SIXTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "Sixth
Amendment") dated as of November 17, 1997, 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 further amended by that Second Amendment to Amended and Restated Credit
Agreement dated as of November 14, 1996, as further amended by that Third
Amendment to Amended and Restated Credit Agreement dated as of November 21,
1996, as further amended by that Fourth Amendment to Amended and Restated Credit
Agreement dated as of December 30, 1996, as further amended by that Fifth
Amendment to Amended and Restated Credit Agreement dated as of February 5, 1997,
and 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, NIMBUS MANUFACTURING
INC., as U.S. Borrower, NIMBUS MANUFACTURING (UK) LIMITED, as U.K. Borrower, the
Lenders party thereto and NATIONSBANK, N.A., as Agent (the "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 Borrowers wish to amend the Credit Agreement to modify
certain provisions contained therein;
WHEREAS, the Requisite Lenders have agreed to the requested amendment 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 respect:
1. The definition of "Agent's Funding and Payment Office" in Section
1.1 of the Credit Agreement is hereby amended and modified to read as
follows:
"Agent's Funding and Payment Office" means (i) at any time
when there is more than one Lender providing Loans to the Borrowers,
the office of Agent located at Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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)
or (ii) at any time when there is only one Lender providing Loans to
the Borrowers, (A) with regard to Dollar Loans, the office of Agent,
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and (B) with regard to Sterling Loans, the office of
the Agent located at ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇-▇▇▇▇.
2. The definition of "Business Day" in Section 1.1 of the Credit
Agreement is hereby amended and modified to read as follows:
"Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the State of New
York or the State of Virginia or is a day on which banking
institutions located in such state are authorized or required by law
or other governmental action to close, and (ii) with respect to all
notices, determinations, fundings, issuances and payments in
connection with the Adjusted Eurodollar Rate, the Adjusted Domestic
Sterling Rate, the Floating Eurodollar Rate, the Sterling Base Rate,
any Loans made with reference to such rates or any Revolving Credit
Guarantees, any day that is a Business Day described in clause (i)
above and that is also (a) a day for trading by and between banks in
Dollar or Sterling, as the case may be, deposits in the London
interbank market and (b) a day on which banking institutions are
open for business in London.
3. The definition of "Consolidated Capital Expenditures" in Section
1.1 of the Credit Agreement is hereby amended and modified to read as
follows:
"Consolidated Capital Expenditures" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in cash
or other consideration or accrued as a liability and including that
portion of Capital Leases which is capitalized on the consolidated
balance sheet of Company and its Subsidiaries) by Company and its
Subsidiaries during that period then in conformity with GAAP, which
are included in "purchases of property, plant or equipment" or
comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries plus (ii) to the extent not
covered by clause (i) of this definition, the aggregate of all
expenditures by Company and its Subsidiaries during that period to
acquire (by purchase or otherwise) the business, property (except
inventory in the ordinary course of business) or fixed assets of any
Person, or stock or other evidence of beneficial ownership of any
Person that, as a result of the acquisition of such stock or other
evidence, becomes a Subsidiary of Company; provided, however, that
Investments with respect to share capital contributions to
EuroNimbus S.A. permitted pursuant to Section 7.3 shall be included
in the determination of Consolidated Capital Expenditures hereunder.
4. The definition of "Floating Eurodollar Rate" is added in Section
1.1 of the Credit Agreement to read as follows:
"Floating Eurodollar Rate" means, for any day, the "Wall
Street Journal LIBOR Rate." The Wall Street Journal LIBOR Rate is a
daily fluctuating rate of interest equal to the one month London
Interbank Offered Rate as published in the "Money Rates" section of
the Wall Street Journal for the immediately preceding Business Day
as adjusted from time to time in Agent's sole discretion for then
applicable reserve requirements, deposit insurance assessment rates
and other regulatory costs. Interest will accrue on any non-Business
Day at the rate in effect on the immediately preceding Business Day.
5. The definition of "Floating Eurodollar Rate Loans" is added to
Section 1.1 of the Credit Agreement to read as follows:
"Floating Eurodollar Rate Loans" means Loans made to U.S.
Borrower bearing interest at rates determined by reference to the
Floating Eurodollar Rate.
6. The definition of "Interest Payment Date" in Section 1.1 of the
Credit Agreement is amended and modified to read as follows:
"Interest Payment Date" means (i) with respect to any Base
Rate Loan, each March 31, June 30, September 30 and December 31 of
each year, commencing on December 31, 1995, (ii) with respect to
Eurodollar Rate Loans or Domestic Sterling Rate Loans, the last day
of each Interest Period applicable to such Loan; provided that in
the case of each Interest Period of longer than three months,
"Interest Payment Date" shall also include the date that is three
months after the commencement of such interest Period and (iii) with
respect to Floating Eurodollar Rate Loans, the last day of each
calendar month.
7. The definition of "Subsidiary" in Section 1.1 of the Credit
Agreement is amended and modified to read as follows:
"Subsidiary" means, with respect to any Person, any
corporation, partnership, association, joint venture or other
business entity of which more than 50% of the total voting power of
shares of stock or other ownership interest entitled (without regard
to the occurrence of any contingency) to vote in the election of the
Person or Persons (whether directors, managers, trustees or other
Persons performing similar functions) having the power to direct or
cause the direction of the management and policies thereof is at the
time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a
combination thereof; provided, however, that for purposes hereof,
EuroNimbus S.A. shall not be deemed to be a Subsidiary of Company or
any of its Subsidiaries.
8. The definition of "Adjusted Domestic Sterling Rate" is added to
Section 1.1 of the Credit Agreement to read as follows:
"Adjusted Domestic Sterling Rate" means, for any Interest Rate
Determination Date, the rate at which Sterling denominated deposits
in an amount comparable to the amount of the relevant Loan and for a
period equal to the relevant Interest Period is offered to the
Lender in the London interbank market at or about 11:00 a.m. (London
time) on the Interest Rate Determination Date, adjusted for the
following formula:
AB+C(B-D)+E(B-F)
100-(A+E)
Where:
A = The percentage of Agent's eligible liabilities for the
time being required to be held on an interest free
deposit with the Bank of England (or other governmental
authorities or agencies) in accordance with its cash
ratio requirements.
B = The percentage rate per annum at which three month
Sterling fixed deposits are offered to Agent in the
London interbank market at 11:00 A.M. (London time)
C = The average percentage of eligible liabilities which
(as a result of the requirements of the Bank of England)
Agent is required to maintain as secured deposits with
members of the London Discount Market Association
("LDMA") and/or with money brokers and/or with
gilt-edged market makers.
D = the rate at which the members of LDMA bid for deposits
with maturities comparable to the relevant Interest
Period or of three months, whichever is shorter.
E = The percentage of eligible liabilities required to be
placed on special deposit with the Bank of England.
F = The percentage rate of interest per annum obtainable
by Agent on the deposits referred to in "E" above.
9. The definition of "Domestic Sterling Rate Loans" is added to
Section 1.1 of the Credit Agreement to read as follows:
"Domestic Sterling Rate Loans" means Loans made to U.K.
Borrower bearing interest at rates determined by reference to the
Adjusted Domestic Sterling Rate.
10. Section 1 of the letter amendment to the Credit Agreement dated
as of December 8, 1995 is hereby deleted such that the terms "Adjusted
Eurosterling Rate" and "Eurosterling Rate Loans" no longer replace the
terms "Adjusted Domestic Sterling Rate" and "Domestic Sterling Rate
Loans," respectively, and all references to the Adjusted Eurosterling Rate
and Eurosterling Rate Loans in the Credit Agreement, the other Loan
Documents and related documents delivered in connection with the Credit
Agreement shall be deemed to refer to Adjusted Domestic Sterling Rate and
Domestic Sterling Rate Loans, respectively.
11. The first paragraph of Section 2.1B of the Credit Agreement is
hereby amended and modified to read as follows:
B. Borrowing Mechanics. Term Loans or Revolving Loans
(including any such Loans made as Eurodollar Rate Loans, or Domestic
Sterling Rate Loans with a particular Interest Period) made on any
Funding Date (other than Revolving Loans made pursuant to a request
by Swing Line Lender pursuant to subsection 2.1A(iii) for the
purpose of repaying any Refunded Swing Line Loans or Revolving Loans
made pursuant to subsection 3.3B for the purpose of reimbursing any
Issuing Lender for the amount of a drawing or payment under a Letter
of Credit or a Revolving Credit Guarantee issued by it) shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of
$250,000 in excess of that amount in the case of Dollar Loans and
shall be in an aggregate minimum amount of Pounds Sterling 500,000
and integral multiples of Pounds Sterling 100,000 in excess of that
amount in the case of Sterling Loans; provided, however, that
Floating Eurodollar Rate Loans, when available, may be made in a
minimum amount of $1 and in integral multiples thereof. Swing Line
Loans made on any Funding Date shall be in an aggregate minimum
amount of $250,000 and integral multiples of $50,000 in excess of
that amount. Whenever Company desires that Lenders make Term Loans
or Revolving Loans it shall deliver to Agent on behalf of the
applicable Borrower a Notice of Borrowing no later than 12:00 Noon
(New York time) or 10:00 a.m.(London time), as applicable, (i) for
Base Rate Loans, at least one Business Day in advance of the
proposed Funding Date, (ii) for Eurodollar Rate Loans, at least
three Business Days in advance of the proposed Funding Date, (iii)
for Domestic Sterling Rate Loans on the day of the proposed
borrowing or (iv) if at any time there shall be only one Lender
making Loans to the Borrowers hereunder, then the Company may
request Floating Eurodollar Rate Loans (i) by delivery of a Notice
of Borrowing no later than 12:00 Noon (New York time) on the day of
the proposed borrowing or (ii) as otherwise agreed to by the
Company and the Agent. Whenever Company desires that Swing Line
Lender make a Swing Line Loan, it shall deliver to Agent on behalf
of U.S. Borrower a Notice of Borrowing no later than 12:00 Noon (New
York time) on the proposed Funding Date. The Notice of Borrowing
shall specify (i) the proposed Funding Date (which shall be a
Business Day), (ii) the amount and type of Loans requested, (iii)
the Borrower to incur such Loans, (iv) whether such Loans are to be
Dollar Loans or Sterling Loans, (v) in the case of Swing Line Loans
that such Loans shall be Base Rate Loans, and (vi) in the case of
any Loans requested to be made as Eurodollar Rate Loans, or Domestic
Sterling Rate Loans, the initial Interest Period requested therefor.
Term Loans or Revolving Loans may be continued as or converted into
Base Rate Loans, Eurodollar Rate Loans, Domestic Sterling Rate Loans
or, if applicable, Floating Eurodollar Rate Loans in the manner
provided in subsection 2.2D. In lieu of delivering the
above-described Notice of Borrowing, Company may give Agent
telephonic notice by the required time or any proposed borrowing
under this subsection 2.1B; provided that such notice shall be
promptly confirmed in writing by delivery of a Notice of Borrowing
to Agent on or before the applicable Funding Date.
12. Section 2.2A of the Credit Agreement is hereby amended and
modified to read as follows:
A. Rate of Interest. Subject to the provisions of subsections
2.6 and 2.7, each Term Loan and each Revolving Loan shall bear
interest on the unpaid principal amount thereof from the date made
through maturity (whether by acceleration or otherwise) at a rate
determined by reference to (i) in the case of Dollar Loans, the
Dollar Base Rate, the Adjusted Eurodollar Rate, or if applicable,
the Floating Eurodollar Rate, as the case may be, and (ii) in the
case of Sterling Loans, the Adjusted Domestic Sterling Rate. Subject
to the provisions of subsection 2.7, each Swing Line Loan shall bear
interest on the unpaid principal amount thereof from the date made
through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Dollar Base Rate. The applicable
basis for determining the rate of interest with respect to any Loan
shall be selected by Company on behalf of the applicable Borrower
initially at the time a Notice of Borrowing is given with respect to
such Loan pursuant to subsection 2.1B. The basis for determining the
interest rate with respect to any Term Loan or any Revolving Loan
may be changed from time to time pursuant to subsection 2.2D. If on
any day any Term Loan or any Revolving Loan denominated in Dollars
is outstanding with respect to which notice has not been delivered
to Agent in accordance with the terms of this Agreement specifying
the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to
the Dollar Base Rate or, if applicable, the Floating Eurodollar
Rate.
1. Term Loans and Revolving Loans. Subject to the
provisions of subsections 2.2E and 2.7, the Term Loans and the
Revolving Loans shall bear interest through maturity as
follows:
(i) if a Base Rate Loan made to U.S.
Borrower, then at the Dollar Base Rate plus .50% per
annum; or
(ii) if a Eurodollar Rate Loan, then at the sum of
the Adjusted Eurodollar Rate, plus 1.50% per annum; or
(iii) if a Floating Eurodollar Rate Loan, then at
the sum of the Floating Eurodollar Rate, plus 1.50% per
annum; or
(iv) if a Domestic Sterling Rate Loan, then at the
sum of the Adjusted Domestic Sterling Rate, plus 1.50%
per annum.
2. Swing Line Loans. Subject to the provisions of
subsections 2.2E and 2.7, the Swing Line Loans shall bear
interest through maturity at the Dollar Base Rate, plus .50%
per annum.
13. Section 2.2C of the Credit Agreement is hereby amended and
modified to read as follows:
C. Interest Payments. Subject to the provisions of subsection
2.2E, interest on each Loan shall be payable in arrears on and to
each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the amount being
prepaid) and at maturity (including final maturity); provided that,
in the event that any Swing Line Loans or any Revolving Loans that
are Base Rate Loans, or if applicable, Floating Eurodollar Rate
Loans are prepaid pursuant to subsection 2.4B(i), interest accrued
on such Swing Line Loans or Revolving Loans through the date of such
prepayment shall be payable on the next succeeding Interest Payment
Date applicable to Base Rate Loans, or if applicable, Floating
Eurodollar Rate Loans (or, if earlier, at final maturity).
14. The first two paragraphs of Section 2.2D of the Credit Agreement
are hereby amended and modified to read as follows:
D. Conversion or Continuation. Subject to the provisions of
subsection 2.6, Company shall have the option (i) to convert at any
time all or any part of its outstanding Term Loans or Revolving
Loans made to U.S. Borrower in amounts equal to $1,000,000 and
integral multiples of $250,000 in excess of that amount from Loans
bearing interest at a rate determined by reference to one basis to
Loans bearing interest at a rate determined by reference to an
alternative basis or (ii) upon the expiration of any Interest Period
applicable to a Eurodollar Rate Loan or Domestic Sterling Rate Loan,
to continue all or any portion of such Loan equal to $1,000,000 and
integral multiples of $250,000 in excess of that amount (in the case
of Dollar Loans) or ^500,000 and integral multiples of ^100,000 in
excess of that amount (in the case of Sterling Loans) as a
Eurodollar Rate Loan or Domestic Sterling Rate Loan; provided,
however, that a Eurodollar Rate Loan or Domestic Sterling Rate Loan
may only be converted into a Base Rate Loan, or if applicable, a
Floating Eurodollar Rate Loan on the expiration date of an Interest
Period applicable thereto. Dollar Loans may not be converted into
Sterling Loans and Sterling Loans may not be converted into Dollar
Loans.
Company shall deliver a Notice of Conversion/Continuation to
Agent on behalf of the applicable Borrower no later than 12:00 Noon
(New York time) at least one Business Day in advance of the proposed
conversion date in the case of a conversion to a Base Rate Loan, and
at least three Business Days in advance of the proposed
conversion/continuation date in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan. A Notice of
Conversion/Continuation with respect to Floating Eurodollar Rate
Loans, if applicable, or Domestic Sterling Rate Loans may be
delivered on the same day of the proposed conversion so long as such
notice is provided prior to 12:00 Noon (New York time) with respect
to Floating Eurodollar Loans or 10:00 a.m. (London time) with
respect to Domestic Sterling Rate Loans. A Notice of
Conversion/Continuation shall specify (i) the proposed
conversion/continuation date (which shall be a Business Day), (ii)
the amount and type of the Loan to be converted/continued, (iii) the
nature of the proposed conversion/continuation, (iv) in the case of
a conversion to, or a continuation of, a Eurodollar Rate Loan or
Domestic Sterling Rate Loan, the requested Interest Period, and (v)
that no Potential Event of Default or Event of Default has occurred
and is continuing. In lieu of delivering the above-described Notice
of Conversion/Continuation, Company may give Agent on behalf of the
applicable Borrower telephonic notice by the required time of any
proposed conversion/continuation under this subsection 2.2D;
provided that such notice shall be promptly confirmed in writing by
delivery of a Notice of Conversion/Continuation to Agent on or
before the proposed conversion/continuation date.
15. Section 2.2F(i) of the Credit Agreement is hereby amended and
modified to read as follows:
F. Computation of Interest.
(i) Interest on the Loans. Interest on Dollar Loans
shall be computed on the basis of a 360-day year and for the
actual number of days elapsed in the period during which it
accrues. Interest on Sterling Loans shall be computed on the
basis of a 365-day year and for the actual number of days
elapsed in the period during which it accrues. In computing
interest on any Loan, the date of the making of such Loan or
the first day of an Interest Period applicable to such Loan
or, with respect to a Base Rate Loan, or if applicable, a
Floating Eurodollar Rate Loan being converted from a
Eurodollar Rate Loan or Domestic Sterling Rate Loan, the date
of conversion of such Eurodollar Rate Loan or Domestic
Sterling Rate Loan to such Base Rate Loan or Floating
Eurodollar Rate Loan as the case may be, shall be included,
and the date of payment of such Loan or the expiration date of
an Interest Period applicable to such Loan or, with respect to
a Base Rate Loan, or if applicable, a Floating Eurodollar Rate
Loan, being converted to a Eurodollar Rate Loan or Domestic
Sterling Rate Loan, the date of conversion of such Base Rate
Loan, or if applicable, such Floating Eurodollar Rate Loan to
such Eurodollar Rate Loan or Domestic Sterling Rate Loan,
shall be excluded; provided that if a Loan is repaid on the
same day on which it is made, one day's interest shall be paid
on that Loan.
16. Section 2.4B(i) of the Credit Agreement is hereby amended and
modified to read as follows:
(i) Voluntary Prepayments. U.S. Borrower may, upon
written or telephonic notice to Agent on or prior to 12:00
Noon (New York time) on the date of prepayment, which notice,
if telephonic, shall be promptly confirmed in writing, at any
time and from time to time prepay, without premium or penalty,
any Swing Line Loan on any Business Day in whole or in part in
an aggregate minimum amount of $250,000 and integral multiples
of $50,000 in excess of that amount. So long as no Swing Line
Loans are then outstanding, any Borrower may, upon not less
than one Business Day's prior written or telephonic notice, in
the case of Base Rate Loans, or if applicable, upon written or
telephonic notice on the same Business Day with respect to
Floating Eurodollar Rate Loans or Domestic Sterling Rate
Loans, and three Business Days' prior written or telephonic
notice, in the case of Eurodollar Rate Loans, in each case
confirmed in writing to Agent (which notice Agent will
promptly transmit by telefacsimile or telephone to each
Lender), at any time and from time to time prepay, without
premium or penalty, the Term Loans or Revolving Loans on any
Business Day in whole or in part in an aggregate minimum
amount of $1,000,000 and integral multiples of $250,000 in
excess of that amount (in the case of Dollar Loans) or in an
aggregate minimum amount of ^500,000 and integral multiples of
^100,000 in excess of that amount (in the case of Sterling
Loans); provided, however, that Floating Eurodollar Rate Loans
may be prepaid in a minimum amount of $1, and in integral
multiples thereof, provided, further, that in the event any
Borrower shall prepay a Eurodollar Rate Loan or Domestic
Sterling Rate Loan other than on the expiration of the
Interest Period applicable thereto, such Borrower shall, at
the time of such prepayment, also pay the amount payable under
Section 2.6D hereof. Notice of prepayment having been given as
aforesaid, the Loans shall become due and payable on the
prepayment date specified in such notice and in the aggregate
principal amount specified therein. Any voluntary prepayments
pursuant to this subsection 2.4B(i) shall be applied as
specified in subsection 2.4C.
17. Section 2.4C(v) of the Credit Agreement is hereby amended and
modified to read as follows:
(v) Application of Prepayments of Dollar
Loans to Base Rate Loans, Floating Eurodollar Rate Loans,
Domestic Sterling Rate Loans and Eurodollar Rate Loans. Any
prepayment of Loans shall be applied first to Base Rate Loans,
or if applicable, Floating Eurodollar Rate Loans, to the full
extent thereof before application to Eurodollar Rate Loans or
Domestic Sterling Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be made by
the applicable Borrower pursuant to subsection 2.6D.
18. Section 3.2(i) of the Credit Agreement is hereby amended and
modified to read as follows:
(i) with respect to each Letter of Credit or Revolving
Credit Guarantee, (a) a fronting fee equal to 1/4 of 1% per
annum of the daily maximum amount available to be drawn under
such Letter of Credit or Revolving Credit Guarantee and (b) a
Letter of Credit/Revolving Credit Guarantee fee equal to 1.50%
per annum of the daily maximum amount available to be drawn
under such Letter of Credit or Revolving Credit Guarantee, in
each case payable in arrears on and to each March 31, June 30,
September 30 and December 31 of each year, commencing on
December 31, 1995, and computed on the basis of a 360-day year
for the actual number of days elapsed; and
19. Sections 6.1(ii) and 6.1(iii) are hereby amended and modified to
read as follows:
(ii) Quarterly Financials: as soon as available and in
any event within 45 days after the end of each fiscal quarter
of each Fiscal Year, (a) the consolidated and consolidating
balance sheets of Company and its Subsidiaries (including
EuroNimbus S.A. for purposes hereof) as at the end of such
fiscal quarter and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of
Company and its Subsidiaries (including EuroNimbus S.A. for
purposes hereof) for such fiscal quarter and for the period
from the beginning of the then current Fiscal Year to the end
of such fiscal quarter, setting forth in each case in
comparative form the corresponding figures for the
corresponding periods of the previous fiscal year and the
corresponding figures from the consolidated plan and financial
forecast for the current Fiscal Year delivered pursuant to
subsection 6.1(xiii), all in reasonable detail and certified
by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of
Company and its Subsidiaries (including EuroNimbus S.A. for
purposes hereof) as at the dates indicated and the results of
their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal
year-end adjustments, (b) the consolidated balance sheets of
EuroNimbus S.A. and its Subsidiaries as of the end of such
fiscal quarter and the related consolidated statements of
income, stockholders' equity and cash flows of EuroNimbus S.A.
and its Subsidiaries for such fiscal quarter and for the
period from the beginning of the then current Fiscal Year to
the end of such fiscal quarter expressed in U.S. Dollars and
formatted according to GAAP and (c) a narrative report
describing the operations of Company and its Subsidiaries
(including EuroNimbus S.A.) in the form prepared for
presentation to senior management for such fiscal quarter and
for the period from the beginning of the then current Fiscal
Year to the end of such fiscal quarter;
(iii) Year-End Financials: as soon as available and in
any event within 120 days after the end of each Fiscal Year,
(a) the consolidated and consolidating balance sheets of
Company and its Subsidiaries (including EuroNimbus S.A. for
purposes hereof) as at the end of such Fiscal Year and the
related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Company and its
Subsidiaries (including EuroNimbus S.A.) for such Fiscal Year,
setting forth in each case in comparative form the
corresponding figures for the previous fiscal year and the
corresponding figures from the consolidated plan and financial
forecast delivered pursuant to subsection 6.1(xiii) for the
Fiscal Year covered by such financial statements, all in
reasonable detail and certified by the chief financial officer
of Company that they fairly present, in all material respects,
the financial condition of Company and its Subsidiaries
(including EuroNimbus S.A.) as at the dates indicated and the
results of their operations and their cash flows for the
periods indicated, (b) the consolidated balance sheets of
EuroNimbus S.A. and its Subsidiaries as of the end of such
Fiscal Year and the related consolidated statements of income,
stockholders' equity and cash flows of EuroNimbus S.A. and its
Subsidiaries for such Fiscal Year expressed in U.S. Dollars
and formatted in accordance with GAAP, (c) a narrative report
describing the operations of Company and its Subsidiaries in
the form prepared for presentation to senior management for
such Fiscal Year and (d) in the case of such consolidated
financial statements, a report thereon of independent
certified public accountants of recognized national standing
selected by Company and reasonably satisfactory to Agent,
which report shall be unqualified as to going concern and
scope of audit, and shall state that such consolidated
financial statements fairly present, in all material respects,
the consolidated financial position of Company and its
Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods
indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in
such financial statements) and that the examination by such
accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted
auditing standards;
20. Sections 7.1(v) and 7.1(vi) of the Credit Agreement are amended
and modified to read as follows:
"(v) Company may become and remain liable with respect
to Indebtedness to any of its wholly-owned Subsidiaries, and
any wholly-owned Subsidiary of Company may become and remain
liable with respect to Indebtedness to Company or any other
wholly-owned Subsidiary of Company provided that (a) all such
intercompany Indebtedness shall be evidenced by promissory
notes, (b) all such intercompany Indebtedness owed by Company
to any of its respective Subsidiaries shall be subordinated in
right of payment to the payment in full of the Obligations
pursuant to the terms of the applicable promissory notes or an
intercompany subordination agreement, and (c) any payment by
Company or by any Subsidiary of Company under any guaranty of
the Obligations shall result in a pro tanto reduction of the
amount of any intercompany Indebtedness owed by Company or by
such Subsidiary to Company or to any of its Subsidiaries for
whose benefit such payment is made;
(vi) Company and its Subsidiaries may become and remain
liable with respect to other Indebtedness in an aggregate
principal amount not to exceed $3,000,000 less the aggregate
amount of any liability with respect to Contingent Obligations
outstanding pursuant to clause (b) of subsection 7.4(ii).
21. A new Section 8.15 is hereby added to the Credit Agreement to
read as follows:
8.15 EuroNimbus S.A.
Company or any of its Subsidiaries shall incur any repayment
obligation under any circumstances with respect to any loans, grants
or other extensions of credit extended to, or in favor of,
EuroNimbus S.A. by (i) the Government of the Grand Duchy of
Luxembourg or any agency or instrumentality thereof, (ii) Societe
Nationale de Credit et d'Investissement, or (iii) any other third
party lender or creditor of EuroNimbus S.A.
B. The parties hereto agree that so long as there shall be only one Lender
providing Loans to the Borrowers under the Credit Agreement, the Company shall
be relieved of its obligation to pay the annual agency fee to the Agent in the
amount of $50,000.
C. The Borrowers will execute such additional documents as are reasonably
requested by the Lenders to reflect the terms and conditions of this Sixth
Amendment.
D. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits) remain in full force and effect.
E. This Sixth 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 Sixth Amendment to produce or
account for more than one such counterpart.
F. This Sixth 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 Sixth 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