FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 8, 2000
(this "Amendment"), amends the Credit Agreement, dated as of December 10, 1999
(the "Credit Agreement"), among ▇.▇. ▇▇▇▇▇▇▇ CORPORATION, a Delaware corporation
(the "Company"), the various financial institutions parties thereto
(collectively, the "Banks") and Bank of America National Association, as
administrative agent (the "Agent") for the Banks. Terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement, which
provides for the Banks to extend certain credit facilities to the Borrower from
time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective as of December 8, 2000, the Credit
Agreement shall be amended in accordance with Sections 1.1 through 1.12 below.
1.1 Applicable Margin. The definition of "Applicable Facility Fee Rate,"
"Applicable Margin" and "Applicable Utilization Fee Rate" shall be amended to
state in its entirety as follows:
"Applicable Facility Fee Rate", "Applicable Margin" and "Applicable
Utilization Fee Rate" means the following percentages (expressed in basis
points) from time to time based upon the then applicable senior unsecured,
unsupported debt rating of the Company assigned by S&P and ▇▇▇▇▇'▇:
Level I Level II Level III Level IV
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BBB+/Baa1
Senior Unsecured Debt Rating A-/A3 or BBB/Baa2 BBB-/Baa3 BB+/Ba1
Applicable Facility Fee Rate 12.50 bps 22.50 bps 32.50 bps 40.00 bps
Applicable Margin for Offshore Rate Loans 62.50 bps 77.50 bps 82.50 bps 100.00 bps
Application Margin for Base Rate Loans 0 bps 0 bps 0 bps 0 bps
Applicable Utilization Fee Rate 0 bps 0 bps 10.0 bps 10.0 bps
The Applicable Facility Fee Rate, Applicable Margin and Applicable
Utilization Fee Rate shall be determined based upon the higher of the Company's
senior debt rating from S&P or ▇▇▇▇▇'▇ except that if the Company's senior debt
rating differs by more than one level between such ratings from S&P and ▇▇▇▇▇'▇,
the Applicable Facility Fee Rate, Applicable Margin and Applicable Utilization
Fee Rate shall be one level higher than the lower such rating. In the event the
Company's senior debt is unrated by both S&P and ▇▇▇▇▇'▇, the Applicable
Facility Fee
Rate, the Applicable Margin and the Applicable Utilization Fee Rate shall be
determined as if Level IV were applicable until the senior debt shall be rated.
1.2 Debt Ratio. The definition of "Debt Ratio" in Section 1.1 of the Credit
Agreement is hereby amended to state in its entirety as follows:
"Debt Ratio" shall mean the ratio of (i) all Indebtedness of the
Company and its Subsidiaries on a consolidated basis (other than
obligations under Swap Contracts consisting only of options with respect to
equity investments held in a merger arbitrage portfolio of the Company or
any Subsidiary which obligations were entered into for the purpose of
hedging risk with respect to such portfolio) to (ii) Total Capital.
1.3 Revolving Termination Date. The definition of "Revolving Termination
Date" in Section 1.1 of the Credit Agreement is hereby amended by the deletion
of the date "December 8, 2000" and the substitution therefor of the date
"December 7, 2001."
1.4 Total Capital. The definition of "Total Capital" in Section 1.1 of the
Credit Agreement is hereby amended to state in its entirety as follows:
"Total Capital" means Stockholder's Equity plus Indebtedness of the
Company and its Subsidiaries on a consolidated basis plus the non
duplicative principal amount of Deferrable Interest Debentures.
1.5 Certificate. The references in Section 4.1(f) of the Credit Agreement
to "December 31, 1998" shall be amended to be references to "December 31, 1999."
1.6 Financial Condition. The references in Section 5.11 of the Credit
Agreement to "December 31, 1998" and "September 30, 1999" shall be amended to be
references to "December 31, 1999" and "September 30, 2000," respectively.
1.7 Minimum Common Stockholder's Equity. Section 7.9(a) of the Credit
Agreement is hereby amended to state in its entirety as follows:
"(a) Minimum Common Stockholder's Equity. The Company shall not at any
time permit Common Stockholder's Equity to be less than $625,000,000 plus
25% of net income (if positive) determined on a cumulative basis for the
period after December 31, 2000."
1.8 Debt Ratio. Section 7.9(b) of the Credit Agreement is hereby amended by
the deletion of the ratio "0.40:1" and the substitution therefor of the ratio
"0.35:1."
1.9 Schedule 2.1. Schedule 2.1 of the Credit Agreement is hereby amended to
state in its entirety as set forth in Schedule 2.1 hereto.
1.10 Schedule 5.7. Schedule 5.7 of the Credit Agreement is hereby amended
to state in its entirety as set forth in Schedule 5.7 hereto.
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1.11 Schedule 5.16. The reference in Section 5.16 of the Credit Agreement
to "December 31, 1998" shall be amended to be a reference to "December 31,
1999." Schedule 5.16 of the Credit Agreement is hereby amended to state in its
entirety as set forth in Schedule 5.16 hereto.
1.12 Exiting Bank. As of the date hereof, ▇▇▇▇▇ Fargo Bank, N.A. (the
"Exiting Bank") shall no longer be a "Bank" under this Agreement. The Company
shall on the date hereof repay the principal of all outstanding Loans made by
the Exiting Bank, together with accrued interest, fees and other amounts payable
to the Exiting Bank. BofA shall make a Loan on the date hereof to the Company in
an amount equal to the Loan repaid to the Exiting Bank with an Interest Period
ending on the last day of the Interest Period applicable to the repaid Loan and
with an interest rate equal to the rate applicable to the repaid Loan. If BofA
shall incur any cost or expense as a result of funding said Loan after the
commencement of the applicable Interest Period, the Company shall reimburse BofA
for such cost or expense.
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 2 shall have been
satisfied, and notice thereof shall have been given by the Agent to the Company
and the Banks.
2.1 Receipt of Documents. The Agent shall have received all of the
following documents duly executed, dated the date hereof or such other date as
shall be acceptable to the Agent, and in form and substance satisfactory to the
Agent:
(a) Amendment. This Amendment, duly executed by the Company, the Agent
and the Banks.
(b) Secretary's Certificate. A certificate of the secretary or an
assistant secretary of the Company, as to (i) resolutions of the Board of
Directors of the Company then in full force and effect authorizing the
execution, delivery and performance of this Amendment and each other
document described herein, and (ii) the incumbency and signatures of those
officers of the Company authorized to act with respect to this Amendment
and each other document described herein.
(c) Opinion of Counsel. An opinion, addressed to the Agent and all
Banks, from Willkie, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to the Company.
2.2 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Company shall be true and correct (and the Company, by its execution of
this Amendment, hereby represents and warrants to the Agent and each Bank that
such statements are true and correct as at such times):
(a) the representations and warranties set forth in Article V of the
Credit Agreement shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date); and
(b) no Event of Default or Default shall have then occurred and be
continuing.
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2.3 Payment of Fees. The Company shall have paid to the Agent and the Banks
all fees then due and payable to the extent then invoiced.
SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the Agent
to enter into this Amendment, the Company hereby reaffirms, as of the date
hereof (unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date), its representations and warranties contained in Article V of the Credit
Agreement and the Company additionally represents and warrants to the Agent and
each Bank as follows:
3.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Company of this Amendment are within the Company's corporate
powers, have been duly authorized by all necessary corporate action, and do not
(a) contravene the Company's Organization Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Company; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Company's properties.
3.2 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Company of this Amendment.
3.3 Validity, etc. This Amendment constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
shall remain in full force and effect and is hereby ratified, approved and
confirmed in each and every respect. After the effectiveness of this Amendment
in accordance with its terms, all references to the Credit Agreement in the Loan
Documents or in any other document, instrument, agreement or writing shall be
deemed to refer to the Credit Agreement as amended hereby.
4.2 Payment of Costs and Expenses. The Company agrees to pay on demand all
expenses of the Agent (including the reasonable fees and out-of-pocket expenses
of counsel to the Agent) in connection with the negotiation, preparation,
execution and delivery of this Amendment.
4.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
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of this Amendment or affecting the validity or enforceability of such provision
in any other jurisdiction.
4.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
4.7 Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
▇. ▇. ▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Senior Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
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Title: Principal
SCHEDULE 2.1
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COMMITMENTS
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AND PRO RATA SHARES
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Pro Rata
Bank Commitment Share
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Bank of America, $50,000,000 100%
National Association
TOTAL $50,000,000 100%
