EXHIBIT 10.2
WAIVER AND AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT
THIS WAIVER AND AMENDMENT TO FIVE-YEAR CREDIT AGREEMENT (this "Waiver and
Amendment") is made as of the 1st day of July, 2001, by XXXXXX & XXXXX
CORPORATION (the "Borrower"), WACHOVIA BANK, N.A., as agent (the "Agent"), and
the Banks party thereto (the "Banks").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent (as successor agent to Xxxxxx Guaranty
Trust Company of New York) and the Banks have entered into that certain
Five-Year Credit Agreement dated as of July 1, 1998, as amended by that certain
Amendment No. 1 to Five-Year Credit Agreement dated as of January 4, 1999 and
that certain Amendment No. 2 dated as of September 25, 2000 (together with all
subsequent amendments, restatements, modifications, substitutions, and
replacements thereof, the "Credit Agreement"); and
WHEREAS, the Credit Agreement requires the Borrower to meet certain
financial covenants as described therein; and
WHEREAS, the Borrower expects that it may not be in compliance with the
OPERATING CASH FLOW RATIO covenant appearing in Section 5.07 of the Credit
Agreement for the period ending July 1, 2001 and, as a result, an Event of
Default may occur under the Credit Agreement (the "Covenant Default"); and
WHEREAS, the Borrower has requested that the Banks waive the Covenant
Default; and
WHEREAS, as a condition for waiving the Covenant Default, the Banks have
required that the Credit Agreement be amended as provided herein and that the
Borrower grant to the Agent for the benefit of the Banks a security interest in
and security title to certain collateral as described herein;
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration paid by each party to the other, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree that all
capitalized terms not otherwise defined herein shall have the meanings ascribed
to such terms in the Credit Agreement and further agree as follows:
1. WAIVER. The Required Banks, by their signatures set forth below,
hereby waive, from the effective date of this Waiver and Amendment through and
including September 28, 2001, the Covenant Default, and their rights and
remedies under the Credit Agreement arising as a result of the Covenant Default;
PROVIDED HOWEVER, that such waiver shall not waive any other requirement or
hinder, restrict or otherwise modify the rights and remedies of the Required
Banks following the occurrence of any other failure to comply with Section 5.07
of the Credit Agreement, or the occurrence of any other Event of Default under
the Credit Agreement.
2. AMENDMENT TO SECTION 1.01. Section 1.01 of the Credit Agreement,
DEFINITIONS, is hereby amended by:
(a) deleting the existing definition of "PRICING SCHEDULE" set forth
therein in the entirety and substituting the following in its place:
"PRICING SCHEDULE" means, with respect to the "Euro-Dollar Margin",
"Utilization Fee Rate" and "Facility Fee Rate", for any date, the rates set
forth below each such term, respectively, in the following table:
------------------------------------------------------------------------
Euro-Dollar Margin Utilization Fee Rate Facility Fee Rate
------------------------------------------------------------------------
2.00% .00% .50%
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(b) revising the definitions of "PRIME RATE" and "FEDERAL FUNDS RATE"
by deleting the references to "Xxxxxx Guaranty Trust Company of
New York" set
forth therein and replacing such references with "Wachovia Bank, N.A.".
3. AMENDMENTS TO SCHEDULES AND COVER PAGE. The Credit Agreement is hereby
amended by: (a) deleting the existing Commitment Schedule thereto, and replacing
such schedule in the entirety with Schedule 1 attached hereto, and (b) deleting
the Schedule 2 entitled "Pricing Schedule" thereto. The Credit Agreement is
hereby further amended by deleting the references on the cover page thereof to
the aggregate amount of the Commitments to refer to the aggregate amount of
$150,000,000.
4. LIMITATION ON TYPE OF LOANS. Notwithstanding anything to the contrary
set forth in the Credit Agreement, any Notice of Borrowing or any Notice of
Interest Rate Election, the Borrower hereby acknowledges and agrees that, upon
the effectiveness of this Waiver and Amendment, the Borrower shall have no right
to borrow or request, and no Bank shall be required to advance, any CD Loan or
Money Market Loan.
5. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Waiver and Amendment shall
be effective as of the date first above set forth upon the occurrence of each of
the following:
(a) The Agent shall have received this Waiver and Amendment in form
and substance satisfactory to the Agent and its counsel, duly executed by the
Borrower and the Required Banks;
(b) The Agent shall have received for the benefit of the Consenting
Banks (as defined below) payment from the Borrower of a waiver and amendment fee
in the amount of one-tenth of one percent (.10%) times the respective Commitment
amounts for each Bank which approves this Waiver and Amendment (each, a
"Consenting Bank");
(c) The Agent shall have received a security agreement (the "Security
Agreement") executed by the Borrower, in form and substance satisfactory to the
Agent, together with appropriate UCC-1 financing statements and all other
documents necessary to grant to the Agent a first priority perfected security
interest in all of the Borrower's accounts, inventory, equipment, proceeds of
the foregoing and any bank accounts into which such proceeds may at any time be
deposited (other than property which is defined as "Principal Property" or as
"Restricted Securities" in the Indentures dated as of January 15, 1992 and dated
as of February 10, 1998, each as amended, to which the Borrower is a party, and
other than certain accounts receivable sold pursuant to a receivables
securitization facility acceptable to the Agent in its sole discretion), which
Security Agreement shall secure all of the Borrower's obligations (i) under the
Credit Agreement, (ii) with respect to foreign exchange agreements between the
Borrower and the Agent, and letters of credit now or hereafter issued by, and
treasury management services provided by, the Agent for the account of the
Borrower, and (iii) with respect to treasury management services provided by any
Bank for the account of the Borrower and foreign exchange agreements between the
Borrower and any Bank in an aggregate amount not to exceed $500,000 for each
such Bank; and
(d) The Agent shall have received all such other documents as it may
reasonably request, including without limitation, financing statements,
opinions, certificates and other similar items.
6. AUTHORIZATION OF SECURITY AGREEMENT. The Banks hereby authorize the
Agent to enter into the Security Agreement, to hold the liens and security
interests provided for therein, to exercise the rights and remedies provided for
therein and to release liens on any collateral to the extent the sale by the
Borrower thereof is permitted by the terms of the Security Agreement, in each
case without any further action or consent of the Banks.
7. Representations and Warranties. The Borrower hereby represents and
warrants to the Agent and the Banks as follows:
(a) The Borrower has the corporate power and authority (i) to enter
into this Waiver and Amendment, and (ii) to do all acts and things as are
required or contemplated hereunder to be done, observed and performed by it;
(b) This Waiver and Amendment has been duly authorized, validly
executed and delivered by one or more authorized signatories of the Borrower,
and constitutes the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms;
(c) The execution and delivery of this Waiver and Amendment and
performance by the Borrower under the Credit Agreement do not and will not
require the consent or approval of any regulatory authority or governmental
authority or agency
having jurisdiction over the Borrower which has not already been obtained, nor
contravene or conflict with the charter documents of the Borrower, or the
provisions of any statute, judgment, order, indenture, instrument, agreement or
undertaking, to which the Borrower is a party or by which any of its properties
are or may become bound;
(d) No Defaults or Events of Default, other than the Covenant
Default, have occurred or are continuing as of the date hereof; and
(e) There are no claims, causes of action, suits, debts, obligations,
liabilities, demands of any kind, character or nature whatsoever, fixed or
contingent, which Borrower may have, or claim to have, against the Banks, the
Agent, or any of them.
8. RATIFICATION. The Borrower hereby ratifies and reaffirms all of the
terms, conditions, representations and warranties in the Credit Agreement as
amended hereby, the notes and other loan documents executed in connection
therewith (collectively, the "Loan Documents"), except all references to the
Borrower's filings with the Securities and Exchange Commission are amended to
include all filings since that certain Amendment No. 2 dated as of September 25,
2000.
9. NO MODIFICATION INTENDED. Except for the waiver and amendments set
forth above or required hereby, the text of the Credit Agreement and the other
Loan Documents shall remain unchanged and in full force and effect, and the
Banks hereby reserve the right to require strict compliance with the terms of
the Credit Agreement and the other Loan Documents in the future. Except as
expressly set forth herein, the waiver and amendments agreed to herein shall not
constitute a modification of the Credit Agreement or a course of dealing with
the Agent or the Banks at variance with the Credit Agreement which would require
further notice by the Agent or the Banks in order to require strict compliance
with the terms of the Credit Agreement and the other Loan Documents in the
future. This Waiver and Amendment shall not constitute a novation.
10. COUNTERPARTS. This Waiver and Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original but all such
separate counterparts shall together constitute but one and the same instrument.
In proving this Waiver and Amendment in any judicial proceeding, it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom such enforcement is sought. Any signature delivered by a
party by facsimile transmission shall be deemed an original signature hereto.
Time is of the essence of this Waiver and Amendment.
8. GOVERNING LAW. THIS WAIVER AND AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed under seal by their respective authorized officers
as of the day and year first above written.
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Treasurer
WACHOVIA BANK, N.A., as Agent
By: /s/ Xxxxxx Xxx
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Xxxxxx Xxx, SVP
So consented to by the undersigned Required Banks as of this ___ day
of June, 2001.
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Title: Vice President
---------------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Title: Managing Director
---------------------------------
ABN AMRO BANK N.V.
By: /s/ X.X. Xxxxxxx
----------------------------------------
Title: Senior Vice President
---------------------------------
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Title: Assistant Vice President
---------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ M.D. Xxxxx
----------------------------------------
Title: Agent Operations
---------------------------------
CIBC, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Title: Executive Director
---------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
DEUTSCHE BANK AG,
NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By:
----------------------------------------
Title:
---------------------------------
By:
----------------------------------------
Title:
---------------------------------
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Senior Vice President
---------------------------------
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Title: Vice President
---------------------------------
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxx XxXxxx
----------------------------------------
Title: Second Vice President
---------------------------------
BANCA NAZIONALE DEL LAVORO
S.P.A.,
NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Title: Vice President
---------------------------------
By: /s/ Xxxxxxxx Xxxxxxxxx
----------------------------------------
Title: First Vice President
---------------------------------
THE BANK OF
NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Title: Vice President
---------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:
----------------------------------------
Title:
---------------------------------
AMSOUTH BANK
By: /s/ Xxxxxxxx X. Tutor
----------------------------------------
Title: Vice President
---------------------------------
KBC BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Title: First Vice President
---------------------------------
By: /s/ Xxxx Xxxxxx
----------------------------------------
Title: Assistant Vice President
---------------------------------
SUMITOMO MITSUI BANKING
CORPORATION F/K/A
THE SUMITOMO BANK, LTD.
By: /s/ Xxxx Xxxxxx
----------------------------------------
Title: Vice President
---------------------------------
WACHOVIA BANK, N.A.
By: /s/ Xxxxxx Xxx
----------------------------------------
Title: Senior Vice President
---------------------------------
UNION PLANTERS BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Title: Senior Vice President
---------------------------------
SCHEDULE 1
XXXXXX & XXXXX 5-YEAR CREDIT AGREEMENT COMMITMENT
Xxxxxx Guaranty Trust Company of New York 12,900,000.00
Bank of America N.A 12,900,000.00
Wachovia Bank, N.A 12,900,000.00
ABN AMRO Bank N.V 9,900,000.00
The Bank of Nova Scotia 9,900,000.00
CIBC Inc. 9,900,000.00
Deutsche Bank AG, New York and/or Cayman Islands Branc 9,900,000.00
First Union National Bank 9,900,000.00
SunTrust Bank, Nashville, N.A 9,900,000.00
The Northern Trust Company 9,900,000.00
Banco Nazionale del Lavoro S.p.A., New York Branc 6,600,000.00
The Bank of New York 6,600,000.00
Bank of Tokyo-Mitsubishi Trust Company 6,600,000.00
AmSouth Bank 6,600,000.00
KBC Bank N.V 6,600,000.00
Sumitomo Mitsui Banking Corporation f/k/a The Sumitomo Bank, Ltd. 6,600,000.00
Union Planters Bank, N.A 6,600,000.00
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Total $150,000,000.00
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