Exhibit 10.3
CONFORMED COPY
First Amendment to Credit Agreement (364-Day)
This First Amendment to Credit Agreement (364-Day) (the "Amendment") dated
as of May 2, 2002 by and among Maytag Corporation (the "Borrower"), the Banks
listed below, and Bank of Montreal, as Administrative Agent;
W I T N E S S E T H:
Whereas, the Borrower, the Banks, and the Administrative Agent have
heretofore executed and delivered a Credit Agreement (364-Day) dated as of May
3, 2001 (the "Credit Agreement"); and
Whereas, the Borrower, the Banks and the Agent desire to amend the Credit
Agreement to extend the Termination Date and to make certain other amendments to
the Credit Agreement as set forth herein;
Now, Therefore, for good and valuable consideration the receipt of which is
hereby acknowledged, the Borrower, the Banks and the Administrative Agent hereby
agree as follows:
1. (a) The definition of "Termination Date" contained in Section 5.1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"Termination Date" means May 1, 2003.
(b) The definition of "Bank" contained in Section 5.1 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Bank" means each bank signatory hereto or that becomes a Bank
hereunder pursuant to a commitment increase in accordance with Section
2.9 hereof or an assignment in accordance with Section 12.12 hereof.
2. Immediately following Section 2.8 to the Credit Agreement, a new Section
2.9 is hereby added to the Credit Agreement as follows:
Section 2.9. Increase in Commitment. Provided no Default or Event
of Default has occurred and is continuing, the Borrower may, on any
Business Day on or after May 2, 2002 and on or prior to July 31, 2002,
with the written consent of the
Administrative Agent, increase the aggregate amount of the Commitments
by delivering a Commitment Amount Increase Request in the form of
Exhibit F hereto at least five (5) Business Days prior to the desired
effective date of such increase (the "Commitment Amount Increase")
identifying an additional Bank (or additional Commitment agreed to be
made by any existing Bank) and the amount of its Commitment (or
additional amount of its Commitment); provided, however, that any
increase of the aggregate amount of the Commitments to an amount in
excess of $200,000,000 will require the approval of the Required
Banks. The effective date of the Commitment Amount Increase shall be
agreed upon by the Borrower and the Administrative Agent (whose
consent shall not be unreasonably withheld). Upon the effectiveness
thereof, each new Bank (or, if applicable, each existing Bank which
consented to an increase in its Commitment) shall advance Loans in an
amount sufficient such that after giving effect to its Loan each Bank
shall have outstanding its pro rata share of Loans. It shall be a
condition to such effectiveness that no Eurocurrency Loans be
outstanding on the date of such effectiveness and that the Borrower
shall not have terminated any portion of the Commitments pursuant to
Section 2.6 hereof. The Borrower agrees to pay any fees or expenses of
the Administrative Agent relating to any Commitment Amount Increase.
Notwithstanding anything herein to the contrary, no Bank shall have
any obligation to increase its Commitment and no Bank's Commitment
shall be increased without its consent thereto, and each Bank may at
its option, unconditionally and without cause, decline to increase its
Commitment.
3. Section 9.1(k) of the Credit Agreement is hereby in its entirety and as
so amended shall read as follows:
"(k) [Intentionally Omitted]; or".
4. The Credit Agreement is hereby amended by adding a new Exhibit F to the
Credit Agreement as set forth as Exhibit F hereto.
5. Subject to satisfaction of the conditions precedent contained in
paragraph 6 hereof, each Bank that has signed this Amendment as a "Terminating
Bank" (each, a "Terminating Bank") shall cease to be a party to the Credit
Agreement and shall cease to have a Commitment from and after the Effective
Time. From and after the Effective Time, each Terminating Bank shall relinquish
its rights and be released from its obligations under the Credit Agreement.
Notwithstanding the foregoing, the obligations of the Borrower to each
Terminating Bank contained in the Credit Agreement which by the terms of the
Credit Agreement survive the termination of the Credit Agreement shall survive
the occurrence of the Effective Time, but only as they relate to the period when
such Terminating Bank was, or to such Terminating Bank's former status as, a
Bank under the Credit Agreement.
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The Borrower has requested that from and after the Effective Time the
Commitments of the Banks (including the Commitments of the Terminating Banks) be
reallocated among the Banks executing this Amendment provided that the aggregate
amount of the Commitments do not exceed $192,500,000. Accordingly, the
Commitments of the Banks set forth on the applicable signature pages to the
Credit Agreement are hereby amended in their entirety and as so amended shall be
as set forth as Schedule 1 to this Amendment.
6. This Amendment shall become effective as of the opening of business on
May 2, 2002 (the "Effective Time") subject to the conditions precedent that on
or before such date:
(a) the Administrative Agent shall have received counterparts
hereof executed by the parties hereto;
(b) the Administrative Agent shall have received certified copies
of resolutions of the Board of Directors of the Borrower and of a
Special Committee thereof, together authorizing the execution and
delivery of this Amendment, indicating the authorized signers of this
Amendment and the specimen signatures of such signers; and
(c) the Administrative Agent shall have received for the account
of each Bank and Arranger the non-refundable fees in the amounts as
agreed between the Borrower and the Administrative Agent.
6.1. To induce the Administrative Agent and the Banks to enter into this
Amendment, the Borrower represents and warrants to the Administrative Agent and
the Banks that: (a) the representations and warranties contained in the Credit
Agreement are true and correct in all material respects as of the date hereof
with the same effect as though made on the date hereof (it being understood and
agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material respects
only as of such specified date); (b) no Default or Event of Default exists; (c)
this Amendment has been duly authorized by all necessary corporate proceedings
and duly executed and delivered by the Borrower and the Credit Agreement, as
amended by this Amendment, is the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or other similar laws
of general application affecting the enforcement of creditors' rights or by
general principles of equity; and (d) no consent, approval, authorization,
order, registration or qualification with any governmental authority is required
for, and in the absence of which would adversely effect, the legal and valid
execution and delivery or performance by the Borrower of this Amendment or the
performance by the Borrower of the Credit Agreement, as amended by this
Amendment.
6.2. This Amendment may be executed in any number of counterparts and by
the different parties on separate counterparts and each such counterpart shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same Amendment.
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6.3. Except as specifically provided above, the Credit Agreement shall
remain in full force and effect and is hereby ratified and confirmed in all
respects. 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 the Administrative Agent or any Bank under the Credit
Agreement or any Note, nor constitute a waiver or modification of any provision
of any of the Credit Agreement or any Note.
6.4. This Amendment and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the law of the State of
Illinois.
In Witness Whereof, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
Maytag Corporation
By: /s/ Steven J. Klyn
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Name: Steven J. Klyn
Title: Vice President & Treasurer
Bank of Montreal, Chicago Branch, in its
individual capacity as a Bank and as
Administrative Agent
By: /s/ Amy K. Dumser
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Name: Amy K. Dumser
Title: Director
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Bank One, NA
By: /s/ Nathan L. Bloch
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Name: Nathan L. Bloch
Title: First Vice President
Royal Bank of Canada
By: /s/ Gordon C. MacArthur
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Name: Gordon C. MacArthur
Title: Senior Manager
Citicorp USA, Inc.
By: /s/ Mary O'Connell
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Name: Mary O'Connell
Title: Director
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Firstar Bank, N.A.
By: /s/ Janell W. Stanosz
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Name: Janell W. Stanosz
Title: Vice President
KeyBank National Association
By: /s/ Frank J. Jancar
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Name: Frank J. Jancar
Title: Vice President
Sumitomo Mitsui Banking Corporation
By: /s/ Edward D. Henderson, Jr.
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Name: Edward D. Henderson, Jr.
Title: Senior Vice President
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Deutsche Bank AG New York Branch
and/or Cayman Islands Branch
By: /s/ William W. McGinty
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Name: William W. McGinty
Title: Director
By: /s/ Thomas A. Foley
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Name: Thomas A. Foley
Title: Vice President
Lehman Commercial Paper Inc.
By: /s/ Francis J. Chang
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Name: Francis J. Chang
Title: Vice President
The Northern Trust Company,
as a Terminating Bank
By: /s/ Melissa A. Whitson
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Name: Melissa A. Whitson
Title: Vice President
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Mizuho Corporate Bank Ltd. (formerly
known as The Fuji Bank, Limited),
as a Terminating Bank
By: /s/ Nobuyasu Fukatsu
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Name: Nobuyasu Fukatsu
Title: Senior Vice President
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Schedule 1
Bank Commitment
Bank of Montreal, Chicago Branch $25,000,000
Bank One, NA $25,000,000
Royal Bank of Canada $25,000,000
Deutsche Bank AG New York Branch and/or $25,000,000
Cayman Islands Branch
Citicorp USA, Inc. $20,000,000
Firstar Bank, N.A $20,000,000
KeyBank National Association $20,000,000
Sumitomo Mitsui Bank Corporation $20,000,000
Lehman Commercial Paper Inc. $12,500,000
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Exhibit F
Commitment Amount Increase Request
, 2002
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Bank of Montreal,
as Administrative Agent
(the "Administrative Agent")
for the Banks referred to below
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Agency Services
Re: Credit Agreement (364-Day), dated as of May 3, 2001
among Maytag Corporation, the Banks party thereto and
Bank of Montreal, as Administrative Agent
(as amended, modified or supplemented from
time to time, the "Credit Agreement"),
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Ladies and Gentlemen:
In accordance with the Credit Agreement, the Borrower hereby requests that
the Administrative Agent consent to an increase in the aggregate Commitments
(the "Commitment Amount Increase"), in accordance with Section 2.9 of the Credit
Agreement, to be effected by [an increase in the Commitment of [name of existing
Bank] the addition of [name of new Bank] (the "New Bank") as a Bank under the
terms of the Credit Agreement]. Capitalized terms used herein without definition
shall have the same meanings herein as such terms have in the Credit Agreement.
After giving effect to such Commitment Amount Increase, and upon the
effectiveness of the Commitment Amount Increase, the Commitment of [the Bank
increasing its Commitment] [the New Bank] will be as set forth on Attachment I
hereto.
[Include paragraphs 1-4 for a New Bank]
1. The New Bank hereby confirms that it has received a copy of the Credit
Agreement and the exhibits and schedules related thereto, together with copies
of the documents which were required to be delivered under the Credit Agreement
as a condition to the making of the Loans and other extensions of credit
thereunder. The New Bank acknowledges and agrees that it has made and will
continue to make, independently and without reliance upon the Administrative
Agent or any other Bank and based on such documents and information as it has
deemed appropriate, its own credit analysis and decisions relating to the Credit
Agreement. The New Bank further acknowledges and agrees that the Administrative
Agent has not made any representations or warranties about the credit worthiness
of the Borrower or any other party to the Credit Agreement or with respect to
the legality, validity, sufficiency or enforceability of the Credit Agreement or
the value of any security therefor.
2. Except as otherwise provided in the Credit Agreement, effective as of
the date of acceptance hereof by the Administrative Agent, the New Bank (i)
shall be deemed automatically to have become a party to the Credit Agreement and
have all the rights and obligations of a "Bank" under the Credit Agreement as if
it were an original signatory thereto and (ii) agrees to be bound by the terms
and conditions set forth in the Credit Agreement as if it were an original
signatory thereto.
3. The New Bank hereby advises you of the following administrative details
with respect to its Loans and Commitment:
(A) Notices:
Institution Name:
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Address:
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Telephone:
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Facsimile:
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(B) Payment Instructions:
[4. The New Bank has delivered, if appropriate, to the Borrower and the
Administrative Agent (or is delivering to the Borrower and the Administrative
Agent concurrently herewith) the tax forms referred to in Section 12.1 of the
Credit Agreement.]*
This Agreement shall be deemed to be a contractual obligation under, and
shall be governed by and construed in accordance with, the laws of the state of
Illinois.
The Commitment Amount Increase shall be effective when the executed consent
of the Administrative Agent is received or otherwise in accordance with Section
2.9 of the Credit Agreement, but not in any case prior to ,
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. It shall be a condition to the effectiveness of the Commitment Amount
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Increase that (i) all fees and expenses referred to in Section 2.9 of the Credit
Agreement shall have been paid and (ii) no Eurocurrency Loans shall be
outstanding on the date of such effectiveness.
The Borrower hereby certifies that no Default or Event of Default has
occurred and is continuing.
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* Insert bracketed paragraph if New Bank is organized under the law of a
jurisdiction other than the United States of America or a state thereof
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Please indicate the Administrative Agent's consent to such Commitment
Amount Increase by signing the enclosed copy of this letter in the space
provided below.
Very truly yours,
Maytag Corporation
By
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Name:
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Title:
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[New Bank/Bank Increasing Commitments]
By:
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Name:
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Title:
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The undersigned hereby consents
on this day of ,
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to the above-requested Commitment
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Amount Increase.
Bank of Montreal,
as Administrative Agent
By:
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Name:
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Title:
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F-3
Attachment I
Bank Commitment