EXHIBIT 4.13
AMENDMENT NO. 7 TO CREDIT AGREEMENT
This Amendment No.7 to Credit Agreement (this "Amendment") is entered into
as of January 21, 2003, by and among Midas, Inc. and Midas International
Corporation (collectively, the "Borrowers" and individually, a "Borrower"), the
Lenders, Bank One, NA, as administrative agent (the "Administrative Agent"), and
Credit Suisse First Boston, as co-agent (the "Co-Agent").
RECITALS
A. The Borrowers, the lenders party thereto (the "Lenders"), the
Administrative Agent and the Co-Agent are party to that certain Credit Agreement
dated as of January 22, 1998 (as amended as of April 3, 1998, October 16, 1998,
February 8, 1999, November 9, 2001, October 15, 2002 and November 12, 2002, the
"Credit Agreement"). Unless otherwise specified herein, capitalized terms used
in this Amendment shall have the meanings ascribed to them by the Credit
Agreement.
B. The Borrowers have requested that the Administrative Agent, the
Co-Agent and the Lenders further amend the Credit Agreement.
C. The Administrative Agent, the Co-Agent and the Lenders are willing
to further amend the Credit Agreement on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other
good and valuable consideration, the parties hereto agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement shall be
amended as follows:
(a) Article I of the Credit Agreement is hereby amended by
restating the definition of "Facility Termination Date" as follows:
""Facility Termination Date" means March 31, 2003 or any earlier
date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof."
(b) Article I of the Credit Agreement is hereby amended, effective
as of December 27, 2002, by restating the definition of "EBITDA" as follows:
""EBITDA" means, as of the last day of any fiscal quarter,
Consolidated Net Income for the four fiscal quarters ending on such date,
plus all amounts deducted in the computation of such Consolidated Net
Income on account of (i) Consolidated Interest Expense, (ii) depreciation
and amortization expenses, (iii) non-cash charges, (iv) cash charges not
in excess of $31,000,000 relating to Midas's previously disclosed
restructuring plan, and (v) income, profit and franchise taxes, all
determined on a consolidated basis in accordance with GAAP.
All capitalized terms used in this definition shall have the meanings
given thereto in the Note Agreement, as in effect as of December 27, 2002
and as further amended by Amendment No.3 thereto."
(c) Section 6.18.2 of the Credit Agreement is hereby amended,
effective as of December 27, 2002, by deleting it in its entirety and
substituting therefor the following:
"6.18.2 Consolidated Indebtedness to EBITDA Ratio. As of December
28, 2002, maintain the ratio of Consolidated Indebtedness (as such
capitalized term is defined in the Note Agreement, as in effect as of
December 27, 2002 and as further amended by Amendment No. 3 thereto) to
EBITDA not to exceed 4.25:1.00."
(d) Notwithstanding any provision of the Credit Agreement to the
contrary, each Facility Letter of Credit may have, as an expiry date or a final
date for the payment of drafts presented thereunder, any date prior to April 1,
2003.
2. Representations and Warranties of the Borrowers. Each Borrower
represents and warrants that:
(a) The execution, delivery and performance by such Borrower of
this Amendment have been duly authorized by all necessary corporate action and
that this Amendment is a legal, valid and binding obligation of such Borrower
enforceable against such Borrower in accordance with its terms, except as the
enforcement thereof may be subject to (i) the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law);
(b) each of the representations and warranties contained in the
Credit Agreement is true and correct in all material respects on and as of the
date hereof as if made on the date hereof, except to the extent that any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date; and
(c) no Default or Unmatured Default has occurred and is
continuing.
3. Effectiveness.
(a) The amendments set forth in Section 1(a) and (d) of this
Amendment shall become effective as of the date first set forth above upon
satisfaction of the following conditions:
(i) Executed Amendment. Receipt by the Administrative Agent
of duly executed counterparts of this Amendment from the
Administrative Agent, the Borrowers and each Lender.
(ii) Amendment Fee. The Borrowers shall have paid to the
Administrative Agent, for the benefit of each of the Lenders, a
non-refundable amendment fee in an amount equal to sixty (60) basis
points on each Lender's
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Commitment, provided, that, so long as the refinancing of the
Obligations occurs on or before March 31, 2003, an amount equal to
forty (40) basis points times such Lender's Commitment shall be
credited against any fee payable to such Lender's Commitment shall
be credited against any fee payable to such Lenders in connection
with such refinancing.
(b) The amendments set fourth in Sections 1(b) and (c) of this
Amendment shall become effective upon (i) satisfaction of the conditions set
forth in Section 3(a) of this Amendment and (ii) the Administrative Agent's
receipt of an executed amendment to the Note Agreement reflecting modifications
to such Note Agreement corresponding to the amendments set forth in Section 1(b)
of this Amendment, in form and substance acceptable to the Administrative Agent;
provided that if such condition is not satisfied, then the remaining provisions
of this Amendment shall continue to be effective.
4. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically provided in this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and effect,
and the execution, delivery and effectiveness of this Amendment shall not
operate as a waiver or forbearance of any Default or Unmatured Default or any
right, power or remedy of the Administrative Agent or any Lender under the
Credit Agreement or any of the other Loan Documents, or constitute a consent,
waiver or modification with respect to any provision of the Credit Agreement or
any of the other Loan Documents, and each Borrower hereby fully ratifies and
affirms each Loan Document to which it is a party.
(b) Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement, "hereunder," "hereof" or words of
similar import shall mean and be a reference to the Credit Agreement as amended
hereby.
5. Costs and Expenses. The Borrowers hereby affirm their joint and
several obligation under Section 9.6 of the Credit Agreement to reimburse the
Administrative Agent for all reasonable costs, internal charges and
out-of-pocket expenses paid or incurred by the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Amendment, including but not limited to the reasonable fees and expenses of
attorneys for the Administrative Agent with respect thereto.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS)
OF THE STATE OF ILLINOIS BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purposes.
8. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original but all
such counterparts shall constitute one and the same instrument.
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9. Reaffirmation of Guaranty. Each of Midas and International hereby
reaffirms its obligations under Article XIII and Article XIV, respectively, of
the Credit Agreement.
10. Acknowledgement. Each Borrower hereby waives, discharges and forever
releases the Administrative Agent, the Arranger, the Co-Agent and each of the
Lenders, and each of their respective employees, officers, directors, attorneys,
stockholders and successors and assigns, from and of any and all claims, causes
of action, allegations or assertions that such Borrower has or may have had at
any time through (and including) the date of this Amendment, against any or all
of the foregoing, regardless of whether any such claims, causes of action,
allegations or assertions are known to any Borrower a whether any such claims,
causes of action, allegations or assertions arose as a result of the
Administrative Agent's, the Arranger's, the Co-Agent's or any Lender's actions
or omissions in connection with the Credit Agreement or the other Loan
Documents, including any amendments or modifications thereto, or otherwise.
[signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date and year first above written
MIDAS, INC.
By: /s/ [ILLEGIBLE]
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Its: SVP/CFO
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MIDAS INTERNATIONAL CORPORATION
By: [ILLEGIBLE]
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Its: SVP/CFO
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BANK ONE, NA, individually and as
Administrative Agent
By: /s/ Xxxxxxxxxx X Xxxxxxx
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Its: SENIOR VICE PRESIDENT
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CREDIT SUISSE FIRST BOSTON,
individually and as Co-Agent
By: /s/ [ILLEGIBLE]
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Its: MANAGING DIRECTOR
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By: /s/ [ILLEGIBLE]
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Its: DIRECTOR
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ABN AMRO BANK N.V.
By: /s/ Xxxxxx X. Xxxxxxxx
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Its: GROUP SENIOR VICE PRESIDENT
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By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: GROUP VICE PRESIDENT
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Signature Page to Amendment
No. 7 to Credit Agreement
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: MANAGING DIRECTOR
CENTRAL REGION MANAGER
By : /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: VICE PRESIDENT
MIZUHO CORPORATE BANK, LTD.
By : /s/ Xxxx X. Xxxxx
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Its: SENIOR VICE PRESIDENT
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THE NORTHERN TRUST COMPANY
By : /s/ X.X. Xxxxxx
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Its: SENIOR VICE PRESIDENT
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U.S. BANK NATIONAL ASSOCIATION
By : /s/ [ILLEGIBLE]
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Its: VICE PRESIDENT
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Signature Page to Amendment
No. 7 to Credit Agreement
