XXXX & XXXXXX OPERATING COMPANY Exhibit 10.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") is dated as of September 4, 1996 and
entered into by and among Xxxx & Xxxxxx Operating Company, a
Delaware corporation ("Company"), Xxxx & Xxxxxx Company, a
Delaware corporation and owner of all of the equity securities of
Company ("Parent"), the financial institutions listed on the
signature pages hereof (each individually a "Lender" and
collectively "Lenders"), Bank of America National Trust and
Savings Association and The First National Bank of Chicago, as
co-agents for Lenders (in such capacity, each individually a
"Co-Agent" and collectively "Co-Agents"), Bankers Trust Company,
as administrative agent for Lenders ("Agent"), and, for purposes
of Section 5 hereof, the Credit Support Parties (as defined in
Section 5 hereof) listed on the signature pages hereof, and is
made with reference to that certain Amended and Restated Credit
Agreement dated as of April 22, 1996 (the "Credit Agreement"), by
and among Company, Parent, Lenders,, Co-Agents and Agent.
Capitalized terms used herein without definition shall have the
same meanings as set forth in the Credit Agreement.
RECITALS
WHEREAS, Company and Lenders desire to amend the Credit
Agreement (i) to modify the interest rates applicable to the
Revolving Loans, (ii) to increase the aggregate Revolving Loan
Commitments by $75 million (from $275 million to $350 million)
and (iii) to make certain other amendments as set forth below;
and
WHEREAS, subject to the terms and conditions of this
Amendment, Lenders are willing to agree to such amendments.
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendment to Cover Page
The cover page of the Credit Agreement is hereby amended by
deleting the reference to "$275,000,000" contained therein and
substituting "$350,000,000" therefor.
1.2 Amendment to Recitals
The recitals of the Credit Agreement are hereby amended by
deleting the reference to "$275,000,000" contained therein and
substituting "$350,000,000" therefor.
1.3 Amendments to Section 1: Certain Defined Terms
Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted
in proper alphabetical order:
"First Amendment" means the First Amendment to Amended and
Restated Credit Agreement dated as of September 4, 1996, among
Company, Parent, Lenders, Co-Agents, Agent and each of the other
Loan Parties.
"First Amendment Effective Date" means the date on which the
conditions precedent to the effectiveness of the First Amendment
set forth in Section 3 thereof shall have been satisfied.
1.4 Amendments to Section 2: Amounts and Terms of Commitments
and Loans
A. Revolving Loan Commitment. Subsection 0.xX(i) of the
Credit Agreement is hereby amended by deleting the reference to
"$275,000,000" contained therein and substituting "$350,000,000"
therefor.
B. Interest on the Loans. Clause (i) of subsection 2.2A of
the Credit Agreement is hereby amended by:
1. Adding immediately following the table set forth
therein the following:
";provided that, notwithstanding anything to the
contrary in this Agreement, during any period that the Total
Utilization of Revolving Loan Commitments exceeds $300,000,000,
the Eurodollar Rate Margin, the Base Rate Margin, the Applicable
Eurodollar Rate Margin or the Applicable Base Rate Margin (as
such terms are used in this subsection 2.2A(i), subsection
2.2A(ii), subsection 3.2 or otherwise), shall refer to the
applicable percentages set forth in the table above plus 0.
1875%."; and
2. Inserting the following immediately before the last
provision in such clause (1):
"(or, during any such time that the Total Utilization of
Revolving Loan Commitments exceeds $300,000,000, the Applicable
Eurodollar Rate Margin shall be 1.6875% per annum and the
Applicable Base Rate Margin shall be 0.6875% per annum)".
1.5 Amendments to Section 6: Company's Affirmative Covenants
Section 6 of the Credit Agreement is hereby amended by adding a
new subsection 6.12 at the end thereof as follows:
"6.12 Further Assurances with Respect to the First Amendment.
Company and Lenders hereby agree that all Obligations under
this Agreement, including the $75,000,000 increase in the
Revolving Loan Commitments, shall be secured by the Collateral
and shall constitute Secured Obligations as defined in the
Collateral Documents. Company hereby agrees that Company shall,
and shall cause each of its Subsidiaries to, within 30 days of
the First Amendment Effective Date, at the Company's expense,
execute and deliver to Agent such documents, agreements and
instruments and take all such further actions as may be necessary
or, in the opinion of Agent (or its counsel), desirable in order
for the Agent to continue the perfection and priority of Agent's
security interests in Collateral located in the United States or
as may be reasonably requested by Agent to continue the
perfection and priority of Agent's security interests in
Collateral consisting of the shares of capital stock of the
Foreign Subsidiaries."
1.6 Substitution of Schedules
Schedule 2.1: Lenders' Commitments and Pro Rata Shares.
Schedule 2.1 to the Credit Agreement is hereby amended by
deleting said Schedule 2.1 in its entirety and substituting in
place thereof a new Schedule 2.1 in the form of Annex A to this
Amendment.
1.7 Amendment of Exhibits
Form of Revolving Note. The third paragraph of Exhibit IV to
the Credit Agreement is hereby amended by deleting the reference
to "$275,000,000" and substituting "$350,000,000" therefor.
Section 2. ADDITION OF NEW LENDERS; PRO RATA SHARES AND NOTICE
ADDRESSES
The Credit Agreement is hereby amended to include as Lenders
for all purposes under the Credit Agreement the financial
institutions identified as new Lenders (the "New Lenders") on
Schedule 2.1 to the Credit Agreement, as amended by this
Amendment. Each New Lender shall hereby become a party to the
Credit Agreement, shall hereby become vested with and shall agree
to accept all the rights, powers, privileges and duties of a
Lender under the Credit Agreement and each of the other Loan
Documents and shall hereby be deemed to have made all of the
covenants and agreements contained in the Credit Agreement and
the other Loan Documents, in each case to the same extent as if
originally a party thereto. For purposes of the Credit Agreement,
the address of each New Lender shall be as set forth under such
New Lender's name on the signature pages hereof. Schedule 2.1 to
the Credit Agreement, as amended by this Amendment, reflects each
New Lender's Pro Rata Share. Upon the effectiveness of this
Amendment, each New Lender shall pay to Agent by wire transfer of
immediately available funds such amount, as calculated by Agent,
as reflects such New Lender's Pro Rata Share of the outstanding
Revolving Loans (and, if applicable, such New Lender's Pro Rata
Share of any participations which have been funded by Lenders
with respect to outstanding Letters of Credit or Swing Line
Loans). Upon the effectiveness of this Amendment, each existing
Lender which increases its Revolving Loan Commitment (the
"Increasing Lenders"), as set forth on Schedule 2.1 to the Credit
Agreement, as amended by this Amendment, shall pay to Agent by
wire transfer of immediately available funds such amount, if any,
as calculated by Agent, as reflects such Increasing Lender's
increased Pro Rata Share of the outstanding Revolving Loans (and,
if applicable, such Increasing Lender's increased Pro Rata Share
of any participations which have been funded by Lenders with
respect to outstanding Letters of Credit or Swing Line Loans).
Agent shall promptly pay to each other Lender such amounts, as
calculated by Agent, as may be necessary to reflect such other
Lender's then Pro Rata Share, as set forth on Schedule 2.1 to the
Credit Agreement, as amended by this Amendment, of the
outstanding Revolving Loans (and, if applicable, such other
Lender's then Pro Rata Share of any participations which have
been funded by Lenders with respect to outstanding Letters of
Credit or Swing Line Loans).
Section 3. CONDITIONS TO EFFECTIVENESS
Sections I and 2 of this Amendment shall become effective
only upon the satisfaction of all of the following conditions
precedent (such date of satisfaction being referred to herein as
the "First Amendment Effective Date"):
A. On or before the First Amendment Effective Date, Company
shall deliver to Lenders (or to Agent for Lenders with sufficient
originally executed copies, where appropriate, for each Lender
and its counsel) the following with respect to each Loan Party,
each, unless otherwise noted, dated the First Amendment Effective
1. Certified copies of its Articles or Certificate of
Incorporation, or a certificate by its corporate secretary or an
assistant secretary certifying that there has been no change in
the Articles or Certificate of Incorporation subsequent to the
Effective Date, except as disclosed in such certificate and
attaching thereto copies of any such amendments certified by the
Secretary of State of the Jurisdiction of its incorporation,
together with a good standing certificate from the Secretary of
State of the jurisdiction of its incorporation and the
Jurisdiction in which its principal place of business is located,
each dated a recent date prior to the First Amendment Effective
Date;,
2. Copies of its Bylaws, certified as of the First Amendment
Effective Date by its corporate secretary or an assistant
secretary or a certificate by such secretary or assistant
secretary certifying that there has been no change in the Bylaws
subsequent to the Effective Date;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery and performance of this
Amendment and, in the case of Company, approving and authorizing
the execution, delivery and payment of the Revolving Notes issued
to New Lenders (the "New Notes") and each Allonge to Revolving
Note, substantially in the form of Annex B to this Amendment
(collectively, the "Allonges"), certified as of the First
Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without
modification or amendment;
4. Signature and incumbency certificates of its officers
executing this Amendment and, in the case of Company, the
Allonges and the New Notes;
5. An Officer's Certificate of Company, in form and substance
satisfactory to Agent, to the effect that the Indebtedness
permitted under the Credit Agreement is permitted under each of
the Indentures and that the incurrence of all Indebtedness under
the Credit Agreement will not require equal and ratable security
to be provided to the Senior Notes; and
6. This Amendment executed by each Loan Party, the New Notes and
the Allonges, each executed by Company, drawn to the order of
each Increasing Lender.
B. On or before the First Amendment Effective Date, Lenders
and their respective counsel shall have received originally
executed copies of one or more favorable written opinions of Xxxx
Xxxxx, Counsel to Loan Parties, in form and substance reasonably
satisfactory to Agent and its counsel, dated as of the First
Amendment Effective Date, substantially in the form set forth in
Annex C hereto and as to such other matters as Agent acting on
behalf of Lenders may reasonably request.
C. On or before the First Amendment Effective Date, each
Increasing Lender, each New Lender and Requisite Lenders (as
determined without giving effect to the transactions contemplated
by this Amendment) shall have delivered to Agent originally
executed copies of this Amendment.
D. On or before the First Amendment Effective Date, Agent
shall have received from Company and each Domestic Subsidiary
which owns property subject to a Mortgage as set forth in
Schedule 5.5 to the Credit Agreement fully executed counterparts
of amendments to Mortgage in form and substance satisfactory to
Agent.
E. Agent and each Lender shall have received the fees
payable by Company on the First Amendment Effective Date in such
amounts as have been separately agreed upon.
F. On or before the First Amendment Effective Date, all
corporate and other proceedings taken or to be taken in
connection with the First Amendment and all documents incidental
thereto not previously found acceptable by Agent, acting on
behalf of Lenders, and its counsel shall be satisfactory in form
and substance to Agent and such counsel, and Agent and such
counsel shall have received all such counterpart originals or
certified copies of such documents as Agent may reasonably
request.
Section 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Parent
and Company represent and warrant to each Lender that the
following statements are true, correct and complete:
A. Corporate Power and Authority. Each Loan Party has all
requisite corporate power and authority to enter into this
Amendment, each of Parent and Company has all requisite corporate
power and authority to carry out the transactions contemplated
by, and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement"), and Company
has all requisite corporate power and authority to issue the
Allonges and the New Notes.
B. Authorization of Agreements. The execution and delivery
of this Amendment, the Allonges and the New Notes, the
performance of the Amended Agreement and the payment of the New
Notes and the Notes as amended by the Allonges (the "Amended
Notes") have been duly authorized by all necessary corporate
action on the part of each Loan Party thereto.
C. No Conflict. The execution and delivery by each Loan
Party of this Amendment, the execution and delivery by
Company of the New Notes and the Allonges and the
performance by Company and Parent of the Amended Agreement
and the payment of the New Notes and the Amended Notes by
Company do not and will not violate any provision of any law or
any governmental rule or regulation applicable to Parent or any
of its Subsidiaries, the Certificate or Articles of
Incorporation or Bylaws of Parent or any of its Subsidiaries
or any order, judgement decree of any court or other agency
of government binding on Parent or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any
Contractual Obligation of Parent or any of its Subsidiaries,
(iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Parent or any of
its Subsidiaries (other than any Liens created under any of
the Loan Documents in favor of Agent on behalf of Lenders),
or (iv) require any approval of stockholders or any approval
or consent of any Person under any Contractual Obligation of
Parent or any of its Subsidiaries.
D. Governmental Consents. The execution and delivery by
each Loan Party of this Amendment, the execution and delivery by
Company of the New Notes and the Allonges and the performance by
Company and Parent of the Amended Agreement and the payment of
the New Notes and the Amended Notes by Company do not and will
not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.
E. Binding Obligation. This Amendment has been duly
executed and delivered by each Loan Party, the Amended Agreement
has been duly executed and delivered by Company and Parent and
the Allonges and the New Notes have been duly executed and
delivered by Company and each of this Amendment, the Amended
Agreement, the New Notes and the Amended Notes are the legally
valid and binding obligations of each Loan Party thereto,
enforceable against such Loan Party in accordance with their
respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
F. Incorporation of Representations and Warranties From
Credit Agreement. The representations and warranties contained in
Section 5 of the Credit Agreement are incorporated herein by this
reference and are and will be true, correct and complete in all
material respects on and as of the First Amendment Effective Date
to the same extent as though made on and as of that date, except
to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and is
continuing or will result from the consummation of the
transactions contemplated by this Amendment that would constitute
an Event of Default or a Potential Event of Default.
Section ACKNOWLEDGMENT AND CONSENT
Company is a party to Company Pledge Agreement, Company
Security Agreement. Company Trademark Security Agreement, Company
Patent Security, Agreement, Collateral Account Agreement,
Mortgages and Auxiliary Pledge Agreements. Each Domestic
Subsidiary of Company (other than BHAC Group and the Inactive
Subsidiaries) (a "Subsidiary Guarantor") is a party to the
Subsidiary Guaranty, Subsidiary Security Agreement, Subsidiary
Pledge Agreement, Subsidiary Patent Security Agreement,
Subsidiary Trademark Security Agreement, Mortgages and Auxiliary
Pledge Agreements, in each case as amended through the First
Amendment Effective Date, pursuant to which such Subsidiary
Guarantor has (i) guarantied the Obligations, (ii) created Liens
in favor of Agent on certain Collateral, and (iii) pledged
certain Collateral to Agent to secure the obligations of such
Subsidiary Guarantor under the Subsidiary Guaranty. Additionally,
Parent, pursuant to Section 10 of the Credit Agreement, has
guarantied the Obligations. Company, Subsidiary Guarantors and
Parent are collectively referred to herein as the "Credit Support
Parties," and the Company Pledge Agreement, Company Security
Agreement, Company Trademark Security Agreement, Company Patent
Security Agreement, Collateral Account Agreement, Mortgages,
Auxiliary Pledge Agreements, Subsidiary Guaranty, Subsidiary
Security Agreements, Subsidiary Pledge Agreements, Subsidiary
Patent Security Agreements, Subsidiary Trademark Security
Agreements and the Parent's guaranty set forth in the Credit
Agreement are collectively referred to herein as the "Credit
Support Documents."
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and
this Amendment and consents to the amendment of the Credit
Agreement effected pursuant to this Amendment. Each Credit
Support Party hereby confirms that each Credit Support Document
to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the
case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and
"Secured Obligations," as the case may be (in each case as such
terms are defined in the applicable Credit Support Document),
including without limitation the payment and performance of all
such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the Obligations
of Company now or hereafter existing under or in respect of the
Amended Agreement and the Notes defined therein. Without limiting
the generality of the foregoing, each Credit Support Party hereby
acknowledges and confirms the understanding and intent of such
party that, upon the effectiveness of this Amendment, and as a
result thereof, the definition of "Obligations" contained in the
Amended Agreement includes the obligations of Company under the
New Notes and the Amended Notes.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or by which it
is otherwise bound shall continue in full force and effect and that
all of its obligations thereunder shall be valid and enforceable
and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Each Credit Support Party
represents and warrants that all representations and warranties
contained in the Amended Agreement and the Credit Support Documents
to which it is a party or other-wise bound are true, correct and
complete in all material respects on and as of the First Amendment
Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of
such earlier date.
Each Credit Support Party (other than Company) acknowledges and
agrees that (i) notwithstanding the conditions to effectiveness set
forth in this Amendment, such Credit Support Party is not required
by the terms of the Credit Agreement or any other Loan Document to
consent to the amendments to the Credit Agreement effected pursuant
to this Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the
consent of such Credit Support Party to any future amendments to
the Credit Agreement.
Section 6. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the
Other Loan Documents.
(i) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof', "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof' or words of like import
referring to the Credit Agreement shall mean and be a reference to
the Amended Agreement. (iii) The execution, delivery and
performance of this Amendment shall not, except as expressly
provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of Agent or any
Lender under, the Credit Agreement or any of the other Loan
Documents.
B. Fees and Expenses. Company acknowledges that all costs, fees
and expenses as described in subsection 11.2 of the Credit
Agreement incurred by Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby
shall be for the account of Company.
XXXX & XXXXXX OPERATING COMPANY
By: /s/ Xxxxx X'Xxxx
Title: Vice President and Treasurer
XXXX & XXXXXX MAIL COMPANY
By: /s/ Xxxxx X'Xxxx
Title: Vice President and Treasurer
XXXX & XXXXXX MAIL DOCUMENT MANAGEMENT PRODUCTS COMPANY (for
purposes of Section 5 only) as a Credit Support Party
By: /s/ Xxxxx X'Xxxx
Title: Treasurer
XXXX & XXXXXX MAILMOBILE COMPANY (for purposes of Section 5 only)
as a Credit Support Party
By: /s/ Xxxxx X'Xxxx
Title: Treasurer
XXXX & XXXXXX MAIL PROCESSING SYSTEM`S COMPANY (for purposes of
Section 5 only) as a Credit Support Party
By: /s/ Xxxxx X'Xxxx
Title: Treasurer
XXXX & XXXXXX POSTAL SYSTEMS
INC. (for purposes of Section 5 only) as a Credit Support Party
By: /s/ Xxxxx X'Xxxx
Title: Treasurer
XXXX & XXXXXX PUBLICATION SYSTEMS COMPANY (for purposes of Section
5 only) as a Credit Support Party
By: /s/ Xxxxx X'Xxxx
Title: Treasurer
UMI COMPANY (for purposes of Section 5 only) as a Credit Support
Party
By: /s/ Xxxxx X'Xxxx
Title: Treasurer
XXXX & XXXXXX PROTOCORP INTERNATIONAL INC. (for purposes of Section
5 only) as a Credit Support Party
By: /s/ Xxxxx X'Xxxx
Title: Vice President and Treasurer
BANKERS TRUST COMPANY, Individually and as Agent
By:/s/ Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
Individually and as Co-Agent
By: /s/ R. Xxx Xxxxxxxxx
Title: Managing Director
THE FIRST NATIONAL BANK OF CHICAGO, Individually and as Co-Agent
By: /s/ Xxxxxxx X. Xxxxx
Title: Vice President
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, as a
Lender
By: /s/ F.C.H. Xxxxx
Title: Senior Manager Loan Operator
BANQUE PARIBAS, as a Lender
By: /s/ Xxxxx Xxxxxxxx
Title: /Vice President
By: /s/ Xxxxxxxx Xxxxx
Title: /Vice President
THE DAY-CHI CAWING BANK, LTD., CHICAGO BRANCH, as a Under
By:/s/ SACEUR In
Title: Vice President
DRESDNER BANK AG, CHICAGO BRANCH AND GRAND CAYMAN BRANCH, as a
Lender
By: /s/ Xxxxxx X. Neidman
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF BOSTON, as a Lender
By:/s/ Xxx Xxxxx
Title: Director
FIRST UNION BANK OF NORTH CAROLINA, as a Lender
By: /s/ Xxxx X. Xxxxxx
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK, as a Lender
By: /s/ Xxxxxxx XxXxxxxxx
Title: Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as a Lender
By: /s/ Xxxx X. Xxxxxxxx
Title: Vice President and Deputy General Manager
THE MITSUBISH TRUST AND BANKING CORPORATION, Chicago Branch, as a
Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Title: Chief Manage
THE SANWA BANK, LIMITED, CHICAGO BRANCH, as a Lender
By: /s/ Xxxxxxx X. Xxxx
Title: Vice President
UNITED STATES NATIONAL BANK OF OREGON, as a Lender
By: /s/ Xxx Xxx
Title: Vice President
DLJ CAPITAL FUNDING, as a Lender
By: /S/ Xxxx Xxxxxxx
Title: Managing Director
CREDIT LYONNAIS CHICAGO BRANCH, as a Lender
By: /S/ Xxxxxxx Xxxxxxxxxxx
Title: Vice President
