EXHIBIT 10.17
SECOND AMENDMENT
TO
THE THREE-YEAR CREDIT AGREEMENT
SECOND AMENDMENT to the Three-Year Credit Agreement dated as of
November 27, 2002 (this "Second Amendment") among XXXXXXXXXXX INDUSTRIES, INC.
(the "Borrower"), each lender to the Three-Year Credit Agreement (as defined
below) (the "Lenders"), and BANK OF AMERICA, N.A., as Administrative Agent (in
such capacity, the "Administrative Agent"), Swing Line Lender, L/C Issuer and
Alternative Rate Lender, CITICORP, USA, INC., as Syndication Agent, and BANK
ONE, NA, LASALLE BANK NATIONAL ASSOCIATION and UBS AG, STAMFORD BRANCH, as
Documentation Agents.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Administrative Agent, Citicorp
USA, Inc., as Syndication Agent, and Bank One, NA, LaSalle Bank National
Association and UBS AG Stamford Branch, as Documentation Agents entered into
that certain Three-Year Credit Agreement dated as of August 2, 2002 (as amended
by the First Amendment dated as of November 20, 2002 and this Second Amendment,
as hereinafter amended, modified, supplemented, extended or restated from time
to time being called, the "Amended Credit Agreement"). Capitalized terms used
and not otherwise defined herein shall have the meanings assigned to such terms
in the Amended Credit Agreement.
(2) The Borrower has requested the Lenders to, among other things,
amend certain covenants and other provisions in the Amended Credit Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:
SECTION 1.01. Amendment to Section 1.01. Section 1.01 of the
Amended Credit Agreement is hereby amended by deleting the definition of "L/C
Issuer" and amending and restating it in its entirety to read as follows:
""L/C Issuer" means Bank of America in its capacity as an issuer
of Letters of Credit hereunder, Bank One, NA in its capacity as an
issuer of Letters of Credit hereunder and LaSalle Bank National
Association in its capacity as an issuer of Letters of Credit
hereunder, as applicable, or any successor issuers of Letters of Credit
hereunder.
SECTION 1.02. Amendment to Credit Agreement. For purposes of
the amended definition of "L/C Issuer", (i) all references in the Credit
Agreement to "the L/C Issuer" shall be deemed references to "the applicable L/C
Issuer" or the "the L/C Issuers", as the context requires and (ii) Bank One, NA
and LaSalle Bank National Association shall each be deemed included as L/C
Issuers in the introductory paragraph of the Amended Credit Agreement.
SECTION 1.03. Representations and Warranties. The Borrower
hereby represents and warrants to the Administrative Agent and the Lenders, as
follows:
(a) After giving effect to this Second Amendment, the
representations and warranties set forth in Article V of the Amended
Credit Agreement, and in each other Loan Document, are true and correct
in all material respects on and as of the date
hereof and on and as of the Second Amendment Effective Date (as defined
below) with the same effect as if made on and as of the date hereof,
except to the extent such representations and warranties expressly
relate solely to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date.
(b) After giving effect to this Second Amendment, the
Borrower is in compliance with all the terms and conditions of the
Amended Credit Agreement and the other Loan Documents on its part to be
observed or performed and no Default or Event of Default has occurred
or is continuing under the Amended Credit Agreement.
(c) The execution, delivery and performance by the
Borrower of this Second Amendment have been duly authorized by the
Borrower.
(d) This Second Amendment constitutes the legal, valid
and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its terms.
(e) The execution, delivery and performance by the
Borrower of this Second Amendment do not (i) contravene the terms of
any such Person's Organization Documents; (ii) conflict with or result
in any breach or contravention of, or the creation of any Lien under,
(A) any Contractual Obligation to which the Borrower is a party, except
to the extent that such breach, contravention or creation of any such
Lien could not reasonably be expected to have a Material Adverse Effect
or (B) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which the Borrower or its property
is subject; or (iii) violate any material Law.
(f) Except for the litigation disclosed in the 10-K and
10-Q, there are no actions, suits, proceedings, claims or disputes,
pending, or, to the knowledge of the Borrower after due and diligent
investigation threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority by or against the
Borrower or any of its Subsidiaries or against any of their properties
or revenues that (i) purport to affect or pertain to this Amended
Credit Agreement or any other Loan Document, or any of the transactions
contemplated hereby or (ii) either individually or in aggregate, if
determined adversely, could reasonably be expected to have a Material
Adverse Effect.
SECTION 1.04. Effectiveness. This Second Amendment shall
become effective only upon satisfaction of the following conditions precedent
(the first date upon which each such condition has been satisfied being herein
called the "Second Amendment Effective Date"):
(a) The Administrative Agent shall have received duly
executed counterparts of this Second Amendment which, when taken
together, bear the authorized signatures of the Borrower, the Required
Lenders and the L/C Issuer.
(b) The Borrower shall have paid all expenses referred to
in Section 1.06 of this Second Amendment.
SECTION 1.05. APPLICABLE LAW. THIS SECOND AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED
THAT ALL PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
SECTION 1.06. Expenses. The Borrower shall pay all reasonable
costs and expenses incurred by the Administrative Agent in connection with the
preparation, negotiation, execution, delivery and enforcement of this Second
Amendment, including all reasonable
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Attorney Costs. The agreement set forth in this Section 1.06 shall survive the
termination of this Second Amendment and the Amended Credit Agreement.
SECTION 1.07. Counterparts. This Second Amendment may be
executed in any number of counterparts, each of which shall constitute an
original but all of which when taken together shall constitute but one
agreement. Delivery of an executed counterpart of the signature page of this
Second Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 1.08. Amended Credit Agreement. Except as expressly
modified or consented to herein, the Amended Credit Agreement shall continue in
full force and effect in accordance with the provisions thereof. This Second
Amendment is a Loan Document executed under the Amended Credit Agreement and
shall be construed in accordance with the Amended Credit Agreement.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date first above written.
XXXXXXXXXXX INDUSTRIES, INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
BANK OF AMERICA, N.A., as
Administrative Agent
By:
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Name:
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Title:
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CITICORP USA, INC., as Syndication Agent
By:
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Name:
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Title:
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BANK ONE, NA, as Documentation Agent
By:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent
By:
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Name:
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Title:
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UBS AG, STAMFORD BRANCH, as
Documentation Agent
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANK OF AMERICA, N.A., as a Lender, Swing
Line Lender, Alternative Rate Lender and a
L/C Issuer
By:
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Name:
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Title:
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BANK ONE, NA, as a Lender and a L/C Issuer
By:
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Name:
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Title:
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BNP PARIBAS, as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CITICORP USA, INC., as a Lender
By:
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Name:
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Title:
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FIFTH THIRD BANK as a Lender
By:
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Name:
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Title:
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KEYBANK NATIONAL ASSOCIATION, as a Lender
By:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION, as a
Lender and a L/C Issuer
By:
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Name:
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Title:
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NATIONAL CITY BANK OF INDIANA, as a Lender
By:
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Name:
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Title:
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THE NORTHERN TRUST COMPANY, as a Lender
By:
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Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:
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Name:
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Title:
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SUNTRUST BANK, as a Lender
By:
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Name:
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Title:
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UBS AG, STAMFORD BRANCH, as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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