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EXHIBIT 4.9
CONFORMED COPY
THIRD AMENDMENT dated as of February 26, 2001 (this "Amendment"),
to the Credit Agreement, dated as of July 25, 1997, as amended by the
First Amendment dated as of October 5, 1998, and the Second Amendment
dated as of December 21, 1999 (as so amended and as the same may be
further amended, restated, modified or supplemented from time to time,
the "Credit Agreement"), among XXXXXXX COMPANIES, INC. (the
"Borrower"), the LENDERS from time to time party thereto (the
"Lenders"), BANCAMERICA SECURITIES, INC., as Syndication Agent (the
"Syndication Agent"), SOCIETE GENERALE, as Documentation Agent (the
"Documentation Agent") and THE CHASE MANHATTAN BANK, as Administrative
Agent for the Lenders (the "Administrative Agent").
WHEREAS, the Borrower, the Lenders, the Syndication Agent, the
Documentation Agent and the Administrative Agent are parties to the Credit
Agreement;
WHEREAS, the Borrower has requested that certain provisions of the Credit
Agreement be modified in the manner provided for in this Amendment, and the
undersigned Lenders are willing to agree to such modifications.
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants herein set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned
parties hereby agree as follows:
SECTION 1. Definitions. All capitalized terms which are defined in the
Credit Agreement and not otherwise defined herein or in the recitals hereof
shall have the same meanings herein as in the Credit Agreement.
SECTION 2. Amendment of Credit Agreement. The Credit Agreement is hereby
amended by:
(a) Amending the definition of "Applicable Rate" in Section 1.01 by
replacing the table set forth therein with the following:
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Revolving Facility Spread
Greater than or Greater than
Less than equal to 25% or equal to Term
Ratings Commitment 25% but less than 50% Loan
(S&P/Xxxxx'x) Fee Rate Utilization 50% Utilization Utilization Spread
Category 1 BBB+/Baal or higher 0.100% 1.000% 1.025% 1.050% 1.475%
Category 2 BBB/Baa2 0.150% 1.125% 1.150% 1.175% 1.600%
Category 3 BBB-/Baa3 0.200% 1.250% 1.300% 1.350% 1.775%
Category 4 BB+/Ba1 0.300% 1.500% 1.5625% 1.625% 2.125%
Category 5 BB/Ba2 0.375% 1.750% 1.875% 2.000% 2.500%
Category 6 Less than BB/Ba2 0.500% 2.250% 2.375% 2.500% 3.000%
(b) Deleting the period at the end of the first sentence of Section
2.11(c) and adding a new proviso to the end of such sentence as follows:
"; provided further that, in the case of Net Proceeds received by or on
behalf of the Borrower or any Subsidiary in respect of any incurrence of
Indebtedness under Section 6.03(a)(v), the Borrower may, within 10 Business Days
after such Net Proceeds are received, prepay Revolving Loans in an amount up to
the aggregate amount of such Net Proceeds (which such amounts may be
subsequently reborrowed pursuant to the terms and conditions of this Agreement)
and shall use any remaining amount of such Net Proceeds to prepay Term
Borrowings as required above."
(c) Deleting the word "and" immediately prior to clause (B) of
Section 6.03(a)(vii) and adding a new clause (C) as follows:
"; and (C) Guarantees by Guarantors of Later Maturing Indebtedness
permitted (x) by Section 6.03(a)(iv), so long as the only guarantors thereof are
guarantors of the Subordinated Notes (or any refinancing thereof permitted by
this Section 6.03(a)), such Guarantees are subordinated to the Obligations on
terms not less favorable to the Secured Parties than the subordination
provisions in the Guarantees of the Subordinated Notes and the terms of such
Guarantees are otherwise no more favorable to the beneficiaries than the
Guarantees of the Subordinated Notes and (y) by Section 6.03(a)(v), so long as
the only guarantors thereof are guarantors of the 10-5/8% Senior Notes (or any
refinancing thereof permitted by this Section 6.03(a)) and the terms of such
Guarantees are no more favorable to the beneficiaries than the Guarantees of the
10-5/8% Senior Notes;"
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(d) Deleting the period at the end of Section 6.08 and adding the
following:
"; provided, however, that for purposes of calculating the Fixed Charge
Coverage Ratio for each of (i) the fiscal year ended December 30, 2000, (ii) the
fiscal quarter ending April 21, 2001 and (iii) the fiscal quarter ending July
14, 2001, up to $118,000,000 of cash expenditures relating to strategic
initiatives of the Borrower and the Subsidiaries incurred by the Borrower and
the Subsidiaries during the fiscal year ended December 30, 2000 shall be
excluded from the definition of "EBITDAR"."
SECTION 3. Representations and Warranties. The Borrower represents
and warrants to the Administrative Agent on behalf of the Lenders as of the
date hereof as follows:
(a) Before and after giving effect to this Amendment, the representations
and warranties set forth in the Credit Agreement are true and correct as of the
date hereof.
(b) Immediately after giving effect to this Amendment, no Event of Default
or Default has occurred and is continuing.
(c) The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any person (including any governmental agency) in order
to be effective and enforceable. The Credit Agreement as amended by this
Amendment constitutes the legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject only to the
operation of the bankruptcy code and other similar statutes for the benefit of
debtors generally and to the application of general equitable principles.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective when the Administrative Agent shall have received counterparts hereof
signed by the Borrower, the Required Lenders and, with respect to the amendment
set forth in Section 2(b), by Lenders having Term Loans representing more than
50% of the sum of the total outstanding Term Loans at such time (or, in the case
of any party as to which an executed counterpart shall not have been received,
telegraphic, telex or other written confirmation from such party of the
execution of a counterpart hereof by such party); provided that the amendment
set forth in Section 2(d) shall be retroactive to December 30, 2000.
SECTION 5. Amendment Fees. In consideration of the agreements of the
Lenders contained herein, the Borrower agrees to pay to each Lender that returns
an executed signature page of this Amendment not later than 5:00 p.m., New York
City time, on February 26, 2001, through the Administrative Agent, an amendment
fee (an "Amendment Fee") equal to .20% of the aggregate amount,
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without duplication, of such Lender's Revolving Commitments and outstanding
Loans as of the effective date of this Amendment; provided, that no Amendment
Fees shall be payable hereunder unless this Amendment becomes effective as
provided in Section 4 hereof. The Amendment Fees shall be payable in immediately
available funds on the next business day following the effective date of this
Amendment. Once paid, the Amendment Fees shall not be refundable.
SECTION 6. Credit Agreement. Except as specifically stated herein, the
Credit Agreement shall continue in full force and effect in accordance with the
provisions thereof. As used therein, the terms "Agreement", "herein",
"hereunder", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement as modified hereby.
SECTION 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 deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized officers, all as of the date and year
first above written.
XXXXXXX COMPANIES, INC.
by
/s/ Xxxx X. XxXxxxxx
----------------------------
Name: Xxxx X. XxXxxxxx
Title: Vice President and
Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by
/s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION,
by
/s/ W. Xxxxxx XxXxxxxxx
----------------------------
Name: W. Xxxxxx XxXxxxxxx
Title: Duly Authorized
Signatory
TEXTRON FINANCIAL CORPORATION,
by
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
THE SANWA BANK LIMITED,
by
/s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
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BANK ONE OKLAHOMA NA,
formerly: LIBERTY BANK AND TRUST
COMPANY OF OKLAHOMA,
by
/s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signatory
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor,
by
/s/ Xxxxx X. Page
---------------------------------
Name: Xxxxx X. Page
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION,
by
/s/ Xxxxxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Deputy General Manager
FORTIS CAPITAL CORP.,
by
/s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
by
/s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President
CALIFORNIA BANK & TRUST,
by
/s/ S. C. Bellicini
---------------------------------
Name: S. C. Bellicini
Title: Senior Vice President
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BANK OF HAWAII,
by
/s/ XXXXX X. XXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXXXX & CO.
By: Boston Management and Research
as Investment Advisor,
by
/s/ XXXXX X. PAGE
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management as
Investment Advisor,
by
/s/ XXXXX X. PAGE
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: Xxxxx Xxxxx Management as
Investment Advisor,
by
/s/ XXXXX X. PAGE
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management as
Investment Advisor,
by
/s/ XXXXX X. PAGE
-----------------------------
Name: Xxxxx X. Page
Title: Vice President
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NATIONAL BANK OF CANADA,
by
/s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Vice President
by
/s/ Xxxx Xxxxx
---------------------------
Name: Xxxx Xxxxx
Title: Vice President
BANK OF SCOTLAND,
by
/s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION,
by
/s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
FIRST HAWAIIAN BANK,
by
/s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Asst. Vice President
SUMMIT BANK,
by
/s/ Xxxxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
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NATEXIS BANQUES POPULAIRES,
by
/s/ Xxxxx X. Xxxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President &
Group Manager
by
/s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Leveraged Finance
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Senior Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY,
by
/s/ Xxxxxxxxxxx Xxxxx
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Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
BANK OF MONTREAL,
by
/s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Director
THE DAI-ICHI KANGYO BANK, LTD.,
by
/s/ Chimie T. Pemba
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Name: Chimie T. Pemba
Title: Account Officer
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BANK OF AMERICA, N.A.,
by
/s/ Xxxx X. Xxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxx
Title: Managing Director
IBJ WHITEHALL BANK AND TRUST
COMPANY,
by
/s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
COMERICA BANK,
by
/s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
NATIONAL CITY BANK,
by
/s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
by
/s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
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XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory
Corp.
by
/s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management Inc., as
Collateral Manager
by
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Principal
XXX XXXXXX CLO II, LIMITED
By: Xxx Xxxxxx Management Inc., as
Collateral Manager
by
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Principal
LONG LANE MASTER TRUST IV,
By: Fleet National Bank as Trust
Administrator,
by
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Managing Director
FUJI BANK LIMITED
by
/s/ Xxxxxxx Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President &
Senior Team Leader
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SOCIETE GENERALE,
by
/s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
BEAR XXXXXXX INVESTMENT PRODUCTS,
by
/s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: Senior Managing Director
THE SUMITOMO BANK, LIMITED,
by
/s/ Xxxxxx X. Tata
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Name: Xxxxxx X. Tata
Title: Senior Vice President
BNP PARIBAS,
by
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
by
/s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Associate
