EXHIBIT 4.1
SECOND AMENDMENT
THIS SECOND AMENDMENT dated as of November 29, 2001 (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 PERMANENT AMENDMENTS. Subject to the satisfaction of the
conditions precedent set forth in SECTION 4 of this Amendment, the Credit
Agreement is amended as set forth in SECTIONS 1.1 through 1.3:
1.1 AMENDMENT TO SECTION 8.1(a). Section 8.1(a) is amended in its entirety
to read as follows:
(a) MAXIMUM LEVERAGE RATIO. Permit the Leverage Ratio at any time to
exceed the applicable ratio set forth below:
PERIOD MAXIMUM LEVERAGE RATIO
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10/1/01 through 3/30/02 2.65 to 1.0
3/31/02 through 6/29/02 2.95 to 1.0
6/30/02 through 9/29/02 2.45 to 1.0
9/30/02 through 12/31/02 1.75 to 1.0
1/01/03 and thereafter 1.50 to 1.0.
1.2 AMENDMENT TO SECTION 8.1(b). Section 8.1(b) is amended in its entirety
to read as follows:
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. Permit the Consolidated
Fixed Charge Coverage Ratio for the period of four consecutive fiscal
quarters ending on the last day of any fiscal quarter to be less than the
applicable ratio set forth below:
MINIMUM FIXED
FISCAL QUARTER ENDING CHARGE COVERAGE RATIO
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12/31/01 0.60 to 1.0
3/31/01 0.70 to 1.0
6/30/02 0.80 to 1.0
9/30/02 and thereafter 1.20 to 1.0.
1.3 AMENDMENT TO SECTION 8.1(c). Section 8.1(c) is amended in its entirety
to read as follows:
(c) ADJUSTED EBITDA. Permit Adjusted EBITDA for the four consecutive
fiscal quarters ending on the last day of any fiscal quarter to be less
than the applicable amount set forth below:
FISCAL QUARTER ENDING MINIMUM ADJUSTED EBITDA
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12/31/01 through 3/31/02 $12,000,000
6/30/02 $13,500,000
9/30/02 through 9/30/03 $22,000,000
Thereafter $31,000,000.
SECTION 2 TEMPORARY AMENDMENTS. Subject to the satisfaction of the
conditions precedent set forth in SECTION 4 of this Amendment, the Credit
Agreement is amended as set forth in SECTIONS 2.1 through 2.5; PROVIDED that
upon delivery by the Borrower to the Administrative Agent of a certificate
demonstrating compliance with the financial covenants contained in Section 8.1
of the Credit Agreement as of the last day of any fiscal quarter ending after
June 30, 2002, and confirming that no Default exists, the amendments contained
in this SECTION 2 shall no longer be of any force or effect, and the provisions
of the Credit Agreement affected by such amendments shall be restored to their
form as in effect prior to this Amendment:
2.1 AMENDMENT TO DEFINITION OF "PERMITTED ACQUISITION". The definition of
Permitted Acquisition contained in Section 1 of the Credit Agreement is amended
by deleting the reference to "$5,000,000" contained therein and substituting
"$250,000" therefor.
2.2 AMENDMENT TO SECTION 8.2. The proviso at the end of Section 8.2 is
amended by (x) deleting the reference to "$2,000,000" contained in clause (i) of
the proviso and substituting "$250,000" therefor and (y) deleting the reference
to "$6,000,000" contained in clause (ii) of the proviso and substituting
"$750,000" therefor.
2.3 AMENDMENT TO SECTION 8.6. Section 8.6 is amended by (a) inserting the
word "and" at the end of clause (ii) thereof, (b) deleting the semicolon and the
word "and" at the end of clause (iii) thereof and (c) deleting clause (iv)
thereof.
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2.4 AMENDMENT TO SECTION 8.8(k). Section 8.8(k) is amended in its entirety
to read as follows:
(k) Restricted Investments permitted by SECTION 8.9; PROVIDED,
HOWEVER, that the aggregate amount of all Investments made pursuant to this
SECTION 8.8(k) after October 31, 2001 shall not exceed $250,000.
2.5 ADDITION OF SECTION 8.17. The following new Section 8.17 is added to
the Credit Agreement in proper numerical sequence:
8.17 MINIMUM AVAILABILITY. Permit the Total Revolving Credit
Commitments to be less than $7,500,000 greater than the Total Revolving
Extensions of Credit as of the end of any fiscal quarter.
SECTION 3 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 4 EFFECTIVENESS. The amendments set forth in SECTIONS 1 and 2 above
shall become effective when the Administrative Agent shall have received (i)
counterparts of this Amendment executed by the Borrower and the Required
Lenders, (ii) a Confirmation, substantially in the form of EXHIBIT A, signed by
the Borrower and each Subsidiary Guarantor, and (iii) an amendment fee for each
Lender which, on or before December 4, 2001, executes and delivers to the
Administrative Agent a counterpart hereof, such fee to be in an amount equal to
0.125% of such Lender's Commitment as of the date of this Amendment.
SECTION 5 MISCELLANEOUS.
5.1 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 Documents to "Credit Agreement" or similar
terms shall refer to the Credit Agreement as amended hereby.
5.2 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.
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5.3 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.
5.4 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.
5.5 APPLICABLE MARGIN. The Borrower agrees that, from the effectiveness of
this Amendment through the date of delivery by the Borrower to the
Administrative Agent of a certificate demonstrating compliance with the
financial covenants contained in Section 8.1 of the Credit Agreement as of the
last day of any fiscal quarter ending after June 30, 2002, and confirming that
no Default exists, (a) the Applicable Margin for Eurodollar Loans shall be
2.75%, (b) the Applicable Margin for Base Rate Loans shall be 1.50% and (c) the
Commitment Fee Rate shall be 0.625%.
5.6 CONSENT TO ACQUISITION. The Required Lenders hereby agree that the
Borrower may acquire the assets described in the letter dated November 27, 2001
from the Borrower to the Administrative Agent so long as the total consideration
paid by the Borrower (including assumed debt) in respect of such acquisition
does not exceed $2,300,000.
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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 /s/ Xxxxxxx Xxxxx
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Title: Vice President
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BANK OF AMERICA, N.A., as a Lender
By /s/ W. Xxxxxx Xxxxxxx
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Title: Managing Director
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LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
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Title: Loan Officer
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AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as
Syndication Agent and as a Lender
By: /s/ Xxxx Xxxxxxx
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Title: First Vice President
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S-1
Exhibit A
CONFIRMATION
Dated as of November 29, 2001
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 Second Amendment dated as of the date hereof
to the Credit Agreement (the "Second Amendment").
Each of the undersigned hereby confirms to the Administrative Agent and
the Lenders that, after giving effect to the Second 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 COLORADO, INC.
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 COLORADO, INC.
XXXXX & XXXXX MANAGEMENT SERVICES OF MICHIGAN, INC.
HSM INC.
XXXXXXXX HOSPITALITY INTERNATIONAL, INC.
XXXXXXXX REALTY GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President/Treasurer
XXXXX & XXXXX COMPANY
By: /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Chief Financial Officer
