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EXHIBIT 10(q)
SECOND AMENDMENT TO
AMENDED AND RESTATED NOTE AGREEMENT
This Second Amendment to Amended and Restated Note Agreement ("Second
Amendment") is entered into as of this 18th day of December, 1995, between Xxxxx
Inc., a Massachusetts corporation (the "Company"), and Principal Mutual Life
Insurance Company, an Iowa corporation ("Principal Mutual"), having its home
office and principal mailing address at 000 Xxxx Xxxxxx, Xxx Xxxxxx, Xxxx
00000-0000.
RECITALS:
The Company and Principal Mutual entered into a Note Agreement dated as of
February 1, 1992, a First Amendment dated as of June 1, 1993, and an Amended and
Restated Note Agreement dated July 1, 1994, as further amended by a Limited
Waiver and First Amendment to Amended and Restated Note Agreement, dated as of
January 30, 1995, (as so amended, the "Restated Note Agreement"), pursuant to
which the Company issued its $40,000,000 of Senior Notes (the "Notes").
Principal Mutual is the holder of $20,000,000 in original principal amount of
Notes.
The Company has notified Principal Mutual that it may take one or more
restructuring charges which would result in the Company failing to comply with
certain financial covenants contained in the Restated Note Agreement as of the
fiscal quarter ending December 31, 1995.
Principal Mutual has agreed that the Restated Note Agreement be amended in
certain particulars as set forth herein.
Terms used but not defined herein shall have the meaning set forth in the
Restated Note Agreement.
NOW, THEREFORE, in consideration of the premises set forth above and in
consideration of the mutual covenants and conditions herein contained and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged:
1. Recitals Incorporated. The Recitals set forth above are incorporated
herein by reference.
2. Amendments to Note Agreement.
2.1 Section 5.6 of the Restated Note Agreement is hereby amended by
deleting the final period thereof and replacing it with the following
proviso:
"provided, that for the purposes of calculating Consolidated Current
Liabilities for the Company's fiscal quarter ending December 31, 1995,
Consolidated Current Liabilities shall not include any liabilities or
expenses incorporated within the definition of Restructuring Charge."
2.2 Section 5.10 of the Restated Note Agreement is hereby amended by
deleting the final period thereof and replacing it with the following
proviso:
"provided, that for the purposes of calculating Consolidated Tangible
Net Worth for the Company's fiscal quarter ending December 31, 1995,
liabilities arising from or in connection with the Restructuring Charge
shall not constitute liabilities deducted in the calculation of
Consolidated Net Tangible Assets."
2.3 Section 8.1 of the Restated Note Agreement is hereby amended as
follows:
(a) by deleting the final period from the end of the definition of
"Earnings Before Interest and Taxes" and replacing it with the following
proviso:
"provided, that for the purposes of determining the Company's
compliance with the covenants set forth in Sections 5.8 and 5.9
hereof for the Company's fiscal quarter ending December 31,
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1995 (but not for any other fiscal quarter), there shall be added to
Earnings Before Interest and Taxes the amount of the Restructuring
Charge."
(b) by adding thereto the following new definition:
"'Restructuring Charge' shall mean the restructuring charge or
charges (including related charges and expenses reflected in the
Company's "Other Income and Expense" and "Sales, General and
Administrative Expenses" categories for accounting purposes) taken by
the Company in the Company's fiscal quarter ending December 31, 1995
in an aggregate amount not to exceed $35,000,000."
3. Representations of the Company. The Company, by its execution and
delivery of this Second Amendment, hereby represents and warrants to Principal
Mutual as follows:
3.1 As of the date of this Second Amendment, no Default or Event of
Default under the Restated Note Agreement, or under any other agreement to
which the Company is subject, exists or is continuing, after giving effect
to the amendment set forth herein.
3.2 The Representations and Warranties of the Company referred to in
Section 3 of the Restated Note Agreement are true and correct in all
material respects as if made on the date hereof, except as to those
Representations and Warranties made as of a specific date, which are true
and correct and materially complete as of such date.
3.3 No dissolution proceedings with respect to the Company have been
commenced or are contemplated, and, except as disclosed to Principal
Mutual, there has been no material adverse change in the business,
condition or operations (financial or otherwise) of the Company since July
22, 1994.
3.4 The Second Amendment has been duly authorized and executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company.
4. Miscellaneous.
4.1 Except as expressly set forth in this Second Amendment, the terms
of this Second Amendment shall not operate as a waiver by Principal Mutual
of any of the provisions of, or otherwise prejudice, remedies or powers
under the Restated Note Agreement, the Notes or applicable law and shall
not operate as a waiver of or otherwise prejudice any rights Principal
Mutual may have against any other Person. Except as expressly set forth in
this Second Amendment, none of the terms or provisions of either the
Restated Note agreement or the Notes shall be deemed to be modified hereby,
and each of the Restated Note Agreement and the Notes, as modified herein,
shall continue in full force and effect.
4.2 All headings and captions preceding the text of the several
sections of this Second Amendment are intended solely for convenience of
reference and shall not constitute a part of this Second Amendment, nor
shall they affect its meaning, construction or effect.
4.3 This Second Amendment embodies the entire agreement and
understanding between the Company and Principal Mutual with regard to the
matter set forth herein, and supersedes all prior agreements and
undertakings relating to such matters.
4.4 This Second Amendment shall be governed by and construed in
accordance with Massachusetts law.
4.5 This Second Amendment may be executed by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the
same Agreement.
4.6 This Second Amendment shall not become binding until the
conditions set forth in Section 7.1 of the Restated Note Agreement have
been satisfied.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be executed by their authorized officers as of the date first written above.
XXXXX INC.
By: Xxxxx X. Xxxxxxxx
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Its: Treasurer
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PRINCIPAL MUTUAL LIFE INSURANCE
COMPANY
By: Xxxxxxxxx X. Xxxx
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Its: Director-Securities Investment
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By: Xxxxxx Xxxxx
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Its: Assistant Director-Securities Investment
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XXXXX INC.
SECOND AMENDMENT
RE: AMENDED AND RESTATED NOTE AGREEMENT DATED AS OF JULY 1, 1994
Dated as of
December 18, 1995
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Private Placement Department
Ladies and Gentlemen:
Reference is made to the Amended and Restated Note Agreement, dated as of
July 1, 1994, as amended by a First Amendment dated as of January 23, 1994 but
actually executed as of January 23, 1995 (as so amended, the "Note Agreement"),
pursuant to which Xxxxx Inc., a Massachusetts corporation (the "Company"),
issued $40,000,000 principal amount of its Senior Secured Notes, Due February 1,
1999. Capitalized terms used herein and not otherwise defined shall have the
meanings given thereto in the Note Agreement.
The Company requests that you agree to amend certain provisions of the Note
Agreement to read as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
sufficient consideration, the Company agrees with you as follows:
SECTION 1. AMENDMENT OF NOTE AGREEMENT.
1.1 Section 5.6 of the Restated Note Agreement is hereby amended by
deleting the final period thereof and replacing it with the following proviso:
"provided, that for the purposes of calculating Consolidated Current
Liabilities for the Company's fiscal quarter ending December 31, 1995,
Consolidated Current Liabilities shall not include any liabilities or
expenses incorporated within the definition of Restructuring Charge."
1.2 Section 5.10 of the Restated Note Agreement is hereby amended by
deleting the final period thereof and replacing it with the following proviso:
"provided, that for the purposes of calculating Consolidated Tangible Net
Worth for the Company's fiscal quarter ending December 31, 1995,
liabilities arising from or in connection with the Restructuring Charge
shall not constitute liabilities deducted in the calculation of
Consolidated Net Tangible Assets."
1.3 Section 8.1 of the Restated Note Agreement is hereby amended as
follows:
(a) by deleting the final period from the end of the definition of
"Earnings Before Interest and Taxes" and replacing it with the following
proviso:
"provided, that for the purposes of determining the Company's compliance
with the covenants set forth in Sections 5.8 and 5.9 hereof for the
Company's fiscal quarter ending December 31, 1995 (but not for any other
fiscal quarter), there shall be added to Earnings Before Interest and
Taxes the amount of the Restructuring Charge."
(b) by adding thereto the following new definition:
"'Restructuring Charge' shall mean the restructuring charge or charges
(including related charges and expenses reflected in the Company's
"Other Income and Expense" and "Sales, General and Administrative
Expenses" categories for accounting purposes) taken by the Company in
the
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Company's fiscal quarter ending December 31, 1995 in an aggregate amount
not to exceed $35,000,000."
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Company hereby represents and warrants that no Default or Event of
Default has occurred and is continuing.
SECTION 3. MISCELLANEOUS.
3.1. HEADINGS. The headings of the sections of this Second Amendment are
for purposes of convenience only and shall not be construed to affect the
meaning or construction of any of the provisions hereof.
3.2 GOVERNING LAW. This Second Amendment shall be governed by and
construed in accordance with the laws of the State of Massachusetts.
3.3 REFERENCES TO NOTE AGREEMENTS. Any and all notices, requests,
certificates and other instruments executed concurrently with or after the
execution of the Second Amendment may refer to the Note Agreement without making
specific reference to this Second Amendment, but nevertheless all such
references shall be deemed to include this Second Amendment unless the context
shall otherwise require.
4.4 RATIFICATION. Except to the extent expressly hereby modified or
amended, the Note Agreement is in all respects hereby ratified, confirmed, and
approved by the parties hereto.
4.5 EFFECTIVE DATE OF SECOND AMENDMENT. This Second Amendment shall be
effective from and after the date on which the Company has obtained the consent
of the holders required to consent to such amendment pursuant to the provisions
of Section 7.1 of the Note Agreement.
Please signify your consent to this amendment of the Note Agreement between
you and the Company by signing and returning this Second Amendment.
XXXXX INC.
/s/ Xxxxx Xxxxxxxx
By..................................
Its Treasurer
Accepted as of the date first above written.
ALLSTATE LIFE INSURANCE COMPANY
By..................................
By..................................
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