(Form of)
FIRST AMENDMENT AGREEMENT
AGREEMENT dated as of December __, 1996, among ▇▇▇▇▇▇▇ INTERNATIONAL,
INC., ▇▇▇▇▇▇▇ INTERNATIONAL GROUP INC., the several banks and financial
institutions from time to time parties to the Credit Agreement (as defined
below), BANK OF BOSTON CONNECTICUT, as Administrative Agent and SOCIETE
GENERALE, as Documentation Agent.
BACKGROUND
A. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Second Amended and Restated Credit Agreement dated as of
October 28, 1996, among ▇▇▇▇▇▇▇ International, Inc., ▇▇▇▇▇▇▇ International Group
Inc. (the "Parent"), the several banks and other financial institutions from
time to time parties to the Credit Agreement (the "Lenders"), Bank of Boston
Connecticut, as Administrative Agent (the "Administrative Agent") and Societe
Generale, as Documentation Agent (as amended, modified or supplemented from time
to time, the "Credit Agreement").
B. Each of the Parent and Borrower has requested that the
Administrative Agent and the Lenders amend the Credit Agreement as hereinafter
set forth.
C. The Administrative Agent and the Required Lenders have agreed to
the request of the Parent and the Borrower subject to the terms and conditions
of this Agreement.
AGREEMENT
In consideration of the Background, which is incorporated by
reference, the parties hereto, intending to be legally bound, agree as follows:
1. MODIFICATIONS. All the terms and provisions of the Credit Agreement
and the other Loan Documents shall remain in full force and effect except that:
(a) the following definition of "Change of Control" is hereby
added to Section 1.1 of the Credit Agreement:
"CHANGE OF CONTROL": the occurrence of any of the
following events: (a) any "Person" (as such term is defined
in Sections 13(d) and 14(d) of the Exchange Act), other than
one or more Permitted Holders, controls, directly or
indirectly more than 15% of the total voting power of the
Voting Stock of the Parent; (b) the Permitted Holders
"beneficially own" (as such
term has the meaning within the context of Rules 13d-3 and 13d-5),
directly or indirectly, in the aggregate less than 50.1% total voting
power of the Voting Stock of the Parent; or (c) during any period of
two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Parent (together with any
new directors whose selection by such Board of Directors or whose
nomination for election by the shareholders of the Parent was approved
by vote of 66-2/3% of the directors of the Parent then still in office
who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of
the Parent then in office.
(b) the following definition of "Exchange Act" is hereby added
to Section 1.1 of the Credit Agreement:
"EXCHANGE ACT": the Securities Exchange Act of 1934, as
amended.
(c) the following definition of "Permitted Holders" is hereby
added to Section 1.1 of the Credit Agreement:
"PERMITTED HOLDERS": ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, the Trust
under the Will of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ for the benefit of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III and the Will of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
for the benefit of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III, and the respective
heirs, administrators, personal representatives, successors
and assigns of each of them.
(d) the following definition of "Voting Stock" is hereby added
to Section 1.1 of the Credit Agreement:
"VOTING STOCK": of a corporation means all classes of
Capital Stock of such corporation then outstanding and
normally entitled to vote in the election of directors.
(e) Section 7(k) of the Credit Agreement is deleted and the
following is substituted therefor:
(k) a Change of Control shall occur;
2. CONDITIONS PRECEDENT. This Agreement shall not be effective until
such date, if any, as each of the following conditions precedent shall have been
fulfilled:
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(a) this Agreement shall have been duly executed by the parties
hereto;
(b) the Required Lenders shall have consented to the execution
of this Agreement by the Administrative Agent; and
(c) the Administrative Agent shall have received such other
agreements and instruments as the Administrative Agent shall require.
3. REAFFIRMATION BY BORROWER. The Borrower acknowledges and agrees, and
reaffirms, that it is legally, validly and enforceably indebted to the Lenders
under the Revolving Credit Notes, the A Term Notes, the B Term Notes and the
Swing Line Note, without defense, counterclaim or offset, and that it is
legally, validly and enforceably liable to the Lenders for all costs and
expenses of collection and attorneys' fees related to or in any way arising out
of this Agreement, the Credit Agreement, the Revolving Credit Notes, the A Term
Notes, the B Term Notes, the Swing Line Note and the other Loan Documents. The
Borrower hereby restates and agrees to be bound by all covenants contained in
the Credit Agreement and the other Loan Documents and hereby reaffirms that all
of the representations and warranties contained in the Credit Agreement remain
true and correct in all material respects. The Borrower represents that except
as set forth in the Credit Agreement, there are not pending or to the Borrower's
knowledge threatened, legal proceedings to which the Borrower or the Guarantor
is a party, that materially or adversely affect the transactions contemplated by
this Agreement or the ability of the Borrower or the Guarantor to conduct its
business. The Borrower acknowledges and represents that the resolutions of the
Borrower dated April 9, 1996, remain in full force and effect and have not been
amended, modified, rescinded or otherwise abrogated.
4. REAFFIRMATION BY GUARANTORS. The Guarantors acknowledges that it is
legally and validly indebted to the Lenders or the Administrative Agent under
the Guaranty without defense, counterclaim or offset. The Guarantor affirms
that the Guaranty remains in full force and effect and acknowledges that the
Guaranty encompasses, without limitation, the amount of the Revolving Credit
Loans, the A Term Loans, the B Term Loans and the Swing Line Loan.
5. OTHER REPRESENTATIONS BY BORROWER AND GUARANTOR. The Borrower and the
Guarantor each represents and confirms that (a) no Default or Event of Default
has occurred and is continuing and the Administrative Agent has not given its
consent to or waived any Default or Event of Default and (b) the Credit
Agreement and the other Loan Documents are in full force and effect and
enforceable against the Borrower and Guarantor in accordance with the terms
thereof. The Borrower and the Guarantor each represents and confirms that as of
the date hereof, each has no claim or defense (and the Borrower and the
Guarantor each hereby waive every claim and defense) against the Administrative
Agent and the Lenders arising out of or relating to the Credit Agreement and the
other Loan Documents or the making, administration or enforcement of the
Revolving Credit Loans, the A Term Loans, the
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B Term Loans or the Swing Line Loan and the remedies provided for under the Loan
Documents.
6. NO WAIVER BY LENDERS. The Borrower and the Guarantor each
acknowledges that (a) by the execution by each of this Agreement, neither the
Administrative Agent nor the Lenders are waiving any Default, whether now
existing or hereafter occurring, disclosed or undisclosed, by the Borrower or
the Guarantor under the Loan Documents and (b) the Administrative Agent and the
Lenders reserve all rights and remedies available to them under the Loan
Documents and otherwise.
7. MISCELLANEOUS.
(a) This Agreement may be executed by one or more of the parties
to this Agreement on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
(b) This Agreement and the right and obligations of the parties
hereunder shall be governed by and construed in accordance with, the laws of the
State of New York.
(c) This Agreement shall be deemed a Loan Document under the
Credit Agreement for all purposes.
The parties hereto have caused this Agreement to be duly executed and
delivered by their proper and duly authorized officers as of the day and year
first above written.
▇▇▇▇▇▇▇ INTERNATIONAL, INC.
By: ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
▇▇▇▇▇▇▇ INTERNATIONAL GROUP INC.
By: ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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BANK OF BOSTON CONNECTICUT, as
Administrative Agent, Lender, Issuing Lender
and Swing Line Lender
By: ____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SOCIETE GENERALE, as
Documentation Agent and Lender
By: ____________________________________
▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
OTHER LENDERS:
SANWA BUSINESS CREDIT CORPORATION
By: ____________________________________
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: ____________________________________
Name:
Title:
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.
By: ____________________________________
Name:
Title:
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▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ PLC
By: ____________________________________
Name:
Title:
IMPERIAL BANK
By: ____________________________________
Name:
Title:
SOUTHERN PACIFIC THRIFT AND LOAN
ASSOCIATION
By: ____________________________________
Name:
Title:
MELLON BANK, N.A.
By: ____________________________________
Name:
Title:
CRESCENT MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By: ____________________________________
Name:
Title:
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PENNSYLVANIA LIFE INSURANCE
COMPANY
By: TCW ASSET MANAGEMENT COMPANY,
its Attorney-in-Fact
By: ____________________________________
Name:
Title:
COBANK ACB
By: ____________________________________
Name:
Title:
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