Exhibit 10.3
This
Amendment No. 1 (this “Amendment”) is entered into as of March 11, 2005,
by and among Xxxxxxx Electric Co. (the “Borrower”), JPMorgan Chase Bank,
N.A. (successor by merger to Bank One, N.A.), individually as a Lender and as agent
(“Agent”), and the other financial institutions signatory hereto as
Lenders.
RECITALS
A.
The Borrower, the Agent and the Lenders are party to that certain Long-Term
Credit Agreement dated as of March 12, 2004 (the “Credit
Agreement”). Unless otherwise specified herein, capitalized terms used
in this Amendment shall have the meanings ascribed to them by the Credit
Agreement.
B.
The Borrower, the Agent and the undersigned Lenders wish to amend the Credit
Agreement and the other Loan Documents on the terms and conditions set forth
below.
NOW,
THEREFORE, in consideration of the mutual execution hereof and other good and valuable
consideration, the parties hereto agree as follows:
1.
Amendments to Credit Agreement. Upon the “Effective Date” (as
defined below), the Credit Agreement and the other Loan Documents shall be
amended as follows:
(a)
All references in the Credit Agreement and the other Loan Documents to
“Bank One, NA” or “Bank One” shall be deemed references to
“JPMorgan Chase Bank, N.A., successor by merger to Bank One, NA”.
(b) Section 1.01 of the Credit Agreement shall be amended by deleting the
definitions of “Consolidated Net Worth” and “Short-Term Credit
Agreement”.
(c) The definition of “Absolute Rate Interest Period” set forth in Section
1.01 of the Credit Agreement shall be amended and restated in its entirety to
read as follows:
“Absolute Rate Interest Period” means, with respect to an Absolute Rate Advance, a period
of not less than 7 and not more than 180 days commencing on a Business Day selected by the
Borrower pursuant to this Agreement; provided, however, that (a) if an
Absolute Rate Interest Period would otherwise end on a day which is not a Business Day,
such Absolute Rate Interest Period shall, subject to clause (b) below, end on the next
succeeding Business Day and (b) any Absolute Rate Interest Period which would otherwise
end after the Facility Termination Date shall end on the Facility Termination Date.
(d) Section 2.01.2 of the Credit Agreement shall be amended and restated in its
entirety to read as follows:
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2.01.2
Amount of Facility; Increase of Aggregate Commitment. The Borrower may, at its
option, on one or more occasions, at any time on or prior to
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the Facility Termination
Date, seek to increase the Aggregate Commitment by up to an aggregate amount which is no
greater than $250,000,000 upon at least three (3) Business Days’ prior notice to the
Agent, which notice shall specify the amount of any such increase (which shall be in an
amount not less than $50,000,000) and shall be delivered at a time when no Default has
occurred and is continuing. The Borrower may, after giving such notice, offer all or any
portion of the increase in the Aggregate Commitment on either a ratable basis to the
Lenders or a non pro-rata basis to one or more Lenders and/or to other banks or entities
reasonably acceptable to the Agent (any Person that accepts such offer, whether or not a
Lender at such time, an “Increasing Lender”, and any Increasing Lender
that is not a Lender at the time of such acceptance, a “New Lender”).
Any Lender may, in its sole discretion, accept or reject any offer from the Borrower to
increase its Commitment. No increase in the Aggregate Commitment shall become effective
until each Increasing Lender shall have delivered to the Agent a document in form
reasonably satisfactory to the Agent pursuant to which such Increasing Lender shall state
the amount of its Commitment and each New Lender shall assume and accept the obligations
and rights of a Lender hereunder, and the Borrower shall have accepted such incremental
Commitments. Each Increasing Lender shall accept an assignment from the existing Lenders,
and each existing Lender shall make a ratable assignment to each Increasing Lender, of an
interest in each then outstanding Ratable Advance and a participation in each outstanding
Swing Line Loan and Facility LC such that, after giving effect thereto, all Ratable
Advances and participations in all Facility LCs and Swing Line Loans are held ratably by
the Lenders (including the Increasing Lenders) in proportion to their respective
Commitments. Assignments pursuant to the preceding sentence shall be automatic after
giving effect to each increase in the Aggregate Commitment and shall be made in exchange
for the principal amount assigned plus accrued and unpaid interest and Facility Fees and
LC Fees. The Borrower shall make any payments under Section 2.22 resulting from
such assignments.
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(e) Section 5.01(c) of the Credit Agreement shall be deleted in its entirety and
replaced with the word “Reserved.”
(f) Section 5.09 of the Credit Agreement shall be deleted in its entirety. All
references in the Credit Agreement to Section 5.09 shall be deleted.
(g) Section 7.05 of the Credit Agreement shall be amended by adding the following
new sentence at the end thereof:
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Except
as expressly set forth herein, the Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to the Borrower or any
of its Subsidiaries that is communicated to or obtained by the bank serving as the
Administrative Agent or any of its Affiliates in any capacity.
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(h) The first sentence of Section 9.06(c) of the Credit Agreement shall be amended
and restated in its entirety to read as follows:
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Any
Lender may at any time assign to one or more banks or other institutions (each an
“Assignee”) all, or a proportionate part (equivalent to an initial
Commitment of not less than $10,000,000) of all, of its rights and obligations under this
Agreement and any Loan Document, and such Assignee shall assume such rights and
obligations, pursuant to an Assignment and Assumption Agreement in substantially the form
of Exhibit D hereto executed by such Assignee and such transferor Lender, with (and
subject to) the subscribed consent of the Borrower and the Agent; provided that (i)
if an Assignee is an affiliate of such transferor Lender or was a Lender immediately prior
to such assignment, such consents may not be unreasonably withheld and (ii) the
Borrower’s consent shall not be required if an Event of Default has occurred and is
continuing; and provided, further, that such assignment may, but need not,
include rights of the transferor Lender in respect of outstanding Competitive Bid Loans.
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(i) The terms “Level I Status”, “Level II Status”, “Level
III Status” and “Level IV Status” set forth in the Pricing
Schedule to the Credit Agreement shall be amended and restated in their entirety
to read as follows:
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“Level
I Status” exists on any date if, on such date, the Borrower’s Xxxxx’x
Rating is Aa3 or better or the Borrower’s S&P Rating is AA- or better.
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“Level
II Status” exists on at any date if, on such date, (a) the Borrower has not
qualified for Level I Status and (b) the Borrower’s Xxxxx’x Rating is A1 or
better or the Borrower’s S&P Rating is A+ or better.
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“Level
III Status” exists on any date if, on such date, (a) the Borrower has not
qualified for Level I Status or Level II Status and (b) the Borrower’s Xxxxx’x
Rating is A2 or better or the Borrower’s S&P Rating is A or better.
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“Level
IV Status” exists on any date if, on such date, (a) the Borrower has not
qualified for Level I Status, Level II Status or Level III Status and (b) the
Borrower’s Xxxxx’x Rating is A3 or better or the Borrower’s S&P Rating
is A- or better.
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2.
Representations and Warranties of the Borrower. The Borrower represents
and warrants that:
(a) The execution, delivery and performance by the Borrower of this Amendment have
been duly authorized by all necessary corporate action, and this Amendment
constitutes a valid and binding agreement of the Borrower, enforceable against
the Borrower in accordance with its terms, except to the extent that
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law);
(b) Each of the representations and warranties of the Borrower contained in the
Credit Agreement is true and correct in all material respects on and as of the
date hereof as if
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made on the date hereof, except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty was true and correct on and as of
such earlier date;
(c) Immediately after giving effect to this Amendment, no Default shall have
occurred and be continuing.
3.
Effective Date. This Amendment shall become effective as of the date
hereof on the date (the “Effective Date”) when the Agent shall
have received duly executed counterparts of this Amendment from the Agent, the
Borrower and the Required Lenders; provided that Section 1(i) hereof shall
become effective when the Agent shall have received duly executed counterparts
of this Amendment from all Lenders.
4.
Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
confirmed.
(b) The execution, delivery and effectiveness of this Amendment shall not operate as
a waiver of any right, power or remedy of the Agent or any Lender under the
Credit Agreement or any other Loan Document, nor constitute a waiver of any
provision of the Credit Agreement or any other Loan Document, except as
specifically set forth herein. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein” (and each
reference in any other Loan Document to “the Credit Agreement”) or
words of similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
5.
GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
6.
Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
7.
Counterparts. This Amendment may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
[signature pages follow]
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first
above written.
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By: |
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Senior Executive Vice President &
Chief Financial Officer |
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By: |
/s/ X. X. Xxxx
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Xxxxx X. Xxxx
Vice President & Treasurer |
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JPMORGAN CHASE BANK, N.A., as Agent and as a Lender |
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By: |
/s/ Xxxxxx X. Xxxxx
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Title: |
Managing Director
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BANK OF AMERICA, N.A., as a Lender |
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By: |
/s/ Xxxx Xxxxxxxx
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Title: |
Senior Vice President
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CITIBANK, N.A., as a Lender |
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By: |
/s/ Xxxxxx X. Xxxxxx
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Title: |
Vice President
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XXXXXX XXXXXXX BANK, as a Lender |
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By: |
/s/ Xxxxxx Xxxxxx
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Title: |
Vice President
Xxxxxx Xxxxxxx Bank
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S-1
[TO AMENDMENT NO.1]
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By: |
/s/ Xxxxxx Xxxxxx
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Title: |
Managing Director
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By: |
/s/ Xxxxxx Xxxxxx
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Title: |
Vice President
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ROYAL BANK OF CANADA, as a Lender |
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By: |
/s/ Xxxxxx Xxx
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Title: |
Authorized Signatory
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BARCLAYS BANK plc, as a Lender |
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By: |
/s/ Xxxxx Xxxxxx
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Title: |
Associate Director
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UNICREDITO ITALIANO S.p.A NEW YORK BRANCH, as a Lender |
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By: |
/s/ Xxxxxx Xxxxx Dente
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Title: |
First Vice President
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By: |
/s/ Xxxxxx X. Xxxxx
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Title: |
Vice President
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By: |
/s/ Eelco Gelauff
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Title: |
Service Manager
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S-2
[TO AMENDMENT NO.1]
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STANDARD CHARTERED BANK, as a Lender |
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By: |
/s/ Xxxx xx Xxxxxx
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Title: |
Senior Vice President
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By: |
/s/ Xxxxxx X. Xxxxxxxxxx
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Title: |
AVP/Credit Documentation
Standard Chartered Bank |
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THE NORTHERN TRUST COMPANY, as a Lender |
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By: |
/s/ Xxxx Xxxxxxx
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Title: |
Second Vice President
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THE BANK OF NEW YORK, as a Lender |
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By: |
/s/ Xxxx Xxxxxxx
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Title: |
Vice President
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SOCIETE GENERALE, as a Lender |
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By: |
/s/ Xxxxx Xxxxxxxxx
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Title: |
Vice President
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SKANDINAVISKA ENSKILDA BANKEN, as a Lender |
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By: |
/s/ Marcus Gaarlett
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Title: |
Authorized Signatory
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By: |
/s/ Xxxxxx Xxxxxxxxx
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Title: |
Authorized Signatory
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S-3
[TO AMENDMENT NO.1]
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WACHOVIA BANK, N.A., as a Lender |
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By: |
/s/ J. Xxxxxx Xxxxxx
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Title: |
Vice President
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UBS LOAN FINANCE LLC, as a Lender |
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By: |
/s/ Xxxxxx Xxxxxx
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Title: |
Director
Banking Products Services, US |
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By: |
/s/ Xxxxxxx Xxxxxxxxx
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Title: |
Associate Director
Banking Products Services, US |
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SUMITOMO MITSUI BANKING CORPORATION, as a Lender |
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By: |
/s/ Xxxxxx XxXxxxx
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Title: |
Vice President & Department Head
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Lender |
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By: |
/s/ X. Xxxx
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Title: |
Vice President
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ICBC SHANGHAI MUNICIPAL BRANCH, as a Lender |
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By: |
/s/ Gu Guoming
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Title: |
Vice President
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BANK OF CHINA, Los Angeles Branch as a Lender |
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By: |
/s/ Xxxx Xxxx
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Title: |
Branch Manager & Vice President
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By: |
/s/ Xxxxx Xx
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Title: |
Vice President
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S-4
[TO AMENDMENT NO.1]
