Exhibit 10.22
THIRD AMENDMENT
THIRD AMENDMENT, dated as of March 29, 2004 (this
"Amendment"), to the Credit Agreement, dated as of June 6, 2002
(as amended pursuant to the First Amendment, dated as of December
10, 2002, and the Second Amendment, dated as of May 12, 2003, and
as the same may be further amended (including pursuant to this
Amendment), supplemented or otherwise modified from time to time,
the "Credit Agreement"), among Xxxxxx'x Acquisition Corp., a
Delaware corporation ("Holdings"), Xxxxxx'x, Inc., a Wisconsin
corporation (the "Borrower"), the several banks, financial
institutions and other entities from time to time parties thereto
(the "Lenders"), Bear, Xxxxxxx & Co. Inc., as sole lead arranger
and sole bookrunner (in such capacity, the "Lead Arranger"), Bear
Xxxxxxx Corporate Lending Inc., as administrative agent (in such
capacity, the "Administrative Agent"), Canadian Imperial Bank of
Commerce, as syndication agent (in such capacity, the
"Syndication Agent"), and the institutions listed in the Credit
Agreement as documentation agents (collectively, in such
capacity, the "Documentation Agents"). Terms defined in the
Credit Agreement and not otherwise defined herein are used herein
with the meanings so defined.
W I T N E S S E T H :
WHEREAS, pursuant to the Credit Agreement, the Lenders
have agreed to make, and have made, certain loans and other
extensions of credit to the Borrower;
WHEREAS, Holdings and the Borrower have requested
certain amendments to the Credit Agreement as more fully set
forth herein; and
WHEREAS, the Lenders have agreed to such amendments but
only on the terms and conditions contained in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as
follows:
SECTION 1. Defined Terms. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
SECTION 2. Amendments to Section 1.1. (a) The following
definitions contained in Section 1.1 of the Credit Agreement are
hereby amended in their respective entireties to read as follows:
"Commitment": as to any Lender, the sum of the
Term B-1 Commitment and the Revolving Commitment of
such Lender.
"Facility": each of (a) the Term B-1 Commitments
and the Term B-1 Loans made thereunder (the "Term B-1
Facility") and (b) the Revolving Commitments and the
extensions of credit made thereunder (the "Revolving
Facility").
"Required Lenders": at any time, (a) the holders
of more than 50% of the aggregate unpaid principal
amount of the Term B-1 Loans then outstanding and (b)
the holders of more than 50% of the Total Revolving
Commitments then in effect or, if the Revolving
Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.
(b) The definition of "Applicable Margin" in Section 1.1 of the
Credit Agreement is hereby amended by inserting the following
proviso at the end thereof:
"provided, further, that the Applicable Margin
with respect to Term B-1 Loans shall be (x) 1.00%, if
such Loans are Base Rate Loans and (y) 2.00%, if such
Loans are Eurodollar Loans".
(c) The definition of "Commitment Allocation Notice" in Section
1.1 of the Credit Agreement is hereby amended by adding the
following parenthetical at the end thereof:
"(or, in the case of such Lender's Term B-1
Commitment, as of the Term B-1 Closing Date)".
(d) The definitions of "Consolidated Fixed Charges", "Excess
Cash Flow" and "Reinvestment Deferred Amount" in Section 1.1 of
the Credit Agreement are hereby amended by adding the words "or
the Term B-1 Loans" after the words "Term Loans" each time such
words appear in such definitions.
(e) The definitions of "Aggregate Exposure", "Interest Period"
and "Majority Facility Lenders" in Section 1.1 of the Credit
Agreement are hereby amended by replacing all references to "Term
Loans" with a reference to "Term B-1 Loans" each time such words
appear in such definitions.
(f) Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following new definitions in the
appropriate alphabetical order:
"Term B-1 Closing Date": the Third Amendment
Effective Date, as defined in Section 11 of the Third
Amendment, which date is March 29, 2004.
"Term B-1 Commitment": as to any Lender, the
obligation of such Lender, if any, to make a Term B-1
Loan to the Borrower hereunder in a principal amount
not to exceed the amount set forth in such Lender's
Commitment Allocation Notice executed and delivered in
connection with the Third Amendment or in the
Assignment and Acceptance pursuant to which such Lender
became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The
original aggregate amount of the Term B-1 Commitments
is $246,250,000.
"Term B-1 Lender": each Lender that has a Term B-1
Commitment or that holds a Term B-1 Loan.
"Term B-1 Loans": as defined in Section 2.1.
"Term B-1 Percentage": as to any Term B-1 Lender
at any time, the percentage which the aggregate
principal amount of such Lender's Term B-1 Loans then
outstanding constitutes of the aggregate principal
amount of the Term B-1 Loans of all the Lenders then
outstanding.
"Third Amendment": the Third Amendment, dated as
of March 29, 2004, to this Agreement.
SECTION 3. Amendment to Section 2.1. Section 2.1 of the
Credit Agreement is hereby amended by adding the following sentences at
the end thereof:
"Subject to the terms and conditions hereof, each
Term B-1 Lender severally agrees to make a term loan (a
"Term B-1 Loan") to the Borrower on the Term B-1
Closing Date in an amount not to exceed the amount of
the Term B-1 Commitment of such Lender, such Term B-1
Loan to be made in accordance with Section 9 of the
Third Amendment. The Term B-1 Loans may from time to
time be Eurodollar Loans or Base Rate Loans, as
determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2
and 4.3."
SECTION 4. Amendment to Section 2. Section 2 of the
Credit Agreement is hereby further amended by inserting a new
Section 2.4 at the end thereof to read in its entirety as follows:
"2.4 Repayment of Term B-1 Loans. The Term B-1
Loan of each Term B-1 Lender shall mature in 22
consecutive quarterly installments payable on the last
day of March, June, September and December of each
year, commencing on March 31, 2004, each of which shall
be in an amount equal to such Lender's Term B-1
Percentage multiplied by the amount set forth below
opposite such installment (after giving effect to any
optional and mandatory prepayments):
Installment Principal Amount
----------- -----------------
1 to 18 $625,000 each
19 to 22 $58,750,000 each"
SECTION 5. General Amendments. All references to "Term
Loans" in Sections 4.1, 4.2, 4.14(d) (with corresponding changes
to Exhibit H-1 to reflect the amendments set forth herein),
8.2(p), 8.9 and 11.6 of the Credit Agreement are hereby amended
to refer to "Term B-1 Loans" and all references to "Term Loans"
in Sections 8.7, 8.8(i) and 11.1 of the Credit Agreement shall be
deemed to include the Term B-1 Loans.
SECTION 6. Amendment to Section 4.8. (a) All references
to "Term Percentages" in Section 4.8(a) of the Credit Agreement
are hereby amended to refer to "Term B-1 Percentages".
(b) All references to "Term Loans" and "Term Lenders"
in Section 4.8(b) are hereby amended to refer to "Term B-1 Loans"
and "Term B-1 Lenders", respectively.
SECTION 7. Amendment to Section 5.16. Section 5.16
of the Credit Agreement is hereby amended by inserting the following
sentence at the end thereof:
"The proceeds of the Term B-1 Loans shall be used
to prepay in full the Term Loans outstanding on the
Term B-1 Closing Date."
SECTION 8. Joinder. From and after the Third Amendment
Effective Date, each Term B-1 Lender executing and delivering this
Amendment(that is not already a Lender) shall become a party to the
Credit Agreement and have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound
by the other provisions thereof.
SECTION 9. Notice of Borrowing. The Borrower shall give
the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, on
the Third Amendment Effective Date (as defined below), requesting
that the Term B-1 Lenders make the requested Term B-1 Loans on
the Third Amendment Effective Date, and specifying the amount to
be borrowed. The Term B-1 Loans made on the Third Amendment
Effective Date shall initially bear interest as set forth in
Section 10. Upon receipt of such notice the Administrative Agent
shall promptly notify each Term B-1 Lender thereof. Not later
than 12:00 Noon, New York City time, on the Third Amendment
Effective Date, each Term B-1 Lender shall make available to the
Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Term B-1 Loan or Term B-
1 Loans to be made by such Lender; provided, however, that, at
the option of each Term B-1 Lender that is a Term Lender
immediately prior to giving effect to this Amendment pursuant to
a written notice delivered to the Administrative Agent at least
one Business Day prior to the Third Amendment Effective Date by
such Term B-1 Lender, all or a portion of the aggregate amount of
Term Loans of such Term B-1 Lender may be deemed to satisfy the
foregoing funding requirement. Subject to the immediately
preceding sentence, the Administrative Agent shall use the
amounts made available to the Administrative Agent by the Term B-
1 Lenders to repay the amounts due under the Term Loans.
SECTION 10. Initial Interest Periods and Interest Rates. With
respect to Term Loans being refinanced which are Eurodollar
Loans, all Term B-1 Loans made on the Third Amendment Effective
Date shall have initial Interest Periods ending on the same dates
as the Interest Periods applicable to such Term Loans being
refinanced with such Term B-1 Loans, and the Eurodollar Rates
applicable to such Term B-1 Loans during such initial Interest
Periods shall be the same as those applicable to such Term Loans
being refinanced. With respect to Term Loans being refinanced
which are Base Rate Loans, all Term B-1 Loans made on the Third
Amendment Effective Date shall be Base Rate Loans. The Borrower
will not be required to make any payments to Term Lenders that
become Term B-1 Lenders under Section 4.11 of the Credit
Agreement in connection with the exchange of their Term Loans for
Term B-1 Loans, except to the extent that such Lender's Term B-1
Loans are less than such Lender's Term Loans (such amount, a "Non-
Renewed Loan"), in which case the Borrower shall be required to
make payments to such Lender under Section 4.11 of the Credit
Agreement, based on the amount of such Non-Renewed Loan.
SECTION 11. Conditions to Effectiveness. This Amendment shall become
effective upon the date(the "Third Amendment Effective Date") on which the
Administrative Agent shall have received:
(a) this Amendment, executed and delivered by a duly authorized
officer of each of (i) the Borrower, (ii) Holdings and (iii) the
Required Lenders and each Term B-1 Lender (or, in the case of
this clause (iii), the Administrative Agent acting on behalf of
such Persons);
(b) a favorable written legal opinion (addressed to the
Administrative Agent and the Lenders and dated the Third
Amendment Effective Date) of each of (i) Xxxxxxxx & Xxxxx LLP,
special New York counsel for the Borrower and (ii) such other
legal opinions by special or local counsel as may be required by
the Administrative Agent, in the case of each such opinion
required by this paragraph, covering such matters relating to the
Loan Parties, the Loan Documents or this Amendment as the
Administrative Agent shall reasonably request;
(c) such documents and certificates as the Administrative Agent
or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the
authorization of the Amendment, the Reaffirmation (as defined
below) and the other transactions contemplated hereby (the
"Transactions") and any other legal matters relating to the Loan
Parties, the Loan Documents or the Amendment, all in form and
substance satisfactory to the Administrative Agent and its
counsel;
(d) satisfactory evidence that all fees and other amounts due
and payable to any Agent on or prior to the Third Amendment
Effective Date have been paid, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be
reimbursed or paid by any Loan Party hereunder or under any other
Loan Document;
(e) subject to Section 9 hereof, satisfactory evidence that the
outstanding principal amount of, and all accrued and unpaid
interest on, the Term Loans shall have been paid in full with the
proceeds of the Term B-1 Loans; and
(f) a Reaffirmation Agreement, substantially in the form of
Exhibit A hereto, duly executed and delivered by each party
thereto (the "Reaffirmation Agreement"), which shall be a Loan
Document.
The Administrative Agent shall notify the Borrower and the
Lenders of the Third Amendment Effective Date, and such notice
shall be conclusive and binding. Notwithstanding the foregoing,
the obligations of the Term B-1 Lenders to make Term B-1 Loans
shall not become effective unless each of the foregoing
conditions is satisfied at or prior to 5:00 p.m., New York City
time, on March 29, 2004 (and, in the event such conditions are
not so satisfied, the Term B-1 Commitments shall terminate at
such time).
SECTION 12. Real Estate Covenant. The Borrower shall use
commercially reasonable efforts to execute, file and deliver to
the Administrative Agent, promptly, but in no event later than 60
days after the Third Amendment Effective Date, (i) amendments to
each Mortgage executed in connection with the Credit Agreement
providing that the Term B-1 Loans (in addition to the other
Obligations) shall be secured by a Lien on each Mortgaged
Property, signed on behalf of the record owner of such Mortgaged
Property, together with customary supporting documentation
reasonably acceptable to the Administrative Agent, and (ii)
either mortgage modification endorsements to, or date down
endorsements to (or re-dated title insurance policies which
replace), the existing title insurance policies, in each case
issued by a nationally recognized title insurance company,
insuring the Lien of each such Mortgage, as amended by such
amendment, as a valid first Lien on the Mortgaged Property
described therein, free of any other Liens except as permitted by
the Loan Documents. A failure to comply with the covenant in
this Section 12 shall be deemed a "Designated Event of Default"
under Section 9(c) of the Credit Agreement.
SECTION 13. Representations and Warranties. The Borrower
represents and warrants to the Administrative Agent and the Lenders that
as of the Third Amendment Effective Date, after giving effect to this
Amendment, no Default or Event of Default has occurred and is continuing
and the representations and warranties made by the Borrower in or
pursuant to the Credit Agreement or any other Loan Document are
true and correct in all material respects on and as of the Third
Amendment Effective Date as if made on such date (except to the
extent that any such representations and warranties expressly
relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects on and
as of such earlier date).
SECTION 14. Effect of Amendment. (a) This Amendment
shall not constitute an amendment or waiver of or consent to any
provision of the Credit Agreement not expressly referred to herein and
shall not be construed as an amendment, waiver or consent to any action
on the part of the Borrower that would require an amendment, waiver or
consent of the Administrative Agent or the Lenders except as expressly
stated herein. Except as expressly amended hereby, the provisions
of the Credit Agreement are and shall remain in full force and
effect in accordance with its terms.
(b) On and after the Third Amendment Effective Date,
each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof", "herein", or words of like import, and
each reference to the Credit Agreement in any other Loan Document
shall be deemed a reference to the Credit Agreement as amended
hereby. This Amendment shall constitute a "Loan Document" for
all purposes of the Credit Agreement and the other Loan
Documents.
SECTION 15. Costs and Expenses. The Borrower agrees to
reimburse the Administrative Agent for its reasonable out-of-
pocket expenses in connection with this Amendment, including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent.
SECTION 16. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
SECTION 17. Counterparts. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts (including by facsimile), each of which when so executed and
delivered shall be deemed an original and all of said
counterparts taken together shall be deemed to constitute one and
the same instrument.
SECTION 18. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
proper and duly authorized officers as of the day and year first
above written.
XXXXXX'X, INC., as Borrower
By:________________________________
Name:
Title:
XXXXXX'X ACQUISITION CORP., as
Holdings
By:________________________________
Name:
Title:
BEAR XXXXXXX CORPORATE LENDING
INC., as Administrative Agent
By:________________________________
Name:
Title:
[NAME OF LENDER]
By: _______________________________
Name:
Title:
