EXHIBIT 10.qq
THIRD AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
THIS THIRD AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (the "Third Amendment")
dated as of May 23, 1997 is to that Credit Agreement dated as of July 18, 1995
(as amended and modified hereby and as further amended and modified from time to
time hereafter, the "Credit Agreement") by and among MACSAVER FINANCIAL
SERVICES, INC., a Delaware corporation (the "Borrower"), XXXXXX-XXXXXX COMPANY,
a Virginia corporation (the "Company"), the Lenders, WACHOVIA BANK OF GEORGIA,
N.A., as Administrative Agent, NATIONSBANK, N.A., as Documentation Agent, and
CRESTAR BANK and FIRST UNION NATIONAL BANK OF VIRGINIA, as Co-Agents. Terms used
but not otherwise defined herein shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, the Lenders have, pursuant to the terms of the Credit Agreement, made
available to the Borrower a $400,000,000 credit facility for the purposes set
forth therein;
WHEREAS, the Borrower has requested modification of a financial covenant; and
WHEREAS, the requested modifications require the consent of the Required
Lenders;
WHEREAS, the Required Lenders for and on behalf of the Lenders have agreed to
the requested changes on the terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
A. The financial covenant in Section 7.9(b) of the Credit Agreement relating to
the Fixed Charge Coverage Ratio is amended to read as follows:
(a) Fixed Charge Coverage Ratio. As of the end of each fiscal quarter, there
shall be maintained a Fixed Charge Coverage Ratio of at least:
For fiscal quarters ending
prior to May 31, 1996 1.5:1.0
From the fiscal quarter ending
May 31, 1996 through the
fiscal quarter ending
February 28, 1998 1.25:1.0
For fiscal quarters ending after
February 28, 1998 1.5:1.0
B. The Company and the Borrower hereby certify that as of the date hereof:
(i) the representations and warranties contained in the Credit Agreement (other
than those which expressly relate to a prior period) are true and correct in all
material respects; and
(ii) No Default or Event of Default currently exists and is continuing.
C. The effectiveness of this Third Amendment is conditioned upon receipt by the
Administrative Agent of the following:
(i) copies of this Third Amendment executed by the Company, the Borrower and
the Required Lenders; and
(ii) an amendment fee of $200,000 (representing 5 b.p. on the total aggregate
Revolving Committed Amount) for the ratable benefit of the Lenders.
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D. The Company joins in the execution of this Third Amendment for purposes,
among other things, of acknowledging and consenting to the terms of this Third
Amendment and reaffirming its guaranty obligations under the Credit Agreement,
as amended hereby.
E. The Company and the Borrower will execute such additional documents as are
reasonably requested by the Administrative Agent to reflect the terms and
conditions of this Third Amendment.
F. Except as modified hereby, all of the terms and provisions of the Credit
Agreement (and Exhibits) remain in full force and effect.
G. The Company and the Borrower agree to pay all reasonable costs and expenses
in connection with the preparation, execution and delivery of this Third
Amendment, including without limitation the reasonable fees and expenses of
Xxxxx & Xxx Xxxxx, PLLC.
H. 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 it shall
not be necessary in making proof of this Third Amendment to produce or account
for more than one such counterpart.
I. This Third Amendment and the Credit Agreement, as amended hereby, shall be
deemed to be contracts made under, and for all purposes shall be construed in
accordance with, the laws of the State of North Carolina.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Third Amendment to Credit Agreement to be duly executed under seal and delivered
as of the date and year first above written.
BORROWER:
MACSAVER FINANCIAL SERVICES, INC.
a Delaware corporation
By /s/ X.X. Xxxxxxxxx
Dossi X. Xxxxxxxxx,
Vice President
COMPANY:
XXXXXX-XXXXXX COMPANY,
a Virginia corporation
By /s/ Xxx X. Xxxxxxx
Xxx X. Xxxxxxx,
Senior Vice President - Finance
ADMINISTRATIVE AGENT:
WACHOVIA BANK OF GEORGIA, N.A.,
in its capacity as Administrative Agent
By /s/ [signature illegible]
Title Assistant Vice President
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DOCUMENTATION
AGENT: NATIONSBANK, N.A.,
in its capacity as Documentation Agent
By /s/ [signature illegible]
Title Executive Vice President
CO-AGENTS: CRESTAR BANK,
in its capacity as Co-Agent
By /s/ [signature illegible]
Title Senior Vice President
FIRST UNION NATIONAL BANK OF VIRGINIA,
in its capacity as Co-Agent
By /s/ [signature illegible]
Title Senior Vice President
LENDERS: WACHOVIA BANK OF NORTH CAROLINA, N.A.
By /s/ [signature illegible]
Title Banking Officer
NATIONSBANK, N.A.
By /s/ [signature illegible]
Title Executive Vice President
CRESTAR BANK
By /s/ [signature illegible]
Title Senior Vice President
FIRST UNION NATIONAL BANK OF VIRGINIA
By /s/ [signature illegible]
Title Senior Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By /s/ [signature illegible]
Title Managing Director
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THE FIRST NATIONAL BANK OF CHICAGO
By /s/ [signature illegible]
Title Managing Director
TRUST COMPANY BANK
By /s/ [signature illegible]
Title Vice President
By /s/ [signature illegible]
Title Vice President
SIGNET BANK
(formerly known as Signet Bank/Virginia)
By /s/ [signature illegible]
Title Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ [signature illegible]
Title Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxxxx-Xxxx Xxxxxxx
Title Senior Vice President
CREDIT LYONNAIS ATLANTA AGENCY
By /s/ Xxxxxxx-Xxxx Xxxxxxx
Title Senior Vice President
THE FUJI BANK, LIMITED - NEW YORK BRANCH
By
Title
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THE BOATMEN'S NATIONAL BANK OF ST. LOUIS
By /s/ [signature illegible]
Title Executive Vice President
THE BANK OF TOKYO - MITSUBISHI LTD. -
ATLANTA AGENCY
By /s/ [signature illegible]
Title Vice President
THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By /s/ [signature illegible]
Title Joint General Manager
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