AMENDMENT AND RESTATEMENT AGREEMENT
Exhibit 10.2
EXECUTION COPY
AMENDMENT AND RESTATEMENT AGREEMENT, dated as of May 22, 2007 (this “Agreement”),
among XXXX XXXXX XXXXXX CORPORATION, a Delaware corporation (the “Borrower”), POLO JP ACQUI
B.V., a private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) incorporated under the laws of the Netherlands with its corporate seat in
Amsterdam, the Netherlands (the “Term Borrower”), the lenders party hereto (the
“Lenders”), THE BANK OF NEW YORK, CITIBANK, N.A., BANK OF AMERICA, N.A. and WACHOVIA BANK
NATIONAL ASSOCIATION, as syndication Agents (each, in such capacity, a “Syndication
Agent”), SUMITOMO MITSUI BANKING CORPORATION and DEUTSCHE BANK SECURITIES, as Co-Agents (each,
in such capacity, a “Co-Agent”) and JPMORGAN CHASE BANK, N.A., as administrative agent
under the Credit Agreement, dated as of November 28, 2006 among the Borrower, the Lenders from time
to time party thereto and the Agents party thereto, as in effect on the date hereof (the
“Existing Credit Agreement”).
W I T N E S S E T H:
WHEREAS, in order to finance (i) a public tender offer (the “Tender Offer”) by PRL
Japan Kabushiki Kaisha, a Japanese subsidiary of the Borrower, to acquire the remaining
approximately 80% of the shares of Impact 21 Co., Ltd. (“Impact 21”) not held by the
Borrower and (ii) subject to the successful completion of the Tender Offer, a stock purchase by the
Borrower of the remaining 50% of the shares of Xxxx Xxxxx Xxxxxx Japan Corporation, the Borrower
and the Term Borrower have requested and the Required Lenders have agreed, upon the terms and
subject to the conditions set forth herein, that (i) the Existing Credit Agreement will be amended
and restated to read in its entirety as set forth in Exhibit A hereto and (ii) the Required
Lenders will make available to the Term Borrower a senior term loan (the “Term Loan
Facility”, the loans thereunder, “Term Loans”) in an aggregate amount of up to
¥20,500,000,000 pursuant to the Existing Credit;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Restated Credit Agreement referred to below or, if not
defined therein, in the Existing Credit Agreement.
SECTION 2. Amendment and Restatement of the Existing Credit Agreement. (a) On the
Restatement Effective Date, the Existing Credit Agreement is hereby amended and restated to read in
its entirety as set forth in Exhibit A hereto (the “Restated Credit Agreement”), and the
Administrative Agent is hereby directed by the Required Lenders to enter into such Loan Documents
and to take such other actions as may be required to give effect to the transactions contemplated
hereby. From and after the effectiveness of such amendment and restatement, the terms “Agreement”,
“herein”, “hereinafter, “hereto”, “hereof” and words of similar import, as used in the Restated
Credit Agreement, shall, unless the context otherwise requires, refer to the Existing Credit
Agreement as amended and restated in the form of the Restated Credit Agreement, and the term
“Credit Agreement”, as used in the other Loan Documents, shall mean the Restated Credit Agreement.
(b) The aggregate principal amount of all Revolving Loans and all Letters of Credit
outstanding under the Existing Credit Agreement on the Restatement Effective Date shall continue to
be
2
outstanding under the Restated Credit Agreement and the terms of the Restated Credit Agreement
will govern the rights of the Borrower, the Lenders and the Issuing Banks with respect thereto.
SECTION 3. Conditions to Effectiveness of Agreement. (a) This Agreement shall
become effective on the date (the “Restatement Effective Date”) on which all of the
following conditions precedent have been satisfied or waived:
(i) the Administrative Agent shall have received a counterpart of this Agreement,
executed and delivered by a duly authorized officer of each of (A) the Borrower, (B) the
Term Borrower, (C) each Lender which will make a Term Loan on the Restatement Effective
Date and (D) the Required Lenders; provided that any Lender may signify its
consent to this Agreement by instead executing a “lender addendum” in a form as provided
by the Administrative Agent;
(ii) the Administrative Agent shall have received an executed Guarantee from each
Guarantor, including the Borrower as a Guarantor of the Term Borrower’s obligations
under the Credit Agreement;
(iii) the Administrative Agent shall have received (i) a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Restatement
Effective Date) of (a) Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Borrower
and (b) Xxxxxx New York B.V.P.C., Dutch counsel to the Term Borrower and (ii) an
officer’s certificate from the Chief Financial Officer of the Borrower.
(iv) the Administrative Agent shall have received a certificate, dated the
Effective Date and signed by a Responsible Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (b) of Section 4.02 of
the Restated Credit Agreement;
(v) the Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Restatement Effective Date for which invoices have been
presented, including all out-of-pocket expenses (including fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan Party hereunder
or under any other Loan Document; and
(vi) the Administrative Agent shall have received such documents and certificates
as the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing (or, if applicable in a foreign jurisdiction,
enjoys the equivalent status under the laws of any jurisdiction of organization outside
the United States of America) of the Loan Parties, the authorization of the Agreement by
the Loan Parties and any other legal matters relating to the Loan Parties and the
Agreement , all in form and substance reasonably satisfactory to the Administrative
Agent and its counsel.
SECTION 4. Effect on the Loan Documents. (a) This Agreement shall not extinguish
the Loans outstanding under the Existing Credit Agreement. Nothing herein contained shall be
construed as a substitution or novation of the Loans outstanding under the Existing Credit
Agreement, which shall remain outstanding after the Restatement Effective Date as modified hereby.
Notwithstanding any provision of this Agreement, the provisions of Sections 2.13, 2.14, 2.15, and
9.03 of the Existing Credit Agreement as in effect immediately prior to the Restatement Effective
Date will continue to be effective as to all matters arising out of or in any way related to facts
or events existing or occurring prior to the Restatement Effective Date as to which such provisions
apply. Except as specifically amended herein, all
3
Loan Documents shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed. The Borrower hereby agrees, with respect to each Loan Document to which it
is a party, that all of its obligations, liabilities and indebtedness under such Loan Document
shall remain in full force and effect on a continuous basis after giving effect to this Agreement.
(b) The execution, delivery and effectiveness of this Agreement shall not operate as a waiver
of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan Documents.
(c) The Borrower and the other parties hereto acknowledge and agree that this Agreement shall
constitute a Loan Document.
(d) On and after the Restatement Effective Date (i) Schedule 2.01 (Commitments) of the Credit
Agreement shall be amended to reflect the Term Loan Commitments and (ii) Schedule 2.01 may be
amended with the consent of the Administrative Agent to reflect assignments of the Term Loan
Commitments.
SECTION 5. Expenses. The Borrower agrees to pay or reimburse the Administrative
Agent for all of its reasonable out-of-pocket costs and expenses incurred in connection with this
Agreement, any other documents prepared in connection herewith and the transaction contemplated
hereby, including, without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent (provided that syndication fees for each of the Term Loans and the Revolving
Loans other than counsel fees shall not exceed $10,000).
SECTION 6. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT 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. EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION
9.09 OF THE RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
SECTION 7. Amendments; Execution in Counterparts. This Agreement may not be amended
nor may any provision hereof be waived except pursuant to a writing signed by the Term Borrower,
the Borrower, the Administrative Agent and the Required Lenders. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same instrument.
[Remainder of page intentionally left blank.]
EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective proper and duly authorized officers as of the day and year first
above written.
| XXXX XXXXX XXXXXX CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| POLO JP ACQUI B.V. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| JPMORGAN CHASE BANK, N.A., as Administrative Agent | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
2
| [LENDER] | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
