EXHIBIT 10.32
THIRD AMENDMENT
THIRD AMENDMENT, dated as of July 15, 1998 (this "Amendment"), to
the Credit Agreement, dated as of October 16, 1996 (as the same may be
further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among GULFSTREAM DELAWARE CORPORATION, a Delaware
corporation (the "Company"), the several lenders from time to time parties
thereto (the "Lenders") and THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
W I T N E S E T H:
WHEREAS, the Company, the Lenders and the Administrative Agent
are parties to the Credit Agreement;
WHEREAS, the Company has requested that the Administrative Agent,
with the consent of the Required Lenders, amend certain provisions of the
Credit Agreement; and
WHEREAS, the Administrative Agent, with the consent of the
Required Lenders, is agreeable to the requested amendments, but only on the
terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises herein contained
and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein which are defined in the Credit Agreement are used herein
as therein defined.
2. Amendments to Subsection 1.1. Subsection 1.1 to Credit
Agreement is hereby amended by adding the following new definitions in the
appropriate alphabetical order:
"'Permitted Acquisition': as defined in subsection 8.6(j)."
"'Permitted Acquisition Indebtedness': as defined in
subsection 8.6(j)."
3. Amendment to Subsection 7.8. Subsection 7.8 of the Credit
Agreement is hereby amended by adding the following new paragraph (e) to
the end of such subsection.
"(e) Notwithstanding the foregoing provisions of this
subsection 7.8, a non-wholly owned Subsidiary acquired in a
Permitted Acquisition or owned directly or indirectly by any
Person acquired in a Permitted Acquisition shall not be required
to deliver a Guarantee pursuant to this Section 7.8 and to the
extent that the pledge of any of the issued and outstanding stock
of any non-wholly owned Subsidiary acquired in the Permitted
Acquisition or owned directly or indirectly by any Person
acquired in a Permitted Acquisition would cause a breach or
default of or under any Contractual Obligation binding on the
Company or any Subsidiary, such pledge shall not be required by
this subsection 7.8."
4. Amendments to Subsection 8.1. (a) Subsection 8.1(g) of the
Credit Agreement is hereby amended by deleting the word "and" at the end of
such subsection.
(b) Subsection 8.1(h) of the Credit Agreement is hereby
amended by deleting the period at the end of such subsection and
substituting in lieu thereof "; and".
(c) Subsection 8.1 of the Credit Agreement is hereby amended
by adding the following new paragraph (i) to the end of such subsection:
"(i) Permitted Acquisition Indebtedness."
5. Amendments to Subsection 8.2. (a) Subsection 8.2(n) of the
Credit Agreement is hereby amended by deleting the period at the end of
such subsection and substituting in lieu thereof "; and".
(b) Subsection 8.2 of the Credit Agreement is hereby amended
by adding the following new paragraph (o) to the end of such subsection:
"(o) Liens securing Permitted Acquisition Indebtedness
or Contingent Obligations permitted by subsection 8.3(g)."
6. Amendments to Subsection 8.3. (a) Subsection 8.3(e) of the
Credit Agreement is hereby amended by deleting the word "and" at the end of
such subsection.
(b) Subsection 8.3(f) of the Credit Agreement is hereby
amended by deleting the period at the end of such subsection and
substituting in lieu thereof "; and".
(c) Subsection 8.3 of the Credit Agreement is hereby amended
by adding the following new paragraph (g) to the end of such subsection:
"(g) Contingent Obligations arising from, assumed in
connection with or continuing on the part of any Subsidiary
acquired directly or indirectly in the Permitted
Acquisition, provided that the aggregate amount of such
Contingent Obligations do not exceed 10% of the purchase
price paid for the Permitted Acquisition."
7. Amendments to Subsection 8.6. (a) Subsection 8.6(h) of the
Credit Agreement is hereby amended by deleting the word "and" at the end of
such subsection.
(b) Subsection 8.6(i) of the Credit Agreement is hereby
amended by deleting the period at the end of such subsection and
substituting in lieu thereof "; and".
(c) Subsection 8.6 of the Credit Agreement is hereby amended
by adding the following new paragraph (j) to the end of such subsection:
"(j) the Company or any of its Subsidiaries may
acquire, in one acquisition only, the capital stock or all
or substantially all of the assets of another Person or any
business unit or line of business of another Person,
provided that (i) such Person, business unit or line of
business is engaged in a business of the same general type
as the Company and its Subsidiaries are engaged in, or a
business related thereto, (ii) after giving effect to such
acquisition the Company is in compliance on a pro forma
basis as at the end of the most recent fiscal quarter for
which financial statements have been furnished to the
Lenders with the requirements of subsections 8.8, 8.9 and
8.10 and no Default or Event of Default has occurred and is
continuing and (iii) the purchase price of such acquisition
(including any assumed or continuing indebtedness of such
Person, business unit or line of business ('Permitted
Acquisition Indebtedness'), but excluding any portion of
such purchase price paid in common stock of Holdings), is
not greater than $300,000,000 (the acquisition under this
paragraph (j), the 'Permitted Acquisition')."
8. Amendment to Subsection 8.7. Subsection 8.7 of the Credit
Agreement is hereby amended by deleting the reference to "$40,000,000" in
such subsection and substituting in lieu thereof a reference to
"$50,000,000".
9. Effectiveness. This Amendment shall become effective as of the
date the Administrative Agent shall have received counterparts hereof duly
executed by the Company, the Administrative Agent and the Required Lenders.
10. Representations and Warranties. The Company hereby represents
and warrants that each of the representations and warranties in or pursuant
to Section 5 of the Credit Agreement or which are contained in any other
Credit Document or in any certificate, document or financial or other
statement furnished by or on behalf of Holdings, the Company or any
Subsidiary thereof shall be, after giving effect to this Amendment, true
and correct in all material respects as if made on and as of the date
hereof (unless such representations and warranties are stated to relate to
a specific earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier
date).
11. Continuing Effect of Credit Agreement. This Amendment shall
not be construed as a waiver or consent to any further or future action on
the part of the Company that would require a waiver or consent of the
Administrative Agent and/or the Lenders. Except as amended hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
12. Counterparts. This Amendment may be executed in counterparts
and all of the said counterparts taken together shall be deemed to
constitute one and the same instrument.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
14. Expenses. The Company agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation and execution of
this Amendment, including, without limitation, the fees and disbursements
of counsel to the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be executed and delivered by their duly authorized officers as
of the date first written above.
GULFSTREAM DELAWARE CORPORATION
By: /s/ Robert L. Williams
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Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ William J. Caggiano
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Title: Managing Director
ARAB BANKING CORP.
By: /s/ Louise Bilbro
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Title: Vice President
BANK OF AMERICA
By: /s/ Debra A. Seiter
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Title: Vice President
BANK OF NEW YORK
By: /s/ David C. Siegal
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Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
By: /s/ Joseph P. Devoe
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Title: Vice President
CAPTIVA FINANCE LTD.
By:
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Title:
CERES FINANCE, LTD.
By:
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Title:
MEDICAL LIABILITY MUTUAL
INSURANCE CO.
By: Chancellor LGT Senior Secured
Management, Inc., as Investment
Manager
By:
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Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/ Ridgely Cromwell
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Title: Associate
By: /s/ Clifford L. Wells
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Title: Vice President
CITIBANK, N.A.
By: /s/ Charles Foster
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Title: Attorney-In-Fact
CREDIT LYONNAIS
By: /s/ Pascal Poupelle
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Title: Executive Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Ronald Wolinsky
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Title: Vice President and
Group Leader
BANKBOSTON, N.A.
By: /s/ Gregory R.D. Clark
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Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ David T. McNeela
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Title: Vice President
INDUSTRIAL BANK OF JAPAN, LTD.
By: /s/ Takuya Honjo
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Title: Senior Vice President
KREDIETBANK
By:
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Title:
LTCB TRUST COMPANY
By:
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Title:
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Michele Swanson
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Title: Authorized Signatory
MARINE MIDLAND BANK, N.A.
By: /s/ Christopher French
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Title: Authorized Signatory
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management,
L.P., as Investment Advisor
By: /s/ Gilles Marchand, CFA
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Title: Authorized Signatory
MERRILL LYNCH SENIOR FLOATING RATE FUND,
INC.
By: /s/ Gilles Marchand, CFA
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Title: Authorized Signatory
MITSUBISHI TRUST & BANKING CORPORATION
By:
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Title:
NATIONSBANK N.A.
By:
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Title:
PNC BANK, N.A.
By: /s/ Robert Mitchell
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Title: Vice President
SOCIETE GENERALE
By: /s/ Ralph Saheb
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Title: Vice President, Manager
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Mark R. Olmon
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Title: Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By: /s/ Jeffrey W. Maillet
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Title: Senior Vice President
and Director
KZH HOLDING CORPORATION III
By: /s/ Andrew Taylor
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Title: Authorized Agent
KBC BANK N.V.
By:
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Title:
The undersigned guarantors hereby
consent to the foregoing Amendment:
GULFSTREAM AEROSPACE CORPORATION,
a Delaware Corporation
By: /s/ Robert L. Williams
--------------------------------
Title: Vice President and
Treasurer
GULFSTREAM AEROSPACE CORPORATION,
a Georgia Corporation
GULFSTREAM AEROSPACE CORPORATION,
D/B/A GULFSTREAM AEROSPACE
TECHNOLOGIES,
an Oklahoma Corporation
GULFSTREAM AEROSPACE CORPORATION,
a California Corporation
By: /s/ Robert L. Williams
---------------------------------
Title: Vice President and
Treasurer