EXHIBIT 10(ae)
SECOND AMENDMENT TO
REVOLVING MULTICURRENCY CREDIT AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING MULTICURRENCY CREDIT AGREEMENT (this
"Second Amendment to Credit Agreement" or this "Amendment") dated as of November
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30, 1999, is entered into among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, a Delaware
corporation (the "Company"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International, Inc., a Delaware
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corporation ("JMII"), the several financial institutions party to the Credit
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Agreement referred to below (collectively, the "Banks"), and Bank of America,
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N.A. (successor to Bank of America National Trust and Savings Association), as
Issuing Bank, Swingline Bank and as administrative agent for itself and the
other Banks (in such capacity, the "Agent").
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RECITALS
A. The parties hereto have entered into a Revolving Multicurrency Credit
Agreement dated as of May 15, 1998 (as extended, renewed, amended or restated
from time to time, the "Credit Agreement"), pursuant to which the Agent and the
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Banks agreed to make available to the Company and JMII a revolving multicurrency
credit facility with a letter of credit subfacility and a swingline subfacility,
under the terms and conditions set forth in the Credit Agreement.
B. The Company, JMII, the Agent and the Banks, subject to the terms and
conditions of this Amendment, have agreed to amend certain provisions of the
Credit Agreement to modify the Company's Minimum Consolidated Net Worth
covenant.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein contained, the parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms used in this Amendment (including
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in the Recitals hereof and in the Consent and Agreement of Guarantors attached
hereto) and not otherwise defined shall have the respective meanings set forth
in the Credit Agreement.
2. Amendments.
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a. Amendment to Section 1.1: Section 1.1 of the Credit Agreement is
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hereby amended by adding thereto in its proper alphabetical order a
new definition of "Trust Tax Benefits" to read in its entirety as
follows:
"Trust Tax Benefits means, for any fiscal period, the amount of
tax benefits attributable during such fiscal period (or if such
fiscal period is a fiscal quarter, to be attributable during the
fiscal year of which such fiscal period is a part) resulting from
(a) purchases by
the Company during such fiscal year of its common stock from the
Trust, and/or (b) purchases by the Company during previous fiscal
years of its common stock from the Trust, if such benefits could
not be realized during previous fiscal years, each as determined
on a consolidated basis in accordance with GAAP.
b. Amendment to Section 8.12: Section 8.12 of the Credit Agreement
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is hereby amended to read in its entirety as follows:
"8.12 Minimum Consolidated Net Worth. The Company shall not
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permit, as of the last day of any fiscal quarter, Consolidated
Net Worth to be less than the sum of:
(a) $560,100,000, plus
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(b) 50% of Consolidated Net Income after September 30,
1999, through the end of each fiscal quarter thereafter,
determined on a quarterly basis with no reduction for any
Consolidated Net Loss, plus
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(c) 75% of the Net Securities Proceeds arising after
September 30, 1999, to the date of determination, minus
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(d) the amount of Trust Tax Benefits for periods after
September 30, 1999, to the date of determination.
As used herein, "Net Securities Proceeds" means, with respect to
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any sale or issuance of equity securities (whether common or
preferred, options, warrants or capital appreciation rights, but
excluding any sales or issuances of stock pursuant to employee
stock purchase plans, employee stock options plans or other
employee benefit plans), the excess of (A) the gross cash and
noncash proceeds received or receivable by the Company or any
Subsidiary from such issuance minus (B) the sum of (i) all
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Attorney Costs and underwriting and accounting fees and
disbursements and government fees actually paid (or reasonably
expected to be paid during the fiscal year in which such sale or
issuance occurs) in connection with such sale or issuance which
are not payable to the Company or to any Affiliate of the Company
or any Subsidiary; and (ii) all taxes actually paid in connection
with such sale or issuance."
3. Representations and Warranties. The Company and JMII hereby represent
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and warrant to the Agent and each Bank as follows:
a. The execution, delivery and performance by the Company and by
JMII of this Amendment have been duly authorized by all necessary
action, including any necessary authorizations by the board of
directors of
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the Company and by the board of directors of JMII, 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.
b. This Amendment and the Loan Documents to which the Company and/or
JMII is a party constitute the legal, valid and binding obligations of
the Company and/or JMII, as the case may be, enforceable against the
Company and/or JMII in accordance with their respective terms except
to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally or by equitable
principles relating to enforceability.
c. The Company and JMII are each entering into this Amendment on the
basis of its own investigations and for its own reasons, without
reliance upon the Agent, the Banks or any other Person.
4. Effective Date. This Amendment will become effective on November 30,
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1999; provided that the Agent has received from the Company, JMII and Majority
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Banks an executed counterpart of this Amendment and the Consent and Agreement of
Guarantors executed by each of the Guarantors and the Company has paid an
amendment fee of 2 basis points to each consenting Bank based on such Bank's
Commitment.
5. Reservation of Rights. The Company and JMII each acknowledges and
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agrees that the execution and delivery by the Agent and the Banks of this
Amendment shall not be deemed to create a course of dealing or an obligation to
execute similar waivers or amendments under the same or similar circumstances in
the future.
6. Miscellaneous.
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a. Except as expressly waived herein, all terms, covenants and
provisions of the Loan Documents are and shall remain in full force
and effect.
b. This Amendment shall be binding upon and inure to the benefit of
the Company, JMII, the Agent and the Banks and their respective
successors and assigns. No third party beneficiaries are intended in
connection with this Amendment.
c. This Amendment shall be governed by and construed in accordance
with the law of the State of California.
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 Amendment (and any
other document required herein) may be delivered by any party thereto
either in
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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 Agent of a facsimile
transmitted document purportedly bearing the signature of the Company,
JMII or any Bank will have the same force and effect as the delivery
of a hard copy original. Any failure by the 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 Agent.
e. This Amendment contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein. This
Amendment supersedes all prior drafts and communications with respect
hereto or thereto. This Amendment may not be amended except in
accordance with the provisions of Section 11.1 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 Loan Documents.
g. The Company and JMII covenant to pay or reimburse the Agent,
within 30 days after demand, for all reasonable costs and expenses
incurred by the Agent in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
[Signatures follow.]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
Revolving Multicurrency Credit Agreement to be executed and delivered in Dallas,
Texas, by their duly authorized officers as of the day and year first written
above.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: VP & Treasurer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: VP & Treasurer
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BANK OF AMERICA, N.A., as Agent, Issuing
Bank, Swingline Bank and a Bank
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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Title: Principal
THE BANK OF NEW YORK, as Syndication
Agent and a Bank
By: /s/ Vice President
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Title: Vice President
THE BANK OF NOVA SCOTIA, as Co-Agent
and a Bank
By: /s/ Director
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Title: Director
BANQUE NATIONALE DE PARIS
By: /s/ ▇. ▇▇▇▇▇▇▇
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Title: Sr. V.P. & Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Duly Authorized SIgnatory
MELLON BANK, N.A.
By: /s/ Vice President
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Title: Vice President
BANK ONE, N.A., as Co-Agent and a Bank
By: /s/ First Vice President
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Title: First Vice President
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FIRST UNION NATIONAL BANK, as Co- Agent
and a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
KEYBANK NATIONAL ASSOCIATION, as
Co-Agent and a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, as Co-Agent and a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
NORWEST BANK OF COLORADO, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Vice President
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Title: Vice President
SUNTRUST BANK, N.A.
By: /s/ V. P. & Director
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Title: V. P. & Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Vice President
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Title: Vice President
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇ ▇. Honda
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Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Group Vice President and Director
FLEET NATIONAL BANK
By: /s/ SVP
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Title: SVP
BW CAPITAL MARKETS, INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President
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CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, in its capacity as a Guarantor, acknowledges
that its consent to the foregoing Second Amendment to Revolving Multicurrency
Credit Agreement is not required, but each of the undersigned nevertheless does
hereby consent, in its capacity as a Guarantor, to the foregoing Second
Amendment to Revolving Multicurrency Credit Agreement and to the documents and
agreements referred to therein. Nothing herein shall in any way limit any of the
terms or provisions of the Guaranty or Additional Guarantor Assumption
Agreement, if any, of the undersigned executed by the undersigned in the Agent's
and the Banks' favor, or any other Loan Document executed by the undersigned (as
the same may be amended from time to time), all of which are hereby ratified and
affirmed in all respects.
Guarantors:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION,
as a Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: VP & Treasurer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INTERNATIONAL, INC.,
as a Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: VP & Treasurer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INTERNATIONAL
GROUP, INC.,
as a Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: VP & Treasurer
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