FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT to Amended and Restated Credit Agreement is dated
as of March 16, 1998, and is made by and among XXXXX & XXXXX COMPANY, a Delaware
corporation (the "Borrower"), each of the GUARANTORS, the BANKS and PNC BANK,
NATIONAL ASSOCIATION, in its capacity as agent for the Banks (hereinafter
referred to in such capacity as the "Agent").
BACKGROUND
WHEREAS, the parties hereto are parties to that certain Amended and
Restated Credit Agreement dated as of January 26, 1998 (the "Agreement"),
pursuant to which the Banks provided to the Borrower a revolving credit facility
in an aggregate principal amount not to exceed $35,000,000 at any one time
outstanding; and
WHEREAS, the Borrower has requested the Lender to amend the negative
covenant in the Agreement with respect to permitted indebtedness in order to
address certain indebtedness which the Borrower or Xxxxx & Xxxxx Management
Services, Inc. may incur in connection with Permitted Acquisitions.
AGREEMENT
NOW THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Capitalized terms used herein unless otherwise defined herein shall have
the meanings ascribed to them in the Agreement.
2. Subsection 8.2.1(iv) of the Agreement is hereby amended and restated as
follows:
"(iv) Indebtedness in the form of Earn-Out Consideration and
Acquisition Indebtedness when such Acquisition Indebtedness is due within two
years of the date of the Permitted Acquisition, provided that all such Earn-Out
Consideration and Acquisition Indebtedness shall be unsecured and shall be
subordinated to the Obligations on terms and conditions acceptable to the
Required Banks in their absolute discretion."
3. The Loan Parties reconfirm and ratify the Agreement and the Loan Documents
all in accordance with their respective terms, except to the extent that
any of those terms are expressly modified by the provisions of this
Amendment, and the Loan Parties confirm that the Agreement and the Loan
Documents have at all times since the date of their respective execution
and delivery continued in full force and effect.
4. The provisions of this Agreement shall bind the Loan Parties and their
respective successors and assigns and are for the benefit of the Agent and
the Banks and their respective successors and assigns.
5. The Loan Parties each represent that it has the corporate power and has
been duly authorized by all requisite corporate action to execute and
deliver this Amendment and to perform its obligations hereunder.
6. The Loan Parties each represent that this Amendment has been duly executed
and delivered by such Loan Party and constitutes the legal, valid and
binding obligations of such Loan Party, enforceable against such Loan Party
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws affecting the
enforceability of creditors rights generally or by general equitable
principles.
7. Neither this Amendment nor the consummation of the transactions
contemplated herein nor the performance by the Loan Parties of their
respective obligations hereunder or under the Agreement or the Loan
Documents will (i) violate any law, rule or regulation or court order to
which any Loan Party is subject; (ii) conflict with or result in a breach
of any Loan Party's certificate of incorporation or bylaws or any material
agreement or instrument to which any Loan Party is subject or by which its
properties are bound or (iii) result in the creation or imposition of any
lien, security interest or encumbrance on the property of any Loan Party,
whether now owned or hereafter acquired, other than liens in favor of the
Agent for the benefit of the Banks.
8. This Amendment may be executed by different parties hereto on any number of
separate counterparts, each of which, when so executed and delivered, shall
be an original, and all such counterparts shall together constitute one and
the same instrument.
[SIGNATURES APPEAR ON THE NEXT PAGE.]
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IN WITNESS WHEREOF, and intending to be legally bound hereby, this First
Amendment to Amended and Restated Credit Agreement has been duly signed, sealed
and delivered by the undersigned parties as of the day and year specified at the
beginning hereof.
XXXXX & XXXXX COMPANY
By: /s/ Xxxxx Xxxxxx (Seal)
-------------------------------
Name: Xxxxx Xxxxxx
------------------------------
Title: SVP, CFO
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EACH OF THE SUBSIDIARIES OF XXXXX &
XXXXX COMPANY SET FORTH ON THE
ATTACHED SCHEDULE I
By: /s/ Xxxxx Xxxxxx (Seal)
-------------------------------
Name: Xxxxx Xxxxxx
----------------------------
the SVP,CFO
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of each of the Loan Parties set
forth on Schedule I attached hereto
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxx X. Xxxxx
-------------------------------
Title: SVP
----------------------------
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: /s/ Xxxx Xxxxxxx
------------------------------
Title: Vice President
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