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EXHIBIT 10.03
[CONFORMED COPY]
AMENDMENT NO. 3 TO CREDIT AGREEMENT
AMENDMENT dated as of August 9, 2000 to the Revolving Credit Agreement
dated as of January 29, 1997 (as heretofore amended, the "CREDIT AGREEMENT")
among XXXXXX XXXXXXXX MATERIALS, INC. (the "BORROWER"), the BANKS party thereto
(the "BANKS") and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent (the
"AGENT").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement as set
forth below;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically
defined herein, each term used herein which is defined in the Credit Agreement
has the meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. Updated Representations. (a) Each reference to "1995" in
Section 4.04(a) of the Agreement is replaced with "1999."
(b) Each reference to "September 30, 1996" in Section 4.04(b) and
Section 4.04(c) of the Agreement is replaced with "March 31, 2000."
(c) Each reference to "nine months" in Section 4.04(b) of the Agreement
is replaced with "three months."
SECTION 3. Equity-hybrid Securities. The following definitions are
added to Section 1.01 in appropriate alphabetical order:
"EQUITY PURCHASE" has the meaning in the definition of the term "Equity
Hybrid Security."
"EQUITY HYBRID SECURITY" means a debt security (whether or not
denominated as an equity hybrid security), including guaranties issued in
connection therewith, that is issued substantially concurrently with the sale of
a
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purchase contract requiring the buyer to purchase (the "EQUITY PURCHASE") from
the Borrower equity securities of the Borrower for a price equal to the amount
of such debt security with the purchase price being payable in cash or debt
securities of the Borrower. The good faith determination by the Board of
Directors of the Borrower whether a debt security (or a portion thereof)
constitutes an Equity Hybrid Security shall be conclusive for purposes of this
Agreement."
SECTION 4. New Leverage Ratio. Section 5.09 is amended to read in its
entirety as follows:
"Section 5.09. Leverage Ratio. The ratio of Consolidated Debt
to Total Capital (the "LEVERAGE RATIO") shall not at any time exceed
50%; provided that if (i) Consolidated Debt has increased in connection
with a Specified Acquisition, (ii) as a consequence of such Specified
Acquisition, the rating of long-term unsecured debt of the Borrower has
not been suspended, withdrawn or fallen below BBB+ by Standard & Poor's
Ratings Services or Baa1 by Xxxxx'x Investors Service, Inc. and (iii)
the Agent has received a Specified Acquisition Notice within 10 days of
consummation of such Specified Acquisition, then, for a period of 180
consecutive days following the consummation of such Specified
Acquisition, the additional Consolidated Debt in connection with such
Specified Acquisition shall be excluded from Consolidated Debt for
purposes of calculating the Leverage Ratio, but only if the Leverage
Ratio calculated without such exclusion at no time exceeds 65%. For
purposes of calculating, under this Section 5.09, the treatment of an
Equity Hybrid Security which is not otherwise included in Consolidated
Net Worth until the Equity Purchase is effected, (x) if such Equity
Hybrid Security represents senior unsecured indebtedness, the total
issuance amount of such security shall be allocated 20% to Consolidated
Debt and 80% to Consolidated Net Worth, and (y) if such Equity Hybrid
Security represents subordinated indebtedness, the total issuance
amount of such security shall be allocated 100% to Consolidated Net
Worth.
For purposes of this Section 5.09,
(i) a "SPECIFIED ACQUISITION" means any single
acquisition by the Borrower or a Subsidiary of the Borrower of
any Person (the "TARGET") that (x) is in the same line or
lines of business as the Borrower or in the judgment of the
Borrower is related to such line or lines of business and (y)
such Target's board of directors have not objected to such
acquisition; and
(ii) a "SPECIFIED ACQUISITION NOTICE" means a notice
delivered by the Borrower notifying the Agent of the Specified
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Acquisition and stating that the conditions in clauses (i) and
(ii) to the proviso to the Leverage Ratio above have been
satisfied."
SECTION 5. Representations of Borrower. The Borrower hereby represents
and warrants that (i) the representations and warranties of the Borrower set
forth in Article 4 of the Credit Agreement will be true on and as of the
Amendment Effective Date and (ii) no Default will have occurred and be
continuing on such date.
SECTION 6. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 8. Effectiveness. This Amendment shall become effective as of
the date hereof on the date (the "AMENDMENT EFFECTIVE DATE") when the Agent
shall have received from each of the Borrower and the Required Banks a
counterpart hereof signed by such party or facsimile or other written
confirmation (in form satisfactory to the Agent) that such party has signed a
counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXXX XXXXXXXX MATERIALS, INC.
By: /s/ Xxxxxx X. Xxxxx
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Title: Senior Vice President and
Chief Financial Officer
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ G. Xxxxxx Xxx, Xx.
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Title: Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
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Title: Senior Vice President
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BANK OF MONTREAL
By: /s/ Xxxxx X. Xxxxx
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Title: Director
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Managing Director
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
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Title: Senior Vice President
