1
Exhibit
10(iii)
AMENDMENT NO. 1 TO
364-DAY CREDIT AGREEMENT
------------------------
THIS AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT (this "Amendment")
dated as of October 21, 1997, by and among XXXXXX CORPORATION, a Delaware
corporation (the "Borrower"), each of the banks and other lending institutions
listed on the signature pages hereof (the "Lenders"), THE CHASE MANHATTAN BANK,
as administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), SUNTRUST BANK, ATLANTA, as documentation agent for the Lenders (in such
capacity, the "Documentation Agent") and BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Managing Agent for the Lenders (in such capacity, a
"Managing Agent" and collectively with the Administrative Agent and
Documentation Agent, the "Managing Agents");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower, the Lenders, the Managing Agents, the Syndication
Agent and the Co-Agents are parties to a certain 364-Day Credit Agreement dated
as of November 6, 1996 (the "Credit Agreement"; defined terms used herein
without definition shall have the meanings ascribed to such terms in the Credit
Agreement);
WHEREAS, Borrower has requested, and the Lenders have agreed, that the
Credit Agreement be amended to (i) extend the term thereof for 364 days, (ii)
restate the amount of the commitments of the Lenders and (iii) make certain
modifications to the covenants and events of default set forth therein and the
related definitions, all as more specifically set forth below;
WHEREAS, the parties wish to amend the Credit Agreement to reflect this
agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction
of the conditions precedent set forth in SECTION 2 hereof, and effective as of
the Effective Date (as hereinafter defined), the Credit Agreement is hereby
amended as follows:
1. Section 1.1 of the Credit Agreement is hereby amended by adding
the following new defined terms in the appropriate alphabetical order, as
follows:
"Hostile Acquisition" means any acquisition which has not been approved
in advance by the board of directors of the target company.
"Non-Recourse Debt" means Debt: (i) as to which neither the Borrower
nor any of its Subsidiaries (a) provides credit support of any kind
(including any undertaking,
2
agreement or instrument that would constitute Debt) except to the extent of
any collateral pledged therefor, (b) is directly or indirectly liable (as a
guarantor or otherwise) except to the extent of any collateral pledged
therefor or (c) constitutes the lender, and (ii) as to which the lender's
sole remedy for a default thereunder is foreclosure upon specific assets of
the Borrower or its Subsidiaries pledged as security therefor, with no
liability on the part of the Borrower or any of its Subsidiaries for any
deficiency thereafter.
2. Section 1.1 of the Credit Agreement is hereby further amended by
deleting the existing definitions of "Commitment" and "Maturity Date" and
substituting the following in lieu thereof:
"Commitment" means, with respect to any Lender, the amount set
opposite its name on Schedule 1.1a attached hereto, or if such Lender has
entered into any Assignment and Acceptance or is an Augmenting Lender, the
amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 8.5(c), as such Commitment may be
extended pursuant to Section 2.13, reduced pursuant to Section 2.12 or
Section 8.5(a) or increased pursuant to Section 2.14 or Section 8.5(a).
"Maturity Date" means the earlier of (a) October 20, 1998 or, if
extended as described in Section 2.13, then the date as so extended, and
(b) the date of termination in whole of the Commitments pursuant to Section
2.12 or Section 6.1.
3. Section 4.1(g) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and substituting the following in lieu
thereof:
"(g) The Borrower is not engaged in the business of extending credit
or in the business of purchasing or carrying Margin Stock, and the
borrowings hereunder will not be used for the purpose of purchasing or
carrying Margin Stock in a manner which (x) would violate or result in a
violation of Regulation G, T, U or X, or (y) would constitute a Hostile
Acquisition involving Margin Stock."
4. Section 5.2(b) of the Credit Agreement is hereby amended by
deleting the first clause of subsection (b) thereof in its entirety and
substituting the following in lieu thereof:
"(b) LIENS. Create, assume, incur or suffer to exist, or allow any
Material Subsidiary to create, assume, incur or suffer to exist, except by
a Material Subsidiary in favor of the Borrower or another Material
Subsidiary, any Lien on any of its property or assets or any shares of
capital stock or indebtedness of any Material Subsidiary, whether now owned
or hereafter acquired, or assigned, except:"
5. Section 5.2(b) of the Credit Agreement is hereby further amended
by (a) deleting the "and" in the eleventh line of subsection (xii), (b)
renumbering subsection "(xiii)" as
2
3
"(xv)" and (c) adding the following subsections (xiii) and (xiv) immediately
following subsection (xii):
"(xiii) any Lien securing Debt of a Subsidiary outstanding at the time
it became a Subsidiary (provided that such Lien was not
created in connection with or in contemplation of the
acquisition of such Subsidiary), and any other Lien created in
connection with the refunding, renewal or extension of such
Debt which is limited to the same property, provided that the
amount of the Debt secured by such refunding, renewal or
extended Lien does not exceed the amount of Debt secured by
the Lien to be refunded, renewed or extended and outstanding
at the time of such refunding, renewal or extension;
(xiv) any Lien created in connection with the refunding, renewal or
extension of any obligations, indebtedness or claims secured
by a Lien mentioned in the foregoing clauses (iii), (iv), (v)
and (xii) which is limited to the same property; provided that
the aggregate amount of the Debt or claims secured by such
refunding, renewal or extended Lien does not exceed the
aggregate amount thereof secured by the Lien so refunded,
renewed or extended and outstanding at the time of such
refunding, renewal or extension; and"
6. Section 5.2(b) of the Credit Agreement is hereby further
amended by deleting the reference to "clause (xiii)" in the second line of the
newly renumbered clause (xv) and replacing the same with a reference to "clause
(xv)".
7. Section 5.2(c) of the Credit Agreement is hereby amended by
deleting the reference to "Section 5.2(b)(xiii)" in the ninth and tenth lines of
such Section 5.2(c) and replacing the same with a reference to "Section
5.2(b)(xv)".
8. Section 6.1(e) of the Credit Agreement is hereby amended by
deleting such subsection in its entirety and substituting the following in lieu
thereof
"(e) The Borrower or any of its Subsidiaries shall (i) fail to
make any payment on account of any Debt (excluding Debt evidenced by
the Notes) or Hedging Arrangement having an outstanding principal
amount (or notional amount in the case of a Hedging Arrangement) of
$25,000,000 or more (or, in the case of Non-Recourse Debt, of
$50,000,000 or more) of the Borrower or such Subsidiary (as the case
may be), or any interest or premium thereon, when due (whether at
scheduled maturity, upon required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to
such Debt or Hedging Arrangement, or (ii) fail to perform or observe
any term, covenant, condition on its part to be
3
4
performed or observed under any agreement or instrument relating to any
such Debt (but not including Hedging Arrangements) when required to be
performed or observed, and such failure shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such failure to perform or observe is to
accelerate, or to permit the acceleration of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment and other than as a consequence of the sale, pledge or other
disposition by the Borrower of Margin Stock), prior to the stated
maturity thereof; or"
9. Section 8.5(a)(iii) of the Credit Agreement is hereby amended by
adding the following parenthetical immediately following the first reference to
$5,000,000 in such clause (iii): "(except in the case of an assignment to an
existing Lender in which event the amount of the Commitment subject to such
assignment shall not be less than $2,500,000)".
10. The Credit Agreement is hereby further amended by the addition of
Schedule 1.1A in the form attached hereto.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective as of October 21, 1997 (the "Effective Date") on the first day when
all of the foregoing shall have occurred:
1. This Amendment shall have been executed and delivered by Borrower
and the Lenders to the Managing Agents; and
2. The Borrower shall have delivered to the Administrative Agent
evidence of its good standing in the States of Delaware and Florida.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower,
without limiting the representations and warranties provided in the Credit
Agreement, represents and warrants as follows:
1. The execution, delivery and performance by Borrower of this
Amendment are within Borrower's corporate powers, have been duly authorized by
all necessary corporate action and do not contravene (i) Borrower's charter or
by-laws, (ii) applicable law or (iii) any material contractual restriction
binding on or affecting the Borrower.
2. The Agreement as amended by this Amendment constitutes the legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
3. No Default or Event of Default has occurred and is continuing as
of the
4
5
Effective Date.
SECTION 4. SURVIVAL. Each of the foregoing representations and
warranties shall be made at and as of the Effective Date. Each of the foregoing
representations and warranties shall constitute a representation and warranty of
Borrower under the Credit Agreement, and it shall be an Event of Default if any
such representation and warranty shall prove to have been incorrect or false in
any material respect at the time when made. Each of the representations and
warranties made under the Credit Agreement (including those made herein) shall
survive and not be waived by the execution and delivery of this Amendment or any
investigation by the Lenders or the Managing Agents or the Co-Agents.
SECTION 5. NO WAIVER, ETC. Borrower hereby agrees that nothing herein
shall constitute a waiver by the Lenders of any Default or Event of Default,
whether known or unknown, which may exist under the Credit Agreement. Borrower
hereby further agrees that no action, inaction or agreement by the Lenders,
including without limitation, any indulgence, waiver, consent or agreement
altering the provisions of the Credit Agreement which may have occurred with
respect to the non-payment of any obligation during the terms of the Credit
Agreement or any portion thereof, or any other matter relating to the Credit
Agreement, shall require or imply any future indulgence, waiver, or agreement by
the Lenders.
SECTION 6. RATIFICATION OF CREDIT AGREEMENT. Except as expressly
amended herein, all terms, covenants and conditions of the Credit Agreement and
the Notes shall remain in full force and effect, and the parties hereto do
expressly ratify and confirm the Credit Agreement as amended herein. All
references to the Credit Agreement (whether as "this Agreement" or otherwise)
shall after the Effective Date be deemed to refer to the Credit Agreement as
amended hereby.
SECTION 7. BINDING NATURE. This Amendment shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, successors,
successors-in-title, and assigns.
SECTION 8. COSTS, EXPENSES AND TAXES. Borrower agrees to pay on demand
the reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent in connection with the preparation, execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder, and
with respect to advising the Administrative Agent as to its rights and
responsibilities hereunder and thereunder. In addition, Borrower shall pay any
and all stamp and other taxes payable or determined to be payable in connection
with the execution and delivery of this Amendment and the other instruments and
documents to be delivered hereunder, and agrees to save the Managing Agents, the
Co-Agents and each Lender harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes.
SECTION 9. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
5
6
SECTION 10. ENTIRE UNDERSTANDING. This Amendment sets forth the entire
understanding of the parties with respect to the matters set forth herein and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
SECTION 11. COUNTERPARTS. This Amendment may be executed in any number
of counterparts and by different parties hereto in separate counterparts and may
be delivered by telecopier. Each counterpart so executed and delivered shall be
deemed an original and all of which taken together shall constitute but one and
the same instrument.
[Signatures Set Forth on Next Page]
6
7
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
through their authorized officers as of the date first above written.
BORROWER:
XXXXXX CORPORATION
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxxx
Vice President-Treasurer
MANAGING AGENTS:
THE CHASE MANHATTAN BANK,
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx III
Title: Managing Director
SUNTRUST BANK, ATLANTA,
AS DOCUMENTATION AGENT AND MANAGING AGENT
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
By: /s/ X. X. XXXX
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
8
LENDERS:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxx X. Xxxxx III
--------------------------------------
Name: Xxxx X. Xxxxx III
Title: Managing Director
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
ABN AMRO BANK N.V., ATLANTA AGENCY
By: /s/ Xxxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
9
MELLON BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
NATIONAL CITY BANK
By: /s/ Xxxxx X. Xxxxxx, Xx.
--------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
ROYAL BANK OF CANADA
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Manager
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED
By: /s/ X. Xxxxxxxx
--------------------------------------
Name: X. Xxxxxxxx
Title: Vice President
BANCA COMMERCIALE ITALIANA -
NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
By: /s/ T. Gallonetto
--------------------------------------
Name: T. Gallonetto
Title: Assistant Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
00
XXXXX XXXXXXXXX XXX XXXXXX
X.X.X., XXX XXXX BRANCH
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: First Vice President
By: /s/ Xxxxxx X. Medida
--------------------------------------
Name: Xxxxxx X. Medida
Title: Vice President
BANK OF MONTREAL
By: /s/ X. X. XxXxxxxx
--------------------------------------
Name: X. X. XxXxxxxx
Title: Director
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/ X. Xxxxxxx
--------------------------------------
Name: X. Xxxxxxx
Title: Sr. VP & Manager
BANQUE NATIONALE DE PARIS,
HOUSTON AGENCY
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Name: Xxxx X. Xxxxx
Xxxxx: Vice President
CITIBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
11
COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
CORESTATES BANK, N.A.
By: /s/ Xxxxx X. Leaf
--------------------------------------
Name: Xxxxx X. Leaf
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Joint General Manager
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Senior Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
00
XXX XXXX XXXX XXXXXXX,
XXX XXXX BRANCH
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
GULF INTERNATIONAL BANK B.S.C.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
By: /s/ Abdel-Fattah Tahoun
--------------------------------------
Name: Abdel-Fattah Tahoun
Title: Senior Vice President
MARINE MIDLAND BANK
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE SAKURA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: VP & Senior Manager
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SPA
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
13
THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ X. X. Xxxxxx
--------------------------------------
Name: X. X. Xxxxxx
Title: VP & Senior Manager
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxxxxx Xxxxxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Joint General Manager
THE TOKAI BANK LIMITED,
NEW YORK BRANCH
By: /s/ Xxxxx Xxx
--------------------------------------
Name: Xxxxx Xxx
Title: Assistant General Manager
THE YASUDA TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By: /s/ Xxxx Xxxxxxxxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxxxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO AMENDMENT NO. 1
TO 364-DAY CREDIT AGREEMENT]
14
SCHEDULE 1.1A
-------------
Lender Commitment
------ ----------
Bank of America National Trust
and Savings Association $19,850,000.00
The Chase Manhattan Bank $19,850,000.00
SunTrust Bank, Atlanta $19,850,000.00
ABN Amro Bank N.V., Atlanta Agency $19,850,000.00
Wachovia Bank, National Association $19,850,000.00
Mellon Bank, N.A. $12,000,000.00
Royal Bank of Canada $12,000,000.00
National City Bank $11,250,000.00
Australia and New Zealand Banking
Group Limited $8,000,000.00
Banca Commerciale Italiana -
New York Branch $8,000,000.00
Banca Nazionale Del Lavoro
S.P.A., New York Branch $8,000,000.00
Bank of Montreal $8,000,000.00
Bank of Tokyo-Mitsubishi Trust Company $8,000,000.00
Banque Nationale De Paris,
Houston Agency $8,000,000.00
Citibank, N.A. $8,000,000.00
Commerzbank Aktiengesellschaft,
Atlanta Agency $8,000,000.00
15
SCHEDULE 1.1A (cont'd)
Lender Commitment
------ ----------
The Dai-Ichi Kangyo Bank, Limited,
Atlanta Agency $8,000,000.00
First Union National Bank $8,000,000.00
Fleet National Bank $8,000,000.00
The Fuji Bank Limited, New York Branch $8,000,000.00
Gulf International Bank B.S.C. $8,000,000.00
The Sanwa Bank, Limited, Atlanta Agency $8,000,000.00
The Sumitomo Bank, Limited $8,000,000.00
Marine Midland Bank $8,000,000.00
Corestates Bank, N.A. $7,500,000.00
The Sakura Bank, Limited, Atlanta Agency $7,500,000.00
Istituto Bancario San Paolo Di Torino SPA $7,500,000.00
The Tokai Bank Limited, New York Branch $7,500,000.00
The Yasuda Trust & Banking Co.,
Ltd., New York Branch $7,500,000.00
-------------
TOTAL: $300,000,000.00
