FIRST AMENDMENT TO
THE REVOLVING CREDIT AGREEMENT
FIRST AMENDMENT dated the 12th day of March, 1999 to the REVOLVING CREDIT
AGREEMENT (the "Credit Agreement") dated August 31, 1998 by and between SAUCONY,
INC., a Massachusetts corporation with its principal place of business at 13
Centennial Drive, Peabody, Massachusetts (the "Borrower") and STATE STREET BANK
AND TRUST COMPANY, a Massachusetts trust company with its head office at 225
Franklin Street, Boston, Massachusetts (the "Bank").
Except as otherwise indicated, all capitalized terms used herein shall
have the meanings given to them in the Credit Agreement.
1. Increase of Commitment. From and including the Effective Date (as
defined below) Section 2.1 of the Credit Agreement shall be revised to read as
follows:
2.1. Revolving Credit. The Bank agrees on the terms and conditions herein
set forth, to make loans, whether LIBO Rate Loans or Prime Rate Loans
(including LMCS Loans) (together, the "Loans") to the Borrower and to
issue Letters of Credit (subject, however, to the additional terms and
conditions of the Letter of Credit Agreement) from time to time during the
period from the date of this Agreement up to but not including the
Termination Date in an aggregate principal amount of up to twenty million
United States Dollars (US$20,000,000) at any one time outstanding, as such
amount may be reduced pursuant to Section 2.2 (the "Commitment"). Each
Loan (other than a LMCS Loan) which shall not utilize the Commitment in
full shall be in an amount not less than $50,000. Within the limits of the
Commitment, the Borrower may borrow, prepay pursuant to Section 2.7, repay
pursuant to Section 2.8, and reborrow under this Section 2.1.
2. The Effective Date shall be the date when all of the following
conditions precedent shall have been satisfied in form and substance
satisfactory to the Bank:
(a) The Borrower shall have executed and delivered to the Bank this First
Amendment and the Amended and Restated Note, attached hereto as Exhibit A.
(b) The Borrower shall have delivered to the Bank a certificate from its
President, Chief Operating Officer or Clerk certifying to the Board of Directors
votes authorizing the execution, delivery and performance of this First
Amendment, the Amended and Restated Note, and the other matters contemplated
hereby, setting forth the names of the officers of the Borrower authorized to
sign the same, and stating that the Bank may conclusively rely on the statements
made therein until the Bank shall receive a further certificate of such officer
canceling or amending the prior certificate.
(c) The Bank shall have received a duly executed original of the
favorable legal opinion of counsel for the Borrower as to the due authorization,
execution and enforceability of the
Credit Agreement, as amended by this First Amendment, and the Amended and
Restated Note and such other matters as the Bank and its counsel may reasonably
require.
(d) The representations and warranties of the Borrower contained in
Section 4 of the Credit Agreement shall be true on and as of the Effective Date
as if they had been made on such date (except to the extent that such
representations and warranties expressly relate to an earlier date or are
affected by the consummation of transactions permitted under the Credit
Agreement).
(e) No Default shall have occurred and be continuing.
3. The Borrower represents and warrants to the Bank that (i) the
representations and
warranties of the Borrower contained in Section 4 of the Credit Agreement are
true on the date hereof as though made on such date (except to the extent that
such representations and warranties expressly relate to an earlier date or are
affected by the consummation of transactions permitted under the Credit
Agreement), and (ii) no Default has occurred or is continuing or will occur
after giving effect to this First Amendment and the transactions contemplated
hereunder.
4. As of the Effective Date, all references to the Credit Agreement shall
be to the Credit Agreement as amended hereby and all references to the Note
shall be to the Amended and Restated Note.
5. The Borrower agrees to pay all costs and expenses, including reasonable
attorneys' fees, incurred by the Bank in connection with the preparation,
negotiation and execution of this First Amendment and of the documents and
instruments referred to herein.
6. Except as otherwise provided herein all other terms of the Credit
Agreement shall remain in full force and effect.
7. THE BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS FIRST AMENDMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
BORROWER OR THE BANK. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BORROWER AND THE BANK ENTERING INTO THIS FIRST
AMENDMENT AND EACH SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly executed by their respective duly authorized officers as of the date first
above written.
SAUCONY, INC.
Borrower
By: /s/ Charles A. Gottesman
Name: Charles A. Gottesman
Title: Executive Vice President
STATE STREET BANK AND TRUST COMPANY
Bank
By: /s/ Kelley L. Rumps
Name: Kelley L. Rumps
Title: Assistant Vice President
EXHIBIT AAMENDED AND RESTATED PROMISSORY NOTE
US$20,000,000
Boston, Massachusetts
March 12, 1999
FOR VALUE RECEIVED, the undersigned, Saucony, Inc., a Massachusetts
corporation (the "Borrower"), hereby promises to pay to the order of State
Street Bank and Trust Company, at its offices at 225 Franklin Street, Boston,
Massachusetts (the "Bank") the principal sum of Twenty Million United States
Dollars ($20,000,000) or, if less, the aggregate unpaid principal amount of all
Loans made by the Bank to the Borrower pursuant to the Credit Agreement referred
to below, together with interest on the outstanding principal amounts of the
Loans, at the rates, on such dates and as otherwise provided for in the Credit
Agreement.
This Note is the Note referred to in the Revolving Credit Agreement (as
modified, supplemented or amended from time to time, the "Credit Agreement"),
dated as of August 3 1, 1998, by and between the Borrower and the Bank and is
subject to the provisions and entitled to the benefits thereof. Terms used
herein which are defined in the Credit Agreement shall have their defined
meanings when used herein. As provided in the Credit Agreement, this Note is
subject to voluntary prepayment, in whole or in part.
In case an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note shall be, or may be declared to be, due and
payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives, to the fullest extent permitted by applicable
law, presentment, demand, protest and all notices of any kind in connection with
this Note.
This Note amends and restates the terms of that Promissory Note dated
August 31, 1998 (the "1998 Note") made by the Borrower to the order of the Bank,
which 1998 Note is superseded in its entirety hereby. By accepting this Note or
canceling the 1998 Note, the Bank does not waive any obligation of the Borrower
to the Bank under the 1998 Note, nor shall the delivery or acceptance of this
Note be deemed to satisfy any such obligation, the intent of the parties being
to hereby amend and restate the agreed terms applicable to such obligations.
This Note is executed as an instrument under seal, and shall be governed
by the laws of the Commonwealth of Massachusetts.
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE.
SAUCONY, INC.
By: /s/ Charles A. Gottesman
Name: Charles A. Gottesman
Title: Executive Vice President
AMENDED AND RESTATED PROMISSORY NOTE
US$20,000,000
Boston, Massachusetts March 12, 1999FOR VALUE RECEIVED, the undersigned,
Saucony, Inc., a Massachusetts corporation (the "Borrower"), hereby promises to
pay to the order of State Street Bank and Trust Company, at its offices at 225
Franklin Street, Boston, Massachusetts (the "Bank") the principal sum of Twenty
Million United States Dollars ($20,000,000) or, if less, the aggregate unpaid
principal amount of all Loans made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below, together with interest on the outstanding
principal amounts of the Loans, at the rates, on such dates and as otherwise
provided for in the Credit Agreement.
This Note is the Note referred to in the Revolving Credit Agreement (as
modified, supplemented or amended from time to time, the "Credit Agreement"),
dated as of August 3 1, 1998, by and between the Borrower and the Bank and is
subject to the provisions and entitled to the benefits thereof. Terms used
herein which are defined in the Credit Agreement shall have their defined
meanings when used herein. As provided in the Credit Agreement, this Note is
subject to voluntary prepayment, in whole or in part.
In case an Event of Default shall occur and be continuing, the principal of
and accrued interest on this Note shall be, or may be declared to be, due and
payable in the manner and with the effect provided in the Credit Agreement.
The Borrower hereby waives, to the fullest extent permitted by applicable
law, presentment, demand, protest and all notices of any kind in connection with
this Note.
This Note amends and restates the terms of that Promissory Note dated
August 31, 1998 (the "1998 Note") made by the Borrower to the order of the Bank,
which 1998 Note is superseded in its entirety hereby. By accepting this Note or
canceling the 1998 Note, the Bank does not waive any obligation of the Borrower
to the Bank under the 1998 Note, nor shall the delivery or acceptance of this
Note be deemed to satisfy any such obligation, the intent of the parties being
to hereby amend and restate the agreed terms applicable to such obligations.
This Note is executed as an instrument under seal, and shall be governed
by the laws of the Commonwealth of Massachusetts.
THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE.
SAUCONY, INC.
By: /s/ Charles A. Gottesman
Name: Charles A. Gottesman
Title: Executive Vice President