Exhibit 10.91
EXECUTION COPY
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XXXXXXXXX, XXXXXX & XXXXXXXX, INC.
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 29, 1998
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$2,750,000,000
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CHASE SECURITIES INC.,
as Arranger
THE CHASE MANHATTAN BANK
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION,
as Syndication Agents
THE FIRST NATIONAL BANK OF CHICAGO,
as Documentation
Agent, DLJSC Collateral Agent and Payment Agent
THE BANK OF NEW YORK,
as Administrative Agent and Payment Agent
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 29, 1998
among: XXXXXXXXX, LUFKIN & XXXXXXXX, INC., a Delaware corporation ("DLJ");
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION, a Delaware corporation
("DLJSC" and, together with DLJ, the "Borrowers"); each of the lenders that is
a signatory hereto identified under the caption "BANKS" on the signature pages
hereto or that, pursuant to Section 11.06(b) of the Credit Agreement (as
hereinafter defined), shall become a "Bank" hereunder (individually, a "Bank"
and, collectively, the "Banks"); CHASE SECURITIES INC., as arranger for the
Banks (in such capacity, together with its successors in such capacity, the
"Arranger"); THE CHASE MANHATTAN BANK and DLJSC, as Syndication Agents for the
Banks (each individually, in such capacity, together with its successors in
such capacity, a "Syndication Agent" and, collectively, the "Syndication
Agents"); THE BANK OF NEW YORK, as administrative agent for the Banks (in such
capacity, together with its successors in such capacity, the "Administrative
Agent") and as Payment Agent with respect to loans made to DLJ (in such
capacity, together with its successors in such capacity, a "Payment Agent");
and THE FIRST NATIONAL BANK OF CHICAGO, as documentation agent for the Banks
(in such capacity, together with its successors in such capacity, the
"Documentation Agent") and as collateral agent for the Banks with respect to
loans to DLJSC (in such capacity, together with its successors in such
capacity, the "DLJSC Collateral Agent") and as Payment Agent with respect to
loans made to DLJSC (in such capacity, together with its successors in such
capacity, a "Payment Agent").
WITNESSETH:
WHEREAS, the Borrowers, DLJ Mortgage Capital, Inc., a Delaware
corporation ("DLJMC"), certain Banks (the "Existing Banks"), the Administrative
Agent, the Arranger, the Syndication Agents, the Payment Agents, the DLJSC
Collateral Agent and the Documentation Agent are party to a Credit Agreement
dated as of May 30, 1997 (the "Existing Credit Agreement") pursuant to which
the Existing Banks have agreed to make revolving loans to the Borrowers and
DLJMC, on the conditions set forth therein, through and including the date
hereof;
WHEREAS, DLJMC desires to terminate its rights under the Existing
Credit Agreement upon the effectiveness of this Agreement; and
WHEREAS, BBL International (U.K.) Limited, Banque Nationale de Paris
S.A. Dublin Branch, Barclays Bank PLC and National Australia Bank Limited
A.C.N. 004044937 (the "New Banks") wish to become parties to the Credit
Agreement (as defined below) as "Banks" thereunder, and the parties hereto
desire to amend and restate the Existing Credit Agreement in its entirety to
provide, among other things for the extension of the Commitment
First Amended and Restated Credit Agreement
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Termination Date (as defined in the Existing Credit Agreement). an increase of
the aggregate commitments of the Banks thereunder to $2,750,000,000 and certain
other changes;
NOW, THEREFORE, the parties hereto agree to amend the Existing Credit
Agreement as set forth herein and to restate the Existing Credit Agreement to
read in its entirety as set forth in the Existing Credit Agreement, which is
hereby incorporated herein by reference, with the amendments set forth in
Article II below (as so amended and restated, the "Credit Agreement"):
ARTICLE I
Definitions
Except as used in the definitions set forth in Article II below,
references to "hereby," "herein," "hereof" and "herewith" refer to this
document but not the Credit Agreement. Capitalized terms used but not
otherwise defined herein have the meanings given them in the Credit
Agreement.
ARTICLE II
Amendments
Subject to Article IV hereof, the Existing Credit Agreement is hereby
amended as follows:
Paragraph 2.01. References in the Existing Credit Agreement to "this
Agreement" (including indirect references) shall be deemed to be references to
the Credit Agreement. The New Banks shall be deemed to be "Banks' under and for
all purposes of the Credit Agreement, and each reference in the Credit
Agreement to "Banks" shall be deemed to include the New Banks.
Paragraph 2.02. Section 1.01 of the Existing Credit Agreement is
amended by adding the following new definitions (to the extent not already
included in said Section 1.01) and inserting the same in the appropriate
alphabetical locations and amending in their entirety the following definitions
(to the extent already included in said Section 1.01) to read in their entirety
as follows:
"Agents" shall mean the Administrative Agent, the DLJSC Collateral
Agent, the Documentation Agent and the Payment Agent.
First Amended and Restated Credit Agreement
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"Agreement" shall mean, on any date from and after the
Amendment Effective Date, this Credit Agreement as in effect on the
Amendment Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in
effect on such date.
"Applicable Margin" shall mean, with respect to any Type of
Committed Rate Loan made to a Borrower, the applicable margin per
annum specified in the Borrower Annex applicable to such Borrower;
provided that from and after the Commitment Termination Date until the
payment in full of such Loan, the "Applicable Margin" with respect
to such Loan shall be increased by .14%.
"Amendment Effective Date" means the date upon which the
conditions set forth in Article IV hereof shall have been satisfied.
"Basic Documents" shall mean, collectively, this Agreement,
the Notes (if any) and the Security Documents.
"Borrower" shall mean DLJ or DLJSC (as the case may be).
"Commitment" shall mean, as to each Bank for each Borrower,
the obligation of such Bank to make Committed Rate Loans to such
Borrower in an aggregate principal amount at any one time outstanding
up to but not exceeding the amount set forth opposite such Bank's name
on Appendix I hereto under the applicable caption for such Borrower
(as the same may at any time or from time to time be reduced pursuant
to Section 2.03 hereof or increased or decreased pursuant to Section
11.06 hereof).
"Commitment Termination Date" shall mean May 28, 1999 (or if
such day is not a Business Day, the immediately preceding Business
Day), as the same may be extended pursuant to Section 2.10 hereof.
"Consolidated Tangible Net Worth" shall mean, with respect to
any Person, as of any date of determination, all amounts that would,
in accordance with GAAP, be included under shareholders' equity on a
consolidated balance sheet of such Person as at such date, plus any
preferred stock, less all assets of such Person and its Subsidiaries
(determined on a consolidated basis) at such date that would be
classified as intangible assets in accordance with GAAP, including,
without limitation, trade or service marks, franchises, trade names
and goodwill.
"DLJSC Tri-Party Agreement" shall mean the Tri-Party
Agreement, dated as of May 30, 1997, among DLJSC, the DLJSC Collateral
Agent and Chase, as custodian, as the same shall be modified and
supplemented and in effect from time to time.
First Amended and Restated Credit Agreement
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"Event of Default" shall mean a DLJ Event of Default or a
DLJSC Event of Default (as the case may be).
"Maximum Aggregate Commitment" shall mean, as to each Bank,
the obligation of such Bank to make Committed Rate Loans to the
Borrowers in an aggregate principal amount at any one time outstanding
up to but not exceeding the amount set forth opposite the name of such
Bank on Appendix I hereto under the caption "Maximum Aggregate
Commitment" (as the same may be reduced from time to time pursuant to
Section 2.03 hereof or increased or decreased pursuant to Section
11.06 hereof).
"Payment Agent" shall mean, with respect to DLJ, BNY and,
with respect to DLJSC, First Chicago.
"Security Documents" shall mean, collectively, the DLJSC
Security Agreement, the DLJSC Tri-Party Agreement, the Euroclear
Agreements and all Uniform Commercial Code financing statements
required by this Agreement or any such Security Document to be filed
with respect to the security interests created pursuant to the DLJSC
Security Agreement.
Paragraph 2.03. Section 1.01 of the Existing Credit Agreement is
further amended by deleting the following definitions from said Section 1.01:
"Bankers Trust", "BT Collateral Custodian", "BT Security Agreement",
"Collateral Custodians", "DLJ Mortgage Acceptance", "DLJMC Borrowing Base",
"DLJMC Collateral", "DLJMC Default", "DLJMC Event of Default", "DLJMC Secured
Obligations", "DLJMC Security Agreements", "LaSalle", "LaSalle Collateral
Custodian", "LaSalle Security Agreement", "Parent Guarantee", "Qualified
Originator", "Qualified Servicer", "Securitization Take-Out Commitment",
"Take-Out Commitments", "Third-Party Custodian" "Third-Party Custody
Agreement", "Third-Party Pledged Mortgage Loan", and "Trust Receipt".
Paragraph 2.04. Section 1.02 of the Existing Credit Agreement is
amended by deleting "8.03(c) or 8.04(d)" and replacing it with "or 8.03(c)" in
subsection (b) thereof.
Paragraph 2.05. Section 2.02(c) of the Existing Credit Agreement is
amended by deleting clause (iii) therefrom.
Paragraph 2.06. Section 2.04 of the Existing Credit Agreement is
amended by replacing the reference to ".10%" in the first sentence thereof with
".09%" and by replacing "the date hereof' in such sentence with "the Amendment
Effective Date".
First Amended and Restated Credit Agreement
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Paragraph 2.07. Section 2.09 of the Existing Credit Agreement shall be
amended by deleting subsection (b) therefrom and relettering existing
subsection "(c)" thereof as subsection "(b)" thereof.
Paragraph 2.08. Section 4.04 of the Existing Credit Agreement is
amended by deleting "or DLJMC" and "or DLJMC Collateral Agent (as the case may
be)" from the first sentence thereof.
Paragraph 2.09. Section 5.06 of the Existing Credit Agreement is
amended by adding "or on the Amendment Effective Date" to the end of the first
parenthetical phrase in subsection (a)(i) thereof.
Paragraph 2.10. Section 6.02 of the Existing Credit Facility is amended
by deleting Section 6.02(c) in its entirety and replacing it with
"[Intentionally Omitted]".
Paragraph 2.11. Section 6.03 of the Existing Credit Agreement is
amended by deleting subsection (b) in its entirety and replacing it with
"[Intentionally Omitted]".
Paragraph 2.12. Section 7.01 of the Existing Credit Agreement is
amended by (a) deleting "1996" from the first and last sentences of subsection
(b) and inserting "1997" and (b) deleting "and DLJMC" from subsection (m).
Paragraph 2.13. Section 7.01 of the Existing Credit Agreement is
further amended by changing the heading thereof to read in its entirety,
"Representations of DLJ and DLJSC". In addition, Section 7.01 of the Existing
Credit Agreement is further amended by adding the following subsection:
"(p) Year 2000. Any reprogramming required to permit the
proper functioning in and following the year 2000 of (i) such
Borrower's computer systems and (ii) any necessary equipment of such
Borrower containing embedded microchips (including systems and
equipment supplied by any other Person with which such Borrower's
systems interface) and the testing of all such systems and equipment
as so reprogrammed, will be completed by January 1, 1999. The cost to
such Borrower of such reprogramming and testing and the reasonably
foreseeable consequences of the year 2000 to such Borrower (including,
without limitation, reprogramming errors and failure of the systems or
equipment of such other Person) will not result in a Material Adverse
Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management
information systems of such Borrower and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the
term of this Agreement to be, sufficient to permit such Borrower to
conduct its business without Material Adverse Effect."
First Amended and Restated Credit Agreement
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Paragraph 2.14. The heading of Section 8.01 of the Existing Credit
Agreement is amended to read in its entirety "Covenants of DLJ and DLJSC."
Paragraph 2.15. Section 7.02 of the Existing Credit Agreement is
amended by deleting "or DLJMC" from subsection (b)thereof.
Paragraph 2.16. Section 7.03 of the Existing Credit Agreement is
amended by deleting "1996" from the first and last sentences of subsection (d)
and inserting "1997".
Paragraph 2.17. Section 8.01 of the Existing Credit Agreement is
amended by (a) deleting "either DLJMC or" from the second proviso to subsection
(e) thereof and (b) by deleting "and clauses (h), (i) or (j) of Section 9.03
hereof, in the case of DLJMC" from subsection (i) thereof and inserting "and"
between "DLJ," and "clauses" in such subsection (i).
Paragraph 2.18. Section 8.02(a) of the Existing Credit Agreement is
amended by replacing the reference to "$1,300,000,000" with "$1,600,000,000,"
and the reference to "1997" with "1998".
Paragraph 2.19. Section 8.03(b) of the Existing Credit Agreement is
amended by replacing the reference to $750,000,000 with "$900,000,000" and the
reference to "1997" with "1998".
Paragraph 2.20. Section 8.03(c) of the Existing Credit Agreement is
amended by deleting "setting forth in each case in comparative form the
corresponding consolidated figures as of the end of, and for, the preceding
fiscal year," from clause (ii) of such subsection (c).
Paragraph 2.21. Section 8.04 of the Existing Credit Facility is amended
by deleting Section 8.04 in its entirety and replacing it with "[Intentionally
Omitted]".
Paragraph 2.22. Section 9.01(k) of the Existing Credit Agreement is
amended to read in its entirety as follows:
"(k) DLJ shall cease to own beneficially and of record 100%
of the voting stock of DLJSC, or Equitable shall either cease to own
beneficially, directly or indirectly, more than 40% of the voting
stock of DLJ or cease to hold the largest percentage of the voting
stock of DLJ of all holders of the voting stock of DLJ."
Paragraph 2.23. Section 9.03 of the Existing Credit Facility is amended
by deleting Section 9.03 in its entirety and replacing it with "[Intentionally
Omitted]".
Paragraph 2.24. Section 10.01 of the Existing Credit Agreement is
amended by deleting "Bankers Trust, as the Collateral Custodian under the BT
Security Agreement, LaSalle as the
First Amended and Restated Credit Agreement
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Collateral Custodian under the LaSalle Security Agreement, and", "and the
Tri-Party Custody Agreement, each", "DLJMC Collateral or", "(as the case may
be)" and "and (y) BNY may also act as DLJMC Collateral Agent under the DLJMC
Security Agreements" from the first sentence thereof.
Paragraph 2.25 Section 10.03 of the Existing Credit Agreement is
amended by deleting "or the DLJMC Collateral Agent" and "or, in the case of the
DLJMC Collateral Agent, the failure of DLJMC to maintain at any time the DLJMC
Borrowing Base in an amount at least equal to the amount of the DLJMC Secured
Obligations at such time" from the first sentence thereof.
Paragraph 2.26 Section 10.09 of the Existing Credit Agreement is
amended by deleting "neither the DLJSC Collateral Agent nor the DLJMC
Collateral Agent shall" and inserting "the DLJSC Collateral Agent shall not"
and deleting "or 'DLJMC Borrowing Base'" and "and the DLJMC Collateral Agent"
therefrom.
Paragraph 2.27 Section 11.11 of the Existing Credit Agreement is
amended by deleting "DLJMC," and "The DLJMC Collateral Agent" therefrom.
Paragraph 2.28. Annex A to the Existing Credit Agreement is amended by
replacing the reference to "$1,000,000,000" under the heading "Maximum Loan"
with "$1,650,000,000" and by replacing the reference to "0.350%" under the
heading "Applicable Margin" with "0.335%".
Paragraph 2.29. Annex B to the Existing Credit Agreement is amended by
replacing the reference to "$2,000,000,000" under the heading "Maximum Loan"
with "$2,750,000,000" and by replacing the reference to "0.30%" under the
heading "Applicable Margin" with "0.285%".
Paragraph 2.30. Annex C to the Existing Credit Agreement is deleted in
its entirety.
Paragraph 2.31. The table of contents of the Existing Credit Agreement
is amended by deleting the titles of Schedules III and IV and Xxxxxxxx X, X-0,
X-0, F-1 and F-2 therefrom and replacing the same in each case with
"[Intentionally Omitted]".
ARTICLE III
Representations and Warranties
Each Borrower hereby represents and warrants to the Banks and the
Agents as of the date hereof and as of the Amendment Effective Date (as defined
in Article I hereof) that:
(i) no Default has occurred and is continuing; and
First Amended and Restated Credit Agreement
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(ii) each of the representations and warranties of the
Borrowers in Section 7 of the Existing Credit Agreement (except that
the representations and warranties in Section 7.01(m) thereof shall be
updated by the Borrowers as of the Amendment Effective Date pursuant
to Schedule 7.01(m) hereto) and in the other Basic Documents are true
and correct as of each such date with the same force and effect as if
made on and as of each such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date,
as of such specific date).
ARTICLE IV
Conditions Precedent
The amendments set forth in Article II hereof shall become effective
on the date on which the following conditions precedent shall have been
satisfied:
Paragraph 4.01. Execution by All Parties. This First Amended and
Restated Credit Agreement shall have been executed and delivered by each of the
parties hereto.
Paragraph 4.02. Resolutions, Etc. The Administrative Agent shall have
received from the Borrowers, the following documents, each certified as
indicated:
(a) a certificate from the Secretary of State of the
jurisdiction of its incorporation, dated as of a recent date, listing
each amendment to the charter of such Borrower and certifying as to
the good standing of such Borrower in such jurisdiction and a copy of
each amendment to such charter since the date of the Existing Credit
Agreement, certified as of a recent date by the Secretary of State of
its jurisdiction of incorporation;
(b) a certificate of the Secretary or an Assistant Secretary
of each Borrower, dated the Amendment Effective Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws
of such Borrower as amended and in effect at all times from the date
on which the resolutions referred to in clause (B) were adopted to and
including the date of such certificate, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the board of
directors of such Borrower authorizing the execution, delivery and
performance of such of the Basic Documents to which such Borrower is
or is intended to be a party and the extensions of credit hereunder,
and that such resolutions have not been modified, rescinded or amended
and are in full force and effect, (C) that the charter of such
Borrower has not been amended since the date of the certification
thereto furnished pursuant to clause (a) above, and (D) as to the
incumbency and specimen signature of each officer of such Borrower
executing such of the Basic Documents to which such Borrower is
intended to be a party and each other document or notice or other
communication to be delivered by such Borrower from time to time in
First Amended and Restated Credit Agreement
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connection therewith and the Administrative Agent and each Bank may
conclusively rely on such certificate until it shall have received a
further certificate of the Secretary or an Assistant Secretary of such
Borrower canceling or amending such prior certificate; and
(c) a certificate of another officer of each Borrower as to
the incumbency and specimen signature of the Secretary or Assistant
Secretary, as the case may be, of such Borrower.
Paragraph 4.03. Opinion of Counsel. The Administrative Agent shall have
received an opinion (with sufficient signed original copies for the Agents and
each Bank), dated the Amendment Effective Date and addressed to the Agent and
the Banks, from Xxxxxx, Xxxxxx & Xxxxxxxxx, special New York counsel for the
Borrowers, substantially in the form of Exhibit B hereto. The Borrowers hereby
instruct such counsel to deliver said opinions to the Administrative Agent and
each Bank hereunder.
Paragraph 4.04. Officer's Certificate. The Administrative Agent shall
have received a certificate of a senior officer of each Borrower dated as of
the Amendment Effective Date, to the effect set forth in Article III hereto.
Paragraph 4.05. Other Documents. Such other documents as any Agent or
any Bank or special New York counsel to the Agents may reasonably request.
ARTICLE V
Amendment to Security Agreement
Each of the Banks hereby consents to, and authorizes the Collateral
Agent to execute and deliver on its behalf, Amendment No. 1 to Master Security
Agreement, in the form attached hereto as Exhibit A.
Each party hereto agrees that, by its signature hereto and without any
further action on the part of any other party, each New Bank has become a
Lender (as defined in the Security Agreement) and is entitled to the rights and
subject to the obligations of a Lender, as set forth in the Security Agreement.
ARTICLE VI
Paragraph 6.01. Miscellaneous. Except as herein provided, the Existing
Credit Agreement shall remain unchanged and in full force and effect. This
First Amended and Restated Credit Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties
First Amended and Restated Credit Agreement
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hereto may execute this First Amended and Restated Credit Agreement by signing
any such counterpart and sending the same by telecopier, mail messenger or
courier to the Administrative Agent or counsel to the Administrative Agent.
This First Amended and Restated Credit Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
Paragraph 6.02. Termination of DLJ Mortgage Capital Commitments. DLJMC
acknowledges by its signature below that as of the date hereof, the Existing
Banks' Commitments to DLJMC under the Existing Credit Agreement shall be
terminated and from and after the date hereof, DLJMC shall no longer be a
"Borrower" under the Credit Agreement.
First Amended and Restated Credit Agreement
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IN WITNESS WHEREOF, the parties hereto have caused this First Amended and
Restated Credit Agreement to be duly executed as of the day and year first
above written.
XXXXXXXXX, LUFKIN & XXXXXXXX, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: XXXXXXX X. XXXXXXXXXXX
Title: SENIOR VICE
PRESIDENT/TREASURER
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By /s/
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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BANKS
THE CHASE MANHATTAN BANK
By /s/ X. Xxxxxxxx
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Name: X. Xxxxxxxx
Title: VP
THE BANK OF NEW YORK
By
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
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Name:
Title:
BANK OF AMERICA NT & SA
By
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Name:
Title:
First Amended and Restated Credit Agreement
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BANKS
THE CHASE MANHATTAN BANK
By
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Name:
Title:
THE BANK OF NEW YORK
By /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By
------------------------------------
Name:
Title:
BANK OF AMERICA NT & SA
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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BANKS
THE CHASE MANHATTAN BANK
By
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Name:
Title:
THE BANK OF NEW YORK
By
------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxxx de Diego
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Name: Xxxxxx de Diego
Title: Vice President
BANK OF AMERICA NT & SA
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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BANKS
THE CHASE MANHATTAN BANK
By
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Name:
Title:
THE BANK OF NEW YORK
By
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By
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Name:
Title:
BANK OF AMERICA NT & SA
By /s/ Xxxxxx X. Xxxxxxxx
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Name: XXXXXX X. XXXXXXXX
Title: MANAGING DIRECTOR
First Amended and Restated Credit Agreement
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CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
Title: Senior Vice President
SOCIETE GENERALE, NEW YORK BRANCH
By
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Name:
Title:
BANQUE PARIBAS LONDON
By
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Name:
Title:
By
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Name:
Title:
CITIBANK, N.A.
By
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Name:
Title:
First Amended and Restated Credit Agreement
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CREDIT LYONNAIS NEW YORK BRANCH
By
------------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXX
Title: VICE PRESIDENT
BANQUE PARIBAS LONDON
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CITIBANK, N.A.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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CREDIT LYONNAIS NEW YORK BRANCH
By
------------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH
By
------------------------------------
Name:
Title:
BANQUE PARIBAS LONDON
By /s/ Xxxxxxxxx Xxxxxx
------------------------------------
Name: XXXXXXXXX XXXXXX
Title:
By /s/ Xxxx Xxxxxx
------------------------------------
Name: XXXX XXXXXX
Title:
CITIBANK, N.A.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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CREDIT LYONNAIS NEW YORK BRANCH
By
------------------------------------
Name:
Title:
SOCIETE GENERALE, NEW YORK BRANCH
By
------------------------------------
Name:
Title:
BANQUE PARIBAS LONDON
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CITIBANK, N.A.
By /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXXXXX
Title: Managing Director
First Amended and Restated Credit Agreement
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NATIONSBANK, N.A.
By /s/ Xxx Xxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxx
Title: Senior Vice President
ROYAL BANK OF CANADA
By
------------------------------------
Name:
Title:
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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NATIONSBANK, N.A.
By
------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Manager
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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NATIONSBANK, N.A.
By
------------------------------------
Name:
Title:
ROYAL BANK OF CANADA
By
------------------------------------
Name:
Title:
UNION BANK OF SWITZERLAND, NEW YORK
BRANCH
By Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
By Xxxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Managing Director
First Amended and Restated Credit Agreement
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BANQUE NATIONALE DE PARIS
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
BANCO SANTANDER
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST CO.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
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BANQUE NATIONALE DE PARIS
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANCO SANTANDER, S.A., NEW YORK
BRANCH
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Manager--Corporate Bank
Banco Santander
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
Banco Santander
BANK OF TOKYO-MITSUBISHI TRUST CO.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-15-
BANQUE NATIONALE DE PARIS
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANCO SANTANDER
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST CO.
By /s/ Xxxxx X. Place
------------------------------------
Name: Xxxxx X. Place
Title: Vice President
First Amended and Restated Credit Agreement
-16-
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxxxxxx X.X. Xxxxxx
------------------------------------
Name: Xxxxxxxx X.X. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK
By
------------------------------------
Name:
Title:
LLOYDS BANK Plc
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-16-
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
LLOYDS BANK Plc
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-16-
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By
------------------------------------
Name:
Title:
LLOYDS BANK PLC
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director, Financial
Institutions, USA
G311
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Director, Acquisition &
Project Finance, USA
B374
First Amended and Restated Credit Agreement
-17-
MELLON BANK, N.A.
By /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By
------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By
------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NY BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-17-
MELLON BANK, N.A.
By
------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Joint General Manager
BARCLAYS BANK PLC
By
------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NY BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-17-
MELLON BANK, N.A.
By
------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By
------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Associate Director
COMMERZBANK AKTIENGESELLSCHAFT,
NY BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-17-
MELLON BANK, N.A.
By
------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED, NEW
YORK BRANCH
By
------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By
------------------------------------
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NY BRANCH
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
First Amended and Restated Credit Agreement
-18-
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
By /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
CREDITO ITALIANO
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-18-
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CREDITO ITALIANO
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: F.V.P. & Deputy Manager
By /s/ Xxxxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: First Vice President
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-18-
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CREDITO ITALIANO
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
First Amended and Restated Credit Agreement
-19-
KREDIETBANK N.V.
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
By /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
THE TORONTO DOMINION (TEXAS), INC.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-19-
KREDIETBANK N.V.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
THE TORONTO DOMINION (TEXAS), INC.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-19-
KREDIETBANK N.V.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title:
THE TORONTO DOMINION (TEXAS), INC.
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-19-
KREDIETBANK N.V.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
NATIONAL AUSTRALIA BANK LIMITED
A.C.N. 004044937
By
------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
THE TORONTO DOMINION (TEXAS), INC.
By /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
First Amended and Restated Credit Agreement
-20-
XXXXX FARGO BANK, N.A.
By /s/ Xxxxx X. Xxxxxxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxxxxxx
Title: Vice President
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Assistant Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
REPUBLIC NATIONAL BANK OF NEW YORK
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-20-
XXXXX FARGO BANK, N.A.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
REPUBLIC NATIONAL BANK OF NEW YORK
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-20-
XXXXX FARGO BANK, N.A.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
REPUBLIC NATIONAL BANK OF NEW YORK
By /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
By /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: FVP
First Amended and Restated Credit Agreement
-21-
BANQUE NATIONALE DE PARIS S.A.
DUBLIN BRANCH
By /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Head of Credit Department
By /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant General Manager
BANCO DI NAPOLI S.P.A.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-21-
BANQUE NATIONALE DE PARIS S.A.
DUBLIN BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANCO DI NAPOLI S.P.A.
By /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Executive Vice President
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
BANKERS TRUST COMPANY
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-21-
BANQUE NATIONALE DE PARIS S.A.
DUBLIN BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANCO DI NAPOLI S.P.A.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANKERS TRUST COMPANY
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
First Amended and Restated Credit Agreement
-22-
BBL INTERNATIONAL (U.K.)
LIMITED
By /s/ G.A. Xxxxxxx
------------------------------------
Name: G.A. Xxxxxxx
Title: Authorised Signatory
By /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Authorised Signatory
CIBC Inc.
By
------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By
------------------------------------
Name:
Title:
THE SAKURA BANK, LIMITED
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-22-
BBL INTERNATIONAL (U.K.)
LIMITED
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CIBC Inc.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp., As
Agent
THE NORTHERN TRUST COMPANY
By
------------------------------------
Name:
Title:
THE SAKURA BANK, LIMITED
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-22-
BBL INTERNATIONAL (U.K.)
LIMITED
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CIBC Inc.
By
------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By /s/ Xxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
THE SAKURA BANK, LIMITED
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-22-
BBL INTERNATIONAL (U.K.)
LIMITED
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
CIBC Inc.
By
------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY
By
------------------------------------
Name:
Title:
THE SAKURA BANK, LIMITED
By /s/ Xxxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Senior Vice President
First Amended and Restated Credit Agreement
-23-
STANDARD CHARTERED BANK
By /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Regional Executive
SVENSKA HANDELSBANKEN
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANK OF MONTREAL IRELAND PLC
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-23-
STANDARD CHARTERED BANK
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
SVENSKA HANDELSBANKEN
By /s/ Xxxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Senior Vice President
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF MONTREAL IRELAND PLC
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-23-
STANDARD CHARTERED BANK
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
SVENSKA HANDELSBANKEN
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BANK OF MONTREAL
By /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
First Amended and Restated Credit Agreement
-24-
THE FIRST NATIONAL BANK OF CHICAGO,
as DLJSC Collateral Agent,
Documentation Agent and Payment
Agent
By /s/ Xxxxxx de Diego
------------------------------------
Name: Xxxxxx de Diego
Title: Vice President
THE BANK OF NEW YORK
as Administrative Agent and
Payment Agent
By
------------------------------------
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION,
as Syndication Agent
By
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Syndication Agent
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-24-
THE FIRST NATIONAL BANK OF CHICAGO,
as DLJSC Collateral Agent,
Documentation Agent and Payment
Agent
By
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Administrative Agent and
Payment Agent
By /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Syndication Agent
By
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Syndication Agent
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-24-
THE FIRST NATIONAL BANK OF CHICAGO,
as DLJSC Collateral Agent,
Documentation Agent and Payment
Agent
By
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Administrative Agent and
Payment Agent
By
------------------------------------
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Syndication Agent
By /s/ Xxxxxxx X. Temai
------------------------------------
Name: Xxxxxxx X. Temai
Title: SVP
THE CHASE MANHATTAN BANK,
as Syndication Agent
By
------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement
-24-
THE FIRST NATIONAL BANK OF CHICAGO,
as DLJSC Collateral Agent,
Documentation Agent and Payment
Agent
By
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Administrative Agent and
Payment Agent
By
------------------------------------
Name:
Title:
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION,
as Syndication Agent
By
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Syndication Agent
By /s/ X. Xxxxxxxx
------------------------------------
Name: X. Xxxxxxxx
Title: VP
First Amended and Restated Credit Agreement
-25-
THE FOREGOING IS HEREBY ACKNOWLEDGED AND AGREED
DLJ MORTGAGE CAPITAL, INC.
By /s/ N. Xxxxx Xxxx
------------------------------------
Name: N. Xxxxx Xxxx
Title:
First Amended and Restated Credit Agreement
APPENDIX I
COMMITMENTS
-----------
MAXIMUM
AGGREGATE DLJ DLJSC
BANK COMMITMENT COMMITMENT COMMITMENT
---- ---------- ---------- ----------
The Chase Manhattan Bank 150,000,000 90,000,000 150,000,000
The Bank Of New York 150,000,000 90,000,000 150,000,000
The First National Bank of Chicago 150,000,000 90,000,000 150,000,000
Bank of America NT & SA 125,000,000 75,000,000 125,000,000
Credit Lyonnais, New York Branch 125,000,000 75,000,000 125,000,000
Societe Generale, New York Branch 125,000,000 75,000,000 125,000,000
Banque Paribas London 100,000,000 60,000,000 100,000,000
Citibank, N.A. 100,000,000 60,000,000 100,000,000
Nationsbank, N.A. (South) 100,000,000 60,000,000 100,000,000
Royal Bank Of Canada 100,000,000 60,000,000 100,000,000
Union Bank Of Switzerland,
New York Branch 100,000,000 60,000,000 100,000,000
Banque Nationale De Paris 90,000,000 54,000,000 90,000,000
Banco Santander 70,000,000 42,000,000 70,000,000
Bank Of Tokyo-Mitsubishi Trust Co. 70,000,000 42,000,000 70,000,000
First Amended and Restated Credit Agreement
-------------------------------------------
- 3 -
MAXIMUM
AGGREGATE DLJ DLJSC
BANK COMMITMENT COMMITMENT COMMITMENT
---- ---------- ---------- ----------
Westdeutsche Landesbank Girozentrale,
New York Branch 50,000,000 30,000,000 50,000,000
Republic National Bank of New York 45,000,000 27,000,000 45,000,000
Banque Nationale de Paris S.A.
Dublin Branch 35,000,000 21,000,000 35,000,000
Banco Di Napoli S.P.A. 25,000,000 15,000,000 25,000,000
Bankers Trust Company 25,000,000 15,000,000 25,000,000
BBL International (U.K.) Limited 25,000,000 15,000,000 25,000,000
CIBC Inc. 25,000,000 15,000,000 25,000,000
The Northern Trust Company 25,000,000 15,000,000 25,000,000
The Sakura Bank, Limited 25,000,000 15,000,000 25,000,000
Standard Chartered Bank 25,000,000 15,000,000 25,000,000
Svenska Handelsbanken 25,000,000 15,000,000 25,000,000
Bank of Montreal Ireland Plc 15,000,000 9,000,000 15,000,000
---------- ---------- ----------
TOTAL: 2,750,000,000 1,650,000,000 2,750,000,000
First Amended and Restated Credit Agreement
-------------------------------------------
EXHIBIT A
AMENDMENT NO. 1 TO MASTER SECURITY AGREEMENT
AMENDMENT NO. 1 TO MASTER SECURITY AGREEMENT dated as of May 29, 1998,
between XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Delaware (the
"Company") and THE FIRST NATIONAL BANK OF CHICAGO, as collateral agent for the
Lenders (as defined in the Security Agreement referred to below) (in such
capacity, together with its successors in such capacity, the "Collateral
Agent").
WHEREAS, the Borrowers, certain lenders (the "Banks"), THE BANK OF NEW
YORK, as administrative agent (the "Administrative Agent") and the Collateral
Agent are parties to the First Amended and Restated Credit Agreement dated as
of May 29, 1998 (as amended and supplemented and in effect from time to time,
the "Amended and Restated Credit Agreement"), providing, subject to the terms
and conditions thereof, for extensions of credit (by making of loans) by said
Banks to the Company in an aggregate principal amount not exceeding
$2,750,000,000;
WHEREAS, the Company, the Banks, the Administrative Agent and the
Collateral Agent are parties to a Master Security Agreement dated as of May
30, 1997 (as amended and supplemented and in effect from time to time, the
"Security Agreement"), providing security for the payment of the Extensions of
Credit and the other Secured Obligations (as such terms are defined in the
Security Agreement); and
WHEREAS, the Company, the Banks, the Administrative Agent and the
Collateral Agent wish to amend the Security Agreement in certain other
respects,
NOW, THEREFORE, the parties hereto hereby agree as follows:
Paragraph 1. Definitions. Except as otherwise defined in this
Amendment No. 1 to Master Security Agreement, terms defined in the Security
Agreement are used herein as defined therein.
Paragraph 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Paragraph 4 below, the Security Agreement shall be
amended as follows:
(a) Section 1 of the Security Agreement shall be amended by replacing
the definition of "Credit Agreement" with the following definition:
"Credit Agreement" means the First Amended and Restated Credit
Agreement dated as May 29, 1998, among Xxxxxxxxx, Lufkin & Xxxxxxxx, Inc.,
the Company, certain Lenders, First Chicago, as the DLJSC Collateral Agent,
a Payment Agent and the
-2-
Documentation Agent, The Bank of New York, as the Administrative Agent
and a Payment Agent, and The Chase Manhattan Bank and the Company, as
Syndication Agents, as amended, supplemented or otherwise modified
from time to time."
(b) Section 1 of the Security Agreement shall be further amended by
amending the definition of "Customers Securities Collateral Pool" therein as
follows: (i) the reference to "$250,000,000" in clause (b) of such definition
shall be replaced with "$345,000,000"; (ii) the reference to "$75,000,000" in
clause (c) of such definition shall be replaced with "$86,000,000"; (iii) the
reference to "$1,000,000,000" in clause (d) of such definition shall be
replaced with $1,375,000,000"; (iv) the reference to "$700,000,000" in clause
(e) of such definition shall be replaced with "$900,000,000"; (v) the reference
to $200,000,000" in clause (f) of such definition shall be replaced with
"$345,000,000"; and (vi) the reference to "$75,000,000" in clause (g) of such
definition shall be replaced with "$137,500,000".
(c) Section 1 of the Security Agreement shall be further amended by
amending the definition of "Firm Securities Collateral Pool" therein as
follows: (i) the reference to "$250,000,000," in clause (b) of such definition
shall be replaced with "$345,000,000"; (ii) the reference to "$75,000,000" in
clause (c) of such definition shall be replaced with "$86,000,000"; (iii) the
reference to "$1,000,000,000" in clause (d) of such definition shall be
replaced with "$1,375,000,000"; (iv) the reference to "$700,000,000" in clause
(e) of such definition shall be replaced with "$900,000,000"; (v) the reference
to "$200,000,000" in clause (f) of such definition shall be replaced with
"$345,000,000"; and (vi) the reference to "$75,000,000" in clause (g) of such
definition shall be replaced with "$137,500,000".
Paragraph 3. Representations and Warranties. The Company represents
and warrants to the Collateral Agent that the representations and warranties
set forth in Section 2 of the Security Agreement are true and complete on the
date hereof as if made on and as of the date hereof after giving effect to this
Amendment No. 1 to Master Security Agreement and as if each reference in said
Section 2 to "this Agreement" included reference to this Amendment No. 1 to
Master Security Agreement.
Paragraph 4. Conditions Precedent. The amendments to the Security
Agreement set forth in said Section 2 shall become effective, as of the date
hereof, upon the satisfaction of the conditions precedent that this Amendment
No. 1 to Master Security Agreement shall have been executed and delivered by
each of the parties listed on the signature pages hereto and that the Amended
and Restated Credit Agreement shall have become effective in accordance with
its terms.
Paragraph 5. Miscellaneous. Except as herein provided, the Security
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 to Master Security Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 1 to Master Security Agreement by signing any such counterpart. This
-3-
Amendment No. 1 to Master Security Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
Master Security Agreement to be duly executed and delivered as of the day and
year first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By
-------------------------------------
Title:
THE FIRST NATIONAL BANK
OF CHICAGO, as Collateral Agent
By
-------------------------------------
Title:
EXHIBIT B
May 29, 1998
To the Banks party to the Credit Agreement referred to below; Chase Securities
Inc., as Arranger; The Chase Manhattan Bank, as Syndication Agent; Xxxxxxxxx
Xxxxxx & Xxxxxxxx Securities Corporation in its capacity as Syndication Agent;
The First National Bank of Chicago, as Documentation Agent, DLJSC Collateral
Agent and Payment Agent; and The Bank of New York, as Administrative Agent and
Payment Agent.
Ladies and Gentlemen:
We have acted as special counsel to Xxxxxxxxx Lufkin & Xxxxxxxx, Inc.,
("DLJ") and Xxxxxxxxx Lufkin & Xxxxxxxx Securities Corporation ("DLJSC") (each
a "Borrower" and collectively the "Borrowers") in connection with the First
Amended and Restated Credit Agreement dated as of May 29, 1998, (the "Credit
Agreement") among DLJ; DLJSC; the Banks party thereto; Chase Securities Inc.,
as Arranger; DLJSC and The Chase Manhattan Bank, as Syndication Agents; The
Bank of New York, as Administrative Agent; and The First National Bank of
Chicago, as Documentation Agent, DLJSC Collateral Agent and Payment Agent. All
capitalized terms used but not defined herein have the respective meanings
given to such terms in the Credit Agreement.
This opinion is being delivered pursuant to Paragraph 4.03 of the Credit
Agreement.
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In rendering the opinions expressed below, we have examined the following
agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Notes;
(c) the Master Security Agreement dated as of May 30, 1997, as amended
by Amendment No. 1 to Master Security Agreement dated as of May 29,
1998, each among DLJSC, the Banks, The First National Bank of
Chicago as DLJSC Collateral Agent and the Bank of New York as
Administrative Agent; and
(d) such corporate records of the Borrowers and such other documents as
we have deemed necessary as a basis for the opinions expressed
below.
The agreements and instruments referred to in the foregoing lettered clauses
(a), (b), and (c) are collectively referred to as the "Credit Documents".
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with authentic original documents of all documents submitted to us as copies.
As to factual matters relevant to this opinion, we have relied upon statements
of governmental officials and upon representations made in or pursuant to the
Credit Documents and certificates of appropriate representatives of the
Borrowers.
In rendering the opinions expressed below, we have assumed, with respect to
all of the documents referred to in this opinion letter, that (except, to the
extent set forth in the opinions expressed below, as to the Borrowers):
(i) such documents have been duly authorized by, have been duly executed
and delivered by, and constitute legal, valid, binding and
enforceable obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and validly
existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the comments and
qualifications set forth below, and having considered such questions of law as
we have deemed necessary as a basis for the opinions expressed below, we are of
the opinion that:
1. Each of the Credit Documents constitutes the legal, valid and binding
obligation of each Borrower party to such Credit Document, enforceable against
such Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency,
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reorganization, moratorium or other similar laws relating to or affecting the
rights of creditors generally and except as the enforceability of the Credit
Documents is subject to the application of general principles of equity
(regardless of whether considered in a proceeding in equity or at law),
including, without limitation, (a) the possible unavailability of specific
performance, injunctive relief or any other equitable remedy and (b) concepts
of materiality, reasonableness, good faith and fair dealing.
2. No authorization, approval or consent of, and no filing or registration
with, any governmental or regulatory authority or agency of the United States
of America is required on the part of any Borrower for the execution, delivery
or performance by such Borrower of any of the Credit Documents or for the
borrowings by such Borrower under the Credit Agreement or the granting of a
security interest in the collateral (as defined in the Security Agreement)
pursuant to the Security Agreement.
3. The execution, delivery and performance by each Borrower of, and the
consummation by such Borrower of the transactions contemplated by, the Credit
Documents do not and will not violate any applicable law, rule or regulation.
The foregoing opinions are subject to the following comments and
qualifications:
(A) The enforceability of the second paragraph of Section 11.03 of the
Credit Agreement (and any similar provisions in any of the other Credit
Documents) may be limited by laws rendering unenforceable (i) indemnification
contrary to Federal or state securities laws and the public policy underlying
such laws and (ii) the release of a party from, or the indemnification of a
party against, liability for its own wrongful or negligent acts under certain
circumstances.
(B) The enforceability of provisions in the Credit Documents to the effect
that terms may not be waived or modified except in writing may be limited under
certain circumstances.
(C) We express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Bank is located (other than the State of New York)
that limit the interest, fees or other charges such Bank may impose, (ii)
Section 4.07(c) of the Credit Agreement, (iii) the second sentence of Section
11.10 of the Credit Agreement, insofar as such sentence relates to the subject
matter jurisdiction of the United States District Court for the Southern
District of New York to adjudicate any controversy related to the Credit
documents, and (iv) the waiver of inconvenient forum set forth in Section 11.10
of the Credit Agreement with respect to proceedings in the United States
District Court for the Southern District of New York and the waiver in the
antepenultimate sentence of said Section 11.10.
(D) We wish to point out that the obligations of DLJSC, and the rights and
remedies of the Lenders (as defined in the Security Agreement), under the
Security Agreement may be subject to possible limitations upon the exercise of
remedial or procedural provisions contained in the Security Agreement, provided
that such limitations do not, in our opinion, make the remedies and procedures
that will be afforded to the Lenders inadequate for
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the practical realization of the substantive benefits purported to be provided
to the Lenders by the Security Agreement, subject to the economic consequences
of any delay which may result from applicable law, rules, or judicial process.
The foregoing opinions are limited to the Federal laws of the United States of
America, the General Corporation Law of the State of Delaware, the law of the
State of New York and the law of the District of Columbia, and we do not
express any opinion as to the laws of any other jurisdiction. We disclaim any
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to our attention, or any changes in laws
which may hereafter occur.
At the request of our clients, this opinion letter is, pursuant to Paragraph
4.03 of the Credit Agreement Amendment, provided to you by us in our capacity
as special counsel to the Borrowers and may not be relied upon by any Person
other than you and your respective successors and assigns and then only in
connection with the transactions contemplated by the Credit Agreement without,
in each instance, our prior written consent.
Very truly yours,
XXXXXX, XXXXXX & XXXXXXXXX
By:
Xxxxxxx X. Xxxxxxxx
a partner
AMENDMENT NO.1 TO MASTER SECURITY AGREEMENT
AMENDMENT NO.1 TO MASTER SECURITY AGREEMENT dated as of May 29, 1998,
between XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION, a corporation duly
organized and validly existing under the laws of the State of Delaware (the
"Company") and THE FIRST NATIONAL BANK OF CHICAGO, as collateral agent for the
Lenders (as defined in the Security Agreement referred to below) (in such
capacity, together with its successors in such capacity, the "Collateral
Agent").
WHEREAS, the Borrowers, certain lenders (the "Banks"), THE BANK OF NEW
YORK, as administrative agent (the "Administrative Agent") and the Collateral
Agent are parties to the First Amended and Restated Credit Agreement dated as
of May 29, 1998 (as amended and supplemented and in effect from time to time,
the "Amended and Restated Credit Agreement"), providing, subject to the terms
and conditions thereof, for extensions of credit (by making of loans) by said
Banks to the Company in an aggregate principal amount not exceeding
$2,750,000,000;
WHEREAS, the Company, the Banks, the Administrative Agent and the
Collateral Agent are parties to an Master Security Agreement dated as of May
30, 1997 (as amended and supplemented and in effect from time to time, the
"Security Agreement"), providing security for the payment of the Extensions of
Credit and the other Secured Obligations (as such terms are defined in the
Security Agreement); and
WHEREAS, the Company, the Banks, the Administrative Agent and the
Collateral Agent wish to amend the Security Agreement in certain other
respects,
NOW, THEREFORE, the parties hereto hereby agree as follows:
Paragraph 1. Definitions. Except as otherwise defined in this
Amendment No. 1 to Master Security Agreement, terms defined in the Security
Agreement are used herein as defined therein.
Paragraph 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Paragraph 4 below, the Security Agreement shall be
amended as follows:
(a) Section 1 of the Security Agreement shall be amended by replacing
the definition of "Credit Agreement" with the following definition:
"Credit Agreement" means the First Amended and Restated
Credit Agreement dated as May 29, 1998, among Xxxxxxxxx, Lufkin &
Xxxxxxxx, Inc., the Company, certain Lenders, First Chicago, as the
DLJSC Collateral Agent, a Payment Agent and the
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Documentation Agent, The Bank of New York, as the Administrative Agent
and a Payment Agent, and The Chase Manhattan Bank and the Company, as
Syndication Agents, as amended, supplemented or otherwise modified
from time to time."
(b) Section 1 of the Security Agreement shall be further amended by
amending the definition of "Customers Securities Collateral Pool" therein as
follows: (i) the reference to "$250,000,000" in clause (b) of such definition
shall be replaced with "$345,000,000"; (ii) the reference to "$75,000,000" in
clause (c) of such definition shall be replaced with "$86,000,000"; (iii) the
reference to "$1,000,000,000" in clause (d) of such definition shall be
replaced with "$1,375,000,000"; (iv) the reference to "$700,000,000" in clause
(e) of such definition shall be replaced with "$900,000,000"; (v) the reference
to "$200,000,000" in clause (f) of such definition shall be replaced with
"$345,000,000"; and (vi) the reference to "$75,000,000" in clause (g) of such
definition shall be replaced with "$137,500,000".
(c) Section 1 of the Security Agreement shall be further amended by
amending the definition of "Firm Securities Collateral Pool" therein as
follows: (i) the reference to "$250,000,000" in clause (b)of such definition
shall be replaced with "$345,000,000"; (ii) the reference to "$75,000,000" in
clause (c) of such definition shall be replaced with "$86,000,000"; (iii) the
reference to "$1,000,000,000" in clause (d) of such definition shall be
replaced with "$1,375,000,000"; (iv) the reference to "$700,000,000" in clause
(e) of such definition shall be replaced with "$900,000,000"; (v) the reference
to "$200,000,000" in clause (f) of such definition shall be replaced with
"$345,000,000"; and (vi) the reference to "$75,000,000" in clause (g) of such
definition shall be replaced with "$137,500,000".
Paragraph 3. Representations and Warranties. The Company represents
and warrants to the Collateral Agent that the representations and warranties
set forth in Section 2 of the Security Agreement are true and complete on the
date hereof as if made on and as of the date hereof after giving effect to this
Amendment No. 1 to Master Security Agreement and as if each reference in said
Section 2 to "this Agreement" included reference to this Amendment No. 1 to
Master Security Agreement.
Paragraph 4. Conditions Precedent. The amendments to the Security
Agreement set forth in said Section 2 shall become effective, as of the date
hereof, upon the satisfaction of the conditions precedent that this Amendment
No. 1 to Master Security Agreement shall have been executed and delivered by
each of the parties listed on the signature pages hereto and that the Amended
and Restated Credit Agreement shall have become effective in accordance with
its terms.
Paragraph 5. Miscellaneous. Except as herein provided, the Security
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 to Master Security Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
amendatory instrument and any of the parties hereto may execute this Amendment
No. 1 to Master Security Agreement by signing any such counterpart. This
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Amendment No. 1 to Master Security Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 Master Security Agreement to be duly executed and delivered as of the day and
year first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
TITLE: XXXXXXX X. XXXXXXXXXXX
SENIOR VICE PRESIDENT/TREASURER
THE FIRST NATIONAL BANK
OF CHICAGO, as Collateral Agent
By
------------------------------------
Title:
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Amendment No. 1 to Master Security Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 Master Security Agreement to be duly executed and delivered as of the day and
year first above written.
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By
-----------------------------------
TITLE:
THE FIRST NATIONAL BANK
OF CHICAGO, as Collateral Agent
By /s/
------------------------------------
Title: Vice President
