Amendment No. 2 to Financing Agreement among Alderwoods Group, Inc., CIT Group/Business Credit, Inc., and Credit Parties

Summary

This amendment updates the terms of a financing agreement between Alderwoods Group, Inc., CIT Group/Business Credit, Inc. (as lender and agent), and other credit parties. The changes primarily extend certain deadlines and clarify obligations related to property liens and reporting requirements. The amendment becomes effective once all parties sign it. All other terms of the original financing agreement remain in effect, and the parties confirm their ongoing obligations and representations under the agreement.

EX-10.10 14 a2070010zex-10_10.txt EXHIBIT 10.10 EXHIBIT 10.10 AMENDMENT NO. 2 TO FINANCING AGREEMENT THIS AMENDMENT NO. 2 TO FINANCING AGREEMENT dated as of February 1, 2002 (this "AMENDMENT") is by and among ALDERWOODS GROUP, INC., a Delaware corporation ("BORROWER"), CIT GROUP/BUSINESS CREDIT, INC., a New York corporation ("CIT"), for itself as Lender, and as Agent for the Lenders, and the Credit Parties to the Financing Agreement listed on Annex A thereto ("CREDIT PARTIES") W I T N E S S E T H : WHEREAS, Borrower, Credit Parties and CIT, as Agent and Lender, have entered into that certain Financing Agreement dated as of January 2, 2002 (as amended, restated or otherwise modified prior to date hereof, the "FINANCING AGREEMENT"; capitalized terms used herein shall have the meanings assigned to such terms in the Financing Agreement as amended hereby unless otherwise defined herein); and WHEREAS, Borrower, Credit Parties and CIT, as Agent and Lender, desire to amend the Financing Agreement as set forth herein. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the parties hereto hereby agree as follows: 1. AMENDMENTS. (a) Section 6.11 of the Financing Agreement is hereby amended by deleting "30 days" and inserting in the place thereof "61 days". (b) Section 7.1.11 of the Financing Agreement is hereby amended as follows: (aa) Section 7.1.11(a) is hereby amended by adding the following new Section 7.1.11(a)(iii): "(iii) At the request of Agent, the applicable Credit Party shall promptly execute and deliver to Agent for recordation such amendments to the Mortgages for the Designated Real Estate and the Part II Real Estate as may be deemed necessary by Agent to cause the exhibits thereto to accurately reflect the mergers listed on ANNEX C and the various merger certificates issued by the Governmental Authorities." (bb) Section 7.1.11(b) is hereby amended by deleting "thirty (30) days" and inserting in the place thereof "forty-six (46) days". (cc) Section 7.1.11(e) is hereby amended by deleting "thirty (30) days" and inserting in the place thereof "forty-six (46) days". (dd) The second sentence of Section 7.1.11(f) is hereby amended by deleting "30 days" and inserting in the place thereof "61 days". (ee) The third sentence of Section 7.1.11(f) is hereby amended by deleting "30 days" and inserting in the place thereof "46 days". (ff) Section 7.1.11(g) is hereby amended by deleting "30 days" and inserting in the place thereof "46 days". (gg) Section 7.1.11 (i) is hereby amended by deleting "within the time provided on SCHEDULE 7.1.11(i) for such property" and inserting in the place thereof "within sixty-one (61) days following the Closing Date". (hh) The third sentence of Section 7.1.11(i) is hereby amended and restated to read as follows: "In addition, Borrower shall furnish to Agent thirty (30) days after the Closing Date and, within thirty (30) days following the end of each month thereafter, a written status update, in form and substance satisfactory to Agent, of Borrower's progress in removing and/or satisfying all Liens of record with respect to the properties described on SCHEDULE 7.1.11(i)." (ii) Section 7.1.11(j) is hereby amended by deleting "Within 30 days of the Closing Date" and inserting in the place thereof the following: "Borrower shall furnish to Agent thirty (30) days after the Closing Date and, within thirty (30) days following the end of each month thereafter, a written status update, in form and substance satisfactory to Agent, of Borrower's progress in terminating or releasing each Lien described on SCHEDULE 7.1.11(j). In addition, within sixty-one (61) days following the Closing Date". (jj) Section 7.1.11(k) is hereby amended by deleting "30 days" and inserting in the place thereof "46 days". 2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective upon the date CIT shall have received executed counterparts to this Amendment from Borrower and each Credit Party and CIT as Agent and sole Lender shall have executed this Amendment and delivered a fully executed copy of this Amendment to the Borrower. 3. REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. Borrower and Credit Parties hereby each and individually represent and warrant that: 2 (a) the execution, delivery and performance by Borrower and Credit Parties of this Amendment have been duly authorized by all necessary corporate action and this Amendment is a legal, valid and binding obligation of Borrower and Credit Parties enforceable against Borrower and Credit Parties in accordance with its terms; (b) each of the representations and warranties made by Borrower and Credit Parties contained in the Financing Agreement and the Credit Documents is true and correct in all material respects on and as of the date hereof as if made on the date hereof, except to the extent that such representations and warranties expressly relate to an earlier date; (c) Neither the execution, delivery and performance of this Amendment nor the consummation of the transactions contemplated hereby does or shall contravene, result in a breach of, or violate (i) any provision of Borrower's or any Credit Parties' certificate or articles of incorporation or bylaws, (ii) any law or regulation, or any order or decree of any court or government instrumentality, or (iii) any loan agreement, lease, indenture, mortgage, deed of trust, note, security agreement or pledge agreement to which Borrower or any Credit Party is a signatory or by which Borrower or such Credit Party or any of Borrower's or such Credit Party's assets are bound; (d) no Default or Event of Default has occurred and remains outstanding under the Financing Agreement as of the date hereof; and. (e) Borrower acknowledges and agrees that pursuant to the special availability reserve letter dated as of January 2, 2002 regarding the establishment of certain Availability Reserves (the "SPECIAL AVAILABILITY RESERVE LETTER"), the Agent and Lenders have no obligation to advance Revolving Loans or arrange for the issuance of Letters of Credit other than the Initial Letters of Credit until Borrower furnishes to the Agent and Lenders accurate and verifiable reporting, in form and substance acceptable to the Agent, concerning the amount of indebtedness secured by the Liens noted on SCHEDULES 7.1.11(i) and 7.1.11(j) (the "SPECIAL RESERVE LIENS") and the amount of the assets included in the Borrowing Base which may be subject to a Special Reserve Lien (such reporting requirement, the "SPECIAL RESERVE LIEN REPORT"). Borrower acknowledges that as of the date of this Amendment, Borrower has not yet furnished to Agent and Lenders a Special Reserve Lien Report. 4. MISCELLANEOUS. (a) Except as expressly amended herein, all of the terms and provisions of the Financing Agreement and the Credit Documents are ratified and confirmed in all respects and shall remain in full force and effect. (b) Upon the effectiveness of this Amendment, all references in the Credit Documents to the Financing Agreement shall mean the Financing Agreement as amended by this Amendment and all references in the Financing Agreement to "this Agreement," "hereof," "herein," or similar terms, shall mean and refer to the Financing Agreement as amended by this Amendment. 3 (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as an amendment to or waiver of any right, power or remedy of the Agent or any Lender under the Financing Agreement or any of the Credit Documents, or constitute an amendment or waiver of any provision of the Financing Agreement or any of the Credit Documents nor shall it prejudice any rights, powers or remedies that Agent, on behalf of Lenders, or any Lender may now have or may have in the future under or in connection with the Financing Agreement or any other Credit Document. (d) This Amendment may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same agreement. This Amendment may be executed and delivered by telecopier with the same force and effect as if the same were a fully executed and delivered original manual counterpart. (e) Borrower and Credit Parties agree to reimburse Agent and Lenders for all reasonable fees, costs and expenses in connection with this Amendment, including the fees, costs and expenses of counsel or other advisors for advice, assistance or other representation in connection with this Amendment. (f) Any provision contained in this Amendment that is held to be inoperative, unenforceable or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or invalid without affecting the remaining provisions of this Amendment in that jurisdiction or the operation, enforceability or validity of that provision in any other jurisdiction. (g) Section headings in this Amendment are included herein for convenience of reference only and shall not constitute a part of this Amendment for any other purposes. 5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. [SIGNATURE PAGE FOLLOWS] 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the date set forth above. THE CIT GROUP/BUSINESS CREDIT, INC., AS THE AGENT AND A LENDER By: /s/ Anthony Alexander -------------------------- Its: Vice President ALDERWOODS GROUP, INC. By: /s/ Azalea Angeles -------------------------- Its: Assistant Secretary -------------------------- CREDIT PARTIES: Each of the Credit Parties listed on ANNEX A attached hereto By: /s/ L. Langford -------------------------- Its: Secretary -------------------------- On behalf of and intending to legally bind each of the Credit Parties listed on ANNEX A hereto [Signature Page to Amendment No. 2 to Financing Agreement] ANNEX A CREDIT PARTIES ALASKA Alderwoods (Alaska), Inc. ARIZONA Alderwoods (Arizona), Inc. Hatfield Funeral Home, Inc. Phoenix Memorial Park Association ARKANSAS Alderwoods (Arkansas), Inc. CALIFORNIA Advance Funeral Insurance Services Alderwoods Group (California), Inc. Alderwoods (Texas), Inc. Earthman LP, Inc. Universal Memorial Centers V, Inc. Universal Memorial Centers VI, Inc. Whitehurst-Lakewood Memorial Park and Funeral Service COLORADO Alderwoods (Colorado), Inc. CONNECTICUT Alderwoods (Connecticut), Inc. DELAWARE Administration Services, Inc. Alderwoods (Alabama), Inc. Alderwoods (Commissioner), Inc. Alderwoods (Delaware), Inc. Alderwoods (Mississippi), Inc. Alderwoods (Texas), L.P. American Burial and Cremation Centers, Inc. H.P. Brandt Funeral Home, Inc. Lienkaemper Chapels, Inc. Neweol (Delaware), L.L.C. Osiris Holding Corporation DISTRICT OF COLUMBIA Alderwoods (District of Columbia), Inc. FLORIDA Coral Ridge Funeral Home and Cemetery, Inc. Funeral Services Acquisition Group, Inc. Garden Sanctuary Acquisition, Inc. Kadek Enterprises of Florida, Inc. Levitt Weinstein Memorial Chapels, Inc. MHI Group, Inc. Naples Memorial Gardens, Inc. Osiris Holding of Florida, Inc. Security Trust Plans, Inc. GEORGIA Advanced Planning of Georgia, Inc. Alderwoods (Georgia), Inc. Alderwoods (Georgia) Holdings, Inc. Green Lawn Cemetery Corporation Poteet Holdings, Inc. Southeastern Funeral Homes, Inc. HAWAII Alderwoods (Hawaii), Inc. IDAHO Alderwoods (Idaho), Inc. ILLINOIS Alderwoods (Chicago Central), Inc. Alderwoods (Chicago North), Inc. Alderwoods (Chicago South), Inc. Alderwoods (Illinois), Inc. Chapel Hill Memorial Gardens & Funeral Home Ltd. Chicago Cemetery Corporation Elmwood Acquisition Corporation Mount Auburn Memorial Park, Inc. Pineview Memorial Park, Inc. Ridgewood Cemetery Company, Inc. Ruzich Funeral Home, Inc. The Oak Woods Cemetery Association Woodlawn Cemetery of Chicago, Inc. Woodlawn Memorial Park, Inc. INDIANA Advance Planning of America, Inc. Alderwoods (Indiana), Inc. Ruzich Funeral Home, Inc. IOWA Alderwoods (Iowa), Inc. KANSAS Alderwoods (Kansas), Inc. KENTUCKY Alderwoods (Partner), Inc. LOUISIANA Alderwoods (Louisiana), Inc. MARYLAND Alderwoods (Maryland), Inc. MASSACHUSETTS Alderwoods (Massachusetts), Inc. Doba-Haby Insurance Agency, Inc. MICHIGAN Alderwoods (Michigan), Inc. MINNESOTA Alderwoods (Minnesota), Inc. MISSISSIPPI Family Care, Inc. Riemann Enterprises, Inc. Stephens Funeral Fund, Inc. MISSOURI Alderwoods (Missouri), Inc. MONTANA Alderwoods (Montana), Inc. NEBRASKA Alderwoods (Nebraska), Inc. NEVADA Alderwoods (Nevada), Inc. NEW HAMPSHIRE Robert Douglas Goundrey Funeral Home, Inc. St. Laurent Funeral Home, Inc. ZS Acquisition, Inc. NEW MEXICO Alderwoods (New Mexico), Inc. Strong-Thorne Mortuary, Inc. NEW YORK Alderwoods (New York), Inc. Northeast Monument Company, Inc. NORTH CAROLINA Alderwoods (North Carolina), Inc. Carothers Holding Company, Inc. Lineberry Group, Inc. Reeves, Inc. Westminster Gardens, Inc. NORTH DAKOTA Alderwoods (North Dakota), Inc. OHIO Alderwoods (Ohio) Cemetery Management, Inc. Alderwoods (Ohio) Funeral Home, Inc. Bennett-Emmert-Szakovits Funeral Home, Inc. OKLAHOMA Alderwoods (Oklahoma), Inc. OREGON Alderwoods (Oregon), Inc. The Portland Memorial, Inc. Universal Memorial Centers I, Inc. Universal Memorial Centers II, Inc. Universal Memorial Centers III, Inc. PENNSYLVANIA Alderwoods (Pennsylvania), Inc. Bright Undertaking Company H. Samson, Inc. Knee Funeral Home of Wilkinsburg, Inc. Nineteen Thirty-Five Holdings, Inc. Oak Woods Management Company RHODE ISLAND Alderwoods (Rhode Island), Inc. SOUTH CAROLINA Alderwoods (South Carolina), Inc. Graceland Cemetery Development Co. SOUTH DAKOTA Alderwoods (South Dakota), Inc. TENNESSEE Alderwoods (Tennessee), Inc. DMA Corporation Eagle Financial Associates, Inc. TEXAS Alderwoods (Texas) Cemetery, Inc. Dunwood Cemetery Service Company Earthman Cemetery Holdings, Inc. Earthman Holdings, Inc. Travis Land Company Waco Memorial Park VIRGINIA Alderwoods (Virginia), Inc. WASHINGTON Alderwoods (Washington), Inc. Evergreen Funeral Home and Cemetery, Inc. Green Service Corporation S & H Properties and Enterprises, Inc. Vancouver Funeral Chapel, Inc. WEST VIRGINIA Alderwoods (West Virginia), Inc. WISCONSIN Alderwoods (Wisconsin), Inc. Northern Land Company, Inc. WYOMING Alderwoods (Wyoming), Inc.