SECOND AMENDMENT OF CREDIT AGREEMENT
THIS SECOND AMENDMENT OF CREDIT AGREEMENT (this "AMENDMENT") is entered
into to be effective as of April 27, 1998, between XXXXXXXX XXXX COMPANY, a
Delaware corporation ("BORROWER"), each of the banks or other lending
institutions which is a signatory to this Amendment (collectively, "LENDERS"),
NATIONSBANK OF TEXAS, N.A., a national banking association, as Administrative
Agent (in such capacity, together with its successors in such capacity,
"ADMINISTRATIVE AGENT"), and BANKERS TRUST COMPANY, as Documentation Agent (in
such capacity, together with its successors in such capacity, "DOCUMENTATION
AGENT").
R E C I T A L S
A. Borrower, Lenders, Administrative Agent, and Documentation Agent are
parties to the Credit Agreement dated as of December 1, 1997 as amended by that
certain First Amendment to Credit Agreement dated as of January 29, 1998 (the
"FIRST AMENDMENT") (as modified, amended, renewed, and extended from time to
time, the "CREDIT AGREEMENT"), providing for a $150,000,000.00 revolving line of
credit.
B. Capitalized terms used herein shall, unless otherwise indicated, have
the respective meanings set forth in the Credit Agreement.
C. Borrower and the Credit Parties desire to modify certain provisions
contained in the Credit Agreement, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower, Lenders, Administrative
Agent, and Documentation Agent agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) SECTION 1.1 of the Credit Agreement is hereby amended to delete the
definitions of "IMPLIED CAPITAL," "IMPUTED MULTIPLE," "LEVEL I," and "TOTAL
ASSET VALUE" in their entirety and replace such definitions with the following:
"IMPLIED CAPITAL" means, as of any date, THE PRODUCT OF (a) the
closing price on the immediately preceding trading day for Borrower's
common stock, as reported in THE WALL STREET JOURNAL, TIMES (b) THE SUM OF
(i) the number of issued and outstanding shares of common stock of Borrower
on such date, and (ii) the number of issued and outstanding shares of
common stock of Borrower that would be issued and outstanding on such date
if all options, warrants, and other securities, rights, or instruments that
are convertible into common stock of Borrower are exercised or converted on
such date.
"IMPUTED MULTIPLE" means, as of any date, (a) THE SUM OF (i) Implied
Capital, PLUS (ii) Total Liabilities, in each case as of such date, DIVIDED
BY (b) Adjusted EBITDA for the twelve (12) month period ending on such date
(if such date is the last day of a calendar month) or the last day of the
immediately preceding calendar month (if such date is not the last day of a
calendar month).
"LEVEL I" means such periods as the Total Leverage Ratio is greater
than or equal to 2.5 to 1.0 and (a) from the Closing Date through
December 31, 1998, less than 4.0 to 1.0, and (b) thereafter, less than 3.5
to 1.0.
SECOND AMENDMENT
"TOTAL ASSET VALUE" means, as of any date, (a) if the Imputed Multiple
as of such date is equal to or greater than fifteen (15), then THE PRODUCT
OF (i) twelve (12) and (ii) Adjusted EBITDA for the twelve (12) month
period ending on such date (if such date is the last day of a calendar
month) or the last day of the immediately preceding calendar month (if such
date is not the last day of a calendar month), and (b) if the Imputed
Multiple as of such date is less than fifteen (15), then THE PRODUCT OF
(i) the LESSER of (A) ten (10), and (B) the Imputed Multiple as of such
date, and (ii) Adjusted EBITDA for the twelve (12) month period ending on
such date (if such date is the last day of a calendar month) or the last
day of the immediately preceding calendar month (if such date is not the
last day of a calendar month). For purposes of calculating Total Asset
Value, Adjusted EBITDA for any period shall be computed with respect to
Real Estate Investments, Subsidiaries, or other assets owned as of the date
of determination regardless of whether such Real Estate Investments,
Subsidiaries, or other assets were acquired during such period (subject to
adjustment satisfactory to Administrative Agent for any businesses or
assets not acquired in the relevant acquisition). No Adjusted EBITDA that
is derived from assets that are subject to any Lien (other than Permitted
Encumbrances) shall be reflected in the calculation of Total Asset Value.
(b) SECTION 2.5 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
2.5 USE OF PROCEEDS.
(a) LOANS AND LCS. The proceeds of the Loans shall be applied by
Borrower, and LCs shall be issued for the account of Borrower, for the
purposes described in the Recitals.
(b) MARGIN REGULATIONS. No portion of the proceeds of any Loan under
this Agreement shall be used by any Company in any manner that might cause
the Loans or the application of such proceeds to violate REGULATION G,
REGULATION U, REGULATION T, or REGULATION X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board or to
violate the Exchange Act, in each-case as in effect on the date or dates of
such borrowing and such use of proceeds.
(c) SECTION 6.4(g) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(g) MAXIMUM TOTAL LEVERAGE RATIO. Borrower shall not permit, as of
any date, the Total Leverage Ratio to exceed the ratio set forth opposite
such period below:
-------------------------------------------------------------
Period Ratio
-------------------------------------------------------------
Closing Date through 4.0 to 1.0
December 31, 1998
-------------------------------------------------------------
January 1, 1999 and thereafter 3.5 to 1.0
-------------------------------------------------------------
(d) SECTION 7 is hereby amended to add the following paragraph at the end
thereof:
SECOND AMENDMENT -2-
If, as of the last day of any fiscal quarter of Borrower, the Implied
Multiple is less than fifteen (15) and, as a result, the calculation of
Total Asset Value utilizing a multiple of ten (10) instead of twelve (12)
(as provided in the definition of Total Asset Value) results in Borrower's
failure to comply with SECTIONS 6.4(f), (h), or (i) (a "NON-COMPLIANCE
EVENT"), then until THE EARLIER OF (i) the date that Borrower remedies such
Non-Compliance Event (by reducing its Total Debt, Real Estate Investments,
Non-Facility Debt, as applicable), and (ii) the last day of the next
succeeding fiscal quarter (E.G., if the Non-Compliance Event occurred on
June 30, then the last day of the next succeeding fiscal quarter would be
on September 30 immediately following), then (PROVIDED THAT no other
Potential Default or Event of Default exists) a Potential Default (and not
an Event of Default) shall exist. If any such Non-Compliance Event remains
unremedied as of the last day of such next succeeding fiscal quarter, then
an Event of Default shall immediately exist and Borrower shall have no
additional right or opportunity to remedy such Event of Default.
2. AMENDMENT OF CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS.
(a) All references in the Loan Documents to the Credit Agreement shall
henceforth include references to the Credit Agreement, as modified and amended
by the First Amendment and this Amendment, and as may, from time to time, be
further modified, amended, renewed, extended, restated, and/or increased.
(b) Any and all of the terms and provisions of the Loan Documents are
hereby amended and modified wherever necessary, even though not specifically
addressed herein, so as to conform to the amendments and modifications set forth
herein.
3. RATIFICATIONS. Borrower (a) ratifies and confirms all provisions of
the Loan Documents as amended by this Amendment, (b) ratifies and confirms that
all guaranties, assurances, and Liens granted, conveyed, or assigned to the
Credit Parties under the Loan Documents are not released, reduced, or otherwise
adversely affected by this Amendment and continue to guarantee, assure, and
secure full payment and performance of the present and future Obligation, and
(c) agrees to perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record such additional documents, and certificates as
Administrative Agent may reasonably request in order to create, perfect,
preserve, and protect such guaranties, assurances, and Liens.
4. REPRESENTATIONS. Borrower represents and warrants to the Credit
Parties that as of the date of this Amendment: (a) this Amendment and the other
documents executed in connection therewith (collectively, the "AMENDMENT
DOCUMENTS") have been duly authorized, executed, and delivered by Borrower and
each of the other Companies that are parties to the Amendment Documents; (b) no
action of, or filing with, any Governmental Authority is required to authorize,
or is otherwise required in connection with, the execution, delivery, and
performance by Borrower or the other Companies of the Amendment Documents to
which they are a party; (c) the Loan Documents, as amended by the Amendment
Documents, are valid and binding upon Borrower and the other Companies that are
parties to the Amendment Documents and are enforceable against Borrower and the
other Companies in accordance with their respective terms, except as limited by
Debtor Relief Laws and general principles of equity; (d) the execution,
delivery, and performance by Borrower and the other Companies of the Amendment
Documents to which they are a party do not require the consent of any other
Person and do not and will not constitute a violation of any Governmental
Requirement, order of any Governmental Authority, or material agreements to
which Borrower or any other Company is a party thereto or by which Borrower or
any other Company is bound; (e) all representations and warranties in the Loan
Documents are true and correct in all material respects on and as of the date of
this Amendment, except to the extent that (i) any of them speak to a different
specific date, or
SECOND AMENDMENT -3-
(ii) the facts on which any of them were based have been changed by
transactions contemplated or permitted by the Credit Agreement; and (f) both
before and after giving effect to the Amendment Documents, no Potential
Default or Event of Default exists.
5. CONDITIONS. This Amendment and the other Amendment Documents shall
not be effective unless and until:
(a) the Credit Parties shall have received the Amendment Documents, in
form and substance acceptable to the Credit Parties;
(b) the representations and warranties in this Amendment are true and
correct in all material respects on and as of the date of this Amendment, except
to the extent that (i) any of them speak to a different specific date, or (ii)
the facts on which any of them were based have been changed by transactions
contemplated or permitted by the Credit Agreement; and
(c) both before and after giving effect to this Amendment, no Potential
Default or Event of Default exists.
6. CONTINUED EFFECT. Except to the extent amended hereby or by any
documents executed in connection herewith, all terms, provisions, and conditions
of the Credit Agreement and the other Loan Documents, and all documents executed
in connection therewith, shall continue in full force and effect and shall
remain enforceable and binding in accordance with their respective terms.
7. MISCELLANEOUS. Unless stated otherwise (a) the singular number
includes the plural and VICE VERSA and words of any gender include each other
gender, in each case, as appropriate, (b) headings and captions may not be
construed in interpreting provisions, (c) this Amendment must be construed --
and its performance enforced -- under Texas law, (d) if any part of this
Amendment is for any reason found to be unenforceable, all other portions of it
nevertheless remain enforceable, and (e) this Amendment may be executed in any
number of counterparts with the same effect as if all signatories had signed the
same document, and all of those counterparts must be construed together to
constitute the same document.
8. PARTIES. This Amendment binds and inures to Borrower and the Credit
Parties and their respective successors and permitted assigns.
9. ENTIRETIES. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
AMENDED BY THIS AMENDMENT AND THE OTHER AMENDMENT DOCUMENTS, REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES ABOUT THE SUBJECT MATTER OF THE CREDIT AGREEMENT
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES TO FOLLOW]
SECOND AMENDMENT -4-
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX XXXX COMPANY, NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE
AGENT, BANKERS TRUST COMPANY, AS DOCUMENTATION AGENT,
AND THE LENDERS DEFINED THEREIN
EXECUTED as of the day and year first mentioned.
XXXXXXXX XXXX COMPANY,
a Delaware corporation,
as Borrower
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------
Title: Executive Vice President
-------------------------------
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX XXXX COMPANY, NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY, AS DOCUMENTATION AGENT,
AND THE LENDERS DEFINED THEREIN
NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
--------------------------------
Title: Vice President
-------------------------------
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX XXXX COMPANY, NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY, AS DOCUMENTATION AGENT,
AND THE LENDERS DEFINED THEREIN
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
----------------------------
Title: Senior V.P.
---------------------------
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX XXXX COMPANY, NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY, AS DOCUMENTATION AGENT,
AND THE LENDERS DEFINED THEREIN
MERCANTILE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx, VP
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX XXXX COMPANY, NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY, AS DOCUMENTATION AGENT,
AND THE LENDERS DEFINED THEREIN
BANKBOSTON, N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
--------------------------------
Title: Vice President
-------------------------------
SIGNATURE PAGE TO SECOND AMENDMENT OF
CREDIT AGREEMENT BETWEEN
XXXXXXXX XXXX COMPANY, NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE AGENT,
BANKERS TRUST COMPANY, AS DOCUMENTATION AGENT,
AND THE LENDERS DEFINED THEREIN
SOCIETE GENERALE, SOUTHWEST AGENCY,
as a Lender
By: /s/ Xxxxx Xxxxxxx VP
-------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
To induce the Credit Parties to enter into this Amendment, the undersigned
jointly and severally (a) consent and agree to the Amendment Documents'
execution and delivery, (b) ratify and confirm that all guaranties, assurances,
and Liens granted, conveyed, or assigned to the Credit Parties under the Loan
Documents are not released, diminished, impaired, reduced, or otherwise
adversely affected by the Amendment Documents and continue to guarantee, assure,
and secure the full payment and performance of all present and future Obligation
(except to the extent specifically limited by the terms of such guaranties,
assurances, or Liens), (c) agree to perform such acts and duly authorize,
execute, acknowledge, deliver, file, and record such additional guaranties,
assignments, security agreements, deeds of trust, mortgages, and other
agreements, documents, instruments, and certificates as Administrative Agent may
reasonably deem necessary or appropriate in order to create, perfect, preserve,
and protect those guaranties, assurances, and Liens, and (d) waive notice of
acceptance of this consent and agreement, which consent and agreement binds the
undersigned and their successors and permitted assigns and inures to the Credit
Parties and their respective successors and permitted assigns.
EACH OF THE CORPORATE GUARANTORS/PLEDGORS LISTED ON
SCHEDULE 1 ATTACHED HERETO (OTHER THAN THE CORPORATE
GUARANTORS BELOW)
By: /s/ Xxxxxxx X. Xxx
-------------------------------------------------
Xxxxxxx X. Xxx
Authorized Officer
XXXXXXXX XXXX CENTRAL, LTD.
By: TCCT REAL ESTATE, INC., General Partner
By: /s/ Xxxxxxx X. Xxx
----------------------------------------------
Xxxxxxx X. Xxx
Authorized Officer
XXXXXXXX XXXX DALLAS/FORT WORTH, LTD.
By: TCDFW, INC., General Partner
By: /s/ Xxxxxxx X. Xxx
----------------------------------------------
Xxxxxxx X. Xxx
Authorized Officer
XXXXXXXX XXXX HOUSTON, LTD.
By: XX XXXXXXX, INC., General Partner
SECOND AMENDMENT
By: /s/ Xxxxxxx X. Xxx
----------------------------------------------
Xxxxxxx X. Xxx
Authorized Officer
XXXXXXXX XXXX DALLAS INDUSTRIAL, LTD.
By: TC DALLAS INDUSTRIAL, INC., General Partner
By: /s/ Xxxxxxx X. Xxx
----------------------------------------------
Xxxxxxx X. Xxx
Authorized Officer
SECOND AMENDMENT
TCCT #2, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxxxxxx X. Xxxxxx
Authorized Officer
TCDFW #2, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxxxxxx X. Xxxxxx
Authorized Officer
TCDI #2, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxxxxxx X. Xxxxxx
Authorized Officer
TCH #2, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxxxxxx X. Xxxxxx
Authorized Officer
SECOND AMENDMENT
SCHEDULE 1
TC Atlanta, Inc.
TCCT Real Estate, Inc.
TCCT #2, Inc.
Xxxxxxxx Xxxx Retail Services, Inc.
TC Carolinas, Inc.
TC Chicago, Inc.
TC Denver, Inc.
TCDFW, Inc.
TCDFW #2, Inc.
TC Dallas Industrial, Inc.
TCDI #2, Inc.
XX Xxxxxxx, Inc.
TCH #2, Inc.
TC Tennessee, Inc.
TC MidAtlantic, Inc.
TC Northeast Metro, Inc.
TC New England, Inc.
Xxxxxxxx Xxxx Realty Services, Inc.
TCC Risk Services, Inc.
TC Seattle, Inc.
Xxxxxxxx Xxxx So. Cal., Inc.
Xxxxxxxx Xxxx SE, Inc.
TC St. Louis, Inc.
Xxxxxxxx Xxxx Corporate Services, Inc.
Xxxxxxxx Xxxx Company, a Texas Corporation
Xxxxxxxx Xxxx MW, Inc.
Xxxxxxxx Xxxx NE, Inc.
Xxxxxxxx Xxxx NW, Inc.
Xxxxxxxx Xxxx Central Texas, Ltd.
Xxxxxxxx Xxxx Dallas/Fort Worth, Ltd.
Xxxxxxxx Xxxx Houston, Ltd.
Xxxxxxxx Xxxx Dallas Industrial, Ltd.
SECOND AMENDMENT
