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EXHIBIT 10.3
FIRST AMENDMENT
TO
AMENDED AND RESTATED
MULTICURRENCY REVOLVING CREDIT AGREEMENT
AND AMENDMENT TO NOTES
THIS FIRST AMENDMENT TO AMENDED AND RESTATED MULTICURRENCY REVOLVING
CREDIT AGREEMENT AND AMENDMENT TO NOTES (this "Amendment") dated as of December
26, 1997 is among XXXXXXXX-XXXXXX INDUSTRIES, INC., a Delaware corporation (the
"Company"), the banks and other financial institutions listed on the signature
pages under the heading Banks (collectively, the "Banks"), and CREDIT SUISSE
FIRST BOSTON, as administrative agent (in such capacity, the "Administrative
Agent"), for the Banks.
PRELIMINARY STATEMENT
(a) The Company, the Banks and the Administrative Agent executed
an Amended and Restated Multicurrency Revolving Credit Agreement dated as of
December 27, 1996 (the "Credit Agreement"), pursuant to which the Banks agreed
to extend credit thereunder in an aggregate principal amount not in excess of
$750,000,000 at any time outstanding.
(b) The Company wishes to reduce the Total Commitment to
$500,000,000 and has requested an extension of the Termination Date to December
24, 1998.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the Company, the Banks and the
Administrative Agent hereby agree as follows:
SECTION 1. Definitions and Interpretations. (a) All
capitalized terms defined in
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the Credit Agreement and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
(b) In this Amendment, unless a clear contrary intention appears:
(i) the singular number includes the plural number and
vice versa;
(ii) reference to any gender includes each other gender;
(iii) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Amendment as a whole and not to
any particular Article, Section or other subdivision;
(iv) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by this Amendment, and reference to a Person in
a particular capacity excludes such Person in any other capacity or
individually, provided that nothing in this clause (iv) is intended to
authorize any assignment not otherwise permitted by this Amendment;
(v) except as expressly provided to the contrary herein,
reference to any agreement, document or instrument (including this
Amendment) means such agreement, document or instrument as amended,
supplemented or modified and in effect from time to time in accordance
with the terms thereof and, if applicable, the terms hereof, and
reference to any Note or other note includes any note issued pursuant
hereto in extension or renewal thereof and in substitution or
replacement therefor;
(vi) unless the context indicates otherwise, reference to
any Article or Section means such Article or Section hereof;
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(vii) the word "including" (and with correlative meaning
"include") means including, without limiting the generality of any
description preceding such term;
(viii) with respect to the determination of any period of
time, except as expressly provided to the contrary, the word "from"
means "from and including" and the word "to" means "to but excluding";
and
(ix) reference to any law, rule or regulation means such
as amended, modified, codified or reenacted, in whole or in part, and
in effect from time to time.
(c) The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
(d) No provision of this Amendment shall be interpreted or
construed against any Person solely because that Person or its legal
representative drafted such provision.
SECTION 2. Amendments to Section 1.01 of the Credit Agreement. The
definitions of the terms "Commitment" and "Termination Date" contained in
Section 1.01 of the Credit Agreement are hereby amended in their entirety to
read as follows:
"Commitment" means, with respect to each Bank, the amount set forth
beneath the name of such Bank on the signature pages of the First Amendment
to Amended and Restated Multicurrency Revolving Credit Agreement and
Amendment to Notes dated as of December 26, 1997 (or, as to any Person who
becomes a Bank after December 26, l997, on the signature page of the
Assignment and Acceptance executed by such Person), as such amount may be
permanently terminated or reduced from time to time pursuant to Section
2.11,
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Section 2.12(d), Section 2.13, Section 2.14 or Section 9.11, and as such
amount may be increased from time to time by assignment or assumption
pursuant to Section 2.13, Section 2.14 or Section 9.11. The Commitment of
each Bank shall automatically and permanently terminate on the Termination
Date.
"Termination Date" means December 24, 1998 or the earlier maturity of
the Revolving Credit Loans pursuant to Section 2.11 or Section 6.01.
SECTION 3. Amendment to Exhibit 1.01C. Exhibit 1.01C is hereby
amended by deleting the number "750,000,000" and the words "SEVEN HUNDRED FIFTY
MILLION" and substituting therefor the number "500,000,000" and the words "FIVE
HUNDRED MILLION", respectively.
SECTION 4. Amendment to Notes. (a) The Committed Note of each
Bank other than Credit Suisse First Boston is hereby amended by deleting the
number "56,000,000" and the words "FIFTY-SIX MILLION" and substituting therefor
the number "37,500,000" and the words "THIRTY-SEVEN MILLION FIVE HUNDRED
THOUSAND", respectively.
(b) The Committed Note of Credit Suisse First Boston is hereby
amended by deleting the number "78,000,000" and the words "SEVENTY-EIGHT
MILLION" and substituting therefor the number "50,000,000" and the words "FIFTY
MILLION", respectively.
(c) The Competitive Note of each Bank is hereby amended by
deleting the number "750,000,000" and the words "SEVEN HUNDRED FIFTY MILLION"
and substituting therefor the number "500,000,000" and the words "FIVE HUNDRED
MILLION", respectively.
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SECTION 5. Conditions to Effectiveness. This Amendment shall become
effective when, and only when, the following conditions have been fulfilled:
(a) the Company and the Banks shall have executed a counterpart of
this Amendment; and
(b) the Administrative Agent shall have executed a counterpart of
this Amendment and shall have received counterparts of this Amendment executed
by the Company and the Banks.
SECTION 6. Representations and Warranties True; No Default or Event
of Default. The Company hereby represents and warrants to the Administrative
Agent and the Banks that after giving effect to the execution and delivery of
this Amendment (a) the representations and warranties set forth in the Credit
Agreement are true and correct on the date hereof as though made on and as of
such date and (b) no Default or Event of Default has occurred and is
continuing.
SECTION 7. Reference to the Credit Agreement and Effect on the Other
Documents. (a) Upon the effectiveness of this Amendment, each reference in the
Credit Agreement to "this Agreement," "hereunder," "herein" or words of like
import shall mean and be a reference to the Credit Agreement, as amended and
affected hereby.
(b) Upon the effectiveness of this Amendment, each reference in
the Notes to "the Credit Agreement" shall mean and be a reference to the Credit
Agreement, as amended and affected hereby.
(c) Upon the effectiveness of this Amendment, each reference to
"Exhibit 1.01C" shall mean and be a reference to "Exhibit 1.01C", as amended
hereby.
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(d) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to the Notes shall mean and be a reference to the Notes,
as amended and affected hereby.
(e) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement and the Notes to the "Commitment," and "Termination Date"
shall mean and be a reference to such terms as modified pursuant to Section 2.
(f) The Credit Agreement and the Notes, as amended and affected
hereby, shall remain in full force and effect and are hereby ratified and
confirmed.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS
AND APPLICABLE FEDERAL LAW AND SHALL BE BINDING UPON THE COMPANY, THE BANKS AND
THE ADMINISTRATIVE AGENT AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
SECTION 9. FINAL AGREEMENT OF THE PARTIES. THE CREDIT AGREEMENT
(INCLUDING THE EXHIBITS AND SCHEDULES THERETO), AS AMENDED HEREBY, THE NOTES
AND THE ADMINISTRATIVE AGENT'S LETTER, CONSTITUTE A "LOAN AGREEMENT" AS DEFINED
IN SECTION 26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE
FINAL AGREEMENT AMONG THE PARTIES RESPECTING THE SUBJECT MATTER HEREOF AND
THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG THE PARTIES RESPECTING THE SUBJECT MATTER HEREOF AND THEREOF.
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SECTION 10. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed effective as of the date first stated herein, by their respective
officers thereunto duly authorized.
XXXXXXXX-XXXXXX INDUSTRIES, INC.
By:
Name:
Title:
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CREDIT SUISSE FIRST BOSTON, AS
ADMINISTRATIVE AGENT
By:
Name:
Title:
By:
Name:
Title:
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BY: ABN AMRO NORTH AMERICA, INC., AS AGENT
By:
Name:
Title:
By:
Name:
Title:
Commitment: $37,500,000
00
XXXX XX XXXXXXX XXXXXXXX
By:
Name:
Title:
Commitment: $37,500,000
00
XXXXXX XXXXXXXXX XX XXXXX
XXXXXXX AGENCY
By:
Name:
Title:
Commitment: $37,500,000
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CITICORP USA, INC.
By:
Name:
Title:
Commitment: $37,500,000
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CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By:
Name:
Title:
Commitment: $37,500,000
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CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
Commitment: $50,000,000
15
DEUTSCHE BANK AG NEW YORK BRANCH
AND CAYMAN ISLAND BRANCH
By:
Name:
Title:
By:
Name:
Title:
Commitment: $37,500,000
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THE FIRST NATIONAL BANK OF CHICAGO
By:
Name:
Title:
Commitment: $37,500,000
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THE FUJI BANK, LIMITED
By:
Name:
Title:
Commitment: $37,500,000
00
XXXXXX XXXXXXXX XXXXX XXXXXXX
XX XXX XXXX
By:
Name:
Title:
Commitment: $37,500,000
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NATIONSBANK OF TEXAS, N.A.
By:
Name:
Title:
Commitment: $37,500,000
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SOCIETE GENERALE,
SOUTHWEST AGENCY
By:
Name:
Title:
Commitment: $37,500,000
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TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
Name:
Title:
Commitment: $37,500,000
