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EXHIBIT 10.3
SECOND AMENDMENT AND RELEASE
SECOND AMENDMENT AND RELEASE, dated as of May 26, 1998 (this "Amendment"),
to the Amended and Restated Credit and Guarantee Agreement, dated as of December
20, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among XXXX CORPORATION, a Delaware corporation (the "U.S.
Borrower"), XXXX CORPORATION CANADA LTD., a company organized under the laws of
the province of Ontario, Canada (the "Canadian Borrower"), the FOREIGN
SUBSIDIARY BORROWERS parties thereto (together with the U.S. Borrower and the
Canadian Borrower, the "Borrowers"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders"), the Managing
Agents named therein (the "Managing Agents"), the Co-Agents named therein (the
"Co-Agents"), the Lead Managers named therein (the "Lead Managers"), and THE
BANK OF NOVA SCOTIA, a Canadian chartered bank (as hereinafter defined, the
"Canadian Administrative Agent"), and THE CHASE MANHATTAN BANK, a New York
banking corporation (as hereinafter defined, the "General Administrative
Agent"), as administrative agents for the Lenders thereunder (collectively, the
"Administrative Agents").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, extensions of credit to the Borrowers; and
WHEREAS, the Borrowers have requested that certain provisions of the Credit
Agreement and the other Loan Documents (as defined in the Credit Agreement) be
modified in the manner provided for in this Amendment, and the Lenders are
willing to agree to such modifications as provided for in this Amendment;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
2. Amendments to Credit Agreement. (a) Subsection 13.8 of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
"13.8 [RESERVED]"
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(b) Subsection 13.10 of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and substituting in lieu thereof the
following:
"13.10 [RESERVED]"
(c) Schedule I of the Credit Agreement is hereby amended by deleting
such Schedule in its entirety and substituting in lieu thereof Schedule I
attached hereto.
3. Releases. The Lenders and the General Administrative Agent hereby
(a) release the guarantors under the Subsidiary Guarantee and the Additional
Subsidiary Guarantee from all their respective obligations under such
Guarantees, (b) release the security interest in all collateral held by the
General Administrative Agent under the Pledge Agreements and (c) release the
pledgors under the Pledge Agreements from all their respective obligations under
the Pledge Agreements. The Lenders hereby authorize and direct the General
Administrative Agent to take such actions as it shall deem appropriate to effect
such release, including the execution and delivery of such release instruments
as it shall deem appropriate. The parties to the Credit Agreement agree that,
notwithstanding any provision contained in the Credit Agreement or the other
Loan Documents to the contrary, (i) all obligations of the Loan Parties
contained in the Credit Agreement and the other Loan Documents with respect to
(A) the Subsidiary Guarantee, (B) the Additional Subsidiary Guarantee and (C)
the Pledge Agreements (collectively, the "Released Documents") are hereby
released and (ii) all references in the Credit Agreement and the other Loan
Documents to the Released Documents shall have no force or effect.
4. Conditions to Effectiveness. This Amendment shall become effective
on the date (the "Amendment Effective Date") that the following conditions
precedent have been satisfied:
(a) the General Administrative Agent shall have received counterparts
hereof, duly executed and delivered by the Borrowers, the Swing Line Lender
and all the Lenders;
(b) The General Administrative Agent shall have received, with a
copy for each Lender, a certificate of the Secretary or Assistant Secretary
of the U.S. Borrower, dated the Amendment Effective Date, as to the
incumbency and signature of its officers executing this Amendment, together
with satisfactory evidence of the incumbency of such Secretary or
Assistant Secretary;
(c) the General Administrative Agent shall have received, with a copy
for each Lender, a copy of the resolutions in form and substance
satisfactory to the General Administrative Agent, of the Board of Directors
(or the executive committee thereof) of the U.S. Borrower authorizing the
execution, delivery and performance of the U.S. Borrower of this Amendment,
which certificate shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded as of the Amendment
Effective Date; and
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(d) the General Administrative Agent shall have received, with a
copy for each Lender, an opinion, dated the Amendment Effective Date, of
Winston & Xxxxxx, special counsel to the U.S. Borrower, in form and
substance satisfactory to the General Administrative Agent.
5. Representations and Warranties. The Borrowers represent and
warrant that the representations and warranties made by the Borrowers in the
Loan Documents are true and correct in all material respects on and as of the
Amendment Effective Date, before and after giving effect to the effectiveness
of this Amendment, as if made on and as of the Amendment Effective Date, except
to the extent such representations and warranties expressly relate to an
earlier date.
6. Payment of Expenses. The Borrowers agree to pay or reimburse the
General Administrative Agent for all of its out-of-pocket costs and reasonable
expenses incurred in connection with this Amendment and any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the General Administrative Agent.
7. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement, the
Notes and the other Loan Documents are and shall remain in full force and
effect.
8. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Amendment signed by all the parties shall be lodged with
the U.S. Borrower and the General Administrative Agent. This Amendment may be
delivered by facsimile transmission of the relevant signature pages hereof.
9. Exiting Lenders. Each Lenders which after the Amendment Effective
Date no longer holds a Commitment (an "Exiting Lender") is executing this
Amendment solely for the purpose of acknowledging that its Commitment will
terminate on the Amendment Effective Date upon repayment in full of all amounts
owing to it under the Credit Agreement on the Amendment Effective Date. The
modifications to the Credit Agreement and the other Loan Documents, effected by
this Amendment are being approved by Lenders holding 100% of the Commitments
after giving effect to termination of the Commitments of the Lenders on the
Amendment Effective Date. On the Amendment Effective Date, the Borrowers shall
effect such borrowings and repayments among the Lenders (which need not be pro
rata among the Lenders) so that, after giving effect thereto, (a) the respective
principal amounts of the Canadian Revolving Credit Loans to the Canadian
Borrower held by the Canadian Lenders shall be pro rata according to their
respective Canadian Revolving Credit Commitment Percentages, as amended hereby,
(b) the respective principal amounts of Multicurrency Loans to any Borrower
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held by the Multicurrency Lenders shall be pro rata according to their
respective Multicurrency Commitment Percentages, as amended hereby and (c) the
Committed Outstandings Percentage of each U.S. Lender will equal (as nearly as
possible) its U.S. Revolving Credit Commitment Percentage, as amended hereby.
The Borrowers shall remain obligated to pay any amounts due pursuant to
subsection 10.11 of Credit Agreement in connection with such prepayments.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
XXXX CORPORATION
By: [SIG]
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Title:
XXXX CORPORATION CANADA LTD.
By: [SIG]
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Title:
XXXX CORPORATION SWEDEN AB
By:
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Title:
LEAR FRANCE SARL
By:
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Title:
XXXX CORPORATION GMBH & CO. KG
By:
------------------------
Title:
NS BETEILIGUNG GMBH
By:
------------------------
Title:
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SCHEDULE 1
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COMMITMENTS; ADDRESSES
A. U.S. Revolving Credit Commitment and Multicurrency Commitment Amounts (U.S.
Dollars)
U.S. REVOLVING CREDIT MULTICURRENCY
U.S. LENDER COMMITMENT COUNTERPART LENDER COMMITMENT
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ABN AMRO Bank N.V., Chicago
Branch $50,000,000 $35,000,000
The Asahi Bank, Ltd. $35,000,000
Banca Commerciale Italiana $15,000,000
Banca Nazionale del Lavoro
S.p.A., New York Branch $15,000,000
Bank Austria Aktiengesellschaft $20,000,000
Bank of America NT & SA $75,000,000 $35,000,000
The Bank of New York $50,000,000 $35,000,000
The Bank of Nova Scotia $75,000,000 The Bank of Nova Scotia
The Bank of Tokyo-Mitsubushi
Ltd., New York Branch $50,000,000
Bankers Trust Company $87,500,000
Banque Nationale de Paris $50,000,000 $30,000,000
Banque Paribas $35,000,000 $15,000,000
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U.S. REVOLVING CREDIT MULTICURRENCY
U.S. LENDER COMMITMENT COUNTERPART LENDER COMMITMENT
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CARIPLO Cassa di Risparmio delle
Provincie Lombarde SPA $15,000,000
Credit Agricole Indosuez $35,000,000 $10,000,000
The Chase Manhattan Bank $95,000,000 $85,000,000
Canadian Imperial
Bank of
CIBC, Inc. $50,000,000 Commerce
Citicorp USA, Inc. $87,500,000 $40,000,000
Comerica Bank $60,000,000 $10,000,000
Credito Italiano S.p.A. $15,000,000
Credit Lyonnais Chicago Branch $45,000,000 $10,000,000
CS First Boston Group, Inc. $25,000,000
The Dai-Ichi Kangyo Bank, Ltd.,
Chicago Branch $30,000,000
Den Danske Bank $25,000,000
DG Bank $25,000,000
Deutsche Bank AG $50,000,000
Dresdner Bank AG New York and Grand
Cayman Branches $35,000,000 $35,000,000
First American National Bank $15,000,000
BankBoston N.A. $35,000,000 $30,000,000
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U.S. REVOLVING CREDIT MULTICURRENCY
U.S. LENDER COMMITMENT COUNTERPART LENDER COMMITMENT
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NBD Bank $50,000,000 $35,000,000
Fifth Third Bank $20,000,000
First Union National
Bank of North Carolina $50,000,000 $20,000,000
Fleet National Bank $45,000,000
The Fuji Bank, Limited $35,000,000
Gulf International
Bank B.S.C. $15,000,000
The Industrial Bank of
Japan, Limited $50,000,000
Istituto Bancario Sao
Paolo Di Torino SpA $20,000,000
KeyBank National
Association $50,000,000
Kredietbank N.V. $25,000,000 $15,000,000
Xxxxxx Commercial
Paper Inc. $25,000,000
The Long-Term Credit
Bank of Japan, Ltd. $35,000,000
Michigan National Bank
of Detroit $20,000,000
Xxxxxx Guaranty Trust
Company of New York $25,000,000
National City Bank $25,000,000
NationsBank, N.A. $75,000,000 $35,000,000
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U.S. REVOLVING CREDIT MULTICURRENCY
U.S. LENDER COMMITMENT COUNTERPARTY LENDER COMMITMENT
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The Northern Trust Company $25,000,000
Royal Bank of Canada $35,000,000 Royal Bank of
Canada
The Sakura Bank, Ltd. $10,000,000
The Sanwa Bank, Limited,
Chicago Branch $50,000,000
Societe Generale $30,000,000 $ 10,000,000
The Sumitomo Bank, Chicago Branch $35,000,000
Suntrust Bank, Atlanta $30,000,000
Svenska Handelsbanken $20,000,000
The Toronto-Dominion Bank $50,000,000
Wachovia Bank $25,000,000
U.S. Bank National Association $25,000,000 $ 15,000,000
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TOTAL $21,100,000,000 $500,000,000
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B. Canadian Commitment Amounts (U.S. Dollars)
CANADIAN REVOLVING CREDIT
CANADIAN LENDER COMMITMENT COUNTERPART LENDER
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The Bank of Nova Scotia $20,000,000 The Bank of Nova
Scotia
Canadian Imperial Bank of $20,000,000 CIBC, Inc.
Commerce
Royal Bank of Canada $10,000,000 Royal Bank of Canada
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TOTAL $50,000,000
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