W I T N E S S E T H:
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Exhibit 10.4
[CONFORMED COPY]
CREDIT AGREEMENT AMENDMENT NO. 1
THIS CREDIT AGREEMENT AMENDMENT NO. 1 (this "Amendment"), dated as of
December 11, 1996, among E & S HOLDINGS CORPORATION, a company organized under
the laws of Delaware (the "Borrower"), and the Lenders (as defined below) party
hereto.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of September 30, 1996
(the "Credit Agreement"), among the Borrower, the financial institutions as are
or may become parties thereto (collectively, the "Lenders"), Bank of America
National Trust and Savings Association ("BofA"), as administrative agent for the
Lenders, together with Xxxxxxx Xxxxx Capital Corporation, as documentation agent
for the Lenders, Nationsbank, N.A. (South), as syndication agent for the
Lenders, the several financial institutions specifically identified as co-agents
on the signature pages thereof and the several financial institutions
specifically identified as lead managers on the signature pages thereof, the
Lenders extended Commitments to make Credit Extensions to the Borrower;
WHEREAS, Bank of America Illinois, an Illinois banking corporation and an
affiliate of BofA ("BAI"), has from time to time provided letter of credit and
banker's acceptance services to subsidiaries of the Borrower;
WHEREAS, the Borrower desires to amend the definitions of "Fronting
Lender" and "Swing Line Lender" set forth in Section 1.1 of the Credit Agreement
in order to include BAI as a Fronting Lender and as a Swing Line Lender; and
WHEREAS, the Majority Lenders are willing to consent to such amendments,
on the terms and subject to the conditions of this Amendment;
NOW, THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Unless otherwise defined or the context otherwise requires, terms for
which meanings are provided in the Credit Agreement shall have such meanings
when used in this Amendment.
ARTICLE II
AMENDMENTS
SECTION II.1. Amendments to the Credit Agreement. On the terms and
subject to the conditions set forth herein, Section 1.1 of the Credit
Agreement is amended by:
(a) adding the following term and definition:
"'BAI' means Bank of America Illinois, an Illinois banking
corporation.";
(b) adding after the reference to "BofA" in the definition of "Fronting
Lender" the phrase ", BAI and/or any of their respective affiliates"; and
(c) adding after the reference to "BofA" in the definition of "Swing Line
Lender" the phrase ", BAI and/or any of their respective affiliates" and
deleting the remainder of such definition.
SECTION II.2. Acknowledgement. It is acknowledged that each Letter of
Credit Issued by BAI or any of its affiliates, each Acceptance created by BAI or
any of its affiliates and each Swing Line Loan made by BAI or any of its
affiliates constitutes, as the case may be, a Letter of Credit, Acceptance or
Swing Line Loan under the Credit Agreement, in each case to the same extent as
if Issued, created or made by BofA. It is further acknowledged that (a) by
Issuing any such Letter of Credit or creating any such Acceptance, BAI or such
affiliate shall be the Fronting Lender with respect to such Letter of Credit or
Acceptance and shall be entitled to all the rights of, and subject to all the
obligations of, the Fronting Lender under the Credit Agreement with respect
thereto and (b) by making any such Swing Line Loan, BAI or such affiliate shall
be the Swing Line Lender with respect to such Swing Line Loan and shall be
entitled to all the rights of, and subject to all the obligations of, the Swing
Line Lender under the Credit Agreement with respect thereto.
ARTICLE III
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CONDITIONS PRECEDENT
This Amendment shall become effective, as of the date hereof, upon the
receipt by the Administrative Agent of counterparts hereof executed on behalf of
the Borrower and the Majority Lenders.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION IV.1. Ratification of and References to the Credit Agreement. This
Amendment shall be deemed to be an amendment to the Credit Agreement, and the
Credit Agreement, as amended hereby, is hereby ratified, approved and confirmed
in each and every respect. All references to the Credit Agreement in any other
document, instrument, agreement or writing shall hereafter be deemed to refer to
the Credit Agreement as amended hereby.
SECTION IV.2. Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
SECTION IV.3. Execution in Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION IV.4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
E&S HOLDINGS CORPORATION
By /s/ W. Xxxxxxx Xxxxxxx
-----------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title:Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Vice President
XXXXXXX XXXXX CAPITAL CORPORATION
By /s/ E. T. Xxxxx
-----------------------------------
Name: E. T. Xxxxx
Title:Vice President
NATIONSBANK, N.A. (SOUTH)
By /s/ Miles X. Xxxxxxx III
-----------------------------------
Name: Miles X. Xxxxxxx III
Title:Vice President
THE BANK OF NOVA SCOTIA
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By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:Relationship Manager
BANKERS TRUST COMPANY
By /s/ Xxxx Xx Xxxxx
-----------------------------------
Name: Xxxx Xx Xxxxx
Title:Assistant Vice President
FLEET NATIONAL BANK
By
-----------------------------------
Name:
Title:
SOCIETE GENERALE
By /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title:Vice President
XXXXX FARGO BANK, N.A.
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title:Vice President
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CIBC, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Authorized Signatory
ROYAL BANK OF CANADA
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title:Manager
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By
-----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title:Senior Vice President
THE FUJI BANK, LIMITED
NEW YORK BRANCH
By
-----------------------------------
Name:
Title:
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By
-----------------------------------
Name:
Title:
LTCB TRUST COMPANY
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title:Executive Vice President
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Managing Director
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OAK HILL SECURITIES FUND, L.P.
By Oak Hill Securities GenPar,
L.P., its General Partner
ByOak Hill Securities MGP,
Inc., its General Partner
By
---------------------------
Name:
Title:
PRIME INCOME TRUST
By
-----------------------------------
Name:
Title:
PROTECTIVE LIFE INSURANCE COMPANY
By Xxxx X. Xxxxx CFA
-----------------------------------
Name: Xxxx X. Xxxxx CFA
Title:Executive Vice President
Protective Asset
Management, L.L.C.
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ABN AMRO BANK N.V.
By /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title:Group Vice President
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Assistant Vice President
BANK OF TOKYO -- MITSUBISHI TRUST
COMPANY
By /s/ X. Xxxxxxxxxxxx
-----------------------------------
Name: X. Xxxxxxxxxxxx
Title:Vice President & Manager
BANQUE PARIBAS
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
BAYBANK, N.A.
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title:Vice President
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BHF-BANK AKTIENGESELLSCHAFT
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
CAISSE NATIONALE DE CREDIT AGRICOLE
By
-----------------------------------
Name:
Title:
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title:Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxxx Xxx
-----------------------------------
Name: Xxxxxx Xxx
Title:Vice President
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THE DAI-ICHI KANGYO BANK, LTD.
By Naoki Yamamori
-----------------------------------
Name: Naoki Yamamori
Title:Vice President
DLJ CAPITAL FUNDING, INC.
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Managing Director
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By
-----------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title:Authorized Signatory
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By
-----------------------------------
Name:
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Title:
NATIONAL CITY BANK
By /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:Vice President
THE NIPPON CREDIT BANK, LTD.
By
-----------------------------------
Name:
Title:
THE SAKURA BANK, LIMITED
ATLANTA AGENCY
By /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title:Vice President & Senior
Manager
STATE STREET BANK AND TRUST COMPANY
By
-----------------------------------
Name:
Title:
CITY NATIONAL BANK
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By
-----------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title:Authorized Signatory
By /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title:Authorized Signatory
INDOSUEZ CAPITAL ASSET ADVISORS,
INC.
By
-----------------------------------
Name:
Title:
By
-----------------------------------
Name:
Title:
ING CAPITAL ADVISORS, INC., as
Agent for Bank Syndication
Account
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title:Vice President & Porfolio
Manager
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PPM AMERICA, INC., as attorney in
fact, on behalf of Xxxxxxx
National Life Insurance Company
By /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title:Vice President
CHL HIGH YIELD LOAN PORTFOLIO (a
unit of The Chase Manhattan Bank)
By /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By /s/ R. Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: R. Xxxxxxx Xxxxxxxxx
Title:Authorized Signatory
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS B.V.
By /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title:Managing Director
CAPTIVA FINANCE LTD.
By /s/ Xxxxxx X. Xxxxx
-----------------------------------
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Name: Xxxxxx X. Xxxxx
Title:Director
AERIES FINANCE LTD.
By /s/ Xxxxxx Xxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title:Director
MEDICAL LIABILITY MUTUAL
INSURANCE COMPANY
By Chancellor LGT Senior Secured
Management, Inc., as
Investment Manager
By /s/ Xxxxxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title:Managing Director
SENIOR DEBT PORTFOLIO
By Boston Management and Research,
as Investment Advisor
By /s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
Title:Vice Presidnet
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ACCEPTED:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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