AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (the "Agreement") is made
and entered into as of this 24th day of February, 1997, by and
among HILB, ROGAL AND HAMILTON COMPANY, a Virginia corporation
(the "Borrower"), the Banks set forth on the signature page
hereto (the "Banks"), and CRESTAR BANK, a Virginia banking
corporation, as agent for the Banks under the Credit Agreement
(in such capacity, the "Agent").
RECITALS
A. The Borrower, the Agent and the Banks are parties to
that certain Credit Agreement dated as of February 12, 1996 (as
amended from time to time, the "Credit Agreement"), pursuant to
which each Bank, severally and not jointly, agreed to make Loans
from time to time until the Commitment Termination Date in an
aggregate principal amount at any time outstanding not exceeding
the amount of its Commitment. Capitalized terms not otherwise
defined herein shall have the meanings given such terms in the
Credit Agreement.
B. The Borrower has requested that the Agent and the Banks
make certain amendments to the Credit Agreement and the Agent and
the Banks are willing to make certain amendments to the Credit
Agreement on the terms and conditions set forth herein.
AGREEMENT
In consideration of the Recitals and of the mutual promises
and covenants contained herein, the Borrower, the Agent and the
Banks agree as follows:
1. Amendments to Credit Agreement. The Borrower, the
Agent and the Banks agree to the following amendments to the
Credit Agreement:
(a) Section 7.02 of the Credit Agreement is amended by
deleting the existing provision and substituting the following in
lieu thereof:
"SECTION 7.02. Indebtedness to Total
Capitalization Ratio. The ratio of Consolidated
Indebtedness to the sum of Consolidated
Indebtedness plus Consolidated Net Worth shall not
at any time exceed 1.00 to 2.00. For purposes of
this covenant, (i) Consolidated Indebtedness shall
be determined as of the date of the last day of
each quarter and the date of any change in
Consolidated Indebtedness, and (ii) Consolidated
Net Worth shall be calculated as of the last day
of each quarter."
(b) The definition of "Commitment" as set forth in
Exhibit A of the Credit Agreement is amended by deleting the
existing provision and substituting the following in lieu
thereof:
"'Commitment' means, with respect to
each Bank, an amount of $15,000,000, as the same
may be reduced from time to time pursuant to this
Agreement."
(c) The definition of "Commitment Termination Date" as
set forth in Exhibit A of the Credit Agreement is amended by
deleting the existing provision and substituting the following in
lieu thereof:
"'Commitment Termination Date' means
January 31, 2002, or such earlier date and time on
which the Commitments are terminated pursuant to
Article VIII."
(d) The definition of "Consolidated Indebtedness" is
hereby added to Exhibit A of the Credit Agreement as follows:
"'Consolidated Indebtedness' means, as
of any date, all Indebtedness of the Borrower and
its Consolidated Subsidiaries at such time."
2. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Banks as follows:
(a) Recitals. The Recitals in this Agreement are true
and correct in all respects.
(b) Incorporation of Representations. All
representations and warranties of the Borrower in the Credit
Agreement are incorporated herein in full by this reference and
are true and correct as of the date hereof.
(c) No Defaults. No Default or Event of Default has
occurred and is continuing under the Credit Agreement.
(d) Corporate Power; Authorization. The Borrower has
the corporate power, and has been duly authorized by all
requisite corporate action, to execute and deliver this Agreement
and to perform its obligations hereunder. This Agreement has
been duly executed and delivered by the Borrower.
(e) Enforceability. This Agreement is the legal,
valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms.
(f) No Violation. The Borrower's execution, delivery
and performance of this Agreement do not and will not (i) violate
any law, rule, regulation or court order to which the Borrower is
subject, or (ii) conflict with or result in a breach of the
Borrower's Articles of Incorporation or Bylaws or any agreement
or instrument to which the Borrower is party or by which it or
its properties are bound.
(g) Obligations Absolute. The obligation of the
Borrower to repay the Loans, together with all interest accrued
thereon, is absolute and unconditional, and there exists no known
right of set off or recoupment, counterclaim or defense of any
nature whatsoever to payment of the Obligations, and, to the
Borrower's knowledge, it does not currently hold and has not
previously held any claims of any kind against the Banks and
their respective employees, directors, agents, successors or
assigns arising out of or in any way connected with this
Agreement, the Credit Agreement or the Replacement Notes.
3. Conditions Precedent to Effectiveness of Agreement.
This Agreement shall not be effective unless and until each of
the following conditions shall have been satisfied in the Agent
and the Banks' sole discretion or waived by the Agent and the
Banks, for whose sole benefit such conditions exist:
(a) The Borrower shall have paid all of the Agent's
and the Banks' costs and expenses (including the Agent's and the
Banks' reasonable attorneys fees) incurred in connection with the
preparation of this Agreement.
(b) The Borrower shall have delivered, or caused to be
delivered, to each Bank:
(i) a duplicate original of this Agreement
executed on the Borrower's behalf by its duly authorized officer.
(ii) a duly executed promissory note reflecting
such Bank's increased Commitment and new Commitment Termination
Date and substantially in the form of Exhibit B to the Credit
Agreement (each, a "Replacement Note"), payable to its order and
otherwise complying with the provisions of Section 1.03 of the
Credit Agreement, whereupon the original notes will be returned
to the Borrower marked "Cancelled by Substitution".
(c) The Borrower shall have delivered, or caused to be
delivered, to the Agent, (i) a certificate of the Secretary or an
Assistant Secretary of the Borrower dated as of the date hereof
substantially in the form attached as Appendix 1 hereto and (ii)
a certificate of the Chief Financial Officer of the Borrower,
substantially in the form attached as Appendix 2 hereto.
4. Effect and Construction of Agreement. Except as
expressly provided herein, the Credit Agreement shall remain in
full force and effect in accordance with its respective terms,
and this Agreement shall not be construed to:
(i) waive or impair any rights, powers or remedies of
the Agent and the Banks under the Credit Agreement; or
(ii) constitute an agreement by the Agent and the Banks
or require the Agent and the Banks to make further
amendments to the Credit Agreement.
In the event of any inconsistency between the terms of this
Agreement and the Credit Agreement, this Agreement shall govern.
The Borrower acknowledges that it has consulted with counsel and
with such other experts and advisors as it has deemed necessary
in connection with the negotiation, execution and delivery of
this Agreement. This Agreement shall be construed without regard
to any presumption or rule requiring that it be construed against
the party causing this Agreement or any part hereof to be
drafted.
5. Expenses. The Borrower agrees to pay all costs, fees
and expenses of the Agent and the Banks (including the reasonable
fees of the Agent and the Banks's counsel) incurred by the Agent
and the Banks in connection with the negotiation, preparation,
administration and enforcement of this Agreement.
6. Miscellaneous.
(a) Further Assurance. The Borrower agrees to execute
such other and further documents and instruments as the Agent may
request to implement the provisions of this Agreement.
(b) Benefit of Agreement. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by
the parties hereto, their respective successors and assigns. No
other person or entity shall be entitled to claim any right or
benefit hereunder, including, without limitation, the status of a
third-party beneficiary of this Agreement.
(c) Integration. This Agreement, together with the
Credit Agreement and the Replacement Notes, constitutes the
entire agreement and understanding among the parties relating to
the subject matter hereof, and supersedes all prior proposals,
negotiations, agreements and understandings relating to such
subject matter. In entering into this Agreement, the Borrower
acknowledges that it is relying on no statement, representation,
warranty, covenant or agreement of any kind made by the Agent and
the Banks or any employee or agent of the Agent and the Banks,
except for the agreements of the Agent and the Banks set forth
herein.
(d) Severability. The provisions of this Agreement
are intended to be severable. If any provisions of this
Agreement shall be held invalid or unenforceable in whole or in
part in any jurisdiction, such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
enforceability without in any manner affecting the validity of
enforceability of such provision in any other jurisdiction or the
remaining provisions of this Agreement in any jurisdiction.
(e) Governing Law. This Agreement shall be governed
by and construed in accordance with the internal substantive laws
of the Commonwealth of Virginia, without regard to the choice of
law principles of such state.
(f) Counterparts; Telecopied Signatures. This
Agreement may be executed in any number of counterparts and by
different parties to this Agreement on separate counterparts,
each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
(g) Notices. Any notices with respect to this
Agreement shall be given in the manner provided for in Section
10.04 of the Credit Agreement.
(h) Amendment. No amendment, modification,
rescission, waiver or release of any provision of this Agreement
shall be effective unless the same shall be in writing and signed
by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CRESTAR BANK, as Agent FIRST UNION NATIONAL BANK OF
VIRGINIA
By:___________________________ By:___________________________
Christopher B. Werner Douglas T. Davis
Vice President Vice President
CRESTAR BANK HILB, ROGAL AND HAMILTON
COMPANY
By:___________________________ By:___________________________
Christopher B. Werner Timothy J. Korman
Vice President Executive Vice President
and Treasurer