1
EXHIBIT 10.3.3
CONFORMED COPY
THIRD AMENDMENT AND WAIVER dated as of October 9,
1997 (this "Amendment"), to the Credit Agreement dated
as of December 7, 1993, as amended (the "Credit
Agreement"), among TRANSTAR, INC., a Delaware
corporation (the "Borrower"), the lenders party
thereto (the "Lenders") and THE CHASE MANHATTAN BANK,
as agent for the Lenders (in such capacity, the
"Agent") and as issuing bank (in such capacity, the
"Issuing Bank").
WHEREAS the Borrower has requested that the Lenders (such term
and each other capitalized term used but not defined herein having the meanings
assigned to such terms in the Credit Agreement) agree to waive the Margin
Adjustment due to become effective on the fourth anniversary of the Closing
Date;
WHEREAS the Lenders are willing, on the terms, subject to the
conditions and to the extent set forth below, to waive effectiveness of such
Margin Adjustment;
WHEREAS the Borrower has requested that the Required Lenders
agree to amend the Credit Agreement to permit the Borrower to pay certain
dividends in excess of those currently permitted by the Credit Agreement; and
WHEREAS the Required Lenders are willing, on the terms,
subject to the conditions and to the extent set forth below, to approve such
amendments.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the Borrower and the
undersigned Lenders hereby agree, on the terms and subject to the conditions set
forth herein, as follows:
Section 1. Waiver. The undersigned Lenders hereby agree to
waive the increase in the Margin Adjustment scheduled to take effect on the
fourth anniversary of the Closing Date pursuant to clause (i) of the definition
of "Margin Adjustment" in Article I of the Credit Agreement.
2
Section 2. Amendments. The Credit Agreement shall be amended
as follows:
(a) Section 2.12(d) of the Credit Agreement shall be amended
by inserting at the end of such Section the following:
"Notwithstanding the foregoing, the amount of the prepayment
required pursuant to this Section 2.12(d) to be made within
90 days after the fiscal year ending December 31, 1997,
shall be reduced by the sum of (i) the aggregate amount of
dividends paid by the Borrower during the fiscal year ended
December 31, 1997, pursuant to clause (f)(i) of Section 7.08
and (ii) the amount of the dividends paid by the Borrower
during the 90-day period following the end of the Borrower's
fiscal year ending December 31, 1997, pursuant to clause
(f)(ii) of Section 7.08. Each certificate delivered by the
Borrower pursuant to the second sentence of this Section
2.12(d) shall set forth the amount of any reductions made
pursuant to the preceding sentence."
(b) Section 4.13 of the Credit Agreement shall be amended by
adding at the end of the proviso to the first sentence thereof the words "or
Section 7.08(f)."
(c) Section 6.08 of the Credit Agreement shall be amended by
adding at the end of the proviso thereof the words "or Section 7.08(f)."
(d) Section 7.08 of the Credit Agreement shall be amended by
(i) deleting the word "and" at the end of clause (d) thereof, (ii) deleting the
period at the end of clause (e) thereof and substituting "; and" therefor and
(iii) inserting after clause (e) thereof the following:
"(f) so long as there exists no Event of Default (both
before and after giving effect thereto) the Borrower may (i)
pay cash dividends from time to time during the fiscal year
ending December 31, 1997, not exceeding aggregate dividends
pursuant to this clause (f)(i) of $25,000,000; and (ii) pay
cash dividends at any time and from time to time prior to the
end of the 90-day period following the end of the Borrower's
fiscal year ending December 31, 1997; provided, that (A) the
aggregate dividends pursuant to clause (f)(ii) shall not
exceed an amount equal to the excess, if any, of (1) the
Borrower's Excess Cash Flow for the fiscal year of the
Borrower ending December 31, 1997 over (2) the aggregate
amount of all dividends theretofore paid pursuant to clause
(f)(i) above and (B) no such dividend
3
shall be paid pursuant to clause (f)(ii) prior to the date
of delivery by the Borrower to the Agent of a certificate
signed by any Financial Officer of the Borrower setting
forth the calculation in reasonable detail of the amount of
Excess Cash Flow for the fiscal year ending December 31,
1997, demonstrating that the amount of such dividend is
permitted."
Section 3. Representations and Warranties. The Borrower
represents and warrants to each of the Lenders that this Amendment has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms (i) except as the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) subject to general principles of equity.
Section 4. Effectiveness. The Waiver referred to in Section 1
of this Amendment shall become effective as of the date when the Agent shall
have received copies hereof that, when taken together, bear the signatures of
the Borrower and all the Lenders. The Amendments referred to in Section 2 of
this Amendment shall become effective as of the date when the Agent shall have
received copies hereof that, when taken together, bear the signatures of the
Borrower and the Required Lenders.
Section 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6. No Other Amendments. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of any party
under the Credit Agreement, nor alter, modify, amend or in any way affect any of
the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement, all of which are ratified and affirmed in all respects and
shall continue in full force and effect. This Amendment shall apply and be
effective only with respect to the provisions of the Credit Agreement
specifically referred to herein.
Section 7. Counterparts. This Amendment may be executed in two
or more counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute but one contract. Delivery of an
executed counterpart of a signature page of this Amendment by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Amendment.
Section 8. Headings. Section headings used herein are for
convenience of reference only, are not part of this
4
Amendment and are not to affect the construction of, or to be taken into
consideration in interpreting, this Amendment.
Section 9. Expenses. The Borrower shall reimburse the Agent
for its reasonable out-of-pocket expenses incurred in connection with this
Amendment, including the reasonable fees and expenses of Cravath, Swaine &
Xxxxx, counsel for the Agent.
IN WITNESS WHEREOF, the Borrower and the undersigned Required
Lenders have caused this Amendment to be duly executed by their duly authorized
officers, all as of the date first above written.
TRANSTAR, INC.,
by /s/ X.X. XXXXXXX
----------------
Name: X.X. Xxxxxxx
Title: Vice President-Finance
THE CHASE MANHATTAN BANK,
individually, as Agent and as
Issuing Bank,
by /s/ XXXXX X. XXXX
-----------------
Name: Xxxxx X. Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent,
by /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BANK OF MONTREAL, as Co-Agent,
by /s/ XXXXXXXXX X. XXXXX
----------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Director
5
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as Co-Agent,
by /s/ TAKUYA HONJO
----------------
Name: Takuya Honjo
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., NEW YORK BRANCH, as Co-Agent,
by /s/ XXXXXXX XXXXXX
------------------
Name: Xxxxxxx Xxxxxx
Title: Deputy General Manager
THE NIPPON CREDIT BANK, LTD., as Co-Agent,
by /s/ YOSHIKI TSHIZUKA
--------------------
Name: Yoshiki Tshizuka
Title: Vice President &
Assistant General
Counsel
NATEXIS BANQUE BFCE, formerly
Banque Francaise du Commerce
Exterieur, Grand Cayman Branch,
by /s/ XXXXX XXXXXX
----------------
Name: Xxxxx Xxxxxx
Title: Vice President
by /s/ XXXX XXXXX
--------------
Name: Xxxx Xxxxx
Title: Associate
6
BANQUE PARIBAS,
by /s/ XXXXXXX X. GOUCHUE
----------------------
Name: Xxxxxxx X. Gouchue
Title: Director
by /s/ XXXX X. XXXXXX
------------------
Name: Xxxx X. Xxxxxx
Title: A.V.P.
BHF-BANK AG,
by /s/ XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Title: A.V.P.
by /s/ XXXX XXXXX
--------------
Name: Xxxx Xxxxx
Title: A.V.P.
CAPTIVA II FINANCE, LTD.
by /s/ XXXX X. XXXXXXXXX
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director
CHASE SECURITIES INC., as agent for
The Chase Manhattan Bank,
by /s/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Authorized Signatory
CIBC, INC.,
by /s/ XXXXXXX X. XXXX XX.
-----------------------
Name: Xxxxxxx X. Xxxx Xx.
Title: Director
7
COMMERCIAL LOAN FUNDING TRUST I,
XXXXXX COMMERICAL PAPER INC.
(not in its individual capacity,
but solely as administrative
agent),
by /s/ XXXXXXXX XXXXXXX
--------------------
Name: Xxxxxxxx Xxxxxxx
Title: Authorized Signatory
CORESTATES BANK, N.A.,
by /s/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
by /s/ XXXXXXXXX XXXXX
-------------------
Name: Xxxxxxxxx Xxxxx
Title: First Vice President
Manager
CREDIT SUISSE FIRST BOSTON (formerly
Credit Suisse),
by /s/ XXXXXX X. XXXXX
-------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
by /s/ XXXXXXXXXXX X. XXXXXX
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
8
DEUTSCHE GENOSSENSCHAFTSBANK,
by /s/ XXXXX X. X'XXXXXXX
----------------------
Name: Xxxxx X. X'Xxxxxxx
Title: Vice President
by /s/ XXXXX X. XXXXXXXX
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FIRST BANK NATIONAL ASSOCIATION,
by /s/ XXXXXX X. XXXXXX
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
MELLON BANK N.A.,
by /s/ XXXXXXX X. XXXXX
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
by /s/ XXXXXXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President
NATIONSBANK OF NORTH CAROLINA, N.A.,
by /s/ XXXXXX XXXX
---------------
Name: Xxxxxx Xxxx
Title: Vice President
PARIBAS CAPITAL FUNDING LLC,
by /s/ XXXX X. XXXXX
-----------------
Name: Xxxx X. Xxxxx
Title: Director
9
FLEET BANK, N.A.,
by /s/ XXXXXX X. XXXX
------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
THE SUMITOMO TRUST & BANKING
COMPANY, LTD., NEW YORK BRANCH,
by /s/ XXXXX X. XXXXXX
-------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Manager, Corporate
Finance Dept.
