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EXHIBIT 10.7
AMENDMENT NO. 3 TO 364-DAY CREDIT AGREEMENT
This amendment (this "Amendment") is entered into as of March 31, 2000
by and among XXXXXX WORLDWIDE, INC., a Delaware corporation (the "Company"), one
or more Subsidiaries of the Company (whether now existing or hereafter formed,
collectively referred to herein as the "Subsidiary Borrowers" and together with
the Company, the "Borrowers"), the institutions from time to time parties hereto
as Lenders, ABN AMRO BANK, N.V. in its capacity as administrative agent (the
"Administrative Agent") for itself and the other Lenders, SUNTRUST BANK,
ATLANTA, as Syndication Agent (the "Syndication Agent"), and WACHOVIA BANK N.A.,
as Documentation Agent (the "Documentation Agent").
RECITALS
A. The Borrowers, the Agents and the Lenders are party to that
certain 364-Day Credit Agreement dated as of October 20, 1999, as amended by
that certain Amendment No. 1 dated as of November 4, 1999, as amended by that
certain Amendment No. 2 dated as of December 31, 1999 (the "Credit Agreement").
Unless otherwise specified herein, capitalized terms used in this Amendment
shall have the meanings ascribed to them by the Credit Agreement.
B. The Borrowers, the Agents and the Lenders wish to amend the
Credit Agreement on the terms and conditions set forth below.
Now, therefore, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement. Upon the "Effective
Date" (as defined below), the Credit Agreement shall be amended as follows:
(a) Section 7.3(H)(i) of the Credit Agreement
shall be amended by deleting such subsection in its entirety and inserting the
following new Section 7.3(H)(i):
"(i) Investments by the Company or any Subsidiary in any
Wholly-Owned Subsidiary which is a Guarantor or in any
Domestic Subsidiary that is organized by the Company to serve
as a so-called "bankruptcy remote subsidiary" in connection
with a securitization of Receivables, to the extent such
securitization is permitted under Sections 7.3(A) and
7.3(D)(vii)."
(b) Section 7.3(O) of the Credit Agreement shall
be amended by adding the following proviso to the end of such Section:
"; provided, however, that Section 7.3(O) shall not apply to a
Domestic Subsidiary that is organized by the Company to serve
as a so-called "bankruptcy
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remote subsidiary" in connection with a securitization of
Receivables, to the extent such securitization is permitted
under Sections 7.3(A) and 7.3(D)(vii)."
(c) Section 7.3(R) of the Credit Agreement shall
be amended by adding the following proviso to the end of such Section:
"; provided, however, that Section 7.3(R) shall not apply to a
Domestic Subsidiary that is organized by the Company to serve
as a so-called "bankruptcy remote subsidiary" in connection
with a securitization of Receivables, to the extent such
securitization is permitted under Sections 7.3(A) and
7.3(D)(vii)."
2. Representations and Warranties of the Borrowers. Each
Borrower represents and warrants that:
(a) Such Borrower has the requisite power and
authority and legal right to execute and deliver this Amendment and to perform
its obligations hereunder. The execution and delivery by such Borrower of this
Amendment and the performance of its obligations hereunder have been duly
authorized by proper proceedings, and this Amendment constitutes a legal, valid
and binding obligation of such Borrower enforceable against such Borrower in
accordance with its terms, except as enforceability may be limited by any
bankruptcy, insolvency or similar law affecting the enforcement of creditors'
rights generally;
(b) Each of the representations and warranties
contained in the Credit Agreement and the other Loan Documents is true and
correct in all material respects on and as of the date hereof as if made on the
date hereof; and
(c) After giving effect to this amendment, no
Default or Unmatured Default has occurred and is continuing.
3. Effective Date. Section 1 of this Amendment shall
become effective upon the execution and delivery hereof by the Borrowers, the
Agents and the Required Lenders (the "Effective Date").
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically amended above, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(b) The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver or any other right, power or remedy
of any Agent or Lender under the Credit Agreement or any other Loan Document, or
constitute a waiver of any provision of the Credit Agreement or any Loan
Document, except as specifically set forth herein. Upon the effectiveness of
this Amendment, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of similar import shall mean and be a reference
to the Credit
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Agreement as amended hereby, and each reference in the other Loan Documents to
the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby.
5. Costs and Expenses. Each Borrower hereby affirms its
obligation under Section 11.6 of the Credit Agreement to reimburse the
Administrative Agent for all reasonable costs and out-of-pocket expenses
(including reasonable attorneys' and paralegals' fees and time charges of
attorneys and paralegals for the Administrative Agent) paid or incurred by the
Administrative Agent in connection with the preparation, negotiation, execution,
delivery, syndication, review, proposed or completed amendment, waiver or
modification, and administration of the Loan Documents.
6. GOVERNING LAW. ANY DISPUTE BETWEEN ANY BORROWER AND
THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY OTHER HOLDER OF OBLIGATIONS ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS AMENDMENT OR ANY OF THE OTHER
LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (BUT WITHOUT REGARD TO
THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF NEW YORK.
7. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purposes.
8. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original but all of such counterparts shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written.
XXXXXX WORLDWIDE, INC., as the Company
By:
Name:
Title:
XXXXXX EUROPE AG, as a Subsidiary Borrower
By:
Name:
Title:
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XXXXXX EUROPE B.V., as a Subsidiary Borrower
By:
Name:
Title:
XXXXXX HOLDINGS, INC., as a Subsidiary Borrower
By:
Name:
Title:
XXXXXX PUERTO RICO, INC., as a Subsidiary Borrower
By:
Name:
Title:
ABN AMRO BANK N.V., as Administrative Agent and Lender
By:
Name:
Title:
SUNTRUST BANK, ATLANTA, as Syndication Agent and Lender
By:
Name:
Title:
WACHOVIA BANK N.A., as Documentation Agent and Lender
By:
Name:
Title:
FIRST UNION NATIONAL BANK., as Lender
By:
Name:
Title:
BANK ONE, NA (MAIN CHICAGO OFFICE), as Lender
By:
Name:
Title:
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BANCO POPULAR DE PUERTO RICO, as Lender
By:
Name:
Title:
BANK OF MONTREAL, as Lender
By:
Name:
Title:
THE BANK OF NEW YORK, as Lender
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as Lender
By:
Name:
Title:
THE BANK OF TOKYO-MITSUBISHI LTD., as Lender
By:
Name:
Title:
BANQUE NATIONALE DE PARIS, as Lender
By:
Name:
Title:
CREDIT SUISSE FIRST BOSTON, as Lender
By:
Name:
Title:
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DRESDNER BANK LATEINAMERIKA AKTIENGESELLSCHAFT, MIAMI AGENCY,
as Lender
By:
Name:
Title:
FIRSTAR BANK N.A., as Lender
By:
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION, as Lender
By:
Name:
Title:
REGIONS BANK, as Lender
By:
Name:
Title:
BANCA DI ROMA, NEW YORK BRANCH, as Lender
By:
Name:
Title:
ERSTE BANK, NEW YORK BRANCH, as Lender
By:
Name:
Title:
HIBERNIA NATIONAL BANK, as Lender
By:
Name:
Title:
COMERICA BANK, as Lender
By:
Name:
Title:
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IBM CREDIT CORPORATION
By:
Name:
Title:
BANQUE WORMS
By:
Name:
Title:
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