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Exhibit 10.3(b)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated as of
December 8, 2000, is made by and among FREEMARKETS, INC., a Delaware corporation
(the "Borrower"), the Banks (as hereinafter defined), SILICON VALLEY BANK,
individually and in its capacity as Syndication Agent, and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as administrative agent for the Banks (hereinafter
referred to in such capacity as the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement, dated as of November 3, 2000, by and among Borrower, the Banks, the
Syndication Agent and the Agent (the "Credit Agreement") and desire to amend the
terms thereof as set forth herein; and
WHEREAS, as of the date hereof Comerica Bank ("Comerica") is joining
the Credit Agreement as a new Bank pursuant to the Bank Joinder and Assumption
Agreement by and among Comerica, the Borrower and the Agent.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions.
Defined terms used herein unless otherwise defined herein shall have
the meanings ascribed to them in the Credit Agreement as amended by this
Amendment.
2. Amendment of Credit Agreement.
(a) Section 1.1 [Certain Definitions] is hereby amended by
amending and restating the definition of "Required Banks" as
follows:
"Required Banks shall mean
(i) if there are no Loans, Reimbursement Obligations
or Letter of Credit Borrowings outstanding; (x) Banks whose
Commitments aggregate at least 66 and 2/3% of the Commitments
of all of the Banks and (y) if there are more than two (2)
Banks that have Commitments hereunder and if a single Bank's
Commitments aggregate at least 66 and 2/3% of the Commitments
of all of the Banks, then an additional Bank;
(ii) if there are Loans, Reimbursement Obligations,
or Letter of Credit Borrowings outstanding; (x) Banks whose
Loans, Reimbursement Obligations and Letter of Credit
Borrowings then outstanding aggregates at least 66 and 2/3% of
the total principal amount of all of the Loans,
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Reimbursement Obligations and Letter of Credit Borrowings then
outstanding and (y) and if more than two (2) Banks have Loans,
Reimbursement Obligations and/or Letter of Credit Borrowings
then outstanding and if a single Bank's Loans, Reimbursement
Obligations and Letter of Credit Borrowings then outstanding
aggregates at least 66 and 2/3% of the total principal amount
of all of the Loans, Reimbursement Obligations and Letter of
Credit Borrowings then outstanding, then an additional Bank.
Reimbursement Obligations and Letter of Credit Borrowings
shall be deemed, for purposes of this definition, to be in
favor of the Agent and not a participating Bank if such Bank
has not made its Participation Advance in respect thereof and
shall be deemed to be in favor of such Bank to the extent of
its Participation Advance if it has made its Participation
Advance in respect thereof."
(b) Section 2.10.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"2.10.1 Requests; Approval by All Banks.
No sooner than ninety (90) but not less than sixty
(60) days prior to the Expiration Date, the Borrower may request a 364-day
extension of the Expiration Date by written notice to the Agent and the Banks,
and the Banks agree to respond to the Borrower's request for an extension by the
later of forty-five (45) days following receipt of the request or September 30,
2001; provided, however, that the failure of any Bank to respond within such
time period shall not in any manner constitute an agreement by such Bank to
extend the Expiration Date. If all Banks elect to extend, the extension shall be
effective as of the Expiration Date and the Expiration Date shall be extended
for a period of 364 days. If one or more Banks decline to extend or do not
respond to Borrower's request, the provisions of Section 2.10.2 shall apply."
(c) Section 6.1.2 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"6.1.2 Capitalization and Ownership.
The authorized capital stock of the Borrower, as of the
Closing Date, consists of (a) 500,000,000 shares of Common Stock, par value $.01
per share, of which 38,107,009 shares (referred to herein as the "Common
Shares") are issued and outstanding; and (b) 5,000,000 shares of Preferred
Stock, par value $.01 per share, none of which are issued and outstanding. All
of the Common Shares have been validly issued and are fully paid and
nonassessable. As of the Closing Date, there are no options, warrants or other
rights outstanding to purchase any shares of capital stock of the Borrower
except as indicated on Schedule 6.1.2."
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(d) Schedule 1.1(B) [Commitments of Banks] is hereby amended and
restated to read as set forth on the schedule attached hereto
bearing the same name and numerical reference as the original
schedule.
3. Representations and Warranties. The Borrower hereby represents and warrants
to the Banks that, as of the date of and after giving effect to this Amendment,
(a) the execution, delivery and performance of this Amendment and any and all
other documents executed and/or delivered in connection herewith have been
authorized by all requisite corporate action on the part of the Borrower and
will not violate the Borrower's articles of incorporation or bylaws, (b) no
Event of Default or Potential Event of Default has occurred and is continuing or
would result from the making of this Amendment, (c) the representations and
warranties of the Loan Parties contained in the Credit Agreement are true and
correct on and as of the date hereof with the same force and effect as though
made by the Loan Parties on such date (except representations and warranties
which relate solely to an earlier date or time), and (d) the Credit Agreement
(as amended by this Amendment) and all other Loan Documents are and remain
legal, valid, binding and enforceable obligations in accordance with the terms
thereof.
4. Conditions of Effectiveness of this Amendment. The effectiveness of this
Amendment is expressly conditioned upon satisfaction of each of the following
conditions precedent:
A. Fees and Expenses. The Borrower shall pay or cause to be paid to the
Agent for itself and for the account of the Banks the reasonable costs and
expenses of the Agent and the Banks including, without limitation, reasonable
fees of the Agent's counsel in connection with this Amendment.
B. Legal Details; Counterparts. All legal details and proceedings in
connection with the transactions contemplated by this Amendment shall be in form
and substance satisfactory to the Agent, and the Agent shall have received from
the Borrower and each Bank all such other counterpart originals or certified or
other copies of such documents and proceedings in connection with such
transactions, in form and substance satisfactory to the Agent.
C. No Default. As of the date hereof, no Event of Default or Potential
Default has occurred and is continuing and Borrower by executing this Amendment
confirms the same and also confirms the accuracy of the representations and
warranties in Section 3 above.
5. Amendment. The Credit Agreement and other Loan Documents referred to herein
and certain of the exhibits and schedules thereto are hereby amended in
accordance with the terms hereof and any reference to the Credit Agreement or
other Loan Documents in any document, instrument, or agreement shall hereafter
mean and include the Credit Agreement or such Loan Document, including such
schedules and exhibits, as amended hereby.
6. Force and Effect. Borrower reconfirms, restates, and ratifies the Credit
Agreement and all other documents executed in connection therewith except to the
extent any such documents
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are expressly modified by this Amendment and each of the Loan Parties confirms
that all such documents have remained in full force and effect since the date of
their execution.
7. Governing Law. This Amendment shall be deemed to be a contract under the laws
of the Commonwealth of Pennsylvania and for all purposes shall be governed by
and construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws principles.
8. Counterparts. This Amendment may be signed in any number of counterparts each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9. Effective Date. This Amendment shall be effective as of and shall be dated as
of the date of satisfaction of all conditions set forth in Section 4 of this
Amendment.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF and intending to be legally bound hereby, the
parties hereto have executed this Amendment as of the date first above written.
FREEMARKETS, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title Senior V.P. and CFO
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[SIGNATURE PAGE 2 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
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Title Vice President
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[SIGNATURE PAGE 3 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
SILICON VALLEY BANK, individually
and as Syndication Agent
By: /s/ X. X. Xxxxxxxx
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Name: X. X. Xxxxxxxx
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Title Vice President
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[SIGNATURE PAGE 4 OF 4 TO FIRST AMENDMENT TO CREDIT AGREEMENT]
COMERICA BANK
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title Vice President
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SCHEDULE 1.1(B)
COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
Page 1 of 2
PART 1 - COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES TO BANKS
AMOUNT OF
COMMITMENT
FOR REVOLVING
BANK CREDIT LOANS RATABLE SHARE
---- ----------- -------------
Name: PNC Bank, National Association
Address: c/o VentureBank@PNC
USX Tower
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone (000) 000-0000
Telecopy: (000) 000-0000 $10,000,000 40%
Name: Silicon Valley Bank
Address: 5 Radnor Corporate Center,
Xxxxx 000
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Ash Lilani
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 $10,000,000 40%
Name: Comerica Bank
Address: 00 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Mailcode: 4043
Xxx Xxxx, XX 00000-0000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
$ 5,000,000 20%
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TOTAL $25,000,000 100%
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SCHEDULE 1.1(B)
COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
Page 2 of 2
AGENT
Name: PNC Bank, National Association
Address: c/o VentureBank@PNC
USX Tower
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
PART 2 - ADDRESSES FOR NOTICES TO BORROWER AND GUARANTOR:
BORROWER:
Name: FreeMarkets, Inc.
Address: FreeMarkets Center, 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: X.X. Xxxxxxx, Treasury Manager
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
GUARANTOR:
Name: FreeMarkets Investment Company, Inc.
Address: 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: X. X. Xxxxxxx, Vice President & Secretary
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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