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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AMENDMENT NO. 1 and MASTER ASSIGNMENT, dated as of October 30, 1998 (this
"Amendment"), to and under the Credit Agreement, dated as of July 7, 1997, by
and among Xxxxx & Co., Inc., the Subsidiary Borrowers party thereto, the Lenders
party thereto, Bank of Montreal, as Documentation Agent, and Fleet Bank, as
Administrative Agent (as amended, the "Credit Agreement").
RECITALS
I. Terms defined in the Credit Agreement are used herein with the same
meanings.
II. The Parent Borrower has requested that the Administrative Agent and
the Lenders agree to (i) an amendment to the Credit Agreement to provide for,
among other things, an increase in the Aggregate Commitment Amount and (ii) a
reallocation by the Lenders of the outstanding principal amount of their
respective Revolving Credit Loans, and the Administrative Agent and the Lenders
are willing so to agree, subject to the terms and conditions set forth herein.
Therefore, in consideration of the foregoing and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. The Commitment Amount of each Lender is increased by the amount,
if any, set forth on the signature page hereof for such Lender, provided
that the Aggregate Commitment Amount shall in no event exceed $275,000,000.
2. Exhibit A to the Credit Agreement is amended and restated in its
entirety in the form attached hereto as Attachment 1.
3. Each Lender assigns or assumes from each other Lender such rights,
and assigns or delegates to each other Lender such obligations, in each
case without recourse, representation or warranty (except as expressly
provided in paragraph 6 hereof), as shall cause the outstanding principal
balance of its Revolving Credit Loans to be as set forth on Attachment 2
hereto, and in connection therewith:
(a) in consideration of the assignments and assumptions set forth
in this paragraph 3, each Lender will, on and as of the date hereof, pay
to the Administrative Agent at the applicable Agent Payment Office, in
the applicable Currency and in funds immediately available to the
Administrative Agent at such Agent Payment Office by 1:00 p.m. (local
time in the city in which such Agent Payment Office is located) each
amount set forth adjacent to such Lender's name on Attachment 3 hereto
under the heading "Net to Administrative Agent", and upon receipt
thereof, the Administrative Agent shall promptly pay each Lender in like
funds as received each amount set forth adjacent to the name of such
Lender on Attachment 4 hereto under the heading "Net from Administrative
Agent";
(b) each Lender will, independently and without reliance upon any
other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make it's own credit analysis,
evaluations and decisions in taking or not taking action under the Loan
Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, Property, financial and
other condition and creditworthiness of the Parent Borrower and its
Subsidiaries; and
(c) from and after the date hereof, the Administrative Agent will
make all payments in respect of the interests assigned hereby
(including, without limitation, payments of principal, interest, fees
and other amounts) to each Lender in proportion to Attachment 2 hereto,
and each Lender that has assigned or delegated hereunder any rights or
obligations shall be released from all obligations under the Loan
Documents to the extent so assigned or delegated.
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4. Paragraphs 1 through 3 of this Amendment shall not be effective
until such time as each of the following conditions is satisfied:
(a) the Administrative Agent, the Parent Borrower and all of the
Lenders shall each have executed and delivered a counterpart of this
Amendment; and
(b) all accrued monetary obligations and liabilities (other than
Indebtedness in respect of the Loans) of the Credit Parties under the
Loan Documents shall have been paid in full through the date hereof
(including, without limitation, any breakage costs incurred as a result
of the assignments and assumptions contemplated hereby, all of which
shall have been paid in full by the Parent Borrower).
5. The Parent Borrower hereby reaffirms and admits the validity and
enforceability of the Loan Documents and all of the obligations of each
Credit Party thereunder.
6. Each Lender represents, warrants and agrees that, on and as of the
date hereof, the outstanding principal balance of its Revolving Credit
Loans is as set forth on Attachment 2 hereto.
7. This Amendment may be executed in any number of counterparts all
of which, taken together, shall constitute one amendment and agreement. In
making proof of this Amendment, it shall only be necessary to produce the
counterpart executed and delivered by the party to be charged.
8. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED
TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
XXXXX & CO., INC.
By: /s/ XXXXXX X. XXXXXXXX
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President & Chief
Financial Officer
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
ABN AMRO BANK N.V., NEW YORK BRANCH
By: /s/ XXXXXXX VAN BESIEN
--------------------------------------
Name: Xxxxxxx Van Besien
Title: Group Vice President
By: /s/ XXXXXX XXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
COMMITMENT AMOUNT INCREASE: $0
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: Vice President
COMMITMENT AMOUNT INCREASE: $0
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
THE BANK OF TOKYO-MITSUBISHI, LTD.,
NEW YORK BRANCH
By: /s/ XXXXXXX XXX
------------------------------------------
Name: Xxxxxxx Xxx
Title: Attorney-In-Fact
COMMITMENT AMOUNT INCREASE: $9,000,000
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
NATIONAL WESTMINSTER BANK PLC
By: /s/ XXXXX X. XXXXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
COMMITMENT AMOUNT INCREASE: $10,000,000
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
WACHOVIA BANK, N.A.
By: /s/ XXXX X. XXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
COMMITMENT AMOUNT INCREASE: $13,000,000
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
BANK OF MONTREAL,
Individually and as Documentation Agent
By: /s/ XXXXX X. XXXXX
------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Director
COMMITMENT AMOUNT INCREASE: $20,000,000
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AMENDMENT NO. 1 AND MASTER ASSIGNMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
FLEET BANK, N.A.,
Individually and as Administrative Agent
By: /s/ XXXXXXX X. X'XXXXX
------------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
COMMITMENT AMOUNT INCREASE: $23,000,000
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ATTACHMENT 1
XXXXX EXHIBIT A
LIST OF COMMITMENT AMOUNTS
COMMITMENT
LENDER AMOUNT
------ ------------
Fleet Bank, N.A. $ 68,000,000
Bank of Montreal $ 65,000,000
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch $ 34,000,000
Wachovia Bank, N.A. $ 33,000,000
First Union National Bank $ 30,000,000
National Westminster Bank PLC $ 25,000,000
ABN AMRO Bank N.V., New York Branch $ 20,000,000
------------
TOTAL $275,000,000
============
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ATTACHMENT 2
REVOLVING
LENDER CREDIT LOANS
------ ---------------
Fleet Bank, N.A. $ 31,156,363.64
Bank of Montreal $ 29,781,818.18
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch $ 15,578,181.82
Wachovia Bank, N.A. $ 15,120,000.00
First Union National Bank $ 13,745,454.55
National Westminster Bank PLC $ 11,454,545.45
ABN AMRO Bank N.V., New York Branch $ 9,163,636.36
---------------
TOTAL $126,000,000.00
===============
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ATTACHMENT 3
LENDER NET TO ADMINISTRATIVE AGENT
------ ---------------------------
Fleet Bank, N.A. $ 2,806,363.64
Bank of Montreal $ 1,431,818.18
Wachovia Bank, N.A. $ 2,520,000.00
National Westminster Bank PLC $ 2,004,545.45
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch $ 0
First Union National Bank $ 0
ABN AMRO Bank N.V., New York Branch $ 0
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ATTACHMENT 4
NET FROM
LENDER ADMINISTRATIVE AGENT
------ --------------------
Fleet Bank, N.A. $ 0
Bank of Montreal $ 0
Wachovia Bank, N.A. $ 0
National Westminster Bank PLC $ 0
The Bank of Tokyo-Mitsubishi, Ltd., New York Branch $ 171,818.18
First Union National Bank $5,154,545.45
ABN AMRO Bank N.V., New York Branch $3,436,363.64
