Exhibit 4
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FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of the
29th day of September, 2000, by and among XXXXXXXX CORPORATION, a corporation
organized under the laws of the State of Iowa (the "Borrower"), WAACHOVIA BANK,
N.A., as Agent (the "Agent") and a Bank, and the financial institutions
referenced on the signature pages hereto(collectively referred to herein as the
"Banks").
R E C I T A L S:
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The Borrower, the Agent and the Banks have entered into a certain Credit
Agreement dated as of December 10, 1998 (the "Credit Agreement"). Capitalized
terms used in this Amendment which are not otherwise defined in this Amendment
shall have the respective meanings assigned to them in the Credit Agreement.
The Borrower has requested the Agent and the Banks to amend the Credit
Agreement to modify certain provisions of the Credit Agreement as more fully
set forth herein. The Banks, the Agent and the Borrower desire to amend the
Credit Agreement upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the Recitals and the mutual promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby ackowledged, the Borrower, the Agent and the
Banks, intending to be legally bound hereby, agree as follows:
SECTION 1. Recitals. The Recitals are incorporated herein by reference and
shall be deemed to be part of this Amendment.
SECTION 2. Amendments. The Credit Agreement is hereby amended as set forth in
this Section 2.
SECTION 2.01. Amendment to Section 1.01. The following definition is hereby
amended and restated to read in its entirety as follows:
"Consolidated Fixed Charges" for any period means the sum of (I)
Consolidated Interest Expense for such period; (ii) all scheduled payments
of principal in respect of Debt (excluding principal payments made with
respect to any revolving line of credit) of the Borrower or any of its
Consolidated Subsidiaries for such period; and (iii) all dividends paid by
the Borrower and its Consolidated Subsidiaries for such period.
SECTION 2.02. Amendment to Section 5.04. Section 5.04 of the Credit Agreement
is amended and restated in its entirety to read as follows:
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SECTION 5.04. Fixed Charges Coverage. At the end of each
Fiscal Quarter ending during the period set forth below, the
Fixed Charge coverage Ratio shall not be less than the applicable
ratio set forth below:
Fiscal Quarter ending: Ratio
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During period from and 2.00 to 1.00
including 9/30/98 through but
excluding 9/30/00
During period from and 1.75 to 1.00
including 9/30/00 and
thereafter
SECTION 3. Conditions to Effectiveness. The effectiveness of this Amendment
and the obligations of the Banks hereunder are subject to the following
conditions, unless the Required Banks waive such conditions:
(a) receipt by the Agent from each of the parties hereto of a duly executed
counterpart of this Amendment signed by such party;
(b) receipt by the Agent for the ratable account of each Bank of an amendment
fee in aggregate amount equal to .08% multiplied by the aggregate amount of
the Commitments of all of the Banks; and
(c) the fact that the representations and warranties of the Borrower contained
in Section 5 of the Amendment shall be true on and as of the date hereof.
SECTION 4. No Other Amendment. Except for the amendments set forth above, the
text of the Credit Agreement shall remain unchanged and in full force and
effect. This Amendment is not intended to effect, nor shall it be construed
as, a novation. The Credit Agreement and this Amendment shall be construed
together as a single agreement. Nothing herein contained shall waive, annul,
vary or affect any provision, condition, covenant or agreement contained in the
Credit Agreement, except as herein amended, nor affect nor impair any rights,
powers or remedies under the Credit Agreement as hereby amended. The Banks and
the Agent do hereby reserve all of their rights and remedies against all
parties who may be or may hereafter become secondarily liable for the repayment
of the Notes. The Borrower promises and agrees to perform all of the
requirements, conditions, agreements and obligations under the terms of the
Credit Agreement, as heretofore and hereby amended, the Credit Agreement, as
amended, being hereby ratified and affirmed. The Borrower hereby expressly
agrees that the Credit Agreement, as amended, is in full force and effect.
SECTION 5. Representations and Warranties. The Borrower hereby represents and
warrants to each of the Banks as follows:
(a) No Default or Event of Default, nor any act, event, condition or
circumstance which with the passage of time or the giving of notice, or
both, would constitute an Event of Default, under the Credit Agreement or
any other Loan Document has occurred and is continuing unwaived by the
Banks on the date hereof.
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(b) The Borrower has the power and authority to enter into this Amendment and
to do all acts and things as are required or contemplated hereunder, or
thereunder, to be done, observed and performed by it.
(c) This Amendment has been duly authorized, validly executed and delivered by
one or more authorized officers of the Borrower and constitute legal, valid
and binding obligations of the Borrower enforceable against it in
accordance with their terms, provided that such enforceability is subject
to general principles of equity.
(d) The execution and delivery of this Amendment and the Borrower's performance
hereunder do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having
jurisdiction over the Borrower, nor be in contravention of or in conflict
with the articles of incorporation or bylaws of the Borrower, or the
provision of any statute, or any judgment, order or indenture, instrument,
agreement or undertaking, to which the Borrower si party or by which the
Borrower's assets or properties are or may become bound.
SECTION 6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
SECTION 7. Governing Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of Georgia.
SECTION 8. Effective Date. This Amendment shall be effective as of September
30, 2000.
IN WITNESS WHEREOF, the parties hereto have executed and delivered, or have
caused their respective duly authorized officers or representatives to execute
and deliver, this Amendment as of the day and year first above written.
BORROWER:
XXXXXXXX CORPORATION
/s/ Xxxxxx X. Xxxxxx
By: Xxxxxx X. Xxxxxx (SEAL)
Title: Corporate Controller
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WACHOVIA BANK, N.A., as Agent and a Bank
By: S. Xxxxxxx Xxxxx (SEAL)
Title: Senior Vice President
BANK ONE, NA, as Syndication Agent and a Bank
By: Xxxxxx X. Xxxxxxxxxxx
Title: Corporate Banking Officer
SUNTRUST BANK, as Documentation Agent and a Bank
By: Xxxxxxx X. Xxxxxxx (SEAL)
Title: Vice President
FLEET NATIONAL BANK
By: Xxxxxx Xxxxxxxx (SEAL)
Title: Vice President
BNP PARIBAS
By: Xxxxx X. Xxxxxxx (SEAL)
Title: Vice President
By: Serge Desrayeud (SEAL)
Title: Group Head
XXXXX FARGO BANK IOWA, N.A.
By: Xxxxxxx X. Xxxxx Xx. (SEAL)
Title: Vice President
THE BANK OF NEW YORK
By: Xxxxxxx X. Xxxxxxx (SEAL)
Title: Vice President
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