EXHIBIT 10(ad)
FIRST AMENDMENT TO
REVOLVING MULTICURRENCY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING MULTICURRENCY CREDIT AGREEMENT (this
"First Amendment to Credit Agreement" or this "Amendment") dated as of March 29,
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1999 is entered into among Xxxxx Xxxxxxxx Corporation, a Delaware corporation
(the "Company"), Xxxxx Xxxxxxxx International, Inc., a Delaware corporation
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("JMII"), the several financial institutions party to the Credit Agreement
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referred to below (collectively, the "Banks"), and Bank of America National
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Trust and Savings Association, as Issuing Bank, Swingline Bank and as
administrative agent for itself and the other Banks (in such capacity, the
"Agent").
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RECITALS
A. The parties hereto have entered into a Revolving Multicurrency Credit
Agreement dated as of May 15, 1998 (as extended, renewed, amended or restated
from time to time, the "Credit Agreement"), pursuant to which the Agent and the
Banks agreed to make available to the Company and JMII a revolving multicurrency
credit facility with a letter of credit subfacility and a swingline subfacility,
under the terms and conditions set forth in the Credit Agreement.
B. The Company, JMII, the Agent and the Banks, subject to the terms and
conditions of this Amendment, have agreed to amend certain language contained in
Annex I to the Credit Agreement which heretofore did not, and in its unamended
form does not now, reflect the intent of the parties to the Credit Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms used in this Amendment (including
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in the Recitals hereof and in the Consent and Agreement of Guarantors attached
hereto) and not otherwise defined shall have the respective meanings set forth
in the Credit Agreement.
2. Amendment. The second paragraph of text located on Annex I to the
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Credit Agreement is hereby amended and restated in its entirety as follows:
"If on any date (including any date during the 6-month period following
the Closing Date) the Effective Amount of all Revolving Loans plus the
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Effective Amount of all Swingline Loans plus the Effective Amount of all
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L/C Obligations exceeds 50% of the Aggregate Commitment then in effect, the
Applicable Margin then in effect shall be increased by 0.10% for such
date."
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3. Representations and Warranties. The Company and JMII hereby represent
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and warrant to the Agent and each Bank as follows:
a. The execution, delivery and performance by the Company and by JMII
of this Amendment have been duly authorized by all necessary action, including
any necessary authorizations by the board of directors of the Company and by the
board of directors of JMII and do not and will not require any registration
with, consent or approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable.
b. This Amendment and the Loan Documents to which the Company and/or
JMII is a party constitute the legal, valid and binding obligations of the
Company and/or JMII, as the case may be, enforceable against the Company and/or
JMII in accordance with their respective terms except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or by equitable principles relating to enforceability.
c. The Company and JMII are each entering into this Amendment on the
basis of its own investigations and for its own reasons, without reliance upon
the Agent, the Banks or any other Person.
4. Effective Date. This Amendment will become effective retroactively to
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May 15, 1998; provide that the Agent has received from the Company, JMII and all
of the Banks an executed counterpart of this Amendment and the Consent and
Agreement of Guarantors executed by each of the Guarantors.
5. Reservation of Right. The Company and JMII each acknowledges and
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agrees that the execution and delivery by the Agent and the Banks of this
Amendment shall not be deemed to create a course of dealing or an obligation to
execute similar waivers or amendments under the same or similar circumstances in
the future.
6. Miscellaneous.
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a. Except as expressly waived herein, all terms, covenants and
provisions of the Loan Documents are and shall remain in full force and effect.
b. This Amendment shall be binding upon and inure to the benefit of
the Company, JMII, the Agent and the Banks and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
c. This Amendment shall be governed by and construed in accordance
with the law of the State of California.
d. This Amendment may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this Amendment (and any other document required
herein) may be delivered by any party thereto either in the
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form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of the Company, JMII or any Bank will have the same force
and effect as the delivery of a hard copy original. Any failure by the Agent to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of such
document of the party whose hard copy page was not received by the Agent.
e. This Amendment contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein. This Amendment
supersedes all prior drafts and communications with respect hereto or thereto.
This Amendment may not be amended except in accordance with the provisions of
Section 11.1 of the Credit Agreement.
f. If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Loan Documents.
g. The Company and JMII covenant to pay or reimburse the Agent, within
30 days after demand, for all reasonable costs and expenses incurred by the
Agent in connection with the development, preparation, negotiation, execution
and delivery of this Amendment.
[Signatures follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Revolving Multicurrency Credit Agreement to be executed and delivered in San
Francisco, California, by their duly authorized officers as of the day and year
first written above.
XXXXX XXXXXXXX CORPORATION
By: /s/ X. X. Xxxxxxx
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Title: Treasurer
XXXXX XXXXXXXX INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxxx
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Title: Treasurer
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent, Issuing
Bank, Swingline Bank and a Bank
By: /s/ Xxx Xxxxxxx
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Title: Vice President
THE BANK OF NOVA SCOTIA, as Co-Agent and a Bank
By: /s/ Relationship Manager
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Title: Relationship Manager
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxx
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Title: Vice President
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BANK ONE COLORADO, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
By: /s/ Xxxxxx Xxxxx Hirugh
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Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Senior Vice President & Manager
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Title: Senior Vice President & Manager
By: /s/ Vice President
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Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ DGM
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Title: DGM
MELLON BANK, N.A.
By: /s/ First Vice President
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Title: First Vice President
THE FIRST NATIONAL BANK OF CHICAGO, as Co-Agent
and a Bank
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Assistant Vice President
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FIRST UNION NATIONAL BANK, as Co- Agent
and a Bank
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as
Co-Agent and a Bank
By: /s/ Xxxx X. Xxxxx
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Title: Assistant Vice President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK, as Co-Agent and a Bank
By: /s/ Xxxxxx Xxxxxxxxx
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Title: Vice President
NATIONSBANK, N.A., as Co-Agent and a Bank
By: /s/ Xxx Xxxxxxx
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Title: Vice President
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NORWEST BANK COLORADO, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Vice President
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Title: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Officer
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Title: Officer
By: /s/ X. Xxxxxxxxx
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Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Vice President
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Title: Vice President
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ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Assistant Vice President
FLEET NATIONAL BANK
By: /s/ SVP
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Title: SVP
BW CAPITAL MARKETS, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
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Title: Managing Director
By: /s/ Xxxxxx X. Xxxx
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Title: Vice President
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CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, in its capacity as a Guarantor, acknowledges that
its consent to the foregoing First Amendment to Revolving Multicurrency Credit
Agreement is not required, but each of the undersigned nevertheless does hereby
consent, in its capacity as a Guarantor, to the foregoing First Amendment to
Revolving Multicurrency Credit Agreement and to the documents and agreements
referred to therein. Nothing herein shall in any way limit any of the terms or
provisions of the Guaranty or Additional Guarantor Assumption Agreement, if any,
of the undersigned executed by the undersigned in the Agent's and the Banks'
favor, or any other Loan Document executed by the undersigned (as the same may
be amended from time to time), all of which are hereby ratified and affirmed in
all respects.
Guarantors:
XXXXX XXXXXXXX CORPORATION,
as a Guarantor
By: /s/ X. X. Xxxxxxx
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Title: Treasurer
XXXXX XXXXXXXX INTERNATIONAL, INC.,
as a Guarantor
By: /s/ X. X. Xxxxxxx
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Title: Treasurer
XXXXX XXXXXXXX INTERNATIONAL GROUP,
INC., as a Guarantor
By: /s/ X. X. Xxxxxxx
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Title: Treasurer
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