Exhibit 99.3
EXECUTION COPY
SEVENTH AMENDMENT TO THIRD AMENDED
AND RESTATED CREDIT AGREEMENT
This SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment"), is dated as of March 28, 2003, by and among AHL SERVICES,
INC. ("AHL"), XXXXXXXXXXX, INC. ("Xxxxxxxxxxx"), XXXXXXXXXXX HOLDINGS LIMITED
("U.S. Holdings"), ADI ALPHA HOLDING GMBH ("ADI Alpha"), TUJA XXXXXXXXXX XXXX &
XX. XX, XXXXXXXXXX, ("Xxxx"), AHL EUROPE LIMITED ("AHL Europe Limited") and
SERVICEADVANTAGE CORPORATION ("ServiceAdvantage"; together with AHL,
Argenbright, U.S. Holdings, ADI Alpha, Tuja and AHL Europe Limited, collectively
referred to as the "Borrowers"), the undersigned financial institutions listed
on the signature pages hereto as Lenders, and WACHOVIA BANK, NATIONAL
ASSOCIATION (formerly First Union National Bank), a national banking association
("Wachovia"), as administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
RECITALS
WHEREAS, the Lenders, the Administrative Agent and the Borrowers are
parties to that certain Third Amended and Restated Credit Agreement, dated as of
April 12, 2002 (as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement); and
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent agree to amend certain provisions of the Credit Agreement
as set forth herein and to consent to certain matters as set forth herein, upon
and subject to all of the terms, conditions and provisions hereof.
NOW, THEREFORE, in consideration of the premises and the agreements,
covenants and provisions herein contained and for TEN DOLLARS ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 AMENDMENTS TO CREDIT AGREEMENT
Subject to the satisfaction of each of the conditions precedent set
forth in Section 3 of this Amendment, the Borrowers, the Lenders party hereto
and the Administrative Agent hereby agree that the Credit Agreement be, and it
hereby is, amended as follows:
1.1 Amendment to Section 1.1.
Section 1.1 of the Credit Agreement is hereby amended to (i) delete the
definitions of "Assigned Dollar Value" and "Expiration Date" in their entirety
and restate such definitions as set forth below and (ii) insert new definitions
of "Assigned Dollar Value Excess", "CGW", "CGW Agreement", "CGW Purchase
Agreement" and "CGW Transaction" as set forth below:
"Assigned Dollar Value" means, in respect of any Foreign
Currency Loan or Letter of Credit payable in an Alternative Currency,
the Dollar equivalent thereof determined based upon the applicable Spot
Exchange Rate as of the Denomination Date for such Loan or Letter of
Credit; provided, however, that, from and after March 31, 2003 until
the earlier of (i) the Expiration Date and (ii) the date upon which the
Administrative Agent and the Required Lenders elect otherwise, and for
so long as no Event of Default has occurred and is continuing and the
Spot Exchange Rate with respect to Euros exceeds 1.0273 to 1, for
purposes of determining whether (x) the amount of a Loan requested to
be borrowed, or continued in the case of LIBOR Rate Loans, by the
Borrowers exceeds the applicable amount that the Borrowers are
permitted to borrow pursuant to Sections 2.1, 2.3, 2.12 or 3.2,
respectively, hereof and (y) a prepayment of the Assigned Dollar Value
Excess is required under Section 3.2 hereof or any other prepayment on
account of the Assigned Dollar Value is required under Section 2.4
hereof, the computation of the aggregate Assigned Dollar Value of all
Foreign Currency Loans and Letters of Credit then outstanding that are
denominated in Euros shall be based on a Spot Exchange Rate with
respect to Euros of 102.73 to 1.
"Assigned Dollar Value Excess" means the excess, if any,
of (x) the Assigned Dollar Value of a Foreign Currency Loan as
calculated at the end of the relevant Interest Period over (y) the
Assigned Dollar Value of such Foreign Currency Loan as calculated on
the first day of such Interest Period.
"CGW" means CGW Southeast Partners IV, L.P.
"CGW Agreement" means that certain Agreement dated as of
February 25, 2003 between CGW, the Lenders and the Administrative
Agent, as the same may be amended, modified or supplemented from time
to time.
"CGW Purchase Agreement" means a "Purchase Agreement" as
identified and defined in the CGW Agreement.
"CGW Transaction" means the "Transaction" as identified
and defined in the CGW Agreement.
"Expiration Date" means the earliest to occur of (i) March
31, 2003 or, if AHL has, in connection with the CGW Transaction on
terms and conditions acceptable to the Administrative Agent and the
Lenders, entered into, by March 31, 2003, a definitive and binding
Purchase Agreement to enter into the CGW Transaction, August 29, 2003,
(ii) the date on which the CGW or any of its affiliates terminate the
CGW Transaction, (iii) the date on which the CGW Agreement is no longer
in full force and effect, (iv) the date on which the CGW Transaction is
consummated on terms and conditions other than those which are required
by the CGW Agreement and (v) the date on which any Event of Default
shall have occurred.
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1.2 Amendment to Section 3.1(b).
Section 3.1(b) is hereby amended by deleting the reference to "one,
two, three or six months" appearing therein and substituting "one, two, three,
four or five months" in replacement therefor.
1.3 Amendment to Sections 8.5, 8.6, 8.7 and 8.8.
Sections 8.5, 8.6, 8.7 and 8.8 of the Credit Agreement are hereby
amended to delete such Sections in their entirety and substitute the following
therefor:
SECTION 8.5 Minimum Consolidated Adjusted EBITDA. As of the end of
each of AHL's fiscal months ending below, permit Consolidated
Adjusted EBITDA, for the period of three consecutive fiscal months
of AHL then ended, to be less than the applicable amount set forth
below for such fiscal month:
Required Consolidated
---------------------
Adjusted EBITDA Shall
---------------------
Fiscal Month Ending Not Be Less Than
------------------- ----------------
March, 2003 $2,000,000
April, 2003 $1,950,000
May, 2003 $1,550,000
June, 2003 $1,900,000
July, 2003 $3,800,000
For purposes of this Section 8.5, determination of Consolidated
Adjusted EBITDA for any month shall be made on the 25th day of
the immediately next succeeding month, or if such day is not a
Business Day, on the next succeeding Business Day, and confirmed
to the Administrative Agent in writing, with supporting
calculation thereof attached.
SECTION 8.6 Maximum Monthly Capital Expenditures. Permit aggregate
Capital Expenditures disbursed during the period commencing on
November 1, 2002 and ending at the end of each of AHL's fiscal
months set forth below to exceed the amount set forth opposite
such month set forth below:
Fiscal Month Ending Aggregate Capital
------------------- -----------------
Expenditures Disbursed
----------------------
March, 2003 $2,325,000
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April, 2003 $2,725,000
May, 2003 $3,155,000
June, 2003 $3,530,000
July, 2003 $3,840,000
SECTION 8.7 Maximum Restructuring Expenditures. Permit aggregate
Restructuring Expenditures disbursed during the period commencing
on November 1, 2002 and ending at the end of each of AHL's fiscal
months set forth below to exceed the amount set forth opposite
such month set forth below:
Fiscal Month Ending Aggregate Restructuring
------------------- -----------------------
Expenditures Disbursed
----------------------
March, 2003 $1,801,000
April, 2003 $1,915,000
May, 2003 $1,994,000
June, 2003 $2,073,000
July, 2003 $2,159,000
SECTION 8.8 Minimum Fixed Charge Coverage. Permit the Fixed Charge
Coverage Ratio, as of the end of each of AHL's fiscal month ending
below for the period of three consecutive fiscal months of AHL
then ended, to be less than that set forth below for such fiscal
month:
Fiscal Month Ending Minimum Fixed Charge
------------------- --------------------
Coverage Ratio
--------------
March, 2003 0.487 to 1.00
April, 2003 0.514 to 1.00
May, 2003 0.400 to 1.00
June, 2003 0.519 to 1.00
July, 2003 1.122 to 1.00
1.4 Amendment to Section 10.1.
Section 10.1 of the Credit Agreement is hereby amended to add a new
subsection 10.1(r) thereto which shall be stated to read as follows:
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(r) CGW Transaction. The CGW Transaction is terminated or
----------------
abandoned.
SECTION 2 REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent and the Lenders to
enter into this Amendment, each Borrower hereby represents and warrants to the
Lenders that: (a) immediately prior to the effectiveness of this Amendment, all
of the representations set forth in the Credit Agreement were accurate in all
material respects as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date, in which
case such representations and warranties shall have been true and correct on and
as of such date, (b) after giving effect to this Amendment, all of the
representations and warranties set forth in the Credit Agreement, will be
accurate in all material respects as of the date hereof, except to the extent
that such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall have been true and correct
on and as of such date, and (c) there exists no Default or Event of Default
under the Credit Agreement or the Loan Documents as of the date hereof.
SECTION 3 CONDITIONS TO EFFECTIVENESS
The amendments to the Credit Agreement set forth in Section 1 of
this Amendment shall be deemed to be effective on the date hereof but shall be
subject to the satisfaction of each of the following conditions precedent:
(a) The Administrative Agent shall have received counterparts to
this Amendment duly executed by the Borrowers and the Lenders.
(b) The Administrative Agent shall have received reimbursement in
full by AHL of the Administrative Agent's legal and other advisory fees and
expenses it has heretofore incurred in connection with the preparation,
negotiation, execution and delivery of any of the Loan Documents or any
instruments and documents contemplated thereby.
(d) The Administrative Agent shall have received such other
documents as it shall have reasonably requested, in form and substance
satisfactory to the Administrative Agent.
SECTION 4 MISCELLANEOUS
5.1 Ratification, Reaffirmation, Acknowledgment and Confirmation.
(a) By its execution below, each Borrower hereby (i) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, and each grant of security interests and liens in favor of the
Administrative Agent and the Security Trustee, under each Loan Document to which
it, initially or by contract or operation of law (as a result of mergers,
amalgamations or otherwise), is a party, (ii) agrees and acknowledges that such
ratification and reaffirmation is not a condition to the continued effectiveness
of such Loan Documents, and (iii) agrees that neither such ratification and
reaffirmation, nor the Agents' nor any Lenders' solicitation of such
ratification and
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reaffirmation, constitutes a course of dealing giving rise to any obligation or
condition requiring a similar or any other ratification or reaffirmation from
the Borrowers with respect to any subsequent modification, consent or waiver
with respect to the Credit Agreement or other Loan Documents. The Credit
Agreement and each other Loan Document is in all respects hereby ratified and
confirmed and neither the execution, delivery nor effectiveness of this
Amendment shall operate as a waiver of any Default or Event of Default (whether
or not known to the Agents, the Security Trustee or any Lender) or any right,
power or remedy of the Agents, the Security Trustee or any Lender of any
provision contained in the Credit Agreement or any other Loan Document, whether
as a result of any Default or Event of Default or otherwise. This Amendment
shall constitute a "Loan Document" for purposes of the Credit Agreement.
(b) By its execution below, each Borrower hereby acknowledges and
confirms that (i) it does not have any grounds, and hereby agrees not to
challenge (or to allege or to pursue any matter, cause or claim arising under or
with respect to), in any case based upon acts or omissions of any Agent, the
Security Trustee or any of the Lenders occurring prior to the date hereof or
facts otherwise known to it as of the date hereof, the effectiveness,
genuineness, validity, collectibility or enforceability of the Credit Agreement
or any of the other Loan Documents, the Obligations, the Liens securing such
Obligations, or any of the terms or conditions of any Loan Document and (ii) it
does not possess (and hereby forever waives, remises, releases, discharges and
holds harmless the Lenders, the Agents, the Security Trustee and their
respective affiliates, stockholders, directors, officers, employees, attorneys,
agents and representatives and each of their respective heirs, executors,
administrators, successors and assigns (collectively, the "Indemnified Parties")
from and against, and agrees not to allege or pursue) any action, cause of
action, suit, debt, claim, counterclaim, cross-claim, demand, defense, offset,
opposition, demand and other right of action whatsoever, whether in law, equity
or otherwise (which it, all those claiming by, through or under it, or its
successors or assigns, have or may have) against the Indemnified Parties, or any
of them, by reason of any matter, cause or thing whatsoever, with respect to
events or omissions occurring or arising on or prior to the date hereof and
relating to the Credit Agreement or any of the other Loan Documents (including,
without limitation, with respect to the payment, performance, validity or
enforceability of the Obligations, the Liens securing the Obligations or any or
all of the terms or conditions of any Loan Document) or any transaction relating
thereto.
5.2 Counterparts. This Amendment may be executed by each party to this
Amendment upon a separate copy, and in such case one counterpart of this
Amendment shall consist of enough of such copies to reflect the signature of all
of the parties to this Amendment. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Amendment or its terms to produce or account
for more than one of such counterparts.
5.3 General. All references to the Credit Agreement in that document
or in any other Loan Document shall mean the Credit Agreement as amended hereby.
Except as expressly provided herein, the execution and delivery of this
Amendment does not and will not amend, modify or supplement any provision of, or
constitute a consent to or a waiver of any noncompliance with the provisions of,
the Credit Agreement or the other Loan Documents, and, except as specifically
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provided in this Amendment, the Credit Agreement and the other Loan Documents
shall remain in full force and effect and are hereby ratified and confirmed.
5.4 Construction. This Amendment is a Loan Document executed pursuant
to the Credit Agreement and shall be construed, administered and applied in
accordance with all of the terms and provisions of the Credit Agreement.
5.5 Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of Georgia, without reference
to the conflicts or choice of law principles thereof.
5.6 Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[Signatures appear on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers hereunder duly authorized as of the day and year
first written above.
BORROWERS:
AHL SERVICES, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
XXXXXXXXXXX, INC.
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
XXXXXXXXXXX HOLDINGS LIMITED
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
SERVICEADVANTAGE CORPORATION
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
Signature Page - Seventh Amendment
ADI ALPHA HOLDING GMBH
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
TUJA XXXXXXXXXX XXXX & XX. XX,
XXXXXXXXXX
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
AHL EUROPE LIMITED
By: /s/ A. Xxxxxxx Xxxxxxx
---------------------------
Title: Chief Executive Officer
[CORPORATE SEAL]
Signature Page - Seventh Amendment
LENDERS:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative
Agent, Issuing Bank and Lender
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Title: Director
WACHOVIA BANK, NATIONAL
ASSOCIATION, London Branch, as
European Swingline Lender
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------
Title: Director
SUNTRUST BANK, as Lender
By: /s/ Xxxxxx X. Ways
---------------------------
Title: Managing Director
BANK OF AMERICA, N.A., as Lender
By: /s/ Xxxxx Xxxxxx
---------------------------
Title: Senior Vice President
Signature Page - Seventh Amendment
FLEET NATIONAL BANK, as Lender
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Title: Authorized Officer
DZ BANK AG DEUTSCHE
ZENTRALGENOSSENSCHAFTSBANK,
FRANKFURT AM MAIN, NEW YORK
BRANCH, as Lender
By: /s/ Xxxxx X. X'Xxxxxxx
---------------------------
Title: Vice President
By: /s/ Xxxxx X. X'Xxxxxx
---------------------------
Title: Vice President
THE BANK OF NOVA SCOTIA, as
Lender
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Title: Managing Director
SCOTIABANK EUROPE plc, as Lender
for Revolving Loans made in
Alternative Currencies, as
Lender
By: /s/ X.X. Xxxxxxx
---------------------------
Title: Director
SALOMON BROTHERS HOLDING COMPANY
INC., as Lender
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Title: Managing Director
Signature Page - Seventh Amendment
BANK ONE, NA, as Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------
Title: First Vice President
SOVEREIGN BANK, as Lender
By: /s/ Xxx XxXxxxxx
-----------------------
Title: Vice President
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC., as
Lender
By: /s/ Xxxxxx Xxxxxx
------------------------
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxxx
------------------------
Title: Vice President
Signature Page - Seventh Amendment
MIZUHO CORPORATE BANK, LIMITED
as Lender
By: /s/ Xxxx X. Xxxxx
-------------------------
Title: Senior Vice Presidnet
BANK LEUMI LE-ISRAEL, B.M., NEW
YORK AGENCY, as Lender
By: /s/ Xxxxxxx Xxxxxx
-----------------------
Title: Agent
U.S. BANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Title: Vice President
Signature Page - Seventh Amendment
