EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Second Amendment to Credit and Security Agreement (this
"Amendment"), made as of June 21, 2002 among XXXXXX & XXXXX CORPORATION, as
Borrower, (the "Borrower"), the various financial institutions whose names
appear as lenders on the signature pages to the Credit Agreement (as defined
below) (together with any other financial institution which subsequently becomes
a lender under the Credit Agreement, the "Lenders"), and WACHOVIA BANK, N.A., as
Agent (the "Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders, and the Agent are parties to that
certain Credit and Security Agreement, dated as of November 15, 2001, as amended
by that certain First Amendment to Credit and Security Agreement and Agreement
to Release, dated as of March 25, 2002 (as further amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
and
WHEREAS, the Borrower has determined that it is entitled to a federal
income tax refund in the approximate amount of $19,000,000 and in order to
obtain such refund prior to the conclusion of a pending IRS audit, the Borrower
is required to provide either (i) a demand bond, backed by an irrevocable
standby letter of credit, or (ii) an irrevocable standby letter of credit for
the benefit of the United States Treasury (either such letter of credit, the
"Tax Refund Letter of Credit"); and
WHEREAS, Wachovia, individually and not pursuant to the terms of the
Credit Agreement, has agreed to issue the Tax Refund Letter of Credit and in
connection therewith the Borrower has requested certain amendments to the Credit
Agreement, and the Required Lenders and the 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 parties agree
that all capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, and
further agree as follows:
1. Amendments to Credit Agreement. Subject to the fulfillment of the
conditions precedent to the effectiveness of this Amendment which are set forth
below, the Credit Agreement shall be amended as follows:
(a) Article 1 of the Credit Agreement, Definitions, is hereby
amended by adding the following definition for "Tax Refund Letter of Credit,"
with such definition to be inserted in its proper alphabetical order:
-1-
""Tax Refund Letter of Credit" means that certain irrevocable
standby letter of credit in the face amount of approximately
$19,000,000, issued by Wachovia individually and not pursuant
to the terms of this Agreement, for the benefit of the
Borrower, in connection with the Borrower's request for
payment of a certain federal income tax refund; the Tax Refund
Letter of Credit shall not constitute a "Letter of Credit" as
defined in this Agreement."
(b) Section 5.15 of the Credit Agreement, No Additional
Subsidiaries, is hereby amended by deleting the existing first sentence of
Section 5.15 and substituting in lieu thereof, the following:
Neither the Borrower nor any of the Subsidiary Guarantors
shall hereafter create or acquire any Domestic Subsidiary or
divest itself of any material assets by transferring them to
any Subsidiary, except for (i) the transfer of certain
Accounts Receivable Collateral to the Special Purpose
Subsidiary pursuant to the Securitization Documents and (ii)
transfers by Xxxxxx & Xxxxx International, Inc. of its
interests in Subsidiaries which are not Domestic Subsidiaries.
(c) Section 5.18 of the Credit Agreement, Permitted Liens, is
hereby amended by adding a new subsection (p) as follows:
"(p) a Lien in favor of Wachovia on cash collateral in an
amount equal to 105% of the face amount of the Tax Refund
Letter of Credit"
(d) Section 5.20 of the Credit Agreement, Permitted Debt, is
hereby amended by adding a new subsection (p) as follows:
"(p) Debt with respect to reimbursement obligations for the
Tax Refund Letter of Credit"
(e) There shall be added a new subsection (c) to Section 10.05
of the Credit Agreement, Setoff; Sharing of Setoffs, as follows:
"(c) Notwithstanding anything to the contrary contained in
this Agreement, including without limitation, the provisions
of Sections 2.11, 10.05(a), and 10.05(b) hereof, the cash
collateral held by Wachovia, individually and not as Agent, to
secure the Borrower's reimbursement obligations with respect
to the Tax Refund Letter of Credit shall be applied first to
repay all such reimbursement obligations to Wachovia until
such reimbursement obligations are paid in full.
-2-
2. No Waiver. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided above, operate as a waiver of
any right, power or remedy of the Agent or the Lenders under the Credit
Agreement or any of the other Credit Documents, nor constitute a waiver of any
provision of the Credit Agreement or any of the other Credit Documents. Except
for the amendments expressly set forth above, the text of the Credit Agreement
and all other Credit Documents shall remain unchanged and in full force and
effect and the Borrower hereby ratifies and confirms its obligations thereunder.
This Amendment shall not constitute a modification of the Credit Agreement or a
course of dealing with the Agent or the Lenders at variance with the Credit
Agreement such as to require further notice by the Agent or the Lenders to
require strict compliance with the terms of the Credit Agreement and the other
Credit Documents in the future. Nothing in this Amendment is intended, or shall
be construed, to constitute a novation or an accord and satisfaction of any of
the Obligations or to modify, affect or impair the perfection or continuity of
the Agent's and the Lenders' security interests in, security titles to, or other
Liens on, any Collateral for the Obligations, other than as expressly set forth
herein.
3. Conditions of Effectiveness. This Amendment shall become effective
as of the date hereof when, and only when, the Agent, on behalf of itself and
the Lenders, shall have received, in form and substance reasonably satisfactory
to it:
(a) duly executed counterparts of this Amendment; and
(b) such other information, documents, instruments or
approvals as the Agent may require, in form and substance reasonably
satisfactory to Agent.
4. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Tennessee;
(b) The execution, delivery and performance by the Borrower of
this Amendment and the Credit Documents, as amended hereby, are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Borrower's organizational
documents, (ii) law; or (iii) or any contractual restriction binding on or
affecting the Borrower;
(c) This Amendment and each of the other Credit Documents, as
amended hereby, constitute legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
provided that the enforceability hereof and thereof is subject in each case to
general principles of equity and to bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally; and
-3-
(d) No Default or Event of Default, under the Credit Agreement
as amended hereby is existing or would be caused by the issuance of the Tax
Refund Letter of Credit or the providing of cash collateral therefor.
5. Reference to and Effect on the Credit Documents. Upon the
effectiveness of this Amendment, on and after the date hereof each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Credit
Documents to the "Credit Agreement," "thereunder," "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby.
6. Costs, Expenses and Taxes. The Borrower agrees to pay on demand all
reasonable costs and expenses in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent as to its
rights and responsibilities hereunder and thereunder.
7. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
8. Credit Document. This Amendment shall be deemed to be a Credit
Document for all purposes.
9. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, each of which shall be
deemed an original and all of which, taken together, shall be deemed to
constitute one and the same instrument. Delivery of an executed counterpart of
this Amendment by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof and shall be deemed to be a writing for all
purposes.
[remainder of page intentionally left blank]
-4-
IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to execute and deliver
this Amendment as of the day and year first written above.
XXXXXX & XXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: 000-000-0000
WACHOVIA BANK, N.A.,
as Agent and as a Lender
By: /s/ W. Xxxxxx Xxxxxx
-----------------------------------
Name: W. Xxxxxx Xxxxxx
Title: Director
Lending Office
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Asset Based Lending
Facsimile: 000-000-0000
Second Amendment to Credit and Security Agreement
FLEET CAPITAL CORPORATION,
as a Lender
By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
Lending Office
Fleet Capital Corporation
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxx,
Vice President
Facsimile: 000-000-0000
SIEMENS FINANCIAL SERVICES, INC.
as a Lender
By: /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title: Vice President - Credit
---------------------------------
Lending Office
Siemens Financial Services, Inc.
000 Xxxxxxxx Xxxxxxxxx Xxxx.
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000
Second Amendment to Credit and Security Agreement
CIBC, INC.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxxxx
----------------------------------
Title: Executive Director
---------------------------------
Lending Office
CIBC, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Executive Director
Facsimile: 000-000-0000
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Xxxxx XxXxxx
--------------------------------------------
Name: Xxxxx XxXxxx
----------------------------------
Title: Second Vice President
---------------------------------
Lending Office
The Northern Trust Company
00 X. XxXxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. XxXxxx, Second
Vice President
Facsimile: 000-000-0000
Second Amendment to Credit and Security Agreement
KBC BANK N.V.,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx/Xxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx/Xxxx Xxxxxx
------------------------------------------
Title: First Vice President/Vice President
-----------------------------------------
Lending Office
KBC Bank N.V.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Vice President
Facsimile: 000-000-0000
Second Amendment to Credit and Security Agreement
