FIRST AMENDMENT TO AMENDED AND RESTATED
364-DAY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
(the "Amendment") is made as of the 27th day of June, 2000, by and among XXXXXX
& XXXXX CORPORATION (the "Borrower"), WACHOVIA BANK, N.A., as Agent, WACHOVIA
SECURITIES, INC., as Arranger, BANK OF AMERICA, N.A., as Syndication Agent, and
ABN AMRO BANK N.V., as Documentation Agent.
RECITALS:
The Borrower, Xxxxxx Guaranty Trust Company of New York, as agent and
as a Bank, and the Banks have entered into a certain 364-Day Credit Agreement
dated as of July 1, 1998, as amended by Amendment No. 1 dated as of January 4,
1999 (the "Existing Credit Agreement"). The Existing Credit Agreement was
amended and restated by the Amended and Restated 364-Day Credit Agreement dated
as of June 30, 1999 entered into among the Borrower, the Agent, the Arranger,
the Syndication Agent and the Documentation Agent (the "Credit Agreement").
Capitalized terms in this Amendment shall have the respective meanings assigned
to them in the Credit Agreement.
The Borrower has requested the Agent and the Banks to amend the Credit
Agreement to modify certain provisions of the Credit Agreement as more fully set
forth herein. The Banks, the Agent and the Borrower desire to amend the Credit
Agreement upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Agent and the Banks, intending to be legally bound hereby, agree as follows:
SECTION 1. RECITALS. The Recitals are incorporated herein by reference
and shall be deemed to be a part of this Amendment.
SECTION 2. AMENDMENTS. The Credit Agreement is hereby amended as set
forth in this Section 2.
SECTION 2.01. AMENDMENT TO DEFINITION OF TERMINATION DATE. The
definition of "Termination Date" as set forth in Section 1.01 of the Credit
Agreement is amended and restated to read in its entirety as follows:
"`Termination Date' means June 26, 2001 or, if such day is not a
Euro-Dollar Business Day, the next preceding Euro-Dollar Business Day."
SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment and the obligations of the Banks hereunder are subject to the
following conditions, unless the Required Banks waive such conditions (if
applicable):
(a) receipt by the Agent from (i) each of the parties hereto of a duly
executed counterpart of this Amendment signed by such party, and (ii) the
Borrower for the account of each Bank of the amendment fee referred to in
Section 9 of this Amendment; and
(b) the fact that the representations and warranties of the Borrower
contained in Section 5 of this Amendment shall be true on and as of the date
hereof.
SECTION 4. NO OTHER AMENDMENT. Except for the amendment set forth
above, the text of the Credit Agreement shall remain unchanged and in full force
and effect. This Amendment is not intended to effect, nor shall it be construed
as, a novation. The Credit Agreement and this Amendment shall be construed
together as a single agreement. Nothing herein contained shall waive, annul,
vary or affect any provision, condition, covenant or agreement contained in the
Credit Agreement, except as herein amended, nor affect nor impair any rights,
powers or remedies under the Credit Agreement as hereby amended. The Banks and
the Agent do hereby reserve all of their rights and remedies against all parties
who may be or may hereafter become secondarily liable for the repayment of the
Notes. The Borrower promises and agrees to perform all of the requirements,
conditions, agreements and obligations under the terms of the Credit Agreement,
as heretofore and hereby amended, the Credit Agreement, as amended, being hereby
ratified and affirmed. The Borrower hereby expressly agrees that the Credit
Agreement, as amended, is in full force and effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to each of the Banks as follows:
(a) Except as otherwise disclosed to the Banks, no Default or Event of
Default, nor any act, event, condition or circumstance which with the passage of
time or the giving of notice, or both, would constitute an Event of Default,
under the Credit Agreement or any other Loan Document has occurred and is
continuing unwaived by the Banks on the date hereof.
(b) The Borrower has the power and authority to enter into this
Amendment and to do all acts and things as are required or contemplated
hereunder, or thereunder, to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more authorized officers of the Borrower and constitute
legal, valid and binding obligations of the Borrower enforceable against it in
accordance with their terms, provided that such enforceability is subject to
general principles of equity.
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(d) The execution and delivery of this Amendment and the Borrower's
performance hereunder do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having jurisdiction
over the Borrower, nor be in contravention of or in conflict with the articles
of incorporation or bylaws of the Borrower, or the provision of any statute, or
any judgment, order or indenture, instrument, agreement or undertaking, to which
the Borrower is party or by which the Borrower's assets or properties are or may
become bound.
SECTION 6. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. GOVERNING LAW. This Amendment shall be construed in
accordance with and governed by the laws of the State of New York.
SECTION 8. EFFECTIVE DATE. This Amendment shall be effective as of June
27, 2000.
SECTION 9. COMMITMENT FEE. On the Effective Date the Borrower shall pay
to the Agent for the ratable account of each Bank with a Commitment an amendment
fee equal to: (i) the amount of such Bank's Commitment, multiplied by (ii) .05%.
SECTION 10. ACKNOWLEDGMENT AND CONSENT. The Agent and the Banks
acknowledge and agree that all notices, requests and other communications to the
Borrower shall be to the following address and telecopy:
Xxxxxx & Xxxxx Corporation
0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Treasurer
Facsimile: 000-000-0000
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IN WITNESS WHEREOF, the parties have executed and delivered,
or have caused their respective duly authorized officers or representatives to
execute and deliver, this Amendment as of the day and year first above written.
XXXXXX & XXXXX CORPORATION
By: ________________________________
Xxx X. Xxxxxx
Title: Treasurer
Address: 0000 X&X Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
WACHOVIA BANK, N.A. AS AGENT AND A
BANK
By: ________________________________
Title:
Address: 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Syndication Services
Facsimile: (000) 000-0000
WITH A COPY TO:
Address: 000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxx
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.
By: ________________________________
Title:
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ABN AMRO BANK N.V.
By: ________________________________
Title:
By: ________________________________
Title:
THE BANK OF NOVA SCOTIA
By: ________________________________
Title:
CIBC, INC.
By: ________________________________
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCH
By: ________________________________
Title:
By: ________________________________
Title:
FIRST UNION NATIONAL BANK
By: ________________________________
Title:
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SUNTRUST BANK
By: _______________________________
Title:
THE NORTHERN TRUST COMPANY
By: _______________________________
Title:
BANCA NAZIONALE DEL LAVORO S.P.A.,
NEW YORK BRANCH
By: _______________________________
Title:
By: _______________________________
Title:
THE BANK OF NEW YORK
By: ________________________________
Title:
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: ________________________________
Title:
AMSOUTH BANK
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By: ________________________________
Title:
KBC BANK N.V.
By: _______________________________
Title:
By: _______________________________
Title:
THE SUMITOMO BANK, LTD.
By: _______________________________
Title:
UNION PLANTERS BANK, N.A.
By: _______________________________
Title:
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