TENTH AMENDMENT AND WAIVER TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS TENTH AMENDMENT AND WAIVER TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "Amendment Agreement") is made and entered into, effective
as of this 3rd day of May, 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
., 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 March 31, 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 June 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 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 March 31, 2000 and beyond
that to and including June 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) June 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 cancel tracts; 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.
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.
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.]
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
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
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Doc. No.309979
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