SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Second Amendment") dated as of November 14, 1996, is to that Amended and
Restated Credit Agreement dated as of October 30, 1995 as amended by that First
Amendment to Amended and Restated Credit Agreement dated as of December 8, 1995
(as amended and modified hereby and as further amended and modified from time to
time hereafter, the "Credit Agreement"; terms used but not otherwise defined
herein shall have the meanings assigned in the Credit Agreement), by and among
NIMBUS CD INTERNATIONAL, INC., as Parent and Guarantor (the "Company"), NIMBUS
MANUFACTURING INC., as U.S. Borrower, NIMBUS MANUFACTURING (UK) LIMITED, as U.K.
Borrower (together with Nimbus Manufacturing Inc., each a "Borrower" and
collectively, the "Borrowers"), the Lenders listed on the signature pages hereto
and NATIONSBANK, N.A. (the "Agent"), as successor agent to The Chase Manhattan
Bank, N.A. (the "Replaced Agent").
W I T N E S S E T H
WHEREAS, the Lenders have, pursuant to the terms of the Credit Agreement,
made available to the Borrowers a $50,000,000 credit facility;
WHEREAS, the Agent individually in its capacity as a Lender has assumed
the Commitments of the Replaced Agent in their entirety;
WHEREAS, concurrently with the effectiveness of this Amendment, The Chase
Manhattan Bank shall resign as Agent pursuant to Section 9.5(A) of the Credit
Agreement and shall resign as Swing Line Lender pursuant to Section 9.5(B) of
the Credit Agreement and be replaced in each capacity by NationsBank, N.A.;
WHEREAS, the Company, the Borrowers, the Lenders and the Agent desire to
amend the Credit Agreement to provide for certain modifications to reflect the
assignment of the role of agent from the Replaced Agent to the Agent; and
WHEREAS, the Lenders have agreed to the requested changes on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
A. The Credit Agreement is amended in the following respects:
1. In connection with the assignment of the role of agent from the
Replaced Agent to the Agent, all references in the Credit Agreement to
"The Chase Manhattan Bank, N.A." shall be replaced with "NationsBank,
N.A." and all references to "Chase" shall be replaced with "NationsBank".
2. All references to the terms "Overdraft", "Overdraft Account",
"Overdraft Amount" and "Overdraft Commitment" in the Credit Agreement are
hereby deleted in their entirety, and in connection therewith, there shall
be no overdraft facility available to the U.K. Borrower under the terms of
the Credit Agreement.
3. The definition of "Adjusted Eurodollar Rate" in Section 1.1
is amended and modified to read as follows:
"Adjusted Eurodollar Rate" means, for the Interest Period for
each Eurodollar Rate Loan comprising part of the same borrowing
(including conversions, extensions and renewals), a per annum
interest rate determined pursuant to the following formula:
Adjusted Eurodollar Rate = Interbank Offered Rate/
1 - Eurodollar Reserve Percentage
4. The definition of "Agent's Funding and Payment Office" in
Section 1.1 is amended and modified to read as follows:
"Agent's Funding and Payment Office" means the office of Agent
located at Independence Center, 000 Xxxxx Xxxxx Xxxxxx,
XX0-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, for the attention of
Agency Services (or, if NationsBank shall no longer be Agent, such
offices of the successor Agent as specified by such successor Agent
in a written notice to the Loan Parties and Lenders).
5. The definition of "Eurodollar Reserve Percentage" is added
to Section 1.1 to read as follows:
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor), as such regulation may be amended
from time to time or any successor regulation, as the maximum
reserve requirement (including, without limitation, any basic,
supplemental, emergency, special, or marginal reserves) applicable
with respect to Eurocurrency liabilities as that term is defined in
Regulation D (or against any other category of liabilities that
includes deposits by reference to which the interest rate of
Eurodollar Rate Loans is determined), whether or not a Lender has
any Eurocurrency liabilities subject to such reserve requirement at
that time. Eurodollar Rate Loans shall be deemed to constitute
Eurocurrency liabilities and as such shall be deemed subject to
reserve requirements without benefits of credits for proration,
exceptions or offsets that may be available from time to time to a
Lender. The Adjusted Eurodollar Rate shall be adjusted automatically
on and as of the effective date of any change in the Eurodollar
Reserve Percentage.
6. The definition of "Interbank Offered Rate" is added to
Section 1.1 to read as follows:
"Interbank Offered Rate" means, for the Interest Period for
each Eurodollar Rate Loan comprising part of the same borrowing
(including conversions, extensions and renewals), a per annum
interest rate (rounded upwards, if necessary, to the nearest whole
multiple of 1/100 of 1%) equal to the rate of interest determined by
the Agent on the basis of the offered rates for deposits in dollars
for a period of time corresponding to such Interest Period (and
commencing on the first day of such Interest Period), which appear
on the Reuters Screen LIBO Page as of 11:00 A.M. (London time) two
(2) Business Days before the first day of such Interest Period
(provided that if at least two such offered rates appear on the
Reuters Screen LIBO Page, the rate in respect of such Interest
Period will be the arithmetic mean of such offered rates). As used
herein, "Reuters Screen LIBO Page" means the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major
banks).
7. The definition of "Interest Rate Determination Date" in
Section 1.1 is amended and modified to read as follows:
"Interest Rate Determination Date" means, each date for
calculating the Adjusted Eurodollar Rate or the Adjusted
Eurosterling Rate, for purposes of determining the interest rate in
respect of an Interest Period. The Interest Rate Determination Date
(i) in respect of calculating the Adjusted Eurodollar Rate shall be
the second Business Day prior to the first day of the related
Interest Period and (ii) in respect of calculating the Adjusted
Eurosterling Rate shall be the second Business Day prior to the
related Interest Period.
8. Section 2.4(E)(i) of the Credit Agreement entitled "Fluctuations
in Currency Exchange Rates" is amended and modified to read as follows:
(i) Fluctuations in Currency Exchange Rates. The Dollar
Equivalent of any Sterling Loans shall be calculated on the Funding
Date for such Sterling Loans and/or at the beginning of each
subsequent Interest Period and such calculation shall remain in
effect for purposes of this Agreement until the next date on which
an event described in the foregoing clause occurs and a
recalculation is made.
9. Section 7.4(vi) of the Credit Agreement is amended and
modified to read as follows:
(vi) Company and its Subsidiaries may become and remain liable
with respect to other Contingent Obligations; provided that the
maximum aggregate liability, contingent or otherwise, of Company and
its Subsidiaries in respect of all such Contingent Obligations shall
at no time exceed (a) $2,000,000 during such time as NationsBank,
N.A. shall provide a standby letter of credit in support of the U.K.
Borrower's overdraft facility and (b) $500,000 at all other times.
10. Schedule 2.1 to the Credit Agreement is hereby deleted in its
entirety and replaced with Annex A attached hereto.
B. The Loan Parties hereby represent and warrant that:
1. Any and all representations and warranties made by the Loan
Parties and contained in the Credit Agreement (other than those which
expressly relate to a prior period) are true and correct in all material
respects as of the date of this Second Amendment; and
2. No Default or Event of Default currently exists and is continuing
under the Credit Agreement as of the date of this Second Amendment.
C. The effectiveness of this Second Amendment is conditioned upon
receipt by the Agent of the following:
1. Copies of this Second Amendment executed by the Loan
Parties and the Lenders; and
2. Copies of the resolutions of the Loan Parties approving the
terms and authorizing execution and delivery of this Second Amendment.
D. The Loan Parties will execute such additional documents as are
reasonably requested by the Agent to reflect the terms and conditions of this
Second Amendment.
E. Each of the Loan Parties, as applicable, affirm the liens and security
interests created and granted in the Credit Agreement and the other Loan
Documents and agree that this Second Amendment shall in no manner adversely
affect or impair such liens and security interests.
F. The Company acknowledges and consents to all of the terms and
conditions of this Second Amendment and agrees that this Second Amendment does
not operate to reduce or discharge the Company's obligations under the Credit
Agreement or the other Loan Documents. The Company acknowledges and agrees that
the Company has no claims, counterclaims, offsets, credits or defenses to the
Loan Documents and the performance of the Company's obligations thereunder or if
the Company has any such claims, counterclaims, offsets, credits or defenses to
the Loan Documents or any transaction related to the Loan Documents, the same
are hereby waived, relinquished and released in consideration of the Lenders'
execution and delivery of this Second Amendment.
G. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits) remain in full force and effect.
H. The Loan Parties jointly and severally agree to pay all reasonable
costs and expenses in connection with the preparation, execution and delivery of
this Second Amendment, including without limitation the reasonable fees and
expenses of the Agent's legal counsel.
I. This Second Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Second Amendment to produce or
account for more than one such counterpart.
J. This Second Amendment and the Credit Agreement, as amended hereby,
shall be deemed to be contracts made under, and for all purposes shall be
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Second Amendment to Amended and Restated Credit Agreement to be duly
executed under seal and delivered as of the date and year first above written.
COMPANY: NIMBUS CD INTERNATIONAL, INC.,
as Parent and Guarantor
By___________________________________
Name_________________________________
Title__________________________________
U.S. BORROWER NIMBUS MANUFACTURING INC.
By___________________________________
Name_________________________________
Title__________________________________
U.K. BORROWER NIMBUS MANUFACTURING (UK) LIMITED
By___________________________________
Name_________________________________
Title__________________________________
BANKS NATIONSBANK, N.A., individually in its capacity
as a Lender and in its capacity as Agent
By___________________________________
Name_________________________________
Title__________________________________
BANK OF SCOTLAND
By___________________________________
Name_________________________________
Title__________________________________
MIDLAND BANK, PLC
By___________________________________
Name_________________________________
Title__________________________________
Annex A
SCHEDULE 2.1
LENDERS' COMMITMENTS AND PRO RATA SHARES
Term Loan Revolving Loan Pro Rata
Lenders Commitment Commitment Share
NationsBank, N.A. $13,333,333.50 $13,333,333.50 53.333334%
Midland Bank PLC $6,666,666.50 $6,666,666.50 26.666666%
Bank of Scotland $5,000,000.00 $5,000,000.00 20%
TOTAL: $25,000,000.00 $25,000,000.00 100%
