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Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as of
June 4, 1998, is by and among Xxxxxx Industries, Inc., a Delaware corporation
(the "Borrower"), Bank One, Texas, NA ("Bank One"), Chase Bank of Texas,
National Association (f/k/a Texas Commerce Bank National Association) ("Chase"),
CIBC Inc., Credit Lyonnais New York Branch, and the other lenders from time to
time parties hereto (each a "Lender" and collectively, the "Lenders"), Bank One,
as administrative agent for the Lenders (in such capacity, the "Agent") and
Chase, as co-agent for the Lenders (in such capacity, the "Co-Agent").
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Agent and the Co-Agent have
entered into that certain Credit Agreement dated as of November 19, 1997, as
amended by that certain letter agreement dated March 3, 1998 (the "Credit
Agreement"), pursuant to which the Lenders have made and agreed to make Loans to
the Borrower and issued and agreed to issue Letters of Credit for the account of
the Borrower; and
WHEREAS, the Borrower, the Lenders, the Agent and the Co-Agent desire
to further amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Borrower, the Lenders, the Agent and the
Co-Agent hereby agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
(a) Section 6.13(i) is hereby amended by adding the
clause ", any Liens securing Indebtedness permitted
by Section 6.14(f) on assets of any such foreign
Subsidiary incurring any such Indebtedness" after
"Section 6.14(i)" in the second line thereof.
(b) Section 6.14(f) is hereby deleted in its entirety and
the following inserted in its place:
"(f) Indebtedness of any foreign Subsidiaries of
the Borrower not otherwise permitted by this
Section 6.14 not to exceed $15,000,000
(excluding Indebtedness under undrawn
letters of credit issued for the account of
any such foreign Subsidiary in the ordinary
course of its business but including
Indebtedness listed on Schedule 6.14, to the
extent applicable) in the aggregate at any
time outstanding;".
2. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. To induce the
Lenders, the Agent and the Co-Agent to enter into this Amendment, the Borrower
hereby reaffirms, as of the
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date hereof, that its representations and warranties contained in the Credit
Agreement are true and correct in all material respects (except to the extent
such representations and warranties (x) are not so true and correct in all
material respects as a result of the transactions expressly permitted under the
Credit Agreement or under the other Credit Documents or (y) relate solely to an
earlier date) and additionally represents and warrants as follows:
(i) The execution and delivery by the Borrower
of this Amendment and the performance by the
Borrower of its obligations under this
Amendment and the Credit Agreement, as
amended hereby, are within the Borrower's
corporate powers, have been duly authorized
by all necessary corporate action of the
Borrower and do not and will not contravene
any applicable provision of any law,
statute, rule or regulation, or any
applicable order, writ, injunction or decree
of any court or governmental
instrumentality, except where such
contravention is not reasonably expected to
have a Material Adverse Effect or conflict
with or result in any breach of any term,
covenant, condition or other provision of,
or constitute a default under (except where
such conflict, breach or default is not
reasonably expected to have a Material
Adverse Effect), or result in the creation
or imposition of (or the obligation to
create or impose) any Lien other than any
Permitted Lien upon any of the property or
assets of the Borrower or any of its
Subsidiaries under the terms of any
contractual obligation to which the Borrower
or any of its Subsidiaries is a party or by
which it or any of its properties or assets
are bound or to which it may be subject, or
violate or conflict with any provision of
the Certificate of Incorporation or Bylaws
of the Borrower;
(ii) The execution and delivery by the Borrower
of this Amendment have received all
necessary governmental approvals or other
consents (if any shall be required);
(iii) This Amendment and the Credit Agreement, as
amended hereby, are legal, valid and binding
obligations of the Borrower enforceable
against the Borrower in accordance with
their terms, subject as to enforcement only
to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting
the enforcement of creditors' rights
generally and by general principles of
equity, regardless of whether in a
proceeding in equity or at law;
(iv) There are no lawsuits (including, without
limitation, derivation or injunctive
actions), arbitration proceedings or
governmental proceedings pending or, to the
best knowledge of the Borrower,
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threatened, involving the Borrower or any of
its Subsidiaries except as disclosed in
Schedule 5.4 to the Credit Agreement and
except for such lawsuits or other
proceedings which are not reasonably
expected to have a Material Adverse Effect;
(v) No Default or Event of Default has occurred
and is continuing; and
(vi) There have been no amendments to the
Certificate of Incorporation or Bylaws of
the Borrower since November 19, 1997.
3. REAFFIRMATION OF CREDIT AGREEMENT. This Amendment shall be deemed to
be an amendment to the Credit Agreement, and the Credit Agreement, as amended
hereby, is hereby ratified, approved and confirmed in each and every respect.
All references to the Credit Agreement in the Credit Agreement and the other
Credit Documents (excluding this Amendment) shall hereafter be deemed to refer
to the Credit Agreement, as amended hereby.
4. DEFINED TERMS. Terms used but not defined herein when defined in the
Credit Agreement shall have the same meanings herein unless the context
otherwise requires.
5. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
(A) THIS AMENDMENT AND THE OTHER CREDIT DOCUMENTS, AND THE
RIGHTS AND DUTIES OF THE PARTIES HERETO AND THERETO, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF TEXAS.
(B) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO AGREE THAT ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS AMENDMENT OR ANY OTHER CREDIT DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF THE LENDERS OR THE BORROWER MAY BE BROUGHT AND MAINTAINED IN THE
COURTS OF THE STATE OF TEXAS SITTING IN XXXXXX COUNTY OR THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE BORROWER, THE LENDERS, THE AGENT AND THE
CO-AGENT HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF TEXAS AND THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF TEXAS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE BORROWER, THE LENDERS, THE AGENT AND THE CO-AGENT FURTHER
IRREVOCABLY
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CONSENTS TO THE SERVICE OF PROCESS, BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF TEXAS. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE BORROWER, THE LENDERS, THE AGENT AND
THE CO-AGENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER, ANY
LENDER, THE AGENT OR THE CO-AGENT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OF
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH PERSON HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AMENDMENT AND THE OTHER CREDIT
DOCUMENTS.
(C) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AMENDMENT, THE CREDIT AGREEMENT, ANY
OTHER CREDIT DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS AMENDMENT, THE CREDIT AGREEMENT, ANY OTHER CREDIT DOCUMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, and by the different parties on different counterpart signature
pages, each of which when executed shall be deemed an original, but all such
counterparts taken together shall constitute one and the same Amendment.
7. SEVERABILITY. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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8. HEADINGS. Section headings used in this Amendment are for reference
only and shall not affect the construction of this Amendment.
9. NOTICE OF ENTIRE AGREEMENT. This Amendment, together with the other
Credit Documents, constitute the entire understanding among the Borrower, the
Lenders, the Agent and the Co-Agent and supersede all earlier or contemporaneous
agreements, whether written or oral, concerning the subject matter of the Credit
Documents. THIS WRITTEN AMENDMENT, TOGETHER WITH THE OTHER CREDIT DOCUMENTS,
REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have entered into this First
Amendment to Credit Agreement as of the date first written above.
BORROWER:
XXXXXX INDUSTRIES, INC.,
a Delaware corporation
By:
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Name:
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Title:
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LENDERS:
BANK ONE, TEXAS, NA, as Agent and a Lender
By:
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Name:
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Title:
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION (f/k/a TEXAS COMMERCE
BANK NATIONAL ASSOCIATION), as Co-Agent
and a Lender
By:
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Name:
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Title:
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CIBC INC., as a Lender
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By:
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Name:
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Title:
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Approval was obtained from necessary bank group and this signature is not
required.
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CONSENT AND ACKNOWLEDGMENT
Each of the undersigned Guarantors, by its signature hereto,
acknowledges and agrees to the terms and conditions of that certain First
Amendment to Credit Agreement (the "Amendment") dated as of June 4, 1998, by and
among Xxxxxx Industries, Inc., a Delaware corporation (the "Borrower"), Bank
One, Texas, NA ("Bank One"), Chase Bank of Texas, National Association (f/k/a
Texas Commerce Bank National Association) ("Chase"), CIBC Inc., Credit Lyonnais
New York Branch, and the other lenders from time to time parties hereto
(collectively, the "Lenders"), Bank One, as administrative agent for the Lenders
(in such capacity, the "Agent") and Chase, as co-agent for the Lenders (in such
capacity, the "Co-Agent"). Each of the undersigned acknowledges and reaffirms
its obligations under its Guaranty dated November 19, 1997 (collectively, the
"Guaranties"), and agrees that the Guaranties shall remain in full force and
effect. Although the undersigned Guarantors have been informed by the Company of
the matters set forth in the Amendment, and the undersigned have acknowledged
and agreed to same, the undersigned understand neither the Agent, the Co-Agent
nor any of the Lenders have any duty to notify any of the Guarantors of, or to
seek any of the Guarantor's acknowledgment or agreement to, the Amendment, and
nothing contained herein shall create such a duty as to any transactions
hereafter.
Dated as of June 4, 1998.
XXXXXX MEASUREMENT AND CONTROL,
INC.
XXXXXX VALVE COMPANY
XXXXXX CORPORATION
XXXXXX VALVE COMPANY
By:
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Name:
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Title:
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