EXHIBIT 00.xx
AMENDMENT NO. 5
THIS AMENDMENT NO. 5 (the "Amendment") dated as of April 23, 1998, to the Credit
Agreement referenced below, is by and among MACSAVER FINANCIAL SERVICES, INC., a
Delaware corporation, (the "Borrower"), XXXXXX-XXXXXX COMPANY, a Virginia
corporation (the "Company"), the Lenders identified therein, WACHOVIA BANK, N.A.
(formerly, Wachovia Bank of Georgia, N.A.), as Administrative Agent,
NATIONSBANK, N.A., as Documentation Agent, and CRESTAR BANK and FIRST UNION
NATIONAL BANK (formerly, First Union National Bank of Virginia), as Co-Agents.
W I T N E S S E T H
WHEREAS, the Lenders have established a $400 million credit facility for the
benefit of the Borrower pursuant of the terms of that Credit Agreement dated as
of July 18, 1995 (as amended and modified, the "Credit Agreement") among the
Borrower, the Company, the Lenders identified therein and Wachovia Bank of
Georgia, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested certain modifications to the Credit
Agreement;
WHEREAS, the modifications requested hereby require the consent of the Required
Lenders; and
WHEREAS, the Required Lenders have consented to the requested modifications on
the terms and conditions set forth herein and have authorized the Administrative
Agent to enter into this Amendment on their behalf to give effect to this
Amendment;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. Terms used but not otherwise defined shall have the
meanings provided in the Credit Agreement.
2. Amendment. The Credit Agreement is amended and modified in the following
respects:
2.1 The following definitions are amended or added in Section 1.1 to read
as follows:
"Applicable Percentage" means for any day, the rate per annum set forth below
opposite the applicable rating for the Company's senior unsecured (non-credit
enhanced) long term debt then in effect, it being understood that the Applicable
Percentage for (i) Base Rate Loans shall be the percentage set forth under the
column "Base Rate Margin", (ii) Eurodollar Loans shall be the percentage set
forth under the column "Eurodollar Margin", and (iii) the Facility Fee shall be
the percentage set forth under the column "Facility Fee":
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------------ ----------------- ------------------ -------------------
Pricing S&P Xxxxx'x Eurodollar Margin
Level Rating Rating
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I BBB+ or above Baa1 or above 0.275%
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II BBB Baa2 0.350%
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III BBB- Baa3 0.475%
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IV BB+ Ba1 0.750%
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V below BB+ below Ba1 0.950%
or unrated or unrated
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(Continued)
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Base Rate
Margin Facility Fee
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0% 0.125%
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0% 0.150%
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0% 0.175%
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0% 0.250%
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0% 0.30%
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The numerical classification set forth under the column "Pricing Level" shall be
established based on the better of ratings by S&P and Xxxxx'x for the Company's
senior unsecured (non-credit enhanced) long term debt. The Applicable Percentage
shall be determined and adjusted on the date five (5) Business Days after each
change in debt rating. Adjustments in the Applicable Percentage shall be
effective as to all Loans, existing and prospective, from the date of
adjustment. The Administrative Agent shall promptly notify the Lenders of
changes in the Applicable Percentage.
"Consolidated Interest Expense" means, for any period, all interest expense,
including the amortization of debt discount and premium and the interest
component under Capital Leases for the Company and its Subsidiaries on a
consolidated basis determined in accordance with GAAP applied on a consistent
basis (including, for purposes hereof, interest payments on Subordinated
Debentures). Except as otherwise specified, the applicable period shall be for
the four consecutive quarters ending as of the date of computation.
"Funded Debt" means for any Person, (i) all Indebtedness of such Person for
borrowed money or which has been incurred in connection with the acquisition of
assets, (ii) all Capital Lease Obligations of such Person and, without
duplication, (iii) all Guarantee Obligations of such Person of Funded Debt of
other Persons (excluding, for purposes hereof, obligations evidenced by or
otherwise recorded with respect to Subordinated Debentures or Preferred
Securities).
"Preferred Securities" means pass-through securities, capital securities or
other preferred securities issued by a statutory business trust or other similar
special purpose entity owned or controlled by the Company or any Subsidiary the
proceeds of which are invested in or exchanged for Subordinated Debentures.
"PS Affiliate" means trust or other special purpose entity which is the issuer
of Preferred Securities.
"Subordinated Debentures" means junior subordinated deferrable interest
debentures or other similar subordinated debt securities issued by the Company
or any Subsidiary the interest payments on which are used to make cash
distributions on Preferred Securities.
2.3 The first clause of Section 2.2(a) preceding the prorisois amendment to
read as follows:
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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, ratings for its senior unsecured (non-credit enhanced) long-term
debt of BBB-/Baa3 or better by S&P and Xxxxx'x, respectively, the Borrower may
from time to time request and each Lender may, in its sole discretion, agree to
make Competitive Loans to the Borrower;
2.3 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:
through the end of the fiscal year ending in February, 1999 1.15:1.0
thereafter 1.25:1.0
3. This Amendment shall be effective upon satisfaction of the following
conditions:
(a) execution of this Amendment by the Borrower, the Company and the
Administrative Agent;
(b) receipt by the Bank of legal opinions of counsel to the Borrower and the
Company relating to this Amendment in form and substance satisfactory to the
Administrative Agent and the Required Lenders;
(c) receipt by the Administrative Agent for the ratable benefit of the
consenting Lenders of an Amendment Fee of 7.5 basis points on the aggregate
amount of Commitments held by each of the Lenders consenting to this Amendment.
4. Except as modified hereby, all of the terms and provisions of the Credit
Agreement (including Schedules and Exhibits) shall remain in full force and
effect.
5. The Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including without limitation the reasonable fees and expenses
of Xxxxx & Xxx Xxxxx, PLLC.
6. This 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 Amendment to produce or account for more than
one such counterpart.
7. This Amendment shall be deemed to be a contract 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
Amendment to be duly executed under seal and delivered as of the date and year
first above written.
BORROWER: MACSAVER FINANCIAL SERVICES, INC.,
a Delaware corporation
By: /s/ X.X. Xxxxxxxxx
Name: Dossi X. Xxxxxxxxx
Title: Vice President
COMPANY: XXXXXX-XXXXXX COMPANY,
a Virginia corporation
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
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ADMINISTRATIVE
AGENT: WACHOVIA BANK, N.A., as Administrative Agent
for and on behalf of the Lenders
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
Title: Senior Vice Presient
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