SECOND AMENDMENT
SECOND AMENDMENT (this "Amendment"), dated as of February 12, 2002,
effective as of December 31, 2001, among XXXXX X. XXXXXXXXX HOLDING COMPANY,
INC., a Delaware corporation ("Holding"), XXXXX X. XXXXXXXXX COMPANY, a Delaware
corporation (the "Borrower"), the financial institutions parties to the Credit
Agreement referred to below (the "Lenders", and each, a "Lender"), and BT
COMMERCIAL CORPORATION, as Agent (the "Agent"). Unless otherwise defined herein,
all capitalized terms used herein shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Holding, the Borrower, the Lenders and the Agent, are
parties to the Amended and Restated Credit Agreement, dated as of March 24, 1998
(as amended, modified or supplemented to the date hereof, the "Credit
Agreement");
WHEREAS, subject to and on the terms and conditions set forth
herein, the parties hereto wish to amend the Credit Agreement as provided below;
NOW, THEREFORE, it is agreed:
I. AMENDMENTS TO THE CREDIT AGREEMENT
A. Section 8.10 of the Credit Agreement is hereby amended to provide
that the Fixed Charge Coverage Ratio for the four consecutive fiscal quarter
period ending on December 31, 2001 shall not be less than 0.75 to 1.
B. Section 11.5 of the Credit Agreement is amended to change the
Agent's notice address to 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxx and the Agent's facsimile
number to 000-000-0000.
II. MISCELLANEOUS PROVISIONS
A. In order to induce the Lenders to enter into this Amendment,
the Borrower hereby represents and warrants that:
1. no Default or Event of Default exists as of the Amendment
Effective Date, after giving effect to this Amendment; and
2. all of the representations and warranties contained in the Credit
Agreement as amended hereby and the other Credit Documents are true and
correct in all material respects as of the Amendment Effective Date, after
giving effect to this Amendment, with the same effect as though such
representations and warranties had been made on and as of the Amendment
Effective Date (it being understood that any representation or warranty
made as of a specific date shall be true and correct in all material
respects as of such specific date).
B. For purposes of the Credit Documents to which the Guarantor is a
party, by its respective signature below, the Guarantor hereby consents and
agrees to the entering into of this Amendment and acknowledges and affirms
that each of the Guaranty and Collateral Documents (as amended, modified or
supplemented prior to the date hereof) remains in full force and effect in
accordance with its terms on the date hereof and after giving effect to this
Amendment. Each Credit Party hereby acknowledges and affirms that each of the
Collateral Documents (as amended, modified or supplemented prior to the date
hereof) remains in full force and effect in accordance with its terms on the
date hereof.
C. This Amendment is limited as specified and shall not constitute a
modification, amendment or waiver of any other provision of the Credit
Agreement or any other Credit Document, or a waiver or amendment of Section
8.10 of the Credit Agreement for any other period.
D. This Amendment may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Agent.
E. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
F. This Amendment shall become effective on the date (the "Amendment
Effective Date") when the Borrower, the Guarantor, the Agent and the Required
Lenders shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Agent at its office specified in paragraph B of
Section I above.
G. From and after the Amendment Effective Date, all references in the
Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Second Amendment as of the date
first above written.
XXXXX X. XXXXXXXXX HOLDING
COMPANY, INC.
By:____________________________
Name:__________________________
Title:_________________________
XXXXX X. XXXXXXXXX COMPANY
By:____________________________
Name:__________________________
Title:_________________________
BT COMMERCIAL CORPORATION,
as Agent
By:____________________________
Name:__________________________
Title:_________________________
SIGNATURE XXXX TO SECOND AMENDMENT
DATED AS OF FEBRUARY __, 2002, TO THE
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF MARCH 24, 1998, AMONG
XXXXX X. XXXXXXXXX HOLDING COMPANY,
INC., A DELAWARE CORPORATION, XXXXX X.
XXXXXXXXX COMPANY, A DELAWARE
CORPORATION, THE VARIOUS LENDERS PARTY
THERETO FROM TIME TO TIME AND BT
COMMERCIAL CORPORATION, AS AGENT
NAME OF INSTITUTION: _______________________________
By:____________________________
Name:__________________________
Title:_________________________
