FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of August 2, 2007, among XXXXX CORNING, a Delaware corporation (the “U.S. Borrower”), the Lenders from time to time party hereto, and CITIBANK, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”). Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have the respective meanings provided such terms in the Credit Agreement referred to below.
WITNESSETH:
WHEREAS, the U.S. Borrower, the Lenders and the Administrative Agent are parties to a Credit Agreement, dated as of October 31, 2006 (as amended, restated, supplemented and/or modified from time to time through, but not including, the date hereof, the “Credit Agreement”); and
WHEREAS, subject to the terms and conditions of this Amendment, the Lenders wish to amend certain provisions of the Credit Agreement, as more fully described below;
NOW, THEREFORE, it is agreed:
| I. | Amendments to Credit Agreement. |
1. Section 9.02(ii) of the Credit Agreement is hereby amended by (i) inserting the text “(including pursuant to a transaction of merger or consolidation)” immediately before the text “, including the Equity Interests”, and (ii) inserting the text “(other than (x) the Equity Interests of any Specified Subsidiary or (y) any assets of a Specified Subsidiary that were assets of such Specified Subsidiary on the First Amendment Effective Date or that were acquired by such Specified Subsidiary in the ordinary course of business after the First Amendment Effective Date, in each case, sold pursuant to this clause (ii))” immediately following the text “of such assets” and immediately following the text “of all assets”, in each case appearing in clause (z) of said Section.
2. Section 11 of the Credit Agreement is hereby amended by inserting the following new definition in appropriate alphabetical order:
“First Amendment” shall mean the First Amendment to this Agreement, dated as of August 2, 2007.
“First Amendment Effective Date” shall have the meaning provided in the First Amendment.
“Specified Subsidiary” shall mean each of Exterior Systems, Inc., Norandex Distribution, Inc., Vytec Corporation and Xxxxx Corning Fabwel, LLC.
| II. | Miscellaneous Provisions. |
1. In order to induce Lenders to enter into this Amendment, the U.S. Borrower hereby represents and warrants that (i) no Default or Event of Default exists as of the First Amendment Effective Date (as defined below) both immediately before and immediately after giving effect thereto and (ii) all of the representations and warranties contained in the Credit Agreement and in the other Credit Documents are true and correct in all material respects on the First Amendment Effective Date immediately before and immediately after giving effect thereto, with the same effect as though such representations and warranties had been made on and as of the First Amendment Effective Date (it being understood that any representation or warranty made as of a specific date shall be true and correct in all material respects as of such specific date).
2. This Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of counterparts shall be lodged with the U.S. Borrower and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the “First Amendment Effective Date”) when the U.S. Borrower and Lenders constituting the Required Lenders shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of facsimile or other electronic transmission) the same to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 Attention: May Yip (facsimile number 000-000-0000 / email address: xxxx@xxxxxxxxx.xxx).
6. From and after the First Amendment Effective Date, all references in the Credit Agreement and each of the other Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above written.
| XXXXX CORNING | ||
| By: | /s/ Xxxxx X. Than | |
| Name: | Xxxxx X. Than | |
| Title: | Vice President Finance and Treasurer | |
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Assistant Treasurer | |
| CITIBANK, N.A., individually and as Administrative Agent | ||
| By: | /s/ Xxxxx X. Ego | |
| Name: | Xxxxx X. Ego | |
| Title: | Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Citigroup | ||
| By: | /s/ Xxxxx X. Ego | |
| Name: | Xxxxx X. Ego | |
| Title: | Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: BMO CAPITAL MARKETS FINANCING, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: | Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: THE BANK OF NOVA SCOTIA | ||
| By: | /s/ X.X. Xxxx | |
| Name: | X.X. Xxxx | |
| Title: | Managing Director | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: BANK OF AMERICA, N.A. | ||
| By: | /s/ W. Xxxxxx Xxxxxxx | |
| Name: | W. Xxxxxx Xxxxxxx | |
| Title: | Senior Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: The Bank of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch | ||
| By: | /s/ Xxxxxxxx Xxxx | |
| Name: | Xxxxxxxx Xxxx | |
| Title: | Deputy General Manager | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Calyon New York Branch | ||
| By: | /s/ Xxxxxx Xxxx | |
| Name: | Xxxxxx Xxxx | |
| Title: | Managing Director/Regional Head | |
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | |
| Title: | Managing Director | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Comerica Bank | ||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxxx | |
| Title: | Account Officer | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Commerzbank AG | ||
| By: | /s/ Xxxx Marlati | |
| Name: | Xxxx Marlati | |
| Title: | Senior Vice President | |
| By: | /s/ Xxxxxx Xxxxxx | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Assistant Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Fifth Third Bank | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Officer | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: FORTIS Capital Corp. | ||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxxxxx | |
| Title: | Director | |
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Senior Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: XXXXXXX XXXXX CREDIT PARTNERS, LP | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: | Xxxxx Xxxxxxx | |
| Title: | Authorized Signatory | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: XX XXXXXX XXXXX BANK, N.A. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Executive Director | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: KBC Bank, NV | ||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxx Xxxxxxxxx | |
| Title: | Vice President | |
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxx | |
| Title: | First Vice President |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: LASALLE BANK MIDWEST NATIONAL ASSOCIATION, a national banking association | ||
| By: | /s/ Xxxx X. Xxxxxxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxxxxxx | |
| Title: | Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Mellon Bank, N.A. | ||
| By: | /s/ Xxxx X. Xxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxx | |
| Title: | First Vice President | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Mizuho Corporate Bank, USA | ||
| By: | /s/ Hidekatsu Take | |
| Name: | Hidekatsu Take | |
| Title: | Deputy General Manager | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: XXXXXX XXXXXXX BANK | ||
| By: | /S/ XXXXXX XXXXXX | |
| Name: | Xxxxxx Xxxxxx | |
| Title: | Authorized Signatory | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: PNC Bank, National Association | ||
| By: | /S/ XXXXXXX XXXXXXXX | |
| Name: | Xxxxxxx Xxxxxxxx | |
| Title: | Credit Officer | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Sumitomo Mitsui Banking Corporation | ||
| By: | /s/ Yoshihiro Hyukutome | |
| Name: | Yoshihiro Hyukutome | |
| Title: | General Manager | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: UBS LOAN FINANCE LLC | ||
| By: | /s/ Xxxx X. Xxxxx | |
| Name: | Xxxx X. Xxxxx | |
| Title: | Associate Director | |
| By: | /s/ Xxxxx X. Xxxxx | |
| Name: | Xxxxx X. Xxxxx | |
| Title: | Associate Director | |
| SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT, DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG XXXXX CORNING, THE LENDERS PARTY HERETO AND CITIBANK, N.A., AS ADMINISTRATIVE AGENT FOR THE LENDERS | ||
| NAME OF INSTITUTION: Wachovia Bank, N.A. | ||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxx | |
| Title: | Director | |
