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EXHIBIT 10.37
TWELFTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS TWELFTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment Agreement") is made and entered into, effective as of
this ____ day of September, 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 make further amendments to the
Credit Agreement (the "Amendments") in the manner herein set forth; and
WHEREAS, in consideration for the Borrowers' acknowledgment and
acceptance of the terms of this Amendment Agreement, the Agent and Lenders are
willing to 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 used herein without definition shall
have the definitions provided therefor in the Credit Agreement.
2. 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:
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"Revolving Credit Termination Date" means the earlier
to occur of (i) October 31, 2001, or (ii) any other date upon
which the Total Commitment shall terminate in accordance with
the terms hereof."
3. 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
(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.
4. 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.
5. 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.
6. 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
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hereby confirmed and ratified in all respects and shall remain in full force and
effect according to their respective terms.
7. 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.
8. 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.
9. 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: ____________________________________________
Name:__________________________________________
Title: ___________________________________________
XXXXXXX TECHNOLOGY LIMITED, as Borrower and Credit
Party
By: ____________________________________________
Name:__________________________________________
Title: ___________________________________________
XXXXXXX TECHNOLOGY COMPANY, INC., as Credit
Party
By:_____________________________________________
Name: __________________________________________
Title:___________________________________________
AGENT:
BANK OF AMERICA, N.A., successor in interest to
NationsBank, N.A., as Agent for the Lenders
By: ____________________________________________
Name:__________________________________________
Title:___________________________________________
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: ___________________________________________
Name:_________________________________________
Title:__________________________________________
FLEET NATIONAL BANK, successor in interest to
BANKBOSTON, N.A., as Lender
By: ____________________________________________
Name:__________________________________________
Title:___________________________________________
SIGNATURE PAGE 2 OF 2
