AMENDMENT NO. 4
TO
SECOND AMENDED AND RESTATED
REVOLVING CREDIT LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 ("Amendment") is entered into as of January 12, 2000
among THE XXXXX GROUP, INC., a corporation organized under the laws of the State
of Delaware ("Borrower"), the undersigned financial institutions (collectively,
the "Lenders" and individually a "Lender") and IBJ WHITEHALL BUSINESS CREDIT
CORPORATION ("IBJWBCC") (F/K/A IBJ XXXXXXXX BUSINESS CREDIT CORPORATION), as
successor to IBJ XXXXXXXX BANK & TRUST COMPANY, as agent for Lenders (IBJWBCC,
in such capacity, the "Agent").
BACKGROUND
Borrower, Agent and Lenders are parties to a Second Amended and Restated
Revolving Credit and Security Agreement dated as of February 27,1997 (as the
same has been and may further be amended, restated, supplemented or otherwise
modified from time to time, the "Loan Agreement") pursuant to which Lenders
provided Borrower with certain financial accommodations.
Borrower has concurrently herewith purchased from Creative Expressions
Group, Inc. ("CEG"), an affiliate of Borrower, certain inventory (the "CEG
Inventory") for an aggregate purchase price of $5,000,000 payable by Borrower's
accepting title to the CEG Inventory subject to the lien created pursuant to the
CEG Loan Agreement (as defined in the Commitment Transfer Supplement as
hereinafter defined) and by Borrower's assuming payment of the obligations
secured thereby in the aggregate amount of $5,000,000.
Lenders have currently herewith purchased all right, title and interest of
the Transferor Lenders (as defined in the Commitment Transfer Supplement) in and
to the CEG Loan Agreement. Borrower has requested that Agent and Lenders amend
the Loan Agreement to reflect the $5,000,000 of revolving credit loans which are
simultaneously being transferred to and purchased by Lenders pursuant to the
terms and conditions of the Commitment Transfer Supplement in the form attached
hereto as Exhibit A (the "Commitment Transfer Supplement") and assumed by
Borrower pursuant to the terms and conditions of an Assignment and Assumption
Agreement in the form attached hereto as Exhibit B (the "Assumption Agreement")
and Agent and Lenders are willing to do so on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore or hereafter made to or for the account of Borrower by Agent or
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 3 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 of the Loan Agreement is hereby amended as follows:
(i) the defined terms "Maximum Revolving Advance Amount" and "Maximum
Revolving Loan Commitment" are hereby amended in their entirety to provide
as follows:
"Maximum Revolving Advance Amount" shall mean (a) $50,000,000 plus (b)
$5,000,000 (which reflects the amount of the Assumed Indebtedness), as
reduced in accordance with Section 2.12 hereof.
"Maximum Revolving Loan Commitment" of any Lender shall mean the
Commitment Percentage of such Lender multiplied by the Maximum
Revolving Advance Amount.
(ii) the following defined terms are hereby added in their appropriate
alphabetical order:
"Amendment No. 4" shall mean Amendment No. 4 to this Agreement dated
as of January 12, 2000 by and among Borrower, Lenders and Agent.
"Amendment No. 4 Effective Date" shall mean the date upon which
Amendment No. 4 becomes effective.
"Assumed Indebtedness" shall mean the $5,000,000 of revolving credit
loans of CEG which were assumed by Borrower on the Amendment No. 4
Effective Date pursuant to the terms of Assignment and Assumption
Agreement attached to Amendment No. 4 as Exhibit B and with respect to
such revolving credit loans all rights attendant thereto were
simultaneously transferred by the lenders of CEG to Lenders pursuant
to the terms and conditions of the Commitment Transfer Supplement
attached to Amendment No. 4 as Exhibit A.
(b) A new subsection 2.6(d) is hereby added immediately following
subsection 2.6(c):
"(d) the Assumed Indebtedness shall be deemed to be the last Revolving
Advances repaid by Borrower under this Agreement."
(c) Section 7.11 is hereby amended in its entirety to provide as follows:
"7.11 Leases Enter as lessee into any lease arrangement for real or
personal property (unless capitalized and permitted under Section 7.6
hereof) if after giving effect thereto, aggregate annual rental
payments for all leased property would exceed $5,000,000 in any one
fiscal year."
(d) Schedules 1.2, 4.5, 5.2, 5.8(b), 5.8(d), 5.9 and 5.14 of the Loan
Agreement are hereby amended in their entirety by Schedules 1.2, 4.5, 5.2,
5.8(b), 5.8(d), 5.9 and 5.14 hereto.
3. Conditions of Effectiveness. This Amendment shall become effective on
January 12, 2000 (the "Effective Date") upon satisfaction of the following
conditions precedent:
(i) Agent shall have received four (4) copies of this Amendment
executed by Lenders, Borrower and consented and agreed to by Xxxxxx Xxxxxx
as guarantor,
(ii) Agent shall have received amended and restated Notes in favor of
each Lender duly executed and delivered by an authorized officer of
Borrower;
(iii) Each document (including, without limitation, any Uniform
Commercial Code financing statement) required by this Amendment, any
related agreement or under law or reasonably requested by the Agent to be
filed, registered or recorded in order to create, in favor of Agent, a
perfected security interest in or lien upon the Collateral shall have been
properly filed, registered or recorded in each jurisdiction in which the
filing, registration or recordation thereof is so required or requested,
and Agent shall have received an acknowledgment copy, or other evidence
satisfactory to it, of each such filing, registration or recordation and
satisfactory evidence of the payment of any necessary fee, tax or expense
relating thereto;
(iv) Agent shall have received a copy of the resolutions, in form and
substance reasonably satisfactory to Agent, of the Board of Directors of
Borrower authorizing (i) the execution, delivery and performance of this
Amendment certified by the Secretary or an Assistant Secretary of Borrower
as of the Effective Date; and, such certificate shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate;
(v) Agent shall have received a certificate of the Secretary or an
Assistant Secretary of Borrower, dated the Effective Date, as to the
incumbency and signature of the officers of Borrower executing this
Agreement, any certificate or other documents to be delivered by it
pursuant hereto, together with evidence of the incumbency of such Secretary
or Assistant Secretary;
(vi) Agent shall have received executed copies of the Commitment
Transfer Supplement, the Assumption Agreement and all the other documents
set forth on Exhibit C hereto (the "Other Documents"), each in form and
substance satisfactory to Agent.
(vii) Agent shall have received, in form and substance satisfactory to
Agent, loss payable endorsements on Agent's standard form of loss payee
endorsement naming Agent as
loss payee on each insurance policy of Borrower, and together with
endorsements naming Agent as a co-insured on each such policy;
(viii) Agent shall have received any and all Consents necessary to
permit the effectuation of the transactions contemplated by this Agreement,
the Commitment Transfer Supplement, the Assumption Agreement and the Other
Documents; and, Agent shall have received such Consents and waivers of such
third parties as might assert claims with respect to the Collateral, as
Agent and its counsel shall deem necessary;
(ix) Agent shall have received a fully executed copy of the opinion of
Xxxxxx Xxxxxxxx, Esq., which shall be in form and substance satisfactory to
Agent;
(x) Agent shall have received landlord, mortgagee or warehouseman
agreements satisfactory to Agent with respect to all premises leased by
Borrower at which Inventory is located; and
(xi) Agent shall have received such other certificates, instruments,
documents, agreements and opinions of counsel as may be required by Agent
or its counsel, each of which shall be in form and substance satisfactory
to Agent and its counsel.
4. Representations and Warranties.Borrower hereby represents and warrants
as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrower and are
enforceable against Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all
such covenants, representations and warranties shall be deemed to have been
remade as of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or
would exist after giving effect to this Amendment.
(d) Borrower has no defense, counterclaim or offset with respect to
the Loan Agreement.
5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy of Agent or any
Lender, nor constitute a waiver of any provision of the Loan Agreement, or
any other documents, instruments or agreements executed and/or delivered
under or in connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
8. Counterparts. This Amendment may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of
which taken together shall constitute one and the same agreement. Any signature
delivered by telecopy shall be deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first written above.
THE XXXXX GROUP, INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
IBJ WHITEHALL BUSINESS CREDIT CORPORATION, as Lender and as Agent
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
NATIONAL CITY COMMERCIAL FINANCE, INC., as Lender
By: /s/
------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as successor to
BTM CAPITAL CORPORATION
(F/K/A BOT FINANCIAL CORPORATION), as Lender
By: /s/ Xxxxxxxx Xxxxxxx-Nurse
--------------------------
Name: Xxxxxxxx Xxxxxxx-Nurse
Title: Vice President
FIRST UNION NATIONAL BANK successor by merger to SIGNET BANK, as Lender
By: /s/
--------------------------
Name:
Title:
CONSENTED AND AGREED TO:
/s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx
Exhibit A
Commitment Transfer Supplement
(Omitted)
Exhibit B
Assumption Agreement
(Omitted)
Exhibit C
Other Documents
None
Schedules
(Omitted)
