EXHIBIT 99.1
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
dated as of August 27, 2004
Among
XXXXXX XXXXXX, INC.
as BORROWER,
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as ADMINISTRATIVE AGENT
--------------------------------------------------------------------------------
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
This First Amendment to Revolving Credit Agreement (this "First Amendment")
is entered into this 27th day of August, 2004 by and among XXXXXX XXXXXX, INC.
(the "Borrower"), the lenders signatory hereto (the "Lenders") and SUNTRUST
BANK (the "Administrative Agent").
WHEREAS, the parties hereto entered into that certain Revolving Credit
Agreement dated as of June 28, 2002 among Xxxxxx Xxxxxx, Inc., the Lenders from
time to time party thereto and SunTrust Bank, as Administrative Agent (the
"Revolving Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Revolving Credit Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the premises, and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto agree to amend the Revolving Credit Agreement as follows:
1. The definition of "Revolving Commitment" in the Revolving Credit
Agreement is deleted and the following definition is substituted in its place:
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans
to the Borrower and to participate in Letters of Credit and
Swingline Loans in an aggregate principal amount not exceeding
the amount set forth with respect to such lender on the signature
pages to that certain First Amendment to Revolving Credit
Agreement dated August 27, 2004, or in the case of a Person
becoming a Lender after August 27, 2004, the amount of the
assigned "Revolving Commitment" as provided in the Assignment
and Acceptance Agreement executed by such Person as an assignee,
as the same may be changed pursuant to terms hereof.
2. The definition of "Commitment Termination Date" contained in the
Revolving Credit Agreement is deleted in its entirety and the following
definition is substituted in lieu thereof:
"Commitment Termination Date" shall mean the earliest of
(i) October 15, 2008, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.8, and
(iii) the date on which all amounts outstanding under this
Agreement, as amended by that certain First Amendment to Revolving
Credit Agreement dated August 27, 2004, have been declared or
have automatically become due and payable (whether by acceleration
or otherwise).
3. Section 7.5 of the Revolving Credit Agreement is amended as follows:
the figure of "20%" in the twelfth line of such Section 7.5 is deleted and the
figure "35%" is inserted in lieu thereof.
4. The definition of "Permitted Acquisition" is deleted in its entirety
and the following is substituted in lieu thereof:
"Permitted Acquisition" shall mean acquisitions by Borrower
satisfying each of the following conditions: (i) total
consideration for acquisitions shall not exceed $20,000,000
during any fiscal year of Borrower and shall not exceed
$40,000,000 in the aggregate from August 27, 2004 through
October 15, 2008; (ii) at the time of each acquisition, the
business of the acquired entity shall be the same line of
business or substantially similar to those engaged in by the
Borrower and its Subsidiaries as of the Closing Date; and
(iii) at the time of and after giving effect to such acquisition,
no Event of Default has occurred and is continuing.
5. Section 7.6(c) of the Revolving Credit Agreement is amended by deleting
the figure "$500,000" in such subparagraph (c) and substituting in lieu thereof
the figure "$1,000,000."
6. Section 7.1 of the Revolving Credit Agreement is amended by deleting
the word "and" at the end of subparagraph (d) thereof, deleting the period at
the end of subparagraph (e) thereof and inserting in lieu thereof "; and"
and adding the following subparagraph (f) as an additional subparagraph to such
Section 7.1:
(f) other Indebtedness in a principal amount of up to
$10,000,000 provided to or arranged for the Borrower at any
time by SunTrust Bank, or provided by another financial
institution approved in writing by the Administrative Agent,
whose approval will not be unreasonably withheld. This
Indebtedness shall be secured by assets of the Borrower and its
Subsidiaries satisfactory to SunTrust Bank or the Administrative
Agent, as applicable.
7. Section 7.2 of the Revolving Credit Agreement is amended by deleting
the period at the end of subparagraph (d) thereof and inserting in lieu thereof
"; and" and adding the following subparagraph (e) as an additional subparagraph
to such Section 7.2:
(e) any Lien securing Indebtedness permitted by Section 7.1(f)
above.
8. Section 6.3 of the Revolving Credit Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
Section 6.3 TOTAL LEASE ADJUSTED FUNDED DEBT TO CONSOLIDATED
EBITDAR. he Borrower and its Subsidiaries will maintain a ratio
of Total Lease Adjusted Funded Debt to Consolidated EBITDAR in
accordance with the table set forth below. This ratio will be
calculated on a rolling four quarter basis and measured as of
the end of each fiscal quarter of Borrower.
DATES: REQUIRED RATIO:
------------------------------------ ---------------
From April 1, 2004 to the Commitment 2.75 to 1.00
Termination Date
9. Schedule I to the Revolving Credit Agreement is deleted in its
entirety and the following is substituted in lieu thereof:
SCHEDULE I
TOTAL LEASE ADJUSTED FUNDED APPLICABLE MARGIN
DEBT TO CONSOLIDATED EBITDAR (basis points per annum)
---------------------------- --------------------------------
BASE LIBOR COMMITMENT FEE
------ ----- --------------
Less than 1.00 0.00 100.00 20.00
Greater than or equal to 1.00
and less than 1.50 0.00 125.00 25.00
Greater than or equal to 1.50
and less than 2.00 0.25 150.00 30.00
Greater than or equal to 2.00
and less than 2.50 0.50 175.00 37.50
Greater than or equal to 2.50 0.75 200.0 37.50
10. The definition of "Required Lenders" is deleted in its entirety and the
following definition is substituted in lieu thereof:
"Required Lenders" shall mean, at any time, any two Lenders
holding more than 51% of the aggregate outstanding Revolving
Credit Exposures at such time.
11. Section 10.3(b) of the Revolving Credit Agreement is deleted in its entirety
and the following is substituted in lieu thereof:
(b) The Borrower shall indemnify the Administrative Agent
(and any subagent thereof), the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all costs, losses, claims,
damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee),
and shall indemnify and hold harmless each Indemnitee from all
fees and time charges and disbursements for attorneys who may
be employees of any Indemnitee, incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the
Borrower or any other Loan Party arising out of, in connection
with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder
or the consummation of the transactions contemplated hereby or
thereby, (ii) any Loan or Letter of Credit or the use or proposed
use of the proceeds therefrom (including any refusal by the
Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand
do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or Release of Hazardous
Materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other
theory, whether brought by a third party or by the Borrower
or any other Loan Party, and regardless of whether any Indemnitee
is a party thereto, provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses,
claims, damages, costs, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee or (y) result from a
claim brought by the Borrower or any other Loan Party against
an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if
the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction.
12. Except as amended hereby, the Borrower hereby reaffirms its
obligations under the Revolving Credit Agreement, as amended, and the Borrower
agrees that its obligations thereunder are valid and binding, enforceable in
accordance with its terms, subject to no defense, counterclaim or objection.
13. All defined terms used but not otherwise defined herein shall have
the meaning ascribed to such terms in the Revolving Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Executive Vice President
and Secretary
ADMINISTRATIVE AGENT:
SUNTRUST BANK, as Administrative
Agent, as Issuing Bank, as Swingline
Lender and as a Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Title: Vice President
--------------------
Revolving Commitment: $32,500,000
LC Commitment: $5,000,000
Swingline Commitment: $10,000,000
NATIONAL CITY BANK, as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxx
Title: Senior Vice President
---------------------
Revolving Commitment: $17,500,000
GUARANTORS' CONSENT
Each of the undersigned Guarantors acknowledges and agrees to the terms of
the First Amendment to Revolving Credit Agreement set forth above. The
obligations of each of the undersigned Guarantors pursuant to that certain
Subsidiary Guarantee Agreement dated as of June 28, 2002 among each of the
undersigned Guarantors, Xxxxxx Xxxxxx, Inc. and SunTrust Bank, as
Administrative Agent, are hereby ratified and affirmed.
XXXXXX XXXXXX SALES CO., INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
THE NORWALK COMPANY
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
EDITORIAL CARIBE, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
ELM HILL PRESS, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
XXXXXX DIRECT MARKETING SERVICES, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
LIVE VENT MANAGEMENT, INC. (formerly
known as NEW LIFE TREATMENT CENTERS,
INC.)
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
THE WICKENBURG COMPANY
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
WOMEN OF FAITH, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
WORTHY, INC.
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
THE HAYWARD CALIFORNIA COMPANY
By: /s/ Xxx X. Xxxxxx
-------------------------
Xxx X. Xxxxxx
Vice President and Secretary
