EXHIBIT 4.11
AMENDMENT NO. 5 AND WAIVER TO CREDIT AGREEMENT
The Amendment No. 5 and Waiver to Credit Agreement (this "Amendment") is
entered into as of October 15, 2002, by and among Midas, Inc. and Midas
International Corporation (collectively, the "Borrowers" and individually, a
"Borrower"), the undersigned Lenders, Bank One, NA, as administrative agent (the
"Administrative Agent"), and Credit Suisse First Boston, as co-agent (the
"Co-Agent").
RECITALS
A. The Borrowers, the lenders party thereto (the "Lenders"), the
Administrative Agent and the Co-Agent are party to that certain Credit Agreement
dated as of January 22, 1998 (as amended as of April 3, 1998, February 8, 1999
and November 9, 2001, the "Credit Agreement"). Unless otherwise specified
herein, capitalized terms used in this Amendment shall have the meanings
ascribed to them by the Credit Agreement.
B. The Borrowers have requested that the Administrative Agent, the
Co-Agent and the Lenders further amend and grant certain waivers with respect to
the Credit Agreement.
C. The Administrative Agent, the Co-Agent and the undersigned
Lenders are willing to further amend and grant certain waivers with respect to
the Credit Agreement on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and
other good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement shall be
amended as follows:
(a) Section 6.1 of the Credit Agreement is hereby amended by
deleting clause(h) thereof in its entirety and replacing it with the following:
(h) On the first Business Day of each week, a 13-week cash
flow plan for itself and its Subsidiaries representing management's good
faith estimates of future cash flow performance based on historical
performance and prepared on the same basis and in similar detail as that
on which operating results are reported, which shall include (i) a
statement of all of the material assumptions on which such plan is
based, including plans for personnel, capital expenditures and
facilities and (ii) a comparison of the plan for the immediately
preceding week with the actual results for such week, together with a
discussion of the material variances between such plan and actual
results and the reasons therefor.
(i) On the first Business Day of each week, an accounts
receivable aging report as of the end of the immediately preceding week
with respect to Midas and its Subsidiaries, accompanied by such
supporting detail and documentation as the Administrative Agent shall
reasonably request.
(j) On the first Business Day of each week, a summary of all
developments in connection with the refinancing of the Obligations and
any proposed or pending disposition of a material portion of the assets
of Midas and its Subsidiaries.
(k) Such other information as the Administrative Agent or
any Lender may from time to time reasonably request.
2. Waiver.
(a) Each of the undersigned Lenders hereby waives the
default by Midas in the observance of Section 6.18.2 of the Credit Agreement as
of September 28, 2002; provided, that (a) such waiver shall only be valid
through November 13, 2002 and (b) each Borrower, by its signature below,
acknowledges and agrees that, without further action by the Required Lenders,
such waiver shall not constitute a waiver of such Default for the purposes of
Section 4.2(a) of the Credit Agreement for the purpose of making Advances or
Swing Line Loans or issuing Facility Letters of Credit which would cause the
aggregate amount of all outstanding Obligations to exceed $87,500,000.
(b) In consideration of waivers provided for in this
Amendment, absent further action by the Required Lenders, from and after the
date hereof (i) all future Advances shall be made as Alternate Base Rate
Advances, (ii) the Applicable ABR Margin and the Applicable Eurodollar Margin
shall be equal to 1.25% and 2.50%, respectively, until adjusted in accordance
with the definitions thereof, which adjustment, if any, shall be retroactive to
the date hereof, (iii) all Eurodollar Advances shall be automatically converted
to Alternate Base Rate Advances at the end of their current Interest Periods and
(iv) all Advances (which for purposes hereof shall include Swing Line Loans)
shall bear interest at the default rate specified in Section 2.10 of the Credit
Agreement and all Facility Letter of Credit fees shall be computed at the
default rate specified in Section 2.18.6 of the Credit Agreement.
3. Representations and Warranties of the Borrowers. Each Borrower
represents and warrants that:
(a) The execution, delivery and performance by such Borrower
of this Amendment have been duly authorized by all necessary corporate action
and that this Amendment is a legal, valid and binding obligation of such
Borrower enforceable against such Borrower in accordance with its terms, except
as the enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) Each of the representations and warranties contained in
the Credit Agreement is true and correct in all material respects on and as of
the date hereof as if made on the date hereof, except to the extent that any
such representation or warranty is stated to relate solely to an earlier date,
in which case such representation or warranty shall have been true and correct
on and as of such earlier date; and
(c) After giving effect to this Amendment, no Default or
Unmatured Default has occurred and is continuing.
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4. Effective Date. This Amendment shall become effective as of the
date first set forth above upon satisfaction of the following conditions:
(a) Executed Amendment. Receipt by the Administrative Agent
of duly executed counterparts of this Amendment from the Administrative Agent,
the Borrowers and the Required Lenders.
(b) Amendment Fee. The Borrowers shall have paid to the
Administrative Agent, for the benefit of the Lenders party hereto (provided that
such Lenders execute and deliver counterparts of this Amendment to the
Administrative Agent prior to 1:00 p.m. (Chicago time) on October 22, 2002), an
amendment fee in an amount equal to ten (10) basis points on each such Lender's
Commitment.
5. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically provided in this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect, and the execution, delivery and effectiveness of this Amendment shall
not operate as a waiver or forbearance of any Default or Unmatured Default or
any right, power or remedy of the Administrative Agent or any Lender under the
Credit Agreement or any of the other Loan Documents, or constitute a consent,
waiver or modification with respect to any provision of the Credit Agreement or
any of the other Loan Documents, and each Borrower hereby fully ratifies and
affirms each Loan Document to which it is a party.
(b) Upon the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of similar import shall mean and be a reference to the Credit Agreement as
amended hereby.
6. Costs and Expenses. The Borrowers hereby affirm their joint and
several obligation under Section 9.6 of the Credit Agreement to reimburse the
Administrative Agent for all reasonable costs, internal charges and
out-of-pocket expenses paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment, including but not limited to the attorneys' fees and time charges of
attorneys for the Administrative Agent with respect thereto.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
8. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purposes.
9. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
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10. Reaffirmation of Guaranty. Each of Midas and International
hereby reaffirms its obligations under Article XIII and Article XIV,
respectively, of the Credit Agreement.
11. Acknowledgment. Each Borrower hereby waives, discharges and
forever releases the Administrative Agent, the Arranger, the Co-Agent and each
of the Lenders, and each of their respective employees, officers, directors,
attorneys, stockholders and successors and assigns, from and of any and all
claims, causes of action, allegations or assertions that such Borrower has or
may have had at any time through (and including) the date of this Amendment,
against any or all of the foregoing, regardless of whether any such claims,
causes of action, allegations or assertions are known to any Borrower or whether
any such claims, causes of action, allegations or assertions arose as a result
of the Administrative Agent's, the Arranger's, the Co-Agent's or any Lender's
actions or omissions in connection with the Credit Agreement or the other Loan
Documents, including any amendments or modifications thereto, or otherwise.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date and year first above written.
MIDAS, INC.
By: /s/ [ILLEGIBLE]
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Its: SVP/CFO
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MIDAS INTERNATIONAL
CORPORATION
By: /s/ [ILLEGIBLE]
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Its: SVP/CFO
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BANK ONE, NA, individually and as
Administrative Agent
By: /s/ Xxxxxxxxxx X. Xxxxxxx
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Its: Senior Vice President
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CREDIT SUISSE FIRST BOSTON,
Individually and as Co-Agent
By: /s/ Xxxx X. Xxxxxxx
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Its: DIRECTOR
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By: /s/ Xxxxxxxxx Xxxxxxx
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Its: ASSOCIATE
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ABN AMRO BANK N.V.
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: GROUP SENIOR VICE PRESIDENT
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By: /s/ Xxxxxxxx X. Xxxxxxxx
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Its: GROUP VICE PRESIDENT
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Signature Page to Amendment
No. 5 and Waiver to Credit Agreement
BNP PARIBAS
By: /s/ Bosalie X. Xxxxxx
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Its: Director
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By: /s/ Xxxxx Xxxxxx
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Its: Central Region Manager
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MIZUHO CORPORATE BANK, LTD.
By:
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Its:
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Its: SECOND VICE PRESIDENT
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ R. Xxxxxxx Xxxxxx
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Its: Vice President
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Signature Page to Amendment
No. 5 and Waiver to Credit Agreement
