Exhibit 10(i)
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT (364-DAY)
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (364-DAY) (this "AMENDMENT"),
dated as of May 8, 2002, is entered into by and among XXXXXX CORPORATION, a
Delaware corporation (the "BORROWER"), the several financial institutions party
to the Credit Agreement defined below (each a "LENDER" and, collectively, the
"LENDERS") and SUNTRUST BANK, as administrative agent for itself and the other
Lenders (in such capacity, the "ADMINISTRATIVE AGENT").
RECITALS
A. The Borrower, each Lender and the Administrative Agent are parties
to that certain Credit Agreement (364-Day) dated as of May 10, 2001 (the "CREDIT
AGREEMENT") pursuant to which the Administrative Agent and the Lenders have
extended certain credit facilities to the Borrower.
B. The Borrower has previously requested, in accordance with SECTION
2.05 of the Credit Agreement, that the Lenders extend the current Maturity Date
under the Credit Agreement to the date that that is 364 days after the current
Maturity Date under the Credit Agreement, and the current Maturity Date under
the Credit Agreement will be so extended in accordance with, and subject to the
conditions specified in, SECTION 2.05 of the Credit Agreement.
C. The Borrower has requested that each Lender agree to certain
amendments to the Credit Agreement that would change the respective Commitments
of the Lenders under the Credit Agreement, as further described herein.
D. The Lenders are willing to amend the Credit Agreement subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The respective Commitments of
certain Lenders under the Credit Agreement shall be increased, and the
respective Commitments of certain Lenders under the Credit Agreement shall be
decreased, in each case, on a non-ratable basis, such that after giving effect
to all such increases and decreases, the respective Commitments of the Lenders
shall be as set forth in the amended and restated SCHEDULE 2.01 to the Credit
Agreement attached hereto as EXHIBIT A.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders as follows:
1.
(a) No Default or Event of Default has occurred and is
continuing.
(b) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary corporate and other
action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligation of
the Borrower, enforceable against it in accordance with its respective terms,
without defense, counterclaim or offset.
(c) All representations and warranties of the Borrower
contained in ARTICLE V of the Credit Agreement are true and correct as of the
Effective Date, except to the extent such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date.
(d) The Borrower is entering into this Amendment on the basis
of its own investigation and for its own reasons, without reliance upon the
Administrative Agent and the Lenders or any other Person.
(e) As of the Effective Date, there are no Loans outstanding
under the Credit Agreement.
4. EFFECTIVE DATE. This Amendment will become effective when each of
the conditions precedent set forth in this SECTION 4 has been satisfied (the
"EFFECTIVE DATE"):
(a) The Administrative Agent shall have received from each of
the Borrower and each Lender a duly executed original (or, if elected by the
Administrative Agent, an executed facsimile copy) counterpart to this Amendment.
(b) The Administrative Agent shall have received from the
Borrower a certificate executed by a Responsible Officer of the Borrower dated
as of the Effective Date and stating that all representations and warranties
contained in this Amendment are true and correct on and as of the Effective Date
as though made on and as of such date.
(c) The Administrative Agent shall have received, in form and
substance satisfactory to it, such additional approvals, consents, opinions,
documents and other information as the Administrative Agent may request.
For purposes of determining compliance with the conditions
specified in this SECTION 4, each Lender that has executed this Amendment and
delivered it to the Administrative Agent shall be deemed to have consented to,
approved or accepted, or to be satisfied with, each document or other matter
either sent, or made available for inspection, by the Administrative Agent to
such Lender for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Lender.
5. RESERVATION OF RIGHTS. The Borrower acknowledges and agrees that the
execution and delivery by the Administrative Agent and Lenders of this Amendment
shall not (a) be deemed to create a course of dealing or otherwise obligate the
Administrative Agent or the
2.
Lenders to execute similar amendments under the same or similar circumstances in
the future or (b) be deemed to create any implied waiver of any right or remedy
of the Administrative Agent or any Lender with respect to any term or provision
of any Loan Document.
6. MISCELLANEOUS.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment shall
be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Amendment.
(c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS
10.17 AND 10.18 OF THE CREDIT AGREEMENT RELATING TO GOVERNING LAW AND WAIVER OF
RIGHT TO TRIAL BY JURY, THE PROVISIONS OF WHICH ARE BY THIS REFERENCE HEREBY
INCORPORATED HEREIN IN FULL.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Administrative Agent of a facsimile transmitted document
purportedly bearing the signature of a Lender or the Borrower shall bind such
Lender or the Borrower, respectively, with the same force and effect as the
delivery of a hard copy original. Any failure by the Administrative Agent to
receive the hard copy executed original of such document shall not diminish the
binding effect of receipt of the facsimile transmitted executed original of such
document of the party whose hard copy page was not received by the
Administrative Agent.
(e) This Amendment, together with the Credit Agreement,
contains the entire and exclusive agreement of the parties hereto with reference
to the matters discussed herein and therein. This Amendment supersedes all prior
drafts and communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of SECTION 10.01 of the Credit
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Credit Agreement, respectively.
(g) The Borrower covenants to pay to or reimburse the
Administrative Agent and the Lenders, upon demand, for all out-of-pocket costs
and expenses incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
3.
(h) This Amendment shall constitute a "Loan Document" under
and as defined in the Credit Agreement.
(Remainder of page intentionally left blank; signature pages follow)
4.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
XXXXXX CORPORATION, as the Borrower
By: /s/ Xxxxxxx Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxx
-------------------------------
Title: Assistant Treasurer
------------------------------
(Signature Page to Amendment)
S-1
SUNTRUST BANK, as the Administrative
Agent and a Lender
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Vice President
------------------------------
(Signature Page to Amendment)
S-2
CITIBANK, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
(Signature Page to Amendment)
S-3
WACHOVIA BANK, N.A., as a Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
----------------------------------
Title: Director
---------------------------------
(Signature Page to Amendment)
S-4
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
----------------------------------
Title: Vice President
---------------------------------
(Signature Page to Amendment)
S-5
FLEET NATIONAL BANK, as a Lender
By: /s/ Irina Case
------------------------------------
Name: Irina Case
----------------------------------
Title: Vice President
---------------------------------
(Signature Page to Amendment)
S-6
INTESABCI, NEW YORK BRANCH, as a Lender
By: /s/ X. Xxxxxx /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: X. Xxxxxx Xxxxxxx Xxxxxxxxx
----------------------------------
Title: Vice President Vice President
---------------------------------
(Signature Page to Amendment)
S-7
REPUBLIC BANK, as a Lender
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President
---------------------------------
(Signature Page to Amendment)
S-8
THE BANK OF NEW YORK, as a Lender
By: /s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Name: Xxxxxx X. XxXxxxxxx
----------------------------------
Title: Assistant Vice President
---------------------------------
(Signature Page to Amendment)
S-9
STANDARD BANK LONDON LIMITED, as a
Lender
By: /s/ Xxxx Xxxx /s/ Xxxxxx Teatherton
-------------------------------------------------
Name: Xxxx Xxxx Xxxxxx Teatherton
-----------------------------------------------
Title: Assistant General Manager Manager
--------------------------------------------
(Signature Page to Amendment)
S-10
EXHIBIT A TO AMENDMENT
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------------------------------------------ ------------------------------------ --------------------------------------
Citibank, N.A. $25,000,000 17.699115044%
Wachovia Bank, N.A. $25,000,000 17.699115044%
SunTrust Bank $22,500,000 15.929203540%
Bank of America, N.A. $22,500,000 15.929203540%
Fleet National Bank $13,125,000 9.292035398%
IntesaBci, New York Branch $10,000,000 7.079646018%
Republic Bank $10,000,000 7.079646018%
The Bank of New York $7,500,000 5.309734513%
Standard Bank London Limited $5,625,000 3.982300885%
------------------------------------------ -------------------------- --------- ------------------------------ -------
Total $141,250,000 100.000000000%
(Exhibit A to Amendment)
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