Exhibit 10.8.2
EXECUTION
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FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "FIRST AMENDMENT") is
entered into as of December 4, 2000, by and between XXXXXXXXX & XXXX, INC., a
Massachusetts corporation (the "BORROWER") and CITIZENS BANK OF MASSACHUSETTS, a
Massachusetts bank (the "LENDER").
All capitalized terms not defined herein but defined in that certain Credit
Agreement, dated as of April 13, 2000 (the "CREDIT AGREEMENT"), by and between
the Borrower and the Lender, shall have the meanings given to such terms in the
Credit Agreement.
Preliminary Statements:
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A. Pursuant to the Credit Agreement and the other Financing Documents, the
Lender has made or agreed to make certain Loans to the Borrower; and
B. The Borrower has requested that the Lender grant certain financial
accommodations for the benefit of the Borrower with respect to the Loans, all as
more particularly described herein; and
C. The Lender is unwilling to comply with the foregoing request of the
Borrower, unless and until the Borrower has entered into, and agreed to, all of
the terms and conditions of, this First Amendment;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Waiver of Certain Events of Default. At the request of the Borrower, the
Lender hereby waives, for the Borrower's fiscal quarter ended September 30, 2000
only, any Default or Event of Default which has occurred or may have occurred as
a result of the failure of the Borrower to comply with (a) any of the financial
covenants contained in subsection 6.1 of the Credit Agreement; or (b) any of the
covenants contained in Section 3 of the Post-Closing Agreement, dated as of
April 13, 2000 (the "EXISTING POST-CLOSING AGREEMENT"), by and between the
Borrower and the Lender. The foregoing waiver shall operate solely with respect
to the matters and period of time described herein, and shall not impair any
right or power accruing to the Lender upon the occurrence or continuance of any
other Default or Event of Default under the Credit Agreement and the other
Financing Documents, nor shall the waiver contained herein be construed as a
waiver of any such other Default or Event of Default or as an acquiescence
thereto.
2. AMENDMENTS TO CREDIT AGREEMENT.
2.1 AMENDMENT TO APPENDIX A.
(a) The definition of the term "Maximum Amount" contained in Appendix
A of the Credit Agreement is hereby amended, replaced and superseded in its
entirety with the following definition:
"'MAXIMUM AMOUNT': (a) $2,600,000.00 from November 22, 2000 to
and including December 5, 2000, (b) $2,425,000.00 from December 6,
2000 to and including December 19, 2000; (c) $2,225,000.00 from
December 20, 2000 to and including January 2, 2001; and (d)
$2,000,000.00 from January 3, 2001 to the date on which the Lender
receives, in accordance with the provisions of subsection 5.2(b), a
Compliance Certificate for the Borrower's fiscal quarter ending
December 31, 2000, whereupon on and after such date, the Maximum
Amount shall be either (i) $5,000,000.00 if no Event of Default has
occurred and is continuing as of such date or (ii) $2,000,000.00 if
any Event of Default has occurred and is continuing as of such date."
(b) The definition of the term "Prime Rate" contained in Appendix A of
the Credit Agreement is hereby amended, replaced and superseded in its
entirety with the following definition:
"'PRIME RATE': for any day, a rate equal to the variable rate of
interest per annum, most recently announced by the Lender at its
headquarters in Boston, Massachusetts, as its "prime rate," with the
understanding that the Lender's "prime rate" is one of its interest
rates and serves as a basis upon which effective rates of interest are
calculated for loans making reference thereto and may not be the
lowest of the Lender's interest rates. Any change in the Prime Rate
shall be effective as of the effective date stated in the announcement
by the Lender of such change."
2.2 Amendment to Subsection 2.1(a). The first sentence of subsection
2.1(a) of the Credit Agreement is hereby amended, restated and superseded
in its entirety as follows:
"Subject to the terms and conditions hereof, the Lender agrees to make
revolving credit loans (hereinafter referred to collectively as the `LOANS'
and each singly as a `LOAN') to the Borrower from time to time during the
Revolving Credit Period in the aggregate principal amount of up to the
Maximum Amount."
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2.3 Amendment to Subsection 6.1(a). Subsection 6.1(a) of the Credit
Agreement is hereby amended, restated and superseded in its entirety as
follows:
"(a) Consolidated Debt Service Ratio. On the last day of each
fiscal quarter of the Borrower, commencing with the fiscal quarter
ending June 30, 2000, the Borrower shall not permit, and shall cause
each of its Subsidiaries not to permit, the Consolidated Debt Service
Ratio to be less than 1.25 to 1.00 for the fiscal quarter ending on
such date."
3. First Amended and Restated Post-Closing Agreement. The Borrower shall
execute and deliver contemporaneously herewith to the Lender a certain First
Amended and Restated Post-Closing Agreement (the "RESTATED POST-CLOSING
AGREEMENT"), by and between the Borrower and the Lender, which amends, restates
and supersedes in its entirety the Existing Post-Closing Agreement and shall be
in the form attached hereto as EXHIBIT A. All references contained in the
Credit Agreement and the other Financing Documents to the Existing Post-Closing
Agreement shall now mean and refer to the Restated Post-Closing Agreement.
4. Representations and Warranties. The Borrower hereby acknowledges and
confirms that all of its representations and warranties contained in the Credit
Agreement and in all of the other Financing Documents are and remain true,
correct and complete as of the date hereof as if made as of the date hereof,
except as the same may expressly relate to an earlier date.
5. No Events of Default. The Borrower hereby represents and warrants to the
Lender that except as otherwise provided in Section 1 of this First Amendment,
no Event of Default has occurred and is now continuing under the Credit
Agreement or under any of the other Financing Documents, and there does not now
exist any circumstance or set of facts, which with the passage of time or the
giving of notice or both would constitute or result in an Event of Default under
the Credit Agreement or under any of the other Financing Documents.
6. Ratification of Financing Documents. Subject to the amendments expressly
set forth in Section 2 of this First Amendment and in the Restated Post-Closing
Agreement, the Borrower hereby ratifies and reaffirms all of the terms and
provisions of the Financing Documents and hereby expressly acknowledges and
confirms that the terms and provisions of each thereof, as amended hereby, shall
and do remain in full force and effect. Any reference to the Credit Agreement
contained in any of the Financing Documents shall now mean and refer to the
Credit Agreement, as amended by this First Amendment.
7. Conditions Precedent. The effectiveness of this First Amendment and the
obligations of the Lender hereunder are subject to the satisfaction of each of
the following conditions precedent, all of which shall be in form, scope and
substance satisfactory to the Lender in all respects:
(a) First Amendment; Restated Post-Closing Agreement. The Lender shall
have received this First Amendment and the Restated Post-Closing Agreement,
each as executed by a duly authorized officer of the Borrower, with the
signature of such officer duly witnessed and notarized hereon.
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(b) Authority Documents. The Lender shall have received a Certificate
of Assistant Clerk of the Borrower, dated of even date herewith,
certifying: (i) the adoption by all of the Board of Directors of the
Borrower of resolutions authorizing and approving the transactions
contemplated by this First Amendment and the Restated Post-Closing
Agreement; (ii) since April 13, 2000, there have been no amendments,
modifications or changes to the Articles of Organization or By-Laws of the
Borrower, and that said Articles of Organization and By-Laws continue to
remain in full force and effect; and (iii) the name and signatures of the
officers of the Borrower authorized to sign, for and on behalf of the
Borrower, this First Amendment.
(c) Incumbency Certificate. The Lender shall have received a
certificate of the Borrower, dated as of the date hereof, as to the
incumbency and signature of the officers of the Borrower executing this
First Amendment, in form and substance reasonably satisfactory to the
Lender, as executed by the Assistant Clerk of the Borrower.
(d) Certificate of Corporate Good Standing. The Lender shall have
received a Certificate of Corporate Legal Existence and Good Standing for
the Borrower, as issued by the Massachusetts Secretary of State.
(e) Fees, Costs and Expenses. The Lender shall have received payment
or reimbursement from the Borrower for all of the fees, costs and expenses
(including reasonable legal fees, costs and expenses) incurred by the
Lender in connection with the transactions contemplated by this First
Amendment and the Restated Post-Closing Agreement.
(f) Other. The Borrower shall have delivered to the Lender such other
documents and instruments as the Lender may reasonably require.
8. Miscellaneous.
8.1 No Other Amendments; No Waiver. Except as expressly set forth
herein, nothing contained herein shall be construed to modify, amend or
otherwise alter any of the terms or provisions of any of the Financing
Documents; nothing contained herein shall constitute a waiver of or bar to
any rights or remedies available to the Lender, or a waiver of any Event of
Default under the Financing Documents on any occasion, other than as
expressly set forth herein; and nothing contained herein shall constitute
an agreement by the Lender or obligate the Lender to take or refrain from
taking any action.
8.2 Execution; Counterparts. This First Amendment may be executed in
any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears hereon, and all of which shall
together constitute one and the same instrument. This First Amendment shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon
as the signatories.
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8.3 Successors and Assigns. This First Amendment shall be binding upon
and inure to the benefit of the parties hereto, and their respective
representatives, successors and assigns.
8.4 Governing Law. This First Amendment and all questions relating to
its validity, interpretation, performance and enforcement shall be governed
by and construed in accordance with the laws of The Commonwealth of
Massachusetts, notwithstanding any conflict-of-law provisions to the
contrary.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered under seal by their proper and duly authorized
officers as of the date first above written.
WITNESS: XXXXXXXXX & XXXX, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxx Xxxxx X. Xxxxxx, President
WITNESS: CITIZENS BANK OF MASSACHUSETTS
/s/ Xxxxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxx,
Senior Vice President
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COMMONWEALTH OF MASSACHUSETTS
Norfolk County, ss. December 4, 2000
Then personally appeared the above-named Xxxxx X. Xxxxxx, as President of
Xxxxxxxxx & Xxxx, Inc., and acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of Xxxxxxxxx & Xxxx, Inc., before me.
/s/ Xxxxx Xxxxxxxx
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Notary Public
My commission expires: 6/21/07
[AFFIX NOTARIAL SEAL]
COMMONWEALTH OF MASSACHUSETTS
Plymouth County, ss. January 3, 2001
Then personally appeared the above-named Xxxxxxx X. Xxxxxx, as Senior Vice
President of Citizens Bank of Massachusetts, and acknowledged the foregoing
instrument to be his free act and deed and the free act and deed of Citizens
Bank of Massachusetts, before me.
/s/ Xxxxxxxxx Xxxxxxxxx
-----------------------
Notary Public
My commission expires: August 27, 2004
[AFFIX NOTARIAL SEAL]
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EXHIBIT A
FIRST AMENDED AND RESTATED
POST-CLOSING AGREEMENT
This FIRST AMENDED AND RESTATED POST-CLOSING AGREEMENT (this "AGREEMENT")
is made as of December 4, 2000, by and between XXXXXXXXX & XXXX, INC., a
Massachusetts corporation (the "BORROWER") and CITIZENS BANK OF MASSACHUSETTS, a
Massachusetts bank (the "LENDER").
All capitalized terms not defined herein but defined in the Credit
Agreement, dated as of April 13, 2000, by and between the Borrower and the
Lender, as amended by a certain First Amendment to Credit Agreement, dated of
even date herewith (the "FIRST AMENDMENT TO CREDIT AGREEMENT"), by and between
the Borrower and the Lender (said Credit Agreement, as so amended, is
hereinafter referred to collectively as the "CREDIT AGREEMENT"), shall have the
meanings given to such terms in the Credit Agreement.
Preliminary Statements:
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WHEREAS, the Borrower has requested that the Lender enter into the First
Amendment to Credit Agreement in order to grant certain financial accommodations
for the benefit of the Borrower with respect to the Loans, all as more
particularly described therein; and
WHEREAS, it is a condition precedent to the effectiveness of the First
Amendment to Credit Agreement and to the obligation of the Lender thereunder
that the Borrower enter into this Agreement which amends, restates and
supersedes in its entirety that certain Post-Closing Agreement, dated as of
April 13, 2000 (the "EXISTING POST-CLOSING AGREEMENT"), by and between the
Borrower and the Lender;
NOW, THEREFORE, in order to induce the Lender to enter into the First
Amendment to Credit Agreement, and in consideration thereof and in consideration
of the mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that the Existing Post-Closing Agreement is hereby amended,
restated and superseded in its entirety as follows:
1. Post-Closing Item. By WEDNESDAY, MARCH 31, 2001, the Borrower shall
deliver (or cause to be delivered) to the Lender the Acknowledgment and Consent
attached to the Collateral Assignment of Lease for the Canton, Massachusetts
real estate, as executed the landlord of such real estate. The Lender shall have
the right to exclude from the Borrowing Base any Eligible Inventory which is
stored or otherwise kept on the Canton, Massachusetts real estate, until such
time as the Borrower delivers the document described herein.
2. Event of Default. Notwithstanding any provision contained in any of the
Financing Documents to the contrary, any failure of the Borrower to punctually
perform, observe, comply with or satisfy the covenant contained in the first
sentence of Section 1 of this Agreement shall constitute an Event of Default
under the Credit Agreement.
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3. Further Assurances. The Borrower will do all such acts, and will furnish
to the Lender all such agreements, instruments, filings, certificates, legal
opinions and other documents and will do or cause to be done all such other
things as the Lender may reasonably request from time to time in order to
effectuate the transactions contemplated in this Agreement.
4. Miscellaneous.
4.1 Counterparts. This Agreement may be executed in more than one
counterpart, each of which taken together shall constitute one and the same
instrument. This Agreement shall become effective only upon execution by
all parties hereto.
4.2 Headings. Headings appearing in this Agreement are intended for
convenience only and do not constitute, and shall not be interpreted to be,
a part of this Agreement.
4.3 Notices. All notices required or permitted hereunder shall be in
writing and delivered in accordance with the provisions of the Credit
Agreement.
4.4 Fees, Costs and Expenses. The Borrower agrees to pay, or to
reimburse the Lender, as the case may be, on demand, for all fees, costs
and expenses (including reasonable legal fees, costs and expense) incurred
or paid by the Lender in connection with consummating the transactions
contemplated by this Agreement.
4.5 Successors and Assigns. The provisions of this Agreement shall be
binding upon the respective heirs, successors and assigns of the parties
hereto. This Agreement and any rights and remedies of the Lender hereunder
may be assigned in whole or in part by the Lender at the Lender's
discretion.
4.6 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
4.7 Governing Law; Jurisdiction. This Agreement is executed and
delivered under seal and shall be construed in accordance with and governed
by the laws of The Commonwealth of Massachusetts, without giving effect to
the conflict of law provisions thereof. The Borrower submits itself to the
non-exclusive jurisdiction of the Courts of The Commonwealth of
Massachusetts for all purposes with respect to the Financing Documents and
the Borrower's relationship with the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered under seal by their proper and duly authorized
officers as of the day and year first above written.
WITNESS: XXXXXXXXX & XXXX, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxx Xxxxx X. Xxxxxx, President
WITNESS: CITIZENS BANK OF MASSACHUSETTS
/s/ Xxxxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
----------------------------- ----------------------------
Name: Xxxxxxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxx,
Senior Vice President
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COMMONWEALTH OF MASSACHUSETTS
Norfolk County, ss. December 4, 2000
Then personally appeared the above-named Xxxxx X. Xxxxxx as President of
Xxxxxxxxx & Xxxx, Inc., and acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of Xxxxxxxxx & Xxxx, Inc., before me.
/s/ Xxxxx Xxxxxxxx
-------------------------------------
Notary Public
My commission expires: 6/21/07
[AFFIX NOTARIAL SEAL]
COMMONWEALTH OF MASSACHUSETTS
Plymouth County, ss. January 3, 2001
Then personally appeared the above-named Xxxxxxx X. Xxxxxx as Senior Vice
President of Citizens Bank of Massachusetts, and acknowledged the foregoing
instrument to be his free act and deed and the free act and deed of Citizens
Bank of Massachusetts, before me.
/s/ Xxxxxxxxx Xxxxxxxxx
--------------------------------------
Notary Public
My commission expires: August 27, 2004
[AFFIX NOTARIAL SEAL]
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