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EXHIBIT 10.23
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment, dated as of February 25, 2000, is
entered into by and between YOUNG AMERICA CORPORATION, a Minnesota corporation
(the "Borrower"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national
banking association (the "Bank").
RECITALS
The Borrower and the Bank have entered into a Credit Agreement
dated as of April 6, 1998, as amended by a First Amendment to Credit Agreement
dated as of November 13, 1999, and a Second Amendment to Credit Agreement dated
as of March 12, 1999 (as so amended, the "Credit Agreement").
The Borrower has requested that certain amendments be made to
the Credit Agreement, which the Bank is willing to make pursuant to the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements herein contained it is agreed as follows:
1. Defined Terms. Capitalized terms used in this Third
Amendment which are defined in the Credit Agreement shall have the same meanings
as defined therein, unless otherwise defined herein.
2. Amendment of Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by adding the following defined terms:
"'Compliance Certificate' means a certificate in
substantially the form of Exhibit B-1 (for monthly reporting ), Exhibit
B-2 (for quarterly reporting) or Exhibit B-3 (for annual reporting), as
is appropriate for the time period and which are attached to the Third
Amendment, or in such other form as the Borrower and the Bank may from
time to time agree upon in writing, executed by the chief financial
officer of the Borrower, stating (i) that any financial statements
delivered therewith have been prepared in accordance with GAAP, subject
(in the case of interim statements) to year-end adjustments and the
omission of footnotes, (ii) whether or not such officer has knowledge
of the occurrence of any Default or Event of Default hereunder not
theretofore reported and remedied and, if so, stating reasonable detail
the facts with respect thereto and (iii) all relevant facts in
reasonable detail to evidence, and the computations as to, whether or
not the Borrower is in compliance with the Financial Covenants."
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"'Third Amendment' means the Third Amendment to Credit
Agreement dated as of February 25, 2000, by and between the Borrower
and the Bank."
3. Amendment of Section 2.8(b). Section 2.8(b) of the Credit
Agreement is hereby amended in its entirety to read as follows:
"(b) Non-Usage Fees. The Borrower shall pay the Bank
a non-usage fee at the Non-Usage Rate (as defined herein) for the
calendar year ending December 31, 2000, on the average daily unused
amount of the Commitment Amount, payable monthly on the last day of
each calendar month. Any non-usage fee remaining unpaid on the
Commitment Termination Date shall be due and payable on that date. As
used in this subsection (b), the "Non-Usage Rate" shall mean one-half
of one percent (.500%) per annum; provided that if (i) the Bank has
received financial statements of the Borrower indicating, to the Bank's
satisfaction, compliance with all covenants stated in the Credit
Agreement through December 31, 2000 and (ii) no Default exists on
January 1, 2001, then from January 1, 2001 and thereafter, the
"Non-Usage Rate" shall mean three-eighths of one percent (.375%)."
4. Amendment of Section 5.9. Section 5.9 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Section 5.9 Interest Coverage Ratio. The Borrower
will at all times maintain its Interest Coverage Ratio, determined at
the end of each calendar quarter designated below, at not less than the
amount set forth below opposite the period in which such calendar
quarter ends:
Quarters Ending Ratio
--------------- -----
On March 31, 2000 1.00 to 1
On June 30, 2000 1.00 to 1
On September 30, 2000 1.10 to 1
On December 31, 2000 1.30 to 1
March 31, 2001 and thereafter 1.35 to 1"
4. Amendment of Section 6.12. Section 6.12 of the Credit
Agreement is hereby amended in its entirety to read as follows:
"Section 6.12 Capital Expenditures. For the year
ending December 31, 2000, the Borrower will not make Capital
Expenditures in excess of $4,000,000, regardless of whether such
expenditures are payable currently or in the future. Thereafter,
beginning with the calendar quarter ending on March 31, 2001, the
Borrower will not make Capital Expenditures during any calendar quarter
in excess of $500,000, regardless of whether such expenditures are
payable currently or in the future, provided that any unused portion of
permitted Capital Expenditures for a
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calendar quarter may be expended in the next succeeding calendar
quarter; provided, however, that in no event may Capital Expenditures
exceed $2,000,000 during any calendar year.
5. No Other Changes. Except as explicitly amended by this
Third Amendment, all of the terms and conditions of the Credit Agreement shall
remain in full force and effect and shall apply to any advance or letter of
credit thereunder.
6. Representations and Warranties. The Borrower hereby
represents and warrants to the Bank as follows:
(a) The Borrower has all requisite power and authority to
execute this Third Amendment and to perform all of its obligations hereunder,
and this Third Amendment has been duly executed and delivered by the Borrower
and constitutes the legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms.
(b) The execution, delivery and performance by the Borrower of
this Third Amendment has been duly authorized by all necessary corporate action
and does not (i) require any authorization, consent or approval by any
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, (ii) violate any provision of any law, rule or regulation
or of any order, writ, injunction or decree presently in effect, having
applicability to the Borrower, or the articles of incorporation or by-laws of
the Borrower, or (iii) result in a breach of or constitute a default under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which the Borrower is a party or by which it or its properties may
be bound or affected.
(c) All of the representations and warranties contained in
Article IV of the Credit Agreement are correct on and as of the date hereof as
though made on and as of such date, except to the extent that such
representations and warranties relate solely to an earlier date.
7. References. All references in the Credit Agreement to "this
Agreement" shall be deemed to refer to the Credit Agreement as amended hereby;
and any and all references in the Loan Documents to the Credit Agreement shall
be deemed to refer to the Credit Agreement as amended hereby.
8. No Waiver. The execution of this Third Amendment and any
documents related hereto shall not be deemed to be a waiver of any Default or
Event of Default under the Credit Agreement or breach, default or event of
default under any Loan Document or other document held by the Bank, whether or
not known to the Bank and whether or not existing on the date of this Third
Amendment.
9. Release. The Borrower hereby absolutely and unconditionally
releases and forever discharges the Bank, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns thereof, together with all of the present
and former directors, officers, agents and employees of any of
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the foregoing, from any and all claims, demands or causes of action of any kind,
nature or description, whether arising in law or equity or upon contract or tort
or under any state or federal law or otherwise, which the Borrower has had, now
has or has made claim to have against any such person for or by reason of any
act, omission, matter, cause or thing whatsoever arising from the beginning of
time to and including the date of this Amendment, whether such claims, demands
and causes of action are matured or unmatured or known or unknown.
10. Costs and Expenses. The Borrower hereby reaffirms its
agreement under the Credit Agreement to pay or reimburse the Bank on demand for
all costs and expenses incurred by the Bank in connection with the Credit
Agreement, the Loan Documents and the other instruments and documents to be
delivered hereunder and thereunder, including the reasonable fees and reasonable
out-of-pocket expenses of counsel for the Bank with respect thereto, whether
paid to outside counsel or reasonably allocated to the Bank by in-house counsel.
Without limiting the generality of the foregoing, the Borrower specifically
agrees to pay all fees and disbursements of counsel to the Bank for the services
performed by such counsel in connection with the preparation of this Third
Amendment and the documents and instruments incidental hereto.
11. Miscellaneous. This Third Amendment may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original and all of which counterparts, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed as of the date first written above.
NORWEST BANK MINNESOTA, YOUNG AMERICA CORPORATION
NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxxx
------------------------------------ --------------------------------------
Its Corporate Banking Officer Its Vice President Finance and CFO
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MONTHLY COMPLIANCE CERTIFICATE
Date: February 29, 2000
To: Norwest Bank Minnesota, National Association
Structured Finance Division
Norwest Center - 0xx Xxxxx
Xxxxx Xxxxxx and Marquette Avenue
MAC # N9305-051
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Re: Credit Agreement dated as of April 7, 1998
between Young America Corporation and
Norwest Bank Minnesota, National Association
In accordance with the requirements of the above referenced
agreement as subsequently amended (the "Credit Agreement"), attached are the
consolidated financial statements of Young America Corporation (the "Borrower")
as of and for the calendar month and year-to-date periods ended JANUARY 31, 2000
(the "Current Financials"). Capitalized terms used herein but not otherwise
defined shall have the same meanings as the meanings assigned to them in the
Credit Agreement.
I hereby certify that the Current Financials have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, subject to year-end audit adjustments.
Events of Default. (Check One):
X The undersigned does not have knowledge of the occurrence of a
Default or Event of Default under the Credit Agreement.
___ The undersigned has knowledge of the occurrence of a Default or
Event of Default under the Credit Agreement and attached hereto is a statement
of the facts with respect thereto.
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Young America Corporation
Attached hereto are all relevant facts in reasonable detail to evidence
the computations of the Financial Covenants referred to above. These
computations were prepared in accordance with generally accepted accounting
principles applied on a basis that is consistent with the accounting practices
reflected in the annual financial statements of the Borrower previously
delivered to you.
Young America Corporation
By _____________________________
Its VICE PRESIDENT FINANCE & CFO
____________________________
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Exhibit B-2 to
Third Amendment to Credit Agreement
(To be re-typed on Borrower's letterhead)
QUARTERLY COMPLIANCE CERTIFICATE
Date: ____________________
To: Norwest Bank Minnesota, National Association
Structured Finance Division
Norwest Center - 0xx Xxxxx
Xxxxx Xxxxxx and Marquette Avenue
MAC # N9305-051
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Re: Credit Agreement dated as of April 7, 1998
between Young America Corporation and
Norwest Bank Minnesota, National Association
In accordance with the requirements of the above referenced
agreement as subsequently amended (the "Credit Agreement"), attached are the
consolidated financial statements of Young America Corporation (the "Borrower")
as of and for the calendar quarter and year-to-date periods ended
_________________ (the "Current Financials"). Capitalized terms used herein but
not otherwise defined shall have the same meanings as the meanings assigned to
them in the Credit Agreement.
I hereby certify that the Current Financials have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, subject to year-end audit adjustments.
Events of Default. (Check One):
___ The undersigned does not have knowledge of the occurrence of a
Default or Event of Default under the Credit Agreement.
___ The undersigned has knowledge of the occurrence of a Default or
Event of Default under the Credit Agreement and attached hereto is a statement
of the facts with respect thereto.
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Young America Corporation
Financial Covenants. I hereby further certify as follows:
1. Interest Coverage Ratio. Pursuant to Section 5.9 of the Credit
Agreement, for the computation period ending on
_______________, the Interest Coverage Ratio of the Borrower
is _______________ to 1.00. The Credit Agreement requires that
such ratio be not less than _______________ to 1.00 as of such
computation date.
Minimum
Interest
Computation Date Coverage Ratio
--------------------------------------------------------- -----------------
March 31, 2000 1.00
June 30, 2000 1.00
September 30, 2000 1.10
December 31, 2000 1.30
March 31, 2001 and each calendar quarter thereafter 1.35
2. Capital Expenditures. Pursuant to Section 6.12 of the Credit
Agreement, for the computation period ending on
_______________, the cumulative Capital Expenditures of the
Borrower are_______________. The Credit Agreement requires
that such amount be not more than _______________ as of such
computation date.
Maximum
Cumulative
Capital
Computation Period Expenditures
--------------------------------------------------------- ------------------
January 1, 2000 through December 31, 2000 $ 4,000,000
January 1, 2001 through March 31, 2001 $ 500,000
January 1, 2001 through June 30, 2001 $ 1,000,000
January 1, 2001 through September 30, 2001 $ 1,500,000
January 1, 2001 through December 31, 2001 $ 2,000,000
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Young America Corporation
2. Current Ratio. Pursuant to Section 5.10 of the Credit
Agreement, for the computation date ending on _______________,
the Current Ratio of the Borrower is _______________ to 1.00.
The Credit Agreement requires that such ratio be not less than
_______________ to 1.00 as of such computation date.
Minimum Current
Computation Date Ratio
--------------------------------------------------------- -----------------
March 31, 2000 and each calendar quarter thereafter 1.10
Attached hereto are all relevant facts in reasonable detail to evidence
the computations of the Financial Covenants referred to above. These
computations were prepared in accordance with generally accepted accounting
principles applied on a basis that is consistent with the accounting practices
reflected in the annual financial statements of the Borrower previously
delivered to you.
Young America Corporation
By _________________________________
Its _______________________________
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Exhibit B-3 to
Third Amendment to Credit Agreement
(To be re-typed on Borrower's letterhead)
ANNUAL COMPLIANCE CERTIFICATE
Date: ____________________
To: Norwest Bank Minnesota, National Association
Structured Finance Division
Norwest Center - 0xx Xxxxx
Xxxxx Xxxxxx and Marquette Avenue
MAC # N9305-051
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Re: Credit Agreement dated as of April 7, 1998
between Young America Corporation and
Norwest Bank Minnesota, National Association.
In accordance with the requirements of the above referenced
agreement as subsequently amended (the "Credit Agreement"), attached are the
audited consolidated and consolidating financial statements of Young America
Corporation (the "Borrower") as of and for the calendar year ended
_________________ (the "Current Financials"). Capitalized terms used herein but
not otherwise defined shall have the same meanings as the meanings assigned to
them in the Credit Agreement.
I hereby certify that the Current Financials have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis.
Events of Default. (Check One):
___ The undersigned does not have knowledge of the occurrence of a
Default or Event of Default under the Credit Agreement.
___ The undersigned has knowledge of the occurrence of a Default or
Event of Default under the Credit Agreement and attached hereto is a statement
of the facts with respect thereto.
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Xxxxx Xxxxxxx Corporation
Financial Covenants. I hereby further certify as follows:
1. Interest Coverage Ratio. Pursuant to Section 5.9 of the Credit
Agreement, for the computation period ending on
_______________, the Interest Coverage Ratio of the Borrower
is _______________ to 1.00. The Credit Agreement requires that
such ratio be not less than _______________ to 1.00 as of such
computation date.
Minimum
Interest
Coverage Ratio
Computation Date
--------------------------------------------------------- -----------------
December 31, 2000 1.30
March 31, 2001 and each calendar quarter thereafter 1.35
2. Current Ratio. Pursuant to Section 5.10 of the Credit
Agreement, for the computation date ending on _______________,
the Current Ratio of the Borrower is _______________ to 1.00.
The Credit Agreement requires that such ratio be not less than
_______________ to 1.00 as of such computation date.
Minimum Current
Computation Date Ratio
--------------------------------------------------------- -----------------
March 31, 2000 and each calendar quarter thereafter 1.10
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Xxxxx Xxxxxxx Corporation
4. Capital Expenditures. Pursuant to Section 6.12 of the Credit
Agreement, for the computation period ending on
_______________, the cumulative Capital Expenditures of the
Borrower are_______________. The Credit Agreement requires
that such amount be not more than _______________ as of such
computation date.
Maximum
Cumulative
Capital
Computation Period Expenditures
--------------------------------------------------------- ------------------
January 1, 2000 through December 31, 2000 $ 4,000,000
January 1, 2001 through March 31, 2001 $ 500,000
January 1, 2001 through June 30, 2001 $ 1,000,000
January 1, 2001 through September 30, 2001 $ 1,500,000
January 1, 2001 through December 31, 2001 $ 2,000,000
Attached hereto are all relevant facts in reasonable detail to evidence
the computations of the Financial Covenants referred to above. These
computations were prepared in accordance with generally accepted accounting
principles applied on a basis that is consistent with the accounting practices
reflected in the annual financial statements of the Borrower previously
delivered to you.
Young America Corporation
By _________________________________
Its _______________________________
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