Exhibit 99(a)
AMENDMENT AGREEMENT NO. 5
TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 30th day
of August, 1999, by and among XXXXXX INDUSTRIES, INC., a Delaware corporation
(herein called the "Borrower"), BANK OF AMERICA, N.A., d/b/a NationsBank,
National Association, successor by merger of NationsBank, National Association
(the "Agent"), as Agent for the lenders (the "Lenders") party to the Credit
Agreement dated October 15, 1997, as amended by Amendment Agreement No. 1 dated
November 20, 1997, Amendment No. 2 dated January 28, 1998, Amendment No. 3 dated
July 9, 1998 and Amendment No. 4 dated November 30, 1998 among such Lenders,
Borrower and the Agent (the "Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make term loans and
revolving loans to the Borrower in the aggregate principal amount of up to
$800,000,000 as evidenced by the Notes (as defined in the Agreement) and to
issue Letters of Credit for the benefit of the Borrower; and
WHEREAS, as a condition to the making of the loans pursuant to the
Agreement the Lenders have required that all Restricted Subsidiaries (other than
inactive Subsidiaries) of the Borrower guarantee payment of all Obligations of
the Borrower arising under the Agreement; and
WHEREAS, the Borrower has requested that the Agreement be further
amended and the Agent and the Lenders, subject to the terms and conditions
hereof, are willing to make such amendment, as provided herein;
NOW, THEREFORE, the Borrower, the Agent and the Lenders do hereby agree
as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereinafter
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENT. The Agreement is amended, effective as of August 31,
1999, as follows:
(a) The table contained in the definition of "Applicable
Margin" in SECTION 1.1 is hereby amended in its entirety so that as
amended it shall read as follows:
Applicable Margin
Consolidated for Eurodollar
"Tier Leverage Ratio Rate Loans
------------------------------------------------------------------------------
1 Equal to or Greater than 4.25 to 1.00 2.25%
2 Less than 4.25 to 1.00 and Equal to 1.75%
or Greater than 3.75 to 1.00
3 Less than 3.75 to 1.00 and Equal to 1.375%
or Greater than 3.25 to 1.00
4 Less than 3.25 to 1.00 and Equal to 1.125%
or Greater than 2.75 to 1.00
5 Less than 2.75 to 1.00 and Equal to .75%
or Greater than 2.25 to 1.00
6 Less than 2.25 to 1.00 .625%"
(b) The table contained in the definition of "Applicable
Unused Fee" in SECTION 1.1 is hereby amended in its entirety so that as
amended it shall read as follows:
Applicable Margin
Consolidated for Eurodollar
"Tier Leverage Ratio Rate Loans
------------------------------------------------------------------------------
1 Equal to or Greater than 4.25 to 1.00 .40%
2 Less than 4.25 to 1.00 and Equal to .35%
or Greater than 3.75 to 1.00
3 Less than 3.75 to 1.00 and Equal to .30%
or Greater than 3.25 to 1.00
4 Less than 3.25 to 1.00 and Equal to .25%
or Greater than 2.75 to 1.00
5 Less than 2.75 to 1.00 and Equal to .25%
or Greater than 2.25 to 1.00
6 Less than 2.25 to 1.00 .20%"
(c) The definition of "Consolidated EBITDA" in SECTION 1.1 is
hereby amended by (i) deleting the period at the end thereof and
inserting in lieu thereof a semi-colon, and (ii) adding the further
proviso at the end thereof:
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"PROVIDED, FURTHER, however, upon the occurrence of the Mining
Sale, the computation of Consolidated EBITDA for all periods
preceding the date of such sale shall exclude the results of
operations of the Mining Assets."
(d) SECTION 1.1 is hereby amended by deleting the definitions
"Consolidated Fixed Charge Coverage Ratio" and "Consolidated Fixed
Charges" therefrom and inserting immediately preceding the definition
"Consolidated Interest Expense" a new definition "Consolidated Interest
Coverage Ratio" which shall read as follows:
"CONSOLIDATED INTEREST COVERAGE RATIO" means, with
respect to the Borrower and its Restricted Subsidiaries for
any Four-Quarter Period ending on the date of computation
thereof, the ratio of (i) Consolidated EBITDA for such period
to (ii) Consolidated Interest Expense for such period.
(e) The following new definitions are hereby added to SECTION
1.1 in the appropriate alphabetical order:
"AMENDMENT NO. 5" means Amendment Agreement No. 5 to
Credit Agreement dated August 30, 1999 among the Borrower,
the Agent and the Lenders.
"CAPITAL EXPENDITURES" means, with respect to Xxx
Xxxxxx Resources, Inc. and its Subsidiaries, if any, on a
consolidated basis, for any period the sum of (without
duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by Xxx Xxxxxx Resources, Inc. or any
of its Subsidiaries during such period for items that would be
classified as "property, plant or equipment" or comparable
items on the consolidated balance sheet of Xxx Xxxxxx
Resources, Inc. and its Subsidiaries, including without
limitation all transactional costs incurred in connection with
such expenditures provided the same have been capitalized,
excluding, however, (A) the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in
writing and submitted to the Agent together with any
compliance certificate delivered pursuant to SECTION 9.1(A) or
(B), (B) non-cash capitalized depreciation arising in
connection with mining operations, and (ii) with respect to
any Capital Lease entered into by Xxx Xxxxxx Resources, Inc.
or its Subsidiaries during such period, the present value of
the lease payments due under such Capital Lease over the term
of such Capital Lease applying a discount rate equal to the
interest rate provided in such lease (or in the absence of a
stated interest rate, that rate used in the preparation of the
financial statements described in SECTION 9.1(A), and (C) any
portion of the purchase price of an Acquisition by Xxx Xxxxxx
Resources, Inc. which is accounted for as a Capital
Expenditure, all the foregoing in accordance with GAAP applied
on a Consistent Basis.
"MINING ASSETS" means the capital stock of Xxx Xxxxxx
Resources, Inc. which includes its direct ownership interest
in Black Warrior Methane Corp. and Black Warrior Transmission
Corp. and its indirect ownership interest in International
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Coalbed Methane Group and the assets of Xxx Xxxxxx Resources,
Inc. including its mining assets and its investments described
herein and its De-Gas Division.
"MINING SALE" means the sale, transfer or disposition
of all or a part of the Mining Assets, including by split-up,
spin-off or otherwise.
"YEAR 2000 COMPLIANT" means all computer applications
(including those affected by information received from its
suppliers and vendors) that are material to the Borrower=s or
any of its Subsidiaries= business and operations, taken as a
whole, will on a timely basis be able to perform properly
date-sensitive functions involving all dates on and after
January 1, 2000.
"YEAR 2000 PROBLEM" means the risk that computer
applications used by the Borrower or any of its Subsidiaries
(including those affected by information received from its
suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates on
and after January 1, 2000.
(f) A new SECTION 3.14 is hereby added to the Agreement which
Section shall read as follows:
"3.14. INTRADAY FUNDING. Without limiting the
provisions of SECTION 3.11, unless the Borrower or any Lender
has notified the Agent not later than 12:00 Noon of the
Business Day before the date any payment (including in the
case of Lenders any Advance) to be made by it is due, that it
does not intend to remit such payment, the Agent may, in its
discretion, assume that Borrower or each Lender, as the case
may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance
thereon, make available such payment (or portion thereof) to
the Person entitled thereto as otherwise provided herein. If
such payment was not in fact remitted to the Agent in the
manner required hereunder, then:
(i) if Borrower failed to make such payment,
each Lender shall forthwith on demand repay to the
Agent the amount of such assumed payment made
available to such Lender, together with interest
thereon in respect of each day from and including the
date such amount was made available by the Agent to
such Lender to the date such amount is repaid to the
Agent at the Federal Funds Effective Rate; and
(ii) if any Lender failed to make such
payment, the Agent shall be entitled to recover such
corresponding amount forthwith upon the Agent=s
demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such
corresponding amount to the Agent in immediately
available funds upon receipt of such demand. The
Agent also shall be entitled to recover interest on
such corresponding amount in respect of each day from
the date such corresponding amount was made available
by
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the Agent to the Borrower to the date such
corresponding amount is recovered by the Agent, (A)
from such Lender at a rate per annum equal to the
daily Federal Funds Effective Rate or (B) from the
Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such
corresponding amount. Until the Agent shall recover
such corresponding amount together with interest
thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of SECTION
3.11. Nothing herein shall be deemed to relieve any
Lender from its obligation to fulfill its commitments
hereunder or to prejudice any rights which the Agent
or the Borrower may have against any Lender as a
result of any default by such Lender hereunder."
(g) A new SECTION 8.23 is hereby added to ARTICLE VIII which
Section shall read as follows:
"8.23 YEAR 2000 COMPLIANCE DISCLOSURE. The Borrower
and its Subsidiaries have (i) initiated a review and
assessment of all areas within its and each of its
Subsidiaries= business and operations (including those
affected by information received from suppliers and vendors)
that could reasonably be expected to be materially and
adversely affected by the Year 2000 Problem, (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a
timely basis, and (iii) to date, implemented that plan
substantially in accordance with that timetable. The Borrower
reasonably believes that all computer applications (including
those affected by information received from its suppliers and
vendors) that are material to its or any of its Subsidiaries=
business and operations, taken as a whole, will on a timely
basis be Year 2000 Compliant, except to the extent that a
failure to do so could not reasonably be expected to have
Material Adverse Effect."
(h) A new SECTION 9.23 is hereby added to ARTICLE IX which
Section shall read as follows:
"9.23 YEAR 2000 COMPLIANCE. The Borrower will
promptly notify the Agent and the Lenders in the event the
Borrower discovers or determines that any computer application
(including those affected by information received from its
suppliers and vendors) that is material to its or any of its
Subsidiaries= business and operations, taken as a whole, will
not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to
have a Material Adverse Effect."
(i) Subsection (f) of SECTION 9.1 is hereby amended in its
entirety so that as amended it shall read as follows:
"(f) Following the date of Amendment No. 5, as soon
as available and in any event no later than 60 days after the
beginning of each Fiscal Year, a consolidated
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business plan for the Borrower and its Subsidiaries, a
supplemental consolidated business plan for the Borrower and
its Restricted Subsidiaries, in each case prepared by
management of the Borrower, substantially similar in form and
detail to the business plans prepared prior to the Closing
Date and furnished to the Agent, of balance sheets, operations
and retained earnings statements and cash flow statements (to
include separate forecasts for Consolidated Capital
Expenditures and Consolidated EBITDA), on a quarterly basis
for such Fiscal Year, and a reasonably detailed explanation of
any underlying assumptions with respect thereto; and"
(j) SECTION 10.1 is hereby amended in its entirety so that as
amended it shall read as follows:
"10.1 FINANCIAL COVENANTS.
(a) INTEREST COVERAGE RATIO. Cause, suffer or permit
the Consolidated Interest Coverage Ratio as at the end of each
Four-Quarter Period to be less than 2.50 to 1.00.
(b) LEVERAGE. Cause, suffer or permit the
Consolidated Leverage Ratio to be greater than 3.75 to 1.00;
provided, however, in the event of a Mining Sale during any of
the following fiscal quarters, cause, suffer, or permit the
Consolidated Leverage Ratio as at the end of the following
four quarter periods set forth below following such sale to be
greater than the amount set forth opposite each such period:
Ratio Must
Period Ending Not Exceed
------------- ----------
November 30, 1999 4.25 to 1.00
February 29, 2000 4.00 to 1.00
May 31, 2000 4.00 to 1.00
August 31, 2000 and thereafter 3.75 to 1.00
(c) CAPITAL EXPENDITURES. Permit Xxx Xxxxxx
Resources, Inc. and Subsidiaries of Xxx Xxxxxx Resources, Inc.
to make or become committed to make Capital Expenditures which
exceed in the aggregate in any Fiscal Year of Xxx Xxxxxx
Resources, Inc. and its Subsidiaries $35,000,000 (on a
cumulative basis, with the effect that amounts not expended in
any Fiscal Year may be carried forward to a subsequent
period)."
(k) SECTION 10.2 is hereby amended by deleting the figure
"$10,000,000" appearing therein and inserting in lieu thereof the
figure "$25,000,000".
(l) Subsection (h) of SECTION 10.3 is hereby amended by
deleting the reference to SECTION 10.16(II) appearing therein and
inserting in lieu thereof a reference to SECTION 10.16.
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(m) SECTION 10.5 is hereby amended in order to (i) add to
subsection (c) Xxxxx Industries Corporation as a Subsidiary of Borrower
whose capital stock may be sold as provided therein, (ii) delete the
word "and" at the end of subsection (g), (iii) delete the period at the
end of subsection (h) and insert in lieu thereof a semi-colon and the
word "and" and (iv) add a new subsection (i) thereto reading as
follows:
"(i) the Mining Sale provided that (i) the Net Cash Proceeds
of such Mining Sale are applied to the Ratable Reduction of
Term Loan Facilities, and (ii) immediately prior to and after
giving effect to any such sale, no Default or Event of Default
shall exist and be continuing hereunder."
(n) SECTION 10.6 is hereby amended by (i) deleting in
subsection (k) all words following the word "conducted" and (ii)
deleting in subsection (l) the figure "$60,000,000" and inserting in
lieu thereof the figure "$100,000,000".
(o) SECTION 10.8 is hereby amended by (i) deleting the word
"and" at the end of subsection (b); (ii) adding the word "and" at the
end of subsection (c); (iii) deleting in its entirety the proviso
following subsection (c); and (iv) amending subsection (b) in its
entirety so that as amended it shall read as follows and adding a new
subsection (d) reading as follows:
"(b) Restricted Payments in an aggregate amount not
to exceed the sum of (i) $100,000,000, (ii) plus 50% of
Consolidated Net Income for each fiscal quarter ending
following the date of Amendment No. 5, plus (iii) any increase
in Subordinated Payables after the date of Amendment No. 5;
PROVIDED, HOWEVER, that there shall be added back to
Consolidated Net Income the actual amount of any losses or
associated charges, net of any income tax effect, resulting
from the Mining Sale;
* * * * * * * *
(d) distribution to shareholders of the Borrower of
the capital stock of Xxx Xxxxxx Resources, Inc.; provided such
distribution shall be in addition to the Restricted Payments
permitted under SECTION 10.8(B)."
(p) SECTION 10.14 is hereby amended by deleting the reference
to SECTION 10.16(II) appearing therein and inserting in lieu thereof a
reference to SECTION 10.16.
3. SUBSIDIARY CONSENTS. Each Restricted Subsidiary of the Borrower that
has delivered a Guaranty to the Agent has joined in the execution of this
Amendment Agreement for the purpose of (i) agreeing to the amendment to the
Agreement and (ii) confirming its guarantee of payment of all the Obligations.
4. CONDITIONS. This Amendment Agreement shall become effective upon
execution by the Required Lenders and the Borrower delivering to the Agent five
(5) counterparts of this
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Amendment Agreement duly executed by the Borrower and consented to by each of
the Restricted Subsidiaries.
5. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
6. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
XXXXXX INDUSTRIES, INC.
WITNESS:
/s/ X. XXXXX By: /s/ A. W. HUGE
------------------------ ----------------------------------
Name: Xxxxxx X. Huge
/s/ XXXXX X. XXXXXX Title: Executive Vice President and
------------------------ Chief Financial Officer
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GUARANTORS:
AIMCOR ENTERPRISES INTERNATIONAL
INCORPORATED
AIMCOR (FAR EAST), INC.
APPLIED INDUSTRIAL MATERIALS
CORPORATION
BEST INSURORS, INC.
BEST INSURORS OF MISSISSIPPI, INC.
COAST TO COAST ADVERTISING, INC.
XXXXX BUILDING SUPPLIES, INC.
XXXXX PROPERTIES, INC.
HOMES HOLDINGS CORPORATION
JEFFERSON WARRIOR RAILROAD
COMPANY, INC.
XXX XXXXXX RESOURCES, INC.
JW ALUMINUM COMPANY
X.X. XXXXXX, INC.
J.W.I. HOLDINGS CORPORATION
LAND HOLDINGS CORPORATION
XXXXX INDUSTRIES CORPORATION
SOUTHERN PRECISION CORPORATION
UNITED LAND CORPORATION
UNITED STATES PIPE AND FOUNDRY
COMPANY, INC.
XXXXXX MANUFACTURING COMPANY
WITNESS: XXXXXX HOME IMPROVEMENT, INC.
XXXXXX LAND COMPANY
/s/ X. XXXXX XXXX TRANSPORT AGENCIES (USA), INC.
---------------------------
/s/ XXXXX X. XXXXXX By: /s/ A. W. HUGE
--------------------------- -----------------------------------
Name: Xxxxxx X. Huge
Title: Executive Vice President and
Chief Financial Officer
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XXX XXXXXX COMPUTER SERVICES, INC.
XXX XXXXXX HOMES, INC.
WITNESS: XXXXXXXXXX HOMES, INC.
/s/ XXXX XXXXXX
--------------------------
/s/ R. BEHOFF By: /s/ X. X. XXXX
-------------------------- -------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
WITNESS: XXX XXXXXX HOMES OF ASHEVILLE, INC.
/s/ XXXXXXX XXXXXXX
--------------------------
/s/ XXXXX XXXXXX By: /s/ XXXXXX X. XXXXXXX
-------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
DREAM HOMES USA, INC.
DREAM HOMES, INC.
CRESTLINE HOMES, INC.
WITNESS: JWH ACQUISITION CO.
/s/ XXXXX XXXXXXX
--------------------------
/s/ XXXXXX XXXXXXX By: /s/ XXXXXX X. XXXXX, XX.
-------------------------- -------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
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BANK OF AMERICA, N.A.,
d/b/a NationsBank, National
Association, as Agent for the
Lenders
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
BANK OF AMERICA, N.A.,
d/b/a NationsBank, National
Association, as Lender
By: /s/ XXXXXXX X. XXXXXX
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
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