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Exhibit 10.1.13
THIRD AMENDMENT TO CREDIT AGREEMENT
THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of May 29, 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 Credit Agreement was further amended by the Second Amendment To
Credit Agreement dated as of April [15], 1998 (the "Second Amendment"), among
the Borrowers, the Administrative Agent, the Banks, and the other parties
signatory thereto.
D. The parties hereto wish to further amend the Credit Agreement as
herein provided.
E. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement, as amended by the First Amendment, the
Second Amendment, and as amended hereby.
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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:
(a) The following definition is inserted into Section 1.1 of
the Credit Agreement in proper alphabetical order:
"Interest Rate Protection Agreement" means any
interest rate protection agreement entered into with any bank
or other financial institution whereby the Borrowers obtain a
hedge or cap for the interest rate that will be payable by the
Borrowers on the Loans under this Agreement.
(b) The following Section 2.14 is added to the Credit
Agreement immediately following Section 2.13:
Section 2.14 Interest Rate Protection. The Borrowers
may enter into Interest Rate Protection Agreements so long as
no Default or Event of Default would result therefrom,
including any violation of any of the covenants contained in
Article 9 on a pro forma basis based upon the most recent
calculations delivered to the Banks in accordance with Section
7.8. The obligations of the Borrowers to a Bank (but not to
any other bank or other financial institution that is not a
"Bank" hereunder) under such Interest Rate Protection
Agreements will automatically constitute obligations of the
Borrowers under this Agreement and will be secured by any Lien
granted under the Facility Documents pari passu with the other
obligations of the Borrowers under this Agreement.
(c) Subsection (j) of Section 7.8 of the Credit Agreement is
deleted and the following is substituted therefor:
(j) promptly after the furnishing thereof, copies of any
statement or report furnished to any other party pursuant to
the terms of any Interest Rate Protection Agreement or any
indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Banks pursuant to
any other clause of this Section 7.8;
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(d) Section (a) of Section 8.1 of the Credit Agreement is
deleted and the following is substituted therefor:
(a) Debt of such Borrower under this Agreement, the
Notes or any Interest Rate Protection Agreement;
(e) Subsection (b) of Section 8.3 of the Credit Agreement is
deleted and the following is substituted therefor:
(b) Liens in favor of the Administrative Agent on
behalf of the Banks securing the Loans hereunder and Liens in
favor of the Administrative Agent on behalf of one or more
Banks securing the Borrowers' obligations under Interest Rate
Protection Agreements permitted by Section 2.14;
(f) Subsection (c) of Section 8.5 of the Credit Agreement is
deleted and the following is substituted therefor:
(c) any Acceptable Acquisition or any Interest Rate
Protection Agreement;
(g) Subsection (d) of Section 10.1 of the Credit Agreement is
deleted and the following is substituted therefor:
(d) (i) any Borrower or any of its Subsidiaries shall
fail to pay any indebtedness under any Interest Rate
Protection Agreement or any other indebtedness in an aggregate
amount in excess of $500,000, including but not limited to
indebtedness for borrowed money (other than the payment
obligations described in (a) above), of such Borrower or such
Subsidiary, as the case may be, or any interest or premium
thereon, when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or (ii) any
Borrower or any of its Subsidiaries shall fail to perform or
observe any term, covenant or condition on its part to be
performed or observed under any agreement or instrument
relating to any such Interest Rate Protection Agreement or
other indebtedness, when required to be performed or observed,
if the effect of such failure to perform or observe is to
accelerate, or to permit the acceleration of, after the giving
of notice or passage of time, or both, the maturity of such
indebtedness (unless such failure to perform or observe shall
be timely waived by the holder of such indebtedness); or (iii)
any such indebtedness shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof;
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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,
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 neither pending,
nor to each Borrower's knowledge, threatened, legal proceedings to which any of
the Borrowers is a party that 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.
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
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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,
the Second Amendment, and as amended hereby, and the other Facility Documents
remain in full force and effect in accordance with their terms.
[The balance of this page left intentionally blank.
The next page is the signature page.]
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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