FIRST AMENDMENT OF CREDIT AGREEMENT
THIS FIRST AMENDMENT OF CREDIT AGREEMENT (this "AMENDMENT") is entered
into to be effective as of January 29, 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 renewed,
extended, modified, and amended 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, Administrative Agent, Documentation Agent, and Lenders
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) The definition of "LIQUID ASSETS" in SECTION 1 of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
"LIQUID ASSETS" means, as of any date, THE SUM OF (a) the
Companies' Cash and Cash Equivalents and (b) the lesser of (i) the
Unused Commitment as of such date, and (ii) the maximum amount of
Loans that Borrower could, subject to the conditions precedent set
forth herein, receive on such date from Lenders.
(b) SECTION 2.3(b)(ii) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(ii) Borrower shall pay to Administrative Agent, for the ratable
account of Lenders, a quarterly unused fee (prorated for partial
quarters) equal to THE SUM OF the amounts obtained by multiplying the
average Unused Commitment TIMES one-quarter of one percent (0.25%).
Such commitment fee shall accrue commencing on March 1, 1998, and
shall be due and payable on the last day of each March, June,
September, and December during the term hereof, commencing on
March 31, 1998, and on the Maturity Date, based upon the Unused
Commitment for each day during the quarter ending on such date.
Solely for purposes of this SECTION 2.3(b)(ii), "RATABLE" means, for
any calculation period, with respect to any Lender, the proportion
that (A) the average daily Unused Commitment of such
FIRST AMENDMENT
Lender during such period bears to (B) the aggregate amount of the
average daily Unused Commitment of all Lenders during such period.
(c) SECTION 7 of the Credit Agreement is hereby deleted in its entirety
and replaced with the following:
SECTION 7
EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT")
shall occur:
7.1 FAILURE TO MAKE PAYMENT. Failure by Borrower to pay any
installment of, or principal of, any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory
prepayment, or otherwise; or failure by Borrower to pay any interest on any
Loan or any fee or any other amount due under this Agreement within five
(5) days after the date due; or
7.2 DEFAULT IN OTHER AGREEMENTS.
(a) Failure of Borrower or any Significant Subsidiary to pay when due
(i) any principal of or interest on any Indebtedness (other than the
Obligations), or (ii) any Contingent Obligation in an individual principal
amount of $5,000,000 or more or any Contingent Obligations in an aggregate
principal amount of $10,000,000 or more, in each case beyond the end of any
grace period provided therefor; or
(b) Breach or default by Borrower or any Significant Subsidiary
beyond the end of any grace period provided therefor with respect to any
other material term of (i) any evidence of any Indebtedness or any
Contingent Obligation in an individual principal amount of $5,000,000 or
more or any Contingent Obligations in an aggregate principal amount of
$10,000,000 or more, or (ii) any loan agreement, mortgage, indenture, or
other agreement relating to such Indebtedness or Contingent Obligations, if
the effect of such breach or default is to cause, or to permit the holder
or holders of such Indebtedness or Contingent Obligations (or a trustee on
behalf of such holder or holders) to cause, such Indebtedness or Contingent
Obligations to become or be declared due and payable prior to its stated
maturity or the stated maturity of any underlying obligation, as the case
may be (upon the giving or receiving of notice, lapse of time, both, or
otherwise); or
7.3 BREACH OF CERTAIN COVENANTS. Failure of any Company to perform
or comply with any term or condition contained in SECTIONS 2.5, 5.1, or 5.2
or SECTION 6; or
7.4 BREACH OF WARRANTY. Any representation, warranty, certification,
or other statement made by any Company in any Loan Document or in any
statement or certificate at any time given by any Company in writing
pursuant hereto or thereto or in connection herewith or therewith shall be
false in any material respect on the date as of which made; or
7.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS. Any Company shall default
in the performance of or compliance with any term contained in this
Agreement or any of the other Loan
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Documents, other than any such term referred to in any other section of
this SECTION 7 and such default shall not have been remedied or waived
within thirty (30) days after the earlier of an officer of Borrower
becoming aware of such default, or receipt by Borrower of notice from
Administrative Agent or any Lender of such default; or
7.6 INVOLUNTARY BANKRUPTCY, APPOINTMENT OF RECEIVER, ETC.
(a) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Borrower or any Significant Subsidiary in
an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency, or similar law now or hereafter in effect, which
decree or order is not stayed; or any other similar relief shall be granted
under any applicable Legal Requirement; or
(b) An involuntary case shall be commenced against Borrower or any
Significant Subsidiary under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency, or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises
for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian, or other officer having similar powers over Borrower or any
Significant Subsidiary, or over all or a substantial part of its property,
shall have been entered; or there shall have occurred the involuntary
appointment of an interim receiver, trustee, or other custodian of Borrower
or any Significant Subsidiary for all or a substantial part of its
property; or a warrant of attachment, execution, or similar process shall
have been issued against any substantial part of the property of Borrower
or any Significant Subsidiary, and any such event described in this CLAUSE
(b) shall continue for sixty (60) days unless dismissed, bonded, or
discharged; or
7.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(a) Borrower or any Significant Subsidiary shall have an order for
relief entered with respect to it or commence a voluntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency, or
similar law now or hereafter in effect, or shall consent to the entry of an
order for relief in an involuntary case, or to the conversion of an
involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee, or other
custodian for all or a substantial part of its property; or Borrower or any
Significant Subsidiary shall make any assignment for the benefit of
creditors; or
(b) Borrower or any Significant Subsidiary shall be unable, or shall
fail generally, or shall admit in writing its inability, to pay its debts
as such debts become due; or the Board of Directors of Borrower or any
Significant Subsidiary (or any committee) thereof shall adopt any
resolution or otherwise authorize any action to approve any of the actions
referred to in CLAUSE (a) above or this CLAUSE (b); or
7.8 JUDGMENTS AND ATTACHMENTS. Any money judgment, writ or warrant
of attachment, or similar process involving in any individual case an
amount in excess of $250,000, or in the aggregate at any time an amount in
excess of $500,000 (in either case not adequately covered by insurance as
to which a solvent and unaffiliated insurance company has acknowledged
coverage) shall be entered or filed against Borrower or any Significant
Subsidiary or any of its or their respective assets and shall remain
undischarged, unvacated, unbonded, or unstayed for a period
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of sixty (60) days (or in any event later than five (5) days prior to the
date of any proposed sale thereunder); or
7.9 DISSOLUTION. Any order, judgment, or decree shall be entered
against Borrower or any Significant Subsidiary decreeing the dissolution or
split up of Borrower or such Significant Subsidiary and such order shall
remain undischarged or unstayed for a period in excess of thirty (30) days;
or
7.10 EMPLOYEE BENEFIT PLANS. There shall occur one or more ERISA
Events which individually or in the aggregate results in or might
reasonably be expected to result in liability of Borrower or any of its
ERISA Affiliates in excess of $1,000,000 during the term of this Agreement;
or there shall exist an amount of unfunded benefit liabilities (as defined
in SECTION 4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any Pension Plans
with respect to which assets exceed benefit liabilities), which exceeds
$1,000,000; or
7.11 CHANGE IN CONTROL. A Change of Control shall have occurred; or
7.12 INVALIDITY OF GUARANTY. Any Guaranty of this Agreement for any
reason, other than the satisfaction in full of all Obligations, is declared
by a court of competent jurisdiction to be null and void, or any Subsidiary
of Borrower denies that it has any further liability, including without
limitation with respect to future advances by Lenders, under its Guaranty
or gives notice to such effect; or
7.13 FAILURE OF SECURITY. From and after the execution,
acknowledgment, and filing of any Collateral Document by any Obligor, any
such Collateral Document shall be revoked by such Obligor or shall be
declared by a court of competent jurisdiction to be null and void or shall
cease to be in full force and effect as a result of any change in any Legal
Requirement; or Lenders shall fail to have a valid, perfected, and
enforceable first priority Lien (subject to Permitted Encumbrances) on any
Obligor's right, title, and interest in all the Collateral as a result of
any change in any Legal Requirements, the expiration of any required
filings or recordations with respect to the Collateral Documents, the
declaration by a court of competent jurisdiction that such Lien is null and
void, or the imposition of any priming Lien under applicable Legal
Requirement; or any Obligor shall contest in any manner that such
Collateral Document constitutes its valid and enforceable agreement or
shall assert in any manner that it has no further obligation or liability
under such Collateral Documents; or
7.14 CHANGE IN BOARD OF DIRECTORS. During any period of twelve (12)
consecutive calendar months, Continuing Directors shall cease to constitute
a majority of the Board of Directors of Borrower;
THEN (a) upon the occurrence of any Event of Default described in SECTION 7.6 or
7.7, each of (i) the unpaid principal amount of and accrued interest on the
Loans, and (ii) all other Obligations shall automatically become immediately due
and payable, without presentment, demand, protest, notice of acceleration,
notice of intention to accelerate, or other requirements of any kind, all of
which are hereby expressly waived by Borrower, and the obligation of each Lender
to make any Loan, shall thereupon terminate, and (b) upon the occurrence and
during the continuation of any other Event of Default, Administrative Agent
shall, upon the
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written request or with the written consent of Requisite Lenders, by written
notice to Borrower, declare all or any portion of the amounts described in
CLAUSES (i) and (ii) above to be, and the same shall forthwith become,
immediately due and payable, and the obligation of each Lender to make any
Loan, thereupon shall terminate.
(d) SECTION 9.5(a) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
(a) No amendment, modification, termination, or waiver of any
provision of this Agreement, the Notes, or the other Loan Documents, and no
consent to any departure by Borrower therefrom, shall in any event be
effective without the written concurrence of Requisite Lenders; PROVIDED
THAT any such amendment, modification, termination, waiver, or consent
which does any of the following shall not be effective unless evidenced by
a writing signed by or on behalf of all Lenders: (i) increases the amount
of any of the Commitments or reduces the principal amount of any of the
Loans; (ii) changes in any manner the definition of "PRO RATA SHARE" or the
definition of "REQUISITE LENDERS;" (iii) changes in any manner any
provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of all Lenders; (iv) postpones the scheduled final
maturity date of any of the Loans; (v) changes the rate or amount of any
interest or fees payable hereunder; (vi) increases the maximum duration of
Interest Periods permitted hereunder; (vii) changes in any manner the
provisions contained in SECTION 7.1 or this SECTION 9.5; or (viii) releases
any Collateral.
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 this Amendment, and as may, from time to time, be further amended, modified,
restated, extended, renewed, 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 those 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
FIRST AMENDMENT -5-
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 to which they are a party of the Amendment Documents 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 (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. 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.
FIRST AMENDMENT -6-
9. PARTIES. This Amendment binds and inures to Borrower and the Credit
Parties and their respective successors and permitted assigns.
SIGNATURE PAGE TO FIRST 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 X. Xxx
------------------------------
Name: Xxxxxxx X. Xxx
-------------------------
Title: Vice President
------------------------
-7-
SIGNATURE PAGE TO FIRST 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/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
----------------------------
Title: SVP
---------------------------
SIGNATURE PAGE TO FIRST 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
BANKERS TRUST COMPANY,
as Documentation Agent and a Lender
By: /s/ Alexander B.V. Xxxxxxx
---------------------------------
Name: Alexander B.V. Xxxxxxx
----------------------------
Title: Managing Director
---------------------------
SIGNATURE PAGE TO FIRST 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.
---------------------------
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
FIRST 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
FIRST 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
FIRST 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.
FIRST AMENDMENT
