EXHIBIT 10.14[3]
THIRD AMENDMENT TO CREDIT AGREEMENT
This THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), made and
entered into as of September 29, 2001, is by and between RTW, Inc., a Minnesota
corporation (the "Borrower"), and U.S. Bank National Association, a national
banking association (the "Bank").
RECITALS
1. The Bank and the Borrower entered into a Credit Agreement dated as
of March 31, 2000 as amended by a First Amendment dated as of May 4, 2000 and a
Second Amendment dated as of March 28, 2001 (as amended, the "Credit
Agreement"); and
2. The Borrower desires to amend certain provisions of the Credit
Agreement, and the Bank has agreed to make such amendments, subject to the terms
and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby covenant
and agree to be bound as follows:
Section 1. Capitalized Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement, unless the context shall otherwise require.
Section 2. Amendments. The Credit Agreement is hereby amended as
follows:
2.1 Definitions.
(a) The definitions of "Consolidated Net Income", "Eurodollar
Rate" and "Fixed Charge Coverage Ratio" contained in Section 1.1 of the
Credit Agreement are amended in their entirety to read as follows:
"Consolidated Net Income": For any period, the
consolidated net income of the Borrower and its Subsidiaries
for such period as determined in accordance with GAAP;
provided, however, that such amount shall exclude (a) fees not
to exceed $2,500,000 on a pre-tax basis in the aggregate on
account of any loss portfolio transfer or adverse development
cover reinsurance agreement which limits the Borrower and/or
Subsidiary's exposure to future claims, and (b) amounts added
to loss reserves not to exceed $5,450,000 on a pre-tax basis
in the aggregate in the first and second quarters of fiscal
year 2001.
"Eurodollar Rate": With respect to each Interest
Period applicable to a Eurodollar Rate Advance, the average
offered rate for deposits in United States
dollars (rounded upward, if necessary, to the nearest 1/16 of
1%) for delivery of such deposits on the first day of such
Interest Period, for the number of days in such Interest
Period, which appears on Telerate page 3750 as of 11:00 AM,
London time (or such other time as of which such rate appears)
two Eurodollar Business Days prior to the first day of such
Interest Period, or the rate for such deposits determined by
the Bank at such time based on such other published service of
general application as shall be selected by the Bank for such
purpose; provided, that in lieu of determining the rate in the
foregoing manner, the Bank may determine the rate based on
rates at which United States dollar deposits are offered to
the Bank in the interbank Eurodollar market at such time for
delivery in Immediately Available Funds on the first day of
such Interest Period in an amount approximately equal to the
Advance by the Bank to which such Interest Period is to apply
(rounded upward, if necessary, to the nearest 1/16 of 1%).
"Telerate page 3750" means the display designated as such on
the Telerate reporting system operated by Telerate System
Incorporated (or such other page as may replace page 3750 for
the purpose of displaying London interbank offered rates of
major banks for United States dollar deposits).
"Fixed Charge Coverage Ratio": As of the last day of
any fiscal quarter of the Borrower, the ratio of:
(a) an amount equal to the sum of (i) the
Amount Available for Dividends for the period of four
consecutive fiscal quarters ending on such day, plus
(ii) the operating gain (loss) of the Borrower, on a
non-consolidated basis, for such period, plus (iii)
the tax benefit of interest expense of the Borrower
for such period determined on a non-consolidated
basis,
to
(b) an amount equal to the sum of (i)
interest expense of the Borrower for such period
determined on a non-consolidated basis, plus (ii) all
required principal payments with respect to
Indebtedness of the Borrower for such period
determined on a non-consolidated basis.
(b) Section 1.1 of the Credit Agreement is hereby amended by
adding the definitions of "Prime Rate" and "Prime Rate Advance" in the
correct alphabetical order to read as follows:
"Prime Rate": The rate of interest from time to time
publicly announced by the Bank as its "prime rate". The Bank
may lend to its customers at rates that are at, above or below
the Prime Rate. For purposes of determining any interest rate
hereunder or under any other Loan Document which is based on
the Prime Rate, such interest rate shall change as and when
the Prime Rate shall change.
"Prime Rate Advance": An Advance with respect to
which the interest rate is determined by reference to the
Prime Rate.
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(c) Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Reference Rate" and "Reference Rate
Advance".
2.2 Conversions and Continuations. The last sentence of
Section 2.5 of the Credit Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
If the Borrower shall fail to notify the Bank of the
continuation of any Fixed Rate Advances or of the conversion
of Eurodollar Rate Advances to Negotiated Rate Advances within
the time required by this Section, at the option of the Bank,
such Advances shall, on the last day of the Interest Period
applicable thereto (A) automatically be continued as Fixed
Rate Advances of the same type and the same Interest Period or
(B) automatically be converted to Prime Rate Advances.
2.3 Fixed Charge Coverage Ratio. Section 6.13 of the Credit
Agreement is amended to read in its entirety as follows:
Section 6.13 Fixed Charge Coverage Ratio. The
Borrower will not permit the Fixed Charge Coverage Ratio, as
of the last day of any fiscal quarter, to be less than 1.50 to
1.00.
2.4 Consolidated Net Worth. Section 6.15 of the Credit
Agreement is amended to read in its entirety as follows:
Section 6.15 Consolidated Net Worth. The Borrower
will not permit its Consolidated Net Worth at any time to be
less than the sum of $35,000,000 plus 25% of its cumulative
positive Consolidated Net Income arising after September 30,
2001.
2.5 Statutory Surplus of ACIC. Section 6.16 of the Credit
Agreement is amended to read in its entirety as follows:
Section 6.16 Statutory Surplus of ACIC. The Borrower
shall not permit ACIC's Capital and Surplus at any time to be
less than the sum of $25,000,000 plus 25% of ACIC's cumulative
positive Statutory Net Income arising after September 30,
2001.
2.6 Consolidated Net Income. Section 6.17 of the Credit
Agreement is amended to read in its entirety as follows:
Section 6.17 Consolidated Net Income. The Borrower
will not permit its Consolidated Net Income, as of the last
day of any fiscal quarter for the period of four consecutive
fiscal quarters ending on such date, to be less than
$3,000,000; provided, however, that for the period of
determination ending on September 30, 2001, Consolidated Net
Income shall be calculated on an annualized basis based upon
the Borrower's consolidated financial results for the period
from January 1, 2001 to and including September 30, 2001.
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2.7 Prime Rate. Except for references to such terms
specifically so amended by this Amendment, all remaining references to
the term "Reference Rate" or "Reference Rate Advance" contained in the
Credit Agreement are hereby amended to be references to the term "Prime
Rate" or "Prime Rate Advance", as applicable.
2.8 Compliance Certificate. Exhibit 5.1(b) to the Credit
Agreement is hereby amended in its entirety to read as set forth in
Exhibit B to this Amendment, which is made a part of the Credit
Agreement as Exhibit 5.1(b) thereto.
Section 3. Effectiveness of Amendments. The amendments contained in
this Amendment shall become effective upon delivery by the Borrower of, and
compliance by the Borrower with, the following:
3.1 This Amendment and the Second Amended and Restated Term
Note in the form of Exhibit A hereto (the "Note"), each duly executed
by the Borrower.
3.2 A copy of the resolutions of the Board of Directors of the
Borrower authorizing the execution, delivery and performance of this
Amendment and Note certified as true and accurate by its Secretary or
Assistant Secretary, along with a certification by such Secretary or
Assistant Secretary (i) certifying that there has been no amendment to
the Articles of Incorporation or Bylaws of the Borrower since true and
accurate copies of the same were delivered to the Bank with a
certificate of the Secretary of the Borrower dated March 31, 2000, and
(ii) identifying each officer of the Borrower authorized to execute
this Amendment, the Note and any other instrument or agreement executed
by the Borrower in connection with this Amendment (collectively, the
"Amendment Documents"), and certifying as to specimens of such
officer's signature and such officer's incumbency in such offices as
such officer holds.
3.3 The Borrower shall have paid an amendment fee of $5,000 to
the Bank.
3.4 The Borrower shall have satisfied such other conditions as
specified by the Bank, including payment of all unpaid legal fees and
expenses incurred by the Bank through the date of this Amendment in
connection with the Credit Agreement and the Amendment Documents.
Section 4. Defaults and Waivers.
4.1 Events of Default and Unmatured Events of Default.
(a) Consolidated Net Worth. Under Section 6.15 of the Credit
Agreement, the Borrower agreed not to permit its Consolidated Net Worth
at any time to be less than the sum of $38,000,000 plus 25% of its
cumulative positive Consolidated Net Income arising after March 31,
2001. Beginning on April 1, 2001, the Borrower's Consolidated Net Worth
was less than the sum of $38,000,000 plus 25% of its cumulative
positive Consolidated Net Income arising after March 31, 2001. As a
result, an Event of Default has occurred under Section 7.1(c) of the
Credit Agreement.
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(b) Consolidated Net Income. Under Section 6.17 of the Credit
Agreement, the Borrower agreed not to permit its Consolidated Net
Income for any period of four consecutive fiscal quarters to be less
than $3,000,000; provided, however, that for any period of
determination ending on or before September 30, 2001, Consolidated Net
Income shall be calculated on an annualized basis based upon the
Borrower's consolidated financial results for the period from January
1, 2001 to and including the date of determination. For the four fiscal
quarters ending June 30, 2001, the Borrower's Consolidated Net Income
was less than $3,000,000. As a result, an Event of Default has occurred
under Section 7.1(c) of the Credit Agreement.
4.2 Waiver. Upon the date on which this Amendment becomes
effective, the Bank hereby waives the Borrower's Defaults and Events of
Default described in the preceding Sections 4.1(a) through 4.1(b) (the
"Existing Defaults"). The waiver of the Existing Defaults set forth
above is limited to the express terms thereof, and nothing herein shall
be deemed a waiver by the Bank of any other term, condition,
representation or covenant applicable to the Borrower under the Credit
Agreement (including but not limited to any future occurrence similar
to the Existing Defaults) or any of the other agreements, documents or
instruments executed and delivered in connection therewith, or of the
covenants described therein. The waivers set forth herein shall not
constitute a waiver by the Bank of any other Default or Event of
Default, if any, under the Credit Agreement, and shall not be, and
shall not be deemed to be, a course of action with respect thereto upon
which the Borrower may rely in the future, and the Borrower hereby
expressly waives any claim to such effect.
Section 5. Representations, Warranties, Authority, No Adverse Claim.
5.1 Reassertion of Representations and Warranties, No Default.
The Borrower hereby represents that on and as of the date hereof and
after giving effect to this Amendment (a) all of the representations
and warranties contained in the Credit Agreement are true, correct and
complete in all respects as of the date hereof as though made on and as
of such date, except for changes permitted by the terms of the Credit
Agreement, and (b) there will exist no Default or Event of Default
under the Credit Agreement as amended by this Amendment on such date
which has not been waived by the Bank.
5.2 Authority, No Conflict, No Consent Required. The Borrower
represents and warrants that the Borrower has the power and legal right
and authority to enter into the Amendment Documents and has duly
authorized as appropriate the execution and delivery of the Amendment
Documents and other agreements and documents executed and delivered by
the Borrower in connection herewith or therewith by proper corporate
action, and none of the Amendment Documents nor the agreements
contained herein or therein contravenes or constitutes a default under
any agreement, instrument or indenture to which the Borrower is a party
or a signatory or a provision of the Borrower's Articles of
Incorporation, Bylaws or any other agreement or requirement of law, or
result in the imposition of any Lien on any of its property under any
agreement binding on or applicable to the Borrower or any of its
property except, if any, in favor of the Bank. The Borrower represents
and warrants that no consent, approval or authorization of or
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registration or declaration with any Person, including but not limited
to any governmental authority, is required in connection with the
execution and delivery by the Borrower of the Amendment Documents or
other agreements and documents executed and delivered by the Borrower
in connection therewith or the performance of obligations of the
Borrower therein described, except for those which the Borrower has
obtained or provided and as to which the Borrower has delivered
certified copies of documents evidencing each such action to the Bank.
5.3 No Adverse Claim. The Borrower warrants, acknowledges and
agrees that no events have been taken place and no circumstances exist
at the date hereof which would give the Borrower a basis to assert a
defense, offset or counterclaim to any claim of the Bank with respect
to the Obligations.
Section 6. Affirmation of Credit Agreement, Further References,
Affirmation of Security Interest. The Bank and the Borrower each acknowledge and
affirm that the Credit Agreement, as hereby amended, is hereby ratified and
confirmed in all respects and all terms, conditions and provisions of the Credit
Agreement, except as amended by this Amendment, shall remain unmodified and in
full force and effect. All references in any document or instrument to the
Credit Agreement are hereby amended and shall refer to the Credit Agreement as
amended by this Amendment. The Borrower confirms to the Bank that the
Obligations are and continue to be secured by the security interest granted by
the Borrower in favor of the Bank under the Security Documents, and all of the
terms, conditions, provisions, agreements, requirements, promises, obligations,
duties, covenants and representations of the Borrower under such documents and
any and all other documents and agreements entered into with respect to the
obligations under the Credit Agreement are incorporated herein by reference and
are hereby ratified and affirmed in all respects by the Borrower.
Section 7. Merger and Integration, Superseding Effect. This Amendment,
from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
Section 8. Severability. Whenever possible, each provision of this
Amendment and the other Amendment Documents and any other statement, instrument
or transaction contemplated hereby or thereby or relating hereto or thereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the applicable law of any jurisdiction, but, if any provision of this
Amendment, the other Amendment Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto shall
be held to be prohibited, invalid or unenforceable under the applicable law,
such provision shall be ineffective in such jurisdiction only to the extent of
such prohibition, invalidity or unenforceability, without invalidating or
rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment, the other Amendment Documents or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto in such jurisdiction, or affecting the effectiveness, validity
or enforceability of such provision in any other jurisdiction.
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Section 9. Successors. The Amendment Documents shall be binding upon
the Borrower and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrower and the Bank and the successors and assigns
of the Bank.
Section 10. Legal Expenses. As provided in Section 8.2 of the Credit
Agreement, the Borrower agrees to reimburse the Bank, upon execution of this
Amendment, for all reasonable out-of-pocket expenses (including attorney' fees
and legal expenses of Xxxxxx & Xxxxxxx LLP, counsel for the Bank) incurred in
connection with the Credit Agreement, including in connection with the
negotiation, preparation and execution of the Amendment Documents and all other
documents negotiated, prepared and executed in connection with the Amendment
Documents, and in enforcing the obligations of the Borrower under the Amendment
Documents, and to pay and save the Bank harmless from all liability for, any
stamp or other taxes which may be payable with respect to the execution or
delivery of the Amendment Documents, which obligations of the Borrower shall
survive any termination of the Credit Agreement.
Section 11. Headings. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
Section 12. Counterparts. The Amendment Documents may be executed in
several counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts shall
be regarded as one and the same document, and either party to the Amendment
Documents may execute any such agreement by executing a counterpart of such
agreement.
Section 13. Governing Law. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
BORROWER: RTW, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Chief Financial Officer
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BANK: U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
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Title: Corporate Banking Officer
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[Signature Page to Third Amendment to Credit Agreement]
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