Exhibit 10.8
AMENDMENT NO. 2
to
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Dated as of June 29, 2004
among
LEUCADIA NATIONAL CORPORATION
and
FLEET NATIONAL BANK,
as Administrative Agent,
JPMORGAN CHASE BANK,
As Syndication Agent,
and
FLEET NATIONAL BANK,
JPMORGAN CHASE BANK,
HSBC BANK USA, AND
ISRAEL DISCOUNT BANK OF NEW YORK,
As the Banks
AMENDMENT
to
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment"), dated as of June 29, 2004,
to become effective as of the Effective Date as defined in Section 4 hereof upon
satisfaction of the conditions specified therein, is by and among Leucadia
National Corporation, a New York corporation (the "Company"), Fleet National
Bank, JPMorgan Chase Bank, HSBC Bank USA, and Israel Discount Bank of New York
(collectively, the "Banks"), Fleet National Bank as Administrative Agent for
itself and the other Banks, and JPMorgan Chase Bank as Syndication Agent for
itself and the other Banks.
Whereas, the Company, the Banks, the Administrative Agent and the
Syndication Agent are parties to that certain Amended and Restated Revolving
Credit Agreement dated as of March 11, 2003, as amended by an Amendment dated as
of March 31, 2004 (as so amended, the "the Credit Agreement"), pursuant to which
the Banks, upon the terms and conditions specified therein, have agreed to make
Loans to the Company; and
Whereas, the Company has requested that the Banks, the Administrative
Agent and the Syndication Agent agree, and the Banks, the Administrative Agent
and the Syndication Agent have agreed, on the terms and subject to the
conditions set forth herein, to amend certain of the provisions of the Credit
Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
2. Amendments to the Credit Agreement. Section 8.3 of the Credit
Agreement is hereby amended in its entirety to read as follows:
8.3. Debt Leverage Ratio. The Company will not at any time
permit the ratio of (a) Funded Debt to (b) the sum of Shareholders'
Equity and Funded Debt to exceed 0.50 to 1.0.
3. Representations and Warranties. The Company hereby represents and
warrants to the Banks that:
(a) The execution and delivery by the Company, and the performance by
the Company, of its obligations and agreements under this Amendment and the
Credit Agreement as amended hereby (i) are within the corporate authority of the
Company, have been duly authorized by all necessary corporate proceedings, (ii)
do not and will not contravene any Requirement of Law applicable to or binding
upon the Company or any of its Subsidiaries, nor any Contractual Obligation of
the Company or any of its Subsidiaries, and (iii) will not result in or require
the creation or imposition of any Lien on any of the Company's or its
Subsidiaries' respective properties or revenues pursuant to any Requirement of
Law or Contractual Obligation, except in the case of clauses (ii) and (iii) any
contractual violations and/or Liens which in the aggregate would not be
reasonably likely 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 and would not be reasonably likely to have a material adverse
effect on the ability of the Company to perform its obligations under the Credit
Agreement and the Notes.
(b) This Amendment and the Credit Agreement as amended hereby
constitute the legal, valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally.
(c) The representations and warranties contained in Section 5 of the
Credit Agreement are true and correct as of the date hereof with same effect as
if made on and as of the date hereof.
(d) The consolidated balance sheet of the Company and its consolidated
Subsidiaries as at December 31, 2003, and the related consolidated statements of
operations, statements of changes in shareholders equity and statements of cash
flows for the fiscal year ended on such date, certified by
PricewaterhouseCoopers LLP, and the Company's quarterly report to the
shareholders on Form 10Q for the quarter ended March 31, 2004, as filed with the
Securities and Exchange Commission, copies of which have heretofore been
furnished to the Banks, are complete and correct and present fairly in
accordance with GAAP the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such dates, and the consolidated results of
their operations and changes in cash flows for the fiscal periods then ended.
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently with
the preceding fiscal periods.
4. Effectiveness. This Amendment shall be deemed to be effective as of
the date hereof (the "Effective Date"), subject to satisfaction of the following
conditions precedent:
(a) The Administrative Agent shall have received counterparts of this
Amendment signed by the Company and the Majority Banks.
(b) The Company shall have paid to the Administrative Agent, for the
account of each of the Banks executing and delivering this Amendment, an
amendment fee in the amount of $5,000.
(c) The Company shall have paid the reasonable legal fees and
disbursements of Xxxxxxx XxXxxxxxxx LLP, as counsel to the Administrative Agent
and the Banks, in connection with this Amendment (for which an invoice shall
have been presented).
(d) The Administrative Agent shall have received copies of such
certificates and other documents as the Administrative Agent may reasonably
request, and such documents and all legal matters in connection with this
Amendment shall be satisfactory in form and substance to the Administrative
Agent and its counsel.
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5. Miscellaneous Provisions.
(a) Except as otherwise expressly provided by this Amendment, all of
the terms, conditions and provisions of the Credit Agreement shall remain the
same; and the Credit Agreement as amended hereby shall continue in full force
and effect.
(b) This Amendment is intended to take effect as an instrument executed
under seal and shall be construed according to and governed by the laws
(excluding the laws applicable to conflicts or choice of law) of the
Commonwealth of Massachusetts.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment, it shall not be necessary to produce or account for
more than one counterpart signed by the Company and the Banks.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the undersigned parties have caused this Amendment
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
LEUCADIA NATIONAL CORPORATION
By:
--------------------------------
Name:
Title:
FLEET NATIONAL BANK
individually and as Administrative Agent
By:
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK ,
individually and as Syndication Agent
By:
--------------------------------
Name:
Title:
HSBC BANK USA
By:
--------------------------------
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
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