EXHIBIT 4.18
SIXTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "Sixth
Amendment") is entered into on June 29, 2001 (the "Effective Date"), by and
among XXXXXX XXXXXX, INC., a Tennessee corporation ("Xxxxxx"), SUNTRUST BANK,
a Georgia state banking corporation, successor-in-interest to SunTrust Bank,
Nashville, N.A. ("SunTrust"), the other banks and lending institutions listed
on the signature pages hereof and any assignees of SunTrust or such other banks
and lending institutions that become "Lenders" (SunTrust and such other banks,
lending institutions and assignees are referred to collectively herein as the
"Lenders"), and SUNTRUST BANK, in its capacity as agent for the Lenders
(the "Agent").
R E C I T A L S:
WHEREAS, Lenders, Agent and Xxxxxx entered into an Amended and Restated
Credit Agreement dated as of December 13, 1995, as amended by that certain
First Amendment to Amended and Restated Credit Agreement dated as of January 3,
1996, as further amended by that certain Second Amendment to Amended and
Restated Credit Agreement dated as of November 15, 1996, as further amended by
that certain Third Amendment to Amended and Restated Credit Agreement dated as
of January 7, 1997, as further amended by that certain Fourth Amendment to
Amended and Restated Credit Agreement dated as of March 31, 1998, and as
further amended by that certain Sixth Amendment to Amended and Restated Credit
Agreement dated November 30, 1998, effective as of June 10, 1998 (as amended
or otherwise modified from time to time, the "Credit Agreement"), wherein
Lenders agreed to extend certain financial accommodations to Xxxxxx; and
WHEREAS, Xxxxxx has requested that Lenders consent to the sale of
(i) certain real property located in Arizona acquired in January, 2000
(the "Remuda Ranch") and (ii) Xxxxxx, as such term is defined in the Credit
Agreement; and Lenders are willing to consent to such transactions, and to
modify the application of certain provisions of the Credit Agreement with
respect to such transactions, upon the terms contained herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are mutually
acknowledged, the parties hereby agree as follows:
1. Defined Terms. All defined terms used and not otherwise defined herein
shall have the meaning ascribed to such terms in the Credit Agreement.
2. Remuda Ranch Sale. Lenders consent to the disposition by merger or sale of
the common stock or the sale of assets by Xxxxxx of Remuda Ranch
(the "Remuda Ranch Sale") provided that the net cash proceeds of such sale
are in a range from $5,000,000 to $15,000,000; and Lender hereby waives
any provisions of the Credit Agreement that would be in conflict with the
Remuda Ranch Sale, including without limitation Section 11.03.
3. Xxxxxx Sale. Lenders consent to the disposition by merger or sale of the
common stock or the sale of assets by Xxxxxx of Xxxxxx (the "Xxxxxx Sale")
provided that the net cash proceeds for such sale are in a range from
$30,000,000 to $60,000,000; and Lender hereby waives any provisions of the
Credit Agreement that would be in conflict with the Xxxxxx Sale, including
without limitation Section 11.03.
4. Mandatory Reduction of Amounts Outstanding under Revolving Credit Notes and
Revolving Loan Commitment. Xxxxxx and Lenders agree that upon consummation
of the Remuda Ranch Sale and/or the Xxxxxx Sale (collectively, the "Asset
Sales"), (i) Xxxxxx shall apply 97% of the net cash proceeds of the Remuda
Ranch Sale to reduce amounts outstanding under the Revolving Credit Notes,
and the Revolving Loan Commitment shall be permanently reduced by an amount
equal to 100% of the net cash proceeds of the Remuda Ranch Sale, and
(ii) Xxxxxx shall apply 86% of the net cash proceeds of the Xxxxxx Sale to
reduce amounts outstanding under the Revolving Credit Notes and the
Revolving Loan Commitment shall be permanently reduced by an amount equal
to 80% of the net cash proceeds of the Xxxxxx Sale. Xxxxxx and Lenders
acknowledge that, as to the Remuda Ranch Sale and the Xxxxxx Sale, the
requirements set forth herein are a replacement of, and not in addition to,
the requirements set forth in Section 2.06 of the Credit Agreement.
Xxxxxx and Lenders agree and acknowledge that 3% of the net cash proceeds
of the Asset Sales shall be used to reduce amounts outstanding under that
certain Amended and Restated Revolving Credit Promissory Note dated
June 9, 1999, as amended, between Xxxxxx and SunTrust Bank.
5. Springing Lien. On or before December 31, 2001, Xxxxxx shall have entered
into a Binding Purchase Agreement for both the Remuda Ranch Sale and the
Xxxxxx Sale. As used herein, the term "Binding Purchase Agreement" shall
mean a binding contract by and between Xxxxxx and a purchaser at a price
equal to or greater than as is required pursuant to Sections 2 and 3 of
this Sixth Amendment for which no conditions remain that would result,
upon the failure of such condition to be satisfied, in either Xxxxxx or
such purchaser being released from its obligation to perform under such
contract and which requires a closing on or before January 15, 2002. In
the event Xxxxxx has not entered into a Binding Purchase Agreement for both
the Remuda Ranch Sale and the Xxxxxx Sale on or before December 31, 2001,
Xxxxxx hereby grants to Lenders a first priority security interest in all
of its property, both real and personal, including any and all property
owned by any Subsidiary of Xxxxxx (the "Property"). In such event, Xxxxxx
(i) agrees to execute and return to Agent within five (5) days of receipt
from Agent such security agreements, mortgages, deeds of trust and other
documents as may be reasonably required by Agent to reflect the pledge by
Xxxxxx to Lenders of a security interest in the Property (including any
UCC-1 financing statements filed by Lenders, and as such may be amended,
the "Security Documents"), (ii) consents to the filing by Agent on behalf
of Lenders of any and all UCC-1 financing statements or other Security
Documents as may be required to perfect Lenders' security interest in the
Property, and (iii) agrees to pay any and all costs related to the
preparation and filing of the Security Documents, including without
limitation reasonable attorneys' fees, indebtedness tax and filing fees.
In addition, if such Binding Purchase Agreement is not entered into before
December 31, 2001, Xxxxxx shall cause to be executed and returned within
five (5) days of receipt from Agent guaranty agreements of all Subsidiaries
of Xxxxxx guaranteeing payment of the Revolving Loans and Revolving Credit
Notes.
6. Future Transactions. Xxxxxx and Lenders hereby agree that the waivers and
modifications set forth herein shall apply only to the Remuda Ranch Sale
and the Xxxxxx Sale and shall not extend to any future asset sales without
the express written consent of Lenders.
7. Definition of Applicable LIBOR Rate Margin. Xxxxxx and Lenders hereby agree
that the definition of "Applicable LIBOR Rate Margin" as set forth in
Article I of the Credit Agreement shall be deleted in its entirety and
the following language shall be substituted in lieu of such definition:
"Applicable LIBOR Rate Margin" shall mean, with respect to all
outstanding Borrowings consisting of LIBOR Advances hereunder, the
following: commencing on March 31, 2001 and continuing until full payment
of the Revolving Credit Notes and termination of the Revolving Loan
Commitment, 3.0%.
8. Funded Debt to Consolidated EBITDA Covenant. Xxxxxx and Lenders agree that
a new Section 9.08(d) shall be added to the Credit Agreement as follows:
(d) Funded Debt to Consolidated EBITDA Ratio. Cause the Consolidated
Companies to maintain on a consolidated basis as of the last day of each
fiscal quarter, a maximum ratio of Funded Debt to Consolidated EBITDA,
calculated quarterly for the immediately preceding four fiscal quarters,
as shown below for each fiscal quarter indicated:
Fiscal Quarter Maximum Ratio
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March 31, 2002 3.5 to 1.0
June 30, 2002 3.25 to 1.0
September 30, 2002 and thereafter 3.0 to 1.0
9. Definition of Commitment Percentage. Xxxxxx and Lenders hereby agree that
the definition of "Commitment Percentage" as set forth in Article I of the
Credit Agreement shall be deleted in its entirety and the following
language shall be substituted in lieu of such definition:
"Commitment Percentage" shall mean, as of the Effective Date of the
Sixth Amendment, 37.5 basis points (.375%). If Funded Debt to Consolidated
EBITDA is greater than 2.50 to 1.00, as determined based on the fiscal
quarter of Xxxxxx ending December 31, 2001, the Commitment Percentage from
January 1, 2002 until full payment of the Revolving Credit Note and
termination of the Revolving Loan Commitment shall be 50.0 basis points
(.500%).
10. Definition of Consolidated EBITDA. Xxxxxx and Lenders hereby agree that the
following definition of Consolidated EBITDA shall be added to Article I of
the Credit Agreement:
"Consolidated EBITDA" shall mean, for the immediately preceding four
fiscal quarters of Xxxxxx, an amount equal to (a) the sum for such fiscal
period of its Consolidated Net Income (Loss) plus, to the extent subtracted
in determining such Consolidated Net Income (Loss), provisions for
(i) taxes based on income, (ii) Consolidated Interest Expense,
(iii) charges taken in conformity with FASB-106, (iv) depreciation and
(v) amortization, minus (b) any items of gain (or plus any items of loss)
that were (i) not realized in the ordinary course of business, and (ii) the
result of the sale of assets.
11. Definition of Consolidated EBIT. Xxxxxx and Lenders hereby agree that the
definition of "Consolidated EBIT" as set forth in Article I of the Credit
Agreement shall be amended by adding the following sentence at the end of
such definition:
For purposes of computing "Consolidated EBIT," interest expense
attributable to any discontinued operations of any of the Consolidated
Companies shall be included in the definition of "Consolidated Interest
Expense" and also shall be included in computing any items of loss that
were (A) not realized in the ordinary course of business, and (B) the
result of any sale of assets.
12. Definition of Consolidated Interest Expense. Xxxxxx and Lenders hereby
agree that the definition of "Consolidated Interest Expense" as set forth
in Article I of the Credit Agreement shall be deleted in its entirety and
the following language shall be substituted in-lieu of such definition:
"Consolidated Interest Expense" shall mean, for any fiscal period of
Xxxxxx, total interest expense of the Consolidated Companies (including,
without limitation, interest expense attributable to capitalized leases)
determined on a consolidated basis in accordance with GAAP, including any
interest expense either allocated to or attributable to discontinued
operations.
13. Definition of Final Maturity Date. Xxxxxx and Lenders hereby agree that
the definition of "Final Maturity Date" as set forth in Article I of the
Credit Agreement shall be deleted in its entirety and the following
language shall be substituted in lieu of such definition:
"Final Maturity Date" shall mean the earlier of (a) April 1, 2003,
and (b) the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and payable pursuant
to the provisions of Article XII.
14. Section 9.08(a). Xxxxxx and Lenders hereby agree that Section 9.08(a) of
the Credit Agreement shall be deleted in its entirety and substituted by
the following:
(a) Interest Coverage Ratio. Maintain as of the last day of each
fiscal quarter, commencing with the quarter ended March 31, 2001, a
minimum Interest Coverage Ratio, calculated for the immediately preceding
four fiscal quarters, as shown below for each fiscal quarter indicated:
Fiscal Quarter Minimum Ratio
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Through December 31, 2001 2.00 to 1.00
Thereafter 2.50 to 1.00
15. Fee to Lender. Lenders and Xxxxxx hereby agree that simultaneously with the
execution of this Sixth Amendment, Xxxxxx shall pay to Lenders a fee in the
amount of Two Hundred Thousand and No/100 Dollars ($200,000.00) in
consideration of Lenders' execution of this Sixth Amendment and the
agreements set forth herein. For purposes of this paragraph only, "Lenders"
shall include only those Lenders which vote in favor of this Sixth
Amendment. Such fee shall be divided pro rata among the Lenders based on
each Lender's share of the Revolving Loan Commitment.
16. Monthly Borrowing Base. By the fifteenth day of each month, Xxxxxx shall
provide to the Agent a monthly borrowing base certificate, submitted and
completed by its chief financial officer, in the form of Exhibit A attached
hereto.
17. Dividends. Xxxxxx and the Lenders acknowledge and agree that dividends for
the first quarter of fiscal year 2001 have been approved by Xxxxxx'x board
of directors and are scheduled to be paid in August 2001. Xxxxxx and
Lenders acknowledge and agree that senior management of Xxxxxx will
recommend to the board of directors that no additional dividends will be
paid by Xxxxxx to its shareholders unless and until Xxxxxx is sold.
18. Governing Law. This Sixth Amendment shall be governed by and construed in
accordance with the laws of the State of Tennessee.
19. Full Force and Effect. Except as specifically amended by this Sixth
Amendment, all other terms and provisions of the Credit Agreement shall
remain in full force and effect.
20. No Other Waiver. Except as expressly stated herein, no other waiver of any
term or provision of the Credit Agreement shall be inferred or implied.
IN WITNESS WHEREOF, the parties have caused this Sixth Amendment to be
duly executed as of the Effective Date.
XXXXXX XXXXXX, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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ACCEPTED AND AGREED TO:
SUNTRUST BANK, as Agent
By: /s/ Xxxxx X. Xxxxxx
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Title: Managing Director
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Acceptance Date: June 29, 2001
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SUNTRUST BANK
(Revolving Credit Amount: $26,000,000)
By: /s/ Xxxxx X. Xxxxxx
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Title: Managing Director
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Acceptance Date: June 29, 2001
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BANK OF AMERICA, N.A., a national banking association,
successor-in-interest to Nationsbank, N.A.
(Revolving Credit Amount: $20,000,000)
By: /s/ Xxxx Xxxxx
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Title: Senior Vice President
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Acceptance Date: June 29, 2001
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CREDITANSTALT CORPORATE FINANCE, INC.
(Revolving Credit Amount: $17,000,000)
By: /s/Xxxxxx Xxxxx
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Title: Vice President
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Acceptance Date: June 29, 2001
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NATIONAL CITY BANK, KENTUCKY
(Revolving Credit Amount: $17,000,000)
By: /s/ Xxxxx Xxxxx
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Title: Vice President
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Acceptance Date: June 29, 2001
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AMSOUTH BANK, an Alabama state bank,
successor-in-interest to First American National Bank
(Revolving Credit Amount: $20,000,000)
By: /s/ E.T. Xxxxxx II
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Title: Vice President
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Acceptance Date: June 29, 2001
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The undersigned join in the execution of this Sixth Amendment in order to
acknowledge their consent to the terms and provisions of this Sixth Amendment
and to confirm that the execution of this Sixth Amendment by the parties hereto
in no way affects the undersigneds' respective obligations under the Amended
and Restated Guaranty Agreement executed as of December 13, 1995 by Word,
Incorporated, a corporation organized and existing under the laws of the State
of Delaware, PPC, Inc., a corporation organized and existing under the laws of
the State of North Carolina, Editorial Caribe, Inc., a corporation organized
and existing under the laws of the State of Florida, Morningstar Radio Network,
Inc., a corporation organized and existing under the laws of the State of
Texas, Xxxxxx Word Ltd., a corporation organized and existing under the laws
of the United Kingdom, Word Communications, Ltd., a corporation organized and
existing under the laws of British Columbia, Canada, Word Direct, Inc., a
corporation organized and existing under the laws of the State of Texas, Word
Direct Partners, L.P., a limited partnership organized and existing under the
laws of the State of Texas, The X.X. Xxxxxx Company, a corporation organized
and existing under the laws of the State of Delaware, 855673 Ontario Limited,
a corporation organized and existing under the laws of Ontario, Canada, in
favor of SunTrust Bank, a Georgia state bank, successor-in-interest to SunTrust
Bank, Nashville, N.A., in its capacity as agent for banks and other lending
institutions parties to the Credit Agreement and each assignee thereof becoming
a "Lender" as provided therein. Each person executing this Amendment on behalf
of each of the undersigned is duly authorized to so execute and deliver this
Amendment on behalf of each of the undersigned entities.
WORTHY, INC. (f/k/a WORD, INCORPORATED)
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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EDITORIAL CARIBE, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Executive Vice President
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XXXXXX DIRECT MARKETING SERVICES, INC.
By: /s/ Xxx X. Xxxxxx
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Title: Treasurer and Secretary
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THE X. X. XXXXXX COMPANY
By: /s/ Xxx X. Xxxxxx
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Title: Treasurer and Secretary
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855763 ONTARIO LIMITED
(d/b/a XXXX DISTRIBUTORS)
By: /s/ Xxx X. Xxxxxx
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Title: Secretary
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