Exhibit 4.3
FIRST AMENDMENT TO CREDIT AGREEMENT
This Amendment is made as of this 22nd day of December, 1997,
by and among INTERRA FINANCIAL INCORPORATED, a Delaware
corporation (the "Borrower"), the banks or financial institutions
listed on the signature pages hereof (individually referred to as
a "Bank" or collectively as the "Banks"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (formerly known as
First Bank National Association), as agent for the Banks ( in
such capacity, the "Agent").
RECITALS
A. The Borrower, the Banks and the Agent have entered into a
Credit Agreement dated as of June 27, 1997 (the "Credit
Agreement").
B. The Borrower has advised the Banks and the Agent that (i)
effective January 2, 1998, Xxxx Xxxxxxxx Corporation, a newly
organized Delaware corporation, will be merged into the Borrower,
with the Borrower as the surviving corporation and simultaneously
with such merger the name of the Borrower will be changed to Xxxx
Xxxxxxxx Corporation (the foregoing merger and name change is
herein called the "Xxxx Xxxxxxxx Corporation Merger and Name
Change"), (ii) effective January 2, 1998, Xxxxxxxx Xxxxxx
Refsnes, Inc., a Delaware corporation, will be merged into Xxxx
Xxxxxxxx Incorporated, a Delaware corporation, with Xxxx Xxxxxxxx
Incorporated being the surviving corporation and simultaneously
with such merger the name of Xxxx Xxxxxxxx Incorporated will be
changed to Xxxx Xxxxxxxx Incorporated (the foregoing merger and
name change is herein called the "First Xxxx Xxxxxxxx
Incorporated Merger and Name Change"), (iii) effective March 2,
1998, Xxxx Xxxxxxxx Incorporated will be merged into Interra
Clearing Services Inc., a Minnesota corporation, with Interra
Clearing Services Inc. as the surviving corporation and
simultaneously with such merger the name of Interra Clearing
Services Inc. will be changed to Xxxx Xxxxxxxx Incorporated (the
foregoing merger and name change is herein called the "Second
Xxxx Xxxxxxxx Incorporated Merger and Name Change"), and (iv)
effective January 2, 1998, the name of Interra Lending Services
Inc., a Minnesota corporation, will be changed to Xxxx Xxxxxxxx
Lending Services Inc. (the foregoing name change is herein called
the "Xxxx Xxxxxxxx Lending Services Inc. Name Change").
C. The Borrower has requested that the Banks and the Agent
consent to the above-described mergers and name changes and amend
certain provisions of the Credit Agreement, and the Banks and the
Agent are willing to do so pursuant to the terms and conditions
set forth in this Amendment.
ACCORDINGLY, the parties hereto hereby agree as follows:
1. Terms used in this Amendment which are defined in the Credit
Agreement shall have the same meanings as defined therein, unless
otherwise defined herein.
2. Subject to the terms and conditions of this Amendment, the
Banks and the Agent hereby consent to the Xxxx Xxxxxxxx
Corporation Merger and Name Change, the First Xxxx Xxxxxxxx
Incorporated Merger and Name Change, the Second Xxxx Xxxxxxxx
Incorporated Merger and Name Change and the Xxxx Xxxxxxxx Lending
Services Inc. Name Change.
3. From and after the time when the Xxxx Xxxxxxxx Corporation
Merger and Name Change becomes effective, all references in the
Credit Agreement and the other Loan Documents to "the Borrower"
shall be deemed to be references to Xxxx Xxxxxxxx Corporation, a
Delaware corporation.
4. From and after the time when the First Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective, all
references in the Credit Agreement and the other Loan Documents
to "Xxxx Xxxxxxxx Incorporated" or "Xxxx Xxxxxxxx" or to
"Xxxxxxxx Xxxxxx Refsnes, Inc." or "Xxxxxxxx Xxxxxx Refsnes"
shall be deemed to be references to Xxxx Xxxxxxxx Incorporated, a
Delaware corporation.
5. From and after the time when the Second Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective, all
references in the Credit Agreement and the other Loan Documents
to "Xxxx Xxxxxxxx Incorporated" or "Xxxx Xxxxxxxx" or to
"Xxxxxxxx Xxxxxx Refsnes, Inc." or "Xxxxxxxx Xxxxxx Refsnes" or
to "Interra Clearing Services Inc." or "Interra Clearing
Services" shall be deemed to be references to Xxxx Xxxxxxxx
Incorporated, a Minnesota corporation.
6. From and after the time when the Xxxx Xxxxxxxx Lending
Services Inc. Name Change becomes effective, all references in
the Credit Agreement and the other Loan Documents to "Interra
Lending Services Inc." or "Interra Lending Services" shall be
deemed to be references to Xxxx Xxxxxxxx Lending Services Inc.
7. From and after the date of this Amendment, all references in
the Credit Agreement and in the other Loan Documents to "First
Bank National Association" or "First Bank" shall be deemed to be
references to "U.S. Bank National Association (formerly known as
First Bank National Association)".
8. ARTICLE I of the Credit Agreement is hereby amended by adding
the following new definition of "First Amendment to Credit
Agreement" in the appropriate alphabetical location in ARTICLE I:
"`First Amendment to Credit Agreement': The First Amendment to
Credit Agreement dated as of December 22, 1997, by and among the
Borrower, the Banks and the Agent."
9. During the period from the time when the First Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective until the
time when the Second Xxxx Xxxxxxxx Incorporated Merger and Name
Change becomes effective, the definition of "Material Subsidiary"
in ARTICLE I of the Credit Agreement shall be deemed to read as
follows:
"`Material Subsidiary':
(a) For so long as they shall be Subsidiaries of the Borrower,
Xxxx Xxxxxxxx Incorporated and Interra Clearing Services; and
(b) For any fiscal year of the Borrower, any other Subsidiary of
the Borrower (i) which contributed (or, in the case of any
Subsidiary acquired during such fiscal year, would have
contributed, if acquired, at the beginning of the preceding
fiscal year) more than 10% of the revenues of Borrower and its
Subsidiaries on a consolidated basis during the preceding fiscal
year or (ii) which had (or, in the case of any Subsidiary
acquired during such fiscal year, would have had, if acquired on
the last day of the preceding fiscal year) aggregate assets in
excess of 10% of the assets of Borrower and its Subsidiaries on a
consolidated basis at the close of the preceding fiscal year."
10. From and after the time when the Second Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective, the
definition of "Material Subsidiary" in ARTICLE I of the Credit
Agreement shall be deemed to read as follows:
"`Material Subsidiary':
(a) For so long as it shall be a Subsidiary of the Borrower, Xxxx
Xxxxxxxx Incorporated; and
(b) For any fiscal year of the Borrower, any other Subsidiary of
the Borrower (i) which contributed (or, in the case of any
Subsidiary acquired during such fiscal year, would have
contributed, if acquired, at the beginning of the preceding
fiscal year) more than 10% of the revenues of Borrower and its
Subsidiaries on a consolidated basis during the preceding fiscal
year or (ii) which had (or, in the case of any Subsidiary
acquired during such fiscal year, would have had, if acquired on
the last day of the preceding fiscal year) aggregate assets in
excess of 10% of the assets of Borrower and its Subsidiaries on a
consolidated basis at the close of the preceding fiscal year."
11. Section 7.16 of the Credit Agreement is hereby amended to
read as follows:
"Section 7.16 Subsidiaries. Exhibit A to the First Amendment to
Credit Agreement sets forth, as of the time when the Second Xxxx
Xxxxxxxx Incorporated Merger and Name Change becomes effective, a
list of all Subsidiaries which are directly owned by the Borrower
and which are currently operating and the number and percentage
of the shares of each class of capital stock owned beneficially
or of record by the Borrower therein, and the jurisdiction of
incorporation of each such Subsidiary."
12. From and after the time when the Second Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective, Section
8.1(a) of the Credit Agreement shall be amended to read as
follows:
"(a) As soon as available and in any event within 90 days after
the end of each fiscal year of the Borrower, the annual audit
reports of the Borrower and Xxxx Xxxxxxxx Incorporated and the
unaudited financial statements of Xxxx Xxxxxxxx Lending Services
Inc. prepared on a consolidated basis and in conformity with
GAAP, consisting of at least statements of income, cash flow and
stockholders' equity, and a consolidated balance sheet as at the
end of such year, setting forth in each case in comparative form
corresponding figures from the previous annual audit, certified
without qualification by certified public independent auditors of
recognized standing selected by the Borrower and acceptable to
the Agent."
13. During the period from the time when the First Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective until the
time when the Second Xxxx Xxxxxxxx Incorporated Merger and Name
Change becomes effective, Section 9.8 of the Credit Agreement
shall be deemed to read as follows:
Section 9.8 Investments. The Borrower will not make, and the
Borrower will not permit to exist, any direct or indirect
investment (whether by means of equity, debt or otherwise) by the
Borrower in any other Person, except:
(a) Investments by the Borrower in Xxxx Xxxxxxxx Incorporated and
Interra Clearing Services;
(b) Investments by the Borrower, Xxxx Xxxxxxxx Incorporated or
Interra Clearing Services in Subsidiaries other than Xxxx
Xxxxxxxx Incorporated and Interra Clearing Services in an
aggregate amount not to exceed at any time eight percent (8%) of
the Borrower's Consolidated Net Worth;
(c) Investments made after the date of this Agreement to acquire
all or substantially all of the assets or stock of other Persons,
provided that (i) the sum of all cash consideration paid, the
current market value (as of the date of such Investment) of all
property given and all Indebtedness incurred and assumed in
connection with all such investments made after the date of this
Agreement shall not exceed an aggregate amount of $100,000,000
and (ii) any Person whose assets or stock are so acquired shall
be engaged solely in a business carried on by the Borrower or a
Subsidiary of the Borrower on the date of this Agreement."
14. From and after the time when the Second Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective, Section
9.8 of the Credit Agreement shall be deemed to read as follows:
"Section 9.8 Investments. The Borrower will not make, and the
Borrower will not permit to exist, any direct or indirect
investment (whether by means of equity, debt or otherwise) by the
Borrower in any other Person, except:
(d) Investments by the Borrower in Xxxx Xxxxxxxx Incorporated;
(e) Investments by the Borrower or Xxxx Xxxxxxxx Incorporated in
Subsidiaries other than Xxxx Xxxxxxxx Incorporated in an
aggregate amount not to exceed at any time eight percent (8%) of
the Borrower's Consolidated Net Worth;
(f) Investments made after the date of this Agreement to acquire
all or substantially all of the assets or stock of other Persons,
provided that (i) the sum of all cash consideration paid, the
current market value (as of the date of such Investment) of all
property given and all Indebtedness incurred and assumed in
connection with all such investments made after the date of this
Agreement shall not exceed an aggregate amount of $100,000,000
and (ii) any Person whose assets or stock are so acquired shall
be engaged solely in a business carried on by the Borrower or a
Subsidiary of the Borrower on the date of this Agreement."
15. During the period from the time when the First Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective until the
time when the Second Xxxx Xxxxxxxx Incorporated Merger and Name
Change becomes effective, Section 9.14 of the Credit Agreement
shall be deemed to read as follows:
"Section 9.14 Minimum Net Capital Required for Interra Clearing
Services. The Borrower will not permit the Net Capital of
Interra Clearing Services at any time to be less than the greater
of (A) $50,000,000 or (B) six percent (6%) of the Aggregate Debit
Items of Interra Clearing Services."
16. From and after the time when the Second Xxxx Xxxxxxxx
Incorporated Merger and Name Change becomes effective, Section
9.14 of the Credit Agreement shall be deemed to read as follows:
"Section 9.14 Minimum Net Capital Required for Xxxx Xxxxxxxx
Incorporated. The Borrower will not permit the Net Capital of
Xxxx Xxxxxxxx Incorporated at any time to be less than the
greater of (A) $70,000,000 or (B) seven percent (7%) of the
Aggregate Debit Items of Xxxx Xxxxxxxx Incorporated."
17. The Borrower covenants and agrees that within ten (10) days
after the consummation of any of the Xxxx Xxxxxxxx Corporation
Merger and Name Change, the First Xxxx Xxxxxxxx Incorporated
Merger and Name Change, the Second Xxxx Xxxxxxxx Incorporated
Merger and Name Change and/or the Xxxx Xxxxxxxx Lending Services
Inc. Name Change, the Borrower will provide to each of the Banks
copies of the articles of merger and/or name change accomplishing
such action, which have been certified by the appropriate
secretary of state. The Borrower further covenants and agrees
that upon request of any Bank, the Borrower will execute and
deliver to such Bank, or will cause its Subsidiaries to execute
and deliver to such Bank, such assumption agreements, amendments,
secretary's certificates, incumbency certificates or other
documents or agreements as such Bank shall request as a result of
the Xxxx Xxxxxxxx Corporation Merger and Name Change, the First
Xxxx Xxxxxxxx Incorporated Merger and Name Change, the Second
Xxxx Xxxxxxxx Incorporated Merger and Name Change and/or the Xxxx
Xxxxxxxx Lending Services Inc. Name Change in connection with any
credit facility or other financial accommodation which such Bank
may have with the Borrower or any Subsidiary of the Borrower.
18. Except as explicitly amended by this Amendment, all of the
terms and conditions of the Credit Agreement and the other Loan
Documents shall remain in full force and effect.
19. The Borrower hereby represents and warrants to the Banks as
follows:
(a) The execution, delivery and performance by the Borrower of
this Amendment have been duly authorized by all necessary
corporate action by the Borrower, and the Credit Agreement and
the other Loan Documents, as amended by this Amendment,
constitute the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with
their respective terms, subject to limitations as to
enforceability which might result from bankruptcy, insolvency,
moratorium and other similar laws affecting creditors' rights
generally and subject to limitations on the availability of
equitable remedies.
(b) The execution, delivery and performance by the Borrower of
the Credit Agreement and the other Loan Documents, as amended by
this Amendment, will not (a) violate any provision of any law,
statute, rule or regulation or any order, writ, judgment,
injunction, decree, determination or award of any court,
governmental agency or arbitrator presently in effect having
applicability to the Borrower, (b) violate or contravene any
provisions of the Articles (or Certificate) of Incorporation or
by-laws of the Borrower, or (c) result in a breach of or
constitute a default under any indenture, loan or credit
agreement or any other agreement, lease or instrument to which
the Borrower is a party or by which it or any of its properties
may be bound or result in the creation of any Lien on any asset
of the Borrower or any Subsidiary. Neither the Borrower nor any
Subsidiary is in default under or in violation of any such law,
statute, rule or regulation, order, writ, judgment, injunction,
decree, determination or award or any such indenture, loan or
credit agreement or other agreement, lease or instrument in any
case in which the consequences of such default or violation could
constitute an Adverse Event. No Default or Event of Default has
occurred and is continuing.
(c) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority is
required on the part of the Borrower to authorize, or is required
in connection with the execution, delivery and performance of, or
the legality, validity, binding effect or enforceability of, the
Credit Agreement and the other Loan Documents, as amended by this
Amendment.
(d) All of the representations and warranties contained in
ARTICLE VII of the Credit Agreement are correct on and as of the
date hereof as though made on and as of such date (except to the
extent that any such representation and warranty is expressly
stated to have been made as of a specific date, then such
representation or warranty shall be true and correct as of such
specific date).
20. All references in the Credit Agreement to "this Agreement" or
in the Loan Documents to the "Credit Agreement" shall be deemed
to refer to the Credit Agreement as amended by this Amendment.
21. The execution of this Amendment and acceptance of any
documents related hereto shall not be deemed to be a waiver of
any Default or Event of Default under the Credit Agreement or of
any breach, default or event of default under any other Loan
Document, whether or not known to the Agent and/or the Banks and
whether or not existing on the date of this Amendment.
22. The Borrower hereby reaffirms its agreement under Section
12.4 of the Credit Agreement to pay on demand the following out-
of-pocket costs and expenses incurred in connection with the
following matters: (i) all out-of-pocket costs and expenses of
the Agent (including the reasonable fees and expenses of outside
counsel to the Agent) in connection with the preparation,
execution and delivery of the Loan Documents and the preparation,
negotiation and execution of any and all amendments to each
thereof and (ii) all out-of-pocket costs and expenses of the
Agent and each of the Banks in connection with the enforcement of
the Loan Documents. Without limiting the generality of the
foregoing, the Borrower specifically agrees to pay all reasonable
fees and disbursements of counsel to the Agent for the services
performed by such counsel in connection with the preparation of
this Amendment and the documents and instruments incidental
hereto.
23. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above.
INTERRA FINANCIAL INCORPORATED
By Xxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx
Title Senior Vice President & Treasurer
Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxx
Fax: (000) 000-0000
Commitment: U.S. BANK NATIONAL ASSOCIATION (formerly
$17,000,000 known as First Bank National Association), as Agent
and a Bank
Percentage: 34%
By Xxxx Xxxxx
----------------------
Xxxx Xxxxx
Title Senior Vice President
000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Vice President, Financial Services Division
Fax: (000) 000-0000
Commitment: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
$16,500,000
Percentage: 33%
By Xxxxxx X. Xxxxx, Xx.
------------------------
Xxxxxx X. Xxxxx, Xx.
Title Vice President
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Vice President, Financial Institutions Division
Fax: (000) 000-0000
Commitment: THE CHASE MANHATTAN BANK
$16,500,000
Percentage: 33%
By Xxxxx X. Xxxxxx
------------------------
Xxxxx X. Xxxxxx
Title Managing Director
Broker-Dealer Division
00xx Xxxxx
Xxx Xxxxx Xxxxxxxxx Plaza
New York, New York 10081
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
