EXHIBIT 10.1
AMENDMENT TO CREDIT AGREEMENT
This _____ AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated as of
September 27, 2002, is made and entered into by and between XXXXX XXXXXX
INCORPORATED, a Delaware corporation (the "Company"), and the undersigned bank
(the "Bank").
WITNESSETH
WHEREAS, the Company and the Bank have entered into that certain Credit
Agreement dated as of September 27, 2001 with an initial term of 364 days (the
"Credit Agreement"); and
WHEREAS, the Company and the Bank desire to extend and amend the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Company and the Bank agree as follows:
1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 The definition of "Facility Fee Rate" in Section 1.01
(Definitions) of the Credit Agreement is amended and restated in its
entirety as follows:
""Facility Fee Rate" means the rate per annum that
shall be used to calculate the Facility Fee and is equal to
(a) 8.5/100 of 1% if the Company has a
senior unsecured credit rating by Standard and Poors
equal to or better than A or a senior unsecured
credit rating by Xxxxx'x Investor Services of equal
to or better than A2;
(b) 10.0/100 of 1% if the Company has a
senior unsecured credit rating by Standard and Poors
between A and A-, inclusive or a senior unsecured
credit rating by Xxxxx'x Investor Services between A2
and A3, inclusive;
(c) 12.5/100 of 1% if the Company has a
senior unsecured credit rating by Standard and Poors
between A- and BBB+, inclusive or a senior unsecured
credit rating by Xxxxx'x Investor Services between A3
and Baa1, inclusive;
(d) 15.0/100 of 1% if the Company has a
senior unsecured credit rating by Standard and Poors
between BBB+ and BBB, inclusive or a senior unsecured
credit rating by Xxxxx'x Investor Services between
Baa1 and Baa2, inclusive;
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(e) 20.0/100 of 1% if the Company has a
senior unsecured credit rating by Standard and Poors
between BBB and BBB-, inclusive or a senior unsecured
credit rating by Xxxxx'x Investor Services between
Baa2 and Baa3, inclusive; or
(f) 25.0/100 of 1% if the Company has a
senior unsecured credit rating by Standard and Poors
equal to or less than BB+, or a senior unsecured
credit rating by Xxxxx'x Investor Services of less
than or equal to Ba1;
provided, that, in each case, the higher (better) senior
unsecured credit rating (Standard and Poors or Xxxxx'x
Investor Services) shall always be applied to determine the
Facility Fee Rate, and if Standard and Poors (or Xxxxx'x
Investor Services) changes its rating designations, then the
new equivalent Standard and Poors (or Xxxxx'x Investor
Services) credit ratings shall be applied."
1.2 The definition of "LIBOR Margin" in Section 1.01
(Definitions) of the Credit Agreement is amended and restated in its
entirety as follows:
"LIBOR Margin" means the rate per annum which shall
added to determine the Eurodollar Rate and is equal to
(a) .24% if the Company has a senior
unsecured credit rating by Standard and Poors equal
to or better than A or a senior unsecured credit
rating by Xxxxx'x Investor Services of equal to or
better than A2;
(b) .40% if the Company has a senior
unsecured credit rating by Standard and Poors between
A and A-, inclusive or a senior unsecured credit
rating by Xxxxx'x Investor Services between A2 and
A3, inclusive;
(c) .50% if the Company has a senior
unsecured credit rating by Standard and Poors between
A- and BBB+, inclusive or a senior unsecured credit
rating by Xxxxx'x Investor Services between A3 and
Baa1, inclusive;
(d) .725% if the Company has a senior
unsecured credit rating by Standard and Poors between
BBB+ and BBB, inclusive or a senior unsecured credit
rating by Xxxxx'x Investor Services between Baa1 and
Baa2, inclusive;
(e) .925% if the Company has a senior
unsecured credit rating by Standard and Poors between
BBB and BBB-, inclusive or a senior unsecured credit
rating by Xxxxx'x Investor Services between Baa2 and
Baa3, inclusive; or
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(f) 1.125% if the Company has a senior
unsecured credit rating by Standard and Poors equal
to or less than BB+, or a senior unsecured credit
rating by Xxxxx'x Investor Services of less than or
equal to Ba1;
provided, that, in each case, the higher (better) senior
unsecured credit rating (Standard and Poors or Xxxxx'x
Investor Services) shall always be applied to determine the
LIBOR Margin, and if Standard and Poors (or Xxxxx'x Investor
Services) changes its rating designations, then the new
equivalent Standard and Poors ( or Xxxxx'x Investor Services)
credit ratings shall be applied; provided further, that, in
the event the aggregate Eurodollar Advances and Reference Rate
Advances outstanding exceed thirty-three and one-third percent
(33 1/3%) of the Commitment Limit, then the Eurodollar Rates
in (a), (b), (c), (d), (e) and (f) above shall be increased
to 32%, .48%, .58%, .805%, 1.005% and 1.205%, respectively,
for all Eurodollar Advances outstanding during the period in
which the aggregate Eurodollar Advances and Reference Rate
Advances outstanding exceed thirty-three and one-third
percent (33 1/3%) of the Commitment Limit.
1.3 The definition of "Termination Date" in Section 1.01
(Definitions) of the Credit Agreement is amended and restated in its
entirety as follows:
""Termination Date" means the earliest to occur of
(a) September 25, 2003, as such date may be extended pursuant
to Section 3.01(h) or 3.01(i), (b) the date on which the
Bank's Commitment or Commitment Limit is reduced to zero
pursuant to Section 2.03 or 3.01(i)(iv) and (c) the date on
which the Bank's Commitment or Commitment Limit is terminated
pursuant to Section 2.02 or 7.08."
1.4 Section 2.04(b) (Facility and Up-Front Fees) of the
Credit Agreement is amended and restated in its entirety to read as
follows:
"(b) Up-Front Fees. The Company agrees to pay the
Bank an initial up-front fee, in Dollars, equal to .03% of the
Commitment Limit, payable within 15 days of the Effective Date
of this Agreement. If the Bank consents to an Extension
Request by the Company pursuant to Section 3.01(h), then the
Company agrees to pay the Bank an additional one-time fee, in
Dollars, at a mutually agreed rate."
The mutually agreed rate for this Amendment is .06% of the
Commitment Limit and is payable within 15 days of the full execution of
this Amendment.
1.5 Section 4.08 (Margin Securities) of the Credit
Agreement is amended and restated in its entirety to read as follows:
"4.08 Margin Securities. The Company is not incurring
the indebtedness evidenced by the Note hereunder for the
purpose, directly or indirectly, of purchasing or carrying any
"margin stock" as that term is defined in Regulations U and X
of the Board of Governors of the Federal Reserve System, as
amended
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from time to time, except the Company may purchase its
common stock, if after giving effect to such purchases, such
indebtedness would not violate any Governmental Requirement
(including, without limitation, such Regulations U and X).
Neither the Company nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying margin stock."
2. AMENDMENTS TO CREDIT AGREEMENT. This Amendment shall be
deemed to be an amendment to the Credit Agreement, and the Credit Agreement, as
amended hereby, is ratified hereby, approved and confirmed in each and every
respect. All references to the Credit Agreement in the Credit Agreement shall
hereafter be deemed to refer to the Credit Agreement, as amended hereby.
3. 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.
4. APPLICABLE LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas, United States of
America.
5. COUNTERPARTS. This Amendment may be separately executed
(including execution by delivery of a facsimile or telecopied signature) in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to constitute one and the same
Amendment.
6. SEVERABILITY. If any term or provision of this Amendment
shall be determined to be illegal or unenforceable, all other terms and
provisions of this document shall nevertheless remain effective and shall be
enforced to the fullest extent permitted by applicable law.
7. HEADINGS. Section headings used in this Amendment are for
reference only and shall not affect the construction of this Amendment.
8. FINAL AGREEMENT. THIS AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OR PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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IN WITNESS WHEREOF, the Company and the Bank have caused this Amendment
to be duly executed as of the day and year first above written.
COMPANY:
XXXXX XXXXXX INCORPORATED
By __________________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President and Treasurer
BANK:
By __________________________________________
Name:
Title:
Commitment Limit:
(if different than limit on signature page to Credit Agreement)
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