Exhibit 4.3
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to CREDIT Agreement dated as of February 28, 2001
(the "Amendment") by and among XXXX X. XXXXXXX COMPANY, a Georgia corporation
(the "Borrower"), the several banks and other financial institutions from time
to time party hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the "Administrative Agent") and as Lead
Arranger, WACHOVIA BANK, N.A., as Syndication Agent (the "Syndication Agent"),
BANK OF AMERICA, N.A., as Documentation Agent (the "Documentation Agent"), FLEET
NATIONAL BANK, as Senior Managing Agent, BNP PARIBAS, as Senior Managing Agent
and FIRST UNION NATIONAL BANK, as Senior Managing Agent (each a "Senior Managing
Agent").
WHEREAS, the Borrower, the Agent and the Lenders are parties to that
certain Credit Agreement dated as of August 23, 2000, by and among the Borrower,
the Administrative Agent and the other Lenders, as amended (the "Credit
Agreement"; all capitalized terms not otherwise defined herein shall have the
meanings set forth in the Credit Agreement), pursuant to which the Lenders have
made available certain financial accommodations to the Borrower;
WHEREAS, the parties wish to amend the Credit Agreement to, among other
things, modify the manner in which the consolidated net worth covenant is
calculated, but only on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
Section 1. Amendments.
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(a) The Credit Agreement is hereby amended by deleting the definition
of "Consolidated Net Worth" from Section 1.1 and substituting in lieu thereof
the following new definition of "Consolidated Net Worth":
"Consolidated Net Worth" shall mean, as of any date, the total
assets of the Borrower and its Subsidiaries that would be reflected on
the Borrower's consolidated balance sheet as of such date prepared in
accordance with GAAP, after eliminating all amounts properly
attributable to minority interests, if any, in the stock and surplus of
Subsidiaries plus any non-cash charges actually taken which are
associated with the accelerated write-off of any tangible or intangible
assets related to the acquisition of Concentrex or to the Software
Business in an amount up to $15,000,000 in the aggregate through the
Commitment Termination Date, minus (i) the total liabilities of the
Borrower and its Subsidiaries that would be reflected on the Borrower's
consolidated balance sheet as of such date prepared in accordance with
GAAP minus (ii) the amount of any write-up in the book value of any
assets resulting from a revaluation thereof or any write-up in excess
of the cost of such assets acquired reflected on the consolidated
balance sheet of the Borrower as of such date prepared in accordance
with GAAP.
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(b) The Credit Agreement is hereby amended by deleting Section 6.3 and
substituting in lieu thereof the following new Section 6.3:
"Section 6.3. Consolidated Net Worth The Borrower will not permit
its Consolidated Net Worth at the end of each fiscal quarter of the
Borrower, commencing with the fiscal quarter ending September 30, 2000,
to be less than an amount equal to $141,000,000, plus (i) 50% of
Consolidated Net Income on a cumulative basis for all fiscal quarters
of the Borrower preceding the date of determination, commencing with
the fiscal quarter beginning July 1, 2000; provided, that if
Consolidated Net Income is negative in any fiscal quarter the amount
added for such fiscal quarter shall be zero and such negative
Consolidated Net Income shall not reduce the amount of Consolidated Net
Income added from any previous fiscal quarter, plus (ii) 100% of the
net proceeds from any equity offering."
Section 2. Benefits of Loan Documents.
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Each reference to the Credit Agreement in any of the Loan Documents
shall be deemed to be a reference to the Credit Agreement as amended by this
Amendment, and as the Credit Agreement may from time to time be further amended,
supplemented, restated or otherwise modified in the future by one or more other
written amendments or supplemental or modification agreements entered into
pursuant to the applicable provisions thereof.
Section 3. Conditions to Effectiveness of Amendment. The effectiveness
of this Amendment is subject to the condition precedent that each of the
following be received by the Administrative Agent (unless otherwise waived in
writing by the Administrative Agent), each of which shall be satisfactory in
form and substance to the Administrative Agent:
(a) this Amendment executed by each of the parties hereto;
(b) the Acknowledgment and Consent of the Guarantors, substantially in
the form of Exhibit A hereto, executed by each of the Guarantors (as defined
below)(the "Acknowledgment"); and
(c) such other approvals, opinions or documents as the Administrative
Agent may reasonably request.
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Section 4. Representations. The Borrower represents to the Lenders that:
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(a) The execution, delivery and performance by the Borrower of this
Amendment, (a) does not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect or where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding on the Borrower or any of its
Subsidiaries or any of its assets or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
(b) The execution, delivery and performance by the Borrower of this
Amendment is within the Borrower's organizational powers and has been duly
authorized by all necessary organizational, and if required, stockholder action.
This Amendment has been duly executed and delivered by the Borrower, and
constitutes valid and binding obligations of the Borrower, enforceable against
it in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
Section 5. Reaffirmation. The Borrower hereby repeats and reaffirms all
representations and warranties made by the Borrower in the Credit Agreement and
the other Loan Documents to which it is a party as of the date hereof with the
same force and effect as if such representations and warranties were set forth
in this Amendment in full except to the extent such representations expressly
relate to an earlier date or have been updated to the extent permitted by the
Credit Agreement.
Section 6. Reaffirmation and Representations by Guarantors.
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By execution of the Acknowledgment, each Subsidiary that has executed a
Subsidiary Guarantee Agreement (a "Guarantor"):
(a) reaffirms its continuing obligations to the Administrative Agent
and the Lenders under the Subsidiary Guarantee Agreement to which it is a party,
and agrees that the transactions contemplated by this Amendment shall not in any
way affect the validity and enforceability of such Subsidiary Guarantee
Agreement, or reduce, impair or discharge the obligations of such Guarantor
thereunder; and
(b) represents to the Lenders that:
(i) such Guarantor has the right and power, and has taken all necessary
action to authorize it, to execute and deliver the Acknowledgment, and to
perform the Acknowledgment in accordance with its terms. The Acknowledgment has
been duly executed and delivered by the duly authorized officers of each
Guarantor, and is a legal, valid and binding obligation of each Guarantor
enforceable against each Guarantor in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity; and
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(ii) the execution, delivery and performance by such Guarantor of the
Acknowledgment, (a) do not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect or where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of such
Guarantor or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, material agreement or other material
instrument binding on such Guarantor or any of its assets or give rise to a
right thereunder to require any payment to be made by such Guarantor and (d)
will not result in the creation or imposition of any Lien on any asset of such
Guarantor, except Liens (if any) created under the Loan Documents.
Section 7. Benefits. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
and assigns.
Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 9. Effect. Except as expressly herein amended, the terms and
conditions of the Credit Agreement shall remain in full force and effect.
Section 10. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed to be an original and shall be
binding upon all parties.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Credit Agreement to be executed by their authorized officers all as of the day
and year first above written.
XXXX X. XXXXXXX COMPANY
By___________________________
Name: Xxxx Xxxxxx
Title: Treasurer
[SEAL]
SUNTRUST BANK, as Administrative Agent, as Lead
Arranger, as Issuing Bank, as Swingline Lender and
as a Lender
By___________________________________
Name: Xxxxx Xxxxxx
Title: Managing Director
WACHOVIA BANK, N.A., as Syndication Agent and as a
Lender
By:
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Name:
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Title:
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BANK OF AMERICA, N.A., as Documentation Agent and as
a Lender
By:
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Name:
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Title:
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FLEET NATIONAL BANK, as Senior Managing Agent and as
a Lender
By:
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Name:
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Title:
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BNP PARIBAS, as Senior Managing Agent and as a Lender
By:
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Name:
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Title:
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By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK, as Senior Managing Agent
and as a Lender
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a Lender
By:
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Name:
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Title:
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FIFTH THIRD BANCORP, as a Lender
By:
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Name:
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Title:
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ACKNOWLEDGMENT AND CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned Subsidiaries hereby (i) acknowledges receipt of
the foregoing Second Amendment to Credit Agreement by and among Xxxx X. Xxxxxxx
Company, the Lenders under the Credit Agreement (the "Lenders") and SunTrust
Bank, Atlanta, in its capacity as administrative agent for the Lenders (the
"Administrative Agent") (the "Amendment"), (ii) consents to the Amendment, (iii)
agrees and acknowledges to the terms thereof including, without limitation, the
representations and agreements of the each of the undersigned set forth in
Section 7 of the Amendment, and (iv) restates and affirms its respective
obligations under its Subsidiary Guarantee Agreement previously executed and
delivered in favor of the Agent (for the ratable benefit of the Lenders) without
defense, counterclaim or set-off.
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IN WITNESS WHEREOF, each of the undersigned Subsidiaries has executed
this Acknowledgment and Consent of Subsidiary Guarantors this 28 day of
February, 2001.
XXXXXXX INTERNATIONAL COMPANY
XXXXXXX DATAPRINT, INC.
XXXX X. XXXXXXX COMPANY OF
PUERTO RICO
SCANTRON CORPORATION
SCANTRON QUALITY COMPUTERS, INC.
THE CHECK STORE, INC.
CENTRALIA HOLDING CORP.
VENUS FLYTRAP CORPORATION
CONCENTREX INSURANCE GROUP, INC.
MONEYSCAPE HOLDINGS, INC.
ULTRADATA CORPORATION
CONCENTREX INCORPORATED
By:
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Name: Xxxx X. Xxxxxxx
Title: Vice President
MECA SOFTWARE, L.L.C.
By:
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Name: Xxxx X. Xxxxxxx
Title: Manager
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