SECOND AMENDMENT
TO
THIRD AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AND SECURITY
AGREEMENT (this "Second Amendment"), dated as of April 30, 1997, is entered into
among Xxxxxx Xxxxx & Company (formerly known as The Xxxxx Company) (d/b/a Xxxxxx
Xxxxx Worldwide) ("Xxxxx"), Xxxxxx Xxxxx Investment Consulting, Inc. (formerly
known as Xxxxx Investment Consulting, Inc.) ("WWIC" and, together with Xxxxx,
the "Companies"), NationsBank, N.A. ("NationsBank"), as a Bank and as Agent (the
"Agent") for the Banks, and the Banks identified as such on the signature pages
hereto (the "Banks"). Terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement (as defined below).
RECITALS
A. The Companies, as Borrowers, the Banks and the Agent entered into that
certain Third Amended and Restated Credit Agreement dated as of January 5, 1996
(as amended and supplemented from time to time, the "Credit Agreement") and that
certain Consent and Agreement dated as of March 6, 1996 (the "Consent" and,
together with the Credit Agreement, the "Agreements").
B. Effective March 31, 1996, Xxxxx entered into the Wellspring Joint
Venture.
C. Wellspring Joint Venture is in the final stages of negotiating a five
year services agreement with Federal Express Corporation ("Federal Express")
scheduled to commence September 1, 1997. As a condition to entering into the
agreement, Federal Express is requesting a separate guaranty from Xxxxx and from
State Street Bank and Trust Company, for the benefit of Wellspring Joint
Venture, in the amount of $5,310,000 each (the "Federal Express Guaranty").
D. The Companies have requested that the Banks agree to modify certain of
the covenants and agreements contained in the Credit Agreement to permit the
Federal Express Guaranty.
E. The Banks have agreed to execute and deliver this Second
Amendment on the terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Amendment.
Section 7.2(a) of the Credit Agreement is hereby amended by replacing
subsection (iv) thereof in its entirety with the following:
(iv) guaranty and other contingent obligations, excluding
contingencies arising out of office and equipment leases and the Guaranty,
which shall not be greater than $7,500,000 in the aggregate at the end of
any fiscal quarter.
2. Condition Precedent. This Second Amendment shall not be
effective until the Agent has received copies of this Second Amendment duly
executed by the Companies and the Majority Banks.
3. Liens. The Companies affirm the liens and security interests created
and granted in the Credit Agreement and the other Loan Documents and agree that
this Second Amendment shall in no manner adversely affect or impair such liens
and security interests.
4. Representations and Warranties. Each Company hereby represents and
warrants to the Banks and the Agent that (a) no Event of Default or Incipient
Default exists and is continuing under the Credit Agreement except as is being
waived pursuant to paragraph 1 above; (b) such Company has no claims,
counterclaims, offsets, credits or defenses to the Loan Documents and the
performance of its obligations thereunder, or if such Company has any such
claims, counterclaims, offsets, credits or defenses to the Loan Documents or any
transaction related to the Loan Documents, the same are hereby waived,
relinquished and released in consideration of the Majority Banks' execution and
delivery of this Second Amendment; and (c) since the date of the last financial
statements of the Companies delivered to the Banks, no material adverse change
has occurred in the business, financial condition, operations or prospects of
such Company other than as previously disclosed to the Banks.
5. No Other Changes. Except as expressly modified and amended in
this Second Amendment, all of the terms, provisions and conditions of the
Credit Agreement and the other Loan Documents shall remain unchanged.
6. Counterparts. This Second Amendment may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute one and the same
instrument.
7. ENTIRETY. THIS SECOND AMENDMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE
ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDE ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, IF ANY, RELATING TO THE SUBJECT MATTER HEREOF. THESE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
as of the date first above written.
COMPANIES
XXXXXX XXXXX & COMPANY (f/k/a
The Xxxxx Company) (d/b/a Xxxxxx
Xxxxx Worldwide)
ATTEST: /S/Xxxx X. Xxxxxxxxx By: /S/Xxxxxxx X. Xxxxxx
Name: Xxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Treasurer Title: V.P. Finance and CFO
XXXXXX XXXXX INVESTMENT
CONSULTING, INC. (f/k/a Xxxxx
Investment Consulting, Inc.)
WITNESS: /S/Xxxxxx X. Xxxxxxx By: /S/Xxxxxx X. Xxxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Notary Public Title: Secretary
[Signatures Continued]
BANKS
NATIONSBANK, N.A., as Agent
and as a Bank
By: /S/Xxxxxxxxx X. Xxxx
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
THE FIRST NATIONAL BANK OF
CHICAGO (successor in interest to
NBD Bank)
By: /S/Xxx X. Xxxx
Name: Xxx X. Xxxx
Title: Vice President
MELLON BANK, N.A.
By: /S/J. Xxxxxxx Xxxxxxxx
Name: J. Xxxxxxx Xxxxxxxx
Title: Vice President
