Exhibit 4(ii)
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of the 4th day of
February, 2000 (this "Amendment"), is made among XXXXXX CORPORATION, a Virginia
corporation (the "Borrower"), XXXXXX HOLDINGS INC., a Virginia corporation
("Holdings"), the banks and financial institutions listed on the signature pages
thereof or that became parties thereto after the date thereof (collectively the
"Lenders"), and FIRST UNION NATIONAL BANK (the "Agent").
RECITALS
A. The Borrower, Holdings, the Agent and the Lenders are parties to a
Credit Agreement, dated as of December 21, 1999 (as amended, the "Credit
Agreement"), providing for the availability of a revolving credit facility to
the Borrower upon the terms and conditions set forth therein. Capitalized terms
used herein without definition shall have the meanings given to them in the
Credit Agreement.
B. The Borrower has requested that the Agent and the Lenders agree to
amend the Credit Agreement to reduce certain fees due thereunder, as more
particularly set forth herein. The Borrower has requested that such amendments
be effective as of January 31, 2000. The Agent and the Lenders have agreed to
effect such amendments upon the terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
1.1 New Definitions. Section 1.1 of the Credit Agreement is hereby
amended by adding the following definition of "Second Amendment Date" in
appropriate alphabetical order:
"Second Amendment" shall mean the Second Amendment
to the Credit Agreement, between the Borrower,
Holdings, the Agent and the Lenders, pursuant to which
it is contemplated that the parties will agree to
certain amendments to the Credit Agreement
necessitated by the Target's 1999 financial
performance and a contemplated amendment to the Merger
Agreement.
"Second Amendment Date" shall mean the date of the
Second Amendment.
1.2 Fees. Section 2.9 of the Credit Agreement is amended by amending and
restating subsections (b) and (c) thereof in their entirety as follows:
(b) To the Agent, for the account of each Lender,
a commitment fee for the period from the date of this
Agreement to the earliest of the Closing Date, March
31, 2000, the Second Amendment Date or the Termination
Date, at a per annum rate equal to 0.125% on such
Lender's Commitment, payable in arrears on the
earliest of the Closing Date, March 31, 2000, the
Second Amendment Date or the Termination Date;
(c) To the Agent, for the account of each Lender,
a commitment fee for each calendar quarter (or portion
thereof) for the period from the earliest of the
Closing Date, March 31, 2000 or the Second Amendment
Date to the Termination Date, at a per annum rate
equal to the Applicable Margin Percentage in effect
for such fee from time to time during such quarter on
such Lender's ratable share (based on the proportion
that its Commitment bears to the aggregate
Commitments) of the average daily aggregate Unutilized
Commitments, payable in arrears (i) on the last
Business Day of each calendar quarter, beginning with
the first such day to occur after the earliest of the
Closing Date, March 31, 2000 or the Second Amendment
Date and (ii) on the Termination Date; and
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower and Holdings hereby represent and warrant to the Agent and the
Lenders as follows:
2.1 Representations and Warranties. After giving effect to this
Amendment, each of the representations and warranties of the Borrower and
Holdings contained in Sections 4.1 and 4.3 the Credit Agreement is true and
correct on and as of the date hereof with the same effect as if made on and as
of the date hereof (except to the extent any such representation or warranty is
expressly stated to have been made as of a specific date, in which case such
representation or warranty is true and correct as of such date).
2.2 No Default. After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
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ARTICLE III
EFFECTIVE DATE
Upon the execution and delivery of a counterpart of this Amendment by each
of the parties hereto, this Amendment shall be effective as of January 31, 2000.
ARTICLE IV
ACKNOWLEDGEMENT
Holdings hereby acknowledges that the Borrower, the Agent and the Lenders
have agreed, as provided herein, to amend the Credit Agreement as provided
herein. Holdings hereby approves and consents to the transactions contemplated
by this Amendment and agrees that its obligations under Article IX of the Credit
Agreement and the other Credit Documents to which it is a party shall not be
diminished as a result of the execution of this Amendment. This acknowledgement
by Holdings is made and delivered to induce the Agent and the Lenders to enter
into this Amendment, and Holdings acknowledges that the Agent and the Lenders
would not enter into this Amendment in the absence of the acknowledgements
contained herein.
ARTICLE V
MISCELLANEOUS
5.1 Effect of Amendment. From and after the effective date of the
amendments to the Credit Agreement set forth herein, all references to the
Credit Agreement set forth in any other Credit Document or other agreement or
instrument shall, unless otherwise specifically provided, be references to the
Credit Agreement as amended by this Amendment and as may be further amended,
modified, restated or supplemented from time to time. This Amendment is limited
as specified and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement except as
expressly set forth herein. Except as expressly amended hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
5.2 Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Virginia (without
regard to the conflicts of law provisions thereof).
5.3 Expenses. The Borrower and Holdings agree to pay upon demand all
reasonable out-of-pocket costs and expenses of the Agent (including, without
limitation, the reasonable fees and expenses of counsel to the Agent) in
connection with the preparation, negotiation, execution and delivery of this
Amendment and the other Credit Documents delivered in connection herewith.
5.4 Severability. To the extent any provision of this Amendment is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to
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the extent of such prohibition or invalidity and only in any such jurisdiction,
without prohibiting or invalidating such provision in any other jurisdiction or
the remaining provisions of this Amendment in any jurisdiction.
5.5 Successors and Assigns. This Amendment shall be binding upon, inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
5.6 Construction. The headings of the various sections and subsections of
this Amendment have been inserted for convenience only and shall not in any way
affect the meaning or construction of any of the provisions hereof.
5.7 Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
XXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Title: EVP/CFO
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XXXXXX HOLDINGS INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: EVP/CFO
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FIRST UNION NATIONAL BANK, as Agent
and as a Lender
By: /s/ Xxxx X. Xxxxxxxxx
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Title: Senior Vice President
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BANK OF AMERICA, N.A.
By: /s/ Xxxx X. Xxxx
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Title: Managing Director
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BANK ONE, NA
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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BARCLAYS BANK PLC
By: /s/ X. X. Xxxxxxx
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Title: Relationship Director
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THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx Xxxxxx
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Title: Vice President
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CRESTAR BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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FLEET NATIONAL BANK
By: /s/ Xxxxxx X.X. Xxxxxx
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Title: Senior Vice President
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
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Title: Commercial Credit Officer
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THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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SOCIETE GENERALE, NY BRANCH
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
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Title: Vice President
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