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EXHIBIT 99.3
AMENDMENT NO. 1 TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (the "Amendment") is
entered into as of the 31st day of January, 2000 by and between PNC BANK,
NATIONAL ASSOCIATION, as Agent under the Credit Agreement described below, on
behalf of the Lenders, and XXXXX CORPORATION, a Delaware corporation, and XXXXX
FINANCIAL CO., a Delaware corporation (collectively, the "Borrowers"), on behalf
of the Loan Parties.
WITNESSETH:
WHEREAS, the Borrowers, the Lenders and the Agent have entered
into that certain Credit Agreement dated as of September 23, 1999 (the
"Agreement"; terms defined in the Agreement, as amended hereby, which are used
herein shall have the same meanings as are set forth in the Agreement for such
terms unless otherwise defined herein);
WHEREAS, the Borrowers have requested that the Lenders amend
certain provisions of the Agreement, and the Lenders are willing to do so on the
terms and subject to the conditions hereinafter set forth;
WHEREAS, pursuant to Section 10.1 of the Agreement, the Agent,
with the written consent of the Required Lenders, may enter into certain
prescribed amendments to the Agreement on behalf of the Lenders, and the
Borrowers may enter into amendments of the Agreement on behalf of the Loan
Parties;
WHEREAS, the Borrowers have requested the Lenders to increase
the Commitments to an aggregate principal amount equal to $200,000,000; and
WHEREAS, pursuant to Section 2.4.2 of the Agreement, if the
increase in Commitments is approved by all of the Lenders, Schedule 1.1(B) to
the Agreement shall be amended to reflect such increase.
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Lenders and the Borrowers hereby agree as follows:
1. Amendments to Agreement. Subject to the satisfaction of the
conditions precedent set forth in Section 3 below, the Agreement is amended as
follows:
(a) Section 1.1 of the Agreement is amended by inserting the
following new definitions:
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"Operating Income" of any Person for any period of
determination shall mean income before deduction (or credit,
if applicable) for taxes, interest expense or interest income,
amortization of goodwill and nonoperating extraordinary
expense or income, all as determined in accordance with GAAP."
"Issuing Bank" shall mean PNC Bank, National Association and
its successors and assigns and any other Lender approved as an
Issuing Bank by the Borrowers and the Agent so long as each
such Lender expressly agrees to perform in accordance with
their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as an Issuing
Bank and notifies the Agent of its applicable Lending Office
and the amount of its Letter of Credit commitment (which
information shall be recorded by the Agent in the register),
for so long as such Issuing Bank shall have a Letter of Credit
Outstanding."
(b) Section 1.1 of the Agreement is hereby amended by adding
to the definition of "Permitted Guaranty Obligations" the following new clause
(iv):
"and (iv) Guaranty Obligations of any Borrower in respect of
any Indebtedness permitted under Section 7.2.1(xiii)."
(c) Section 2.13 of the Agreement is hereby amended by
deleting each reference therein to "Agent," other than references in Sections
2.13.3.3, 2.13.3.4, clause (i) of Section 2.13.2 and clauses (i) and (iv) of
Section 2.13.7, and replacing it with the phrase "Issuing Bank."
(d) Clause (i) of Section 2.13.1 of the Agreement is hereby
deleted and replaced in its entirety by the following:
"(i) the Dollar Equivalent amount of Letters of Credit
Outstanding exceed, at any one time, $50,000,000 or"
(e) Section 2.13.3.3 of the Agreement is hereby deleted and
replaced in its entirety by the following:
"2.13.3.3 Each Lender shall upon any notice pursuant to
Section 2.13.3.2 make available to the Agent for the account
of the Issuing Bank an amount in Dollars in immediately
available funds equal to its Ratable Share of the Dollar
Equivalent amount of the drawing, whereupon the participating
Lenders shall (subject to
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Section 2.13.3.4) each be deemed to have made a Revolving
Credit Loan in Dollars under the Base Rate Option to the
Borrowers in that amount. If any Lender so notified fails to
make available in Dollars to the Agent for the account of the
Issuing Bank the amount of such Lender's Ratable Share of such
Dollar Equivalent amount by no later than 2:00 p.m., Eastern
time on the Drawing Date, then interest shall accrue on such
Lender's obligation to make such payment, from the Drawing
Date to the date on which such Lender makes such payment (i)
at a rate per annum equal to the Federal Funds Effective Rate
during the first three days following the Drawing Date and
(ii) at a rate per annum equal to the rate applicable to Loans
under the Revolving Credit Base Rate Option on and after the
fourth day following the Drawing Date. The Issuing Bank will
promptly give notice of the occurrence of the Drawing Date,
but failure of the Issuing Bank to give any such notice on the
Drawing Date or in sufficient time to enable any Lender to
effect such payment on such date shall not relieve such Lender
from its obligation under this Section 2.13.3.3."
(f) The last sentence of Section 2.13.3.4 of the Agreement is
hereby deleted and replaced in its entirety by the following:
"Each Lender's payment to the Agent for the account of the
Issuing Bank pursuant to Section 2.13.3.3 shall be deemed to
be a payment in respect of its participation in such Letter of
Credit Borrowing and shall constitute a Participation Advance
from such Lender in satisfaction of its participation
obligation under this Section 2.13.3."
(g) Clause (i) of Section 2.13.7 of the Agreement is hereby
deleted and replaced in its entirety by the following:
"(i) any setoff, counterclaim, recoupment, defense or other
right which such Lender may have against the Issuing Bank, the
Agent, the Borrowers or any other Person for any reason
whatsoever;"
(h) Clause (iv) of Section 2.13.7 of the Agreement is hereby
deleted and replaced in its entirety by the following:
"(iv) the existence of any claim, setoff, defense or other
right which any Loan Party or any Lender may have at any time
against a beneficiary or any transferee of any Letter of
Credit (or any Persons
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for whom any such transferee may be acting), the Issuing Bank,
the Agent or any Lender or any other Person or, whether in
connection with this Agreement, the transactions contemplated
herein or any unrelated transaction (including any underlying
transaction between any Loan Parties or any of their
Subsidiaries and the beneficiary for which any Letter of
Credit was procured);"
(i) Section 2.13 of the Agreement is hereby amended by adding
the following new Sections 2.13.10, 2.13.11 and 2.13.12:
"2.13.10 Notice of Actual Issuances. Promptly upon issuing any
Letter of Credit, the Issuing Bank will notify the Agent of
the date of such Letter of Credit, the amount thereof and the
beneficiary or beneficiaries thereof. Upon receipt of such
notice, the Agent shall promptly notify each Lender of the
contents thereof and the amount of such Lender's participation
in the relevant Letter of Credit. Promptly upon issuing any
Letter of Credit, the Issuing Bank will send a copy of such
Letter of Credit to the Agent.
2.13.11 Proposed Extension of Expiry Dates. The Issuing Bank
or the Borrowers shall give the Agent at least five (5)
Business Days' notice before such Issuing Bank extends the
expiry date of any Letter of Credit issued by it. Such notice
shall (i) identify such Letter of Credit, (ii) specify the
date on which such extension is to be made (or the last day on
which such Issuing Bank can give notice to prevent such
extension from occurring) and (iii) specify the date to which
such expiry date is to be so extended. Upon receipt of such
notice, the Agent shall promptly notify each Lender of the
contents thereof. The Issuing Bank shall not extend (or allow
extension of) the expiry date of any Letter of Credit if (A)
the extended expiry date would be after the tenth Business Day
before the Expiration Date or (B) the Issuing Bank shall have
been notified by any Borrower, the Agent or any Lender
expressly to the effect that any condition specified in
Section 6.2 is not satisfied at the time such Letter of Credit
is to be extended.
2.13.12 Information to be Provided to Agent. The Issuing Bank
shall furnish to the Agent upon request such information as
the Agent shall reasonably request in order to calculate the
Letters of Credit Outstanding and the Letter of Credit Fee."
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(j) Clause (xiii) of Section 7.2.1 of the Agreement is hereby
deleted and replaced in its entirety by the following:
"(xiii) other Indebtedness of the Company and its
Subsidiaries, as a group, which does not exceed $25,000,000 in
the aggregate at any time outstanding."
(k) Section 7.2.6(2) of the Agreement is hereby amended by (i)
inserting the following words immediately after the words "any Loan Party" in
the first line thereof:
"or any Subsidiary which is not a Loan Party"
(ii) deleting clause (iv) thereof and replacing it in its entirety with the
following:
"(iv) the Company shall demonstrate on a pro forma basis that
it shall be in compliance with the covenants contained in
Sections 7.2.13, 7.2.14, 7.2.15 and 7.2.16 after giving effect
to such Permitted Acquisition (including in such computation
(A) Consolidated EBITDA for the acquired business for the
immediately preceding four fiscal quarters with respect to the
covenants contained in Section 7.2.13, (B) Consolidated EBIT
for the acquired business for the immediately preceding four
fiscal quarters with respect to the covenants contained in
Section 7.2.14, (C) Operating Income for the acquired business
for the immediately preceding four fiscal quarters with
respect to the covenants contained in Section 7.2.16, and (D)
Indebtedness or other liabilities assumed or incurred in
connection with such Permitted Acquisition) by delivering to
the Agent at least fifteen (15) Business Days prior to such
Permitted Acquisition a certificate in the form of Exhibit
7.2.6 evidencing such compliance, which certificate shall be
subject to the approval of the Agent which approval shall not
be unreasonably withheld.
and (iii) adding the following new clause (vii):
"(vii) in the case of any Permitted Acquisition by any
Subsidiary which is not a Loan Party, (A) 65% of the stock of
such Subsidiary shall be pledged as collateral to the Agent
for the benefit of the Lenders pursuant to a pledge agreement
in form and substance satisfactory to the Agent and the
pledging party or (B) the aggregate purchase price (including
assumption of debt) of all Permitted Acquisitions made by
Subsidiaries which are not Loan
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Parties and which have not complied with the pledging
requirement in clause (A) above shall not exceed $40,000,000
in any one fiscal year"
(l) Section 7.2.15 of the Agreement is hereby deleted and
replaced in its entirety by the following:
"7.2.15 Minimum Net Worth. The Company shall not as of the end
of any fiscal quarter permit Consolidated Net Worth to be less
than the sum of (i) 80% of the Consolidated Net Worth at the
Closing Date plus (ii) 45% of the cumulative net income of the
Company and its Subsidiaries plus (iii) 50% of all equity
interests of the Company issued after the Closing Date."
(m) Section 7.2.16 of the Agreement is hereby deleted and
replaced in its entirety by the following:
"7.2.16 Loan Party Operating Income. The Company shall not
permit the aggregate Operating Income of the Loan Parties to
be less than $35,000,000, as calculated at the end of each
fiscal quarter for the immediately preceding four (4) fiscal
quarters. For purposes of determining Operating Income of any
Foreign Loan Party, the Operating Income of any wholly owned
subsidiary of such Foreign Loan Party shall be included."
2. Conditions of Effectiveness. The amendments to the Agreement
contained in Section 1 shall become effective when and only when each of the
conditions specified in clauses (a) and (b) below has been satisfied:
(a) no Event of Default or Potential Default shall have
occurred and be continuing on the date hereof or on the date the Amendment
becomes effective and the representations and warranties made in the Agreement
and in Section 3 hereof shall be true and correct on the date hereof and on the
date the Amendment becomes effective and the Borrowers shall have delivered to
the Agent for the benefit of the Lenders an officer's certificate to both such
effects executed by an Authorized Officer;
(b) the Agent shall have received the following documents,
each document being in form and substance satisfactory to the Agent:
(1) written Approval Memos from all of the Lenders in the
form of Exhibit A attached hereto;
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(2) this Amendment, duly executed by the Company;
(3) the officer's certificate referenced in clause
(a) above; and
(4) such instruments, agreements and other items as
the Agent may request.
3. Representation and Warranties. Each of the Borrowers represents
and warrants as follows: (i) it has all necessary power and authority to execute
and deliver this Amendment and to perform its obligations hereunder; (ii) the
execution, delivery and performance of this Amendment have been duly authorized
by it; (iii) this Amendment and the Agreement, as amended hereby, constitute the
legal, valid and binding obligations of such Borrower and are enforceable
against such Borrower in accordance with their terms; and (iv) the approval,
execution, delivery and performance of the terms hereof and of the Agreement, as
amended hereby, do not violate any contractual provision to which it is a party
or by which it is or its properties are bound or any Law applicable to it.
4. Reference to the Effect on the Agreement.
(a) (i) Each reference in the Agreement to "this Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Agreement as amended hereby and (ii) each reference to the
Agreement in all other Loan Documents shall mean and be a reference to the
Agreement, as amended hereby.
(b) Except as specifically amended above, the Agreement and
all other Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as an
amendment to any provision of the Agreement nor a waiver of any right, power or
remedy of any Lender or Agent, nor constitute a waiver of, or consent to any
departure from, any provision of the Agreement or any other Loan Document.
5. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws (as opposed to conflicts of law
provisions) of the State of Illinois.
6. Headings. 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 purpose.
7. Counterparts. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts and all of
said counterparts taken
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together shall be deemed to constitute one and the same instrument. Delivery of
a duly executed counterpart copy of this Amendment may be made by telecopy.
8. Expenses. The Borrowers will upon demand pay to the Agent the
amount of any and all expenses, including the reasonable fees and expenses of
the Agent's attorneys which the Agent may incur in connection with the
preparation, negotiation and enforcement of this Amendment and each of the
agreements, instruments and other documents to be delivered to the Agent or the
Lenders in connection herewith.
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AMENDMENT NO. 1
IN WITNESS WHEREOF, this Amendment has been duly executed as
of the day and year first above written.
PNC BANK, NATIONAL ASSOCIATION, as
Administrative Agent acting on behalf of the
Lenders pursuant to Section 10.1 of the
Agreement
By: /s/ Xxxxx XxXxxxx
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Title: Senior Vice President
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XXXXX CORPORATION, acting on behalf of the
Loan Parties pursuant to Section 10.1 of the
Agreement
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxx Corporation
Title: Vice President Treasurer & Asst. Sec'y.
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XXXXX FINANCIAL CO., acting on behalf of the
Loan Parties pursuant to Section 10.1 of the
Agreement
By: /s/ Xxxxxx X. Xxxxxx
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Title: Xxxxx Financial Co.
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President & Treasurer
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