THIRD AMENDMENT
---------------
THIS THIRD AMENDMENT to the Credit Agreement referred to below (this
"Third Amendment"), is made and entered into as of this 7th day of May, 1999 by
and among XXXXXX XXXXXX, INC., a corporation organized under the laws of
Delaware (the "Borrower"), the Lenders party to the Credit Agreement (as defined
below) and identified on the signature pages hereto, and FIRST UNION NATIONAL
BANK, as Administrative Agent for the Lenders.
Statement of Purpose
--------------------
The Lenders have extended certain credit facilities to the Borrower
pursuant to the Amended and Restated Credit Agreement dated as of June 18, 1998
as amended by the First Amendment dated as of August 26, 1998 and the Second
Amendment dated as of September 8, 1998 (as so amended and as further amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among the Borrower, the Lenders and the Administrative Agent.
The Borrower has requested that the Lenders amend the Credit Agreement to,
among other things, modify certain provisions of Article X of the Credit
Agreement and amend the Credit Agreement to extend another Term Loan to the
Borrower in an aggregate principal amount of Sixty-Five Million Dollars
($65,000,000) in order to pay a dividend to the shareholders of the Borrower,
and the Lenders have agreed to do so, but only on the terms and conditions set
forth below in this Third Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized undefined terms used in this Third
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments to Credit Agreement. The Credit Agreement is, effective as
of the date hereof and subject to the satisfaction of the conditions precedent
set forth in Section 5 hereof, hereby amended as follows:
(a) Article I is hereby amended in the following manner:
(i) by amending and restating, in their entirety, the following
definitions:
"Additional Term Loan Funding Percentage" shall equal the
corresponding percentage set forth on Schedule 1 hereto.
"Aggregate Commitment" means the aggregate amount of the
Lenders' Commitments hereunder, as such amount may be reduced or modified
at any time or from time to time pursuant to the terms hereof. On the
Third Amendment Effective Date, the Aggregate Commitment shall be One
Hundred Sixty-Five Million Dollars ($165,000,000).
"KMI Dividend" means the collective reference to (a) a dividend
not in excess of Seventy-Five Million Dollars ($75,000,000) paid to the
shareholders of the Borrower in part on the Closing Date and the remainder
during 1998 (the "1998 KMI Dividend") and (b) a dividend not in excess of
Sixty-Five Million Dollars ($65,000,000) to be paid to the shareholders of the
Borrower on the Third Amendment Effective Date.
"Term Loan Commitment" means (a) as to any Lender, the
obligation of such Lender to make the Term Loans for the account of the
Borrower hereunder in an aggregate principal amount not to exceed the
amount set forth opposite such Lender's name on Schedule 1 hereto, as such
amount may be reduced or modified at any time or from time to time
pursuant to the terms hereof and (b) as to all Lenders, the aggregate
commitment to make Term Loans. The Term Loan Commitment of all Lenders on
the Closing Date shall be Eighty-Five Million Dollars ($85,000,000) and
the Term Loan Commitment as of the Third Amendment Effective Date shall be
increased by Sixty-Five Million Dollars ($65,000,000) for a total Term
Loan Commitment of One Hundred Fifty Million Dollars ($150,000,000) for
all of the Lenders.
(ii) by inserting in alphabetical order the following newly defined
terms:
"Third Amendment" means that certain Third Amendment to this
Agreement dated as of May 7, 1999 by and among the Borrower, the Lenders
and the Administrative Agent.
"Third Amendment Effective Date" means the date of the Third
Amendment or such later Business Day upon which each condition described
in Section 5 to the Third Amendment shall be satisfied or waived in all
material respects in a manner satisfactory to the Administrative Agent.
(b) Section 2.7 of the Credit Agreement shall be amended in its entirety
by inserting the following Section 2.7 in lieu thereof:
"SECTION 2.7. Use of Proceeds. The Borrower shall use the proceeds of
the Revolving Credit Loans solely (a) prior to August 19, 1998, for future
general corporate purposes in an amount not greater than $5,600,000, (b)
prior to December 31, 1998, to finance investments permitted by Section
11.3(d), make dividends and distributions permitted by Section 11.6(e) and
pay income taxes and Interest Expense, (c) on or after December 31, 1998,
to finance investments permitted by Section 11.3(d) and (d) to pay certain
fees and expenses incurred in connection with the transactions
contemplated hereby."
(c) Section 4.1 of the Credit Agreement, Term Loans, is hereby amended and
restated in its entirety to read as set forth below:
Term Loans. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make (i) a Term Loan to the Borrower on
the Closing Date in a principal amount equal to such Lender's Term Loan
Commitment on the Closing Date
2
and (ii) an additional Term Loan to the Borrower on the Third Amendment
Effective Date in a principal amount equal to such Lender's Additional
Term Loan Funding Percentage of $65,000,000.
(d) Section 4.2(a), Procedure for Advance of Term Loans, is hereby amended
and restated in its entirety to read as set forth below:
(a) The Borrower shall give the Administrative Agent irrevocable prior
written notice in the form attached hereto as Exhibit C-2 prior to 11:00
a.m. (Charlotte time) on the Closing Date or, as applicable, the Third
Amendment Effective Date requesting that, as applicable, the Lenders make
(a) a Term Loan in the original principal amount of $85,000,000 as a Base
Rate Loan on the Closing Date and (b) a Term Loan in the original
principal amount of $65,000,000 as a Base Rate Loan on the Third Amendment
Effective Date.
(e) Section 4.2(c), Procedure for Advance of Term Loan, is hereby amended
and restated in its entirety to read as set forth below:
(c) Not later than 1:00 p.m. (Charlotte time) on the Closing
Date or, as applicable, the Third Amendment Effective Date, each
Lender will make available to the Administrative Agent for the
account of the Borrower, at the office of the Administrative Agent in
funds immediately available to the Administrative Agent, the amount
of such Lender's Term Loans. The Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of the
Term Loans in immediately available funds by wire transfer in
accordance with the Notice of Account Designation delivered pursuant
to Section 6.2(f). Any amount borrowed under this Section 4.2 and
subsequently repaid or prepaid may not be reborrowed.
(f) Section 4.6, Use of Proceeds, is hereby amended and restated in its
entirety to read as set forth below:
The Borrower shall use the proceeds of the Term Loans solely to
(a) finance the KMI Dividend; provided, that any proceeds of the Term
Loans not used to pay the 1998 KMI Dividend on the Closing Date shall
be invested in accordance with Section 11.3(b) pending payment of the
remaining 1998 KMI Dividend, (b) repay the Existing Facility and (c)
pay certain fees and expenses incurred in connection with the
transactions contemplated hereby.
(g) Article X, Financial Covenants, is hereby amended by inserting the
following paragraph after the last paragraph thereof:
For the purposes of calculating KMI Cash Flow and KMEP Cash Flow
in Sections 10.1 through and including 10.4 with respect to (i) the
Fiscal Quarter
3
ending June 30, 1999, such KMI Cash Flow and KMEP Cash Flow shall
equal such KMI Cash Flow and KMEP Cash Flow for such Fiscal Quarter
times four (4), (ii) the Fiscal Quarter ending September 30, 1999,
such KMI Cash Flow and KMEP Cash Flow shall equal such KMI Cash Flow
and KMEP Cash Flow for the period of two (2) consecutive Fiscal
Quarters ending on such Fiscal Quarter end times two (2) and (iii)
for the Fiscal Quarter ending December 31, 1999, such KMI Cash Flow
and KMEP Cash Flow shall equal such KMI Cash Flow and KMEP Cash Flow
for the period of three (3) consecutive Fiscal Quarters ending on
such Fiscal Quarter end times four-thirds (4/3).
3. Amended and Restated Term Note. Each Term Note executed on the Closing
Date shall be replaced with an Amended and Restated Term Note dated as of the
Third Amendment Effective Date in the aggregate principal amount of One Hundred
Fifty Million Dollars ($150,000,000) (the "Amended and Restated Term Notes").
4. Update to Schedule 1. Schedule1 attached hereto hereby amends and
replaces in its entirety Schedule 1 attached to the Credit Agreement.
5. Conditions of Effectiveness. This Third Amendment shall become
effective when, and only when, the Administrative Agent shall have received the
following, in form and substance satisfactory to the Administrative Agent:
(a) Counterparts of this Third Amendment executed by the Borrower,
the Administrative Agent and each of the Lenders.
(b) An executed original Amended and Restated Term Note made payable
to each Lender in an amount equal to such Lender's Term Loan Commitment.
(c) Certified copies of (i) the resolutions of the Board of Directors
of the Borrower approving this Third Amendment and (ii) all documents,
evidencing other necessary corporate action and governmental approvals, if
any, with respect to this Third Amendment and the matters contemplated
hereby.
(d) A certificate of the Secretary or an Assistant Secretary of the
Borrower certifying (i) that the charter documents and the bylaws of the
Borrower delivered on the Closing Date have not been amended or modified
in any respect, and (ii) as to the incumbency and the names and true
signatures of its officers authorized to sign this Third Amendment to
which it is a party and other documents to be delivered hereunder.
(e) A certificate as of a recent date of the good standing of the
Borrower under the laws of its jurisdiction of organization.
(f) A favorable opinion of Xxxxxxxx & Xxxxxx, L.L.P., counsel to the
Borrower, addressed to the Administrative Agent and the Lenders with
respect to the Borrower, the Third Amendment, the Loan Documents and as to
such other matters as the Administrative Agent or any Lender may
reasonably request.
4
6. Limited Amendment. Except as expressly amended herein, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Third Amendment shall not be deemed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document or (b) to prejudice
any other right or rights which the Administrative Agent or Lenders may now have
or may have in the future under or in connection with the Credit Agreement or
the other Loan Documents or any of the instruments or agreements referred to
therein, as the same may be amended, restated or otherwise modified from time to
time.
7. Representations and Warranties. By its execution hereof, the Borrower
hereby certifies on behalf of itself and its Subsidiaries that each of the
representations and warranties set forth in the Credit Agreement and the other
Loan Documents is true and correct as of the date hereof as if fully set forth
herein (except for any such representations and warranties made as of a specific
date which shall be true and correct as of such date) and that as of the date
hereof no Default or Event of Default has occurred and is continuing.
8. Governing Law. This Third Amendment shall be governed by and construed
in accordance with the laws of the State of North Carolina.
9. Counterparts. This Third Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
[Signature Pages Follow]
5
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed as of the date and year first above written.
[CORPORATE SEAL] XXXXXX XXXXXX, INC.,
as Borrower
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx x. Xxxxxx
Title: President
FIRST UNION NATIONAL BANK, as Administrative
Agent and Lender
By /s/ Xxxxxxx Xxxxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Vice President
[Third Amendment]
LENDERS:
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
SENIOR DEBT PORTFOLIO
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
--------------------------
Name: Payson X. Xxxxxxxxx
Title: Vice President
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
AMARA-2 FINANCE LTD.
By: /s/ Xxxxxx Xxx Xxxxxxx
------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
CERES FINANCE LTD.
By: /s/ Xxxxx Egglishaw
-----------------------
Name: Xxxxx Egglishaw
Title: Director
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
AERIES FINANCE LTD.
By: /s/ Xxxxxx Xxx Xxxxxxx
------------------------
Name: Xxxxxx Xxx Xxxxxxx
Title: Director
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
CAPTIVA FINANCE LTD.
By: /s/ Xxxxx Egglishaw
-----------------------
Name: Xxxxx Egglishaw
Title: Director
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
ELC (CAYMAN) LTD.
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
Title: President
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: /s/ Xxx X. Xxxx
------------------------
Name: Xxx X. Xxxx
Title: Vice President
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
PILGRIM PRIME RATE TRUST
By: PILGRIM INVESTMENTS, INC.
as its Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[SIGNATURE PAGES CONTINUE]
[Third Amendment]
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[Third Amendment]
SCHEDULE 1
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LENDERS AND TERM LOAN COMMITMENTS
---------------------------------
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Additional Term Term Loan Term Loan
Lender Loan Funding Commitment Percentage
Percentage
---------------------------------------------------------------------------
Aeries Finance Ltd. 0.0000000000% $1,250,000 .0000000000
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
---------------------------------------------------------------------------
Amara-2 Finance Ltd. 0.0000000000% $1,500,000 1.0000000000%
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
---------------------------------------------------------------------------
Captiva Finance Ltd. 0.0000000000% $1,250,000 .0000000000
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
---------------------------------------------------------------------------
Ceres Finance Ltd. 0.0000000000% $3,500,000 2.333333333%
c/x Xxxxxxxxx Capital Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
---------------------------------------------------------------------------
ELC (Cayman) Ltd. 0.0000000000% $7,500,000 5.0000000000%
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telephone No. (000) 000-0000
Telecopy No.: (000) 000-0000
Email: xxxxxx.xxxxx@xxxx.xxx
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Schedule 1 - cont.
------------------
---------------------------------------------------------------------------
First Union National Bank 100.0000000000% $75,000,000 50.0000000000%
c/oFirst Union Capital Partners
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
---------------------------------------------------------------------------
Pilgrim America Prime Rate Trust 0.0000000000% $7,500,000 5.0000000000%
00 X.Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
---------------------------------------------------------------------------
Pilgrim America High Income 0.0000000000% $7,500,000 5.0000000000%
Investments Ltd.
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx@xxxxxxxxxxxx.xxx
---------------------------------------------------------------------------
The Prudential Insurance 0.0000000000% $15,000,000 10.0000000000%
Company of America
c/o Prudential Capital Group
0000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx.xxxxxxx@xxxxxxxxxx.xxx
---------------------------------------------------------------------------
Senior Debt Portfolio 0.0000000000% $15,000,000 10.0000000000%
c/o Xxxxx Xxxxx
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Prime Rate, 8th Floor
Attention: Xxxxxxxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxx.xxx
---------------------------------------------------------------------------
Societe Generale, Southwest 0.0000000000% $15,000,000 10.0000000000%
Agency
0000 Xxxxx Xxxxxx #0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx*
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
E-mail: xxxxxxx.xxxxx@xx.xxxxxx.xxx
----------------------------------------------------------------------------
Total: 100.0000000000% $150,000,000100.0000000000%
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LENDERS AND REVOLVING CREDIT COMMITMENTS
----------------------------------------
--------------------------------------------------------------------
Revolving Revolving
Lender Credit Credit
Commitment Commitment
Percentage
--------------------------------------------------------------------
First Union National Bank $15,000,000 100.0000000000%
c/oFirst Union Capital Partners
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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