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EXHIBIT 4.4
THIRD AMENDMENT TO FIFTH
AMENDED AND RESTATED LOAN AGREEMENT
This Third Amendment (the "Amendment") dated as of February 11, 1999, is
between Bank of America National Trust and Savings Association (the "Bank") and
Xxxxxxxx Incorporated, a Delaware corporation (the "Borrower").
RECITALS
A. The Bank and the Borrower entered into a certain Fifth Amended and
Restated Loan Agreement dated as of June 23, 1997, as amended by a First
Amendment dated as of October 1, 1997 and a Second Amendment dated as of August
10, 1998 ("Second Amendment") (as amended, the "Agreement").
B. The Bank and the Borrower desire to further amend the Agreement.
AGREEMENT
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meaning given to them in the Agreement.
2. Amendments. The Agreement is hereby amended as follows:
2.1 Paragraph 1.1 of the Agreement is hereby amended as follows:
(a) The following defined terms are added to Paragraph 1.1 of the
agreement, in the appropriate alphabetical sequence, to read as follows:
"`Letter of Credit' means any standby letter of credit
issued by the Bank pursuant to Paragraph 2.2 of this Agreement,
either as originally issued or as the same may from time to time
be supplemented, modified, amended, renewed or extended.
see `Letter of Credit Obligations' means at any time the sum
of (a) the Outstanding Letters of Credit, plus (b) the amount of
all unreimbursed drawings under all Letters of Credit.
see `Outstanding Letters of Credit' means, as of any date of
determination, the aggregate face amount of all Letters of Credit
outstanding on such date minus the aggregate amount, if any, paid
in cash by Bank under such Letters of Credit that has been
reimbursed by Borrower."
(b) In the definition of "Cash Flow," the phrase commencing with
the word "minus" on line 8 thereof is amended to read as follows:
". . . minus cash income taxes paid during that fiscal year,
excluding cash income taxes not exceeding $1,500,000 associated
with the capital gains realized from Borrower's sale of the 3dbm
subsidiary during fiscal year 1998, . . ."
(c) The definition of "Line of Credit" is amended to read as
follows:
"`Line of Credit' means the credit facility for Loans and
Letters of Credit described in Article 2 of this Agreement."
(d) In the definition of "Loan Documents," the phrase "the
Letters of Credit" is added immediately following the phrase "the
Guaranty."
(e) The definition of "Maximum Amount" is amended to read as
follows:
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"`Maximum Amount' means, as of any date of determination
thereof, the Line Commitment minus the Letter of Credit
Obligations."
(f) The definition of "Term of this Agreement" is amended to read
as follows:
"`Term of this Agreement' means the period commencing on the
Restatement Date and ending on the last date upon which no Loan
or other Obligation of Borrower to Bank remains unpaid, no Letter
of Credit remains outstanding, and Bank has no further commitment
hereunder to make the Line of Credit available to Borrower."
(g) In the definition of "Total Funded Debt," commencing at line
11 thereof, the phrase beginning with the words "Contingent Obligations" is
amended to read as follows:
". . . Contingent Obligations under any guaranties of the
obligations of any Person other than Borrower's Subsidiaries or
Affiliates, Outstanding Letters of Credit (minus Cash and Cash
Equivalents of Borrower and its Subsidiaries),. . ."
(h) The definition of "Total Outstandings" is amended to read as
follows:
"`Total Outstandings' means, as of any date of
determination, the sum of (a) all outstanding Loans and (b) the
Letter of Credit Obligations."
2.2 Paragraph 2.2 of the Agreement is amended in its entirety to read
as follows:
"2.2 Letters of Credit. Subject to the terms and conditions
hereof, at any time and from time to time from the Restatement Date through
the Banking Day immediately preceding the Termination Date, Bank shall
issue such Letters of Credit as Borrower may request, provided that, upon
giving effect to such Letter of Credit (i) Total Outstandings shall not
exceed the Line Commitment, and (ii) the Letter of Credit Obligations shall
not exceed $1,000,000 for standby Letters of Credit. Unless Bank otherwise
consents in writing, the term of any standby Letter of Credit shall not
exceed 24 months, and shall in no event in any case extend more than 12
months beyond the Termination Date. No Letter of Credit shall be issued
except to the extent reasonably necessary in the ordinary course of the
business of Borrower or its Subsidiaries, and no Letter of Credit shall be
issued in any event to support any workers' compensation obligation of
Borrower or its Subsidiaries. Unless otherwise agreed to by Bank, the face
amount of any Letter of Credit shall not be less than $25,000.
Borrower agrees:
(a) if there is a default under this Agreement, to immediately
prepay and make Bank whole for any outstanding Letters of Credit.
(b) the issuance of any Letter of Credit and any amendment to a
Letter of Credit is subject to Bank's written approval and must be in form
and content satisfactory to Bank and in favor of a beneficiary acceptable
to Bank.
(c) to sign Bank's form Application and Agreement for Standby
Letter of Credit with respect to each Letter of Credit.
(d) to allow Bank to automatically charge its checking account
for applicable fees, discounts, and other charges.
(e) to pay Bank a non-refundable fee equal to 1.50% per annum of
the outstanding undrawn amount of each standby Letter of Credit, payable
annually in advance, calculated on the basis of the face amount outstanding
on the day the fee is calculated.
(f) to pay to Bank the amount of any payment made or to be made
by Bank under any Letter of Credit, upon Bank's demand; and, if Borrower
fails to make any such payment, Bank may, but is not required to, without
notice to or the consent of Borrower, make a
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Loan in an aggregate amount equal to the amount paid by Bank on the
relevant Letter of Credit, whether or not the same would cause Total
Outstandings to exceed the Line Commitment (without waiving the obligation
of Borrower to reduce Total Outstandings to an amount less than or equal to
the Line Commitment) and, for this purpose, the conditions precedent set
forth in Article 8 and the amount limitations set forth in Paragraph 2.1
shall not apply. The proceeds of such Loan shall be paid to Bank to
reimburse it for the payment made by it under the Letter of Credit.
(g) Subject to the next sentence, a Letter of Credit may be
requested pursuant to this Paragraph 2.2 for the account of Borrower or for
the account of any Subsidiary of Borrower. To the extent that a Subsidiary
of Borrower is the account party under any Letter of Credit, Borrower
hereby guarantees the payment and performance of such Subsidiary with
respect to any Obligation of such Subsidiary relating to such Letter of
Credit, and agrees to deliver to Bank, duly executed and in form and
content acceptable to Bank, a duly executed continuing guaranty further
evidencing the foregoing guaranty, together with a resolution or other
evidence of the corporate authority of Borrower to execute, perform and
deliver such continuing guaranty.
2.3 In Paragraph 4.13 of the Agreement, the phrase ", or in connection
with the issuance of any Letter of Credit," is added in the third line of
said paragraph immediately following the word "Loan."
2.4 Paragraph 5.9 of the Agreement is amended in its entirety to read
as follows:
"5.9 Use of Proceeds. Use the proceeds of the Line of Credit for
the following purposes only: (i) for working capital purposes of
Borrower and its Subsidiaries, (ii) to issue Letters of Credit, (iii)
for other lawful corporate purposes in the ordinary course of
business, and (iv) to finance Permitted Acquisitions."
2.5 Paragraph 6.3 of the Agreement is amended by deleting the period
at the end of the paragraph and adding the following:
"; provided, further, however, that the amount of the following
transactions shall not be included in calculating the amount of
redemptions or repurchases of shares permitted under clause (c) of
this Paragraph 6.3: common stock repurchases that (i) occurred prior
to January 1, 1999 or (ii) are financed exclusively from balance sheet
cash derived from sources other than Loans under this Agreement."
2.6 All references to Letters of Credit in Paragraph 9.2 of the
Agreement, previously deleted pursuant to Paragraph 2.9 of the Second
Amendment, are hereby fully reinstated.
2.7 All references to Letters of Credit in Paragraph 10.8 of the
Agreement, previously deleted pursuant to Paragraph 2.10 of the Second
Amendment, are hereby fully reinstated.
3. Representations and Warranties. When the Borrower signs this Amendment,
the Borrower represents and warrants to the Bank that: (a) there is no event
which is, or with notice or lapse of time or both would be, a default under the
Agreement, (b) the representations and warranties in the Agreement are true as
of the date of this Amendment as if made on the date of this Amendment, (c) this
Amendment is within the Borrower's powers, has been duly authorized, and does
not conflict with any of the Borrower's organizational papers, and (d) this
Amendment does not conflict with any law, agreement, or obligation by which the
Borrower is bound.
4. Conditions. This Amendment will be effective when the Bank receives the
following items, in form and content acceptable to the Bank:
4.1 An amendment fee in the amount of $5,000.00.
4.2 An Instrument of Joinder, duly executed by Xxxxxxxx Technologies,
Inc., together with corporate resolutions authorizing such guaranty by
joinder, certified by their respective Secretary or Assistant Secretary.
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4.3 Evidence that the execution, delivery and performance of this
Amendment by the Borrower has been duly authorized.
5. Effect of Amendment. Except as provided in this Amendment, all of the
terms and conditions of the Agreement shall remain in full force and effect.
This Amendment is executed as of the date stated at the beginning of this
Amendment.
Bank of America National Trust
and Savings Association
By: /s/ J. Xxxxxx Xxxxx
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J. Xxxxxx Xxxxx
Vice President
Xxxxxxxx Incorporated
By: /s/ X. X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President--Human Resources
and Assistant Secretary
By: /s/ X. X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President, Treasurer,
Secretary, and
Chief Financial Officer
