AMENDMENT TO CREDIT AGREEMENT
THIS AGREEMENT, dated as of November 12, 1996, by and between Xxxxxx
Xxxxxx Consulting, Inc., a Delaware corporation (the "Company"), and State
Street Bank and Trust Company (the "Bank").
W I T N E S S E T H:
WHEREAS, the Company and the Bank are parties to that certain Credit
Agreement dated as of May 17, 1995, as amended (the "Credit Agreement"); and
WHEREAS, the parties wish to amend the Credit Agreement in the
manner hereinafter set forth;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition which are
defined in the Credit Agreement shall have the respective meanings ascribed to
them in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended
as follows:
2.1 Section 1 of the Credit Agreement is amended by adding a new
subsection 1.17 in appropriate numerical order as follows:
"1.17 Letters of Credit.
(a) Subject to the terms and conditions hereof, the Company
may request the Bank to issue, from time to time, standby letters of
credit (the "Letters of Credit" and each individually a "Letter of
Credit") in an aggregate stated amount at any one time not exceeding
the lesser of $1,000,000 or the then unused portion of the Available
Commitment. Each request for a Letter of Credit shall be made by the
Company by application on the Bank's standard form or in such other
manner as the Bank may approve and shall be made such reasonable
time in advance as the Bank may require. The Letters of Credit shall
be issued pursuant to a duly executed letter of credit agreement on
the Bank's standard form and shall be accompanied by such other
instruments and agreements as the Bank may require. No Letter of
Credit shall have an expiration date later than the earlier of three
hundred sixty-five (365) days following the date of issuance or the
Expiration Date. Until each Letter of Credit shall have expired
without being drawn, the stated amount of such Letter of Credit
shall be deemed an outstanding Revolving Credit Loan for purposes of
calculating the unused portion of the Available Commitment and for
purposes of calculating the Commitment Fee pursuant to subsection
1.8. Once drawn, a Letter of Credit shall be funded from
the Available Commitment by the Bank advancing the stated amount
thereof to the Company, and any amount so advanced shall be a
Revolving Credit Loan and shall accrue interest as such from the
date so advanced.
(b) For each Letter of Credit issued hereunder, the Company
shall pay the Bank a fee (the "Letter of Credit Fee") equal to two
percent (2%) per annum (computed on the basis of the actual number
of days elapsed over a 360-day year) on the stated amount thereof,
payable quarterly in arrears on the day of each third calendar month
which corresponds with the date of issuance of such Letter of
Credit, until the expiration of such Letter of Credit. The Letter of
Credit fee shall be in addition to such other transactions fees and
similar charges as the Bank imposes on its customers generally from
time to time with respect to letter of credit transactions.
(c) If, upon the occurrence of any Event of Default, there
shall be outstanding any Letters of Credit or any drafts accepted
for payment by the Bank under any Letters of Credit, the Company
will, on demand by the Bank, deposit and at all times maintain with
the Bank an amount of cash (the "Cash Collateral") equal to the
aggregate stated amount of all outstanding Letters of Credit. The
Cash Collateral so deposited shall be held by the Bank as part of
the Collateral. Such Cash Collateral shall be returned by the Bank
to the Company only when there is no longer any Event of Default
continuing hereunder."
2.2 Subsection 8.1 of the Credit Agreement is amended by deleting
the last paragraph thereof in its entirety and inserting in place thereof the
following:
"then, and in any such event, and at any time thereafter, if any
Event of Default shall then be continuing, any of the following
actions may be taken. The Bank may by written notice to the Company,
(i) declare the principal of and accrued interest in respect of the
Notes to be forthwith due and payable, whereupon the principal of
and accrued interest in respect of the Notes (together with any
LIBOR Premium applicable thereto) shall become forthwith due and
payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Company, (ii)
demand Cash Collateral in accordance with subsection 1.17(c) hereof,
and/or (iii) terminate the Revolving Commitment, whereupon the
Revolving Commitment of the Bank and the undertaking of the Bank to
issue Letters of Credit hereunder shall forthwith terminate without
any other notice of any kind. If any Event of Default referred to in
subparagraphs (g) or (h) of this subsection 8.1 shall occur, (i) the
principal of and accrued interest in respect of the Notes (together
with any LIBOR Premium applicable thereto) shall forthwith become
due and payable, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived by the Company,
(ii) the Cash Collateral shall forthwith become due and payable in
accordance
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with subsection 1.17(c) hereof, without any notice of any kind; and
(iii) the Revolving Commitment of the Bank to make Revolving Credit
Loans and the undertaking of the Bank to issue Letters of Credit
hereunder shall forthwith terminate without any other notice of any
kind.
2.3 Section 9 of the Credit Agreement is amended by inserting the
following new defined terms in appropriate alphabetical order:
"Cash Collateral: the meaning specified in subsection 1.17(c).
Letter or Letters of Credit: the meanings specified in subsection
1.17(a).
Letter of Credit Fee: the meaning specified in subsection 1.17(b)."
3. Miscellaneous
3.1 As modified hereby, the provisions of the Credit Agreement shall
continue in full force and effect.
3.2 This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of the counterparts shall
together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a
sealed instrument as of the date first above written.
XXXXXX BAILLY CONSULTING, INC.
By: /s/ Xxxxxx X. Xxxxx, CFO
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(Title)
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx, Vice President
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(Title)
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