EXHIBIT 10
Execution Copy
Amendment No. 2 to
Secured Credit Agreement
and Amendment No. 2 to
Security Agreement
dated as of November 13, 1996
In re:
SECURED CREDIT AGREEMENT
dated as of August 15, 1995
Between
HYPERION PARTNERS II L.P.
and
THE BANK OF NEW YORK
Amendment No. 2
to
Secured Credit Agreement
and
Amendment No. 2 to Security Agreement
Dated as of November 13, 1996
HYPERION PARTNERS II L.P., a Delaware limited partnership (the
"Partnership") and THE BANK OF NEW YORK (the "Bank"), having previously entered
into between themselves a Secured Credit Agreement dated as of August 15, 1995,
as amended by Amendment No. 1 dated as of August 2, 1996 (as amended, the
"Secured Credit Agreement"), and a related Security Agreement dated as of August
15, 1995, as amended by Amendment No. 1 dated as of August 2, 1996 (the
"Security Agreement"), agree, subject to the terms and conditions herein
stated, to amend the Secured Credit Agreement and the Security Agreement as
follows (capitalized terms used but not defined herein are used as defined in
the Secured Credit Agreement; this Agreement being hereafter referred to as this
"Amendment"):
I. Secured Credit Agreement Amendments
Upon the effectiveness of the Secured Credit Agreement is amended as
follows:
1.1 The last sentence of Section 1.01 shall be amended to read in its
entirety as follows:
"The Commitment on the Amendment Date is $40,000,000".
1.2 Section 9.01(a) of the Secured Credit Agreement is amended by
restating the definition of "Amendment Date" contained therein in its entirety
as follows:
"'Amendment Date' means, November 13, 1996, which date is the date executed
copies of Amendment No. 2 to this Agreement and Amendment No. 2 to the
Security Agreement were delivered by all parties thereto and, accordingly,
the date on which Amendment No. 2 to this Agreement and Amendment No. 2 to
the Security Agreement became effective and, for the first time, binding
upon the parties hereto.".
1.3 Schedule 3.08 of the Secured Credit Agreement is replaced with Exhibit
A hereto.
1.4 Exhibit A-1 to the Secured Credit Agreement is replaced with Exhibit
A-1 hereto.
II. Security Agreement Amendments
Upon the effectiveness of this Amendment, the Security Agreement is
amended as follows:
2.1 the First WHEREAS recital is amended to read in its entirety as
follows:
"WHEREAS, Debtor and Secured Party entered into a Secured Credit
Agreement dated as of August 15, 1995 (as amended from time to time, the
"Secured Credit Agreement"), pursuant to which the Secured Party has
committed to extend to the Debtor, and the Debtor may obtain from the
Secured Party, credit in the form of Loans in the aggregate principal
amount not to exceed $40,000,000 (the "Commitment"), and Debtor has
executed and delivered to the Secured Party a promissory note dated as of
November 13, 1996 in the aggregate principal amount of $40,000,000 bearing
interest as set forth in the Secured Credit Agreement (as amended or
substituted from time to time, the "Note"). This Agreement, the Secured
Credit Agreement, the Note and all other agreements, documents and
instruments relating to, arising out of, or in any way connected with any
of the foregoing, are referred to herein as the "Loan Documents"; all
debts, liabilities and obligations evidenced by or arising hereunder or by
or under any of the Loan Documents, including any extensions, renewals,
refinancing or changes in form thereof, are hereinafter referred to as the
"Obligations"; other terms used but not defined herein that are defined in
the Secured Credit Agreement are used with the meanings there ascribed to
them;".
2.2 Schedule A to the Security Agreement is replaced by Exhibit hereto.
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2.3 Schedule C to the Security Agreement is replaced by Exhibit C hereto.
III. Conditions
3.1. Conditions to the Effectiveness of This Amendment. The effectiveness
of this Amendment is subject to the receipt by the Bank of each of the
following, in form and substance and, in the case of the materials referred to
in clause (b), certified in a manner satisfactory to the Bank:
(a) this Amendment and the replacement Note each duly executed by
every Loan Party thereto;
(b) a certificate of the Vice President and Secretary of the general
partner of the General Partner of the Borrower, dated as of the date hereof,
substantially in the form of Annex A hereto and the resolutions referred to in
such certificate;
(c) replacement Capital Call Notices in the form of Schedule C to
the Security Agreement (as amended hereby), duly executed in blank with respect
to, and in the amounts of, each of the Pledge Capital Commitments set forth
opposite such partner's name on Schedule A to the Security Agreement (as amended
hereby); and;
(d) payment by the Borrower, within ten (10) days of the
effectiveness of this Amendment, of all legal fees and other expenses incurred
by the Bank in connection with the negotiation, execution and delivery of this
Amendment.
IV. Representations and Warranties
4.1. Representations and Warranties. The Borrower represents and warrants
that:
(a) no Default or Event of Default has or shall have occurred and be
continuing either before or after giving effect to this Amendment; and
(b) except as stated in writing to the Secured Party on or before
the date hereof, all of the Loan Document Representations and Warranties are
true and accurate as if made on the date hereof, provided that, for purposes of
this Section 4.1(b), the reference to "this Agreement" in Section 3.03 to the
Secured Credit Agreement shall be deemed to be a reference to this Amendment.
V. Miscellaneous
5.1 Effect on Loan Documents. (a) Except as specifically amended or
supplemented by this Amendment and the other documents delivered hereunder, each
of the
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Loan Documents and the Schedules and Exhibits thereto shall remain in full force
and effect and are hereby ratified and affirmed.
(b) Except as may be expressly stated in this Amendment, nothing
contained in this Amendment or any documents delivered hereunder, nor the
execution, delivery or effectiveness thereof, shall operate as a waiver of any
right, power or remedy of the Secured Party under any provision of the Loan
Documents.
5.2 Governing Law. This Amendment and the documents delivered hereunder
shall be construed in accordance with and governed by the laws of the State of
New York.
5.3 Execution in Counterparts. This Amendment may be executed in any
number of counterparts 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 taken together shall constitute one and the same agreement.,
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized representatives on this 13th day of
November, 1996.
HYPERION PARTNERS II L.P.
a Delaware limited partnership
By: HYPERION VENTURES II L.P.,
Its General Partner
By: HYPERION FUNDING II CORP.,
Its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and
Secretary
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
title:Vice President
Agreement Date: November 13, 1996
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