AMENDMENT NO. 1 Dated as of February 21, 2008 to CREDIT AGREEMENT Dated as of June 19, 2007
Exhibit
10.1
EXECUTION
COPY
AMENDMENT
NO. 1
Dated as
of February 21, 2008
to
Dated as
of June 19, 2007
THIS
AMENDMENT NO. 1 (“Amendment”) is made
as of February 21, 2008 by and among Xxxxxxx Company (the “Company”), the
financial institutions listed on the signature pages hereof and JPMorgan Chase
Bank, National Association, as Administrative Agent (the “Administrative
Agent”), under that certain Credit Agreement dated as of June 19, 2007 by
and among the Borrower, the Lenders and the Administrative Agent (as amended,
supplemented or otherwise modified from time to time, the “Credit
Agreement”). Capitalized terms used herein and not otherwise
defined herein shall have the respective meanings given to them in the Credit
Agreement.
WHEREAS,
the Company has requested that the Lenders and the Administrative Agent agree to
certain amendments to the Credit Agreement;
WHEREAS,
the Lenders party hereto and the Administrative Agent have agreed to such
amendments on the terms and conditions set forth herein;
NOW,
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the
Lenders party hereto and the Administrative Agent have agreed to enter into this
Amendment.
1. Amendments to Credit
Agreement. Effective as of the date of satisfaction of the
conditions precedent set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
(a) The
definition of “Foreign
Currency Sublimit” set forth in Section 1.01 of the
Credit Agreement is amended to delete the reference to “$75,000,000” therein and
to substitute “at any time, an amount equal to the Aggregate Commitment at such
time” therefor.
(b) The
definition of “Foreign
Subsidiary Borrower Sublimit” set forth in Section 1.01 of the
Credit Agreement is amended to delete the reference to “$50,000,000” therein and
to substitute “$100,000,000” therefor.
(c) Clause
(c) of Section
6.01 of the Credit Agreement is amended and restated in its entirety as
follows:
(c) Indebtedness
of the Company to any Subsidiary and of any Subsidiary to the Company or any
other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a
Loan Party to any Loan Party shall be subject to the limitations set forth in
Section 6.04(c);
|
CH1
4130434v.5
|
(d) Clause
(h) of Section
6.01 of the Credit Agreement is amended and restated in its entirety as
follows:
(h) Indebtedness
of Foreign Subsidiaries in an aggregate principal amount not exceeding
$15,000,000 at any time outstanding;
(e) Clause
(c) of Section
6.04 of the Credit Agreement is amended and restated in its entirety as
follows:
(c) investments,
loans or advances made by the Company in or to any Subsidiary and made by any
Subsidiary to the Company or any other Subsidiary (provided that not more than
$50,000,000 in investments, loans or advances or capital contributions may be
made and remain outstanding, during the term of this Agreement, by any Loan
Party to a Subsidiary which is not a Loan Party);
(f) Each
reference to “Secured Obligations” set forth in the Credit Agreement is amended
to instead be a reference to “Obligations”.
2. Conditions of
Effectiveness. The effectiveness of this Amendment is subject
to the conditions precedent that (a) the Administrative Agent shall have
received counterparts of this Amendment duly executed by the Company, the
Required Lenders and the Administrative Agent and the Consent and Reaffirmation
attached hereto duly executed by the Subsidiary Guarantors, (b) the Company
shall have paid to the Administrative Agent, for the account of each Lender
which delivers its executed signature page hereto by such time as is requested
by the Administrative Agent, an amendment fee in an amount equal to $2,500 for
each such Lender and (c) the Company shall have paid all fees and expenses of
the Administrative Agent and its affiliates (including, to the extent invoiced,
reasonable attorneys’ fees and expenses) in connection with this Amendment and
the other Loan Documents.
3. Representations and
Warranties of the Company. The Company hereby represents and
warrants as follows:
(a) This
Amendment and the Credit Agreement, as amended hereby, constitute legal, valid
and binding obligations of the Company and are enforceable against the Company
in accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
(b) As of the
date hereof and giving effect to the terms of this Amendment, (i) no Default
shall have occurred and be continuing and (ii) the representations and
warranties of the Company set forth in the Credit Agreement, as amended hereby,
are true and correct as of the date hereof.
4. Reference to and Effect on
the Credit Agreement.
(a) Upon the
effectiveness hereof, each reference to the Credit Agreement in the Credit
Agreement or any other Loan Document shall mean and be a reference to the Credit
Agreement as amended hereby.
(b) Except as
specifically amended above, the Credit Agreement and all other documents,
instruments and agreements executed and/or delivered in connection therewith
shall remain in full force and effect and are hereby ratified and
confirmed.
2
(c) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Administrative Agent or the Lenders,
nor constitute a waiver of any provision of the Credit Agreement or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
5. Governing
Law. This Amendment shall be construed in accordance with and
governed by the law of the State of New York.
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
purpose.
7. Counterparts. This
Amendment may be executed by one or more of the parties hereto on any number of
separate counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. Signatures
delivered by facsimile or PDF shall have the same force and effect as manual
signatures delivered in person.
[Signature
Pages Follow]
3
IN
WITNESS WHEREOF, this Amendment has been duly executed as of the day and year
first above written.
XXXXXXX
COMPANY,
as the
Company
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
Signature
Page to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, individually as a Lender, as Swingline Lender,
as Issuing Bank and as Administrative Agent
By:_____________________________________
Name:
Title:
Signature
Page to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
BANK OF
AMERICA, N.A., individually as a Lender and as Co-Syndication Agent
By:_____________________________________
Name:
Title:
Signature
Page to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
BMO
CAPITAL MARKETS FINANCING, INC., individually as a Lender and as
Co-Documentation Agent
By:_____________________________________
Name:
Title:
Signature
Page to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
U.S. BANK
NATIONAL ASSOCIATION, individually as a Lender and as Co-Documentation
Agent
By:_____________________________________
Name:
Title:
Signature
Page to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
as a
Lender
By:_____________________________________
Name:
Title:
Signature
Page to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
CONSENT
AND REAFFIRMATION
Each of
the undersigned hereby acknowledges receipt of a copy of the foregoing Amendment
No. 1 to the Credit Agreement dated as of June 19, 2007 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
“Credit
Agreement”) by and among Xxxxxxx Company (the “Company”), the
Foreign Subsidiary Borrowers from time to time party thereto (together with the
Company, the “Borrowers”), the
financial institutions from time to time party thereto (the “Lenders”) and
JPMorgan Chase Bank, National Association, as Administrative Agent (the “Administrative
Agent”), which Amendment No. 1 is dated as of February 21, 2008 (the
“Amendment”). Capitalized
terms used in this Consent and Reaffirmation and not defined herein shall have
the meanings given to them in the Credit Agreement. Without in
any way establishing a course of dealing by the Administrative Agent or any
Lender, each of the undersigned consents to the Amendment and reaffirms the
terms and conditions of the Subsidiary Guaranty and any other Loan Document
executed by it and acknowledges and agrees that such agreements and each and
every such Loan Document executed by the undersigned in connection with the
Credit Agreement remains in full force and effect and is hereby reaffirmed,
ratified and confirmed. All references to the Credit Agreement
contained in the above-referenced documents shall be a reference to the Credit
Agreement as so modified by the Amendment and as the same may from time to time
hereafter be amended, modified or restated.
Dated: February
21, 2008
[Signature
Page Follows]
|
XXXXXXX
SALES AND SERVICE COMPANY
By:___________________________________
Name:
Title:
|
Signature
Page to Consent and Reaffirmation to Amendment No. 1
Xxxxxxx
Company
Credit
Agreement dated as of June 19, 2007
