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EXHIBIT 10.1
SECOND MODIFICATION AGREEMENT
This SECOND MODIFICATION AGREEMENT entered into at Boston as of
November 17, 1999, between XXXXXXX, INC., an Ohio corporation with its principal
executive offices at 0000 Xxxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx Xxxx 00000
(hereinafter, the "Borrower"), and BANKBOSTON RETAIL FINANCE INC., a Delaware
corporation with an address of 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 as agent (the
"Agent") for a syndicate of lenders (the "Lenders").
WHEREAS, Agent established a revolving line of credit (the "Revolving
Credit") pursuant to a Loan and Security Agreement dated as of March 3, 1999 (as
amended and modified from time to time, the "Loan Agreement") for the Borrower
under which the Agent and the Lenders agreed to make advances to, and other
financial accommodations for the benefit of, the Borrower until the Maturity
Date subject to the terms and conditions of the Loan Agreement. All initially
capitalized terms shall have the definitions ascribed to them in the Loan
Agreement, unless otherwise defined herein.
WHEREAS, the Borrower has requested that the Agent waive certain
defaults under the Loan Agreement; namely, the Borrower's failure to comply with
the Fixed Charge Coverage Ratio covenant (the "Existing Events of Default") and
to make other accommodations to the Borrower as set forth herein.
WHEREAS, subject to the terms and conditions in this Agreement, the
Agent is willing to modify the terms of the Loan Agreement in order to
accommodate the Borrower's request.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agent and the Borrower
mutually agree as follows:
1. EFFECTIVE DATE: The "Effective Date" of this Agreement shall
be the date upon which the Agent receives this Second
Modification Agreement, duly executed by the Borrower and the
Agent, and the Modification Fee, defined below.
2. AMENDMENTS TO LOAN AGREEMENT. The Loan Agreement is hereby
amended as follows:
a) The words "Zero Percent (0.0%)" shall be deleted
from the definition of Base Margin Rate and the words
"one quarter percent (0.25%)" shall be substituted
therefor.
b) The number "250" shall be substituted for the
number "225" in the definition of Libor Margin.
c) The words "one quarter of one percent (0.25%)"
shall be deleted from Section 2.12 and the words "one
half of one percent (0.50%)" shall be substituted
therefor.
d) The Fixed Charge Coverage Ratio set forth in
Section 5.12.1 of the Loan Agreement shall be deleted
and the following shall be substituted therefor:
"The Borrower will not suffer or permit its Fixed
Charge Coverage Ratio as measured on a
rolling/trailing 12-month basis, to be measured on
the last day of each of the Borrower's fiscal months
commencing with its month ending December, 1999, to
be less than as follows:
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December, 1999 0.78
January, 2000 0.84
February, 2000 0.74
March, 2000 0.78
April, 2000 0.83
May, 2000 0.83
June, 2000 0.84
July, 2000 0.85
August, 2000 0.91
September, 2000 0.84
October, 2000 0.96
November, 2000 0.98
December, 2000 0.97
Thereafter on a
rolling/trailing
12-month basis"
e) The following shall be added as a new Section 5.12.3:
"5.12.3 Excess Availability. The Borrower will not
suffer or permit Availability at any time during the
month of December, 1999, to be less than
$2,000,000.00, after giving effect to rents which are
currently payable under Leases and overdrafts.
f) The Interest Rate Pricing Grid shall be deleted
and the following grid shall be substituted therefor:
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FIXED CHARGE RATIO ROLLING 12 MONTH BASE MARGIN LIBOR MARGIN
AVERAGE EXCESS (Basis (Basis
AVAILABILITY Points) Points)
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I Equal to or greater Equal to or greater 25 200
than 2.3 than $7,500,000
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II Equal to or greater Less than $7,500,000 25 225
than 2.3
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III Equal to or greater N/A 25 250
than 1.8 but less
than 2.3
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IV Less than 1.8 N/A 50 275
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3. WAIVER OF EXISTING DEFAULTS. The Agent hereby waives the Existing
Events of Default, which the Borrower represents to be all the defaults
existing under the Loan Agreement as of the date of this Modification
Agreement. Agent's waiver of the Existing Events of Default is not a
waiver of any other presently existing or future arising Events of
Defaults.
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4. MODIFICATION FEE. In consideration of the willingness of the Agent to
enter into this Agreement, the Borrower shall pay the Agent for the
ratable benefit of the Lenders a Modification Fee of $30,000.00. The
Modification Fee shall be fully earned and payable upon the Agent's
execution of this Agreement. The Borrower authorizes the Agent to
charge the Loan Account for such fee.
5. ENFORCEABILITY, ETC. Except as otherwise expressly provided herein, the
Loan Agreement and the other Loan Documents are, and shall continue to
be, in full force and effect and are hereby ratified and confirmed in
all respects, except that on and after the Effective Date hereof (i)
all references in the Loan Agreement to "this Agreement", "hereto",
"hereof", "hereunder" or words of like import referring to the Loan
Agreement shall mean the Loan Agreement as amended by this Agreement
and (ii) all references in the other Loan Documents to the "Loan
Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as
amended by this Agreement. Except as expressly provided herein, the
execution, delivery and effectiveness of this Agreement shall not
operate as an amendment of any right, power or remedy of the Agent or
the Lenders under the Loan Agreement or any other Loan Document, nor
constitute an amendment of any provision of the Loan Agreement or any
other Loan Documents.
6. GENERAL PROVISIONS
a) INTEGRATION; AMENDMENT; WAIVERS. This Agreement and the
Loan Documents set forth in full are terms of agreement
between the parties and are intended as the full, complete and
exclusive contract governing the relationship between the
parties, superseding all other discussions, promises,
representations, warranties, agreements and the understandings
between the parties with respect thereto. No term of the Loan
Documents may be modified or amended, nor may any rights
thereunder be waived, except in a writing signed by the party
against whom enforcement of the modification, amendment or
waiver is sought. Any waiver of any condition in, or breach
of, any of the foregoing in a particular instance shall not
operate as a waiver of other or subsequent conditions or
breaches of the same or a different kind. The exercise or
failure to exercise any rights under any of the foregoing in a
particular instance by the Agent or the Lenders shall not
operate as a waiver of their right to exercise the same or
different rights in subsequent instances. Except as expressly
provided to the contrary in this Agreement, or in another
written agreement, all the terms, conditions, and provisions
of the Loan Documents shall continue in full force and effect.
If in this Agreement's description of an agreement between the
parties, rights and remedies of Agent or Lenders, or
obligations of the Borrower, are described which also exist
under the terms of the other Loan Documents, the fact that
this Agreement may omit or contain a briefer description of
any rights, remedies and obligations shall not be deemed to
limit any of such rights, remedies and obligations contained
in the other Loan Documents.
b) PAYMENT OF EXPENSES. Without limiting the terms of the Loan
Documents, the Borrower shall pay all costs and expenses
(including reasonable attorneys' fees) arising under or in
connection with the Loan Documents, including without
limitation, in connection with the negotiation, preparation,
execution, delivery, and enforcement of this Agreement and any
and all consents, waivers or other documents or instruments
relating thereto.
c) NO THIRD PARTY BENEFICIARIES. Except as may be otherwise
expressly provided for herein, this Agreement does not create,
and shall not be construed as creating, any rights enforceable
by any person not a party to this Agreement.
d) SEPARABILITY. If any provision of this Agreement is held by
a court of competent jurisdiction to be invalid, illegal or
unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect.
e) COUNTERPARTS. This Agreement may be executed in any number
of counterparts, which together shall constitute one and the
same agreement.
f) TIME OF ESSENCE. Time is of the essence in each of the
Liabilities of the Borrower and with respect to all conditions
to be satisfied by the Borrower.
g) CONSTRUCTION; VOLUNTARY AGREEMENT; REPRESENTATION BY
COUNSEL. This Agreement has been prepared through the joint
efforts of all the parties. Neither its provisions nor any
alleged ambiguity shall be interpreted or resolved against
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any party on the ground that such party's counsel was the
draftsman of this Agreement. Each of the parties declares that
such party has carefully read this Agreement and the
agreements, documents and instruments being entered into in
connection herewith and that such party knows the contents
thereof and sign the same freely and voluntarily. The parties
hereto acknowledge that they have been represented in
negotiations for and preparation of this Agreement and the
agreements, documents and instrument being entered into in
connection herewith by legal counsel of their own choosing,
and that each of them has read the same and had their contents
fully explained by such counsel and is fully aware of their
contents and legal effect.
h) GOVERNING LAW; FORUM SELECTION. This Agreement has been
entered into and shall be governed by the laws of the
Commonwealth of Massachusetts.
i) FURTHER ASSURANCES. The Borrower agrees to take all further
actions and execute all further documents as the Agent may
from time to time reasonably request to carry out the
transactions contemplated by this Agreement.
j) NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be given in accordance with
the Loan Agreement.
k) MUTUAL WAIVER OF RIGHT TO JURY TRIAL. THE AGENT AND BORROWER
EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING
TO: (I) THIS AGREEMENT, OR ANY OF THE AGREEMENTS, INSTRUMENTS
OR DOCUMENTS REFERRED TO HEREIN; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN THEM; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF THE AGENT, THE LENDERS OR OF THE
BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH THEM;
IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE.
l) COPIES AND FACSIMILES. This Agreement and all documents
which have been or may be hereinafter furnished by the
Borrower to the Agent may be reproduced by the Agent or the
Lenders by any photographic, photostatic, microfilm,
xerographic or similar process, and any such reproduction
shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction
was made in the regular course of business).
This Agreement is executed under seal as November 17, 1999.
Intentionally Left Blank
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This Second Modification Agreement is executed under seal as of the
date written above.
Witness
Xxxxxxx, Inc., the "Borrower"
/S/ Xxxxxx Xxxxxxxxx By:/S/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
Witness Accepted: BankBoston Retail Finance Inc.,
the "Agent"
/S/ X.X. Xxxxxx By: /S/ Xxxxx X. Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
Agreed to by:
Witness
Xxxxxxx Insurance Agency, Inc.
/S/ Xxxxxx Xxxxxxxxx By:/S/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
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