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EXHIBIT 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT, dated as of July 14, 1997 (this
"Amendment"), to the CREDIT AGREEMENT, dated as of April 17, 1996, as amended by
the First Amendment, dated as of March 27, 1997 (as the same may be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among Xxxxx-Xxxxxxxx, Inc., a Delaware corporation (the "Borrower"),
Xxxxx-Xxxxxxxx Holdings, Inc., a Delaware corporation (the "Parent"), each of
the lenders identified on the signature pages thereof and their successors and
assigns (the "Lenders"), The Chase Manhattan Bank (as successor to Chemical
Bank), as Administrative Agent, Collateral Agent, Documentation Agent and
Syndication Agent, The Chase Manhattan Bank Delaware, as Issuing Bank and
Bankers Trust Company, Fleet National Bank, and NationsBank, N.A. as Co-Agents.
W I T N E S S E T H :
WHEREAS, the Borrower and the Parent have requested that the
Lenders agree to increase the Revolving Credit Commitments under the Credit
Agreement to $65,000,000 and to permit the Borrower to use the proceeds of the
Revolving Credit Loans to finance dividends to pay the cash portion of the
redemption of the Parent Senior Exchangeable Preferred Stock and to finance the
repurchase of Senior Notes, all to the extent set forth in this Amendment;
WHEREAS, the Borrower has agreed to repay the Term Loans in
full; and
WHEREAS, the parties hereto agree to amend the Credit
Agreement on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
Defined Terms. Unless otherwise defined herein, terms defined in the
Credit Agreement shall be used herein as defined therein.
SECTION 2. AMENDMENT OF CREDIT AGREEMENT
2.1 Amendment to Preamble to the Credit Agreement. The Preamble to
the Credit Agreement is hereby amended as follows:
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(a) by deleting the reference to "$55,000,000" in the third
paragraph thereof and substituting therefor "$65,000,000".
(b) by deleting the period at the end of the penultimate
sentence of the last paragraph thereof and substituting therefor the
following:
and to finance dividends to pay the cash portion of the
redemption of the Parent Senior Exchangeable Preferred Stock
and to finance the repurchase of Senior Notes.
2.2 Amendment to Section 1.01 of the Credit Agreement. Section 1.01 of
the Credit Agreement is hereby amended as follows:
(a) by deleting the chart in the definition of "Applicable
Percentage" and replacing it with the following:
Eurodollar ABR Fee
Spread Spread Percentage
------ ------ ----------
Category 1
Leverage Ratio of greater than or equal to 3.5 to 1.25% 0% 0.375%
1.0
Category 2
Leverage Ratio of greater than or equal to 3.0 and 1.00% 0% 0.300%
less than 3.5 to 1.0
Category 3
Leverage Ratio of greater than or equal to 2.25 0.875% 0% 0.250%
and less than 3.0 to 1.0
Category 4
Leverage Ratio of less than 2.25 to 1.0 0.75% 0% 0.250%
(b) by inserting the following definitions in appropriate
alphabetical order:
"Joint Venture Funds" means any distributions or
dividends, directly or indirectly, of or from any of the Joint
Ventures or interests in the Joint Ventures or any proceeds
from the sale of, or distributions or dividends from, any of
the Joint Ventures.
"Parent Senior Exchange Debenture Indenture" shall
mean the Indenture by the Parent in favor of State Street Bank
and Trust Company, as trustee, pursuant to which the Parent
Senior Exchange Debentures are issued.
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"Parent Senior Exchange Debentures" shall mean the
12.5% Senior Exchange Debentures of the Parent issued upon the
exchange of Parent Senior Exchangeable Preferred Stock in
accordance with the Parent Senior Exchange Debenture
Indenture.
"Parent Senior Exchangeable Preferred Stock" shall
mean the 12.5% Senior Exchangeable Participating Preferred
Stock due 2007, par value $.01 per share, of the Parent.
(c) by amending the definition of "Cash Interest Expense" as
follows:
(i) by deleting the word "and" at the end of the
first clause (ii) thereof and substituting therefor a comma;
and
(ii) by adding the following new clause (iv)
immediately after clause (iii) thereof:
and (iv) interest expense payable in connection with
the Parent Senior Exchange Debentures.
(d) by amending the definition of "Joint Ventures" by adding
at the end of clause (e) thereof the phrase "or Joint Venture Funds";
(e) by amending the definition of "Leverage Ratio" by adding
the following at the end of clause (a)(ii) thereof:
less the amount of cash and Permitted Investments
held by the Parent and its Subsidiaries free of Liens
(other than Liens in favor of the Lenders) at any
time that no Revolving Loans are outstanding;
provided, that the Parent Senior Exchange Debentures
(including Parent Senior Exchange Debentures issued
as payment of interest thereon) shall be excluded
from the calculation of the Leverage Ratio.
(f) by amending the definition of "Parent Preferred Stock" by
deleting such definition in its entirety and substituting therefor the
following:
"Parent Preferred Stock" shall mean the Parent Senior
Exchangeable Preferred Stock.
(g) by amending the definition of "Permitted Investments" as
follows:
(i) by deleting the word "and" at the end of
paragraph (e) thereof;
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(ii) by relettering paragraph (f) thereof as
paragraph (g) and by deleting the phrase "paragraphs (a)-(e)
above" and substituting therefor the phrase "paragraphs
(a)-(f) above"; and
(iii) by inserting the following new paragraph (f)
between paragraphs (e) and (g) thereof:
(f) direct obligations issued by any state of the
United States of America or any political subdivision
of any such state or any public instrumentality or
municipality thereof maturing within 270 days from
the date of acquisition thereof and, at the time of
acquisition thereof having one of the two highest
ratings obtainable from either S&P or Xxxxx'x.
(h) by amending the definition of "Prepayment Event" as
follows:
(i) by deleting the word "and" at the end of clause
(xi) thereof;
(ii) by deleting the period at the end of clause
(xii) and substituting therefor the phrase "; and"; and
(iii) by adding the following new clause (xiii) at
the end thereof:
(xiii) the issuance of the Parent Senior Exchangeable
Preferred Stock and the issuance of the Parent
Senior Exchange Debentures (including Parent Senior
Exchange Debentures issued as payment of interest
thereon) upon the exchange of Parent Senior
Exchangeable Preferred Stock.
2.3 Amendment of Section 5.04 of the Credit Agreement. Section 5.04 of
the Credit Agreement is hereby amended as by deleting paragraph (h) thereof in
its entirety and substituting therefor the following:
(h) [Intentionally Omitted];
2.4 Amendment of Section 6.01 of the Credit Agreement. Section 6.01 of
the Credit Agreement is hereby amended as follows:
(a) by deleting the word "and" which appears at the end of
paragraph (o);
(b) by deleting the period at the end of paragraph (p) and
substituting therefor the phrase "; and"; and
(c) by adding the following new paragraph (q) at the end
thereof:
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(q) Indebtedness of the Parent evidenced by the
Parent Senior Exchange Debentures (including Parent
Senior Exchange Debentures issued as payment of
interest thereon).
2.5 Amendment to Section 6.06 of the Credit Agreement. Section 6.06 of
the Credit Agreement is hereby amended as follows:
(a) by deleting the word "and" at the end of clause (k)
thereof;
(b) by adding the following immediately after clause (l)
thereof but before the phrase "provided, however" therein:
, (m) the Borrower may pay dividends to the Parent in
an amount sufficient to allow the Parent (i) to
repurchase Parent Senior Exchangeable Preferred
Stock, provided that any such cash dividend for such
purpose shall not exceed $5,000,000, (ii) to pay
quarterly dividend payments on the Parent Senior
Exchangeable Preferred Stock, (iii) if such Parent
Senior Exchangeable Preferred Stock is exchanged into
Parent Senior Exchange Debentures, to make
semi-annual interest payments on such Parent Senior
Exchange Debentures and (iv) to pay fees and expenses
in connection with the issuance and repurchase of
Parent Senior Exchangeable Preferred Stock and Parent
Senior Exchange Debentures and (n) the Parent may
make the Restricted Payments described in clauses (i)
and (ii) of the immediately preceding clause (m) and
(o) the Parent may exchange its 12.5% Holdings
Participating Preferred Stock, $.01 par value, for
the Parent Senior Exchangeable Preferred Stock.
(c) by replacing the references to "clauses (c), (e) and (g)"
in clause (B) of the second proviso therein with a reference to clauses
(c), (e), (g), (m), (n) and (o); and
(d) by deleting the period at the end of such Section 6.06 and
replacing it with the following:
and (C) no dividend or distribution may be made
pursuant to subclauses (ii) or (iii) of clause (m) of
this Section 6.06 if at the time of such Restricted
Payment and immediately after giving effect thereto,
the Borrower would not be in pro forma compliance
with Sections 6.13 and 6.14 of this Agreement as of
the most recently ended fiscal quarter or year, as
the case may be.
2.6 Amendment to Section 6.07 of the Credit Agreement. Section 6.07 of
the Credit Agreement is amended as follows:
(a) by deleting the word "and" which appears at the end of
clause (vii) and substituting therefor a comma; and
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(b) by adding the following new clause (viii) at the end
thereof:
and (viii) the issuance and redemption of the Parent
Senior Exchangeable Preferred Stock and the Parent
Senior Exchange Debentures and payment-in-kind
payments thereon, and the performance by the Parent
of its obligations with respect thereto.
2.7 Amendment to Section 6.08 of the Credit Agreement. Section 6.08 of
the Credit Agreement is hereby amended as follows:
(a) by deleting the word "and" which appears at the end of
clause (iv) and substituting therefor a comma; and
(b) by adding the following new clause (vi) at the end
thereof:
and (vi) performing its obligations in connection
with the Parent Senior Exchangeable Preferred Stock
and Parent Senior Exchange Debentures.
2.8 Amendment to Section 6.09 of the Credit Agreement. Section 6.09 of
the Credit Agreement is hereby amended by adding immediately after the phrase
"Senior Notes Documents" the phrase "or the Parent Senior Exchange Debentures or
the Parent Senior Exchange Debenture Indenture, other than the repurchase of
Senior Notes for an aggregate purchase price not to exceed $10,000,000, as long
as no Default or Event of Default has occurred and is continuing or would result
therefrom and the Borrower would be in pro forma compliance with Sections 6.13,
6.14 and 6.15 of this Agreement as of the date on which such repurchase of
Senior Notes is made".
2.9 Amendment to Section 6.10 of the Credit Agreement. Section 6.10 of
the Credit Agreement is hereby amended as follows:
(a) by adding immediately after clause (i) of paragraph (a)
thereof the phrase "provided, the Lenders consent to the Amended and
Restated Certificate of Incorporation of the Parent dated July __,
1997"; and
(b) by adding immediately after the phrase "or Merger
Document" in paragraph (b) thereof the phrase "or document evidencing
or creating any Parent Senior Exchange Debentures including the Parent
Senior Exchange Indenture".
2.10 Amendment to Section 6.15 of the Credit Agreement. Section 6.15 of
the Credit Agreement is hereby amended by adding the following immediately after
the phrase "senior secured Indebtedness":
"(other than the Parent Senior Exchange Debentures, including
Parent Senior Exchange Debentures issued as payment of
interest thereon)".
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2.11 Amendment to Revolving Credit Commitments; Schedule 2.01 to the
Credit Agreement. The Credit Agreement is hereby amended by increasing the
amount of the aggregate Revolving Credit Commitments to $65,000,000 and by
inserting as a new Schedule 2.01 the Schedule 2.01 attached hereto.
SECTION 3. MISCELLANEOUS
3.1 Continuing Effect; No Other Amendments. Except as expressly amended
hereby, the Credit Agreement is, and shall remain, in full force and effect in
accordance with its terms. The amendments contained herein shall not constitute
an amendment or waiver of any other provision of the Credit Agreement or the
Loan Documents except as expressly set forth herein.
3.2 Effectiveness. This Amendment shall become effective on the date
(the "Effective Date") on which the following conditions precedent shall have
been satisfied:
(a) the Administrative Agent shall have received counterparts
of this Amendment duly executed by the Borrower, the Parent and the
Lenders;
(b) the Borrower shall have prepaid the outstanding Term
Loans, including all unpaid accrued interest thereto, and in connection
with such prepayment, the notice requirements of Section 2.12(a) are
waived hereby;
(c) amendments to the Security Documents in form and substance
satisfactory to the Administrative Agent shall have been executed by
the Loan Parties and delivered to the Administrative Agent, and such
further actions as may be reasonably requested by the Administrative
Agent shall have been taken to preserve the perfection and priority of
the Liens created under the Security Documents and the Loan Parties'
respective obligations thereunder;
(d) each Lender which is party to the Credit Agreement after
the Effective Date shall have received an amendment fee equal to 0.10%
of its Revolving Credit Commitment; and
(e) the fees and expenses required to be paid to the
Administrative Agent in connection with this Amendment shall have been
paid.
3.3 Representations and Warranties. After giving effect to the
amendments contained herein, on the Effective Date, the Company and the Parent
each hereby confirms, reaffirms and restates the representations and warranties
set forth in Article III of the Credit Agreement, except if such representation
relates to an earlier date, such representation is true and correct as of such
earlier date; provided that each reference to such Article III to "this
Agreement" shall be deemed to be a reference both to this Amendment and to the
Credit Agreement as amended by this Amendment.
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3.4 Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
3.5 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
XXXXX-XXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
XXXXX-XXXXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent, Collateral Agent,
Documentation Agent and Syndication
Agent
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Assistant Vice President
THE CHASE MANHATTAN BANK
DELAWARE, as Issuing Bank
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: President and CEO
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BANKERS TRUST COMPANY, individually
and as Co-Agent
By: /s/ Xxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
FLEET NATIONAL BANK, individually and
as Co-Agent
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
NATIONSBANK, N.A., individually and
as Co-Agent
By: /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx, Xx.
Title: Vice President
BHF-BANK AKTIENGESELLSCHAFT, as a
Lender
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxxxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Asst. Treasurer
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SCHEDULE 2.01
TO CREDIT AGREEMENT
Commitments
Lender Revolving Credit Commitment
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 212-270-1063 $16,947,000.00
Bankers Trust Company
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000 $12,071,000.00
Fleet National Bank
0 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000 $12,071,000.00
NationsBank
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000 $12,071,000.00
BHF-Bank
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000 $11,840,000.00
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Total $65,000,000.00
