AMENDMENT NO. 1 TO CREDIT AGREEMENT
Exhibit 10.7
AMENDMENT NO. 1 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the “Amendment Agreement”), dated as of July 13, 2007, is made by and among HILB ROGAL & XXXXX COMPANY, a Virginia corporation (the “Borrower”), BANK OF AMERICA, N.A., a national banking association organized and existing under the laws of the United States, and each other lender party to the Credit Agreement (as defined below) (hereinafter Bank of America and such other lenders may be referred to individually as a “Lender” or collectively as the “Lenders”), and BANK OF AMERICA, N.A., in its capacity as administrative agent for the Lenders (in such capacity, the “Administrative Agent”). Capitalized terms used but not otherwise defined herein have the respective meanings ascribed to them in the Credit Agreement as defined below.
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Lenders have entered into that certain Credit Agreement dated as of April 26, 2006 (as the same may be amended, modified, supplemented, restated or replaced, the “Credit Agreement”); and
WHEREAS, as a condition to making the term loan facility and the revolving credit facility available to the Borrower the Lenders have required that all Domestic Subsidiaries of the Borrower guarantee payment of the Obligations; and
WHEREAS, the Borrower has requested that the Credit Agreement be amended in order to adjust Acquisitions permitted by Section 7.10 as herein provided and upon the terms and conditions contained herein and the Administrative Agent and the Lenders are willing to amend the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and conditions herein set forth, it is hereby agreed as follows:
1. Amendment. Subject to the terms and conditions set forth herein, the Agreement is hereby amended effective as of the date hereof as follows:
(a) Section 7.10(a) of the Credit Agreement is amended and restated in its entirety to read as follows:
(a) Acquisitions. Enter into any agreement, contract, binding commitment or other arrangement providing for any Acquisition, or take any action to solicit the tender of securities or proxies in respect thereof in order to effect any Acquisition, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:
(i) the Borrower or any Subsidiary may make any Acquisition in the event that, as of the most recent fiscal quarter end, and on a pro forma basis as of such date giving effect to such Acquisition (including the financing thereof), the Consolidated Leverage Ratio is less than 2.00 to 1.00; and
(ii) (A) from the Closing Date through the fiscal year ended December 31, 2007, if, as of the most recent fiscal quarter end, and on a pro forma basis as of such date giving effect to any proposed Acquisition (including the financing thereof), the Consolidated Leverage Ratio is equal to or greater than 2.00 to 1.00, then the Borrower or any Subsidiary may nevertheless make any such proposed Acquisition provided that the Cost of Acquisition thereof, together with (i) the Costs of Acquisition of each other Acquisition consummated during the fiscal year in which such proposed Acquisition is to be made and (ii) the aggregate amount of all performance-based earnout payments expected to be payable in respect of such fiscal year, does not exceed $300,000,000; and (B) from January 1, 2008 through the Maturity Date, if, as of the most recent fiscal quarter end, and on a pro forma basis as of such date giving effect to any proposed Acquisition (including the financing thereof), the Consolidated Leverage Ratio is equal to or greater than 2.00 to 1.00, then the Borrower or any Subsidiary may nevertheless make any such proposed Acquisition provided that the Cost of Acquisition thereof, together with (i) the Costs of Acquisition of each other Acquisition consummated during the fiscal year in which such proposed Acquisition is to be made and (ii) the aggregate amount of all performance-based earnout payments expected to be payable in respect of such fiscal year, does not exceed an amount equal to 125% of Consolidated EBITDA for the prior fiscal year; provided that with respect to each fiscal year in which an Acquisition is consummated in reliance on this Section 7.10(a)(ii), the Borrower shall deliver a certification (which may be included in the Compliance Certificate delivered concurrently with the audited annual financial statements pursuant to Section 6.01(a)) to the Administrative Agent demonstrating actual compliance with this Section 7.10(a)(ii);
2. Representations and Warranties. In order to induce the Administrative Agent and the Lenders to enter into this Amendment Agreement, the Borrower hereby represents and warrants that:
(a) The representations and warranties made by the Borrower in Article V thereof are true on and as of the date hereof except that the financial statements referred to in Section 6.01 shall be those most recently furnished to the Administrative Agent pursuant to Section 6.01; and
(b) Both before and after giving effect to this Amendment Agreement, no condition exists which, upon the effectiveness of the amendment contemplated hereby, would constitute a Default or an Event of Default on the part of the Borrower under the Credit Agreement or the other Loan Documents, either immediately or with the lapse of time or the giving of notice, or both.
3. Consent and Confirmation. Each of the Guarantors hereby consent to the Borrower entering into this Amendment Agreement, each Guarantor hereby ratifies and confirms its obligations arising under the Guaranty Agreement.
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4. Conditions Precedent. This Amendment Agreement shall become effective upon the Borrower delivering to the Administrative Agent the following:
(i) four (4) counterparts of this Amendment Agreement duly executed by the Borrower, the Administrative Agent, the Lenders, and each Guarantor; and
(ii) such other certificates, instruments and documents as the Administrative Agent shall reasonably request.
5. Entire Agreement. This Amendment Agreement sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relative to such subject matter. No promise, condition, representation or warranty, express or implied, not herein set forth shall bind any party hereto, and no one of them has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as in this Amendment Agreement otherwise expressly stated, no representations, warranties or commitments, express or implied, have been made by any party to the other. None of the terms or conditions of this Amendment Agreement may be changed, modified, waived or canceled orally or otherwise, except by writing, signed by all the parties hereto, specifying such change, modification, waiver or cancellation of such terms or conditions, or of any proceeding or succeeding breach thereof.
6. Full Force and Effect of Agreement. Except as hereby specifically amended, modified or supplemented, the Credit Agreement and all other Loan Documents are hereby confirmed and ratified in all respects and shall remain in full force and effect according to their respective terms.
7. Counterparts. This Amendment Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument.
8. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY (i) SUBMITS TO THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF NEW YORK SITTING IN NEW YORK COUNTY FOR THE PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN DOCUMENTS TO WHICH THEY ARE A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
9. Enforceability. Should any one or more of the provisions of this Amendment Agreement be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto.
10. Credit Agreement. All references in any of the Loan Documents to the Credit Agreement shall mean and include the Credit Agreement as amended hereby.
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11. Successors and Assigns. This Amendment Agreement shall be binding upon and inure to the benefit of each of the Borrower, the Lenders, the Administrative Agent and their respective successors, assigns and legal representatives; provided, however, that the Borrower, without the prior consent of the Lenders, may not assign any rights, powers, duties or obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their duly authorized officers, all as of the day and year first above written.
| Borrower: | ||
| HILB ROGAL & XXXXX COMPANY | ||
| By: | /s/ Xxxxxxx Xxxxx | |
| Name: | Xxxxxxx Xxxxx | |
| Title: | Senior Vice President, Treasurer | |
Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| GUARANTORS: | ||
| Bliss and Xxxxxxx, Inc. | ||
| Chamber Members Benefits Plan, Inc. | ||
| Xx Xxxxxx & Sons, Inc. | ||
| Xxxxx X. Xxxxx & Associates, Inc. | ||
| Xxxxxxx & Company of Wyoming, Inc. | ||
| Xxxxxxx Environmental, Inc. | ||
| Hilb Rogal & Xxxxx Insurance Services of California, Inc. | ||
| Hilb Rogal & Xxxxx Investment Company | ||
| Hilb Rogal & Xxxxx of Alabama, Inc. | ||
| Hilb Rogal & Xxxxx of Amarillo, Inc. | ||
| Hilb Rogal & Xxxxx of Appleton, Inc. | ||
| Hilb Rogal & Xxxxx of Arizona, Inc. | ||
| Hilb Rogal & Xxxxx of Atlanta, Inc. | ||
| Hilb Rogal & Xxxxx of Baltimore, Inc. | ||
| Hilb Rogal & Xxxxx of Chicago, Inc. | ||
| Hilb Rogal & Xxxxx of Colorado, Inc. | ||
| Hilb Rogal & Xxxxx of Connecticut, LLC | ||
| Hilb Rogal & Xxxxx of Xxxxxx Xxxxxxx, Inc. | ||
| Hilb Rogal & Xxxxx of Dallas, Inc. | ||
| Hilb Rogal & Xxxxx of Florida, Inc. | ||
| Hilb Rogal & Xxxxx of Grand Rapids, Inc. | ||
| Hilb Rogal & Xxxxx of Houston, Inc. | ||
| Hilb Rogal & Xxxxx of Illinois, Inc. | ||
| Hilb Rogal & Xxxxx of Kansas, Inc. | ||
| Hilb Rogal & Xxxxx of Lansing, Inc. | ||
| Hilb Rogal & Xxxxx of Massachusetts, LLC | ||
| Hilb Rogal & Xxxxx of McAllen, Inc. | ||
| Hilb Rogal & Xxxxx of Metropolitan Washington, Inc. | ||
| Hilb Rogal & Xxxxx of Nebraska, Inc. | ||
| Hilb Rogal & Xxxxx of New Jersey, LLC | ||
| Hilb Rogal & Xxxxx of New York, LLC | ||
| Hilb Rogal & Xxxxx of Northern New England, Inc. | ||
| Hilb Rogal & Xxxxx of Ohio, LLC | ||
| Hilb Rogal & Xxxxx of Oklahoma, Inc. | ||
| Hilb Rogal & Xxxxx of Oregon, Inc. | ||
| Hilb Rogal & Xxxxx of Philadelphia, LLC | ||
| By: |
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| Name: | Xxxxxxx Xxxxx | |
| Title: | Treasurer | |
Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Hilb Rogal & Xxxxx of Pittsburgh, LLC | ||
| Hilb Rogal & Xxxxx of Port Huron, Inc. | ||
| Hilb Rogal & Xxxxx of San Antonio, Inc. | ||
| Hilb Rogal & Xxxxx of Savannah, Inc. | ||
| Hilb Rogal & Xxxxx of Tennessee, Inc. | ||
| Hilb Rogal & Xxxxx of Texas, X.X. | ||
| Xxxx Xxxxx & Xxxxx of Upstate New York, LLC | ||
| Hilb Rogal & Xxxxx of Virginia, Inc. | ||
| Hilb Rogal & Xxxxx Professional Practice Insurance Brokers, Inc. | ||
| Hilb Rogal & Xxxxx Realty Company | ||
| Hilb Rogal & Xxxxx Services Company | ||
| Xxxxx Group (NY), LLC | ||
| Xxxxx Group Insurance Brokers, LLC | ||
| Xxxxx Group, LLC | ||
| HRH Consulting Group, LLC | ||
| HRH Consulting, LLC | ||
| HRH Merger Company | ||
| Insurance Consultants & Analysts, Inc. | ||
| Integrated Risks Solutions Insurance Services, LLC | ||
| Xxxxxx Xxxxxx Holdings, LLC | ||
| Xxxxxxx & Company, LLC | ||
| Xxxxxxx, Xxxx & Associates, Inc. | ||
| SB&T Captive Management Company | ||
| Xxxxx, Xxxx & Xxxxxxxx, Inc. | ||
| The Managing Agency Group, Inc. | ||
| Westport Insurance Agency, Inc. | ||
| Westport Insurance Agency, LLC | ||
| Westport Insurance Brokerage, LLC | ||
| Westport Worldwide, LLC | ||
| Xxxx Associates, Inc. | ||
| Xxxxx Xxxxx Xxxx Insurance, Inc. | ||
| Xxxx Financial Services, Inc. | ||
| Xxxx and Company, Ltd. | ||
| Professional Liability Insurance, Inc. | ||
| Xxxx Risk Management, Inc. | ||
| By: |
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| Name: | Xxxxxxx Xxxxx | |
| Title: | Treasurer | |
Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| BANK OF AMERICA, N.A., as Administrative Agent | ||
| By: | /s/ Xxxx X. Xxxxxxx | |
| Name: | Xxxx X. Xxxxxxx | |
| Title: | Assistant Vice President | |
Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| BANK OF AMERICA, N.A., as a Lender, Swing Line Lender and L/C Issuer | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| SUNTRUST BANK | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| ING CAPITAL LLC | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| PNC BANK, NATIONAL ASSOCIATION | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| BRANCH BANKING AND TRUST COMPANY OF VIRGINIA | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| CAROLINA FIRST BANK | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| XXXXXX, X.X. | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| FIRST HORIZON BANK, a Division of First Tennessee Bank National Association | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| JPMORGAN CHASE BANK, N.A. | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| REGIONS BANK | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| SUMITOMO MITSUI BANKING CORPORATION | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
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| COMERICA BANK | ||
| By: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
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| NORTH FORK BANK | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| CONSOLIDATED BANK & TRUST COMPANY | ||
| By: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| E. SUN COMMERCIAL BANK, LTD., LOS ANGELES BRANCH | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
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| AIB Debt Management Limited | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Xxxxx Street Funding CLO 2005-1 Ltd. | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Xxxxx Street CLO II Ltd. | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Xxxxx Street CLO III Ltd. | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Blackrock Senior Income Series V (f/k/a Granite Finance Limited) | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Denali Capital LLC, managing member of DC Funding Partners LLC, portfolio manager for Denali Capital CLO V, Ltd., or an affiliate | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Denali Capital LLC, managing member of DC Funding Partners LLC, portfolio manager for Denali Capital CLO VI, Ltd., or an affiliate | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Denali Capital LLC, managing member of DC Funding Partners LLC, portfolio manager for Denali Capital CLO VII, Ltd., or an affiliate | ||
| By: |
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| Name: |
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| Title: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Harch CLO III Limited | ||
| By: |
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| Name: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
| Harch CLO II Limited | ||
| By: |
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| Name: |
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Hilb Rogal & Xxxxx Company
Amendment No. 1 to Credit Agreement
Signature Page
