AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment") is dated as of
September 28, 2006, among:
XXXXXX CORPORATION, a Delaware corporation (hereinafter referred to as the
"Borrower");
THE LENDERS PARTY HERETO; and
THE BANK OF NEW YORK, as administrative agent for the Lenders referred to
below (in such capacity, the "Administrative Agent").
RECITALS
A. The Borrower, the Lenders party thereto (the "Lenders"), and The Bank of
New York, as Issuing Lender, Swingline Lender and Administrative Agent have
entered into a Credit Agreement, dated as of October 29, 2004 (as amended
pursuant to (i) a certain Amendment No. 1 and Consent, dated as of July 1, 2005,
(ii) a certain Amendment No. 2 to Credit Agreement, dated as of May 9, 2006, and
(iii) a certain Amendment No. 3 to Credit Agreement, dated as of September 26,
2006, and, as in effect on the date hereof, the "Credit Agreement").
B. The Borrower has requested that the Lenders agree to amend the Credit
Agreement, among other things, to (a) amend Section 7.01 of the Credit Agreement
to permit the Borrower to incur indebtedness evidenced by the Senior Notes (as
hereinafter defined) and to require the prepayment of the Term Loans from the
proceeds thereof, (b) amend Section 7.04(e) of the Credit Agreement to permit
certain Acquisitions, and (c) amend certain other Sections of the Credit
Agreement.
NOW, THEREFORE, in consideration of the agreements and provisions contained
herein, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein that are defined in the
Credit Agreement and not otherwise defined herein shall have the meanings
ascribed thereto therein.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended,
as follows:
2.1 Section 1.01 (Defined Terms) of the Credit Agreement is hereby
amended by adding the following Defined Terms in appropriate alphabetical order:
"Amendment No. 4" means Amendment No. 4 to Credit Agreement, dated as
of September 28, 2006.
"Refinance": means, in respect of any Indebtedness, to refinance,
extend, renew, defease, redeem, amend, modify, supplement, restructure,
replace, refund, prepay or repay, or to issue other indebtedness, in
exchange or replacement for, such indebtedness in whole or in part.
"Refinanced" and "Refinancing" shall have correlative meanings.
"Senior Note Agreement": means the note purchase agreement or indenture
to be executed between the Borrower and an indenture trustee, as amended,
supplemented or otherwise modified from time to time to the extent
permitted by this Agreement, including any agreement executed in connection
with a Refinancing of the Senior Notes issued thereunder to the extent
permitted by this Agreement.
"Senior Note Holders": means the holders of the Senior Notes.
"Senior Notes": means the unsecured convertible senior notes to be
issued by the Borrower in an aggregate principal amount not to exceed
$72,000,000 pursuant to the Senior Note Agreement, which notes are
convertible into cash and, in certain circumstances, shares of Common Stock
of the Borrower, and any Refinancing of such notes with senior notes or
subordinated notes that are issued by the Borrower, and any subsequent
Refinancings thereof that comply with the terms hereof, provided that (a)
such Refinancing is on such customary terms and conditions as are then
available in the market for issuers of similar credit profile, (b) the
amount of such Refinancing is in a principal amount not to exceed (i) the
outstanding principal amount of indebtedness so Refinanced plus (ii) unpaid
accrued interest on such indebtedness being Refinanced plus (iii) premiums,
penalties, fees and expenses actually incurred by the Borrower in
connection with the Refinancing thereof, (c) such Refinanced notes shall
have a final stated maturity that is no earlier than the date that is (12)
twelve months after the Revolving Commitment Termination Date of this
Agreement, and (d) the terms, covenants and conditions of such Refinancing
are no more restrictive than the terms, covenants and conditions of the
Senior Notes and the Senior Note Agreement.
"Senior Note Documents": means the collective reference to the Senior
Notes and the Senior Note Agreement.
2.2 Section 1.01 (Defined Terms) of the Credit Agreement is hereby
amended by deleting the Defined Term Material Indebtedness and substituting
therefor the following:
"Material Indebtedness" means Indebtedness (other than Indebtedness
under the Loan Documents) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $1,000,000, including without
limitation, Indebtedness under the Senior Notes and the Saleh Note. For
purposes of determining Material Indebtedness, the "principal amount" of
the obligations of the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary, as
applicable, would be required to pay if such Hedging Agreement were
terminated at such time.
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2.3 Section 2.01 (Revolving Commitment) of the Credit Agreement is
hereby amended by deleting the text of clause 2.01(a)(ii) and substituting
therefor the following:
"(ii) with regard to the Lenders collectively, the sum of the aggregate
amount of outstanding Revolving Loans plus Swingline Loans plus LC
Obligations shall not exceed the Revolving Committed Amount."
2.4 Section 6.08 (Use of the Proceeds) of the Credit Agreement is
hereby amended by deleting the text of such Section and substituting therefor
the following:
"Section 6.08 (Use of the Proceeds) . The proceeds of the Loans
will be used only (a) to finance the acquisition of the Acquired Company
pursuant to the Merger Agreement, (b) to pay transaction fees and expenses
related to the Merger, (c) provided that the conditions precedent set forth
in Section 2 of Amendment No. 3 have been satisfied, (i) to finance the
Catalyst Merger pursuant to the Catalyst Merger Agreement, and (ii) to pay
transaction fees and expenses related to the Catalyst Merger and (d) for
general corporate purposes not inconsistent with the terms hereof. No part
of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to (i) purchase,
acquire or carry any Margin Stock or for any purpose that entails a
violation of any of the regulations of the Board, including Regulations T,
U and X or (ii) repay or retire or redeem or purchase all or any portion of
the Senior Notes, including a repayment or retirement or redemption or
purchase pursuant to a "conversion" or the occurrence of a "designated
event" (as such terms are described in the Senior Note Documents)."
2.5 Section 7.01 (Indebtedness) of the Credit Agreement is hereby
amended by deleting the "." at the end of clause 7.01(a)(x) and substituting
therefor "; and" inserting the following clause (xi):
"(xi) unsecured Indebtedness evidenced by the Senior Notes,
provided that the proceeds thereof are used to prepay the Term Loans and
any accrued interest thereon and any amount due under Section 3.06 as a
result of such prepayment."
2.6 Section 7.01 (Indebtedness) of the Credit Agreement is hereby
amended by deleting the text of Section 7.01(b) and substituting therefor the
following:
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"(b) The Borrower will not, and it will not permit any Subsidiary
to, (i) issue any preferred equity securities unless the issuance of such
preferred equity securities is on terms and conditions reasonably
satisfactory to the Administrative Agent, or (ii) be or become liable in
respect of any obligation (contingent or otherwise) to purchase, redeem,
retire, acquire or make any other payment in respect of any shares of
Capital Stock of the Borrower or any Subsidiary or any option, warrant or
other right to acquire any such shares of Capital Stock other than Capital
Stock of the Borrower pursuant to any employee benefit plan, except (i) as
permitted under Section 7.08, (ii) as required under the terms of the
Senior Note Documents, and (iii) repurchases of the Capital Stock of the
Borrower in an aggregate amount not to exceed 20% of the gross proceeds
realized from the issuance of the Senior Notes and made within three (3)
Business Days after the issuance of, and from the proceeds of, the Senior
Notes."
2.7 Section 7.04 (Investments, Loans, Advances, Guarantees and
Acquisitions) of the Credit Agreement is hereby amended by deleting in its
entirety the text of Section 7.04(e) and substituting therefor the following:
"(e) (i) Acquisitions consummated prior to the effective date of
Amendment No. 3;
(ii) the Catalyst Merger provided that (1) all conditions set
forth in Section 3 of Amendment No. 3 shall have been satisfied and (2) the
aggregate consideration paid by the Borrower for the Catalyst Merger does
not exceed the amounts set forth in the form of Catalyst Merger Agreement
submitted to the Lenders on the date of Amendment No. 3; and
(iii) Acquisitions (whether by purchase of stock or assets,
merger or consolidation) by the Borrower and/or the Subsidiaries after the
effective date of Amendment No. 4 and not otherwise permitted by this
Section, provided that:
(1) such Acquisition shall be within the same industry and
line of business as that conducted by, or contemplated to be conducted
by, the Borrower and/or the Subsidiaries on the Effective Date;
(2) the aggregate consideration paid by the Borrower
and/or the Subsidiaries in connection with all such Acquisitions with
borrowed money and/or internally generated funds shall not exceed
$10,000,000;
(3) the aggregate consideration paid by the Borrower
and/or the Subsidiaries in connection with all such Acquisitions, shall
not exceed $26,500,000;
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(4) the Borrower shall furnish the Administrative Agent
with written notice of such Acquisition not less than thirty (30) days
prior to the closing of such Acquisition;
(5) in the event any Acquisition is of Capital Stock, the
Borrower shall, pursuant to the Security Agreement, grant to the
Administrative Agent a first priority security interest in all of the
Capital Stock of such new Subsidiary if such new Subsidiary is a
Domestic Subsidiary, and 65% of the Capital Stock of such new
Subsidiary if such new Subsidiary is a Material Foreign Subsidiary, and
each new Subsidiary shall, at the time it becomes a new Subsidiary,
execute such certifications, opinions, resolutions and documents as the
Administrative Agent may reasonably require (consistent with the
requirements of this Agreement) to cause such new Subsidiary (if a
Domestic Subsidiary) to become a party to the Guarantee Agreement and
to cause such new Subsidiary to become a party to the Security
Agreement in order for such new Subsidiary to grant to the
Administrative Agent a first priority security interest in the assets
of such new Subsidiary, subject to the Permitted Encumbrances; and
(6) the Borrower shall have delivered to the
Administrative Agent a certificate of a Financial Officer of the
Borrower demonstrating that, on a pro forma basis, after giving effect
to such Acquisition, (A) the Borrower would be in compliance with
Sections 7.12, 7.13, 7.14 and 7.15 (such covenants to be determined as
if such Acquisition had been consummated on the first day of the period
for which such covenants are being calculated) and (B) no Default or
Event of Default would exist.
2.8 Section 7.05 (Asset Sales) of the Credit Agreement is hereby
amended by deleting the text of Section 7.05(d) and substituting therefor the
following:
"(d) Intentionally Omitted;"
2.9 Section 7.08 (Restricted Payments) of the Credit Agreement is
hereby amended by deleting the "." at the end of such Section and substituting
therefor ";" and inserting the following new Section 7.08(d) as follows:
"(d) as required under the terms of the Senior Note Documents; and".
2.10 Section 7.08 (Restricted Payments) of the Credit Agreement is
hereby amended by adding a new Section 7.08(e) as follows:
"(e) and other repurchases to the extent permitted under Section
7.01(b)(iii)."
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2.11 Article 7 of the Credit Agreement is hereby amended by adding the
following Section 7.17:
"Section 7.17 Optional Payments and Modifications of Certain Debt
Instruments (a) The Borrower will not make or offer to make any optional or
voluntary payment, prepayment, repurchase or redemption of or otherwise
optionally or voluntarily defease or segregate funds with respect to the
Senior Notes other than pursuant to a Refinancing permitted under the
definition of Senior Notes, or (b) amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of the Senior Notes Documents (other than any
such amendment, modification, waiver or other change that (i) would extend
the maturity or reduce the amount of any payment of principal thereof or
reduce the rate or extend any date for payment of interest thereon and (ii)
does not involve the payment of a consent fee)."
3. CONDITIONS PRECEDENT TO EFFECTIVENESS.
Upon the fulfillment of the following conditions precedent, this
Amendment and the amendments contained in Section 2 hereof shall become
effective:
3.1 Amendment. The Administrative Agent shall have received this
Amendment, duly executed by a duly authorized officer or officers of the
Borrower, the Administrative Agent and the Lenders.
3.2 Senior Note Documents. The Administrative Agent shall have (a)
received, reviewed and approved the Senior Note Documents and (b) confirmed that
the Senior Notes shall become effective pursuant thereto concurrently with the
effectiveness of this Amendment.
3.3 Term Loans. The Administrative Agent shall have confirmed that the
Term Loans and all accrued interest thereon and any amounts due under Section
3.06 of the Credit Agreement have been paid in full from the proceeds of the
issuance of the Senior Notes.
3.4 Secretary's Certificate. The Administrative Agent shall have
received a certificate, dated the date hereof, duly executed by the Secretary,
Assistant Secretary, or other analogous counterpart of the Borrower:
(a) attaching a true and complete copy of the resolutions of its
Managing Person and of all other documents evidencing all necessary corporate
action (in form and substance satisfactory to the Administrative Agent) taken to
authorize this Amendment and the other transactions contemplated hereby;
(b) certifying that no amendment or modification of its
Organizational Documents has occurred since the date of delivery thereof to the
Administrative Agent in connection with the Credit Agreement; and
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(c) setting forth the incumbency of its officer or officers who may
sign this Amendment and the other documents to be executed by it in connection
herewith, including therein a signature specimen of such officer or officers.
3.5 Guaranty Confirmation. The Administrative Agent shall have received
a counterpart of the Guaranty Confirmation, substantially in the form attached
hereto as Exhibit C, duly executed by each of the Guarantors.
3.6 Security Agreement Confirmation. The Administrative Agent shall
have received a counterpart of the Security Agreement Confirmation,
substantially in the form attached hereto as Exhibit D, dated the date hereof,
duly executed by the Borrower and each Guarantor.
3.7 Financial Covenant Compliance Certificate. The Administrative Agent
shall have received a certificate, dated the date of the issuance of the Senior
Notes and signed by a Financial Officer of the Borrower, setting forth
reasonably detailed calculations demonstrating that, on a pro forma basis, after
giving effect to the issuance of the Senior Notes, the Borrower is and will be
in compliance with Sections 7.12 (such covenant to be determined as if the
Senior Notes had been issued on the first day of the period for which such
covenant is being calculated).
3.8 Financial Officer's Certificate. The Administrative Agent shall
have received a certificate signed by a Financial Officer of the Borrower, in
such Financial Officer's capacity as an officer of the Borrower, in all respects
reasonably satisfactory to the Administrative Agent, dated the date hereof,
certifying that immediately before and after giving effect to the issuance of
the Senior Notes on a pro forma basis the representations and warranties
contained in the Loan Documents that are qualified as to materiality are and
will be true and correct in all respects, that the representations and
warranties contained in the Loan Documents that are not so qualified are and
will be true and correct in all material respects, and that no Default exists or
will exist.
3.9 Fees. The Administrative Agent shall have received all fees and
other amounts due and payable to the Administrative Agent and the Lenders under
the Loan Documents upon the execution of this Amendment, including, to the
extent invoiced, reimbursement or payment of the fees and disbursements of
Special Counsel and all other out-of-pocket expenses required to be reimbursed
or paid by the Borrower hereunder, all of which fees shall be earned and
non-refundable whether or not the other conditions in this Section have been or
are satisfied and notwithstanding the termination of this Amendment after the
execution thereof.
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3.10 Other Documents. The Administrative Agent shall have received all
other documents that the Administrative Agent may reasonably request with
respect to any matter relevant to this Amendment.
In the event the conditions in this Section have not been satisfied on
or before October 31, 2006 this Amendment shall terminate and shall be of no
effect.
4. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to
the Lenders and the Administrative Agent that:
4.1 No Default. After giving effect to this Amendment, no Default or
Event of Default shall have occurred or be continuing.
4.2 Existing Representations and Warranties. As of the date hereof and
after giving effect to this Amendment, each and every one of the representations
and warranties set forth in the Loan Documents is true, accurate and complete in
all respects and with the same effect as though made on the date hereof, and
each is hereby incorporated herein in full by reference as if restated herein in
its entirety, except for any representation or warranty limited by its terms to
a specific date and except for changes in the ordinary course of business which
are not prohibited by the Credit Agreement (as amended hereby) or changes which
do not, either singly or in the aggregate, have a Material Adverse Effect.
4.3 Authority; Enforceability. (i) The execution, delivery and
performance by the Borrower of this Amendment are within its corporate powers
and have been duly authorized by all necessary corporate action, (ii) this
Amendment is the legal, valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and (iii) this Amendment and the
execution, delivery and performance by the Borrower hereof does not: (A)
contravene the terms of the Borrower's organizational documents; (B) conflict
with or result in any breach or contravention of, or the creation of any Lien
(other than Liens under the Loan Documents) under, any document evidencing any
contractual obligation to which the Borrower is a party or any order,
injunction, writ or decree to which it or its respective property is subject; or
(C) violate any requirement of law.
5. REFERENCE TO AND EFFECT UPON THE CREDIT AGREEMENT.
5.1 Effect. Except as specifically amended hereby, the Credit Agreement
and the other Loan Documents shall remain in full force and effect in accordance
with their terms and are hereby ratified and confirmed.
5.2 No Waiver; References. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of
the Administrative Agent or any Lender under the Credit Agreement, or constitute
a waiver of any provision of the Credit Agreement, except as specifically set
forth herein. Upon the effectiveness of this Amendment, each reference in:
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(i) 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;
(ii) the other Loan Documents to the term "the Credit Agreement"
shall mean and be a reference to the Credit Agreement as amended
hereby; and
(iii) the Loan Documents to the term "the Loan Documents" shall be
deemed to include this Amendment.
6. MISCELLANEOUS.
6.1 Expenses. The Borrower agrees to pay the Administrative Agent upon
demand for all reasonable expenses, including reasonable attorneys' fees and
expenses of the Administrative Agent, incurred by the Administrative Agent in
connection with the preparation, negotiation and execution of this Amendment.
6.2 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.
6.3 Law; Waiver of Trial by Jury. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING
OUT OF OR IN ANY WAY CONNECTED TO THIS AMENDMENT.
6.4 Successors. 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 successors and assigns of the Lenders and the
Administrative Agent.
6.5 Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
including counterparts executed and delivered by facsimile, each of which when
so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
[Signature Page to Follow]
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Amendment No. 4 to XxXxxx Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers on the date
first written above.
XXXXXX CORPORATION
By:
------------------------------------
Name: Xxxx X. X'Xxxxxx
Title: Vice President and
Chief Financial Officer
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THE BANK OF NEW YORK,
as Administrative Agent, as Issuing Lender
and as a Lender
By:
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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XXXXXXX BANK, NATIONAL ASSOCIATION, as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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LASALLE BANK NATIONAL ASSOCIATION, as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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MANUFACTURERS AND TRADERS TRUST
COMPANY, as a Lender
By:
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Name:
-------------------------------------
Title:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:
---------------------------------------
Name:
-------------------------------------
Title:
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