EXHIBIT 4.9
FIRST AMENDMENT
THIS FIRST AMENDMENT dated as of August 22, 2001 (this "Amendment")
amends the Amended and Restated Credit Agreement dated as of December 31, 2000
(the "Credit Agreement") among Xxxxx & Xxxxx Company (the "Borrower"), various
financial institutions (the "Lenders") and Bank of America, N.A., as
administrative agent (in such capacity, the "Administrative Agent"). Terms
defined in the Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used herein as defined therein.
WHEREAS, the Borrower, the Lenders and the Administrative Agent have
entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Subject to the satisfaction of the conditions
precedent set forth in SECTION 4 of this Amendment, the Credit Agreement is
amended as follows.
1.1 AMENDMENT TO DEFINITION OF APPLICABLE MARGIN. The definition
of "Applicable Margin" contained in Section 1.1 is amended in its entirety to
read as follows:
"APPLICABLE MARGIN" means for each Type of Loan, the rate per
annum determined in accordance with the pricing grid below:
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Leverage Applicable Margin for Applicable Margin for Applicable Margin for
Ratio Eurodollar Loans Base Rate Loans Swingline Loans Commitment Fee Rate
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Greater than
or equal
to 1.75:1.00 2.50% 1.50% 0% 0.50%
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Greater than
or equal
to 1.25:1.00 but
less than
1.75:1.00 2.25% 1.25% 0% 0.50%
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Less than
1.25:1.00 2.00% 1.00% 0% 0.50%
=============================================================================================================
The Applicable Margin shall be adjusted, to the extent
applicable, on the date of the effectiveness of the First Amendment
to this Agreement and on each date on which financial statements are
received by the Administrative Agent pursuant to SECTION 7.1(A) or
7.1(B) (but, in any event, no later than the 90th day after the end
of each fiscal year) and shall remain in effect until the next
change to be effected pursuant to this paragraph. If any financial
statements referred to above are not delivered within the time
periods specified above, then, until such financial statements are
delivered, the Leverage Ratio as of the end of the fiscal period
that would have been covered thereby, shall for the purposes of this
definition be deemed to be greater than 1.75:1.00. Each
determination of the Leverage Ratio pursuant to this definition
shall be made with respect to the period of four consecutive fiscal
quarters of the Borrower ending at the end of the period covered by
the relevant financial statements.
1.2 AMENDMENT TO SECTION 8.1(B). Section 8.1(b) is amended
by deleting the reference to "1.10: 1.00" therein and substituting "1.20:1.00"
therefor.
1.3 AMENDMENT TO SECTION 8.1(C). 8.1(c) is amended by
deleting the reference to "$31,000,000" therein and substituting the following
therefor: "(i) $22,000,000 for any period of four consecutive fiscal quarters
ending on or prior to September 30, 2003 and (ii) $31,000,000 thereafter".
SECTION 2 WAIVER. Subject to the satisfaction of the conditions
precedent set forth in SECTION 4 of this Amendment, the Required Lenders hereby
waive the Borrower's non-compliance with Section 8.1(c) of the Credit Agreement
for the period ended June 30, 2001.
SECTION 3 REPRESENTATIONS AND WARRANTIES. The Borrower represents
and warrants to the Administrative Agent and the Lenders that, after giving
effect to the effectiveness hereof, (a) each warranty set forth in Section 5 of
the Credit Agreement (other than those which speak as of a particular date) is
true and correct as of the date of the execution and delivery of this Amendment
by the Borrower, with the same effect as if made on such date, and (b) no Event
of Default or Default exists.
SECTION 4 EFFECTIVENESS. The amendments set forth in SECTION 1 above
shall become effective when the Administrative Agent shall have received (i)
counterparts of this Amendment executed by the Borrower and the Required
Lenders, (ii) a Confirmation, substantially in the form of EXHIBIT A, signed by
the Borrower and each Subsidiary Guarantor, and (iii) an amendment fee for each
Lender which, on or before August 22, 2001, executes and delivers to the
Administrative Agent a counterpart, such fee to be in an amount equal to 0.125%
of such Lender's Commitment as of the date of this Amendment.
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SECTION 5 MISCELLANEOUS.
5.1 CONTINUING EFFECTIVENESS, ETC. As herein amended, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness of this Amendment, all
references in the Credit Agreement and the other Loan Documents to "Credit
Agreement" or similar terms shall refer to the Credit Agreement as amended
hereby.
5.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, and each
such counterpart shall be deemed to be an original but all such counterparts
shall together constitute one and the same Amendment.
5.3 GOVERNING LAW. This Amendment shall be a contract made under
and governed by the laws of the State of Illinois applicable to contracts made
and to be performed entirely within such state.
5.4 SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon the
Borrower, the Lenders and the Administrative Agent and their respective
successors and assigns, and shall inure to the benefit of the Borrower, the
Lenders and the Administrative Agent and the respective successors and assigns
of the Lenders and the Administrative Agent.
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Delivered at Chicago, Illinois, as of the day and year first above
written.
XXXXX & XXXXX COMPANY
By /s/ Xxx X. Xxxxx
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Title Chief Financial Officer
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BANK OF AMERICA, N.A., as Administrative Agent
By /s/ W. Xxxxxx Xxxxxxx
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Title Managing Director
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BANK OF AMERICA, N.A., as a Lender
By /s/ W. Xxxxxx Xxxxxxx
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Title Managing Director
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LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and as a Lender
By /s/ Xxxxx X. Xxxxxx
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Title Loan Associate
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AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, as Syndication Agent
and as a Lender
By /s/ Xxxx Xxxxxxx
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Title First Vice President
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