Exhibit 10.3(f)
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment") dated and
effective as of February 20, 2004, 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 (the
"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, reference is made to that certain Credit Agreement, dated as
of November 3, 2000, by and among Borrower, the Banks from time to time party
thereto, the Syndication Agent, and the Agent, as amended by a First Amendment
thereto dated as of December 8, 2000, a Second Amendment thereto dated as of
February 7, 2001, a Third Amendment thereto dated as of October 31, 2001, a
Fourth Amendment thereto dated as of October 10, 2002, a Fifth Amendment thereto
dated as of December 26, 2002, a Sixth Amendment thereto dated as of February
28, 2003, and a Seventh Amendment thereto dated as of December 23, 2003 (as so
amended, the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend certain terms of the
Credit Agreement as hereinafter provided.
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.
Capitalized 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) The following defined term and the definition therefor is
hereby added to Section 1.1 [Certain Definitions.] of the Credit Agreement and
is inserted in correct alphabetical order:
"Ariba Merger Date shall mean the date that is one Business
Day immediately preceding the date of the consummation of
the merger of the Borrower with Ariba, Inc."
(b) The definition of EBITDA as set forth in Section 1.1
[Certain Definitions.] of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
"EBITDA shall mean for any fiscal quarter, determined for
the Borrower and its Subsidiaries in accordance with GAAP on
a consolidated basis, the net income for such quarter (as a
positive number) adjusted as follows: (i) increased by
adding back to such amount, the amount of each of the
following expenses actually deducted during such fiscal
quarter in the determination of such net income: interest
expense, income taxes, depreciation, amortization and
noncash items of expense; (ii) if the fiscal quarter for
which EBITDA is being determined is the fiscal quarter of
the Borrower ended December 31, 2003, then increased by
adding back to such amount, the amount equal to the lesser
of (y) $5,200,000, and (z) the actual amount of
non-recurring charges related to the closing of the
Borrower's Brussels, Belgium operations and write off of
future lease obligations related to the abandonment of the
28th floor in FreeMarkets Center, which charges are actually
deducted during such fiscal quarter in the determination of
such net income; (iii) if the fiscal quarter for which
EBITDA is being determined is the fiscal quarter of the
Borrower ended March 31, 2004 or June 30, 2004, then
increased by adding back to such amount, the amount equal to
the lesser of (a) $5,000,000, and (b) the actual aggregate
amount of any restructuring charges incurred by the
Borrower; and (iv) reduced by subtracting from such amount
the amount of non-cash income actually included during such
fiscal quarter in the determination of such net income. "
(c) The definition of Expiration Date as set forth in Section
1.1 [Certain Definitions.] of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Expiration Date shall mean, with respect to the Revolving
Credit Commitments, the earlier of (i) August 30, 2004, or
(ii) the Ariba Merger Date, as such date may be hereafter
extended in accordance with Section 2.10 hereof."
(d) Section 3.4 [Term Loan Notes.] of the Credit Agreement is
hereby amended and restated to read as follows:
"3.4 Term Loan Notes.
The Obligation of the Borrower to repay the unpaid
principal amount of the Term Loans made to it by each Bank,
together with interest thereon, shall be evidenced by a Term
Note payable to the order of each Bank in a face amount
equal to the Term Loan of such Bank. The principal amount as
provided therein of the Term Notes shall be payable in
thirty-six equal monthly installments, each in the amount of
$111,111.11, payable commencing on December 1, 2001, and on
the first day of each month thereafter through and including
a payment of all outstanding amounts on the earlier to occur
of (i) November 1, 2004, or (ii) the Ariba Merger Date."
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(e) Section 8.2.19 [Minimum EBITDA.] of the Credit Agreement is
hereby amended and restated in its entirety to read as follows:
"8.2.19 Minimum EBITDA.
The Borrower shall not permit EBITDA: (a) to be
less than the amount specified below for the specified
period if the specified amount is either zero or a positive
number (i.e., by way of example and without limitation at
12/31/2003, EBITDA (being income and therefore a positive
number) shall not be less than $2,500,000), and (b) to be
greater than the amount specified below for the specified
period if the specified amount is a negative number (i.e.,
by way of example and without limitation at 3/31/2003,
EBITDA (being a loss and therefore a negative number) shall
not be a loss greater than ($7,500,000)):
Period Amount
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Fiscal quarter $0
ended 9/30/2002
Fiscal quarter $2,500,000
ended 12/31/2002
Fiscal quarter ($7,500,000)
ended 3/31/2003
Fiscal quarter ($5,000,000)
ended 6/30/2003
Fiscal quarter $0
ended 9/30/2003
Fiscal quarter $2,500,000
ended 12/31/2003
Fiscal quarter ($5,000,000)
ended 3/31/2004
Fiscal quarter
ended 6/30/2004 and each fiscal quarter
ended thereafter ($5,000,000)
3. Conditions of Effectiveness of this Amendment. The effectiveness of this
Amendment is expressly conditioned upon satisfaction of each of the following
conditions precedent:
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(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 and the Syndication Agent's counsel in connection
with this Amendment. The Borrower shall pay to the Agent for the benefit of each
Bank a fee equal to 0.125% of the Revolving Credit Commitment of each Bank as of
the date hereof.
(b) No Default. Confirmation of Representations and Warranties, etc.
As of the date hereof after giving effect hereto, no Event of Default or
Potential Default shall have occurred. The Borrower by executing this Amendment
hereby certifies and confirms that as of the date hereof 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 Default has occurred or would
result from the execution, delivery and performance of this Amendment, (c) the
representations and warranties of the Loan Parties contained in the Credit
Agreement and the other Loan Documents 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 a First
Amendment thereto dated as of December 8, 2000, a Second Amendment thereto dated
as of February 7, 2001, a Third Amendment thereto dated as of October 31, 2001,
a Fourth Amendment thereto dated as of October 10, 2002, a Fifth Amendment
thereto dated as of December 26, 2002, a Sixth Amendment dated as of February
28, 2003, a Seventh Amendment dated as of December 23, 2003, and this Amendment)
and all other Loan Documents are and remain legal, valid, binding and
enforceable obligations in accordance with the terms thereof.
(c) Term Notes. The Borrower shall have executed and delivered to the
Agent on behalf of the Banks the amended and restated Term Notes.
(d) Confirmation of Guaranty. Each of the Guarantors shall have
executed the Confirmation of Guaranty in the form attached hereto as Exhibit A.
(e) Organization, Authorization and Incumbency. There shall be
delivered to the Agent for the benefit of each Bank a certificate, dated as of
the date hereof and signed by the Secretary or an Assistant Secretary of each
Loan Party, certifying as appropriate as to:
(i) all action taken by such Loan Party in connection with this
Amendment and the other Loan Documents;
(ii) the names of the officer or officers authorized to sign this
Amendment and the other documents executed and delivered in connection herewith
and described in this Section 3 and the true signatures of such officer or
officers and specifying the officers authorized to act on behalf of each Loan
Party for purposes of the Loan Documents and the true signatures of such
officers, on which the Agent and each Bank may conclusively rely; and
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(iii) copies of its organizational documents, including its
certificate of incorporation and bylaws if it is a corporation, its certificate
of partnership and partnership agreement if it is a partnership, and its
certificate of organization and limited liability company operating agreement if
it is a limited liability company, in each case as in effect on the date hereof,
certified by the appropriate state official where such documents are filed in a
state office together with certificates from the appropriate state officials as
to the continued existence and good standing of each of the Loan Parties in each
state where organized or qualified to do business; provided that each of the
Loan Parties may, in lieu of delivering copies of the foregoing organizational
documents and good standing certificates, certify that the organizational
documents and good standing certificates previously delivered by the Loan
Parties to the Agent remain in full force and effect and have not been modified,
amended or rescinded.
(f) Consents and Approvals. To the extent any consent, approval,
order, or authorization or registration, declaration, or filing with any
governmental authority or other person or legal entity is required in connection
with the valid execution and delivery of this Amendment or the carrying out or
performance of any of the transactions required or contemplated by this
Amendment, all such consents, approvals, orders or authorizations shall have
been obtained or all such registrations, declarations, or filings shall have
been accomplished prior to the consummation of this Amendment.
(g) Opinion of Counsel. There shall be delivered to the Agent for the
benefit of each Bank a written opinion dated the date hereof of legal counsel to
the Loan Parties, with such opinion to be in form and substance satisfactory to
the Agent.
(h) 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, the Agent shall have received from the
Borrower and the Required Banks an executed original of this Amendment and the
Agent shall have received 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.
This Amendment shall become effective when it has been executed by the Loan
Parties, the Agent and the Required Banks and each of the other conditions set
forth in this Section 3 has been satisfied.
4. Force and Effect. The Credit Agreement is amended hereby, 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
as amended hereby. No novation is intended or shall occur by or as a result of
this Amendment. Borrower reconfirms, restates, and ratifies the Credit Agreement
as amended hereby and each of the other Loan Documents. This Amendment is not
intended to constitute, nor does it constitute, an interruption, suspension of
continuity, satisfaction, discharge of prior duties, novation, or termination of
the liens, security interests, indebtedness, loans, liabilities, expenses, or
obligations under the Credit Agreement or the other Loan Documents. The Borrower
and the Agent and each of the Banks acknowledges and agrees that the Collateral
has continued to secure the indebtedness, loans, liabilities, expenses, and
obligations under the Credit Agreement since the date of execution of each
applicable Loan Document, and all liens and security interests in the Collateral
which were
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granted pursuant to any of the Loan Documents shall remain in full force and
effect from and after the date hereof.
5. 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.
6. 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.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 3 TO EIGHTH 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.
ATTEST: FREEMARKETS, INC.
By: [Seal]
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Name: Name:
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Title: Title:
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[SIGNATURE PAGE 2 OF 3 TO EIGHTH AMENDMENT TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By:
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Name:
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Title:
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[SIGNATURE PAGE 3 OF 3 TO EIGHTH AMENDMENT TO CREDIT AGREEMENT]
SILICON VALLEY BANK,
individually and as Syndication Agent
By:
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Name:
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Title:
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EXHIBIT A
CONFIRMATION OF GUARANTY
February 20, 2004
To: FreeMarkets Investment Company, Inc. ("Guarantor")
Reference is made to that certain Credit Agreement, dated as of November 3,
2000, as amended by a First Amendment thereto dated as of December 8, 2000, a
Second Amendment thereto dated as of February 7, 2001, a Third Amendment thereto
dated as of October 31, 2001, a Fourth Amendment dated as of October 10, 2002, a
Fifth Amendment thereto dated as of December 26, 2002, a Sixth Amendment thereto
dated as of February 28, 2003, a Seventh Amendment thereto dated as of December
23, 2003, and the Eighth Amendment (as defined below) (the "Credit Agreement"),
by and among FreeMarkets, Inc., a Delaware corporation (the "Borrower"), the
Banks from time to time party thereto (the "Banks"), Silicon Valley Bank,
individually and in its capacity as Syndication Agent and PNC Bank, National
Association, as administrative agent for the Banks ("Agent"). All terms used
herein unless otherwise defined herein shall have the meanings as set forth in
the Credit Agreement.
The Borrower has requested that the Banks and the Agent enter into that
certain Eighth Amendment to the Credit Agreement, dated as of the date hereof
(the "Eighth Amendment"), a copy of which has been delivered to each Loan Party.
This letter agreement will confirm that the Guarantor has read and
understands the Eighth Amendment. In order to induce the Banks and the Agent to
enter into that Eighth Amendment, the Guarantor hereby consents to the Eighth
Amendment and all prior amendments described above and ratifies and confirms its
respective obligations under each of the Loan Documents (including all exhibits
and schedules thereto) to which it is a party by signing below as indicated,
including without limitation each Guaranty Agreement and each Security Agreement
to which it is a party. The Guarantor hereby acknowledges and agrees that
nothing contained in any of the Loan Documents is intended to create, nor shall
it constitute an interruption, suspension of continuity, satisfaction, discharge
of prior duties, novation or termination of the liens, security interests,
indebtedness, loans, liabilities, expenses or obligations of the Loan Parties
under the Credit Agreement or any other Loan Document.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By:
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[SIGNATURE PAGE TO CONFIRMATION OF GUARANTY
DATED FEBRUARY 20, 2004]
Intending to be legally bound
hereby, the undersigned has
accepted and agreed to the
foregoing as of the date and
year first above written.
GUARANTOR:
FREEMARKETS INVESTMENT COMPANY, INC.
By:
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Name:
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Title:
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