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EXHIBIT 10.5
AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT
This Amendment (this "Amendment") is entered into as of November 4,
1999 by and among XXXXXX WORLDWIDE, INC., a Delaware corporation (the
"Company"), one or more Subsidiaries of the Company (whether now existing or
hereafter formed, collectively referred to herein as the "Subsidiary
Borrowers"), the institutions from time to time parties hereto as Lenders, ABN
AMRO BANK N.V. in its capacity as administrative agent (the "Administrative
Agent") for itself and the other Lenders, SUNTRUST BANK, ATLANTA, as Syndication
Agent (the "Syndication Agent"), and WACHOVIA BANK N.A., as Documentation Agent
(the "Documentation Agent").
RECITALS
A. The Borrowers, the Agents and certain Lenders (the "Existing
Lenders") are party to that certain 364-Day Credit Agreement dated as of October
20, 1999 (the "Credit Agreement"). Unless otherwise specified herein,
capitalized terms used in this Amendment shall have the meanings ascribed to
them by the Credit Agreement.
B. The Borrowers, the Agents and the Existing Lenders wish to
amend the Credit Agreement on the terms and conditions set forth below.
C. The Lenders which are not Existing Lenders wish to become
parties to the Credit Agreement.
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Credit Agreement. Upon the "Effective Date" (as
defined below), the Credit Agreement shall be amended as follows:
(a) Section 1.1 of the Credit Agreement is amended by
deleting the definitions of "Dividend", "Lenders" and "Required Lenders" and
replacing them with the following definitions:
"'DIVIDEND' means the cash distribution of approximately $568,000,000
(which amount gives effect to a positive cash adjustment of
approximately $23,000,000 in favor of the Company pursuant to the
Spin-Off Materials) to be paid by the Company to Xxxxxx in connection
with the Spin-Off. Notwithstanding anything in this Agreement to the
contrary, (i) such distribution may take the form of a redemption by
the Company of shares in the Company held by Xxxxxx in exchange for
cash or promissory notes in the approximate amount of $568,000,000
followed by the repayment or redemption of such notes in full for cash
on the Closing Date and (ii) such transactions shall not be deemed to
give rise to a Default or Unmatured Default or to result in any
representation or warranty of the Borrowers in any Loan Document being
untrue or incorrect."
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"'LENDERS' means the lending institutions listed on the signature pages
of Amendment No. 1 to this Agreement, dated as of November 4, 1999, and
their successors and assigns."
"'REQUIRED LENDERS' means Lenders hereunder whose Pro Rata Shares, in
the aggregate, are at least fifty-one percent (51%); provided,
however, that solely with respect to any waiver or amendment of the
provisions of Section 7.4, until such time as the aggregate amount of
Revolving Loan Commitments hereunder and "Commitments" under the 5-Year
Credit Agreement of the Agents (in their individual capacities) and
their Affiliates are $330,000,000 or less, "Required Lenders" shall
mean Lenders hereunder whose Pro Rata Shares, in the aggregate, are at
least sixty-six and two-thirds percent (66-2/3%)."
(b) Section 1.1 of the Credit Agreement is amended by
deleting the words "LaSalle Bank National Association" contained in the
definition of "Prime Rate" and replacing such words with the word "ABN."
(c) Section 2.20 of the Credit Agreement is amended by
deleting the reference to Section 11.7 where it appears in the last sentence
thereof and replacing it with a reference to Section 11.6.
(d) Section 5.1(C) of the Credit Agreement is amended in
its entirety to read as follows:
"(C) Copies of the Certificate of Incorporation or equivalent document
of each of the Loan Parties, together with all amendments thereto and,
to the extent applicable, a certificate of good standing, all certified
by the appropriate governmental officer in its jurisdiction of
incorporation (or, in the case of Xxxxxx Europe AG, as may otherwise be
satisfactory to the Administrative Agent)."
(e) Section 5.1(O) of the Credit Agreement is deleted in
its entirety and replaced with the following:
"(O) The Agents, Lenders and/or their Affiliates shall have received
all fees and expenses, including fees and expenses of Winston & Xxxxxx,
required to be paid on or before the Closing Date (including, without
limitation, the commitment fees provided for in Section 2.15(C) of this
Agreement, which fees, with respect to the period prior to the
effectiveness of Amendment No. 1 to this Agreement, shall be solely for
the account of the Lenders signatory to the Agreement as of October 20,
1999)."
(f) Section 6.22(F) of the Credit Agreement is amended by
adding the words "(other than any Subsidiary Borrower that shall be a Subsidiary
Borrower as of the original date of this Agreement)" immediately after the first
reference to "Subsidiary Borrower" contained in such Section.
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(g) Section 7.2(N) of the Credit Agreement is amended by
deleting therefrom the words "364-Day Credit Agreement" and replacing them with
the words "5-Year Credit Agreement."
(h) Section 7.3(D) of the Credit Agreement is amended by
deleting clause (vii) thereof in its entirety and replacing such clause with the
following: "(vii) Indebtedness incurred in connection with a securitization to
the extent such transaction is otherwise permitted pursuant to Section 7.3(A)."
(i) Section 8.1(D)(i) of the Credit Agreement is amended
by deleting therefrom the words "arising under the 5-Year Agreement aggregating
in excess of $10,000,000" and replacing them with the words "in excess of
$10,000,000 or any Indebtedness arising under the 5-Year Credit Agreement."
(j) Section 9.2(v) of the Credit Agreement is amended by
adding the words "or any Guaranty" to the end of such Section.
(k) Section 9.2(vi) of the Credit Agreement is deleted in
its entirety and replaced with the following:
"(vi) Release the Company or any Guarantor from any of its
obligations under the Guaranty set forth in Article X hereof or any
other Guaranty."
(l) Section 9.2 of the Credit Agreement is amended by
adding the following clauses (viii) and (ix) immediately after clause (vii) in
such Section:
"(viii) Release all or any substantial portion of the collateral
pledged pursuant to the Pledge Agreements.
(ix) Release any Subsidiary from any of its obligations under
Section 3 of the Subordination Agreement."
(m) Section 10.7 of the Credit Agreement is amended by
deleting the word "earlier" in such Section and replacing it with the word
"later."
(n) Exhibits A and F to the Credit Agreement are deleted
in their entirety and replaced with Exhibits A and F, respectively, attached to
this Amendment.
(o) Appendix I to Exhibit D to the Credit Agreement is
amended by deleting each reference to "135 South LaSalle Street" where it
appears therein and replacing each such reference with a reference to "135 South
LaSalle Street, Suite 625."
(p) Exhibit G-1 of the Credit Agreement is amended by
deleting Section 10 thereof and replacing it with the following:
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"Subject to the provisions of Section 8, this Guaranty shall continue
in effect until the Credit Agreement has terminated, the Guaranteed
Debt has been paid in full and the other conditions of this Guaranty
have been satisfied; provided, however, that this Guaranty shall
automatically and without further action by any party terminate as to
any Guarantor at such time as the Company ceases to have any direct or
indirect equity interest in such Guarantor as a consequence of a
transaction which is otherwise permitted by the Credit Agreement."
2. Representations and Warranties of the Borrowers. Each Borrower
represents and warrants that:
(a) Such Borrower has the requisite power and authority
and legal right to execute and deliver this Amendment and to perform its
Obligations hereunder. The execution and delivery by such Borrower of this
Amendment and the performance of its obligations hereunder have been duly
authorized by proper proceedings, and this Amendment constitutes a legal, valid
and binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency or similar law affecting the enforcement of creditors'
rights generally;
(b) Each of the representations and warranties contained
in the Credit Agreement is true and correct in all material respects on and as
of the date hereof as if made on the date hereof; and
(c) After giving effect to this Amendment, no Default or
Unmatured Default has occurred and is continuing.
3. Effective Date. Section 1 of this Amendment shall become
effective upon the execution and delivery hereof by the Borrowers, the Agents
and all the Lenders (the "Effective Date").
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of any
Agent or Lender under the Credit Agreement or any Loan Document, nor constitute
a waiver of any provision of the Credit Agreement or any Loan Document, except
as specifically set forth herein. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof ",
"herein" or words of similar import shall mean and be a reference to the Credit
Agreement as amended hereby.
5. Costs and Expenses. Each Borrower hereby affirms its
obligation under Section 11.6 of the Credit Agreement to reimburse the
Administrative Agent for all reasonable costs and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time charges of
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attorneys and paralegals for the Administrative Agent) paid or incurred by the
Administrative Agent in connection with the preparation, negotiation, execution,
delivery, syndication, review, proposed or completed amendment, waiver or
modification, and administration of the Loan Documents.
6. GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND THE
ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AMENDMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE
CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
7. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in an y number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
XXXXXX WORLDWIDE, INC., as the Company
By:
Name:
Title:
XXXXXX EUROPE AG, as a Subsidiary Borrower
By:
Name:
Title:
XXXXXX EUROPE B.V., as a Subsidiary Borrower
By:
Name:
Title:
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XXXXXX HOLDINGS, INC., as a Subsidiary Borrower
By:
Name:
Title:
XXXXXX PUERTO RICO, INC., as a Subsidiary Borrower
By:
Name:
Title:
ABN AMRO BANK N.V., as Administrative Agent and Lender
By:
Name:
Title:
SUNTRUST BANK, ATLANTA, as Syndication Agent and Lender
By:
Name:
Title:
WACHOVIA BANK N.A., as Documentation Agent and Lender
By:
Name:
Title:
FIRST UNION NATIONAL BANK., as Lender
By:
Name:
Title:
BANK ONE, NA, as Lender
By:
Name:
Title:
BANCO POPULAR DE PUERTO RICO, as Lender
By:
Name:
Title:
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BANK OF MONTREAL, as Lender
By:
Name:
Title:
THE BANK OF NEW YORK, as Lender
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as Lender
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI LTD., as Lender
By:
Name:
Title:
BANQUE NATIONALE DE PARIS, as Lender
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Lender
By:
Name:
Title:
DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, MIAMI AGENCY, as Lender
By:
Name:
Title:
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FIRSTAR BANK N.A., as Lender
By:
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION, as Lender
By:
Name:
Title:
REGIONS BANK, as Lender
By:
Name:
Title:
BANCA DI ROMA, NEW YORK BRANCH, as Lender
By:
Name:
Title:
ERSTE BANK, NEW YORK BRANCH, as Lender
By:
Name:
Title:
HIBERNIA NATIONAL BANK, as Lender
By:
Name:
Title:
COMERICA BANK, as Lender
By:
Name:
Title:
IBM CREDIT CORPORATION, as Lender
By:
Name:
Title:
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