EXHIBIT 10.14
EXECUTION COPY
AMENDMENT NO. 1
AND WAIVER
to
SECURED GUARANTEED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 AND WAIVER (the "Amendment and Waiver"), dated as
of May 28, 1998 among Xxxx-Xxxxx Inc. (the "Borrower"), the banks listed on the
signature pages hereof (each a "Bank") and The Bank of New York, as
Administrative Agent (the "Administrative Agent"),
WITNESSETH:
WHEREAS, the Borrower, the Banks and the Administrative Agent are
parties to the Secured Guaranteed Credit Agreement dated as of May 4, 1998 (the
"Credit Agreement") (capitalized terms used and not otherwise defined herein
shall have the meanings ascribed thereto in the Credit Agreement); and
WHEREAS, the Borrower has requested, and the Banks and the
Administrative Agent have agreed to, the waiver more fully set forth herein; and
WHEREAS, the Borrower, the Banks and the Administrative Agent wish to
amend the Credit Agreement as more fully set forth herein; and
WHEREAS, such waiver and amendment shall be of benefit, either
directly or indirectly, to the Borrower;
NOW, THEREFORE, in consideration of the covenants, conditions and
agreements hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Amendments. Upon and after the Amendment Effective Date (as
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defined in Section 4 hereof):
(a) Section 10.01(b)(iv) of the Credit Agreement shall be
amended by replacing the phrase "Notice of Assignment" appearing therein with
the phrase "Assignment and Assumption Agreement";
(b) Section 10.10(a)(ii) of the Credit Agreement shall be
amended by restating clause (C) thereof as follows:
"(C) such assignment shall have been effected pursuant to an
Assignment and Assumption Agreement executed by such Person and such
transferor Bank and acknowledged by the Administrative Agent, the Swing
Line Bank, the Issuing Bank and, if required hereunder, the Borrower,";
(c) Section 11.01 of the Credit Agreement shall be amended by (i)
replacing the phrase "Notice of Assignment" appearing in the definitions of
"Domestic Lending Office" and "Eurodollar Lending Office" appearing therein with
the phrase "Assignment and Assumption Agreement", (ii) deleting in its entirety
the definition of "Notice of Assignment" appearing therein and (iii) adding
thereto, in correct alphabetical order, a definition of "Assignment and
Assumption Agreement" reading in its entirety as follows:
"Assignment and Assumption Agreement" means an Assignment
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and Assumption Agreement substantially in the form of Exhibit G.";
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(d) Schedule 10.10(a) to the Credit Agreement shall be deleted in its
entirety; and
(e) the Credit Agreement shall be amended by adding a new Exhibit G
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thereto reading in its entirety as set forth as Exhibit G hereto.
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2. Waiver. In connection with the proposed sale by the Borrower of up to
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3,870,000 additional shares of its common stock pursuant to the exercise of the
over-allotment option with respect to the Offering (the "Over-Allotment
Option"), the Required Banks hereby waive the provisions of Section 4.05,
Section 4.08 and Section 4.13 of the Credit Agreement to the extent that the
Borrower would otherwise be in breach thereof as a result of the purchase by the
Borrower from SOFTBANK Holdings Inc. of up to 3,870,000 shares of the Borrower's
common stock (the "SOFTBANK Shares") so long as (i) the Borrower shall have
received net cash proceeds from the exercise of the Over-Allotment Option in an
amount not less than the amount paid to SOFTBANK Holdings Inc. for the purchase
of the SOFTBANK Shares either prior to or simultaneously with such purchase and
(ii) such exercise of the Over-Allotment Option and the receipt of such cash
proceeds by the Borrower shall occur on or before June 8, 1998.
As provided in Section 10.07 of the Credit Agreement, the foregoing waiver
shall be effective only in the specific instance and for the specific purpose
for which it is given.
3. Representations and Warranties. In order to induce the Administrative
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Agent and the Banks to agree to the waiver under, and the amendments to, the
Credit Agreement set forth herein, the Borrower hereby represents and warrants
that the Borrower and each Guarantor has the power, and has taken all necessary
action (including any necessary stockholder action) to authorize it, to execute,
deliver and perform in accordance with their respective terms, this Amendment
and Waiver and the Credit Agreement as amended by this Amendment and Waiver.
This Amendment and Waiver has been duly executed and delivered by the duly
authorized officers of the Borrower and each Guarantor and is, and the Credit
Agreement as amended thereby is, the legal, valid and binding obligation of the
Borrower and each Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by any
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applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally. The execution,
delivery and performance in accordance with their terms by the Borrower and each
Guarantor of this Amendment and Waiver and the Credit Agreement as amended by
this Amendment and Waiver, do not and (absent any change in any Applicable Law
or applicable Contract) will not (a) require any Governmental Approval,
Governmental Registration or any other consent or approval, including any
consent or approval of the stockholders of the Borrower or any Guarantor, other
than Governmental Approvals, Governmental Registration and other consents and
approvals that have been obtained, are final and not subject to review on appeal
or to collateral attack, are in full force and effect and, in the case of any
such consents or approvals required under any Applicable Law or Contract as in
effect on the Effective Date, are listed on Schedule 3.03 to the Credit
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Agreement or (b) violate, conflict with, result in a breach of, constitute a
default under, or result in or require the creation of any Lien upon any assets
of the Borrower or any Affiliate under (i) any Contract to which the Borrower or
any Affiliate is a party or by which the Borrower or any Affiliate or any of
their respective properties may be bound or (ii) any Applicable Law.
4. Effectiveness. This Amendment and Waiver shall become effective as of
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the date first referenced above on the date (the "Amendment Effective Date") on
which the Administrative Agent shall have received this Amendment and Waiver
executed and delivered by the Borrower, the Administrative Agent and the
Required Banks.
5. Payment of Expenses. The Borrower hereby agrees to pay all reasonable
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costs and expenses incurred by the Administrative Agent in connection with the
preparation, execution and delivery of this Amendment and Waiver and any other
documents or instruments which may be delivered in connection herewith.
6. Counterparts. This Amendment and Waiver may be executed in counter-
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parts and by different parties hereto in separate counterparts, each of which,
when so executed and delivered, shall be deemed to be an original and all of
which, when taken together, shall constitute one and the same instrument.
7. Ratification. The Credit Agreement, as amended by this Amendment and
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Waiver, is and shall continue to be in full force and effect and is hereby in
all respects confirmed, approved and ratified.
8. Governing Law. The rights and duties of the Borrower, the Banks and
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the Administrative Agent under this Amendment and Waiver shall, in accordance
with New York General Obligations Law Section 5-1401, be governed by the law of
the State of New York.
9. Reference to Agreement. From and after the Amendment Effective Date,
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each reference in the Credit Agreement to "this Agreement," "hereof,"
"hereunder" or words of like import, and all references to the Credit Agreement
in any and all agreements, instruments, documents, notes, certificates and other
writings of every kind and nature, shall be deemed to mean the Credit Agreement
as modified and amended by this Amendment and Waiver.
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IN WITNESS WHEREOF, the parties have caused this Amendment and Waiver
to be duly executed as of the date first written above.
XXXX-XXXXX INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
THE BANK OF NEW YORK,
as Administrative Agent, Issuing Bank,
Swing Line Bank and a Bank
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as a Bank
By: /s/ Xxxxx X. X'Xxxxxxxxxx
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Name: Xxxxx X. X'Xxxxxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as a Bank
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
DLJ CAPITAL FUNDING, INC., as a Bank
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
BANK OF AMERICA NT&SA, as a Bank
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON, as a Bank
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Director
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ Xxx X. Xxxxxx
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Name: Xxx X. Xxxxxx
Title: Senior Vice President
MELLON BANK, N.A., as a Bank
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
Title: Vice President
XXXXXX BANK LTD, New York Branch, as a
Bank
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION, as a
Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
BANK LEUMI USA, as a Bank
By: /s/ Xxxxx Xxx Hong
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Name: Xxxxx Xxx Hong
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ Xxxxxxx X. Xxxxxxxxxx Xx.
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Name: Xxxxxxx X. Xxxxxxxxxx Xx.
Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Bank
By: /s/ Emile Elnems
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Name: Emile Elnems
Title: Assistant Vice President
CRESTAR BANK, as a Bank
By: /s/ La Xxxxxx X. Xxxxx
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Name: La Xxxxxx X. Xxxxx
Title: Assistant Vice President
KEY CORPORATE CAPITAL INC., as a Bank
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
USTRUST, as a Bank
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
MITSUBISHI TRUST AND BANKING
CORPORATION, as a Bank
By: /s/ Xxxxxxxxx Xxxxxxx
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Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
ABN AMRO, as a Bank
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Group Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE LONG TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
Title: Deputy General Manager
NORTHERN LIFE INSURANCE COMPANY, as
a Bank
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
RELIASTAR LIFE INSURANCE COMPANY, as
a Bank
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Authorized Representative
SECURITY CONNECTICUT LIFE INSURANCE
COMPANY, as a Bank
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY, as a Bank
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Assistant Treasurer
GENERAL ELECTRIC CAPITAL CORP., as a
Bank
By: /s/ Xxxxx Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxx
Title: Duly Authorized Signatory
BANKBOSTON, N.A., as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Director
EXHIBIT G
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ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________________, among [ASSIGNOR] (the "Assignor")
and [ASSIGNEE] (the "Assignee").
WITNESSETH
WHEREAS, this Assignment and Assumption Agreement (the "Agreement") relates
to the Secured Guaranteed Credit Agreement dated as of May 4, 1998 among
Xxxx-Xxxxx Inc., the Banks listed on the signature pages thereof, Xxxxxx Xxxxxxx
Senior Funding, Inc., as Syndication Agent, The Chase Manhattan Bank and DLJ
Capital Funding, Inc., as Co-Documentation Agents, The Bank of New York, as
Administrative Agent, and the Guarantors party thereto (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor [has an RC
Commitment to make RC Loans to the Borrower] [and has made [Term A] [Term B]
Loans to the Borrower]/1/;
WHEREAS, [Term A] [Term B] [RC] Loans made to the Borrower by the Assignor
under the Credit Agreement in the aggregate principal amount of $__________ /2/
are outstanding at the date hereof;
WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its [RC
Commitment thereunder] [Term A Loans] [Term B Loans] in an amount equal to
$_________ (the "Assigned Amount[s]"), together with a corresponding portion of
its outstanding [RC] Loans, and the Assignee proposes to accept assignment of
such rights and assume the corresponding obligations from the Assignor on such
terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined herein
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shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
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Assignee all the rights of the Assignor under the Credit Agreement to the extent
of the Assigned Amount[s],
_______________________
/1/ Include as appropriate.
/2/ For assignments of multiple Loans (e.g., Term B and RC), include breakdown
of outstandings by Loan.
/3/ For assignments of multiple Commitments (e.g., Term B and RC), include
breakdown of assigned portions by Commitment type.
and the Assignee hereby accepts such assignment from the Assignor and assumes
all of the obligations of the Assignor under the Credit Agreement to the extent
of the Assigned Amount[s], including the purchase from the Assignor of the
corresponding portion of the principal amount of the [Term A] [Term B] [RC]
Loans made by the Assignor outstanding at the date hereof. Upon the execution
and delivery hereof by the Assignor, the Assignee, [the Borrower,] /4/ the
Administrative Agent, the Issuing Bank and the Swing Line Bank and the payment
of the amounts specified in Section 3 hereof required to be paid on the date
hereof (i) the Assignee shall, as of the date hereof, succeed to the rights and
be obligated to perform the obligations of a Bank under the Credit Agreement
with [an RC Commitment] [Term A Loans] [Term B Loans] /5/ in [an amount]
[amounts] /6/ equal to the Assigned Amount[s], and (ii) the [RC Commitment] of
the Assignor shall, as of the date hereof, be reduced by a like amount and the
Assignor released from its obligations under the Credit Agreement to the extent
such obligations have been assumed by the Assignee. The assignment provided for
herein shall be without recourse to the Assignor.
Section 3. Payments. As consideration for the assignment and sale
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contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in immediately available funds an amount mutually agreed between
them./7/ It is understood that any fees accrued to the date hereof are for the
account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
Section 4. Consent of [the Borrower,]/8/ the Administrative Agent, the
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Issuing Bank and the Swing Line Bank. This Agreement is conditioned upon the
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consent of [the Borrower,] the Administrative Agent, the Issuing Bank and the
Swing Line Bank pursuant to Section 10.10(a)(ii) of the Credit Agreement. The
execution of this Agreement by [the Borrower,] the Administrative Agent, the
Issuing Bank and the Swing Line Bank is evidence of such consent.
Section 5. Non-Reliance on Assignor. The Assignor makes no
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representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower or any Guarantor, or the validity and enforceability of the obligations
of the Borrower or any Guarantor in respect of the Credit Agreement or any Note.
The Assignee acknowledges that it has, independently and without reliance on the
Assignor, and based on such documents and information as it has deemed
__________________
/4/ Include consent of Borrower unless not required in accordance with Section
10.10(a)(ii)(A) of the Credit Agreement.
/5/ Include as appropriate.
/6/ Include as appropriate.
/7/ Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
fees to be paid by the Assignor to the Assignee.
/8/ Include consent of Borrower unless not required in accordance with Section
10.10(a)(ii)(A) of the Credit Agreement.
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appropriate, made its own credit analysis and decision to enter into this
Agreement and will continue to be responsible for making its own independent
appraisal of the business, affairs and financial condition of the Borrower and
the Guarantors.
Section 6. Governing Law. The rights and obligations of the parties hereto
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shall, pursuant to New York General Obligations Law Section 5-1401, be governed
by the laws of the State of New York.
Section 7. Counterparts. This Agreement may be signed in any number of
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counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
Section 8. No Amendment. This Agreement is not an amendment of the Credit
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Agreement, and, except as expressly set forth in Section 2, shall not affect the
respective rights or obligations of any of the parties to the Credit Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By:____________________________________
Name:
Title:
[ASSIGNEE]
By:____________________________________
Name:
Title:
[The Assignee's Lending Offices and address for notices are as follows:
Domestic Lending Office:
Eurodollar Lending Office:
Notice Address:]/9/
___________________________________
/9/ Omit if the Assignee is a Bank.
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Assignment and release consented to:
[XXXX-XXXXX INC.]/10/
By:_______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent
By:_______________________________
Name:
Title:
[SWING LINE BANK]
By:_______________________________
Name:
Title:
[ISSUING BANK]
By:_______________________________
Name:
Title:
_________________
/10/ Include consent of Borrower unless not required in accordance with Section
10.10(a)(ii)(A) of the Credit Agreement.
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