SECOND AMENDMENT TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
SECOND AMENDMENT, DATED AS OF AUGUST 25, 1999 (THE "AMENDMENT"), to
the DEBTOR-IN-POSSESSION CREDIT AGREEMENT, dated as of June 1, 1999, among
XXXXXX GROUP INTERNATIONAL, INC., a Delaware corporation (the "COMPANY"), a
debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code, each
of the Company's Subsidiaries listed on the signature pages thereto, each a
debtor and debtor-in-possession under Chapter 11 of the Bankruptcy Code
(collectively and together with the Company, the "BORROWERS"), THE XXXXXX
GROUP INC., a corporation organized under the laws of the Province of British
Columbia, Canada ("TLGI"), FIRST UNION NATIONAL BANK ("FIRST UNION"), each of
the other financial institutions party thereto (together with First Union,
the "LENDERS") and FIRST UNION NATIONAL BANK, as Administrative Agent for the
Lenders (in such capacity, the "AGENT"):
W I T N E S S E T H:
WHEREAS, the Borrowers, TLGI, the Lenders and the Agent are parties
to that certain Debtor-In-Possession Credit Agreement, dated as of June 1,
1999, as amended by the First Amendment to Debtor-In-Possession Credit
Agreement, dated as of July 16, 1999, (as the same may be further amended,
modified or supplemented from time to time, the "CREDIT AGREEMENT"); and
WHEREAS, Section 13.3 of the Credit Agreement provides that each
Lender may assign to one or more Purchasers all or a portion of its
interests, rights and obligations under the Credit Agreement (including,
without limitation, all or a portion of its Commitment and the same portion
of the related Revolving Loans at the time owing to it) by (i) executing and
delivering to the Agent with such Purchaser an Assignment Agreement in
substantially the form of Exhibit D to the Credit Agreement and (ii)
executing and delivering to the Agent a Notice of Assignment substantially in
the form of Exhibit E to the Credit Agreement; and
WHEREAS, First Union wishes to assign to each of the financial
institutions (other than First Union) that is named on Schedule 2.1 hereto
(such financial institutions other than First Union, collectively the "NEW
LENDERS"), and each of the New Lenders wishes to assume, a PRO RATA portion
of First Union's interests, rights and obligations under the Credit
Agreement; and
WHEREAS, the Borrowers, TLGI, First Union, the New Lenders and the
Agent have determined that the execution and delivery of this Amendment to
effectuate a reallocation of the Total Commitment among First Union and the
New Lenders will be more expeditious and administratively efficient than the
execution and delivery of a separate Assignment and Acceptance and a separate
Notice of Assignment between First Union and each of the New Lenders; and
WHEREAS, upon the occurrence of the Effective Date (as hereinafter
defined) of this Amendment, each of the New Lenders shall become a party to
the Credit Agreement as a Lender and shall have the rights and obligations of
a Lender thereunder, the respective Commitments of First Union and each of
the New Lenders under the Credit Agreement shall be in the amount set forth
opposite its name on Schedule 2.1 attached hereto, as the same may be reduced
from time to time pursuant to Section 2.10 of the Credit Agreement; and
WHEREAS, the Borrowers, the Agent and the Lenders desire to make
certain additional modifications to the Credit Agreement.
NOW, THEREFORE, it is agreed:
I. As used herein all terms that are defined in the Credit Agreement
shall have the same meanings herein.
II. Schedule 2.1 to the Credit Agreement is hereby replaced in its
entirety by Schedule 2.1 hereto.
III. The signature pages of the Credit Agreement are hereby amended to
conform to the signature pages hereto.
IV. Section 6.6 of the Credit Agreement is hereby amended by deleting
the year "1988" appearing in the sixth line thereof and inserting in lieu
thereof the year "1998."
V. Section 6.14 of the Credit Agreement is hereby amended by (i)
inserting the symbol "(x)" immediately after the word "encumbering" in the
last sentence thereof, and (ii) inserting the following words immediately
before the word "does" in the last sentence thereof: "and (y) any other
Property of the Borrowers (other than the collateral securing the Fairway
Receivables Facility and the collateral securing the Existing Credit
Agreements, if any)".
VI. By its execution and delivery hereof, First Union shall be deemed to
have made each of the statements set forth in Section 6 of the Assignment
Agreement as if such statements were fully set forth herein at length.
VII. By its execution and delivery hereof, each of the New Lenders shall
be deemed to have made each of the statements set forth in Section 7 of the
Assignment Agreement as if such statements were fully set forth herein at
length.
VIII. On the Effective Date, (i) each New Lender will pay to the Agent
(for the account of First Union) such amount as represents such New Lender's
pro rata portion of the aggregate principal amount of the Revolving Loans, if
any, that are outstanding on the Effective Date and such New Lender's pro
rata portion of the aggregate amount of the then unreimbursed drafts, if any,
that were theretofore drawn under Letters of Credit, and (ii) the Agent shall
pay to each New
Lender such fees as have been previously agreed to between the Agent and such
New Lender. Promptly following the occurrence of the Effective Date, and in
accordance with Section 13.3 of the Credit Agreement, the Agent shall record in
the Register the names and addresses of each New Lender and the principal amount
equal to such Lender's Commitment reflected on Schedule 2.1 hereto.
IX. By its execution and delivery hereof, each of the New Lenders (i)
agrees that any interest and Fees (pursuant to Sections 2.8, 2.10 or 2.19 of
the Credit Agreement) that accrued prior to the Effective Date shall not be
payable to such New Lender and authorizes and directs the Agent to deduct
such amounts from any interest or Fees paid after the date hereof and to pay
such amounts to First Union (it being understood that interest and Fees
respecting the Commitment of First Union and each New Lender which accrue on
or after the Effective Date shall be payable to such Lender in accordance
with its Commitment) and (ii) acknowledges that if such New Lender is
organized under the laws of a jurisdiction outside of the United States, such
New Lender has heretofore furnished to the Agent the forms prescribed by the
Internal Revenue Service of the United States certifying as to such New
Lender's exemption from United States withholding taxes with respect to any
payments to be made to such New Lender under the Credit Agreement (or such
other documents as are necessary to indicate that all such payments are
subject to such tax at a rate reduced by an applicable tax treaty).
X. This Amendment shall not become effective (the "EFFECTIVE DATE")
until (i) the date on which this Amendment shall have been executed by the
Borrowers, TLGI, First Union, the New Lenders and the Agent, and the Agent
shall have received evidence satisfactory to it of such execution and (ii)
the payments provided for in clause (i) of paragraph 7 hereof shall have been
made.
XI. The Borrowers agree that their obligations set forth in Section 10.7
of the Credit Agreement shall extend to the preparation, execution and
delivery of this Amendment.
XII. This Amendment shall be limited precisely as written and shall not
be deemed (a) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any
of the instruments or agreements referred to therein or (b) to prejudice any
right or rights which the Agent or the Lenders may now have or have in the
future under or in connection with the Credit Agreement or any of the
instruments or agreements referred to therein. Whenever the Credit Agreement
is referred to in the Credit Agreement or any of the instruments, agreements
or other documents or papers executed or delivered in connection therewith,
such reference shall be deemed to mean the Credit Agreement as modified by
this Amendment.
XIII. This Amendment may be executed in any number of counterparts and by
the different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same instrument.
XIV. This Amendment shall in all respects be construed in accordance with
and
governed by the laws of the State of New York applicable to contracts made and
to be performed wholly within such State.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed as of the day and the year first above written.
XXXXXX GROUP INTERNATIONAL, INC.
By: _______________________________
Name:
Title:
EACH OF THE ENTITIES LISTED ON
SCHEDULE A TO THE CREDIT AGREEMENT
By: _______________________________
on behalf of each of the
entities listed on
Schedule A to the Credit
Agreement
Name:
Title:
THE XXXXXX GROUP INC.
By:_________________________________
Name:
Title:
FIRST UNION NATIONAL BANK,
INDIVIDUALLY AND AS AGENT
By: _________________________
Name:
Title:
NEW LENDERS:
BANK OF SCOTLAND
By: _________________________
Name:
Title:
CIT GROUP
By: _________________________
Name:
Title:
BANKERS LIFE & CASUALTY CO.
By: Conseco Capital Management,
as investment advisor
By: _________________________
Name:
Title:
CREDIT AGRICOLE INDOSUEZ
By: _________________________
Name:
Title:
FOOTHILL CAPITAL CORPORATION
By: _________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _________________________
Name:
Title:
GMAC BUSINESS CREDIT
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
PPM FINANCE, INC.
By: _________________________
Name:
Title:
GREEN TREE FINANCIAL SERVICING CORP.
By: _________________________
Name:
Title:
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: _________________________
Name:
Title:
BARCLAYS BANK PLC
By: _________________________
Name:
Title:
COAST BUSINESS CREDIT
By: _________________________
Name:
Title:
SOVEREIGN BANK
By: _________________________
Name:
Title:
SCHEDULE 2.1
TO
DEBTOR-IN-POSSESSION CREDIT AGREEMENT
COMMITMENT COMMITMENT
LENDER AMOUNT PERCENTAGE
------ ------ ----------
First Union National Bank $27,500,000 13.75%
000 Xxxxx Xxxxxxx Xxxxxx XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
CIT Group/Business Credit, Inc. $20,000,000 10.00%
00 X. XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Foothill Capital Corporation $25,000,000 12.50%
00000 Xxxxx Xxxxxx Xxxx., #0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
GMAC Business Credit $20,000,000 10.00%
000 Xxxxxxxx Xxxxxxxxxx, Xxx. 000
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
PPM Finance Inc. $15,000,000 7.50%
000 Xxxx Xxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
COMMITMENT COMMITMENT
LENDER AMOUNT PERCENTAGE
------ ------ ----------
Xxxxxxx Xxxxx Credit Partners L.P. $15,000,000 7.50%
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Coast Business Credit $10,000,000 5.00%
00000 Xxxxxxxx Xxxx., Xxx. 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Green Tree Financial Servicing Corp. $10,000,000 5.00%
000 Xxxxx Xxxxx Xxxxxx Xxxx, Xxx. 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Bank of Scotland $10,000,000 5.00%
000 Xxxxx Xxxxxx Xxxxx, Xxx. 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Sovereign Bank $10,000,000 5.00%
Two Xxxxxx Xxxxxx
Xxxxx 000 & Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, SVP
Tel: 000-000-0000
Fax: 000-000-0000
COMMITMENT COMMITMENT
LENDER AMOUNT PERCENTAGE
------ ------ ----------
Mellon Bank, N. A. $7,500,000 3.75%
Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxx
Tel: 000-000-0000
Fax: 000-000-0000
Conseco Capital Management $7,500,000 3.75%
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Barclays Bank PLC $7,500,000 3.75%
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxx X. Xxxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
Credit Agricole Indosuez $7,500,000 3.75%
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
GE Capital - Commercial Finance $7,500,000 3.75%
00 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
TOTAL: $200,000,000 100%
