EXHIBIT 4.16
FOURTH AMENDMENT dated as of
September 7, 2001 (this "Amendment"), to the
Credit Agreement, dated as of July 25, 1997,
as heretofore amended (as so amended, and as
the same way be further amended, restated,
modified or supplemented from time to time,
the "Credit Agreement", among XXXXXXX
COMPANIES, INC. (the "Borrower"), the
LENDERS from time to time party thereto (the
"Lenders"), BANCAMERICA SECURITIES, INC., as
Syndication Agent (the "Syndication Agent"),
SOCIETE GENERALE, as Documentation Agent
(the "Documentation Agent") and THE CHASE
MANHATTAN BANK, as Administrative Agent for
the Lenders (the "Administrative Agent").
WHEREAS, the Borrower, the Lenders, the Syndication Agent, the
Documentation Agent and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS, the Borrower has requested that certain provisions of
the Credit Agreement be modified in the manner provided for in this Amendment,
and the undersigned Lenders are willing to agree to such modifications.
NOW THEREFORE, for and in consideration of the premises and
the mutual convenants herein set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned parties hereby agree as follows:
SECTION 1. Definitions. All capitalized terms which are
defined in the Credit Agreement and not otherwise defined herein or in the
recitals hereof shall have the same meanings herein as in the Credit Agreement.
SECTION 2. Amendment of Credit Agreement. The Credit Agreement
is hereby amended by:
(a) Amending and restating in its entirety the final
proviso at the end of the first sentence of Section 2.11(c) as follows:
"; provided further that, in the case of Net Proceeds received by or on
behalf of the Borrower or any Subsidiary in respect of (x) the
incurrence of up to $300,000,000 in the aggregate of Indebtedness under
Section 6.03 (a) (iv) or (y) any incurrence of Indebtedness under
Section 6.03 (a) (v), the Borrower may, within 10 Business Days after
such Net Proceeds are received, prepay Revolving Loans in an amount up
to the aggregate amount of such Net Proceeds (which such amounts may be
subsequently reborrowed pursuant to the terms and conditions of
this Agreement) and shall use any remaining amount of such Net Proceeds
to prepay Term Borrowings as required above."
SECTION 3. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent on behalf of the Lenders as
of the date hereof as follows:
(a) Before and after giving effect to this Amendment, the
representations and warranties set forth in the Credit Agreement are true and
correct as of the date hereof.
(b) Immediately after giving effect to this Amendment, no Event of
Default or Default has occurred and is continuing.
(c) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any person (including any governmental agency) in order
to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject only to the
operation of the bankruptcy code and other similar statutes for the benefit of
debtors generally and to the application of general equitable principles.
SECTION 4. Conditions to Effectiveness. This Amendment shall
become effective when the Administrative Agent shall have received counterparts
hereof signed by the Borrower, the Required Lenders and Lenders having Term
Loans representing more than 50% of the sum of the total outstanding Term Loans
at such time (or, in the case of any party as to which an executed counterpart
shall not have been received, telegraphic, telex or other written confirmation
from such party of the execution of a counterpart hereof by such party).
SECTION 5. Amendment Fees. In consideration of the agreements
of the Lenders contained herein, the Borrower agrees to pay to each Lender that
returns an executed signature page of this Amendment not later than 5:00 p.m.,
New York city time, on September 7, 2001, through the Administrative Agent, an
amendment fee (an "Amendment Fee") equal to 0.10% of the aggregate amount,
without duplication, of such Lender's Revolving Commitments and outstanding
Loans as of the effective date of this Amendment; provided, that no Amendment
Fees shall be payable hereunder unless this Amendment becomes effective as
provided in Section 4 hereof. The Amendment Fees shall be payable in immediately
available funds on the next business day following the effective date of this
Amendment. Once paid, the Amendment Fees shall not be refundable.
SECTION 6. Credit Agreement. Except as specifically stated
herein, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used therein, the terms "Agreement",
"herein", "hereunder", "hereto",
"hereof" and words of similar import shall, unless the context otherwise
requires, refer to the Credit Agreement as modified hereby.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be deemed as original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart thereof.
SECTION 8. Applicable 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 duly executed by their duly authorized officers, all as of the
date and year first above written.
XXXXXXX COMPANIES, INC.
by /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President,
Finance & Treasurer
THE CHASE MANHATTAN BANK,
Individually and as Administrative
Agent,
By /s/ Signature Illegible
------------------------------
Name:
Title: Vice President
To approve the Fourth Amendment:
Name of Institution: Bank of America, N.A.
-------------------------
by /s/ X. Xxxxxx Queen
---------------------
Name: X. Xxxxxx Queen
Title: Managing Director
To approve the Fourth Amendment:
Name of Institution: Bank of Hawaii
--------------------
by /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
To approve the Fourth Amendment:
Name of Institution: Bank of Montreal
-------------------------
by /s/ Xxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
To approve the Fourth Amendment:
Name of Institution: BANK OF SCOTLAND
--------------------
by /s/ Xxxxxx Xxxxxx
----------------------------
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: Bear Xxxxxxx Investment Products Inc.
----------------------------------------
by /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
To approve the Fourth Amendment:
Name of Institution: Comerica Bank
----------------
by /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
To approve the Fourth Amendment:
Name of Institution: CREDIT LYONNAIS NEW YORK BRANCH
----------------------------------
by /s/ Xxxxxx Xxx
---------------------
Name: XXXXXX XXX
Title: SENIOR VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: Credit Swisse First Boston
------------------------------
by /s/ Xxxxxx Xxxxxxxx
---------------------
Name: XXXXXX XXXXXXXX
Title: MANAGING DIRECTOR
by /s/ Xxxxxx Xxxx
-------------------------
Xxxxxx Xxxx
Assistant Vice President
To approve the Fourth Amendment:
Name of Institution: The Dai-Ichi Kangyo Bank, Ltd.
---------------------------------
by /s/ Chimie T. Pemba
------------------------
Name: Chimie T. Pemba
Title: Account Officer
To approve the Fourth Amendment:
Name of Institution: Xxxxx Xxxxx Institutional Senior Loan Fund
By: Xxxxx Xxxxx Management
As Investment Advisor
---------------------
by /s/ Xxxxx X. Page
---------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: Xxxxx Xxxxx Institutional Senior Loan Fund
By: Xxxxx Xxxxx Management
As Investment Advisor
---------------------
by /s/ Xxxxx X. Page
---------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: First Hawaiian Bank
---------------------
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Manager
To approve the Fourth Amendment:
Name of Institution: FLEET NATIONAL BANK
---------------------
by /s/ Xxxxxx X. Xxxxx
---------------------
Name: XXXXXX X. XXXXX
Title: DIRECTOR
To approve the Fourth Amendment:
Name of Institution: FORTIS CAPITAL CORP.
----------------------
by /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
/s/ K. Loymaw
------------------------------
President
To approve the Fourth Amendment:
Name of Institution: FUJI BANK, LTD.
---------------------
by /s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title: Vice President & Senior Team Leader
To approve the Fourth Amendment:
Name of Institution: GENERAL ELECTRIC CAPITAL
CORPORATION
-----------
by /s/ W. Xxxxxx XxXxxxxxx
----------------------------
Name: W. XXXXXX XXXXXXXXX
Title: DULY AUTHORIZED SIGNATORY
To approve the Fourth Amendment:
Name of Institution: XXXXXXX & CO
BY BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
---------------------
by /s/ Xxxxx X. Page
-----------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: MANUFACTURERS AND TRADERS
TRUST COMPANY
-------------
by /s/ Xxxxxxxxxxx Xxxxx
---------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
To approve the Fourth Amendment:
Name of Institution: The Mitsubishi Trust
and Banking Corporation
-----------------------
by /s/ Xxxxxxxxx Xxxxxxx
-------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
To approve the Fourth Amendment:
Name of Institution: National Bank of Canada
---------------------------
by /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice-President, Manager
by /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice-President
To approve the Fourth Amendment:
Name of Institution: National City Bank
-----------------------------
by /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
Title: Account Officer
To approve the Fourth Amendment:
Name of Institution: OXFORD STRATEGIC INCOME FUND
BY: XXXXX XXXXX MANAGEMENT
AS INVESTMENT ADVISOR
---------------------
by /s/ Xxxxx X. Page
---------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: The Sanwa Bank, Limited
--------------------------
by /s/ Xxxx X. Xxxxxx
------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
To approve the Fourth Amendment:
Name of Institution: Seaboard CLO 2000 Ltd.
-----------------------------
by /s/ Xxxxxxxx X.X. Xxxxx, Xx.
-------------------------------
Name: Xxxxxxxx X.X. Xxxxx, Xx.
Title: CEO of Seaboard & Co.
Its Collateral Manager
To approve the Fourth Amendment:
Name of Institution: SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH
AS INVESTMENT ADVISOR
---------------------
by /s/ Xxxxx X. Page
-------------------------
Name: XXXXX X. PAGE
Title: VICE PRESIDENT
To approve the Fourth Amendment:
Name of Institution: SUMITOMO MITSUI BANKING CORPORATION
-------------------------------------
by /s/ Suresh Tata
---------------------
Name: Suresh Tata
Title: Senior Vice President
To approve the Fourth Amendment:
Name of Institution: TEXTRON FINANCIAL CORPORATION
----------------------------------
by /s/ Xxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
To approve the Fourth Amendment:
Name of Institution: Transamerica Business Capital Corporation
(successor to Transamerica Business
Credit Corporation)
by /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
To approve the Fourth Amendment:
Name of Institution: VAN KAMPREN PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
by /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
by /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc.,
as collateral manager
by /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Management Inc.,
as collateral manager
by /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
