Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT, dated as of June 23, 2003 (this "Amendment"), to the
4-Year Credit Agreement, dated as of June 24, 2002 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among DOW XXXXX &
COMPANY, INC. (the "Company"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), LLOYDS TSB BANK
PLC and MELLON BANK, N.A., as co-documentation agents (in such capacity, the
"Documentation Agent"), THE BANK OF NEW YORK and FLEET NATIONAL BANK, as co-
syndication agents (in such capacity, the "Syndication Agent") and JPMorgan
Chase Bank (f/k/a The Chase Manhattan Bank), as administrative agent (in such
capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises herein contained and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein which are defined in the Credit Agreement are used herein as therein
defined.
2. Amendment to Subsection 1.1 of the Credit Agreement.
(a) The definition of "Consolidated Interest Expense" in Subsection
1.1 of the Credit Agreement is hereby amended by (i) deleting the period at the
end of such definition and substituting in lieu thereof a comma and (ii)
inserting the words "and including, whether or not it would be treated as
interest expense in accordance with GAAP, the accretion during such period on
the "contract guarantee obligations" described in clause (d) of the definition
of Consolidated Total Indebtedness."
(b) The definition of "Consolidated Total Indebtedness" in Subsection
1.1 of the Credit Agreement is hereby amended by (i) deleting the word "and" at
the end of subsection (b) and substituting in lieu thereof a comma, (ii)
deleting the period at the end of subsection (c) and inserting in lieu thereof
the word "and" and (iii) adding the following new subsection (d):
"(d) all amounts reflected on the Company's consolidated balance
sheet for "contract guarantee obligations" relating to the litigation described
in Section 3.6(b)."
2
3. Amendment to Subsection 3.6 of the Credit Agreement. Subsection 3.6 of
the Credit Agreement is hereby amended by deleting, in its entirety, subsection
(b) thereof and substituting in lieu thereof the following:
"(b) except for the litigation with Cantor Xxxxxxxxxx Securities and
Market Data Corporation that is described in "Legal Proceedings" and Note 3 to
the financial statements included in the Company's Form 10-Q report for the
first quarter of 2003, which could reasonably be expected to have a material
adverse effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole."
4. Conditions to Effectiveness. This Amendment shall become effective as
of the date set forth above upon satisfaction of the following conditions
precedent:
(a) The Administrative Agent shall have received counterparts of this Amendment
executed by the Company and the Required Lenders; and
(b) The Administrative Agent shall have received counterparts of each of (i) the
Second Amendment to the 5-Year Credit Agreement executed and delivered by the
Company and the Required Lenders (as defined therein) and (ii) the 364-Day
Credit Agreement executed and delivered by the Company and all other parties
thereto.
5. Limited Effect. Except as expressly amended hereby, all of the
provisions, covenants, terms and conditions of the Credit Agreement are and
shall continue to be in full force and effect.
6. Representations and Warranties. The representations and warranties
made by the Company contained in the Credit Agreement are true and correct on
and as of the date hereof after giving effect to this Amendment.
7. Counterparts. This Amendment may be executed in counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
written above.
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
JPMORGAN CHASE BANK,
As Administrative Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
LLOYDS TSB BANK PLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Corporate Banking, USA
H009
By: /s/ Xxxxxxxxx Xxxxxx
--------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President,
Corporate Banking, USA
R027
MELLON BANK, N.A.
By: /s/ J. Xxxx Xxxx
----------------
Name: J. Xxxx Xxxx
Title: Vice President
HSBC BANK USA
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Banker
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
THE NORTHERN TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX BANK USA
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President & CEO
