Exhibit 4.4
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD Amendment to CREDIT Agreement dated as of February 25, 2002
(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, as amended by that certain
First Amendment to Credit Agreement dated as of October 19, 2000, as amended by
that certain Second Amendment to Credit Agreement dated as of February 28, 2001,
by and among the Borrower, the Administrative Agent and the other Lenders (as so
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 definition of "Permitted Acquisitions", 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 "Permitted Acquisitions" from Section 1.01 and substituting in lieu thereof
the following new definition of "Permitted Acquisitions":
""Permitted Acquisitions" shall mean (i) the
Acquisition of Concentrex and (ii) any other Acquisition so
long as (a) at the time of such Acquisition, no Default or
Event of Default is in existence, (b) such acquisition has
been approved by the board of directors of the Person being
acquired prior to any public announcement thereof, (c) the
Total Acquisition Consideration of any single Acquisition does
not exceed $100,000,000, and (d) the Total Acquisition
Consideration of all Acquisitions consummated in any rolling
twelve month period, commencing with Acquisitions consummated
after January 1, 2002, does not exceed $150,000,000."
Section 2. Benefits of Loan Documents.
--------------------------
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.
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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.
Section 4. Representations.
---------------
The Borrower represents to the Lenders that:
(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.
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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.
-------------------------------------------------
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
(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.
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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.
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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]
IN WITNESS WHEREOF, the parties have caused this Third 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: __________________________________
Name:
__________________________________
Title:
__________________________________
BANK OF AMERICA, N.A., as Documentation Agent
and as a Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
FLEET NATIONAL BANK, as Senior Managing Agent
and as a Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
BNP PARIBAS, as Senior Managing Agent and as
a Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
By: __________________________________
Name:
__________________________________
Title:
__________________________________
FIRST UNION NATIONAL BANK, as Senior Managing
Agent and as a Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a
Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
FIFTH THIRD BANCORP, as a Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
FIRSTAR BANK, N.A., as a Lender
By: __________________________________
Name:
__________________________________
Title:
__________________________________
ACKNOWLEDGMENT AND CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned Subsidiaries hereby (i) acknowledges receipt of
the foregoing Third 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.
IN WITNESS WHEREOF, each of the undersigned Subsidiaries has executed
this Acknowledgment and Consent of Subsidiary Guarantors this ___ day of
February, 2002.
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
XXXXXXX BUSINESS PRODUCTS, INC.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
MECA SOFTWARE, L.L.C.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Manager
