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FIRST AMENDMENT TO AMENDED AND
RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"First Amendment") dated as of August 7, 1998 by and among XXXX INDUSTRIES,
INC., a corporation organized under the laws of the State of Georgia (the
"Borrower"), the Lenders appearing on the signature pages hereof (the
"Lenders"), NATIONSBANK, N.A., as Issuing Bank and Administrative Agent and
SUNTRUST BANK, ATLANTA, as Documentation Agent.
WHEREAS, the Borrower, the Lenders, the Issuing Bank and the Agents
entered into that certain Amended and Restated Credit Agreement dated as of
March 16, 1998 (the "Credit Agreement"), pursuant to which the Lenders made
certain financial accommodations available to the Borrower;
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated
as of June 23, 1998 (the "Merger Agreement") among The Maxim Group, Inc.
("Maxim"), CMAX Acquisition, Inc., the Borrower and Xxxx Carpet Showplace, Inc.
(the "Guarantor"), the Borrower will, among other things, sell all of its
interest in and to the Guarantor to Maxim on the terms and conditions therein;
WHEREAS, in connection with the Merger Agreement the Borrower has
requested that (a) the Lenders, the Issuing Bank and the Agents release the
Guarantor from its obligations under its Guaranty and (b) amend the Credit
Agreement so as to permit certain of the transactions contemplated by the
Merger Agreement, all on the terms and conditions set forth herein; and
WHEREAS, the Lenders, the Issuing Bank and the Agents are willing to
so amend the Credit Agreement and release the Guarantor on the terms and
conditions set forth herein.
NOW, THEREFORE, for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties, the parties
hereto agree as follows:
SECTION 1. SPECIFIC AMENDMENT TO CREDIT AGREEMENT. The Credit
Agreement is hereby amended deleting the "." at the end of Section 10.3 and
substituting in lieu thereof the following new clause (ix):
"; and
(ix) Investments in The Maxim Group, Inc. ("Maxim") in the
form of: (A) 3,150,000 shares of common stock of Maxim and
(B) a certain Subordinated Promissory Note in the principal
amount of $18,048,000 executed by Maxim in favor of the
Borrower."
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SECTION 2. RELEASE OF GUARANTOR. Upon the effectiveness of this
First Amendment, the Lenders, the Issuing Bank and the Agents hereby release
the Guarantor from its obligations under the Guaranty to which it is a party
and acknowledge and agree that the Guarantor shall no longer be a "Guarantor"
under and as defined in the Credit Agreement.
SECTION 3. AFFILIATE TRANSACTION. The Lenders, the Issuing Bank and
the Agents further acknowledge and agree that the transactions contemplated by
the Merger Agreement shall not contravene or violate Section 10.8 of the Credit
Agreement.
SECTION 4. EFFECTIVENESS OF AMENDMENT. This First Amendment, and
the amendments and releases effected hereby, shall be effective only upon the
satisfaction of each of the following conditions precedent to effectiveness:
(a) this First Amendment shall be executed and delivered by the
Borrower, the Issuing Bank, the Agents and the Requisite Lenders;
(b) the "Merger" under and as defined in the Merger Agreement
shall have been consummated in accordance with the terms and conditions
thereof;
(c) a Reaffirmation of Guaranty shall have been duly executed and
delivered by Xxxx Contract Flooring Services, Inc.; and
(d) the Administrative Agent shall have received a certificate
dated the date hereof from the Senior Vice President of Finance or the
Treasurer of the Borrower certifying that, after giving effect to the amendment
contemplated hereby, no Default or Event of Default under the Credit Agreement
exists.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) In order to induce the Issuing Bank, the Agents and the
Lenders to enter into this First Amendment, the Borrower hereby reaffirms each
of the representations and warranties of the Borrower contained in the Credit
Agreement as of the date hereof except for either: (i) the occurrence of any
event that would render such representations or warranties untrue, but that is
expressly permitted by the terms of the Credit Agreement or which would not
cause an Event of Default under the Credit Agreement or (ii) the occurrence of
any event that would render such representations or warranties untrue but that
previously has been disclosed in writing to the Lenders.
(b) The Borrower represents and warrants to the Issuing Bank, the
Agents and the Lenders that, after giving effect to the amendment set forth
herein and the consummation of the transactions contemplated by the Merger
Agreement, no Default or Event of Default shall have occurred and be continuing
under the Credit Agreement.
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(c) The execution, delivery and performance of this First Amendment by
the Borrower does not require the consent of any other Person under any
document, instrument or agreement to which the Borrower is a party or under
which the Borrower is bound.
SECTION 1. REFERENCES TO THE CREDIT AGREEMENT. Each reference to
the Credit Agreement in any of the Loan Documents shall be deemed to be a
reference to the Credit Agreement, as amended by this First Amendment, and as
the same may be further amended, restated, supplemented or otherwise modified
from time to time in accordance with Section 13.6 of the Credit Agreement.
SECTION 2. BENEFITS. This First Amendment shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
SECTION 3. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 4. EFFECT. Except as expressly herein amended, the terms
and conditions of the Credit Agreement shall remain in full force and effect
without amendment or modification, express or implied.
SECTION 5. COUNTERPARTS. This First Amendment may be executed in
any number of counterparts, each of which shall be deemed to be an original and
shall be binding upon all parties, their successors and assigns.
SECTION 6. DEFINITIONS. All capitalized terms which are used herein
and not otherwise defined herein shall have the meanings given such terms as
set forth in the Credit Agreement.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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[SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 7, 1998 WITH XXXX INDUSTRIES, INC.]
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Amended and Restated Credit Agreement to be executed under seal by
their duly authorized officers as of the date first above written.
THE BORROWER:
XXXX INDUSTRIES, INC.
By: /s/
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Title:
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THE ADMINISTRATIVE AGENT:
NATIONSBANK, N.A., as Administrative Agent
By: /s/
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Title:
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THE ISSUING BANK:
NATIONSBANK, N.A., as Issuing Bank
By: /s/
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Title:
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THE DOCUMENTATION AGENT:
SUNTRUST BANK, ATLANTA, as Documentation Agent
By: /s/
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Title:
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[SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 7, 1998 WITH XXXX INDUSTRIES, INC.]
THE LENDERS:
NATIONSBANK, N.A., as a Lender and Swing
Line Lender
By: /s/
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Title:
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SUNTRUST BANK, ATLANTA
By: /s/
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Title:
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WACHOVIA BANK, N.A.
By: /s/
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Title:
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FIRST UNION NATIONAL BANK
By: /s/
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/
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Title:
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[SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 7, 1998 WITH XXXX INDUSTRIES, INC.]
THE FUJI BANK, LIMITED, ATLANTA
AGENCY
By: /s/
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Title:
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SOUTHTRUST BANK, N.A.
By: /s/
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Title:
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/
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Title:
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BANQUE NATIONALE DE PARIS, HOUSTON AGENCY
By: /s/
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Title:
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THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/
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Title:
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[SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF AUGUST 7, 1998 WITH XXXX INDUSTRIES, INC.]
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/
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Title:
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