EXHIBIT 10.oo
FIRST AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
THIS FIRST AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (the "First Amendment")
dated as of May 14, 1996 is to that Credit Agreement dated as of July 18, 1995
(as amended and modified hereby and as further amended and modified from time to
time hereafter, the "Credit Agreement") by and among MACSAVER FINANCIAL
SERVICES, INC., a Delaware corporation (the "Borrower"), XXXXXX-XXXXXX COMPANY,
a Virginia corporation (the "Company"), the Lenders, WACHOVIA BANK OF GEORGIA,
N.A., as Administrative Agent, NATIONSBANK, N.A, as Documentation Agent, and
CRESTAR BANK and FIRST UNION NATIONAL BANK OF VIRGINIA, as Co-Agents. Terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, the Lenders have, pursuant to the terms of the Credit Agreement, made
available to the Borrower a $400,000,000 credit facility for the purposes set
forth therein;
WHEREAS, the Borrower has requested modification of a financial covenant; and
WHEREAS, the requested modifications require the consent of the Required
Lenders;
WHEREAS, the Required Lenders for and on behalf of the Lenders have agreed to
the requested changes on the terms and conditions hereinafter set forth;
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:
A. The Credit Agreement is amended in the following respects:
1. The following definitions are amended or added to Section 1.1 to read as
follows:
"Applicable Percentage" means, for any day, the appropriate rate per annum set
forth in Schedule 2.1(d), it being understood that the Applicable Percentage for
(i) Base Rate Loans shall be the percentage set forth under the appropriate
column entitled "Applicable Margin for Base Rate Loans", (ii) Eurodollar Loans
shall be the percentage set forth under the appropriate column entitled
"Applicable Margin for Eurodollar Loans" and (iii) the Facility Fee shall be the
percentage set forth under the appropriate column entitled "Applicable
Percentage for Facility Fee". The Applicable Percentages shall be adjusted on
the following dates (each being an "Interest Determination Date"):
(i) where the Company has a senior unsecured (non-credit enhanced) long term
debt rating from both S&P and Xxxxx'x, five (5) days after receipt of notice by
the Administrative Agent of a change in any such debt rating, based on such debt
ratings;
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(ii) where the Company previously had a senior unsecured (non-credit enhanced)
long term debt rating from both S&P and Xxxxx'x, but either or both of S&P and
Xxxxx'x withdraws its rating, five (5) days after receipt by the Administrative
Agent of notice of the withdrawal of such debt rating, based on the information
contained in the most recent annual or quarterly financial statements and
related certificates provided in accordance with Sections 7.1(a) and 7.1(b); and
(iii) where the Company does not have a senior unsecured (non-credit enhanced)
long term debt rating from both S&P and Xxxxx'x, five (5) days after the date of
delivery of the annual and quarterly financial statements and related
certificates provided in accordance with Section 7.1(a) and 7.1(b), but not in
any event to a date later than the date 5 days after the date by which such
financial statements and related certificates are due in accordance with the
terms thereof, based on the information contained in such financial statements.
The Applicable Percentage shall be effective from an Interest Determination Date
until the next such Interest Determination Date. The Administrative Agent shall
determine the appropriate Applicable Percentages promptly upon receipt of the
notices and information necessary to make such determination and shall promptly
notify the Borrower and the Lenders of any change thereof. Such determinations
by the Administrative Agent shall be conclusive absent manifest error. The
Applicable Percentage from May 14, 1996 (being the effective date of the First
Amendment to Credit Agreement) shall be based on Pricing Level II assuming a
Fixed Charge Coverage Ratio of less than 1.6:1.0, subject to adjustment as
provided herein.
"Pricing Level" means the applicable pricing Level for the Applicable Percentage
shown in Schedule 2.1(d).
2. The first clause of Section 2.2(a) preceding the proviso is amended to read
as follows:
During the Commitment Period, subject to the terms and conditions hereof, from
such time as the Company shall have attained, and for so long as the Company
shall maintain
(A) Pricing Level I or II status, where the Company does not have a senior
unsecured (non-credit enhanced) long term debt rating from both S&P and Xxxxx'x,
or
(B) Pricing Level I, II, III or IV status, where the Company has a senior
unsecured (non-credit enhanced) long term debt rating from both S&P and Xxxxx'x,
the Borrower may from time to time request and each Lender may, in its sole
discretion, agree to make, Competitive Loans to the Borrower;
3. Subsection (e) of Section 7.7 is renumbered as subsection (f) and a new
subsection (e) is added to read as follows:
(e) promptly notify the Administrative Agent of the issuance of a senior
unsecured (non-credit enhanced) long term debt rating by S&P or Xxxxx'x and of
any change in or withdrawal of such rating, together with any correspondence or
evidence thereof from S&P or Xxxxx'x;
4. The financial covenant in Section 7.9(b) relating to the Fixed Charge
Coverage Ratio is amended to read as follows:
(b) Fixed Charge Coverage Ratio. As of the end of each fiscal quarter,
there shall be maintained a Fixed Charge Coverage Ratio of at least:
For fiscal quarters ending
prior to May 31, 1996 1.5:1.0
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From the fiscal quarter ending
May 31, 1996 through the
fiscal quarter ending
February 28, 1997 1.25:1.0
For fiscal quarters ending after
February 28, 1997 1.5:1.0
5. new Schedule 2.1(d) is added to the Credit Agreement in the form attached
hereto.
B. The Company and the Borrower hereby certify that as of the date hereof:
(i) the representations and warranties contained in the Credit Agreement (other
than those which expressly relate to a prior period) are true and correct in all
material respects; and
(ii) No Default or Event of Default currently exists and is continuing.
C. The effectiveness of this First Amendment is conditioned upon receipt by the
Administrative Agent of the following:
(a) copies of this First Amendment executed by the Company, the Borrower
and the Required Lenders;
(b) copies of resolutions of the Company and the Borrower approving the
terms, and authorizing execution and delivery, of this First Amendment;
(c) legal opinions of counsel to the Company and the Borrower regarding the
enforceability of this First Amendment; and
(d) an amendment fee of $100,000 (representing 2.5 b.p. on the total
aggregate Revolving Committed Amount)for the ratable benefit of the
Lenders.
D. The Company joins in the execution of this First Amendment for purposes,
among other things, of acknowledging and consenting to the terms of this First
Amendment and reaffirming its guaranty obligations under the Credit Agreement,
as amended hereby.
E. The Company and the Borrower will execute such additional documents as are
reasonably requested by the Administrative Agent to reflect the terms and
conditions of this First Amendment.
F. Except as modified hereby, all of the terms and provisions of the Credit
Agreement (and Exhibits) remain in full force and effect.
G. The Company and the Borrower agree to pay all reasonable costs and expenses
in connection with the preparation, execution and delivery of this First
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
H. This First Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this First Amendment to produce or account
for more than one such counterpart.
I. This First Amendment and the Credit Agreement, as amended hereby, shall be
deemed to be contracts made under, and for all purposes shall be construed in
accordance with, the laws of the State of North Carolina.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
First Amendment to Credit Agreement to be duly executed under seal and delivered
as of the date and year first above written.
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BORROWER:
MACSAVER FINANCIAL SERVICES, INC.
a Delaware corporation
By /s/ X.X. Xxxxxxxxx
Dossi X. Xxxxxxxxx,
Vice President
COMPANY:
XXXXXX-XXXXXX COMPANY,
a Virginia corporation
By /s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx,
Senior Vice President - Finance
ADMINISTRATIVE AGENT:
WACHOVIA BANK OF GEORGIA, N.A.,
in its capacity as Administrative Agent
By /s/ [signature illegible]
Title Vice President
DOCUMENTATION
AGENT: NATIONSBANK, N.A.,
in its capacity as Documentation Agent
By /s/ Xxxxx X. Xxxxxxxx
Title Vice President
CO-AGENTS: CRESTAR BANK,
in its capacity as Co-Agent
By /s/ [signature illegible]
Title Senior Vice President
FIRST UNION NATIONAL BANK OF VIRGINIA,
in its capacity as Co-Agent
By /s/ [signature illegible]
Title Senior Vice President
LENDERS: WACHOVIA BANK OF NORTH CAROLINA, N.A.
By /s/ [signature illegible]
Title Senior Vice President
NATIONSBANK, N.A.
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By /s/ Xxxxx X. Xxxxxxxx
Title Vice President
CRESTAR BANK
By /s/ [signature illegible]
Title Senior Vice President
FIRST UNION NATIONAL BANK OF VIRGINIA
By /s/ [signature illegible]
Title Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ [signature illegible]
Title Senior Vice President
NBD BANK
By /s/ [signature illegible]
Title Authorized Agent
TRUST COMPANY BANK
By /s/ [signature illegible]
Title Assistant Vice President
By /s/ [signature illegible]
Title Vice President
SIGNET BANK
(formerly known as Signet Bank/Virginia)
By /s/ Xxxxxxx X. Xxxxxxxx
Title Senior Vice President
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PNC BANK, NATIONAL ASSOCIATION
By /s/ [signature illegible]
Title Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ Xxxxxx Xxxxxxxxx
Title
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxxx Xxxxxxxxx
Title Senior Vice President
THE FUJI BANK, LIMITED - NEW YORK BRANCH
By
Title
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By /s/ [signature illegible]
Title Corporate Banking Officer
THE MITSUBISHI BANK, LIMITED
By /s/ [signature illegible]
Title Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By /s/ Xxxx X. Xxxxxxxx
Title Joint General Manager
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