Percentage
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KeyBank National Association $50,000,000 50%
The First National Bank
of Chicago $20,000,000 20%
National City Bank, $15,000,000 15%
Northeast
Xxxxxx Guaranty Trust Company
of New York $15,000,000 15%
