EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of March 31, 1998 (this "Amendment"), to the
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Amended and Restated Credit Agreement, dated as of December 22, 1997 (as
heretofore and hereafter amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among Imperial Xxxxx Corporation (the
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"Borrower"), the several Lenders from time to time parties thereto, Xxxxxx
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Commercial Paper Inc., as Syndication Agent, Xxxxxx Brothers Inc., as Arranger
and Xxxxxx Trust and Savings Bank, as Administrative Agent and Collateral Agent.
W I T N E S S E T H
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WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Credit Agreement;
WHEREAS, the Lenders have agreed to such amendments only upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein,
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capitalized terms which are defined in the Credit Agreement are used herein as
therein defined.
SECTION 2. Amendment to Section 7 of the Credit Agreement. (a)
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Section 7.1(a) of the Credit Agreement is hereby amended by deleting the
parenthetical "(or, if less, the number of full fiscal quarters subsequent to
the Closing Date)" appearing in the third line therein.
(b) Section 7.1(b) of the Credit Agreement is hereby amended by
deleting the parenthetical "(or, if less, the number of full fiscal quarters
subsequent to the Closing Date)" appearing in the third line therein.
(c) Section 7.1(c) of Credit Agreement is hereby amended as follows:
(i) by deleting the parenthetical "(or, if less, the number
of full fiscal quarters subsequent to the Closing Date)" appearing in
the second and third lines therein; and
(ii) by inserting the following proviso immediately at the
end thereof:
"; provided, that for the purposes of determining the ratio described
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above for the fiscal quarters of the Borrower ending March 31, 1998,
June 30, 1998 and September 30, 1998, (i) Consolidated Interest
Expense and Consolidated EBITDA
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for the relevant period shall be determined as of the last day of the
four full fiscal quarters ending on such date and (ii) the
Consolidated Interest Expense and Consolidated EBITDA of the Target
and its Subsidiaries during such period shall be included on a pro
forma basis for such period (assuming the consummation of the Tender
Offer Purchase and the Merger and the incurrence or assumption of any
Indebtedness in connection therewith (including the Indebtedness
incurred hereunder) occurred on the first day of such period)."
SECTION 3. Conditions to Effectiveness. This Amendment shall become
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effective as of the date hereof (the "Effective Date") upon execution and
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delivery by a duly authorized officer of each of the Borrower, the Agents and
the Required Lenders.
SECTION 4. Representation and Warranties. The Borrower represents
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and warrants to each Agent and each Lender that as of the Effective Date, before
and after giving effect to this Amendment: (i) no Default or Event of Default
has occurred and is continuing; (ii) the representations and warranties made by
the Borrower in or pursuant to the Credit Agreement or any Loan Documents are
true and correct in all material respects on and as of the Effective Date as if
made on such date (except to the extent that any such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct in all material respects on
and as of such earlier date) and (iii) this Amendment constitutes the legal,
valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
SECTION 5. Continuing Effect of Credit Agreement. This Amendment
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shall not constitute an amendment or waiver of or consent to any provision of
the Credit Agreement not expressly referred to herein and shall not be construed
as an amendment, waiver or consent to any action on the part of the Borrower
that would require an amendment, waiver or consent of the Agents or the Lenders
except as expressly stated herein. Except as expressly consented to hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
SECTION 6. Expenses. The Borrower agrees to pay and reimburse the
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Agents for all of their reasonable costs and out-of-pocket expenses incurred in
connection with the preparation, execution and delivery of this Amendment and
ancillary documents, including, without limitation, the reasonable fees and
disbursements of counsel to the Agents.
SECTION 7. Counterparts. This Amendment may be executed in any
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number of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all counterparts taken together shall
constitute one and the same instrument.
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SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
IMPERIAL XXXXX CORPORATION
/s/ XXXXX X. XXXXXX
By:___________________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
XXXXXX COMMERCIAL PAPER INC., as Syndication Agent
and as a Lender
/s/ XXXXXXX XXXXXXX
By:____________________________________________
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
XXXXXX TRUST AND SAVINGS BANK, as Administrative
Agent, Collateral Agent,
Issuing Lender and as a Lender
/s/ XXXXX X. XXXXXXXX
By:_____________________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
/s/
By:_____________________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
/s/ XXXXXX X. XXXXXX
By:_____________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND" NEW YORK BRANCH
/s/ W. XXXXXXX XXXXXXX /s/ XXXX X. XXXXXXXX
By:_______________________________________________
Name: W. Xxxxxxx Xxxxxxx Xxxx X. Xxxxxxxx
Title: Senior Credit Officer Vice President
Senior Vice President
XXXXX FARGO BANK (TEXAS), N.A.
/s/
By:_______________________________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
/s/ XXXX XXXXXX
By:_______________________________________________
Name: Xxxx Xxxxxx
Title: Senior Vice President
Branch Manager
/s/ XXXXXX XXXXXX
By:_______________________________________________
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
U.S. BANCORP AG CREDIT, INC.
/s/ XXXX X. XXXXXXX
By:_______________________________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
Title:
THE BANK OF NEW YORK
/s/ XXXX X. XXXXXX, XX.
By:____________________________________
Name: Xxxx X. Xxxxxx, Xx.
Title: Vice President
THE FROST NATIONAL BANK
/s/ W. XXXX XXXXXX
By:____________________________________
Name: W. Xxxx Xxxxxx
Title: Vice President
ST. XXXX BANK FOR COOPERATIVES
/s/ XXXXXX X. XXXXX
By:____________________________________
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President--Credit
ING HIGH INCOME PRINCIPAL PRESERVATION
FUND HOLDINGS, LDC
By: ING Capital Advisors, Inc., as
Investment Advisor
/s/ XXXXX X. XXXX
By:____________________________________
Name: Xxxxx X. Xxxx
Title: AVP & Portfolio Manager
Title:
PILGRIM AMERICA PRIME RATE TRUST
/s/ XXXXXXX X. XXXXXXXX
By:____________________________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
METROPOLITAN LIFE INSURANCE COMPANY
/s/ XXXXX X. XXXXXXX
By:____________________________________________
Name: Xxxxx X. Xxxxxxx
Title: Director
XXXXXXX XXXXX SENIOR FLOATING RATE FUND
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
/s/ XXXXXX XXXXXXXX, CPA
By:____________________________________________
Name: Xxxxxx Xxxxxxxx, CPA
Title: Authorized Signatory
XXXXXXX XXXXX DEBT STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
/s/ XXXXXX XXXXXXXX, CPA
By:____________________________________________
Name: Xxxxxx Xxxxxxxx, CPA
Title: Authorized Signatory
XXXXXXX XXXXX INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
/s/ XXXXXX XXXXXXXX, CPA
By:____________________________________
Name: Xxxxxx Xxxxxxxx, CPA
Title: Authorized Signatory
THE TRAVELERS INSURANCE COMPANY
/s/ XXXXXX X. XXXXXX
By:____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Second Vice President
PEOPLES SECURITY LIFE INSURANCE COMPANY
By:____________________________________
Name:
Title:
GCB INVESTMENT PORTFOLIO
By: Citibank, N.A
/s/ XXXXXX XXXXXXX
By:____________________________________
Name: Xxxxxx Xxxxxxx
Title: Vice President
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A
/s/ XXXX X. XXXXXXXXXXX
By:____________________________________
Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
BALANCED HIGH-YIELD FUND I LTD.
By: BHF-Bank Aktiengesellschaft
/s/ XXXX XXXXX X. XXXX
By:______________________________________
Name: Xxxx Xxxxx X. Xxxx
Title: Vice President AT
PROTECTIVE ASSET MANAGEMENT
/s/ XXXXX XXXXXXX, CFA, CPA
By:______________________________________
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
Protective Asset Management Company
XXXXXX DIVERSIFIED INCOME TRUST
By:____________________________________
Name:
Title:
XXXXXX VT HIGH YIELD FUND
By:____________________________________
Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital Management,
Inc. as Collateral Manager
/s/ XXXXXXX X. XXXXXX
By:____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President & Director
