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EXHIBIT 4.4
THIRD AMENDMENT TO FIFTH
AMENDED AND RESTATED LOAN AGREEMENT
This Third Amendment (the "Amendment") dated as of February 11, 1999, is
between Bank of America National Trust and Savings Association (the "Bank") and
Xxxxxxxx Incorporated, a Delaware corporation (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Fifth Amended and
Restated Loan Agreement dated as of June 23, 1997, as amended by a First
Amendment dated as of October 1, 1997 and a Second Amendment dated as of August
10, 1998 ("Second Amendment") (as amended, the "Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1 of the Agreement is hereby amended as follows:
(a) The following defined terms are added to Paragraph 1.1
of the agreement, in the appropriate alphabetical sequence, to read as
follows:
"Letter of Credit" means any standby letter of
credit issued by the Bank pursuant to Paragraph 2.2 of this
Agreement, either as originally issued or as the same may from
time to time be supplemented, modified, amended, renewed or
extended.
"Letter of Credit Obligations" means at any time
the sum of (a) the Outstanding Letters of Credit, plus (b) the
amount of all unreimbursed drawings under all Letters of Credit.
"Outstanding Letters of Credit" means, as of any
date of determination, the aggregate face amount of all Letters
of Credit outstanding on such date minus the aggregate amount, if
any, paid in cash by Bank under such Letters of Credit that has
been reimbursed by Borrower."
(b) In the definition of "Cash Flow", the phrase
commencing with the word "minus" on line 8 thereof is amended to read as
follows:
". . . minus cash income taxes paid during that
fiscal year, excluding cash income taxes not
exceeding $1,500,000 associated with the capital
gains realized from Borrower's sale of the 3dbm
subsidiary during fiscal year 1998, . . ."
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(c) The definition of "Line of Credit" is amended to read
as follows:
"Line of Credit" means the credit facility for
Loans and Letters of Credit described in Article 2 of this
Agreement."
(d) In the definition of "Loan Documents", the phrase "the
Letters of Credit" is added immediately following the phrase "the
Guaranty".
(e) The definition of "Maximum Amount" is amended to read
as follows:
"Maximum Amount" means, as of any date of
determination thereof, the Line Commitment minus the Letter of
Credit Obligations."
(f) The definition of "Term of this Agreement" is amended
to read as follows:
"Term of this Agreement" means the period
commencing on the Restatement Date and ending on the last date
upon which no Loan or other Obligation of Borrower to Bank
remains unpaid, no Letter of Credit remains outstanding, and Bank
has no further commitment hereunder to make the Line of Credit
available to Borrower."
(g) In the definition of "Total Funded Debt", commencing
at line 11 thereof, the phrase beginning with the words "Contingent
Obligations" is amended to read as follows:
". . . Contingent Obligations under any guaranties
of the obligations of any Person other than
Borrower's Subsidiaries or Affiliates, Outstanding
Letters of Credit (minus Cash and Cash Equivalents
of Borrower and its Subsidiaries), . . ."
(h) The definition of "Total Outstandings" is amended to
read as follows:
"Total Outstandings" means, as of any date of
determination, the sum of (a) all outstanding Loans and (b) the
Letter of Credit Obligations."
2.2 Paragraph 2.2 of the Agreement is amended in its entirety to read as
follows:
"2.2 Letters of Credit. Subject to the terms and
conditions hereof, at any time and from time to time from the
Restatement Date through the Banking Day immediately preceding the
Termination Date, Bank shall issue such Letters of Credit as Borrower
may request, provided that, upon giving effect to such Letter of Credit,
(i) Total Outstandings shall not exceed the Line Commitment, and (ii)
the Letter of Credit Obligations shall not exceed $1,000,000 for standby
Letters of Credit. Unless Bank otherwise consents in writing, the term
of any standby Letter of Credit shall not exceed 24 months, and shall in
no event in any case extend more than 12 months beyond the
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Termination Date. No Letter of Credit shall be issued except to the
extent reasonably necessary in the ordinary course of the business of
Borrower or its Subsidiaries, and no Letter of Credit shall be issued in
any event to support any workers' compensation obligation of Borrower or
its Subsidiaries. Unless otherwise agreed to by Bank, the face amount of
any Letter of Credit shall not be less than $25,000.
Borrower agrees:
(a) if there is a default under this Agreement, to
immediately prepay and make Bank whole for any outstanding Letters of
Credit.
(b) the issuance of any Letter of Credit and any amendment
to a Letter of Credit is subject to Bank's written approval and must be
in form and content satisfactory to Bank and in favor of a beneficiary
acceptable to Bank.
(c) to sign Bank's form Application and Agreement for
Standby Letter of Credit with respect to each Letter of Credit.
(d) to allow Bank to automatically charge its checking
account for applicable fees, discounts, and other charges.
(e) to pay Bank a non-refundable fee equal to 1.50% per
annum of the outstanding undrawn amount of each standby Letter of
Credit, payable annually in advance, calculated on the basis of the face
amount outstanding on the day the fee is calculated.
(f) to pay to Bank the amount of any payment made or to be
made by Bank under any Letter of Credit, upon Bank's demand; and, if
Borrower fails to make any such payment, Bank may, but is not required
to, without notice to or the consent of Borrower, make a Loan in an
aggregate amount equal to the amount paid by Bank on the relevant Letter
of Credit, whether or not the same would cause Total Outstandings to
exceed the Line Commitment (without waiving the obligation of Borrower
to reduce Total Outstandings to an amount less than or equal to the Line
Commitment) and, for this purpose, the conditions precedent set forth in
Article 8 and the amount limitations set forth in Paragraph 2.1 shall
not apply. The proceeds of such Loan shall be paid to Bank to reimburse
it for the payment made by it under the Letter of Credit.
(g) Subject to the next sentence, a Letter of Credit may
be requested pursuant to this Paragraph 2.2 for the account of Borrower
or for the account of any Subsidiary of Borrower. To the extent that a
Subsidiary of Borrower is the account party under any Letter of Credit,
Borrower hereby guarantees the payment and performance of such
Subsidiary with respect to any Obligation of such Subsidiary relating to
such Letter of Credit, and agrees to deliver to Bank, duly executed and
in form and content acceptable to Bank, a duly executed continuing
guaranty further evidencing the foregoing guaranty, together with a
resolution or other evidence of the corporate authority of Borrower to
execute, perform and deliver such continuing guaranty."
2.3 In Paragraph 4.13 of the Agreement, the phrase ", or in
connection with the issuance of any Letter of Credit," is added in the third
line of said paragraph immediately following the word "Loan".
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2.4 Paragraph 5.9 of the Agreement is amended in its entirety to
read as follows:
"5.9 Use of Proceeds. Use the proceeds of the Line of
Credit for the following purposes only: (i) for working capital purposes
of Borrower and its Subsidiaries, (ii) to issue Letters of Credit, (iii)
for other lawful corporate purposes in the ordinary course of business,
and (iv) to finance Permitted Acquisitions."
2.5 Paragraph 6.3 of the Agreement is amended by deleting the
period at the end of the paragraph and adding the following:
"; provided further, however, that the amount of the
following transactions shall not be included in calculating the amount
of redemptions or repurchases of shares permitted under clause (c) of
this Paragraph 6.3: common stock repurchases that (i) occurred prior to
January 1, 1999 or (ii) are financed exclusively from balance sheet cash
derived from sources other than Loans under this Agreement."
2.6 All references to Letters of Credit in Paragraph 9.2 of the
Agreement, previously deleted pursuant to Paragraph 2.9 of the Second Amendment,
are hereby fully reinstated.
2.7 All references to Letters of Credit in Paragraph 10.8 of the
Agreement, previously deleted pursuant to Paragraph 2.10 of the Second
Amendment, are hereby fully reinstated.
3. Representations and Warranties. When the Borrower signs this
Amendment, the Borrower represents and warrants to the Bank that: (a) there is
no event which is, or with notice or lapse of time or both would be, a default
under the Agreement, (b) the representations and warranties in the Agreement are
true as of the date of this Amendment as if made on the date of this Amendment,
(c) this Amendment is within the Borrower's powers, has been duly authorized,
and does not conflict with any of the Borrower's organizational papers, and (d)
this Amendment does not conflict with any law, agreement, or obligation by which
the Borrower is bound.
4. Conditions. This Amendment will be effective when the Bank receives
the following items, in form and content acceptable to the Bank:
4.1 An amendment fee in the amount of $5,000.00.
4.2 An Instrument of Joinder, duly executed by Xxxxxxxx
Technologies, Inc., together with corporate resolutions authorizing such
guaranty by joinder, certified by their respective Secretary or
Assistant Secretary.
4.3 Evidence that the execution, delivery and performance of this
Amendment by the Borrower has been duly authorized.
5. Effect of Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and effect.
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(Signature page follows)
This Amendment is executed as of the date stated at the beginning of
this Amendment.
Bank of America National Trust
and Savings Association
By: /s/ J. Xxxxxx Xxxxx
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J. Xxxxxx Xxxxx
Vice President
Xxxxxxxx Incorporated
By: /s/ X. X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President - Human Resources
and Assistant Secretary
By: /s/ X. X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President, Treasurer, Secretary,
and Chief Financial Officer
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