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EXHIBIT 10.8
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of March 8, 2001
among XXXXXX SERVICES CORPORATION, a Delaware corporation (the "Borrower"),
CANADIAN IMPERIAL BANK OF COMMERCE, as administrative agent for the Lenders (the
"Administrative Agent"), and the lenders from time to time parties to the
Secured PIK/Term Credit Agreement referred to below (the "Lenders"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Secured PIK/Term Credit Agreement
referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to a Credit Agreement, dated as of March 31, 2000 among the
Borrower, the Administrative Agent and the Lenders (the "Secured PIK/Term Credit
Agreement");
WHEREAS, the Borrower has requested certain amendments to the
Credit Agreement; and
WHEREAS, subject to the terms and conditions of this
Amendment, the Lenders are willing to grant such amendments.
NOW, THEREFORE, it is agreed:
1. Section 4.07(e) of the Credit Agreement is hereby amended
by deleting the text "Schedule XXVI" appearing therein and inserting the text
"Schedule XXVII" in lieu thereof.
2. Section 6.06 of the Credit Agreement is hereby amended by
deleting the text "Schedule XXI" appearing in sub-clause (c) thereof and
inserting the text "Schedule XXII" in lieu thereof.
3. Section 6.13 of the Credit Agreement is hereby amended by
deleting the text "Schedule XXII" appearing therein and inserting the text
"Schedule XXIII" in lieu thereof.
4. Section 8 of the Credit Agreement is hereby amended by
deleting the text "Schedule XXIV" appearing in sub-clause (h) of the definition
of "Permitted Dispositions" and inserting the text "Schedule XXV" in lieu
thereof.
5. Section 8 of the Credit Agreement is hereby further amended
by (i) deleting the text "Schedule XXV" appearing in sub-clause (b)(i) of the
definition of "Permitted Investments" and inserting the text "Schedule XXVI" in
lieu thereof and (ii) deleting the text "Schedule XXI" appearing in sub-clause
(b)(ii) of the definition of "Permitted Investments" and inserting the text
"Schedule XXII" in lieu thereof.
6. Section 8 of the Credit Agreement is hereby further amended
by deleting the text "Schedule XXVI" appearing in sub-clause (c) of the
definition of "Permitted Liens" and inserting the text "Schedule XXVII" in lieu
thereof.
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7. Notwithstanding anything contained in the Credit Agreement
to the contrary, the Borrower may incur certain indemnification obligations in
favor of the directors of, and agents engaged by, Phencorp International Finance
Inc., an Irish corporation, Cecatur Holdings, an Irish corporation, and Xxxxxx
Services (Delaware) L.L.C., a Delaware limited liability company (each such
director or agent, an "Indemnitee" and each such obligation, an "Indemnification
Obligation"); provided that (i) on the date of the incurrence of any
Indemnification Obligation, no Event of Default shall have occurred and be
continuing and (ii) as of any date of determination, the Borrower's maximum
indebtedness under all Indemnification Obligations then outstanding shall not
exceed $12,500,000.
8. The Borrower hereby represents and warrants that both
before and after giving effect to this Amendment (x) no Default or Event of
Default exists on the First Amendment Effective Date (as defined below) and (y)
all of the representations and warranties contained in the Secured PIK/Term
Credit Agreement or the other Credit Documents shall be true and correct in all
material respects on and before the First Amendment Effective Date with the same
effect as though such representations and warranties had been made on and as of
such 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).
9. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Secured PIK/Term Credit Agreement or any other Credit Document. All capitalized
terms not defined herein shall have the meaning given to them in the Secured
PIK/Term Credit Agreement.
10. 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 Borrower and the Administrative Agent.
11. 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.
12. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when (i) with regard to paragraph 7 of this
amendment only, the Administrative Agent shall have received a copy of each
indemnification agreement entered into between the Borrower and an Indemnitee
(the form of which shall be satisfactory to the Administrative Agent) together
with a certificate from the Secretary of the Borrower certifying such
indemnification agreement as being a true, correct, and complete copy thereof,
(ii) with regard to paragraph 7 of this amendment only, the Administrative Agent
shall have received an executed copy of the Exit Lenders' consent to the
incurrence by the Borrower of the Indemnification Obligations (the form and
substance of which shall be satisfactory to the Administrative Agent), and (iii)
each of the Borrower and the Required Lenders shall have signed a copy hereof
(whether the same or different copies) and, in each case, shall have delivered
(including by way of telecopier) the same to the Administrative Agent at the
Notice Office.
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
XXXXXX SERVICES CORPORATION
By:
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE
As Administrative Agent and
Individually
By:
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Title:
4
ABN AMRO BANK CANADA
By:
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Title:
By:
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Title:
5
AMERICAN REAL ESTATE HOLDINGS L.P.
By:
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Title:
6
ACCORD FINANCIAL CORP.
By:
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Title:
7
THE BANK OF EAST ASIA (CANADA)
By:
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Title:
8
BEAR, XXXXXXX & CO. INC.
By:
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Title:
0
XXXXX XXXX XX XXXXX N.A.
By:
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Title:
10
THE CHASE MANHATTAN BANK
By:
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Title:
00
XXX XXXXX XXXXXXXXX XXXX XX XXXXXX
By:
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Title:
12
CITIBANK, N.A.
By:
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Title:
13
CLARICA LIFE INSURANCE COMPANY
(f/k/a Mutual Life Assurance Company
of Canada)
By:
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Title:
14
COMERICA BANK
By:
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Title:
00
XXXXXX XXXXXX XXXXX XXXXXX XXXXXX
By:
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Title:
00
XXX-XXXX XXXXXX XXXX (XXXXXX)
By:
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Title:
17
DAI-ICHI KANGYO BANK, LTD.,
New York Branch
By:
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Title:
18
DEUTSCHE BANK CANADA
By:
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Title:
19
SENIOR DEBT PORTFOLIO
By:
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Title:
20
FERNWOOD ASSOCIATES L.P.
By:
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Title:
21
FOOTHILL CAPITAL CORPORATION
By:
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Title:
22
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By:
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Title:
23
XXXXXXX SACHS CANADA CREDIT PARTNERS CO.
By:
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Title:
24
HIGH RIVER LIMITED PARTNERSHIP
By:
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Title:
25
KEY BANK, N.A.
By:
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Title:
26
XXXXXXXXX CORP.
By:
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Title:
27
XXXXXXXXX LLC
By:
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Title:
00
XXXXXX XXXX XX XXXXXX
by Mellon Bank, N.A.
By:
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Title:
29
MUTUAL SHARES FUND, A SERIES OF
FRANKLIN MUTUAL SERIES FUND, INC.
By:
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Title:
00
XXXX XX XXXXXXX, N.A. (FORMERLY
KNOWN AS NATIONSBANK, N.A.)
By:
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Title:
31
BNP PARIBAS
By:
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Title:
By:
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Title:
00
XXXXX XXXX XX XXXXXXXX PLC
By:
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Title:
00
XXXXXX XXXX (XXXXXX)
By:
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Title:
34
SOCIETE GENERALE (CANADA)
By:
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Title:
35
TORONTO DOMINION (NEW YORK), INC.
By:
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Title:
36
WACHOVIA BANK, N.A.
By:
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Title:
