Exhibit 4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of the 2nd day of
August, 2000 (this "Amendment"), is made among XXXXXX NORTH AMERICA, INC., a
Virginia corporation formerly known as Xxxxxx Corporation (the "Borrower"),
XXXXXX CORPORATION, a Virginia corporation formerly known as Xxxxxx Holdings,
Inc. ("Holdings"), the banks and financial institutions listed on the signature
pages thereof or that became parties thereto after the date thereof
(collectively the "Lenders"), and FIRST UNION NATIONAL BANK (the "Agent").
RECITALS
A. The Borrower, Holdings, the Agent and the Lenders are parties to a
Credit Agreement, dated as of December 21, 1999 (as twice amended by Amendments,
dated February 4, 2000 and March 17, 2000, the "Credit Agreement"), providing
for the availability of a revolving credit facility to the Borrower upon the
terms and conditions set forth therein. Capitalized terms used herein without
definition shall have the meanings given to them in the Credit Agreement.
B. The Borrower has requested that the Agent and the Lenders agree to
amend the Credit Agreement to make certain changes to the required levels of the
Interest Coverage Ratio. The Agent and the Lenders have agreed to effect such
amendments upon the terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
AMENDMENT
1.1 Interest Coverage Ratio. Section 6.2 of the Credit Agreement is here
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by amended by and restated as follows:
6.2 Interest Coverage Ratio. The Parent will not permit the
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Interest Coverage Ratio, as of the last day of any fiscal quarter
ending on a date set forth below, to be less than the ratio set forth
below opposite such date:
Date Minimum Ratio
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September 30, 2000 2.65 to 1.00
December 31, 2000 2.65 to 1.00
March 31, 2001 2.85 to 1.00
June 30, 2001 3.10 to 1.00
Thereafter 3.25 to 1.00
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower and Holdings hereby represent and warrant to the Agent and the
Lenders as follows:
2.1 Representations and Warranties. After giving effect to this Amendment,
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each of the representations and warranties of the Borrower and Holdings
contained in Sections 4.1 and 4.3 the Credit Agreement is true and correct on
and as of the date hereof with the same effect as if made on and as of the date
hereof (except to the extent any such representation or warranty is expressly
stated to have been made as of a specific date, in which case such
representation or warranty is true and correct as of such date).
2.2 No Default. After giving effect to this Amendment, no Default or Event
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of Default has occurred and is continuing.
ARTICLE III
ACKNOWLEDGEMENT
Holdings hereby acknowledges that the Borrower, the Agent and the Lenders
have agreed, as provided herein, to amend the Credit Agreement as provided
herein. Holdings hereby approves and consents to the transactions contemplated
by this Amendment and agrees that its obligations under Article IX of the Credit
Agreement and the other Credit Documents to which it is a party shall not be
diminished as a result of the execution of this Amendment. This acknowledgement
by Holdings is made and delivered to induce the Agent and the Lenders to enter
into this Amendment, and Holdings acknowledges that the Agent and the Lenders
would not enter into this Amendment in the absence of the acknowledgements
contained herein.
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ARTICLE IV
MISCELLANEOUS
4.1 Effect of Amendment. From and after the effective date of the
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amendments to the Credit Agreement set forth herein, all references to the
Credit Agreement set forth in any other Credit Document or other agreement or
instrument shall, unless otherwise specifically provided, be references to the
Credit Agreement as amended by this Amendment and as may be further amended,
modified, restated or supplemented from time to time. This Amendment is limited
as specified and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement except as
expressly set forth herein. Except as expressly amended hereby, the Credit
Agreement shall remain in full force and effect in accordance with its terms.
4.2 Governing Law. This Amendment shall be governed by and construed and
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enforced in accordance with the laws of the Commonwealth of Virginia (without
regard to the conflicts of law provisions thereof).
4.3 Expenses. The Borrower and Holdings agree to pay upon demand all
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reasonable out-of-pocket costs and expenses of the Agent (including, without
limitation, the reasonable fees and expenses of counsel to the Agent) in
connection with the preparation, negotiation, execution and delivery of this
Amendment and the other Credit Documents delivered in connection herewith.
4.4 Severability. To the extent any provision of this Amendment is
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prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in any such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining
provisions of this Amendment in any jurisdiction.
4.5 Successors and Assigns. This Amendment shall be binding upon, inure to
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the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
4.6 Construction. The headings of the various sections and subsections of
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this Amendment have been inserted for convenience only and shall not in any way
affect the meaning or construction of any of the provisions hereof.
4.7 Counterparts. This Amendment may be executed in any number of
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counterparts and by different parties hereto on separate counterparts, each of
which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
XXXXXX NORTH AMERICA, INC. (formerly known as
Xxxxxx Corporation)
By: _______________________________
Title: _______________________________
XXXXXX CORPORATION (formerly known as Xxxxxx
Holdings, Inc.)
By: _______________________________
Title: _______________________________
FIRST UNION NATIONAL BANK, as Agent and as a
Lender
By: _______________________________
Title: _______________________________
BANK ONE, NA
By: _______________________________
Title: _______________________________
BARCLAYS BANK PLC
By: _______________________________
Title: _______________________________
0
XXX XXXXX XXXXXXXXX XXXX
By: _______________________________
Title: _______________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: _______________________________
Title: _______________________________
SUNTRUST BANK
By: _______________________________
Title: _______________________________
FLEET NATIONAL BANK
By: _______________________________
Title: _______________________________
THE NORTHERN TRUST COMPANY
By: _______________________________
Title: _______________________________
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