EXHIBIT 10.1
THIRD AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Third Amendment to Credit and Security Agreement (this
"Amendment") made as of February 17, 2003 among ▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION, as
Borrower (the "Borrower"), the various financial institutions whose names appear
as lenders on the signature pages to the Credit Agreement (as defined below)
(together with any other financial institution which subsequently becomes a
lender under the Credit Agreement, the "Lenders"), and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent are parties to that
certain Credit and Security Agreement, dated as of November 15, 2001, as amended
by that certain First Amendment to Credit and Security Agreement and Agreement
to Release, dated as of March 25, 2002, as further amended by that certain
Second Amendment to Credit and Security Agreement, dated as of June 21, 2002 (as
further amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, the Borrower has requested certain amendments to the Credit
Agreement, and the Required Lenders and the Agent have agreed to such amendments
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
that all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, and
further agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the fulfillment of the
conditions precedent to the effectiveness of this Amendment which are set forth
below, the Credit Agreement shall be amended as follows:
(a) Section 2.15 of the Credit Agreement, Issuance of Letters
of Credit, is hereby amended by deleting in its entirety Section 2.15 and
inserting the following in lieu thereof:
"Issuance of Letters of Credit. Subject to the terms and
conditions of this Agreement, and in reliance upon the
representations and warranties of the Borrower herein set
forth, Wachovia shall issue for the account of the Borrower,
one or more Letters of Credit denominated in Dollars, in
accordance with this ARTICLE 2, from time to time during the
period commencing on the Closing Date and ending on the
Domestic Business Day prior to the Termination Date; provided,
however, that any Letter of Credit (including any Closing
Date Letter of Credit) may be issued, renewed or re-issued so
long as
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the expiration date thereof, as so extended or renewed, does
not extend beyond the date which is thirteen (13) months
following the Termination Date."
(b) Section 6.01 of the Credit Agreement, Events of Default,
is hereby amended by deleting therefrom the last sentence thereof and inserting
the following in lieu thereof:
"In no event may any Lender or Lenders exercise any rights,
remedies or powers with respect to the Obligations, this
Credit Agreement and the other Credit Documents without the
consent of the Agent and the Required Lenders; provided that
with respect to any Obligations arising under any Interest
Rate Protection Agreement or ForEx Contract, any Lender or
Lenders, or Affiliates thereof, party to such Interest Rate
Protection Agreement or ForEx Contract may terminate such
Interest Rate Protection Agreement or ForEx Contract without
the consent of the Agent or the Required Lenders."
(c) Section 10.06(a) of the Credit Agreement, Amendments and
Waivers, is hereby amended by deleting the final period therein and inserting
the following in lieu thereof:
";provided further that, the consent of the Required Lenders
shall not be required with respect to any amendment to, or
waiver of, any Interest Rate Protection Agreement or ForEx
Contract."
2. NO WAIVER. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided above, operate as a waiver of
any right, power or remedy of the Agent or the Lenders under the Credit
Agreement or any of the other Credit Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the other Credit Documents. Except
for the amendments expressly set forth above and delivered in connection
herewith, the text of the Credit Agreement and all other Credit Documents shall
remain unchanged and in full force and effect and the Borrower hereby ratifies
and confirms its obligations thereunder. This Amendment shall not constitute a
modification of the Credit Agreement or a course of dealing with the Agent or
the Lenders at variance with the Credit Agreement such as to require further
notice by the Agent or the Lenders to require strict compliance with the terms
of the Credit Agreement and the other Credit Documents in the future. Nothing in
this Amendment is intended, or shall be construed, to constitute a novation or
an accord and satisfaction of any of the Obligations or to modify, affect or
impair the perfection or continuity of the Agent's and the Lenders' security
interests in, security titles to, or other Liens on, any Collateral for the
Obligations, other than as expressly set forth herein.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall become effective
as of the date hereof when, and only when, the Agent, on behalf of itself and
the Lenders, shall have received, in form and substance reasonably satisfactory
to it:
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(a) duly executed counterparts of this Amendment;
(b) duly executed counterparts to the First Amendment to
Subsidiary Guaranty and First Amendment to Subsidiary Security Agreement; and
(c) such other information, documents, instruments or
approvals as the Agent may require, in form and substance reasonably
satisfactory to Agent.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Tennessee;
(b) The execution, delivery and performance by the Borrower of
this Amendment and the Credit Documents, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's organizational
documents, (ii) law; or (iii) or any contractual restriction binding on or
affecting the Borrower;
(c) This Amendment and each of the other Credit Documents, as
amended hereby, constitute legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally; and
(d) No Default or Event of Default has occurred and is
continuing as of this date under the Credit Agreement as amended by this
Amendment.
5. CONSENT TO AMENDMENTS TO CREDIT DOCUMENTS. Pursuant to Section
10.06(a) of the Credit Agreement, the Required Lenders hereby consent to that
certain First Amendment to Subsidiary Guaranty and First Amendment to Subsidiary
Security Agreement, each substantially in the form attached hereto as Exhibit A
and B respectively.
6. REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Credit
Documents to the "Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
7. COSTS, EXPENSES AND TAXES. The Borrower agrees to pay on demand all
reasonable costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees
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and out-of-pocket expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities
hereunder and thereunder.
8. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
9. CREDIT DOCUMENT. This amendment shall be deemed to be a Credit
Document for all purposes.
10. COUNTERPARTS. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof and shall be deemed to be a writing for all
purposes.
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IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to execute and deliver
this Amendment as of the day and year first written above.
▇▇▇▇▇▇ & ▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇ ▇&▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent and as a Lender
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Lending Office
Wachovia Bank, N.A.
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Asset Based Lending
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
FLEET CAPITAL CORPORATION,
as a Lender
BY: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lending Office
Fleet Capital Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Vice President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
SIEMENS FINANCIAL SERVICES,
INC., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President - Credit
Lending Office
Siemens Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
CIBC INC., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Director
CIBC World Markets Corp., as Agent
Lending Office
CIBC Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Senior Associate
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Second Vice President
Lending Office
The Northern Trust Company
▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Second Vice President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
KBC BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Lending Office
KBC Bank N.V.
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▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Third Amendment to Credit and Security Agreement
