FOURTH AMENDMENT
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THIS FOURTH AMENDMENT to the Credit Agreement referred to below (this
"Fourth Amendment"), is made and entered into as of this 13th day of August,
1999 by and among XXXXXX XXXXXX, INC., a corporation organized under the laws of
Delaware (the "Borrower"), the Lenders party to the Credit Agreement (as defined
below) and identified on the signature pages hereto, and FIRST UNION NATIONAL
BANK, as Administrative Agent for the Lenders.
Statement of Purpose
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The Lenders have extended certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of June 18, 1998
as amended by the First Amendment dated as of August 26, 1998, the Second
Amendment dated as of September 8, 1998 and the Third Amendment dated as of May
7, 1999 (as so amended and as further amended, restated, supplemented or
otherwise modified, the "Credit Agreement"), by and among the Borrower, the
Lenders and the Administrative Agent.
The Borrower has requested that the Lenders amend the Credit Agreement to
revise certain provisions of the Credit Agreement, and the Lenders have agreed
to do so, but only on the terms and conditions set forth below in this Fourth
Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized undefined terms used in this Fourth
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments.
(a) Section 1.1 of the Credit Agreement shall be amended by deleting the
definitions of "Aggregate Commitment" and "Revolving Credit Commitment" and
inserting the following new definitions in lieu thereof:
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof.
"Revolving Credit Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to and issue or
participate in Letters of Credit issued for the account of the Borrower
hereunder in an aggregate principal amount at any time outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule 1, as
such amount may be reduced or modified at any time or from time to time
pursuant to Sections 2.5 and 14.10 and (b) as to all Lenders, the
aggregate commitment of all Lenders to make Revolving Credit Loans and
issue or participate in Letters of Credit, as such amount may be reduced
or modified at any time or from time to time pursuant to such
Sections. The Revolving Credit Commitment on the Fourth Amendment
Effective Date shall be Twenty Million Dollars ($20,000,000).
(b) Section 1.1 of the Credit Agreement is hereby modified to add in
appropriate alphabetical order the following defined terms:
"Additional KMI Dividend" means a dividend not in excess of Ten
Million Dollars ($10,000,000) to be paid to the shareholders of the
Borrower on the Fourth Amendment Effective Date.
"Fourth Amendment" means that certain Fourth Amendment to this
Agreement dated as of August 13, 1999 by and among the Borrower, the
Lenders and the Administrative Agent.
"Fourth Amendment Effective Date" means the date of the Fourth
Amendment or such later Business Day upon which each condition described
in Section 5 to the Fourth Amendment shall be satisfied or waived in all
material respects in a manner satisfactory to the Administrative Agent."
(c) Section 2.7 of the Credit Agreement shall be amended in its entirety
by inserting the following Section 2.7 in lieu thereof:
"SECTION 2.7. Use of Proceeds. The Borrower shall use the proceeds of
the Revolving Credit Loans solely (a) prior to August 19, 1998, for future
general corporate purposes in an amount not greater than $5,600,000, (b)
prior to December 31, 1998, to finance investments permitted by Section
11.3(d), make dividends and distributions permitted by Section 11.6(e) and
pay income taxes and Interest Expense, (c) on or after December 31, 1998,
to finance investments permitted by Section 11.3(d), (d) to pay the
Additional KMI Dividend permitted pursuant to Section 11.6(a) and (e) to
pay certain fees and expenses incurred in connection with the transactions
contemplated hereby."
(d) Section 11.6(a) of the Credit Agreement shall be amended in its
entirety by inserting the following in lieu thereof:
"(a) the Borrower may pay the KMI Dividend and the Additional
KMI Dividend;"
3. Second Amended and Restated Notes. Each Revolving Credit Note executed
on the Closing Date shall be replaced with a Second Amended and Restated
Revolving Credit Note dated as of the Fourth Amendment Effective Date in the
aggregate principal amount of Twenty Million Dollars ($20,000,000) (the "Second
Amended and Restated Revolving Credit Notes").
4. Update to Schedules 1 and 11.8. Solely with respect to the Revolving
Credit Commitment, Schedule1 attached hereto hereby amends and restates Schedule
1 attached to the Credit Agreement and Schedule 11.8 attached hereto hereby
amends and replaces in its entirety Schedule 11.8 attached to the Credit
Agreement.
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5. Conditions of Effectiveness. This Fourth Amendment shall become
effective when, and only when, the Administrative Agent shall have received the
following, in form and substance satisfactory to the Administrative Agent:
(a) Counterparts of this Fourth Amendment executed by the Borrower,
the Administrative Agent and each of the Lenders.
(b) An executed original Second Amended and Restated Revolving Credit
Note made payable to each Lender in an amount equal to such Lender's
Revolving Credit Commitment.
(c) Certified copies of (i) the resolutions of the Board of Directors
of the Borrower approving this Fourth Amendment and (ii) all documents,
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Fourth Amendment and the matters contemplated
hereby.
(d) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (i) that the charter documents and the bylaws of the
Borrower delivered on the Closing Date have not been amended or modified
in any respect, and (ii) as to the incumbency and the names and true
signatures of its officers authorized to sign this Fourth Amendment to
which it is a party and other documents to be delivered hereunder.
(e) A certificate as of a recent date of the good standing of the
Borrower under the laws of its jurisdiction of organization.
(f) A favorable opinion of Xxxxxxxx & Xxxxxx, L.L.P., counsel to the
Borrower, addressed to the Administrative Agent and the Lenders with
respect to the Borrower, the Fourth Amendment, the Loan Documents and as
to such other matters as the Administrative Agent or any Lender may
reasonably request.
6. Limited Amendment. Except as expressly amended herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Fourth Amendment shall not be deemed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Documents or (b) to
prejudice any other right or rights which the Administrative Agent or Lenders
may now have or may have in the future under or in connection with the Credit
Agreement or the Loan Documents or any of the instruments or agreements referred
to therein, as the same may be amended, restated or otherwise modified from time
to time.
7. Representations and Warranties. By its execution hereof, the Borrower
hereby certifies on behalf of itself and its Subsidiaries that each of the
representations and warranties set forth in the Credit Agreement and the other
Loan Documents is true and correct as of the date hereof as if fully set forth
herein (except for any such representations and warranties made as of a specific
date which shall be true and correct as of such date) and that as of the date
hereof no Default or Event of Default has occurred and is continuing.
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8. Governing Law. This Fourth Amendment shall be governed by and construed
in accordance with the laws of the State of North Carolina.
9. Counterparts. This Fourth Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be duly executed as of the date and year first above written.
[CORPORATE SEAL] XXXXXX XXXXXX, INC.,
as Borrower
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxxx, Xx.
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Title: Vice President and Treasurer
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FIRST UNION NATIONAL BANK, as Administrative
Agent and Lender
By /s/ Xxxxxxx Curriman
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Name: Xxxxxxx Curriman
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Title: Vice President
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LENDERS:
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SOCIE'TE' GE'NE'RALE, SOUTHWEST AGENCY
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Director
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[SIGNATURE PAGES CONTINUE]
SENIOR DEBT PORTFOLIO
By /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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[SIGNATURE PAGES CONTINUE]
AMARA-2 FINANCE LTD.
By /s/ Xxxxxx Xxx Xxxxxxx
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Name: Xxxxxx Xxx Xxxxxxx
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Title: Director
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[SIGNATURE PAGES CONTINUE]
CERES FINANCE LTD.
By /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Director
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[SIGNATURE PAGES CONTINUE]
AERIES FINANCE LTD.
By /s/ Xxxxxx Xxx Xxxxxxx
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Name: Xxxxxx Xxx Xxxxxxx
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Title: Director
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[SIGNATURE PAGES CONTINUE]
CAPTIVA FINANCE LTD.
By /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Director
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[SIGNATURE PAGES CONTINUE]
ELC (CAYMAN) LTD.
By /s/ X. X. Xxxxxxxx, III
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Name: X. X. Xxxxxxxx, III
-----------------------------------------
Title: Managing Director IDM
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[SIGNATURE PAGES CONTINUE]
ELC (CAYMAN) LTD.
CDO Series 1991-1
By /s/ X. X. Xxxxxxxx, III
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Name: X. X. Xxxxxxxx, III
-----------------------------------------
Title: Managing Director IDM
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[SIGNATURE PAGES CONTINUE]
PILGRIM PRIME RATE TRUST
By: PILGRIM INVESTMENTS, INC.
as its Investment Manager
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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[SIGNATURE PAGES CONTINUE]
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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[SIGNATURE PAGES CONTINUE]
XXXXX XXXXX SENIOR INCOME TRUST
By /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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[SIGNATURE PAGES CONTINUE]
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President
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[SIGNATURE PAGES CONTINUE]
XXXXXXXXX CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC,
as Collateral Manager
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Managing Partner
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[SIGNATURE PAGES CONTINUE]
LONGLANE MASTER TRUST IV
By: BankBoston, N.A., as Trust Administrator
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Managing Director Credit Derivative
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SCHEDULE 1
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LENDERS AND REVOLVING CREDIT COMMITMENTS
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Revolving Revolving
Lender Credit Credit
Commitment Commitment
Percentage
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First Union National Bank $20,000,000 100.0000000000%
c/o First Union Capital Partners
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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SCHEDULE 11.8
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AFFILIATE TRANSACTIONS
----------------------
Two loans evidenced by promissory notes in the aggregate principal amount
of $1 Million Dollars payable by Xxxxxxx X. Xxxxxx to Xxxxxx Xxxxxx, Inc., which
loans will be retired on the Closing Date.
The KMI Dividend shall be distributed to Xxxxxxx X. Xxxxxx, Xxxxxx
Associates, Inc. and First Union Corporation, each in their capacity as
shareholders of the Borrower.
The Additional KMI Dividend shall be distributed to Xxxxxxx X. Xxxxxx,
Xxxxxx Associates, Inc. and First Union Corporation, each in their capacity
as shareholders of the Borrower.
