EXHIBIT 10.1
SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of January 22,
2003, among XXXXXXX COMPANIES, INC., the lenders party to the Credit Agreement
referred to below (the "Lenders"), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Administrative Agent. All capitalized terms used herein and not otherwise
defined herein shall have the respective meanings provided such terms in the
Credit Agreement referred to below.
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to a Credit Agreement, dated as of June 18, 2002 (as amended,
modified and supplemented to, but not including the date hereof, the "Credit
Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
on the terms and subject to the conditions contained herein;
NOW, THEREFORE, it is agreed:
1. The definition of "Applicable Rate" in Section 1.01 of the
Credit Agreement is hereby amended by inserting the following new text at the
end thereof:
"; PROVIDED FURTHER that during the period commencing on the
Second Amendment Effective Date to and ending on the last day of the Borrower's
fiscal quarter ending closest to March 31, 2003, the respective percentages in
each column in the table above and the Applicable Rates applicable to B Term
Loans as provided above shall be increased by 0.50%".
2. The definition of "Maximum Notes Prepayment Amount" in
Section 1.01 of the Credit Agreement is hereby amended by inserting the
following sentence at the end thereof:
"Notwithstanding anything contained above, at all times during
the period from the Second Amendment Effective Date to and including the last
day of the Borrower's fiscal quarter ending closest to March 31, 2003, Maximum
Notes Prepayment Amount shall instead mean $0."
3. Section 1.01 of the Credit Agreement is hereby further
amended by inserting the following definitions in such Section in their proper
alphabetical order:
"ADJUSTED ASSET COVERAGE RATIO" means, at any time, the ratio
of (i) (x) the consolidated net trade accounts receivable (net of allowances for
doubtful accounts) of the Borrower and the Guarantors plus (y) the consolidated
net inventory of the Borrower and the Guarantors at such time (valued on a
First-in First-out (FIFO) basis), in each case only to the extent the Collateral
Agent has a first priority perfected security interest therein (subject to no
other Lien other than any statutory Lien on such inventory permitted pursuant to
Section 6.01(h), but only if such Lien would not affect in any material respect
the value of such inventory or the ability of the Collateral Agent to exercise
its rights against such inventory pursuant to the
Security Agreement), to (ii) the sum of (x) the aggregate amount of all
principal of Loans outstanding at such time plus (y) the total LC Exposure at
such time. Notwithstanding anything to the contrary contained in this
definition, for the purposes of making determinations of the Adjusted Asset
Coverage Ratio at any time, the Collateral Agent shall not be considered to have
a first priority perfected security interest in any Inventory of the Borrower or
any Guarantor which is located on real property (i) that the Borrower or the
respective Guarantor leases (other than pursuant to an acquired or assumed
lease) from a Person (other than the Borrower or any of its Subsidiaries)
pursuant to a lease entered into after the Effective Date unless the lessor of
such real property has executed and delivered to the Collateral Agent a
Landlord-Lender Agreement or (ii) owned by the Borrower or one of its
Subsidiaries that is subject to a mortgage (other than an acquired or assumed
mortgage) entered into after the Effective Date in favor of a Person (other than
the Borrower or any Subsidiary thereof) unless the mortgagee in respect thereof
shall have executed and delivered to the Collateral Agent a Mortgagee Agreement.
"SECOND AMENDMENT EFFECTIVE DATE" means the date upon which
the Second Amendment to this Agreement, dated January 22, 2003 becomes
effective.
4. Section 2.09(c) is hereby amended by deleting the second
sentence of such Section and inserting the following new sentence in lieu
thereof:
"In addition, upon the Second Amendment Effective Date, the
Revolving Commitments shall be permanently reduced to $475,000,000."
5. Section 5.01 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (j) thereof, (ii)
redesignating clause (k) thereof as clause (l) and (iii) inserting the following
new clause (k) immediately following clause (j) thereof:
"(k) within 10 Business Days after the last day of each fiscal
month of the Borrower, a certificate of a Financial Officer setting forth in
reasonable detail the calculations required to establish whether the Borrower
was in compliance with the requirements of Sections 6.11 and 6.18 on the last
day of such fiscal month; and"
6. Section 6.08(a) of the Credit Agreement is hereby amended
by inserting the following new text at the end thereof:
", PROVIDED that, notwithstanding anything contained above in
this clause (a), the aggregate amount of Capital Expenditures permitted to be
made by the Borrower and its Subsidiaries during the period from the last day of
the Borrower's fiscal quarter ending closest to December 31, 2002 to, but not
including, the last day of the Borrower's fiscal quarter ending closest to March
31, 2003 shall be $50,000,000".
7. Section 6.10 of the Credit Agreement is hereby amended by
(i) deleting the date "September 30, 2002" appearing in the table set forth in
such Section and inserting the date "December 31, 2002" in lieu thereof and (ii)
deleting the ratio "4.75:1.00" appearing in such table and inserting the ratio
"5.00:1.00" in lieu thereof.
8. Section 6.18 is hereby added as follows:
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"SECTION 6.18 ADJUSTED ASSET COVERAGE RATIO. The Borrower will
not permit the Adjusted Asset Coverage Ratio to be less than 2.50:1.00 at any
time during the period from the Second Amendment Effective Date to and
including, the last day of the Borrower's fiscal quarter ending closest to March
31, 2003."
9. In order to induce the Lenders to enter into this
Amendment, the Borrower hereby represents and warrants that (x) no Default or
Event of Default exists on the Second Amendment Effective Date (as defined
below), after giving effect to this Amendment, and (y) all of the
representations and warranties contained in the Credit Agreement and in the
other Loan Documents shall be true and correct in all material respects on the
date hereof, both before and after giving effect to this Amendment, with the
same effect as though such representations and warranties had been made on and
as of such date.
10. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Loan Document.
11. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
12. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
13. This Amendment shall become effective on the date (the
"Second Amendment Effective Date") when (i) the Borrower and the Required
Lenders shall have signed a counterpart hereof and shall have delivered
(including by way of telecopier) the same to the Administrative Agent at the
address provided in Section 9.01(b) of the Credit Agreement by 2:00 p.m. (New
York City time) on January 22, 2003 and (ii) the Borrower shall have paid to the
Administrative Agent for distribution to each Lender who has delivered an
executed counterpart hereof by 2:00 p.m. (New York City time) on January 22,
2003 as provided in clause (i) above a non-refundable cash fee in an amount
equal to 12.5 basis points (0.125%) of an amount equal to the sum of the
outstanding principal amount of Term Loans of such Lender and the Revolving
Commitment of such Lender, in each case as same is in effect on the Second
Amendment Effective Date (after giving effect to the reduction to the Revolving
Commitments pursuant to this Amendment).
14. From and after the Second Amendment Effective Date, all
references in the Credit Agreement and each of the other Loan Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
XXXXXXX COMPANIES, INC.
By /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Senior Vice President,
Finance and Operations
Control
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Individually and as Administrative
Agent
By /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
FORTIS CAPITAL CORP.
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
FORTIS CAPITAL CORP.
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
MIZUHO CORPORATE BANK, LTD.
By /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory
Corp.
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Investment Advisory
Corp., as Collateral Manager
By /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Executive Director
KZH CNC LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
KZH CYPRESSTREE-1 LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
KZH ING-2 LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
KZH SOLEIL LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
KZH SOLEIL-2 LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
KZH STERLING LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
KZH WATERSIDE LLC
By /s/ Xxxxxxx Arrobino
-----------------------------------
Name: Xxxxxxx Arrobino
Title: Authorized Agent
XXXXXX XXXXXXX PRIME INCOME TRUST
By /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
MUIRFIELD TRADING LLC
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Asst. Vice President
OLYMPIC FUNDING TRUST, SERIES 1999-1
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
HARBOUR TOWN FUNDING LLC
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Asst. Vice President
WINGED FOOT FUNDING TRUST
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
JUPITER LOAN FUNDING LLC
By /s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Asst. Vice President
DENALI CAPITAL LLC, managing member of
DC Funding Partners, portfolio
manager for DENALI CAPITAL CLO I,
LTD., or an affiliate
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
DENALI CAPITAL LLC, managing member of
DC Funding Partners, portfolio
manager for DENALI CAPITAL CLO II,
LTD., or an affiliate
By /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Credit Officer
AMERICAN EXPRESS CERTIFICATE COMPANY
By: American Express Asset Management
Group, Inc., as Collateral Manager
By /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing
Director
IGB LIFE INSURANCE COMPANY
By: American Express Asset Management
Group, Inc., as Collateral
Manager
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Managing
Director
CENTURION C94 VI, LTD.
By: American Express Asset Management
Group, Inc., as Collateral
Manager
By /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
SEQUILS - CENTURION V, LTD.
By: American Express Asset Management
Group, Inc., as Collateral
Manager
By /s/ Xxxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director - Operations
SEQUILS - GLACE BAY, LTD.
By: Royal Bank of Canada, as
Collateral Manager
By /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
BLACK DIAMOND INTERNATIONAL FUNDING,
LTD.
By /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
COMERICA BANK
By /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: First Vice President
SANKATY ADVISORS, LLC, as Collateral
Manager for Castle Hill
II - INGOTS, Ltd., as Term Lender
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
SANKATY ADVISORS, LLC, as Collateral
Manager for Great Point
CLO 1999-1 LTD., as Term Lender
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
SANKATY ADVISORS, LLC, as Collateral
Manager for Race Point
CLO, Limited, as Term Lender
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
SANKATY HIGH YIELD PARTNERS III, L.P.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
HARCH CLO I, LTD.
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
APEX (TRIMARAN) CDO I, LTD.
By: Trimaran Advisors, L.L.C.
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
XXXXXXXXX CARRERA CLO, LTD.
By: Xxxxxxxxx Capital Partners LLC,
as its Asset Manager
By /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Partner
BANK OF AMERICA, N.A.
By /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
