XXXXX XXXXXX CORPORATION
SECOND AMENDMENT TO DEBTOR-IN-POSSESSION
CREDIT AGREEMENT, FIRST AMENDMENT TO COLLATERAL
DOCUMENTS AND LIMITED WAIVER
This SECOND AMENDMENT TO DEBTOR-IN-POSSESSION CREDIT
AGREEMENT, FIRST AMENDMENT TO COLLATERAL DOCUMENTS AND LIMITED
WAIVER (this "Amendment") is dated as of August 15, 1995 and
entered into by and among XXXXX CORONA CORPORATION, a Delaware
corporation, as debtor and debtor-in-possession (the
"Borrower"), the several banks and other financial
institutions from time to time parties thereto (the "Lenders")
and CHEMICAL BANK, a New York banking corporation, as agent
for the Lenders (in such capacity, the "Agent"), and, for
purposes of Section 6 hereof, the Credit Support Parties (as
hereinafter defined) named on the signature pages hereto, and
is made with reference to that certain Debtor-In-Possession
Credit Agreement dated as of July 10, 1995, as amended by that
certain First Amendment to Debtor-in-Possession Credit
Agreement dated as of July 24, 1995 (as so amended, the
"Credit Agreement"), by and among the Borrower, the Lenders
and the Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in
the Credit Agreement.
RECITALS
WHEREAS, the Borrower, the Lenders and the Agent
desire to amend the Credit Agreement and certain Collateral
Documents as provided herein; and
WHEREAS, the Borrower has requested the Agent and the
Lenders to waive certain provisions of the Credit Agreement
and that certain Letter Agreement Regarding Post Closing
Covenants (the "Letter Agreement") and, subject to the terms
and conditions contained herein, the Agent and the Lenders are
willing to agree to such waiver;
NOW, THEREFORE, in consideration of the premises and
the agreements, provisions and covenants herein contained, the
parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 2: Amounts and Terms of
Commitments
Subsection 2.7(b) of the Credit Agreement is hereby
amended by deleting the phrase "paragraph (b) of this
subsection" therefrom and substituting the phrase "the last
sentence of subsection 2.7(a) of this Agreement" therefor.
1.2 Amendments to Section 4: Conditions to Initial
Extensions of Credit
Subsection 4.1(b) of the Credit Agreement is hereby
amended by deleting the parenthetical "(subject to permitted
Liens)" therefrom and substituting the parenthetical "(subject
to Liens permitted pursuant to subsection 6.3 of this
Agreement)" therefor.
1.3 Amendments to Section 7: Events of Default
Section 7 of the Credit Agreement is hereby amended
by deleting the phrase "the Agent shall give the Borrower and
counsel to any official committees in respect of the Chapter
11 Case three Business Days' prior notice" from the second
paragraph of such Section and substituting therefor the phrase
"the Agent shall give the Borrower and counsel to any official
committees in respect of the Chapter 11 Case five Business
Days' prior notice" therefor.
1.4 Amendments to Section 9: Miscellaneous
Subsection 9.2 of the Credit Agreement is hereby
amended by adding the following proviso at the end thereof:
"; provided further, that copies of all notices,
requests or demands delivered pursuant to this subsection 9.2,
and copies of all statements delivered pursuant to subsection
9.5, shall also be delivered to:
Xxxxx Xxxxxx Corporation Creditors'
Committee
c/o Blank, Rome, Xxxxxxx & XxXxxxxx
Four Xxxx Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Section 2. AMENDMENTS TO COLLATERAL DOCUMENTS
2.1 Amendments to Security Agreement
Subsection 7.4 of the Security Agreement is hereby
amended by deleting the phrase "three Business Days'" from the
second sentence thereof and substituting the phrase "five
Business Days'" therefor.
2.2 Amendments to Borrower Pledge Agreement
Section 7(b) of the Borrower Pledge Agreement is
hereby amended by deleting the phrase "three Business Days'"
therefrom and substituting the phrase "five Business Days'"
therefor.
2.3 Amendments to Guarantor Pledge Agreement
Section 7(b) of the Guarantor Pledge Agreement is
hereby amended by deleting the phrase "three Business Days'"
therefrom and substituting the phrase "five Business Days'"
therefor.
Section 3. LIMITED WAIVER
Subject to the terms and provisions of this
Amendment, the Agent and the Lenders hereby (i) waive until
August 21, 1995 compliance with the provisions of (x)
paragraph 3 of the Letter Agreement, (y) paragraph 5.16(b) of
the Credit Agreement and (z) subsection 5.16(c) of the Credit
Agreement that require SCC Singapore to execute a counterpart
of the Subsidiary Guaranty; (ii) waive until August 28, 1995
compliance with the provisions of paragraph 1 of the Letter
Agreement with respect to the stock of Xxxxx Xxxxxx (Canada)
Limited and Xxxxx Corona GmbH, (iii) waive until September 1,
1995 compliance with the provisions of paragraph 1 of the
Letter Agreement with respect to the stock of Xxxxx Xxxxxx
France S.A.R.L., (iv) waive until September 1, 1995 compliance
with the provisions of subsection 4.1(g) of the Credit
Agreement that require delivery of a good standing certificate
for the Borrower certified by the Secretary of State of
Hawaii, and (v) waive compliance with the provisions of (w)
subsection 5.16(c) of the Credit Agreement that require SCC
Singapore to grant a security interest in its property,
(x) subsection 5.16(c) of the Credit Agreement that require
SCC Singapore to become a borrower, provided that the Lenders
and the Borrower shall mutually determine whether to include
SCC Singapore as a borrower under the Credit Agreement and the
other Loan Documents, (y) paragraph 1 of the Letter Agreement
with respect to Xxxxx Xxxxxx International, Ltd., provided
that the Borrower delivers to the Agent and the Lenders on or
before August 18, 1995 an Officer's Certificate stating that
Xxxxx Corona International, Ltd. is in liquidation and that
its only assets are cash and securities with an aggregate
value of less than $1,000 and an intercompany note that will
be cancelled in connection with the liquidation, and (z)
paragraph 1 of the Letter Agreement with respect to Xxxxx
Xxxxxx Australia Pty. Ltd. ("SCC Australia") upon (i) the
representation by the Borrower that SCC Australia has been
placed in administrative insolvency proceedings in Australia
and (ii) the agreement of the Borrower that any distribution
upon the capital stock or equity interest of the Borrower in
SCC Australia shall be paid directly to the Agent on behalf of
the Lenders, to be held by the Agent in a segregated account
as part of the Collateral (as defined in the Security
Agreement executed as of July 10, 1995 by the Borrower) and to
be applied to the Obligations upon the occurrence and during
the continuation of an Event of Default.
Without limiting the generality of the provisions of
subsection 9.3 of the Credit Agreement, the waivers set forth
herein shall be limited precisely as written and relate solely
to the noncompliance by the Borrower with the provisions of
the Credit Agreement and the Letter Agreement set forth above
in the manner, to the extent and for the applicable periods
described above, and nothing in this Limited Waiver shall be
deemed to (a) constitute a waiver of compliance by the
Borrower with respect to (i) the provisions of the Credit
Agreement or the Letter Agreement set forth above in any other
instance or (ii) any other term, provisions or condition of
the Credit Agreement, the Letter Agreement or any other
instrument or agreement referred to therein, (b) prejudice any
right or remedy that the Agent or any Lender may now have
(except to the extent such right or remedy was based upon
existing defaults that will not exist after giving effect to
this Limited Waiver) or may have in the future under or in
connection with the Credit Agreement, the Letter Agreement or
any other instrument or agreement referred to therein or (c)
create any obligation on the part of the Agent or any Lender
to renew or extend the waiver contained herein. Except as
expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement, the Letter Agreement and
the other Loan Documents shall remain in full force and effect
and in all other respects are hereby ratified and confirmed.
Section 4. CONDITIONS TO EFFECTIVENESS
Sections 1, 2 and 3 of this Amendment shall become
effective only upon the satisfaction of all of the following
conditions precedent (the date of satisfaction of such
conditions being referred to herein as the "Second Amendment
Effective Date"):
A. The Agent shall have received counterparts of
this Amendment executed by the Borrower, each Lender and the
Agent and written or telephonic notification of such execution
and authorization of delivery thereof.
B. The Bankruptcy Court shall have approved the
execution of this Amendment, and the consummation of the
transactions contemplated hereby, by the Borrower.
Section 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Amendment and to amend the Credit Agreement in the manner
provided herein, the Borrower represents and warrants to each
Lender that the following statements are true, correct and
complete:
A. Corporate Power and Authority. The Borrower has
all requisite corporate power and authority to enter into this
Amendment and to carry out the transactions contemplated by,
and perform its obligations under, the Credit Agreement as
amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and
delivery of this Amendment and the performance of the Amended
Agreement have been duly authorized by all necessary corporate
action on the part of the Borrower.
C. No Conflict. The execution and delivery by the
Borrower of this Amendment and the performance by the Borrower
of the Amended Agreement do not and will not (i) violate any
provision of any law or any governmental rule or regulation
applicable to the Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the
Borrower or any of its Subsidiaries or any order, judgment or
decree of any court or other agency of government binding on
the Borrower or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse
of time or both) a default under any Contractual Obligation of
the Borrower or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of the Borrower or any of its
Subsidiaries (other than any Liens created under any of the
Loan Documents in favor of the Agent on behalf of the
Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual
Obligation of the Borrower or any of its Subsidiaries.
D. Governmental Consents. The execution and
delivery by the Borrower of this Amendment and the performance
by the Borrower of the Amended Agreement do not and will not
require any registration with, consent or approval of, or
notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the
Amended Agreement have been duly executed and delivered by the
Borrower and are the legally valid and binding obligations of
the Borrower, enforceable against the Borrower in accordance
with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
F. Incorporation of Representations and Warranties
From Credit Agreement. The representations and warranties
contained in Section 3 of the Credit Agreement are and will be
true, correct and complete in all material respects on and as
of the Second Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such
representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
G. Absence of Default. No event has occurred and
is continuing or will result from the consummation of the
transactions contemplated by this Amendment that would
constitute a Default.
Section 6. ACKNOWLEDGEMENT AND CONSENT
The Borrower is a party to the Security Agreement and
the Borrower Pledge Agreement pursuant to which the Borrower
has created Liens in favor of the Agent on certain Collateral
to secure the Obligations. Each Subsidiary Guarantor is party
to the Subsidiary Guaranty pursuant to which the Subsidiary
Guarantors have guarantied the Obligations. The Subsidiary
Guarantors party to the Guarantor Pledge Agreement have
created Liens in favor of the Agent to secure the obligations
of such Subsidiary Guarantor under the Subsidiary Guaranty.
The Borrower and the Subsidiary Guarantors are collectively
referred to herein as the "Credit Support Parties."
Each Credit Support Party hereby acknowledges that it
has reviewed the terms and provisions of the Credit Agreement
and this Amendment and consents to the amendment of the Credit
Agreement effected pursuant to this Amendment. Each Credit
Support Party hereby confirms that each Collateral Document to
which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the
case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and
"Secured Obligations," as the case may be (in each case as
such terms are defined in the applicable Collateral Document),
including without limitation the payment and performance of
all such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the
Obligations of the Borrower now or hereafter existing under or
in respect of the Amended Agreement and the Notes.
Each Credit Support Party acknowledges and agrees
that any of the Collateral Documents to which it is a party or
otherwise bound shall continue in full force and effect and
that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the
execution or effectiveness of this Amendment. Each Credit
Support Party represents and warrants that all representations
and warranties contained in the Amended Agreement and the
Collateral Documents to which it is a party or otherwise bound
are true, correct and complete in all material respects on and
as of the Second Amendment Effective Date to the same extent
as though made on and as of that date, except to the extent
such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and
complete in all material respects on and as of such earlier
date.
Each Credit Support Party (other than the Borrower)
acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such
Credit Support Party is not required by the terms of the
Credit Agreement or any other Loan Document to consent to the
amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to
require the consent of such Credit Support Party to any future
amendments to the Credit Agreement.
Section 7. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement
and the Other Loan Documents.
(i) On and after the Second Amendment Effective
Date, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein" or words of like
import referring to the Credit Agreement, and each reference
in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to
the Credit Agreement shall mean and be a reference to the
Amended Agreement.
(ii) Except as specifically amended by this
Amendment, the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified
and confirmed.
(iii) The execution, delivery and performance of
this Amendment shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of the Agent or any
Lender under, the Credit Agreement or any of the other Loan
Documents.
B. Fees and Expenses. The Borrower acknowledges
that all costs, fees and expenses as described in subsection
9.5 of the Credit Agreement incurred by Agent and its counsel
with respect to this Amendment and the documents and
transactions contemplated hereby shall be for the account of
the Borrower.
C. Headings. Section and subsection headings in
this Amendment are included herein for convenience of
reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive
effect.
D. Applicable Law. THIS AMENDMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so
that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed and delivered by their
respective officers thereunto duly authorized as of the date
first written above.
XXXXX CORONA CORPORATION,
as debtor and debtor-in-possession
By:
Title:
CHEMICAL BANK, as
Agent and as a Lender
By:
Title:
BANK OF AMERICA ILLINOIS
By:
Title:
SCM (UNITED KINGDOM) LIMITED,
(for purposes of Section 6 only) as a Credit Support Party
By:
Title:
XXXXX XXXXXX OVERSEAS
HOLDINGS, INC., (for purposes of
Section 6 only) as a Credit Support Party
By:
Title:
XXXXX CORONA (UK), LIMITED, (for
purposes of Section 6 only) as a Credit Support Party
By:
Title:
