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EXHIBIT 4.1
EXECUTION COUNTERPART
SECOND AMENDMENT
TO
THE AMENDED AND RESTATED
MULTICURRENCY REVOLVING CREDIT AGREEMENT
THIS SECOND AMENDMENT TO THE AMENDED AND RESTATED MULTICURRENCY
REVOLVING CREDIT AGREEMENT (this "Amendment") dated as of March 31, 1998 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, as amended pursuant to a First Amendment to Amended and
Restated Multicurrency Revolving Credit Agreement and Amendment to Notes (said
agreement as so amended being the "Credit_Agreement"), pursuant to which the
Banks agreed to extend credit thereunder in an aggregate principal amount not
in excess of $500,000,000 at any time outstanding.
(b) The Company has requested that the Credit Agreement be amended to
(i) modify the definition of Consolidated Net Worth, (ii) add a definition of
ACE Securities and (iii) modify Section 5.06 thereof.
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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 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
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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;
(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. (a)
The definition of the term "Consolidated Net Worth" contained in Section 1.01
of the Credit Agreement is hereby amended in its entirety to read as follows:
" 'Consolidated Net Worth' means, with respect to the Company, the
stockholders' equity of the Company determined in accordance with generally
accepted accounting principles applied on a consistent basis; provided,
however, the $409,659,000 of capital stock to be issued upon the maturity
of the ACE Securities
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on June 30, 1998 shall be included on a pro forma basis from and after
March 31, 1998 for purposes of determining Consolidated Net Worth; provided
further, however, the amount of any foreign currency translation adjustment
shall not be included for purposes of determining Consolidated Net Worth."
(b) Section 1.01 of the Credit Agreement is hereby amended to add the
following definition of ACE Securities:
" 'ACE Securities' means 11,499,200 7.25% Automatic Common Exchange
Securities issued by the Company in July 1995, in an aggregate stated
amount of $409,659,000 and which mature June 30, 1998."
SECTION 3. Section 5.06 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"SECTION 5.06. Financial Covenants. The Company shall not permit
Consolidated Net Worth (i) at any time during the fiscal year ending
September 30, 1998 to be less than $1,200,000,000 and (ii) at any time
during each fiscal year thereafter to be less than an amount equal to the
sum of (A) the amount of Consolidated Net Worth required under this Section
5.06 for the immediately preceding fiscal year plus (B) 20% of Consolidated
Net Income for such immediately preceding fiscal year; provided, however,
if Consolidated Net Income in any such preceding fiscal year is less than
zero, the amount to be aggregated for such fiscal year shall be zero."
SECTION 4. 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 Majority Banks.
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SECTION 5. 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 except for any such representations and warranties as are by their
terms limited to a specific earlier date (in which case such representations
and warranties shall have been true and correct on and as of such earlier
date); provided however, (i) the reference in the first sentence of Section
4.07 of the Credit Agreement to the Company's financial statements contained in
the Company's Annual Report on Form 10-K shall be a reference to the audited
consolidated financial statements of the Company most recently delivered to the
Administrative Agent and the Banks by the Company pursuant to Section 5.07(a)
of the Credit Agreement prior to the date of this Amendment and (ii) the
reference in the last sentence of Section 4.07 of the Credit Agreement to
September 30, 1994, shall be a reference to the date of the audited
consolidated financial statements most recently delivered to the Administrative
Agent and the Banks pursuant to Section 5.07(a) of the Credit Agreement; and
(b) no Default or Event of Default has occurred and is continuing.
SECTION 6. 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.
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(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 in the
Credit Agreement and the Notes to "Consolidated Net Worth" shall mean and be a
reference to such term as modified pursuant to Section 1.
(d) 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 7. 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 8. 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 9. 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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ABN AMRO BANK, N.V., HOUSTON AGENCY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
10
BANK OF AMERICA NT & SA
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
00
XXXXXX XXXXXXXXX XX XXXXX XXXXXXX
AGENCY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
12
CITICORP USA, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
13
CREDIT LYONNAIS
NEW YORK BRANCH
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
14
CREDIT SUISSE FIRST BOSTON
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $50,000,000
15
DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
16
THE FIRST NATIONAL BANK OF CHICAGO
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
17
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
19
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
00
XXXXX XXXX XX XXXXX, NATIONAL
ASSOCIATION (Formerly Texas
Commerce Bank National Association)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Commitment: $37,500,000
