SECOND AMENDMENT
THIS SECOND AMENDMENT to the Credit Agreement referred to below and
amendment to Section 8 of the Security Agreement (this "Second Amendment"), is
made and entered into as of this 8th day of September, 1998 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 (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, revise certain provisions of the Credit Agreement and
Section 8 of the Security Agreement, and the Lenders have agreed to do so, but
only on the terms and conditions set forth below in this Second 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 Second
Amendment shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 1.1 is hereby modified to amend in its entirety the definition
of "Eligible Assignee" by inserting the following in lieu thereof:
""Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is
at the time of such assignment (a) a commercial bank organized under the
laws of the United States or any state thereof, having combined capital
and surplus in excess of $500,000,000, (b) a commercial bank organized
under the laws of any other country that is a member of the Organization
of Economic Cooperation and Development, or a political subdivision of any
such country, having combined capital and surplus in excess of
$500,000,000, (c) a finance company, insurance company or other financial
institution or fund (whether a corporation, partnership, trust or other
entity) which in the ordinary course of business extends credit of the
type extended hereunder and that has total assets in excess of
$100,000,000, (d) already a Lender hereunder (whether as an original party
to this Agreement or as the assignee of another Lender) or any Affiliate
of a Lender, (e) the successor (whether by transfer of assets, merger
or otherwise) to all or substantially all of the commercial lending or
private placement business of the assigning Lender, or (f) any other
Person that has been approved in writing as an Eligible Assignee by the
Administrative Agent and, so long as no Default or Event of Default has
occurred and is continuing, the Borrower."
(b) Section 5.6 of the Credit Agreement shall be amended in its entirety
by inserting the following in lieu thereof:
"SECTION 5.6. Crediting of Payments and Proceeds. In the event that
the Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 12.2, all payments
received by the Lenders upon the Notes and the other Obligations and all
net proceeds from the enforcement of the Obligations shall be applied
first to all expenses then due and payable by the Borrower hereunder, then
to all indemnity obligations then due and payable by the Borrower
hereunder, then to all Administrative Agent's and Issuing Lender's fees
then due and payable, then to all commitment and other fees and
commissions then due and payable, then to accrued and unpaid interest on
the Notes, the Reimbursement Obligation and any termination payments due
in respect of a Hedging Agreement with any Lender (which such Hedging
Agreement is permitted or required hereunder) (pro rata in accordance with
all such amounts due), then to the principal amount of the Notes and
Reimbursement Obligation (pro rata in accordance with all such amounts
due) and then to the cash collateral account described in Section 12.2(b)
hereof to the extent of any L/C Obligations then outstanding, in that
order."
(c) The first six lines of Section 14.10(b) of the Credit Agreement shall
be amended in their entirety by inserting the following in lieu thereof:
"(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of the
Obligations at the time owing to it and the Notes held by it); provided,
that: "
(d) Section 14.10(g) of the Credit Agreement shall be amended in its
entirety by inserting following in lieu thereof:
"(g) Disclosure of Information; Confidentiality. The
Administrative Agent and the Lenders shall hold all non-public information
with respect to the Borrower and its Subsidiaries obtained pursuant to the
Loan Documents in accordance with customary procedures for handling
third-party non-public information; provided, that the Administrative
Agent may disclose information relating to this Agreement to Gold Sheets
and other similar bank trade publications and provided further, that the
Administrative Agent and the Lenders may disclose any such information (i)
to its Affiliates, directors, officers and employees and to its agents,
including accountants, legal counsel and other advisors who have been
informed of the confidential nature of the information provided and who
have each agreed, for the benefit of the Borrower, to preserve the
confidentiality of the non-public information and who each have a
reasonable need for such information in connection with the Credit
Agreement, (ii) to the extent requested by any regulatory
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authority, including, in the ordinary course of business, the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information
about a Lender's investment portfolio, and (iii) to the extent a Lender
reasonably believes it is required by applicable laws or regulations or by
any subpoena or similar legal process; provided, that with respect to the
disclosures set forth in clause (iii), unless prohibited by law, prompt
notice of such disclosures shall be given to the Borrower. Any Lender may,
in connection with any assignment, proposed assignment, participation or
proposed participation pursuant to this Section 14.10, disclose to the
assignee, participant, proposed assignee or proposed participant, any
information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided, that prior to any such disclosure, each
such assignee, proposed assignee, participant or proposed participant
shall agree with the Borrower or such Lender to preserve the
confidentiality of any confidential information relating to the Borrower
received from such Lender. For purposes of this Section 14.10(g),
"non-public information" does not include information to the extent that
(i) such information was publicly known or otherwise known by the
Administrative Agent or any Lender at the time of disclosure (except to
the extent such information is wrongfully obtained by the Administrative
Agent or any Lender), (ii) such information is or becomes part of the
public domain except for a disclosure prohibited hereunder by the
Administrative Agent or any Lender or any person to whom the
Administrative Agent or any Lender has disclosed the non-public
information, or (iii) such information is received by the Administrative
Agent or the Lenders without an obligation of confidentiality from a third
party which to the knowledge of the Administrative Agent or any Lender is
not wrongfully in possession of the same and having no known direct or
indirect obligation of confidentiality to the Borrower for same.
(e) Section 14.11(a) shall be amended in its entirety by inserting the
following in lieu thereof:
"(a) (i) increase the Revolving Credit Commitment of any Lender,
(ii) reduce the principal amount, rate of interest or fees payable on any
Revolving Credit Loan or Reimbursement Obligation, (iii) extend the
originally scheduled time or times of payment of the principal of any
Revolving Credit Loan or Reimbursement Obligation or the time or times of
payment of interest on any Revolving Credit Loan or Reimbursement
Obligation or any fee or commission with respect thereto, (iv) permit any
subordination of the principal or interest on any Revolving Credit Loan or
Reimbursement Obligation or (v) extend the time of the obligation of the
Revolving Commitment Lenders to make or issue or participate in Letters of
Credit, in any case, without the written consent of each Lender holding
Revolving Credit Loans or a Revolving Credit Commitment,"
(f) Section 14.11(b) shall be amended in its entirety by inserting the
following in lieu thereof:
"(b) (i) increase the Term Loan Commitment of any Lender, (ii) reduce
the rate of interest or fees payable on any Term Loan, (iii) permit any
subordination of the principal or interest on any Term Loan or (iv) extend
the originally scheduled time or times of
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payment of the principal of any Term Loan or the time or times of payment
of interest on any Term Loan or any fee or commission with respect
thereto, in any case, without the written consent of each Lender holding a
Term Loan or (v) reduce the principal amount of any Term Loan without the
written consent of the affected Lender, or"
3. Amendment to Security Agreement. Section 8 of the Security Agreement is
hereby amended by deleting the reference to "Section 5.5" of the Credit
Agreement contained therein and inserting a reference to "Section 5.6" of the
Credit Agreement in lieu thereof.
4. Conditions. The effectiveness of this Second Amendment shall be
conditioned upon the following:
(a) Execution. Receipt by the Administrative Agent of this Second
Amendment duly executed by the Borrower, Administrative Agent and the
Lenders.
(b) Additional Items. Receipt by the Administrative Agent of any
other document or instrument reasonably requested by it in connection with
the execution of this Second Amendment.
5. Limited Amendment. Except as expressly amended herein, the Credit
Agreement, the Security Agreement and each other Loan Document shall continue to
be, and shall remain, in full force and effect. This Second 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, the Security Agreement
or any other Loan Documents 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, the Security 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.
6. 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.
7. Governing Law. This Second Amendment shall be governed
by and construed in accordance with the laws of the State of
North Carolina.
8. Counterparts. This Second 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]
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IN WITNESS WHEREOF, the parties hereto have caused this Second 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. Xxxxx
Title: President
FIRST UNION NATIONAL BANK, as
Administrative Agent and Lender
By /s/Xxx X. Xxxxxxx
---------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Vice President
[Second Amendment]
