Exhibit 5
FOURTH AMENDMENT
THIS FOURTH AMENDMENT dated as of May 13, 2002 (this "Amendment") amends
the Amended and Restated Credit Agreement dated as of December 31, 2000 (as
previously amended, the "Credit Agreement") among Xxxxx & Xxxxx Company (the
"Borrower"), various financial institutions (the "Lenders") and Bank of America,
N.A., as administrative agent (in such capacity, the "Administrative Agent").
Terms defined in the Credit Agreement are, unless otherwise defined herein or
the context otherwise requires, used herein as defined therein.
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Subject to the satisfaction of the conditions
precedent set forth in Section 3 of this Amendment, the Credit Agreement is
amended as follows:
1.1 ADDITION OF DEFINITIONS. The following new definitions are added to the
Credit Agreement in proper sequence:
"KOJAIAN INVESTORS" means, collectively, Kojaian Ventures, L.L.C.,
Xxxx Xxxxxxx, C. Xxxxxxx Xxxxxxx and their respective Affiliates.
"PERMITTED PERSON" means Warburg or the Kojaian Investors.
1.2 AMENDMENT TO DEFINITION OF "EQUITY OFFERING". The definition of "Equity
Offering" is amended in its entirety to read as follows:
"EQUITY OFFERING" means the issuance of equity of the Borrower, or
Indebtedness that is convertible into equity of the Borrower, to one or more
Persons in an amount not less than $11,000,000, in each case having terms
reasonably acceptable to the Required Lenders.
1.3 AMENDMENT TO SECTION 9(K). Section 9(k) is amended in its entirety to
read as follows:
(k)(A) (i) No Permitted Person shall have the power to vote or direct the
voting of securities having at least 35% of the ordinary voting power for the
election of directors of the Borrower (determined on a fully diluted basis) and
(ii) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), excluding any Permitted Person and the members or partners
thereof, shall become or obtain rights (whether by means or warrants, options or
otherwise) to become, the "beneficial owner" (as defined in Rules 13(d)-3 and
13(d)-5 under the Exchange Act), directly or indirectly, of 35% or more of the
outstanding common stock of the Borrower or (B) (i) a Permitted Person shall
have the power to vote or direct the voting of securities having at least 35% or
more of the ordinary voting power for the election of directors of the Borrower
(determined on a fully diluted basis) and (ii) any "person" or "group" (as such
terms are used in Sections 13(d) and 14(d) of the Exchange Act), excluding any
Permitted Person and the members or partners thereof shall become or obtain
rights (whether by means or warrants, options or otherwise) to become, the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of a percentage ownership of the outstanding
common stock of the Borrower that exceeds the percentage held by such Permitted
Person.
1.4 AMENDMENT TO SECTION 12. Section 12.3 is amended in its entirety to
read as follows:
12.3 PREPAYMENT OR CONVERSION OF ADDITIONAL TERM LOAN. The Borrower
may prepay the Additional Term Loan made by Warburg (a) after all other
Borrower Obligations have been paid in full in cash; or (b) so long as no
Default or Event of Default exists or would result therefrom, with the
proceeds of the Equity Offering. The Borrower may convert the Additional
Term Loan into equity of the Borrower pursuant to the terms of a promissory
note issued to the Additional Term Lender substantially in the form of
Exhibit B to the Fourth Amendment to this Agreement.
SECTION 2 REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Administrative Agent and the Lenders that, after giving effect
to the effectiveness hereof, (a) each warranty set forth in Section 5 of the
Credit Agreement (other than those which speak as of a particular earlier date)
is true and correct as of the date of the execution and delivery of this
Amendment by the Borrower, with the same effect as if made on such date, and (b)
no Event of Default or Default exists.
SECTION 3 EFFECTIVENESS. The amendments set forth in SECTION 1 above shall
become effective when the Administrative Agent shall have received (a)
counterparts of this Amendment executed by the Borrower and the Required
Lenders, (b) a Confirmation, substantially in the form of EXHIBIT A, signed by
the Borrower and each Subsidiary Guarantor and (c) payment of all amounts
payable to the Administrative Agent pursuant to Section 11.5 of the Credit
Agreement, to the extent invoices therefor have been delivered to the Borrower.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects. After the effectiveness of this Amendment, all references in the
Credit Agreement and the other Loan
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Documents to "Credit Agreement" or similar terms shall refer to the Credit
Agreement as amended hereby.
4.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
4.3 GOVERNING LAW. This Amendment shall be a contract made under and
governed by the laws of the State of Illinois applicable to contracts made and
to be performed entirely within such state.
4.4 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon the
Borrower, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Lenders and the Administrative Agent and the respective successors and assigns
of the Lenders and the Administrative Agent.
4.5 OPTION AGREEMENT. The Required Lenders (a) acknowledge that the
Borrower will exercise the Refinancing Option under and as defined in the Option
Agreement on or prior to May 14, 2002 (the "Refinancing Closing Date"), (b)
acknowledge that, effective on the Refinancing Closing Date (but only upon
execution and delivery by Kojaian, as defined below, of a joinder agreement
reasonably acceptable to the Administrative Agent), (i) Kojaian Ventures, L.L.C.
("Kojaian") will become the Additional Term Lender and will make an additional
term loan (the "Kojaian Term Loan") to the Borrower in an amount equal to the
sum of (x) $11,000,000 plus (y) accrued and unpaid interest on the Additional
Term Loan made by Warburg plus (z) up to $100,000 of expenses of Warburg in
connection with the making of the Additional Term Loan and related transactions,
(ii) Warburg will cease to be the Additional Term Lender and (iii) except to the
extent the context otherwise requires, any reference in the Credit Agreement to
the "Additional Term Lender" shall be deemed to refer to Kojaian and any
reference in the Credit Agreement to the "Additional Term Loan" shall be deemed
to refer to the Kojaian Term Loan, and (c) consent to the issuance by the
Borrower of a note to Kojaian substantially in the form of EXHIBIT B.
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Delivered at Chicago, Illinois, as of the day and year first above written.
XXXXX & XXXXX COMPANY
By: /s/ Xxx X. Xxxxx
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Title: Chief Financial Officer
BANK OF AMERICA, N.A., as
Administrative Agent
By: Xxxxxxx X. Xxxxxxx
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Title: Managing Director
LENDERS:
BANK OF AMERICA, N.A., as a Lender
By: Xxxxxxx X. Xxxxxxx
-------------------------------------
Title: Managing Director
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: Xxxxx Xxxxxx
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Title: Officer
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as Syndication Agent
and as a Lender
By: Xxxxxx Xxxxxxx
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Title: First Vice President
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Exhibit A
CONFIRMATION
Dated as of May __, 2002
To: Bank of America, N.A., individually and as Agent, and the other financial
institutions party to the Credit Agreement referred to below
Please refer to (a) the Amended and Restated Credit Agreement dated as of
December 31, 2000 (as amended, the "Credit Agreement") among Xxxxx & Xxxxx
Company, various financial institutions (the "Lenders") and Bank of America,
N.A., as administrative agent (the "Administrative Agent"); (b) the other "Loan
Documents" (as defined in the Credit Agreement), including the Guaranty and
Collateral Agreement; and (c) the Fourth Amendment dated as of the date hereof
to the Credit Agreement (the "Fourth Amendment").
Each of the undersigned hereby confirms to the Administrative Agent and the
Lenders that, after giving effect to the Fourth Amendment and the transactions
contemplated thereby, each Loan Document to which such undersigned is a party
continues in full force and effect and is the legal, valid and binding
obligation of such undersigned, enforceable against such undersigned in
accordance with its terms.
XXXXX & XXXXX COMPANY
XXXXX & XXXXX CONSULTING SERVICES
COMPANY
XXXXX & XXXXX NEW YORK, INC.
XXXXX & XXXXX OF MICHIGAN, INC.
XXXXX & XXXXX OF NEVADA, INC.
XXXXX & XXXXX OF OREGON, INC.
XXXXX & XXXXX AFFILIATES, INC.
XXXXX & XXXXX MANAGEMENT SERVICES, INC.
XXXXX & XXXXX MANAGEMENT SERVICES OF
MICHIGAN, INC.
HSM INC.
XXXXXXXX HOSPITALITY INTERNATIONAL, INC.
By: /s/ Xxx X. Xxxxx
--------------------------------
Name: Xxx X. Xxxxx
Title: Chief Financial Officer
