EXHIBIT 10.10
AMENDMENT NO. 2 TO FINANCING AGREEMENT
THIS AMENDMENT NO. 2 TO FINANCING AGREEMENT dated as of February 1,
2002 (this "AMENDMENT") is by and among ALDERWOODS GROUP, INC., a Delaware
corporation ("BORROWER"), CIT GROUP/BUSINESS CREDIT, INC., a New York
corporation ("CIT"), for itself as Lender, and as Agent for the Lenders, and the
Credit Parties to the Financing Agreement listed on Annex A thereto ("CREDIT
PARTIES")
W I T N E S S E T H :
WHEREAS, Borrower, Credit Parties and CIT, as Agent and Lender, have
entered into that certain Financing Agreement dated as of January 2, 2002 (as
amended, restated or otherwise modified prior to date hereof, the "FINANCING
AGREEMENT"; capitalized terms used herein shall have the meanings assigned to
such terms in the Financing Agreement as amended hereby unless otherwise defined
herein); and
WHEREAS, Borrower, Credit Parties and CIT, as Agent and Lender, desire
to amend the Financing Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the parties hereto hereby agree as follows:
1. AMENDMENTS.
(a) Section 6.11 of the Financing Agreement is hereby amended by
deleting "30 days" and inserting in the place thereof "61 days".
(b) Section 7.1.11 of the Financing Agreement is hereby amended as
follows:
(aa) Section 7.1.11(a) is hereby amended by adding the following
new Section 7.1.11(a)(iii):
"(iii) At the request of Agent, the applicable Credit Party
shall promptly execute and deliver to Agent for recordation
such amendments to the Mortgages for the Designated Real
Estate and the Part II Real Estate as may be deemed necessary
by Agent to cause the exhibits thereto to accurately reflect
the mergers listed on ANNEX C and the various merger
certificates issued by the Governmental Authorities."
(bb) Section 7.1.11(b) is hereby amended by deleting "thirty (30)
days" and inserting in the place thereof "forty-six (46) days".
(cc) Section 7.1.11(e) is hereby amended by deleting "thirty (30)
days" and inserting in the place thereof "forty-six (46) days".
(dd) The second sentence of Section 7.1.11(f) is hereby amended by
deleting "30 days" and inserting in the place thereof "61 days".
(ee) The third sentence of Section 7.1.11(f) is hereby amended by
deleting "30 days" and inserting in the place thereof "46 days".
(ff) Section 7.1.11(g) is hereby amended by deleting "30 days" and
inserting in the place thereof "46 days".
(gg) Section 7.1.11 (i) is hereby amended by deleting "within the
time provided on SCHEDULE 7.1.11(i) for such property" and inserting in the
place thereof
"within sixty-one (61) days following the Closing Date".
(hh) The third sentence of Section 7.1.11(i) is hereby amended and
restated to read as follows:
"In addition, Borrower shall furnish to Agent thirty (30) days
after the Closing Date and, within thirty (30) days following
the end of each month thereafter, a written status update, in
form and substance satisfactory to Agent, of Borrower's
progress in removing and/or satisfying all Liens of record
with respect to the properties described on SCHEDULE
7.1.11(i)."
(ii) Section 7.1.11(j) is hereby amended by deleting "Within 30
days of the Closing Date" and inserting in the place thereof the following:
"Borrower shall furnish to Agent thirty (30) days after the
Closing Date and, within thirty (30) days following the end of
each month thereafter, a written status update, in form and
substance satisfactory to Agent, of Borrower's progress in
terminating or releasing each Lien described on SCHEDULE
7.1.11(j). In addition, within sixty-one (61) days following
the Closing Date".
(jj) Section 7.1.11(k) is hereby amended by deleting "30 days" and
inserting in the place thereof "46 days".
2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon the date CIT shall have received executed counterparts to this Amendment
from Borrower and each Credit Party and CIT as Agent and sole Lender shall have
executed this Amendment and delivered a fully executed copy of this Amendment to
the Borrower.
3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. Borrower and Credit
Parties hereby each and individually represent and warrant that:
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(a) the execution, delivery and performance by Borrower and Credit
Parties of this Amendment have been duly authorized by all necessary corporate
action and this Amendment is a legal, valid and binding obligation of Borrower
and Credit Parties enforceable against Borrower and Credit Parties in accordance
with its terms;
(b) each of the representations and warranties made by Borrower
and Credit Parties contained in the Financing Agreement and the Credit Documents
is true and correct in all material respects on and as of the date hereof as if
made on the date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date;
(c) Neither the execution, delivery and performance of this
Amendment nor the consummation of the transactions contemplated hereby does or
shall contravene, result in a breach of, or violate (i) any provision of
Borrower's or any Credit Parties' certificate or articles of incorporation or
bylaws, (ii) any law or regulation, or any order or decree of any court or
government instrumentality, or (iii) any loan agreement, lease, indenture,
mortgage, deed of trust, note, security agreement or pledge agreement to which
Borrower or any Credit Party is a signatory or by which Borrower or such Credit
Party or any of Borrower's or such Credit Party's assets are bound;
(d) no Default or Event of Default has occurred and remains
outstanding under the Financing Agreement as of the date hereof; and.
(e) Borrower acknowledges and agrees that pursuant to the special availability
reserve letter dated as of January 2, 2002 regarding the establishment of
certain Availability Reserves (the "SPECIAL AVAILABILITY RESERVE LETTER"), the
Agent and Lenders have no obligation to advance Revolving Loans or arrange for
the issuance of Letters of Credit other than the Initial Letters of Credit until
Borrower furnishes to the Agent and Lenders accurate and verifiable reporting,
in form and substance acceptable to the Agent, concerning the amount of
indebtedness secured by the Liens noted on SCHEDULES 7.1.11(i) and 7.1.11(j)
(the "SPECIAL RESERVE LIENS") and the amount of the assets included in the
Borrowing Base which may be subject to a Special Reserve Lien (such reporting
requirement, the "SPECIAL RESERVE LIEN REPORT"). Borrower acknowledges that as
of the date of this Amendment, Borrower has not yet furnished to Agent and
Lenders a Special Reserve Lien Report.
4. MISCELLANEOUS.
(a) Except as expressly amended herein, all of the terms and
provisions of the Financing Agreement and the Credit Documents are ratified and
confirmed in all respects and shall remain in full force and effect.
(b) Upon the effectiveness of this Amendment, all references in
the Credit Documents to the Financing Agreement shall mean the Financing
Agreement as amended by this Amendment and all references in the Financing
Agreement to "this Agreement," "hereof," "herein," or similar terms, shall mean
and refer to the Financing Agreement as amended by this Amendment.
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(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as an amendment to or
waiver of any right, power or remedy of the Agent or any Lender under the
Financing Agreement or any of the Credit Documents, or constitute an amendment
or waiver of any provision of the Financing Agreement or any of the Credit
Documents nor shall it prejudice any rights, powers or remedies that Agent, on
behalf of Lenders, or any Lender may now have or may have in the future under or
in connection with the Financing Agreement or any other Credit Document.
(d) This Amendment may be executed by the parties hereto individually
or in combination, in one or more counterparts, each of which shall be an
original and all of which shall constitute one and the same agreement. This
Amendment may be executed and delivered by telecopier with the same force and
effect as if the same were a fully executed and delivered original manual
counterpart.
(e) Borrower and Credit Parties agree to reimburse Agent and Lenders
for all reasonable fees, costs and expenses in connection with this Amendment,
including the fees, costs and expenses of counsel or other advisors for advice,
assistance or other representation in connection with this Amendment.
(f) Any provision contained in this Amendment that is held to be
inoperative, unenforceable or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable or invalid without affecting the
remaining provisions of this Amendment in that jurisdiction or the operation,
enforceability or validity of that provision in any other jurisdiction.
(g) Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective duly authorized officers as of
the date set forth above.
THE CIT GROUP/BUSINESS
CREDIT, INC., AS THE AGENT
AND A LENDER
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------
Its: Vice President
ALDERWOODS GROUP, INC.
By: /s/ Azalea Angeles
--------------------------
Its: Assistant Secretary
--------------------------
CREDIT PARTIES:
Each of the Credit Parties
listed on ANNEX A attached
hereto
By: /s/ X. Xxxxxxxx
--------------------------
Its: Secretary
--------------------------
On behalf of and intending to
legally bind each of the Credit
Parties listed on ANNEX A hereto
[Signature Page to Amendment No. 2 to Financing Agreement]
ANNEX A
CREDIT PARTIES
ALASKA
Alderwoods (Alaska), Inc.
ARIZONA
Alderwoods (Arizona), Inc.
Xxxxxxxx Funeral Home, Inc.
Phoenix Memorial Park Association
ARKANSAS
Alderwoods (Arkansas), Inc.
CALIFORNIA
Advance Funeral Insurance Services
Alderwoods Group (California), Inc.
Alderwoods (Texas), Inc.
Xxxxxxxx XX, Inc.
Universal Memorial Centers V, Inc.
Universal Memorial Centers VI, Inc.
Xxxxxxxxxx-Lakewood Memorial Park and Funeral
Service
COLORADO
Alderwoods (Colorado), Inc.
CONNECTICUT
Alderwoods (Connecticut), Inc.
DELAWARE
Administration Services, Inc.
Alderwoods (Alabama), Inc.
Alderwoods (Commissioner), Inc.
Alderwoods (Delaware), Inc.
Alderwoods (Mississippi), Inc.
Alderwoods (Texas), L.P.
American Burial and Cremation Centers, Inc.
H.P. Xxxxxx Funeral Home, Inc.
Lienkaemper Chapels, Inc.
Neweol (Delaware), L.L.C.
Osiris Holding Corporation
DISTRICT OF COLUMBIA
Alderwoods (District of Columbia), Inc.
FLORIDA
Coral Ridge Funeral Home and Cemetery, Inc.
Funeral Services Acquisition Group, Inc.
Garden Sanctuary Acquisition, Inc.
Kadek Enterprises of Florida, Inc.
Xxxxxx Xxxxxxxxx Memorial Chapels, Inc.
MHI Group, Inc.
Naples Memorial Gardens, Inc.
Osiris Holding of Florida, Inc.
Security Trust Plans, Inc.
GEORGIA
Advanced Planning of Georgia, Inc.
Alderwoods (Georgia), Inc.
Alderwoods (Georgia) Holdings, Inc.
Green Lawn Cemetery Corporation
Xxxxxx Holdings, Inc.
Southeastern Funeral Homes, Inc.
HAWAII
Alderwoods (Hawaii), Inc.
IDAHO
Alderwoods (Idaho), Inc.
ILLINOIS
Alderwoods (Chicago Central), Inc.
Alderwoods (Chicago North), Inc.
Alderwoods (Chicago South), Inc.
Alderwoods (Illinois), Inc.
Chapel Hill Memorial Gardens & Funeral Home Ltd.
Chicago Cemetery Corporation
Elmwood Acquisition Corporation
Mount Auburn Memorial Park, Inc.
Pineview Memorial Park, Inc.
Ridgewood Cemetery Company, Inc.
Xxxxxx Funeral Home, Inc.
The Oak Xxxxx Cemetery Association
Woodlawn Cemetery of Chicago, Inc.
Woodlawn Memorial Park, Inc.
INDIANA
Advance Planning of America, Inc.
Alderwoods (Indiana), Inc.
Xxxxxx Funeral Home, Inc.
IOWA
Alderwoods (Iowa), Inc.
KANSAS
Alderwoods (Kansas), Inc.
KENTUCKY
Alderwoods (Partner), Inc.
LOUISIANA
Alderwoods (Louisiana), Inc.
MARYLAND
Alderwoods (Maryland), Inc.
MASSACHUSETTS
Alderwoods (Massachusetts), Inc.
Xxxx-Xxxx Insurance Agency, Inc.
MICHIGAN
Alderwoods (Michigan), Inc.
MINNESOTA
Alderwoods (Minnesota), Inc.
MISSISSIPPI
Family Care, Inc.
Riemann Enterprises, Inc.
Xxxxxxxx Funeral Fund, Inc.
MISSOURI
Alderwoods (Missouri), Inc.
MONTANA
Alderwoods (Montana), Inc.
NEBRASKA
Alderwoods (Nebraska), Inc.
NEVADA
Alderwoods (Nevada), Inc.
NEW HAMPSHIRE
Xxxxxx Xxxxxxx Xxxxxxxx Funeral Home, Inc.
St. Laurent Funeral Home, Inc.
ZS Acquisition, Inc.
NEW MEXICO
Alderwoods (New Mexico), Inc.
Xxxxxx-Xxxxxx Mortuary, Inc.
NEW YORK
Alderwoods (New York), Inc.
Northeast Monument Company, Inc.
NORTH CAROLINA
Alderwoods (North Carolina), Inc.
Xxxxxxxxx Holding Company, Inc.
Xxxxxxxxx Group, Inc.
Xxxxxx, Inc.
Westminster Gardens, Inc.
NORTH DAKOTA
Alderwoods (North Dakota), Inc.
OHIO
Alderwoods (Ohio) Cemetery Management, Inc.
Alderwoods (Ohio) Funeral Home, Inc.
Xxxxxxx-Xxxxxx-Xxxxxxxxx Funeral Home, Inc.
OKLAHOMA
Alderwoods (Oklahoma), Inc.
OREGON
Alderwoods (Oregon), Inc.
The Portland Memorial, Inc.
Universal Memorial Centers I, Inc.
Universal Memorial Centers II, Inc.
Universal Memorial Centers III, Inc.
PENNSYLVANIA
Alderwoods (Pennsylvania), Inc.
Bright Undertaking Company
X. Xxxxxx, Inc.
Knee Funeral Home of Wilkinsburg, Inc.
Nineteen Thirty-Five Holdings, Inc.
Oak Xxxxx Management Company
RHODE ISLAND
Alderwoods (Rhode Island), Inc.
SOUTH CAROLINA
Alderwoods (South Carolina), Inc.
Graceland Cemetery Development Co.
SOUTH DAKOTA
Alderwoods (South Dakota), Inc.
TENNESSEE
Alderwoods (Tennessee), Inc.
DMA Corporation
Eagle Financial Associates, Inc.
TEXAS
Alderwoods (Texas) Cemetery, Inc.
Dunwood Cemetery Service Company
Xxxxxxxx Cemetery Holdings, Inc.
Xxxxxxxx Holdings, Inc.
Xxxxxx Land Company
Waco Memorial Park
VIRGINIA
Alderwoods (Virginia), Inc.
WASHINGTON
Alderwoods (Washington), Inc.
Evergreen Funeral Home and Cemetery, Inc.
Green Service Corporation
S & H Properties and Enterprises, Inc.
Vancouver Funeral Chapel, Inc.
WEST VIRGINIA
Alderwoods (West Virginia), Inc.
WISCONSIN
Alderwoods (Wisconsin), Inc.
Northern Land Company, Inc.
WYOMING
Alderwoods (Wyoming), Inc.
