EXHIBIT 9
EXECUTION COPY
Amendment No. 1 to
Secured Credit Agreement
and Amendment No. 1 to
Security Agreement
dated as of August 2, 1996
In re:
SECURED CREDIT AGREEMENT
dated as of August 15, 1995
Between
HYPERION PARTNERS II L.P.
and
THE BANK OF NEW YORK
Amendment No. 1
to
Secured Credit Agreement
and
Amendment No. 1 to Security Agreement
Dated as of August 2, 1996
HYPERION PARTNERS II L.P., a Delaware limited partnership (the
"Partnership") and THE BANK OF NEW YORK (the "Bank"), having previously entered
into between themselves a Secured Credit Agreement dated as of August 15, 1995
(the "Secured Credit Agreement"), and a related Security Agreement dated as of
August 15, 1995 (the "Security Agreement") agree, subject to the terms and
conditions herein stated, to amend the Secured Credit Agreement and the Security
Agreement as follows (capitalized terms used but not defined herein are used as
defined in the Secured Credit Agreement; this Agreement being hereafter referred
to as this "Amendment"):
I. Secured Credit Agreement Amendments
Upon the effectiveness of this Amendment, the Secured Credit
Agreement is amended as follows:
1.1 The last sentence of Section 1.01 shall be amended to read in
its entirety as follows:
"The Commitment on the Amendment Date is $20,000,000".
1.2 Section 3.02 shall be amended by replacing the phrase "As of the
Agreement Date," with "As of the Amendment Date,".
1.3 Section 9.01(a) of the Secured Credit Agreement is amended by
adding the following definition:
"'Amendment Date' means, August 2, 1996, which date is the date
executed copies of Amendment No. 1 to this
Agreement and Amendment No. 1 to the Security Agreement were
delivered by all parties thereto and, accordingly, the date on which
Amendment No. 1 to this Agreement and Amendment No. 1 to the
Security Agreement became effective and, for the first time, binding
upon the parties hereto.".
1.4 The definition of "Termination Date", as set forth in Section
9.01(a) of the Secured Credit Agreement is amended in its entirety to read as
follows:
"'Termination Date' means the date which is 364 days from and
including the Amendment Date.".
1.5 Schedule 3.08 of the Secured Credit Agreement is replaced with
Exhibit A hereto.
1.6 Exhibit A-1 to the Secured Credit Agreement is replaced with
Exhibit A-1 hereto.
II. Security Agreement Amendments
Upon the effectiveness of this Amendment, the Security Agreement is
amended as follows:
2.1 the First WHEREAS recital is amended to read in its entirety as
follows:
"WHEREAS, Debtor and Secured Party entered into a Secured
Credit Agreement dated as of August 15, 1995 (as amended from time
to time, the "Secured Credit Agreement"), pursuant to which the
Secured Party has committed to extend to the Debtor, and the Debtor
may obtain from the Secured Party, credit in the form of Loans in
the aggregate principal amount not to exceed $20,000,000 (the
"Commitment"), and Debtor has executed and delivered to the Secured
Party a promissory note dated as of August 2, 1996 in the aggregate
principal amount of $20,000,000 bearing interest as set forth in the
Secured Credit Agreement (as amended or substituted from time to
time, the "Note"). This Agreement, the Secured Credit Agreement, the
Note and all other agreements, documents and instruments relating
to, arising out of, or in any way connected with any of the
foregoing, are referred to herein as the "Loan Documents"; all
debts, liabilities and obligations evidenced by or arising hereunder
or by or under any of the Loan Documents, including any extensions,
renewals, refinancing or changes in form thereof, are hereinafter
referred to as the "Obligations"; other terms used but not defined
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herein that are defined in the Secured Credit Agreement are used
with the meanings there ascribed to them;".
2.2 Schedule A to the Security Agreement is replaced by Exhibit B
hereto.
2.3 Schedule C to the Security Agreement is replaced by Exhibit C
hereto.
III. Conditions
3.1 Conditions to the Effectiveness of This Amendment. The
effectiveness of this Amendment is subject to the receipt by the Bank of each of
the following, in form and substance and, in the case of the materials referred
to in clause (b), certified in a manner satisfactory to the Bank:
(a) this Amendment and the replacement Note each duly executed
by every Loan Party thereto;
(b) a certificate of the Vice President and Secretary of the
general partner of the General Partner of the Borrower, dated as of the date
hereof, substantially in the form of Annex A hereof and the resolutions referred
to in such certificate;
(c) replacement Capital Call Notices in the form of Schedule C
to the Security Agreement (as amended hereby), duly executed in blank with
respect to, and in the amounts of, each of the Pledged Capital Commitments set
forth opposite such partner's name on Schedule A to the Security Agreement (as
amended hereby); and
IV. Representations and Warranties
4.1 Representations and Warranties. The Borrower represents and
warrants that:
(a) except for any Default or Event of Default expressly
waived by the Bank in Section 5.2 below, no Default or Event of Default has or
shall have occurred and be continuing either before or after giving effect to
this Amendment; and
(b) except as stated in writing to the Secured Party on or
before the date hereof, all of the Loan Document Representations and Warranties
are true and accurate as if made on the date hereof, provided that, for purposes
of this Section 4.1(b), the reference to "this Agreement" in Section 3.03 to the
Secured Credit Agreement shall be deemed to be a reference to this Amendment.
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V. Miscellaneous
5.1. Effect on Loan Documents. (a) Except as specifically amended or
supplemented by this Amendment and the other documents delivered hereunder, each
of the Loan Documents and the Schedules and Exhibits thereto shall remain in
full force and effect and are hereby ratified and affirmed.
(b) Except as may be expressly stated in this Amendment, nothing
contained in this Amendment or any documents delivered hereunder, nor the
execution, delivery or effectiveness thereof, shall operate as a waiver of any
right, power or remedy of the Secured Party under any provision of the Loan
Documents.
5.2 Waiver of Notice. The Bank hereby consents to the admission of
each of LJR Limited Partnership and BT Investment Partners, Inc. (the "New
Partners") to Hyperion Partners II L.P. and waives any notice required to be
delivered to it in accordance with the Secured Credit Agreement as such notice
relates to the admission to the partnership of the New Partners. The Bank's
consent set forth in this Section 5.2 shall be effective as of June 27, 1996.
5.2 Governing Law. This Amendment and the documents delivered
hereunder shall be construed in accordance with and governed by the laws of the
State of New York.
5.3 Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized representatives on this 2nd day of August,
1996.
HYPERION PARTNERS II L.P.,
a Delaware limited partnership
By: HYPERION VENTURES II L.P.,
Its General Partner
By: HYPERION FUNDING II CORP.,
Its General Partner
By /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and
Secretary
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Agreement Date: August 2, 1996
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