FIRST AMENDMENT ---------------
Exhibit 10.1
FIRST AMENDMENT
---------------
FIRST AMENDMENT (this "Amendment"), dated as of June 30, 2001,
among XXXXXX HOLDING CO. (DE), INC. (the "Borrower"), the Guarantors party
hereto, the lending institutions party to the Credit Agreement referred to below
(each a "Lender" and, collectively, the "Lenders"), and BANKERS TRUST COMPANY,
as Administrative Agent (in such capacity, the "Administrative Agent"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are party to a Credit Agreement, dated as of November 24, 1997 (as
amended, modified and supplemented prior to the date hereof, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Lenders provide
the amendments provided for herein and the Lenders have agreed to provide such
amendments on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. Section 9.9 of the Credit Agreement is hereby amended by replacing
the existing table appearing therein with the following new table:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- -----
1997 Fourth 6.75:1.00
1998 First 6.75:1.00
Second 6.75:1.00
Third 6.75:1.00
Fourth 6.75:1.00
1999 First 6.50:1.00
Second 6.50:1.00
Third 6.50:1.00
Fourth 6.50:1.00
2000 First 6.00:1.00
Second 6.00:1.00
Third 5.75:1.00
Fourth 5.75:1.00
2001 First 5.75:1.00
Second 5.00:1.00
Third 5.00:1.00
Fourth 4.75:1.00
2002 First 4.50:1.00
Second 4.50:1.00
Third 4.50:1.00
Fourth 4.25:1.00
2003 First 4.25:1.00
Second 4.25:1.00
Third 4.25:1.00
Fourth 4.25:1.00
2004 First 4.25:1.00
Second 4.00:1.00
Third 4.00:1.00
Fourth 3.75:1.00
2005 First 3.75:1.00
Second 3.50:1.00
Third 3.50:1.00
Fourth 3.50:1.00
2. Section 9.10 of the Credit Agreement is hereby amended by replacing
the existing table appearing therein with the following new table:
Fiscal Year Fiscal Quarter Ratio
----------- -------------- -----
1997 Fourth 1.60:1.00
1998 First 1.60:1.00
Second 1.60:1.00
Third 1.60:1.00
Fourth 1.60:1.00
1999 First 1.60:1.00
Second 1.60:1.00
Third 1.60:1.00
Fourth 1.70:1.00
2000 First 1.70:1.00
Second 1.70:1.00
Third 1.70:1.00
Fourth 1.80:1.00
2001 First 1.80:1.00
Second 2.00:1.00
Third 2.00:1.00
Fourth 2.00:1.00
2002 First 2.00:1.00
Second 2.00:1.00
Third 2.00:1.00
Fourth 2.00:1.00
2003 First 2.00:1.00
Second 2.00:1.00
Third 2.00:1.00
Fourth 2.25:1.00
2004 First 2.25:1.00
Second 2.25:1.00
Third 2.25:1.00
Fourth 2.25:1.00
2005 First 2.25:1.00
Second 2.25:1.00
Third 2.25:1.00
Fourth 2.25:1.00
3. Section 9.11 of the Credit Agreement is hereby amended by replacing
the existing table appearing therein with the following new table:
Fiscal Year Fiscal Quarter Amount
----------- -------------- ------
1997 Fourth $48,000,000
1998 First $49,000,000
Second $50,000,000
Third $50,000,000
Fourth $51,000,000
1999 First $53,000,000
Second $56,000,000
Third $58,000,000
Fourth $60,000,000
2000 First $63,000,000
Second $66,000,000
Third $69,000,000
Fourth $72,000,000
2001 First $73,500,000
Second $65,000,000
Third $65,000,000
Fourth $65,000,000
2002 First $65,000,000
Second $70,000,000
Third $70,000,000
Fourth $75,000,000
2003 First $80,000,000
Second $85,000,000
Third $85,000,000
Fourth $90,000,000
2004 First $90,000,000
Second $96,000,000
Third $97,000,000
Fourth $98,000,000
2005 First $99,000,000
Second $100,000,000
Third $100,000,000
Fourth $100,000,000
4. Immediately upon the occurrence of the Amendment Effective Date,
Schedule I to the Credit Agreement shall be amended by replacing said Schedule
in its entirety with the Schedule set forth in Annex A hereto (with the effect
of such amendment being to reduce the Revolving Credit Commitment of each Lender
with such a Revolving Credit Commitment by an amount equal to such Lender's
Revolving Credit Commitment Percentage of $30,000,000, and with such reduction
to constitute a permanent reduction to the Revolving Credit Commitments pursuant
to Section 5.3 of the Credit Agreement); PROVIDED that, notwithstanding the
foregoing, the addresses set forth in Schedule I to the Credit Agreement before
giving effect to this Amendment shall continue in effect as to those Lenders
appearing thereon unless or until notice to the contrary has been provided to
the Borrower in accordance with the Credit Agreement, and the addresses of such
other Lenders not appearing on such Schedule shall be those last notified to the
Borrower in accordance with the Credit Agreement.
5. In order to induce the Lenders to enter into this Amendment, the
Borrower (and, for purposes of clause (b) below, each Guarantor) hereby (a)
represents and warrants that (i) no Default or Event of Default exists as of the
Amendment Effective Date (as defined below) after giving effect to this
Amendment, (ii) on the Amendment Effective Date, after giving effect to this
Amendment, all representations and warranties contained in the Credit Agreement
and in the other Credit Documents are true and correct in all material respects
and (iii) Annex B hereto sets forth a complete list of Holdings, the Borrower
and all Domestic Subsidiaries of the Borrower, including, in each case, such
entity's exact legal name, organizational I.D. number and jurisdiction of
Incorporation or formation, and (b) consents and agrees, for itself and each of
its Subsidiaries, that the Administrative Agent may file UCC-1 financing
statements in respect of the assets of Holdings, the Borrower and each other
Credit Party (including UCC-1 Financing Statements listing all of such
respective Credit Party's assets as collateral) without the signature of such
Credit Party in all places where same is permitted by law and where the filing
of same is, in the reasonable judgment of the Collateral Agent, desirable to
establish, preserve and/or protect the security interests of the Collateral
Agent purported to be created by the Security Documents, including, without
limitation, the filing of new financing statements and "in lieu of" financing
statements in the jurisdiction of organization of such Credit Party pursuant to
Revised Article 9 of the Uniform Commercial Code.
6. This Amendment shall become effective on the date (the "Amendment
Effective Date") when (i) the Borrower, each Guarantor and the Required Lenders
shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its notice office
specified in the Credit Agreement and (ii) the Borrower pays to the
Administrative Agent, for the ratable account of each Bank which executes and
returns a copy of this Amendment on or prior to 5:00 P.M. (New York time) on
July 24, 2000, a consent fee equal to 0.15% of the sum of such Bank's
outstanding Term Loans and Revolving Loan Commitment as of such date (in each
case immediately after giving effect to this Amendment).
7. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
8. This Amendment may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent. On
and after the Amendment Effective Date, this Amendment shall constitute a Credit
Document for all purposes of the Credit Agreement and the other Credit
Documents.
9. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date hereof.
XXXXXX HOLDING CO. (DE), INC.
By: /S/ XXXXX X. FRIEND
-------------------
Name: Xxxxx X. Friend
Title: Vice President, Chief Financial
Officer and Treasurer
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By: /S/ XXXXXXX X. SHEFRIR
----------------------
Name: Xxxxxxx X. Shefrir
Title: Director
ARAB BANKING CORPORATION (B.S.C.)
By: /S/ XXXXX X. XxXXXXXX
----------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
BANK ONE, NA
By:
--------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION
COMPANY
By: /S/ XXXXX XXXXXXXX
----------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /S/ XXXXXXX X. XXXXXX
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
BLUE SQUARE FUNDING
By:
--------------------------------
Name:
Title:
SIERRA CLO I
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By: /S/ XXXX X. XXXXXX
------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
CREDIT AGRICOLE INDOSUEZ
By: /S/ XXXXXXX X. XXXXXXX
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Sr. Relationship
Manager
By: /S/ XXXX X. XXXXXXX
-------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Senior Relationship
Manager
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN
By: Xxxxx Xxxxx Management, as Investment
Advisor
By:
--------------------------------
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as Investment
Advisor
By:
--------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
--------------------------------
Name:
Title:
APEX (IDM) CDO I, LTD.
By:
--------------------------------
Name:
Title:
ELC (CAYMAN) 2000-1
By:
--------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
--------------------------------
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /S/ XXXXXXXXX XXXXXXX
--------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signatory
HIGHLAND - LOAN FUND V
By:
--------------------------------
Name:
Title:
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC, as Collateral
Manager
By:
--------------------------------
Name:
Title:
ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC, as Collateral
Manager
By:
--------------------------------
Name:
Title:
NEMEAN CLO, LTD.
By: ING Capital Advisors LLC, as Investment
Manager
By:
--------------------------------
Name:
Title:
SEQUILS - ING I (HBDGM), LTD.
By: ING Capital Advisors LLC, as Collateral
Manager
By:
--------------------------------
Name:
Title:
SWISS LIFE US RAINBOW LIMITED
By: ING Capital Advisors LLC, as Investment
Manager
By:
--------------------------------
Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION
By: /S/ XXXXX X. X. XXXXXX
----------------------
Name: Xxxxx X. X. Xxxxxx
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
--------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC
By: /S/ XXXXXX X. XXXXXXXX
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
PNC BANK NA
By: /S/ XXXX XXXXXX
--------------------------------
Name: Xxxx Xxxxxx
Title: AVP
XXXXXXXXX/RMF TRANSATLANTIC, CDO
By: Xxxxxxxxx Capital Partners LLC, as its
Investment Manager
By: /S/
-------------------------------
Name:
Title:
WINDSOR LOAN FUNDING, LIMITED
By: Xxxxxxxxx Capital Partners LLC, as its
Investment Manager
By: /S/
--------------------------------
Name:
Title:
KZH CRESCENT LLC
By: /S/ XXXXX XXX
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CRESCENT-2 LLC
By: /S/ XXXXX XXX
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH CRESCENT-3 LLC
By: /S/ XXXXX XXX
-------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
KZH STERLING LLC
By:
-------------------------------
Name:
Title:
SEQUILS IV, LTD.
By: TCW Advisors, Inc.
as its Collateral Manager
By: /S/ G. XXXXXX XXXXX
-------------------
Name: G. Xxxxxx Xxxxx
Title: Vice President
By: /S/ XXXX X. GOLD
----------------
Name: Xxxx X. Gold
Title: Managing Director
SIERRA CLO I
By: /S/ XXXX X. CARPENTON
---------------------
Name: Xxxx X. Carpenton
Title: Chief Operating Officer, Central
Pacific LLP (Manager)
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Investment Advisory Corp.
By:
-------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST,
By: Xxx Xxxxxx Investment Advisory Corp.
By:
-------------------------------
Name:
Title:
For purposes of the Credit Documents to which the Guarantors
are party, by their respective signatures below, each Guarantor hereby consents
and agrees to the entering into of this Amendment (including, without
limitation, the provisions of Paragraph 5(b) hereof) and acknowledges and
affirms that the Guaranty and the other Credit Documents to which it is a party
remain in full force and effect in accordance with their respective terms on the
date hereof and after giving effect to this Amendment:
XXXXXX HOLDING CO. (PA), INC.
XXXXXX CO.
WIP TECHNOLOGIES, INC.
By:
--------------------------------
Name:
Title:
ANNEX A
-------
Lenders and Commitments
-----------------------
----------------------------------------------------------------------------------------------------------------------------------
PRIMARIES/ASSIGNEES OUTSTANDING PRINCIPAL OUTSTANDING PRINCIPAL REVOLVING CREDIT COMMITMENT
------------------- --------------------- --------------------- ---------------------------
AMOUNT OF B TERM LOANS AMOUNT OF C TERM LOANS
---------------------- ----------------------
----------------------------------------------------------------------------------------------------------------------------------
BTCO $1,706,713.54 $3,660,372.01 $10,395,000.00
AMEX - KZH STERLING LLC - 4,753,480.93 -
ARAB BKG CORP - - 3,570,000.00
BK ONE NA 3,072,957.41 - 7,588,518.51
BANK OF TOKYO-MITSUBISHI TRUST COMPANY 3,072,957.41 - 4,900,000.00
BKBOSTON/FLEET 2,688,837.73 - 4,270,000.00
BLUE SQUARE FUNDING 2,568,136.36 3,138,833.28 -
CENTRE PACIFIC - SIERRA CLO I 2,462,305.61 2,462,305.58 -
CHASE(JPM) 3,168,987.33 - 5,110,000.00
CR AGRICOLE INDOSUEZ 2,688,837.73 - 6,670,000.00
XXXXX XXXXX INST'L SENIOR 488,701.90 - -
XXXXX XXXXX SNR INC TRT 1,935,111.75 - -
XXXXX XXXXX SR DEBT PORT 4,705,311.06 4,753,480.99 -
FLEET BK 2,688,837.73 - 4,270,000.00
FST UNION - APEX(IDM) 3,982,270.02 5,866,952.38 -
FST UNION - ELC (CAY) 2000-1 6,980,715.32 - -
FST UNION NB 3,072,957.41 - 4,900,000.00
XXXXXXX XXXXX XX PTNRS L.P. 3,168,987.33 - 2,710,000.00
HIGHLAND - KZH PAMCO LLC 2,568,136.37 3,138,833.27 -
HIGHLAND - LOAN FUND V 2,481,393.25 2,481,393.23 -
ING - ARCHIMEDES II 2,171,530.79 2,654,093.18 -
ING - ARCHIMEDES III 1,728,538.54 2,112,658.19 -
ING - NEMEAN CLO, LTD 2,160,673.18 2,640,822.74 -
ING - SEQUILS - ING I - 2,118,813.55 -
ING - SWISS LIFE 1,086,043.92 1,066,999.06 -
XXXXXXX XXXXX CAP CORP 1,116,792.36 - 5,495,000.00
THE MITSUBISHI TRUST AND BANKING 2,688,837.73 - 4,270,000.00
CORPORATION COMPANY
NATWEST PLC 995,865.87 - 1,581,481.49
PNC BK NA 2,688,837.73 - 4,270,000.00
XXXXXXXXX - RMF TRANSATLANTIC 4,766,103.48 2,376,740.46 -
XXXXXXXXX - XXXXXXX LOAN 5,052,955.73 - -
TCW - KZH CRESCENT LLC 664,822.51 812,560.86 -
TCW - KZH CRESCENT-2 LLC 886,430.03 1,083,414.47 -
TCW - KZH CRESCENT-3 LLC 664,822.51 812,560.86 -
TCW SEQUILS I 1,673,136.66 2,044,944.79 -
VKM CLO I 3,041,060.08 1,858,425.57 -
VKM PRIME RATE INCOME 1,538,320.66 2,978,769.41 -
----------------------------------------------------------------------------------------------------------------------------------
ANNEX B
Company Names, I.D. Numbers and Jurisdictions
---------------------------------------------
Organizational
Exact Legal Name I.D. Number Jurisdiction of Formation
---------------- ----------- -------------------------
Xxxxxx Holding Co. (PA), Inc. 00-0000000 Pennsylvania
Xxxxxx Holding Co. (DE), Inc. 00-0000000 Delaware
Xxxxxx Co. 00-0000000 Pennsylvania
WIP Technologies, Inc. 00-0000000 Delaware
Wentworth Institutional Realty, Inc. 00-0000000 Delaware
Xxxxxx Funding Corporation 00-0000000 Delaware
Xxxxxx Ladder Inc. 00-0000000 Delaware
