SIXTH AMENDMENT TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AND FIRST AMENDMENT TO LOAN DOCUMENTS
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED REVOLVING
CREDIT AGREEMENT AND FIRST AMENDMENT TO LOAN DOCUMENTS (this "Amendment
Agreement") is made and entered into as of this 31st day of December, 1998,
by andamong 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"), EACH OF THE
GUARANTORS PARTY HERETO (the "Guarantors"), NATIONSBANK, N.A., a national
banking association (formerly known as NationsBank of North Carolina, National
Association), as Agent (the "Agent") for the lenders (the "Lenders") party to
the Credit Agreement (defined below), NATIONSBANK, N.A., as Lender
("NationsBank"), and BANKBOSTON, N.A.(successor by merger to Bank of Boston
Connecticut) as Lender ("BankBoston").
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 thereafter and hereafter amended, modified,
supplemented, amended and restated or replaced, the "Credit Agreement") and
certain other Loan Documents (as described in more detail in Schedule I hereof,
the "Amended Loan Documents"), pursuant to which the Lenders have agreed to make
certain revolving credit loans to the Borrowers; and
WHEREAS, the parties hereto desire to further amend the Credit Agreement in
the manner herein set forth;
WHEREAS, the parties hereto desire to amend the Amended Loan Documents in
the manner herein set forth;
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 first recital on page 1 of the Credit Agreement is hereby
amended by deleting the dollar amount of "$20,000,000" in the last line
thereof and inserting in lieu thereof the dollar amount of "$25,000,000."
(b) The definition of "Revolving Credit Termination Date" in Section
1.1 of the Credit Agreement 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) December 31, 2000, or (ii) any other date upon which the Total
Commitment shall terminate in accordance with the terms hereof;
(c) The definition of "Total Commitment" in Section 1.1 of the Credit
Agreement is hereby amended by deleting the dollar amount of "$20,000,000"
and inserting in lieu thereof the dollar amount of "$25,000,000."
(d) Exhibit A to the Credit Agreement is hereby deleted in its
entirety and a new Exhibit A is added in replacement thereof in the form
attached hereto as Annex I.
3. Amendments to Amended Loan Documents. Subject to the conditions
hereof, each of the Loan Documents listed on Schedule 1 hereof is hereby
amended, effective as of the date hereof, to delete the dollar amount of
"$20,000,000" in each and every place such dollar amount appears and insert
in lieu thereof the dollar amount of "$25,000,000."
4. Guarantors. Each Guarantor has joined in the execution of this
Amendment Agreement for the purpose of (i) consenting and agreeing to the
amendments to the Credit Agreement and the Amended Loan Documents contained
herein and (ii) confirming and ratifying its guarantee of payment of all the
Obligations pursuant to the Guaranty to which it is party and as may be
amended hereby.
5. 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, except to the extent that
such representations and warranties expressly relate to an earlier
date or schedules referred to therein have changed due to the sale of
Misomex of North America, Inc.
(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.
6. Conditions Precedent. The effectiveness of this Agreement is
subject to the receipt by the parties hereto of the following:
(a) The Agent shall have received, in form and substance satisfactory
to it:
(i) five (5) counterparts of this Agreement duly executed by
all signatories hereto together with all Annexes and Schedules
hereto;
(ii) executed Amended and Restated Revolving Credit
Notes in the aggregate principal amount of $25,000,000 dated as of
the date hereof;
(iii) two copies of executed Consent and Amendment No. 1 to
Intercreditor and Collateral Agency Agreement;
(iv) five (5) counterparts of a Certificate from the
secretary or assistant secretary of each Credit Party, dated as
of the date hereof, certifying (A) as to the resolutions of the
boards of directors or other appropriate governing body (or of
the appropriate committee thereof) of such Credit Party approving
and adopting the amendments to the Credit Agreement and the
Amended Loan Documents contemplated hereby and this Agreement
and authorizing the execution and delivery hereof, (B) as to the
specimen signatures of officers of each Credit Party executing
this Agreement on behalf of such Credit Party, (C) that the
charter documents and bylaws of each Credit Party are unchanged
since the date last certified by the Secretary of State of its
state of organization or, if changed, attached as certified by
the Secretary of State of its state of organization, and (D) for
each Credit Party, as to a certificate issued as of recent date by
the Secretary of State of the state of its incorporation as to its
corporate good standing therein;
(v) five (5) counterparts of a Certificate from the
secretary or assistant secretary of each Guarantor, dated as of
the date hereof, certifying (A) as to the resolutions of the
boards of directors or other appropriate governing body (or of
the appropriate committee thereof) of such Guarantor consenting to
the amendments to the Credit Agreement and approving and adopting
the Amended Loan Documents contemplated hereby and this Agreement
and authorizing the execution and delivery hereof, (B) as to the
specimen signatures of officers of such Guarantor executing this
Agreement on behalf of such Guarantor, (C) that the charter
documents and bylaws of such Guarantor are unchanged since the
date last certified by the Secretary of State (or other
appropriate governmental authority) of its state of organization
or, if changed, attached as certified by the Secretary of State of
its state of organization, and (D) for each Credit Party, as to a
certificate issued as of recent date by the Secretary of State of
the state of its incorporation as to its corporate good standing
therein;
(vi) copies of all additional agreements, instruments and
documents which the Lender may reasonably request, such documents,
when appropriate, to be certified by appropriate governmental
authorities; and
(vii) all fees payable by the Borrowers to the Agent and
the Lenders on or before the date hereof.
(b) All proceedings of the Credit Parties and the Guarantors
relating to the matters provided for herein shall be satisfactory to
the Lender and its counsel.
7. 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.
8. 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.
9. 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.
10. Credit Agreement and Other Loan Documents. All references in any
of the Loan Documents to the "Credit Agreement" or any "Loan Documents" listed
on Schedule I hereto shall mean the Credit Agreement and Amended Loan Documents
as amended hereby.
[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:
XXXXXXX AMERICAS CORPORATION
By:
Name:
Title:
XXXXXXX TECHNOLOGY LIMITED
By:
Name:
Title:
AGENT:
NATIONSBANK, N.A., as Agent for the Lenders
By:
Name:
Title:
LENDERS:
NATIONSBANK, N.A., as Lender
By:
Name:
Title:
BANKBOSTON, N.A., as Lender
By:
Name:
Title:
GUARANTORS:
XXXXXXX TECHNOLOGY COMPANY, INC.
By:
Name:
Title:
XXXXXXX EUROPE CONSOLIDATED, INC.
By:
Name:
Title:
XXXXXXX ASIA PACIFIC CORPORATION
By:
Name:
Title:
XXXXXXX TECHNOLOGY CORPORATION
By:
Name:
Title:
KANSA CORPORATION
By:
Name:
Title:
XXXXXXX GRAPHIC SYSTEMS, INC.
By:
Name:
Title:
XXXXXXX ENKEL CORPORATION
By:
Name:
Title:
Schedule I
List of Loan Documents to be Amended
Amended and Restated Pledge Agreement dated as of December 31, 1995 by and
between Xxxxxxx Americas Corporation, Xxxxxxx Technology Limited and
NationsBank, N.A. as Agent
Amended and Restated Guaranty Agreement dated as of December 31, 1995 by and
between Xxxxxxx Technology Company and NationsBank, N.A. as Agent
Amended and Restated Pledge Agreement dated as of December 31, 1995 by and
between Xxxxxxx Technology Company and NationsBank, N.A. as Agent
Amended and Restated Guaranty Agreement dated as of December 31, 1995 by and
between Xxxxxxx Europe Consolidated, Inc., Xxxxxxx Asia Pacific Corporation and
NationsBank, N.A. as Agent
Amended and Restated Guaranty Agreement dated as of December 31, 1995 by and
between Xxxxxxx Technology Corporation, Kansa Corporation, Xxxxxxx Graphic
Systems, Inc., Enkel Corporation (n/k/a Xxxxxxx Enkel Corporation) and
NationsBank, N.A. as Agent
Amended and Restated Pledge Agreement dated as of December 31, 1995 by and
between Xxxxxxx Technology Corporation and NationsBank, N.A. as Agent
Amended and Restated Pledge Agreement dated as of December 31, 1995 by and
between Enkel Corporation (n/k/a Xxxxxxx Enkel Corporation) in favor of
NationsBank, N.A. as Agent
Pledge and Security Agreement dated as of December 31, 1995 by Xxxxxxx
Technology Limited and NationsBank, N.A. as Agent
Annex I
EXHIBIT A
Applicable Commitment Percentages
Applicable
Committed Commitment
Lender Amount Percentage
NationsBank, National Association $16,250,000 65.00%
BankBoston, N.A. $ 8,750,000 35.00%
$25,000,000 100.00%
