EXHIBIT 10.1
FIRST AMENDMENT, dated as of February 10, 2006 (this
"Amendment"), to the Credit Agreement, dated as of April 19, 2005 (the "Credit
Agreement"), among Xxxxx Xxxxxxxx Corporation, a British Virgin Islands
corporation ("Holdings"), Xxxxx Xxxxxxxx U.S.A., Inc., a Delaware corporation
(the "Borrower"), the several banks and other financial institutions or entities
from time to time parties thereto (the "Lenders"), the Syndication Agent and
Documentation Agent named therein and JPMorgan Chase Bank, N.A., as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S S E T H :
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WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend the
Credit Agreement in the manner provided for herein; and
WHEREAS, the Administrative Agent and the Lenders are willing
to agree to the requested amendment, on the terms and conditions provided for
herein;
NOW, THEREFORE, in consideration of the premises contained
herein, the parties hereto agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which
are defined in the Credit Agreement and used herein are so used as so defined.
2. AMENDMENT TO DEFINITION OF "REVOLVING TERMINATION DATE".
The definition of "Revolving Termination Date" contained in Section 1.1 of the
Credit Agreement is hereby amended by changing the date set forth therein to
July 31, 2006.
3. REPRESENTATIONS AND WARRANTIES. On and as of the date
hereof after giving effect hereto, Holdings and the Borrower hereby confirm,
reaffirm and restate the representations and warranties set forth in Section 3
of the Credit Agreement, except to the extent that such representations and
warranties expressly relate to a specific earlier date in which case Holdings
and the Borrower hereby confirm, reaffirm and restate such representations and
warranties as of such earlier date.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date on which (i) the Administrative Agent shall have
received counterparts to this Amendment duly executed by Holdings, the Borrower
and the Lenders and (ii) the Borrower shall have reduced the Total Revolving
Commitments to no more than $100,000,000 in accordance with Section 2.10 of the
Credit Agreement.
5. CONTINUING EFFECT; NO OTHER CHANGES. Except as expressly
provided herein, all of the terms and provisions of the Credit Agreement are and
shall remain in full force and effect. This Amendment shall not constitute a
waiver, amendment or modification of any other provision of the Credit Agreement
not expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the Credit Parties.
6. EXPENSES. Holdings and the Borrower agree to pay and
reimburse the Administrative Agent for all its reasonable costs and
out-of-pocket expenses incurred in connection with the preparation and delivery
of this Amendment, including, without limitation, the reasonable fees and
disbursements of counsel to the Administrative Agent.
7. COUNTERPARTS. This Amendment may be executed in any number
of counterparts by the parties hereto (including by facsimile transmission),
each of which counterparts when so executed shall be an original, but all the
counterparts shall together constitute one and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
XXXXX XXXXXXXX CORPORATION
By: /s/ Xxxxxx Scirocco
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Name: Xxxxxx Scirocco
Title: EVP & CFO
XXXXX XXXXXXXX U.S.A., INC.
By: /s/ Xxxxxx Scirocco
--------------------------------
Name: Xxxxxx Scirocco
Title: EVP & CFO
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as a Lender
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
CITICORP USA, INC.
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Director
PNC BANK, N.A.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
