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Exhibit 10.1.12
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of April 15,
1998 (this "Amendment"), by and among CANNONDALE CORPORATION, a corporation
organized under the laws of the State of Delaware ("Cannondale"), each of the
Subsidiaries of Cannondale which is a signatory to the Credit Agreement (as
defined below) (the Subsidiaries of Cannondale, together with Cannondale, the
"Borrowers"), NATIONSBANK, N.A., a national banking association organized under
the laws of the United States of America ("NationsBank"), FLEET NATIONAL BANK, a
national banking association organized under the laws of the United States of
America ("Fleet"), THE CHASE MANHATTAN BANK, a bank organized under the laws of
New York ("Chase"), STATE STREET BANK AND TRUST COMPANY, a trust company
organized under the laws of Massachusetts ("State Street") (each of NationsBank,
Fleet, Chase and State Street may be referred to individually as a "Bank" and
collectively as the "Banks"), and NATIONSBANK as administrative agent for the
Banks (in such capacity, together with its successors in such capacity, the
"Administrative Agent").
Background
A. Reference is made to that certain Credit Agreement dated as of June
9, 1997 (the "Credit Agreement") among the Borrowers, the Administrative Agent,
NationsBank, Fleet and the other parties signatory thereto.
B. The Credit Agreement was amended by the First Amendment To Credit
Agreement dated as of October 14, 1997 (the "First Amendment") among the
Borrowers, the Administrative Agent, the Banks and the other parties signatory
thereto.
C. The parties hereto wish to further amend the Credit Agreement as
herein provided.
D. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement, as amended by the First Amendment and
as amended hereby.
Agreement
In consideration of the Background, which is incorporated by
reference, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Modification. All the terms and provisions of the Credit Agreement
and the other Facility Documents, as amended to date, shall remain in full force
and effect except as follows:
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Clause (f) of Section 8.5 of the Credit Agreement is deleted
and the following is substituted therefor:
(f) loans to employees of such Borrower or any
Subsidiary that, together with all such loans to employees made by all
Borrowers and their Subsidiaries, do not exceed an aggregate principal
amount of $3,500,000 outstanding at any one time.
2. Conditions to effectiveness. This Amendment shall not be effective
until such date as the Administrative Agent shall have received the following,
all in form, scope and content acceptable to the Administrative Agent and
Lenders in their sole discretion:
(a) This Amendment, executed by the Borrowers and the Required
Banks; and
(b) Such other agreements and instruments as the
Administrative Agent shall reasonably require.
3. Reaffirmation by the Borrowers. Each of the Borrowers acknowledges
and agrees, and reaffirms, both prior to and after taking into account this
Amendment, that each is legally, validly and enforceably indebted to the Banks
under the Notes without defense, counterclaim or offset, and that each is
legally, validly and enforceably liable to the Banks for all costs and expenses
of collection and reasonable attorneys' fees as and to the extent provided in
this Amendment, the Credit Agreement, the Notes and the other Facility
Documents. Each of the Borrowers hereby restates and agrees to be bound by all
covenants contained in the Credit Agreement and the other Facility Documents and
hereby reaffirms that all of the representations and warranties contained in the
Credit Agreement and the other Facility Documents remain true and correct in all
material respects with the exception that the representations and warranties
regarding the financial statements described therein are deemed true as of the
date made. Each of the Borrowers represents that except as set forth in the
Credit Agreement and the other Facility Documents, there are not pending, nor to
each Borrower's knowledge, threatened, legal proceedings to which any of the
Borrowers is a party, which materially or adversely affect the transactions
contemplated by this Amendment or the ability of any of the Borrowers to conduct
its business on a consolidated basis. Cannondale and Cannondale Europe B.V. each
acknowledge and represent that the resolutions of each dated May 28, 1997, and
June 9, 1997, respectively, remain in full force and effect and have not been
amended, modified, rescinded or otherwise abrogated.
4. Reaffirmation re: Collateral. Cannondale reaffirms the liens,
security interests and pledges granted to NationsBank, N.A., as Administrative
Agent, for the benefit of the Banks pursuant to the Credit Agreement and the
other Facility Documents to secure the obligations of each Borrower thereunder.
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5. Other representations by the Borrowers. Each of the Borrowers
represents and confirms that (a) no Default or Event of Default has occurred and
is continuing and that neither the Agents nor the Banks has given its consent to
or waived any Default or Event of Default, and (b) the Credit Agreement and the
other Facility Documents are in full force and effect and enforceable against
the Borrowers in accordance with the terms thereof. Each of the Borrowers
represents and confirms that as of the date hereof, each has no claim or defense
(and each of the Borrowers hereby waives every claim and defense as of the date
hereof) against the Agents or the Banks arising out of or relating to the Credit
Agreement or the other Facility Documents or arising out of or relating to the
making, administration or enforcement of the Loans or the remedies provided for
under the Facility Documents.
6. No waiver by the Banks. Each of the Borrowers acknowledges that (a)
the Banks, by execution of this Amendment, are not waiving any Default or Event
of Default, whether now existing or hereafter occurring, disclosed or
undisclosed, by the Borrowers under the Facility Documents, and (b) the Banks
reserve all rights and remedies available to them under the Facility Documents
and otherwise.
7. Miscellaneous.
(a) This Amendment may be executed by one or more of the
parties to this Amendment 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 Amendment and the rights 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 Amendment shall be deemed a, and included in the
definition of, Facility Document under the Credit Agreement for all purposes.
(d) The Credit Agreement, as amended by the First Amendment
and as amended hereby, and the other Facility Documents remain in full force and
effect in accordance with their terms.
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IN WITNESS WHEREOF, the parties have executed this Amendment
on the date first written above.
BORROWERS:
CANNONDALE CORPORATION
By /s/ WILLIAM A. LUCA
Name: William A. Luca
Title: Vice President of Finance,
Chief Financial Officer
CANNONDALE EUROPE B.V.
By /s/ JORG HILFIKER
Name: Jorg Hilfiker
Title: President
CANNONDALE JAPAN KK
By /s/ JEFFREY TURCK
Name: Jeffrey Turck
Title: President
ADMINISTRATIVE AGENT:
NATIONSBANK, N.A.
By /s/ SUSAN TIMMERMAN
Name: Susan Timmerman
Title: Vice President
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BANKS:
NATIONSBANK, N.A.
By /s/ SUSAN TIMMERMAN
Name: Susan Timmerman
Title: Vice President
FLEET NATIONAL BANK
By /s/ MARGARET D. HARWOOD
Name: Margaret D. Harwood
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ THOMAS D. MCCORMICK
Name: Thomas D. McCormick
Title: Vice President
STATE STREET BANK AND TRUST COMPANY
By /s/ ARLENE M. DOHERTY
Name: Arlene M. Doherty
Title: Vice President
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