AMENDMENT NO. 5 TO RESTATED REVOLVING CREDIT AGREEMENT
This Amendment No. 5 to Restated Revolving Credit Agreement (the
"Fifth Amendment"), made as of this 12th day of November, 1997, among
the undersigned, amends that certain Restated Revolving Credit Agreement,
dated as of December 20, 1996, as amended from time to time (as amended
previously and hereby, the "Agreement"), among the Borrowers, the Agent,
individually and as agent for itself and each of the other Banks, and the
Banks (as such terms are defined in the Agreement).
Reference is made to the following facts:
A. The Borrowers, the Agent and the Banks have entered into the
Agreement pursuant to which the Banks have, on the terms and subject to
the conditions stated therein, made loans to the U.S. Borrower;
B. The Borrowers have requested that the Agreement be further
amended to modify the financial covenants therein to avoid the occurrence
of an Event of Default; and
C. The Agent and the Banks have agreed to make the modifications
requested by the Borrowers solely in accordance with the terms and
conditions of this Fifth Amendment.
NOW, THEREFORE, in consideration of the premises and of good and
valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto agree as follows:
Section 1. Definitions All capitalized terms used herein which are
defined in the Agreement shall have the meanings herein as therein, except
as otherwise specifically provided herein.
Section 2. Amendments to the Loan Documents From and after the date
hereof, the Agreement is hereby amended as follows:
2.1 The portion of the table in Section 6.9 of the Agreement
regarding the periods from October 1, 1997 through October 31, 1997
and from November 1, 1997 through November 30, 1997 are hereby
amended to provide as follows:
"Period Amount Maximum Usual Allowance
Permitted in Minimum EBITDA
October 1, 1997
through October 31, 1997 $0 $0
November 1, 1997
through November 30, 1997 $0 $0"
2.2 Notwithstanding any provisions of Section 2B of the Agreement,
or any other terms or provisions of the Agreement, the U.S. Borrower and
the Canadian Borrower shall be prohibited, from and after the date hereof,
from borrowing any Eurodollar Loans, and all Revolving Loans made from and
after the date hereof shall be Base Rate Loans. Without derogating from
the foregoing, all Eurodollar Loans outstanding prior to the date hereof
shall continue as Eurodollar Loans, subject to the terms and conditions of
the Agreement, for the remainder of their respective Interest Periods; and
upon the expiration of such Interest Periods such Revolving Loans shall
be, from and after the expiration of such Interest Periods, Base Rate
Loans.
Section 3. Conditions Precedent to this Amendment. The agreements
of the Agent and the Banks set forth in this Fifth Amendment are subject
to the satisfaction of the following conditions precedent:
3.1 At the time of the execution and delivery of the Fifth
Amendment, there shall exist no Defaults or Events of Default under the
terms of the Agreement, the Loan Documents and the Ancillary Documents;
3.2 The U.S. Borrower shall have reimbursed the Agent for all of the
reasonable fees and disbursements of counsel to the Agent, which shall
have been incurred by the Agent prior to or in connection with the
preparation, negotiation, execution and delivery of this Fifth Amendment
and the consummation of the transactions contemplated herein;
3.3 Since the date of the commencement of the Agent's most recent
commercial finance examination, there shall have been no changes in the
assets, liabilities, financial condition, business, income, operations or
prospects of any of the Borrowers, the effect of which have had or will
have, in the aggregate, a material adverse effect on the assets,
properties, business, prospects, income, operations or financial condition
of the Borrowers;;
3.4 This Fifth Amendment shall have been duly and properly
authorized, executed and delivered to the Agent and the Banks, and shall
be in full force and effect; and
3.5 The U.S. Borrowers shall have paid to the Agent, for the benefit
of the Agent and the U.S. Banks in accordance with their respective U.S.
Commitment Percentages immediately following the execution and delivery
hereof, a non-refundable restructuring fee of $50,000.
Section 4. Representations and Warranties. In order to induce the
Agent and the Banks to enter into this Fifth Amendment, the Borrowers,
jointly and severally, represent and warrant to the Agent and each Bank
that:
4.1 Each of the Borrowers (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state or
province in which it is organized as listed on Exhibit D to the Agreement,
(b) has all requisite corporate power to own its property and conduct its
business as now conducted and as presently contemplated, and (c) is duly
qualified and in good standing as a foreign corporation and is duly
authorized to do business in each jurisdiction listed in Exhibit D to the
Agreement.
4.2 The execution, delivery and performance of this Fifth Amendment
and the transactions contemplated hereby are within the corporate power
and authority of each Borrower and have been authorized by all necessary
corporate proceedings, and do not (a) require any consent or approval of
any creditors, trustees for creditors or shareholders of any of the
Borrowers, including without limitation, the Indenture Trustee or any
other party pursuant to the terms of the Indenture Agreement, (b)
contravene any provision of the charter documents or by-laws of any of the
Borrowers or any law, rule or regulation applicable to any of the
Borrowers, (c) contravene any provision of, or constitute an event of
default or events that, but for the requirement that time elapse or notice
be given, or both, would constitute an event of default, under, any other
agreement, instrument, order or undertaking binding on any of the
Borrowers, including, without limitation, the Indenture Agreement, or (d)
result in or require the imposition of any Encumbrance on any of the
properties, assets or rights of any of the Borrowers other than Permitted
Encumbrances; and
4.3 Each of the representations warranties, covenants and negative
covenants set forth in this Fifth Amendment, the Agreement, and the other
Loan Documents is true and correct on the date hereof in all material
respects, and no event has occurred and no condition exists which
constitutes a Default or Event of Default under the Agreement, or any
other Loan Documents or any Ancillary Documents.
Section 5. Indemnification. The Borrowers shall absolutely and
unconditionally indemnify and hold harmless the Agent and each of the
Banks against any and all claims, demands, suits, actions, causes of
action, damages, losses, settlement payments, obligations, costs, expenses
and all other liabilities whatsoever which shall at any time or times be
incurred or sustained by the Agent or any of the Banks, or by any of their
shareholders, directors, officers, employees, representatives,
subsidiaries, affiliates or agents (other than as a result of the gross
negligence or willful misconduct of the Agent or any of the Banks or such
officers, directors, shareholders, employees or agents thereof) on account
of, or in relation to, or in any way in connection with, any of the
arrangements or transactions contemplated by, associated with or ancillary
to either this Amendment, the Agreement or any of the other Loan Documents
or any of the Ancillary Documents, whether or not all or any of the
transactions contemplated by, associated with, or ancillary to this Fifth
Amendment, the Agreement, any of such Loan Documents or any of such
Ancillary Documents, are ultimately consummated.
Section 6. Miscellaneous.
6.1 As of the date hereof, and after giving effect to the
consummation of any transactions contemplated by this Fifth Amendment, the
Borrowers acknowledge that each has performed, satisfied, or complied with
all covenants and conditions to be performed, satisfied or complied with
by it under the Agreement. The Borrowers hereby covenant and agree that,
after giving effect to the consummation of the transactions contemplated
hereby, the Borrowers will continue to perform, satisfy or comply with all
covenants and conditions to be performed, satisfied or complied with by
each of them under the Agreement.
6.2 The obligations of the Borrowers (i) to repay the Agent, for the
benefit of the Banks, all of the unpaid principal of each of the Revolving
Loans made or to be made in the future pursuant to the Agreement, (ii) to
pay to the Agent, for the benefit of the Banks, all of the unpaid interest
accrued or to accrue thereon, (iii) to pay to the Agent and the Banks all
of the other Obligations of the Borrowers, are and will continue to be
entitled to all of the benefits and to all of the security created or
contemplated by the Agreement, and the other Loan Documents.
6.3 Except as otherwise expressly provided in this Fifth Amendment,
all of the terms, conditions and provisions of the Agreement and each of
the other Loan Documents remain unaltered and are in full force and
effect. The Agreement and this Fifth Amendment shall be read and
construed as one Agreement.
6.4 This Fifth Amendment may be executed in any number of
counterparts, but all such counterparts shall together constitute but one
and the same instrument. In making proof of this Fifth Amendment, it
shall not be necessary to produce or account for more than one counterpart
thereof signed by each of the parties hereto.
6.5 All of the Obligations undertaken hereunder by the Borrowers are
hereby undertaken by each of them jointly and severally.
6.6 The captions and headings of the various sections and
subsections of this Fifth Amendment are provided for convenience only and
shall not be construed to modify the meaning of such sections or
subsections.
6.7 The invalidity or unenforceability of any one or more phrases,
clauses or sections of this Fifth Amendment under particular circumstances
shall not affect the validity or enforceability thereof or of the
Agreement, under other circumstances, or the validity or the
enforceability of the remaining portions of this Fifth Amendment or the
Agreement.
6.8 This Fifth Amendment shall be deemed to be a contract under seal
and shall be construed in accordance with and governed by the laws of the
Commonwealth of Massachusetts (without giving effect to any conflicts of
law provisions contained therein).
IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment under seal as of the date first above written by their
respective officers herein and duly authorized.
UNITED STATES LEATHER, INC.,
as a Borrower
By:
Title:
A.R. CLARKE LIMITED,
as a Borrower and a Guarantor of United
States Leather, Inc.'s Obligations
By:
Title:
BANKBOSTON, N.A. (f/k/a The First National
Bank of Boston, as the Agent
By:
Title:
BANKBOSTON, N.A. (f/k/a The First National
Bank of Boston, as a Bank
By:
Title:
HELLER FINANCIAL, INC., as a Bank
By:
Title:
THE CHASE MANHATTAN BANK, as a Bank
By:
Title:
BTM CAPITAL CORPORATION, as a Bank
By:
Title: