EXHIBIT 10(G)
AMENDMENT NO. 1 TO THE
THREE YEAR CREDIT AGREEMENT
Dated as of December 5, 2003
AMENDMENT NO. 1 TO THE THREE YEAR CREDIT AGREEMENT among ▇▇▇▇▇▇▇▇
CORPORATION, a New York corporation (the "Company"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "Lenders") and CITIBANK, N.A., as agent
(the "Agent") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Company, the Lenders and the Agent have entered into a Three
Year Credit Agreement dated as of August 20, 2003 (the "Credit Agreement").
Capitalized terms not otherwise defined in this Amendment have the same meanings
as specified in the Credit Agreement.
(2) The Company and the Required Lenders have agreed to amend the
Credit Agreement as hereinafter set forth.
SECTION 1. Amendment to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2, hereby amended by restating Section
5.01(f) in full to read as follows:
(f) Leverage Ratio. The Company will maintain a Leverage Ratio
of not greater than 4.00 to 1 until March 30, 2004, 4.50 to 1 from
March 31, 2004 through December 30, 2004, 4.25 from December 31, 2004
through March 30, 2005, 4.00 to 1 from March 31, 2005 through June 29,
2005, 3.75 to 1 from June 30, 2005 through September 29, 2005 and 3.50
to 1 from and after September 30, 2005.
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date first above written when, and only when, the Agent
shall have received counterparts of this Amendment executed by the Company and
the Required Lenders or, as to any of the Lenders, advice satisfactory to the
Agent that such Lender has executed this Amendment. This Amendment is subject to
the provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) The Company:
(i) is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation;
(ii) has all requisite power and authority and all
material licenses and permits necessary to own and operate its
properties and to carry on its business as now conducted in
each jurisdiction in which it currently conducts any material
part of its business; and
(iii) is duly licensed or qualified and is in good
standing as a foreign corporation in each jurisdiction in
which it currently conducts any material part of its business,
wherein the nature of the business transacted by it or the
nature of the property owned or leased by it makes such
licensing or qualification necessary, other than failures to
have good standing or obtain licenses or qualifications, which
would not, individually or in the aggregate, create a Material
Adverse Effect.
(b) This Amendment and the borrowing by the Company under the
Credit Agreement, as amended hereby, and compliance by the Company with
all of the provisions of the Credit Agreement, as amended hereby:
(i) are within the corporate powers of the Company;
(ii) will not violate any provisions of any material
law, court order or governmental authority or agency directive
and will not conflict with or result in any breach of any of
the material terms, conditions or provisions of, or constitute
a default under the Certificate of Incorporation or By-laws of
the Company or any material indenture or other material
agreement or instrument to which the Company is a party or by
which it may be bound or result in the imposition of any
material Liens or encumbrances on any property of the Company;
and
(iii) have been duly authorized by proper corporate
action on the part of the Company (no action by the
shareholders of the Company being required by law, by the
Certificate of Incorporation or By-laws of the Company or
otherwise), executed and delivered by the Company and the
Credit Agreement, as amended hereby, constitutes the legal,
valid and binding obligation, contract and agreement of the
Company enforceable in accordance with its respective terms.
(c) No material approval, consent or withholding of objection
on the part of any regulatory body, state, Federal or local, is
necessary in connection with the execution and delivery by the Company
of this Amendment or the Credit Agreement, as amended hereby, or
compliance by the Company with any of the provisions of this Amendment
or the Credit Agreement, as amended hereby.
(d) There are no proceedings pending or, to the knowledge of
the Secretary and the Treasurer of the Company, threatened against or
affecting the Company or any Subsidiary in any court or before any
governmental authority or arbitration board or tribunal which (i) could
reasonably be expected to have a Material Adverse Effect, except as
disclosed in the Company's most recent Form 10-Q or Form 10-K as filed
with the Securities and Exchange Commission or except as otherwise
disclosed in writing to the Agent and the Lenders prior to the date
hereof or (ii) purports to affect the legality,
validity or enforceability of this Amendment or the Credit Agreement,
as amended hereby.
SECTION 4. Reference to and Effect on the Credit Agreement and the
Notes. (a) On and after the effectiveness of this Amendment, 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 Notes 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 by this Amendment.
(b) The Credit Agreement and the Notes, as specifically amended by this
Amendment, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under the Credit Agreement, nor
constitute a waiver of any provision of the Credit Agreement.
SECTION 5. Costs and Expenses The Company agrees to pay on demand all
reasonable costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
▇▇▇▇▇▇▇▇ CORPORATION
By____________________________
Title:
By____________________________
Title:
CITIBANK, N.A.,
as Agent and as a Lender
By____________________________
Title:
BANK OF AMERICA, N.A.
By____________________________
Title:
BANK ONE, NA
By____________________________
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
By____________________________
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By____________________________
Title:
JPMORGAN CHASE BANK
By____________________________
Title:
BANK OF MONTREAL
By____________________________
Title:
THE BANK OF NEW YORK
By____________________________
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By____________________________
Title:
NATIONAL CITY BANK
By____________________________
Title:
CREDIT SUISSE FIRST BOSTON,
acting through its
Cayman Islands Branch
By____________________________
Title:
DEUTSCHE BANK AG NEW YORK BRANCH
By____________________________
Title:
By____________________________
Title:
MELLON BANK, N.A.
By____________________________
Title: