First Amendment to Three-Year Credit Agreement



 


Exhibit 10.16




FIRST AMENDMENT

TO

THE THREE-YEAR CREDIT AGREEMENT



     FIRST AMENDMENT to the Three-Year Credit Agreement dated as of November
20, 2002 (this “First Amendment”) among HILLENBRAND INDUSTRIES, INC. (the
“Borrower”), each lender to the Three-Year Credit Agreement (as defined below)
(the “Lenders”), and BANK OF AMERICA, N.A., as Administrative Agent (in such
capacity, the “Administrative Agent”), Swing Line Lender, L/C Issuer and
Alternative Rate Lender, CITICORP, USA, INC., as Syndication Agent, and BANK
ONE, NA, LASALLE BANK NATIONAL ASSOCIATION and UBS AG, STAMFORD BRANCH, as
Documentation Agents.




     PRELIMINARY STATEMENTS:




     (1)  The Borrower, the Lenders, the Administrative Agent, Citicorp USA,
Inc, as Syndication Agent, and Bank One, NA, LaSalle Bank National Association
and UBS AG Stamford Branch, as Documentation Agents entered into that certain
Three-Year Credit Agreement dated as of August 2, 2002 (as amended by this
First Amendment, as hereinafter amended, modified, supplemented, extended or
restated from time to time being called, the “Amended Credit Agreement”).
Capitalized terms used and not otherwise defined herein shall have the meanings
assigned to such terms in the Amended Credit Agreement.




     (2)  The Borrower has requested the Lenders to, among other things, amend
certain covenants and other provisions in the Amended Credit Agreement.




     NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and agree as follows:




     SECTION 1.01. Amendments to Section 1.01. Section 1.01 of the Amended
Credit Agreement is hereby amended as follows:





		
	 	     (a) The definition of “Indebtedness” in Section 1.01 is hereby
amended by deleting the following paragraph of the definition in its
entirety:
	 
	 	     “For purposes of calculations under Section 7.11, the Indebtedness
of any Person shall include, without duplication, (a) any appeal bonds
and supersedeas bonds, (b) any collateralization or reimbursement
obligations required in connection with any such bonds in the form of a
letter of credit or otherwise and (c) the amounts of any judgments or
decrees, in each case, in excess of cash, cash equivalents and short term
investments on the most recent balance sheet at the time any such bond is
provided or any such judgment or decree is entered.”
	 
	 	     (b) Section 1.01 is hereby amended be deleting the definition of
“Letter of Credit Sublimit” and amending and restating it in its entirety
to read as follows:
	 
	 	     “Letter of Credit Sublimit” means, at any time, an amount
equal to the lesser of (a) $250,000,000 and (b) the unused amount
of the Aggregate Commitments at such time. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate
Commitments.”
	 
	 	     (c) Section 1.01 is hereby amended by adding, in correct
alphabetical order, the following definition:






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	 	     “Material Decree” means any judgment, order, decree or jury
verdict in connection with litigation disclosed in the 10-K or
10-Q in an aggregate amount (including a reasonable estimate of
the costs, expenses, interest charges, and legal fees and expenses
related thereto) in excess of $150 million.”



     SECTION 1.02. Amendment to Section 6.02. The second sentence of the last
paragraph of Section 6.02 of the Amended Credit Agreement is hereby deleted in
its entirety and the following is inserted in lieu thereof:





		
	 	     “Notwithstanding anything contained herein, in every instance
the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the
Administrative Agent.”



     SECTION 1.03. Amendment to Section 7.11. Section 7.11 of the Amended
Credit Agreement is hereby deleted in its entirety and the following is
inserted in lieu thereof:





		
	 	     “Section 7.11 Total Debt to Total Capitalization Ratio. (a)
Permit the ratio of (i) Consolidated Total Debt to (ii)
Consolidated Total Capitalization to exceed at any prior month-end
0.45:1, unless the calculation of Indebtedness or Shareholder’s
Equity for purposes of this Section 7.11 includes any Material
Decree or the payment of any Material Decree or (b) if the
calculation of Indebtedness or Shareholder’s Equity for purposes
of this Section 7.11 includes any Material Decree or the payment
of any Material Decree, permit the ratio of (i) Consolidated Total
Debt to (ii) Consolidated Total Capitalization to exceed at any
prior month-end 0.65:1.
	 
	 	     For purposes of calculations under Section 7.11, (i) the
Indebtedness of any Person shall not include 75% of the principal
amount of any mandatorily convertible unsecured bonds, debentures,
preferred stock or similar instruments in a principal amount not
to exceed $500 million in the aggregate during the term of the
Agreement which are payable in no more than three years (whether
by redemption, call option or otherwise) solely in common stock or
other common equity interests of such Person (hereinafter referred
to as the “Convertibles”), and (ii) Shareholders’ Equity of any
Person shall include 75% of the principal amount of any
Convertibles (whether or not such Convertibles would be considered
shareholders’ equity under GAAP).
	 
	 	     Further, for purposes of calculations under this Section
7.11, Indebtedness shall include, without duplication, (i) the sum
of (A) any unpaid judgment, order, decree or jury verdict,
including a reasonable estimate of the costs, expenses, interest
charges, and legal fees and expenses related thereto, and (B) any
bond, collateralization or reimbursement obligation required in
the form referred to in clause (b) of the definition of
Indebtedness relating to any such judgment, order, decree or jury
verdict (hereinafter referred to as a “Collateral Obligation”),
net of any cash deposited, posted or otherwise paid in connection
with a Collateral Obligation, and net of any debt incurred to
obtain a Collateral Obligation, minus, (ii) in the case of the
calculation under Section 7.11(a) only, cash, cash equivalents and
short term investments on the most recent balance sheet.”



     SECTION 1.04. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders, as
follows:





		
	 	     (a) After giving effect to this First Amendment, the representations
and warranties set forth in Article V of the Amended Credit Agreement,
and in each other






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	 	Loan Document, are true and correct in all material
respects on and as of the date hereof and on and as of the First
Amendment Effective Date (as defined below) with the same effect as if
made on and as of the date hereof, except to the extent such
representations and warranties expressly relate solely to an earlier
date, in which case they shall be true and correct in all material
respects as of such earlier date.
	 
	 	     (b) After giving effect to this First Amendment, the Borrower is in
compliance with all the terms and conditions of the Amended Credit
Agreement and the other Loan Documents on its part to be observed or
performed and no Default or Event of Default has occurred or is
continuing under the Amended Credit Agreement.
	 
	 	     (c) The execution, delivery and performance by the Borrower of this
First Amendment have been duly authorized by the Borrower.
	 
	 	     (d) This First Amendment constitutes the legal, valid and binding
obligation of the Borrower, enforceable against the Borrower in
accordance with its terms.
	 
	 	     (e) The execution, delivery and performance by the Borrower of this
First Amendment do not (i) contravene the terms of any such Person’s
Organization Documents; (ii) conflict with or result in any breach or
contravention of, or the creation of any Lien under, (A) any Contractual
Obligation to which the Borrower is a party, except to the extent that
such breach, contravention or creation of any such Lien could not
reasonably be expected to have a Material Adverse Effect or (B) any
order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which the Borrower or its property is subject; or (iii)
violate any material Law.
	 
	 	     (f) Except for the litigation disclosed in the 10-K and 10-Q, there
are no actions, suits, proceedings, claims or disputes, pending, or, to
the knowledge of the Borrower after due and diligent investigation
threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (i)
purport to affect or pertain to this Amended Credit Agreement or any
other Loan Document, or any of the transactions contemplated hereby or
(ii) either individually or in aggregate, if determined adversely, could
reasonably be expected to have a Material Adverse Effect.



     SECTION 1.05. Effectiveness. This First Amendment shall become effective
only upon satisfaction of the following conditions precedent (the first date
upon which each such condition has been satisfied being herein called the
“First Amendment Effective Date”):





		
	 	     (a) The Administrative Agent shall have received duly executed
counterparts of this First Amendment which, when taken together, bear the
authorized signatures of the Borrower and the Required Lenders.
	 
	 	     (b) The Borrower shall have paid all expenses referred to in Section
1.07 of this First Amendment.



     SECTION 1.06. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT ALL
PARTIES HERETO SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.




     SECTION 1.07. Expenses. The Borrower shall pay (i) all reasonable costs
and expenses incurred by the Administrative Agent in connection with the
preparation, negotiation,





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execution, delivery and enforcement of this First
Amendment, including all reasonable Attorney Costs and (ii) an amendment fee
payable to the Administrative Agent in the aggregate amount of 5 basis points
on the Commitment as of the First Amendment Effective Date of each Lender
executing the First Amendment prior to the First Amendment Effective Date,
payable to each such Lender. The agreement set forth in this Section 1.07
shall survive the termination of this First Amendment and the Amended Credit
Agreement.




     SECTION 1.08. Counterparts. This First Amendment may be executed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement. Delivery of an
executed counterpart of the signature page of this First Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.




     SECTION 1.09. Amended Credit Agreement. Except as expressly modified or
consented to herein, the Amended Credit Agreement shall continue in full force
and effect in accordance with the provisions thereof. This First Amendment is
a Loan Document executed under the Amended Credit Agreement and shall be
construed in accordance with the Amended Credit Agreement.




[Signature Pages to Follow]




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     IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed as of the date first above written.





	 	HILLENBRAND INDUSTRIES, INC.
 






	 	By:

Name:          Mark R. Lanning



Title:          Vice President and Treasurer









	 	BANK OF AMERICA, N.A., as

Administrative Agent
 







	 	By: 

Name: 

Title: 

 







	 	CITICORP USA, INC., as Syndication Agent
 







	 	By: 

Name: 

Title: 

 







	 	BANK ONE, NA, as Documentation Agent
 







	 	By: 

Name: 

Title: 

 







	 	LASALLE BANK NATIONAL ASSOCIATION,

as Documentation Agent
 







	 	By: 

Name: 

Title: 

 






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	 	UBS AG,

STAMFORD BRANCH, as Documentation Agent
 







	 	By: 

Name: 

Title: 

 







	 	By: 

Name: 

Title: 

 







	 	BANK OF AMERICA, N.A., as a Lender, Swing

Line Lender, Alternative Rate Lender and

L/C Issuer
 







	 	By: 

Name: 

Title: 

 







	 	BANK ONE, NA, as a Lender
 







	 	By: 

Name: 

Title: 

 







	 	BNP PARIBAS, as a Lender
 







	 	By: 

Name: 

Title: 

 





	 	By: 

Name: 

Title: 

 







	 	CITICORP USA, INC., as a Lender
 







	 	By: 

Name: 

Title: 

 






	 	FIFTH THIRD BANK, as a Lender
 







	 	By: 

Name: 

Title: 

 






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	 	KEYBANK NATIONAL ASSOCIATION, as a Lender
 






	 	By: 

Name: 

Title: 

 







	 	LASALLE BANK NATIONAL
ASSOCIATION, as a Lender
 







	 	By: 

Name: 

Title: 

 







	 	NATIONAL CITY BANK OF INDIANA, as a Lender
 







	 	By: 

Name: 

Title: 

 







	 	THE NORTHERN TRUST COMPANY, as a Lender
 







	 	By: 

Name: 

Title: 

 







	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender
 







	 	By: 

Name: 

Title: 

 







	 	SUNTRUST BANK, as a Lender
 







	 	By: 

Name: 

Title: 

 







	 	UBS AG, STAMFORD BRANCH, as a Lender
 







	 	By: 

Name: 

Title: 

 




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