EXECUTION COPY
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"), dated as of
April 30, 1997 is among XXXXXX GROUP INTERNATIONAL, INC., a Delaware
corporation, as the Borrower, THE XXXXXX GROUP INC., a corporation organized
under the laws of the Province of British Columbia, Canada, as a Guarantor,
THE LENDERS NAMED HEREIN, as the initial Lenders, XXXXXXX, XXXXX & CO., as
the Documentation Agent, and BANK OF MONTREAL, as the L/C Issuer and the
Swing Line Lender and as the Agent for the Lenders.
The parties hereto are parties to a Credit Agreement dated as of May 15,
1996, ( as heretofore amended, the "CREDIT AGREEMENT"), and now wish to
further amend the Credit Agreement as set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, terms defined in the Credit Agreement are
used herein as defined in the Credit Agreement.
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
Section 2.1 CERTAIN DEFINITIONS. The definition of "Finance Subsidiary" in
Section 1.1 of the Credit Agreement is amended to read in full as follows:
"FINANCE SUBSIDIARY" means any captive finance Subsidiary of TLGI
that engages in no material activity other than (i) buying accounts receivable
or other financial assets of any Affiliate of TLGI, (ii) making loans or
otherwise extending credit to any such Affiliates, (iii) succeeding to any or
all of the business of LFW or Eagle or otherwise engaging in finance activities
similar to the finance activities engaged in by LFW or Eagle from time to time,
or (iv) making Investments in other Finance Subsidiaries."
Section 2.2 AMENDMENT TO SECTION 7.4. Section 7.4 of the Credit Agreement
is amended to add the following sentence at the end thereof:
"Nothing in this SECTION 7.4 shall prohibit any merger, amalgamation, or
consolidation which is permitted by SECTION 7.12."
Section 2.3 AMENDMENT TO SECTION 7.16. The language of Section 7.16 of the
Credit Agreement, commencing with the PROVISO thereto, is amended to read in
full as follows:
"PROVIDED, HOWEVER, that notwithstanding any provision to the contrary
herein, none of TLGI, the Borrower or any Subsidiary of either shall make
any Investment in any Person effectively located outside of the United
States or Canada if after giving effect to such Investment, the aggregate
amount of Investments of TLGI, the Borrower or any Subsidiary of either in
any Persons effectively located outside of the United States or Canada,
excluding Investments in Finance Subsidiaries which are Wholly-Owned
Subsidiaries, would exceed an amount equal to 5% of Consolidated Net Worth.
For the purpose of any computation required to be made pursuant to this
Agreement, Investments shall be valued at lower of the cost or Fair Value
thereof as of the date of computation."
Section 2.4 AMENDMENT TO SECTION 7.22. Section 7.22 of the Credit
Agreement is amended to read in full as follows:
"7.22. INTEREST CHARGES COVERAGE. TLGI will at all times maintain
(a) a ratio of EBITDA for the most recently ended period of four
consecutive fiscal quarters of TLGI to Consolidated Interest Charges for
such period of four consecutive fiscal quarters of not less than 2.750 to
1.00 and (b) a ratio of EBITDA for the most recently ended fiscal quarter
to Consolidated Interest Charges for such fiscal quarter of not less than
1.50 to 1.00. For purposes of this Section 7.22, any costs and expenses
incurred by TLGI in contesting the 1996 tender offer for TLGI by Service
Corporation International, Inc., which are reflected in the audited
financial statements of TLGI as at December 31, 1996 which have been
delivered to the Agent and the Lenders, up to an aggregate amount not to
exceed $18,678,000 for all such costs and expenses, shall be excluded from
the calculation of Consolidated Net Income in determining EBITDA for the
respective periods in which such costs were incurred."
Section 2.5 AMENDMENT TO SECTION 7.28. Section 7.28(e) of the Credit
Agreement is amended to read in full as follows:
"(e) such Subsidiary has no material assets other than (i) Indebtedness
owed to it by TLGI or the Borrower or an Affiliate of TLGI, (ii)
Investments in other Finance Subsidiaries which are Wholly-Owned
Subsidiaries and (iii) the accounts receivable and other financial assets
described in the foregoing CLAUSE (D), and"
Section 2.6 AMENDMENT TO SECTION 7.29. The second sentence of
Section 7.29 of the Credit Agreement is amended to read in full as follows:
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"Except as set out in clauses (d) and (e) or as otherwise consented to by
the Agent in its sole discretion, TLGI and the Borrower will, and will
cause each Subsidiary (other than a Canadian Subsidiary), the shares or
other equity interests of which are Pledged Shares under the Collateral
Trust Agreement, to take any and all actions necessary to ensure that there
are no restrictions on a transfer of such Pledged Shares pursuant to the
due exercise of the Trustee's powers under the Collateral Trust Agreement,
except with respect to any and all restrictions under applicable law."
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby certifies
that the following statements, after giving effect to the amendments and waivers
contemplated herein, are true and correct as of the date hereof: (a) each of the
representations and warranties contained in the Credit Agreement is true and
correct in all material respects; and (b) no Unmatured Default or Default has
occurred and is continuing,
ARTICLE IV
EFFECTIVENESS
Section 4.1 EFFECTIVENESS. The amendments set forth in ARTICLE II above
shall become effective on the date (the "AMENDMENT EFFECTIVE DATE") that the
Agent notifies the Borrower, TLGI and the Lenders that the Agent has received,
in form and substance satisfactory to the Agent, counterparts of this Amendment
executed by the Borrower, TLGI, the Required Lenders and the Agent.
ARTICLE V
GENERAL PROVISIONS
Section 5.1 CONTINUING EFFECTIVENESS, ETC. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the Amendment Effective Date, all references
in the Credit Agreement or any other Loan Document to the "Credit Agreement"
shall refer to the Credit Agreement as amended hereby. This Amendment shall for
all purposes be deemed to be a Loan Document under the Credit Agreement.
Section 5.2 COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed
in any number of counterparts, all of which taken together shall constitute one
agreement, and any of
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the parties hereto may execute this Agreement by signing any such
counterpart. This Amendment shall become effective on the Amendment
Effective Date.
Section 5.3 EXPENSES. Without limiting its obligations under Section 10.7
of the Credit Agreement, the Borrower agrees to pay the reasonable costs and
expenses of the Agent (including, without limitation, reasonable fees and
disbursements of counsel to the Agent) in connection with the preparation,
execution and delivery of this Amendment.
Section 5.4 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
the parties to the Credit Agreement and their respective successors and assigns.
Section 5.5 HEADINGS. Section headings in this Amendment are for
convenience of reference only and shall not govern the interpretation of any of
the provisions of this Amendment.
Section 5.6 SEVERABILITY OF PROVISIONS. Any provision in this Amendment
that is held to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability or validity of that provision in any other jurisdiction, and to
this end the provisions of this Amendment are declared to be severable.
Section 5.7 CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
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IN WITNESS WHEREOF, the Borrower, TLGI, the Lenders, the L/C Issuer and the
Agent have executed this Agreement as of the date first above written.
XXXXXX GROUP INTERNATIONAL, INC.
By:________________________________
Print Name: Xxxxxx X. Xxxxx
Title: Vice President, Finance
THE XXXXXX GROUP INC.
By:________________________________
Print Name: Xxxxxx X. Xxxxx
Title: Vice President, Finance
BANK OF MONTREAL, as Agent, L/C Issuer,
Lender and Swing Line Lender
By:________________________________
Print Name: Xxxx X. Xxxxx
Title: Director
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LENDERS
ALLIED IRISH BANKS, p.l.c.
CAYMAN ISLANDS BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
By:________________________________
Print Name:________________________
Title:_____________________________
BANK BRUSSELS XXXXXXX,
NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
By:________________________________
Print Name:________________________
Title:_____________________________
BANK OF IRELAND - GRAND CAYMAN
BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
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XXX XXXX XX XXX XXXX
By:________________________________
Print Name:________________________
Title:_____________________________
THE BANK OF TOKYO - MITSUBISHI, LTD.
By:________________________________
Print Name:________________________
Title:_____________________________
BANK POLSKA KASA OPIEKI, S.A.,
NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:________________________________
Print Name:________________________
Title:_____________________________
BAYERISCHE VEREINSBANK AG
By:________________________________
Print Name:________________________
Title:_____________________________
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CAISSE NATIONALE DE CREDIT AGRICOLE
By:________________________________
Print Name:________________________
Title:_____________________________
THE CHUO TRUST & BANKING CO., LTD,
NEW YORK AGENCY
By:________________________________
Print Name:________________________
Title:_____________________________
CITIBANK N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
CIBC INC.
By:________________________________
Print Name:________________________
Title:_____________________________
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COMERICA BANK
By:________________________________
Print Name:________________________
Title:_____________________________
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A. "RABOBANK NEDERLAND",
NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
CORESTATES BANK, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
THE DAI-ICHI KANGYO BANK, LTD.
By:________________________________
Print Name:________________________
Title:_____________________________
DEUTSCHE BANK AG, NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
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By:________________________________
Print Name:________________________
Title:_____________________________
THE FUJI BANK, LIMITED
By:________________________________
Print Name:________________________
Title:_____________________________
GIROCREDIT BANK A.G. DER SPARKASSEN
By:________________________________
Print Name:________________________
Title:_____________________________
HIBERNIA NATIONAL BANK
By:________________________________
Print Name:________________________
Title:_____________________________
KREDIETBANK N.V.
GRAND CAYMAN BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
MELLON BANK, N.A.
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By:________________________________
Print Name:________________________
Title:_____________________________
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:________________________________
Print Name:________________________
Title:_____________________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION, CHICAGO BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
PT BANK NEGARA INDONESIA (PERSERO)
By:________________________________
Print Name:________________________
Title:_____________________________
ROYAL BANK OF CANADA
By:________________________________
Print Name:________________________
Title:_____________________________
THE SAKURA BANK, LIMITED
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NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By:________________________________
Print Name:________________________
Title:_____________________________
THE SUMITOMO BANK, LIMITED
By:________________________________
Print Name:________________________
Title:_____________________________
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
U.S. BANK OF WASHINGTON, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
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XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:________________________________
Print Name:________________________
Title:_____________________________
WACHOVIA BANK OF GEORGIA, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
XXXXX FARGO BANK, N.A.
By:________________________________
Print Name:________________________
Title:_____________________________
THE YASUDA TRUST AND BANKING
COMPANY LIMITED
NEW YORK BRANCH
By:________________________________
Print Name:________________________
Title:_____________________________
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