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EXHIBIT 4.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT effective as of October 5,
2000 (this "Amendment"), by and among THE XXXXX GROUP, INC., a Tennessee
corporation (the "Borrower"), SUNTRUST BANK, formerly known as SunTrust Bank,
Atlanta, a Georgia banking corporation ("SunTrust"), the other banks and lending
institutions listed on the signature pages hereof, and any assignees of SunTrust
or such other banks and lending institutions which become "Lenders" as provided
herein (SunTrust, and such other banks, lending institutions, and assignees
referred to collectively as "Lenders"), SUNTRUST BANK, as administrative agent
for the Lenders (in such capacity, the "Administrative Agent") and BANK OF
AMERICA, N.A., formerly known as Nationsbank, N.A., as documentation agent for
the Lenders (in such capacity, the "Documentation Agent").
WITNESSETH:
WHEREAS, Borrower, the Lenders, the Administrative Agent and the
Documentation Agent are parties to that certain Credit Agreement, dated as of
March 31, 1998, as amended by that certain First Amendment to Credit Agreement,
effective December 26, 1998 (as amended or modified, the "Agreement");
WHEREAS, Borrower, the Lenders, the Administrative Agent and the
Documentation Agent have agreed to make certain modifications to the Agreement
subject to the terms, conditions and requirements set forth in this Amendment.
NOW THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby amend the
Agreement as follows:
A. AMENDMENTS TO THE AGREEMENT
1. Section 7.07(b) of the Agreement is hereby amended by
replacing such subsection in its entirety with the following:
(b) Quarterly and Monthly Financial Statements.
(i) As soon as available and in any event within 50 days
after the end of each fiscal quarter of Borrower (other than the fourth
fiscal quarter), balance sheets of the Consolidated Companies as at the
end of such quarter presented on a consolidated and a consolidating
basis and the related statements of income, shareholders' equity, and
cash flows of the Consolidated Companies for such fiscal quarter and
for the portion of Borrower's fiscal year ended at the end of such
quarter, presented on a consolidated and a consolidating basis setting
forth in each case in
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comparative form the figures for the corresponding quarter and the
corresponding portion of Borrower's previous fiscal year, all in
reasonable detail and certified by a Financial Officer of Borrower that
such financial statements fairly present in all material respects the
financial condition of the Consolidated Companies as at the end of such
fiscal quarter on a consolidated and consolidating basis, and the
results of operations and statements of cash flows of the Consolidated
Companies for such fiscal quarter and such portion of Borrower's fiscal
year, in accordance with GAAP consistently applied (subject to normal
year-end audit adjustments and the absence of certain footnotes);
provided, however, that this subsection (b)(i) shall be deemed
satisfied by the delivery of Borrower's Quarterly Report on Form 10Q as
filed with the Securities Exchange Commission delivered in the time
allotted above;
(ii) As soon as available and in any event within 45 days
after the end of each fiscal month of Borrower, balance sheets of the
Consolidated Companies as at the end of such month presented on a
consolidated and a consolidating basis and the related statements of
income, shareholders' equity, and cash flows of the Consolidated
Companies for such fiscal month and for the portion of Borrower's
fiscal year ended at the end of such month, presented on a consolidated
and a consolidating basis setting forth in each case in comparative
form the figures for the corresponding month and the corresponding
portion of Borrower's previous fiscal year, all in reasonable detail
and certified by a Financial Officer of Borrower that such financial
statements fairly present in all material respects the financial
condition of the Consolidated Companies as at the end of such fiscal
month on a consolidated and consolidating basis, and the results of
operations and statements of cash flows of the Consolidated Companies
for such fiscal month and such portion of Borrower's fiscal year, in
accordance with GAAP consistently applied (subject to normal year-end
audit adjustments and the absence of certain footnotes);
2. Section 8.11 of the Agreement is hereby amended as follows:
A. Subsection (a) is hereby amended by replacing such
subsection in its entirety with the following:
(a) Senior Funded Debt to EBITDA. Its ratio of
Senior Funded Debt to EBITDA as of the last day of any fiscal month of
the Borrower to be greater than 3.00 to 1.00, calculated, in the case
of EBITDA, for the preceding twelve fiscal months ending on such date.
B. Each reference to "fiscal quarter" in Subsections
(b), (c) and (d) shall be replaced with a reference to "fiscal month".
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B. WAIVER
Borrower has informed the Lenders that as of September 30, 2000, the
Interest Coverage Ratio is not anticipated to be not greater than 1.75 to 1.0,
as required by Section 8.11(b) of the Credit Agreement. Lenders hereby waive any
Event of Default that has arisen as a result of Borrower's failure to comply
with Section 8.11 of the Credit Agreement for the fiscal quarter ending on or
about September 30, 2000. This waiver is limited solely to the matters stated
above and shall not be deemed to waive or amend any other provision of the
Credit Agreement and shall not serve as a waiver or amendment of any other
matter prohibited by the terms and conditions of the Credit Agreement. As
amended hereby, all terms of the Credit Agreement shall remain in full force and
effect and constitute the legal, valid, binding and enforceable obligations of
the Borrower to the Lenders.
C. MISCELLANEOUS
3. Representations and Warranties. The Borrower hereby represents
and warrants to the Lenders and the Administrative Agent that:
(A) the execution, delivery and performance of this Amendment (i)
is within its corporate power; (ii) has been duly authorized by all necessary
corporate action and shareholder action; (iii) does not conflict with, or result
in the breach of the terms, conditions or provisions of, or constitute a default
under, or result in any violation of, or result in the creation of any Lien upon
any of its properties or assets or the properties and assets of any of its
Subsidiaries pursuant to, the charter or articles of organization or similar
document, or By-Laws or operating agreement or similar document of the Borrower,
any award of any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law, rule or
regulation to which the Borrower is subject and (iv) does not require the
consent, permission, authorization, order or license of any governmental
authority or Person;
(B) this Amendment has been duly executed and delivered for the
benefit of or on behalf of the Borrower and constitutes a legal, valid and
binding obligation of Borrower, enforceable against the Borrower in accordance
with its terms except as the enforceability hereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights and remedies in general; and
(C) after giving effect to this Amendment, all representations and
warranties set forth in Article VI of the Agreement are true and correct in all
material respects and no Default or Event of Default has occurred and is
continuing as of the date hereof.
4. Survival. Except as expressly provided herein, the Agreement
shall continue in full force and effect, and the unamended terms and conditions
of the Agreement are expressly incorporated herein and ratified and confirmed in
all respects. This Amendment
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is not intended to be or to create, nor shall it be construed as, a novation or
an accord and satisfaction.
5. Effect of Amendment. From and after the date hereof,
references to the Agreement shall be references to the Agreement as amended
hereby.
6. Entire Understanding. This Amendment constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
Neither this Amendment nor any provision hereof may be changed, waived,
discharged, modified or terminated orally, but only by an instrument in writing
signed by the parties required to be a party thereto pursuant to the Agreement.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED IN ALL
RESPECTS BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF GEORGIA (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF) AND ALL APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same document, and shall be
effective as of the date first above written.
9. Severability. In the event that any part of this Amendment
shall be found to be illegal or in violation of public policy, or for any reason
unenforceable at law, such finding shall not invalidate any other part thereof.
10. Reimbursement of Administrative Agent. Borrower shall
reimburse the Administrative Agent for the reasonable fees and expenses of
counsel for the Administrative Agent in connection with this Amendment.
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WITNESS the hand and seal of the parties hereto through their
duly authorized officers, as of the date first above written.
THE XXXXX GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chairman and CEO
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Vice President and Chief Financial Officer
Attest: /s/ Starr X. Xxxxx
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Starr X. Xxxxx
Secretary
[CORPORATE SEAL]
Address:
The Xxxxx Group, Inc.
000-X Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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SUNTRUST BANK, formerly known as
SunTrust Bank, Atlanta, individually and
as Administrative Agent
By:/s/
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Title:
Address:
SunTrust Bank, Atlanta
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Payment Office:
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]
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BANK OF AMERICA, N.A., formerly known
as Nationsbank, N.A., individually and as
Documentation Agent
By: /s/
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Title:
Address:
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Mr. Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]
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SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By: /s/
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Title:
Address:
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]
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FIRST UNION NATIONAL BANK
By: /s/
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Title:
Address:
000 Xxxxx Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]
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THE CHASE MANHATTAN BANK
By: /s/
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Title:
Address:
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]
