Exhibit 10.36
EXECUTION COPY
AMENDMENT NO. 1 dated as of November 20, 2003
(this "Amendment"), to the US$270,000,000 Credit
Agreement dated as of February 20,2003, as amended and
restated as of February 26, 2003 (the "Credit
Agreement"), among XXXXX XXXXX INC., a Delaware
corporation (the "Borrower"), XXXXX, XXXXX & COMPANY
LIMITED (ABN 65 000 000 359), a corporation organized
under the laws of the Commonwealth of Australia
("Parent"),the Lenders (as defined therein), and CREDIT
SUISSE FIRST BOSTON,a bank organized under the laws of
Switzerland, acting through its Cayman Islands branch,
as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders.
A. The Lenders have made Loans to the Borrower pursuant to the
Credit Agreement;
B. The Borrower and the Lenders are willing, on the terms and
subject to the conditions set forth herein, to amend the Credit Agreement; and
C. Capitalized terms used and not otherwise defined herein shall
have the meanings assigned to them in the Credit Agreement, as amended hereby.
Accordingly, in consideration of the premises and the agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree,
on the terms and subject to the conditions set forth herein, as follows:
SECTION 1. Amendments to the Credit Agreement. Effective as of the
Amendment Effective Date (as defined in Section 4(a) hereof), the Credit
Agreement is hereby amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) Alternate Base Rate. The definition of the term
"Alternate Base Rate" is hereby amended by replacing the comma
at the end of paragraph (a) with "and", and deleting "and (c)
3.50%".
(ii) Applicable Percentage. The definition of the term
"Applicable Percentage" is hereby amended to read as follows:
"Applicable Percentage" shall mean, with respect
to any Eurodollar Loan, 3.25%, or with respect to any
ABR Loan, 2.25%.
(iii) LIBO Rate. The definition of the term "LIBO
Rate" is hereby amended by deleting the second proviso
thereto (i.e., by deleting the "LIBOR floor") in its
entirety.
(b) Section 2.12(a) is hereby amended to read as follows:
SECTION 2.12. Optional Prepayments. (a) The Borrower
shall have the right at any time and from time to time
to prepay any Borrowing, in whole or in part, upon at
least three Business Days' prior written or telecopy
notice (or telephone notice promptly confirmed by
written or telecopy notice) in the case of Eurodollar
loans, or at least one Business Day's prior written or
telecopy notice (or telephone notice promptly confirmed
by written or telecopy notice) in the case of ABR Loans,
to the Administrative Agent before 11:00 a.m., New York
City time; provided, however,that (i) each partial
prepayment shall be in respect of a principal amount of
the Loans that is an integral multiple of US$1,000,000
and not less than US$5,000,000 and (ii) in respect of
each optional prepayment of the Loans made on or prior
to the first anniversary of the Amendment Effective
Date, the Borrower shall pay to the Lenders a premium at
the time of such prepayment in an amount equal to 1% of
the aggregate principal amount of the Loans to be
prepaid.
(c) Section 5.02(b)(ii) is hereby amended by deleting the
reference therein to "45 days" and replacing it with a reference to
"60 DAYS".
(d) Section 5.09(a) is hereby amended by deleting clause (iii)
in its entirety.
SECTION 2. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, the Borrower and Parent jointly and
severally represent and warrant to each other party hereto that, after giving
effect to this Amendment, (a) the representations and warranties set forth in
Article 111 of the Credit Agreement are true and correct in all material
respects on and as of the date hereof, except to the extent such representations
and warranties expressly relate to an earlier date, and (b) no Default or Event
of Default has occurred and is continuing.
SECTION 3. Fees. The Borrower agrees to pay to each Lender
that executes and delivers a copy of this Amendment to the Administrative Agent
(or its counsel) at or prior to 12:00 (noon), New York City time, on November
18,2003, through the Administrative Agent, an amendment fee (the "Amendment
Fees") in an amount equal to 2% of the outstanding Loans of such Lender, as of
the Amendment Effective Date. The Amendment Fees shall be payable in full, in
immediately available funds, on the Amendment Effective Date. Once paid, such
Amendment Fees shall not be refundable under any circumstances.
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SECTION 4. Effectiveness. (a) this Amendment shall become
effective as of the date first set forth above on the date (the "Amendment
Effective Date") occurring on or prior to November 20,2003 that the
Administrative Agent shall have received counterparts of this Amendment that,
when taken together, bear the signatures of the Borrower, Parent and each
Lender.
(b) Pursuant to Section 2.21(a) of the Credit Agreement, if
this Amendment is not approved by November 18, 2003 by all the Lenders but is
approved by the Required Lenders (the Lenders not so approving being referred to
herein as the "Non-Consenting Lenders"), then the Borrower may, upon notice to
the Non-Consenting Lenders and the Administrative Agent, require the
Non-Consenting Lenders to transfer and assign, without recourse (in accordance
with and subject to the restrictions contained in Section 9.04), all of their
respective interests, rights and obligations under the Credit Agreement to an
assignee that shall assume such assigned obligations (which assignee may be
another Lender, if a Lender accepts such assignment (any such existing Lender
that accepts such an assignment being referred to herein as an "Increasing
Lender")). If any Lender shall become an Increasing Lender after consenting to
this Amendment, then such consent shall be deemed to have been given in respect
of all the Loans of such Lender, including the additional Loans thereof acquired
as a result of the assignments referred to above.
SECTION 5. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent, Parent or the Borrower under the Credit
Agreement or any other Transaction Document, and shall not alter, modify, amend
or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Transaction Document,
all of which are ratified and affirmed in all respects and shall continue in
full force and effect. Nothing herein shall be deemed to entitle Parent or the
Borrower to a consent to, or a waiver, amendment, modification or other change
of, any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other Transaction Document in similar or
different circumstances. This Amendment shall apply and be effective only with
respect to the provisions of the Credit Agreement specifically referred to
herein. After the date hereof, any reference to the Credit Agreement shall mean
the Credit Agreement, as modified hereby. This Amendment shall constitute a
Transaction Document for all purposes of the Credit Agreement and the other
Transaction Documents.
SECTION 6. 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 and delivered shall be deemed an original, but
all such counterparts constitute but one and the same instrument. Delivery of
any executed counterpart of a signature page of this Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
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SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this amendment to
be duly executed by their duly authorized officers, all as of the date and year
first above written.
XXXXX XXXXX INC.,
by:/s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
Title:Attorney
XXXXX,XXXXX & COMPANY LIMITED,
by:/s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title:Attorney
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands branch,
individually and as administrative
agent,
by: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
by: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Director
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SIGNATURE PAGE TO AMENDMENT NO. 1
DATED AS OF NOVEMBER 20, 2003, TO
THE XXXXX,XXXXX & COMPANY LIMITED
AND XXXXX XXXXX INC. US$270,000,000
CREDIT AGREEMENT DATED AS
OF FEBRUARY 20, 2003, AS AMENDED AND
RESTATED AS OF FEBRUARY 26,2003
NAME OF LENDER
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by:
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NAME
TITLE:
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