EXHIBIT 4.5
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment, dated as of March 15, 1999, is made by and among DAIN
RAUSCHER CORPORATION, a Delaware corporation (the "Borrower"), the banks or
financial institutions listed on the signature pages hereof or which
hereafter become parties to the Credit Agreement (as defined herein) by means
of assignment and assumption as described in the Credit Agreement
(individually referred to as a "Bank" or collectively as the "Banks"), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as agent for
the Banks (in such capacity, the "Agent").
RECITALS
A. The Borrower, the Banks and the Agent have entered into an Amended
and Restated Credit Agreement dated as of March 20, 1998 (the "Credit
Agreement").
B. As of the date hereof, no Loans have been made to the Borrower
under the Credit Agreement and no Loans will be made to the Borrower under
the Credit Agreement until after the First Amendment Effective Date (defined
below). Also as of the date hereof, no Letters of Credit have been issued
for the account of the Borrower under the Credit Agreement and no Letters of
Credit will be issued for the account of the Borrower under the Credit
Agreement until after the First Amendment Effective Date.
C. The Borrower has requested that the Termination Date be extended
for three hundred and sixty-four (364) days.
D. The Banks and the Agent are willing to grant the Borrower's request
pursuant to the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. DEFINED TERMS. Capitalized terms used in this Amendment which are
defined in the Credit Agreement shall have the same meanings as defined
therein, unless otherwise defined herein. In addition, Section 1.1 of the
Credit Agreement is amended by adding or amending, as the case may be, the
following definitions:
"COMMITMENT": In the case of each Bank, the amount set forth opposite
such Bank's signature on the signature page of the First Amendment (or in
the relevant Assignment and Assumption Agreement for such Bank), as the
same may be reduced from time to time pursuant to SECTION 4.3, or, as the
context may require, the agreement of each Bank to make Loans to the
Borrower and to participate in Swing Line Loans to the Borrower and to
participate in Letters of Credit issued for the account of the Borrower up
to such amount, subject to the terms and conditions of this Agreement."
"FIRST AMENDMENT": That certain First Amendment to Amended and Restated
Credit Agreement dated as of March 15, 1999, by and among the Borrower,
the Banks and the Agent."
"FIRST AMENDMENT EFFECTIVE DATE": The date on which the First Amendment
becomes effective under paragraph 6 of the First Amendment.
"FIRST REPLACEMENT REVOLVING NOTES": The Revolving Notes of the
Borrower dated March 20, 1998, payable to the order of the Banks.
"PERCENTAGE": As to any Bank, the percentage set forth opposite such
Bank's signature on the signature page of the First Amendment (or in the
relevant Assignment and Assumption Agreement for such Bank) (I.E., the
proportion, expressed as percentage, that such Bank's Commitment bears to
the Aggregate Commitment).
"TERMINATION DATE": The earliest of (a) March 17, 2000, or such later
date to which the Termination Date is extended pursuant to the provisions
of SECTION 2.9, (b) the date on which the Commitments are terminated
pursuant to SECTION 10.2 hereof or (c) the date on which the Commitments
are reduced to zero pursuant to SECTION 4.3 hereof."
2. REDUCTION OF THE COMMITMENT AND PERCENTAGE OF THE CHASE MANHATTAN
BANK; RETURN OF REVOLVING NOTE PAYABLE TO THE ORDER OF THE CHASE MANHATTAN
BANK. From and after the First Amendment Effective Date, the Commitment of
The Chase Manhattan Bank ("Chase") shall be reduced to zero and the
Percentage of Chase shall be reduced to zero percent. Promptly after the
First Amendment Effective Date, Chase shall return to the Agent the
Borrower's Revolving Note dated March 20, 1998, payable to the order of Chase
in the principal amount of $15,000,000 marked "Cancelled". Upon receipt of
such Revolving Note marked "Cancelled" from Chase, the Agent shall promptly
return such Revolving Note to the Borrower.
3. INCREASE OF COMMITMENTS AND PERCENTAGES OF THE BANKS OTHER THAN
CHASE. From and after the First Amendment Effective Date, the Commitment and
Percentage of each Bank other than Chase are set forth opposite the signature
of such Bank on the signature page of this Amendment.
4. REVOLVING NOTES. Section 2.5(a) of the Credit Agreement is hereby
amended to read as follows:
"(a) REVOLVING NOTES. The Revolving Loans of each Bank shall be
evidenced by a promissory note of the Borrower (each a "Revolving Note"
and collectively for all Banks, the "Revolving Notes"), substantially in
the form of EXHIBIT A-1 hereto, in the amount of such Bank's Commitment
originally in effect and dated as of the First Amendment Effective Date
(or dated as of the relevant date of the Assignment and Assumption
Agreement for such Bank). The Revolving Notes have been issued in
replacement of, and in substitution for, but not in payment of, the First
Replacement Revolving Notes which, in turn, had been issued in replacement
of, and in substitution for, but not in payment of, the Original Notes.
Each Bank shall enter in its respective records the amount of each
Revolving Loan, the rate or rates of interest borne by its Revolving Loans
and the payments made on the Revolving Loans, and such records shall be
deemed conclusive evidence of the subject matter thereof, absent manifest
error."
5. REMAINING EXTENSIONS OF THE TERMINATION DATE. The Borrower, the
Banks and the Agent acknowledge and agree that extension of the Termination
Date effected by this Amendment constitutes the first extension of the
Termination Date contemplated by SECTION 2.9 of the Credit Agreement. Two
(2) further extensions of the Termination Date remain available to the
Borrower pursuant to the terms and conditions of SECTION 2.9 of the Credit
Agreement.
6. CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS AMENDMENT. This
Amendment shall become effective when the Agent shall have received each of
the following, each in substance and form acceptable to the Agent in its sole
discretion:
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(a) This Amendment, duly executed on behalf of the Borrower, the Agent,
and the Banks;
(b) A Revolving Note payable to the order of each Bank other than Chase
in the amount of such Bank's Commitment after giving effect to this First
Amendment, duly executed on behalf of the Borrower.
(c) An opinion of counsel to the Borrower; and
(d) Such other items as the Agent shall reasonably require.
7. DELIVERY OF REVOLVING NOTES TO BANKS OTHER THAN CHASE; RETURN OF
FIRST REPLACEMENT REVOLVING NOTES BY BANKS OTHER THAN CHASE. Promptly upon
the Agent's receipt of the Revolving Notes from the Borrower as contemplated
by paragraph 6(b) of this Amendment, the Agent shall deliver to each Bank
other than Chase its respective Revolving Note. Promptly upon each such
Bank's receipt of its Revolving Note, such Bank shall return to the Agent the
Borrower's First Replacement Revolving Note payable to such Bank marked
"Replaced by Replacement Note". Upon receipt of each such First Replacement
Revolving Note marked "Replaced by Replacement Note" from each such Bank, the
Agent shall promptly return each such First Replacement Revolving Note to the
Borrower.
8. BORROWER'S COVENANT TO ENTER INTO A RESTATED CREDIT AGREEMENT.
Upon request of the Agent and the Banks other than Chase, the Borrower shall,
no later than May 31, 1999, enter into a restated credit agreement with the
Agent and the Banks other than Chase which shall be identical in all material
respects to the Credit Agreement, as amended by this Amendment, except that
Chase will not be a party to such restated credit agreement. In connection
with such restated credit agreement, the Borrower shall execute replacement
revolving notes and shall provide such corporate authorization documentation,
opinions of counsel and other items as shall be reasonably requested by the
Agent and the Banks other than Chase.
9. NO OTHER CHANGES. Except as explicitly amended by this Amendment,
all of the terms and conditions of the Credit Agreement shall remain in full
force and effect.
10. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to the Agent and the Banks as follows:
(a) The Borrower has all requisite power and authority to execute this
Amendment and to perform all of its obligations hereunder, and this
Amendment has been duly executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate action and
do not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate
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any provision of any law, rule or regulation or of any order, writ,
injunction or decree presently in effect, having applicability to the
Borrower, or the articles of incorporation or by-laws of the Borrower, or
(iii) result in a breach of or constitute a default under any indenture or
loan or credit agreement or any other agreement, lease or instrument to
which the Borrower is a party or by which it or its properties may be
bound or affected.
(c) All of the representations and warranties contained in Article VII
of the Credit Agreement are correct on and as of the date hereof as though
made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
11. REFERENCES TO CREDIT AGREEMENT. All references in the Credit
Agreement to "this Agreement" shall be deemed to refer to the Credit
Agreement as amended by this Amendment and any and all references in the Loan
Documents to the Credit Agreement shall be deemed to refer to the Credit
Agreement as amended by this Amendment.
12. NO WAIVER. The execution of this Amendment and acceptance of any
documents related hereto shall not be deemed to be a waiver of any Default or
Event of Default under the Credit Agreement, whether or not known to the
Agent and/or the Banks and whether or not existing on the date of this
Amendment.
13. RELEASE. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Agent and each of the Banks, and any and
all participants, parent corporations, subsidiary corporations, affiliated
corporations, insurers, indemnitors, successors and assigns thereof, together
with all of the present and former directors, officers, agents and employees
of any of the foregoing, from any and all claims, demands or causes of action
of any kind, nature or description, whether arising in law or equity or upon
contract or tort or under any state or federal law or otherwise, which the
Borrower has had, now has or has made claim to have against any such person
for or by reason of any act, omission, matter, cause or thing whatsoever
arising from the beginning of time to and including the date of this
Amendment, whether such claims, demands and causes of action are matured or
unmatured or known or unknown.
14. COSTS AND EXPENSES. The Borrower hereby reaffirms its agreement
under the Credit Agreement to pay or reimburse the Agent on demand for all
costs and expenses incurred by the Agent in connection with the preparation
of this Amendment, including without limitation all reasonable fees and
disbursements of legal counsel to the Agent.
15. MISCELLANEOUS. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which counterparts, taken together, shall constitute one
and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
DAIN RAUSCHER CORPORATION
By
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Title
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Dain Rauscher Plaza
60 South Sixth Street
Minneapolis, Minnesota 55402-4422
Attention: Theodore F. Ceglia
Fax: (612) 607-8731
Commitment: U.S. BANK NATIONAL ASSOCIATION,
$17,500,000 as Agent and a Bank
Percentage: 35%
By
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Title
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601 2nd Avenue South
Minneapolis, Minnesota 55402-4302
Attention: Vice President, Financial
Services Division
Fax: (612) 973-0832
SIGNATURE PAGE TO FIRST AMENDMENT
Commitment: NORWEST BANK MINNESOTA,
$17,500,000 NATIONAL ASSOCIATION
Percentage: 35%
By
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Title
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Sixth Street and Marquette Avenue
Minneapolis, Minnesota 55479-0105
Attention: Vice President, Financial
Institutions Division
Fax: (612) 667-7251
Commitment: THE BANK OF NEW YORK
$15,000,000
Percentage: 30%
By
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Title
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One Wall Street
First Floor
New York, New York 10286
Attention: Joe Ciacciarelli
Fax: (212) 809-9375
Commitment: THE CHASE MANHATTAN BANK
$0
Percentage: 0%
By
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Title
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Broker-Dealer Division
21st Floor
One Chase Manhattan Plaza
New York, New York 10081
Attention: Diane Leslie
Fax: (212) 552-5287
M1:468107.04
SIGNATURE PAGE TO FIRST AMENDMENT