EXHIBIT (10)
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY
AGREEMENT (this "AMENDMENT"), dated as of October 1, 1999, is between The
XxXxxxx Company, Inc., XxXxxxx Relocation Services, Inc., Referral Associates of
New England, Inc., The XxXxxxx Insurance Agency, Inc., Hillshire House, Inc.,
and Real Estate Referral, Inc. (collectively, the "EXISTING BORROWERS"), X.X.
Xxxxx Northern RI, Inc., Xxxx Xxxxxxx Associates, and Xxxx X. Xxxxx, Inc.
(collectively with the Existing Borrowers, the "BORROWERS"), The XxXxxxx
Companies, Inc., (the "GUARANTOR" and, together with the Borrowers, the "CREDIT
PARTIES"), and BankBoston, N.A. (the "BANK").
W I T N E S S E T H:
WHEREAS, the Existing Borrowers, Dollar Dry Dock Real Estate, Inc., The
Heritage Group, Inc., the Guarantor and the Bank are parties to that certain
Second Amended and Restated Credit and Security Agreement dated as of May 8,
1998 (as amended, the "CREDIT AGREEMENT"); and
WHEREAS, capitalized terms used herein without definition shall have
the meanings ascribed to such terms in the Credit Agreement; and
WHEREAS, Dollar Dry Dock Real Estate, Inc. and The Heritage Group,
Inc. have been merged into Hillshire House, Inc. and no longer exist as separate
entities; and
WHEREAS, the Credit Parties have requested that the Bank amend the
Credit Agreement as hereinafter provided; and
WHEREAS, the Bank has agreed, subject to the terms and conditions of
this Amendment, to amend the Credit Agreement as hereinafter provided;
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. The parties hereto hereby agree that X.X. Xxxxx Northern RI, Inc.,
Xxxx Xxxxxxx Associates, and Xxxx X. Xxxxx, Inc. (collectively, the "NEW
BORROWERS") shall be added to the Credit Agreement as joint and several
borrowers. The New Borrowers hereby agree to be bound by all of the terms and
conditions of the Credit Agreement, the Notes and the Loans. All references to
the terms "Borrower", "Borrowers", "Credit Party" and "Credit Parties" in the
Credit Agreement and the Notes shall be deemed to include each of the New
Borrowers.
2. As security for the payment and performance of all Obligations of the
Credit Parties to the Bank, each of the New Borrowers hereby grants to the Bank
a continuing security interest in and lien on all personal property of the New
Borrowers of every kind and description, tangible or intangible, whether now or
hereafter existing, whether now owned or hereafter acquired, and wherever
located, including but not limited to the following: all inventory of the New
Borrowers; all furniture, and similar property of the New Borrowers; all
Accounts of the New Borrowers; all contract rights of the New Borrowers; all
other rights of the New Borrowers, including, without limitation, amounts due
from Affiliates, tax refunds, and insurance proceeds; all files, records
(including, without limitation, computer programs, tapes and related electronic
data processing software) and writings of the New Borrowers or in which any of
the New Borrowers has an interest in any way relating to the foregoing property;
all goods, instruments, documents of title, policies and certificates of
insurance, securities, chattel paper, deposits, cash or other property owned by
the New Borrowers or in which any of the New Borrowers has an interest
(excluding Escrowed Funds other than Pledged Escrow Proceeds) which are now or
may hereafter be in the possession of the Bank or as to which the Bank may now
or hereafter control possession by documents of title or otherwise; all general
intangibles of the New Borrowers (including, without limitation, all patents,
trademarks, trade names, service marks, copyrights and applications for any of
the foregoing; all rights to use patents, trademarks, trade names, service
marks, and copyrights of any person; and any rights of the New Borrowers to
retrieval from third parties of electronically processed and recorded
information pertaining to any of the types of Collateral); any other property,
real or personal, tangible or intangible, in which any of the New Borrowers now
has or hereafter acquires a interest or which is now or may hereafter be in the
possession of the Bank; any sums at any time credited by or due from the Bank to
the New Borrowers, including deposits; and all proceeds and products of all of
the foregoing.
3. Effective as of the date hereof, the Credit Agreement shall be amended
as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended as follows:
(i) inserting the following new definitions in the order
required by alphabetical order:
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(1) "APPLICABLE MARGIN. With respect to Acquisition
Facility Loan for any Payment Period (as defined below), the respective rates
indicated below set forth opposite the applicable Leverage Ratio indicated below
for such Payment Period (or as provided in the final paragraph of this
definition, for part of a Payment Period):
Applicable Margin
Leverage Ratio (% per annum)
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Greater than or equal to 2.00:1.00 2.00%
Greater than or equal to 1.25:1.00 and 1.50%
less than 2.00:1.00
Less than 1.25:1.00 1.25%
For purposes hereof, a "PAYMENT PERIOD" means the period commencing on
the first day of each fiscal quarter of the Credit Parties through but not
including the fifth Business Day following the earlier of the due date of the
report of chief financial officer for such fiscal quarter as required to be
delivered by the Credit Parties to the Bank pursuant to Subsection 5.1(c)
concurrently with the delivery by the Credit Parties of the financial statements
required by Subsections 5.1(a) and 5.1(b), or the date of actual receipt by the
Bank of such report of chief financial officer. Subject to and in accordance
with the final paragraph of this definition, the Applicable Margin shall be
effective for each Payment Period (or in the circumstances described in the
final paragraph of this definition, such portion of a Payment Period) whether or
not such Payment Period coincides with a LIBOR Period.
The Leverage Ratio for any Payment Period shall be determined on the
basis of the report of chief financial officer for the fiscal quarter then most
recently ended, as required to be delivered to the Bank pursuant to Subsection
5.1(c) concurrently with the delivery by the Credit Parties of the financial
statements required by Subsections 5.1(a) and 5.1(b) setting forth, among other
things, a calculation of the Leverage Ratio.
Anything herein to the contrary notwithstanding, the Applicable Margin
shall be the highest rate provided for above (i) during any period when an Event
of Default shall have occurred and be continuing or (ii) if any report of chief
financial officer shall not be delivered when required by Subsection 5.1(c) (but
only, in the case of this clause (ii), with respect to the portion of such
Payment Period prior to the delivery of such report)."
(2) "INTEREST RATE PROTECTION PRODUCTS.
Any interest rate cap agreements, interest rate swap agreements, interest rate
collar agreements, interest rate insurance and other agreements or arrangements
designed to provide protection against fluctuations in interest rates."
(ii) the definition of "Acquisition Facility
Conversion Date" is hereby deleted in its entirety and replaced with the
following new definition:
"ACQUISITION FACILITY CONVERSION DATE.
March 31, 2001."
(iii) the definition of "Acquisition Facility
Maturity Date" is hereby deleted in its entirety and replaced with the following
new definition:
"ACQUISITION FACILITY MATURITY DATE
March 31, 2006."
(iv) the definition of "Indebtedness" is hereby
amended by deleting the word "and" before clause (f) and inserting the following
language after the word "Subsidiaries" at the end of clause (f):
", and (g) all obligations under Interest
Rate Protection Products. For purposes of
calculating the outstanding amount of
Indebtedness, the "principal amount" of the
obligations of the Credit Parties and their
Subsidiaries in respect of any Interest Rate
Protection Product at any time shall be the
maximum aggregate amount (giving effect to
any netting agreements) that the Credit
Parties and their Subsidiaries would be
required to pay if such Interest Rate
Protection Product were terminated at such
time."
(v) the definition of "Obligations is hereby
deleted in its entirety and replaced with the following new definition:
"OBLIGATIONS. Any and all obligations of the
Credit Parties to the Bank of every kind and
description, direct or indirect, absolute or
contingent, primary or secondary, due or to
become due, now existing or hereafter
arising, regardless of how they arise or by
what agreement or instrument, if any,
including without limitation any Interest
Rate Protection Product, and including
obligations to perform acts and refrain from
taking action as well as obligations to pay
money."
(b) Subsection 2.7(b) is hereby in its entirety and
replaced with the following:
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"(b) From October 1, 1999 through and
including the Acquisition Facility
Conversion Date, each Acquisition Loan shall
bear interest on the outstanding principal
amount thereof at a rate per annum equal to
either (i) the Base Rate, or (ii) the LIBOR
Rate plus the Applicable Margin."
(c) Subsection 2.8(b) is hereby deleted in its
entirety and replaced with the following:
"(b) The Borrowers shall pay to the Bank
during the Acquisition Facility Commitment
Period a commitment fee, which shall accrue
at a rate per annum (computed on the basis
of the actual number of days elapsed over a
360-day year) equal to the percentage set
forth below opposite the applicable Leverage
Ratio for the fiscal quarter then most
recently ended for which financial
statements have been delivered pursuant to
Subsections 5.1(a) and 5.1(b), on the
average daily amount of the unborrowed
portion of the Acquisition Facility
Commitment, payable monthly in arrears on
the last day of each month.
Leverage Ratio Commitment Fee Rate
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Greater than or equal to 2.00:1.00 .375%
Greater than or equal to 1.25:1.00 and .325%
less than 2.00:1.00
Less than 1.25:1.00 .250%
The applicable Leverage Ratio shall be
determined on the basis of the report of
chief financial officer for the fiscal
quarter then most recently ended, as
required to be delivered to the Bank
pursuant to Subsection 5.1(c) concurrently
with the delivery by the Credit Parties of
the financial statements required by
Subsections 5.1(a) and 5.1(b) setting forth,
among other things, a calculation of the
Leverage Ratio. Anything herein to the
contrary notwithstanding, the commitment fee
rate shall be the highest rate provided for
above during any period when an Event of
Default shall have occurred and be
continuing."
(d) Section 5.7 is hereby amended by deleting
clause (c) in its entirety and substituting in lieu thereof the following:
"(c) as at the end of each fiscal quarter
during Fiscal Year 2000 and each fiscal
quarter thereafter of not greater than
2.50:1.00."
(e) Section 6.1 is hereby amended by deleting
the word "and" at the end of Subsection 6.1(g) and by deleting Subsection 6.1(h)
in its entirety and substituting in lieu thereof the following:
"(h) Interest Rate Protection Products for
the purpose of hedging in the ordinary
course of business on terms and conditions
acceptable to the Bank; and
(i) other Indebtedness incurred by the
Credit Parties after the date of this
Agreement with prior approval of the Bank."
4. Each of the Credit Parties hereby represents and warrants to the
Bank that as of the date hereof all of the representations and warranties of the
Credit Parties set forth in the Credit Agreement are true and correct and no
Default or Event of Default has occurred and is continuing.
5. Except as otherwise expressly set forth in this Amendment, nothing
herein shall be deemed to constitute an amendment, modification or waiver of any
of the terms and conditions of the Credit Agreement or the Notes, all of which
terms and conditions shall remain in full force and effect as originally
constituted and the undersigned shall remain obligated thereunder.
6. This Amendment shall be deemed to be a contract made under seal and
shall be governed by, and construed and enforced in accordance with the laws of
The Commonwealth of Massachusetts, without regard to choice of law principles.
7. This Amendment may be executed in any number of counterparts, each
of which, when executed and delivered, shall be an original, but all
counterparts shall together constitute one instrument.
8. This Amendment shall be effective as of the date on which each of
the Borrowers and the Bank shall have executed and delivered to the Bank this
Amendment.
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IN WITNESS WHEREOF, the parties have caused this First Amendment to Second
Amended and Restated Credit and Security Agreement to be executed by their duly
authorized officers as a sealed instrument as of the date first above written.
"BORROWERS"
THE XXXXXXX COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
XXXXXXX RELOCATION SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: President
REFERRAL ASSOCIATES OF NEW ENGLAND, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: President
THE XXXXXXX INSURANCE AGENCY, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx Xxxxx
Title: President
HILLSHIRE HOUSE, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
REAL ESTATE REFERRAL, INC.
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: President
X.X. XXXXX NORTHERN RI, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
XXXX XXXXXXX ASSOCIATES
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By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
XXXX X. XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
"GUARANTOR"
THE XXXXXXX COMPANIES, INC.
By: /s/ Xxxxxxx X. XxXxxxx
Name: Xxxxxxx X. XxXxxxx
Title: President
"BANK"
BANKBOSTON, N.A.
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: Director
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