Exhibit 4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
This first Amendment to CREDIT Agreement dated as of October 19, 2000
(the "Amendment") by and among XXXX X. XXXXXXX COMPANY, a Georgia corporation
(the "Borrower"), the several banks and other financial institutions from time
to time party hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the "Administrative Agent") and as Lead
Arranger, WACHOVIA BANK, N.A., as Syndication Agent (the "Syndication Agent"),
BANK OF AMERICA, N.A., as Documentation Agent (the "Documentation Agent"), FLEET
NATIONAL BANK, as Senior Managing Agent, BNP PARIBAS, as Senior Managing Agent
and FIRST UNION NATIONAL BANK, as Senior Managing Agent (each a "Senior Managing
Agent").
WHEREAS, the Borrower, the Agent and the Lenders are parties to that
certain Credit Agreement dated as of August 23, 2000, by and among the Borrower,
the Administrative Agent and the other Lenders (the "Credit Agreement"; all
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement), pursuant to which the Lenders have made available
certain financial accommodations to the Borrower;
WHEREAS, the Aggregate Revolving Commitment on and as of the date
hereof equals $300,000,000; and
WHEREAS, the parties wish to amend the Credit Agreement to, among other
things, (i) provide a mechanism to accommodate increases from time to time to
the Aggregate Revolving Commitment and (ii) modify Section 7.4(d) of the Credit
Agreement, but only on the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto agree as follows:
Section 1. Amendments.
----------
(a) The Credit Agreement is hereby amended by deleting the definition
of "Commitment Termination Date" from Section 1.01 and substituting in lieu
thereof the following new definition of "Commitment Termination Date":
"Commitment Termination Date" shall mean the earliest
of (i) August 23, 2004, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.8 and (iii)
the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and
payable (whether by acceleration or otherwise)."
(b) The Credit Agreement is hereby amended by deleting Section 2.2(b)
and substituting in lieu thereof the following new Section 2.2(b):
-1-
"(b) The Aggregate Revolving Commitment may be increased from
time to time following additional syndication to banks and
other financial institutions acceptable to the Borrower and
the Administrative Agent; provided that the Aggregate
Revolving Commitment shall not exceed $325,000,000. In order
to effectuate such increase in the Aggregate Revolving
Commitment, the Borrower, the Administrative Agent and banks
and financial institutions who will become a Lender hereunder
(a "New Lender") shall execute and deliver a Lender Addition
Agreement, substantially in the form of Exhibit 2.2(b)
attached hereto (a "Lender Addition Agreement"). The increased
Aggregate Revolving Commitment as well as the Revolving
Commitment for the New Lender shall be set forth in the Lender
Addition Agreement. As a condition to the effectiveness of
such Lender Addition Agreement, the Borrower shall deliver to
the Administrative Agent a Revolving Credit Note payable to
the New Lender in the face amount of the New Lender's
Revolving Commitment."
(c) The Credit Agreement is hereby further amended by deleting Section
7.4(i) and substituting in lieu thereof the following new Section 7.4(i):
"(i) (i) Investments which are received by the
Borrower or any Subsidiary in consideration of any sale or
other disposition of assets permitted by Sections 7.6(d) and
(e) hereof and (ii) an Investment consisting of a $5,000,000
loan to Netzee Inc. in connection with the sale or other
disposition of assets to Netzee Inc. permitted by Sections
7.6(d) and (e) hereof; provided, that the terms of such loan
shall require immediate repayment in the event that the sale
of assets to Netzee Inc. is not consummated; and"
(d) The Credit Agreement is hereby further amended by adding the
following sentence to end of Section 7.4:
"In calculating the amount of an Investment under Section
7.4(d)(i), the amount of an Investment shall be deemed to be
the amount of the Investment as of the date the Company or any
Subsidiary acquires or makes such Investment."
(e) The Credit Agreement is hereby further amended by adding the
following new Section 10.13 to end of Article X:
-2-
"Section 10.13 No Duties Imposed Upon Syndication
Agent or Documentation Agent. None of the Persons identified
as a "Syndication Agent", "Senior Managing Agent" or
"Documentation Agent" under this Agreement shall have any
right, power, obligation, liability, responsibility or duty
under this Agreement other than, if such Person is a Lender,
those applicable to all Lenders as such. Without limiting the
foregoing, none of the Persons identified as a "Syndication
Agent", "Senior Managing Agent" or "Documentation Agent" under
this Agreement shall have or be deemed to have any fiduciary
duty to or fiduciary relationship with any Lender. In addition
to the agreements set forth in Section 10.13, each of the
Lenders acknowledges that it has not relied, and will not
rely, on any of the Persons so identified in deciding to enter
into this Agreement or in taking or not taking action
hereunder."
Section 2. Acknowledgment of Lenders' Commitments.
--------------------------------------
The parties hereto agree that the transactions contemplated by each
Assignment and Acceptance and Lender Addition Agreement executed as of the date
hereof shall be deemed to be effective immediately prior to the transactions
contemplated hereby. After giving effect thereto, the amount of each Lender's
Revolving Commitment is set forth on the signature pages hereto.
Section 3. Benefits of Loan Documents.
--------------------------
Each reference to the Credit Agreement in any of the Loan Documents
shall be deemed to be a reference to the Credit Agreement as amended by this
Amendment, and as the Credit Agreement may from time to time be further amended,
supplemented, restated or otherwise modified in the future by one or more other
written amendments or supplemental or modification agreements entered into
pursuant to the applicable provisions thereof.
Section 4. Conditions to Effectiveness of Amendment. The effectiveness
of this Amendment is subject to the condition precedent that each of the
following be received by the Administrative Agent (unless otherwise waived in
writing by the Administrative Agent), each of which shall be satisfactory in
form and substance to the Administrative Agent:
(a) this Amendment executed by each of the parties hereto;
(b) the Acknowledgment and Consent of the Guarantors, substantially in
the form of Exhibit A hereto, executed by each of the Guarantors (as defined
below)(the "Acknowledgment"); and
(c) such other approvals, opinions or documents as the Administrative
Agent may reasonably request.
-3-
Section 5. Representations. The Borrower represents to the Lenders that:
---------------
(a) The execution, delivery and performance by the Borrower of this
Amendment, (a) does not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect or where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding on the Borrower or any of its
Subsidiaries or any of its assets or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries, except Liens (if any) created under the
Loan Documents.
(b) The execution, delivery and performance by the Borrower of this
Amendment is within the Borrower's organizational powers and has been duly
authorized by all necessary organizational, and if required, stockholder action.
This Amendment has been duly executed and delivered by the Borrower, and
constitutes valid and binding obligations of the Borrower, enforceable against
it in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
Section 6. Reaffirmation. The Borrower hereby repeats and reaffirms all
representations and warranties made by the Borrower in the Credit Agreement and
the other Loan Documents to which it is a party as of the date hereof with the
same force and effect as if such representations and warranties were set forth
in this Amendment in full except to the extent such representations expressly
relate to an earlier date or have been updated to the extent permitted by the
Credit Agreement.
Section 7. Reaffirmation and Representations by Guarantors.
By execution of the Acknowledgment, each Subsidiary that has executed a
Subsidiary Guarantee Agreement (a "Guarantor"):
(a) reaffirms its continuing obligations to the Administrative Agent
and the Lenders under the Subsidiary Guarantee Agreement to which it is a party,
and agrees that the transactions contemplated by this Amendment shall not in any
way affect the validity and enforceability of such Subsidiary Guarantee
Agreement, or reduce, impair or discharge the obligations of such Guarantor
thereunder; and
(b) represents to the Lenders that:
(i) such Guarantor has the right and power, and has taken all necessary
action to authorize it, to execute and deliver the Acknowledgment, and to
perform the Acknowledgment in accordance with its terms. The Acknowledgment has
been duly executed and delivered by the duly authorized officers of each
Guarantor, and is a legal, valid and binding obligation of each Guarantor
enforceable against each Guarantor in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity; and
-4-
(ii) the execution, delivery and performance by such Guarantor of the
Acknowledgment, (a) do not require any consent or approval of, registration or
filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect or where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of such
Guarantor or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, material agreement or other material
instrument binding on such Guarantor or any of its assets or give rise to a
right thereunder to require any payment to be made by such Guarantor and (d)
will not result in the creation or imposition of any Lien on any asset of such
Guarantor, except Liens (if any) created under the Loan Documents.
Section 8. Benefits. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
Section 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
Section 10. Effect. Except as expressly herein amended, the terms
and conditions of the Credit Agreement shall remain in full force and effect.
Section 11. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an original and
shall be binding upon all parties.
[Signatures on following page]
-5-
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Credit Agreement to be executed by their authorized officers all as of the day
and year first above written.
XXXX X. XXXXXXX COMPANY
By___________________________
Name: Xxxx Xxxxxx
Title: Treasurer
[SEAL]
SUNTRUST BANK, as Administrative Agent, as Lead Arranger,
as Issuing Bank, as Swingline Lender and as a Lender
By___________________________
Name: Xxxxx Xxxxxx
Title: Managing Director
Revolving Commitment: $50,000,000
WACHOVIA BANK, N.A., as Syndication Agent and as a Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $50,000,000
-6-
BANK OF AMERICA, N.A., as Documentation Agent and
as a Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $50,000,000
FLEET NATIONAL BANK, as Senior Managing Agent and as a
Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $35,000,000
BNP PARIBAS, as Senior Managing Agent and as a Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $35,000,000
-7-
FIRST UNION NATIONAL BANK, as Senior Managing Agent and
as a Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $50,000,000
THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $15,000,000
FIFTH THIRD BANCORP, as a Lender
By:
------------------------------------------------
Name:
-----------------------------------------------
Title:
---------------------------------------------
Revolving Commitment: $15,000,000
-8-
ACKNOWLEDGMENT AND CONSENT OF SUBSIDIARY GUARANTORS
Each of the undersigned Subsidiaries hereby (i) acknowledges receipt of
the foregoing First Amendment to Credit Agreement by and among Xxxx X. Xxxxxxx
Company, the Lenders under the Credit Agreement (the "Lenders") and SunTrust
Bank, Atlanta, in its capacity as administrative agent for the Lenders (the
"Administrative Agent") (the "Amendment"), (ii) consents to the Amendment, (iii)
agrees and acknowledges to the terms thereof including, without limitation, the
representations and agreements of the each of the undersigned set forth in
Section 7 of the Amendment, and (iv) restates and affirms its respective
obligations under its Subsidiary Guarantee Agreement previously executed and
delivered in favor of the Agent (for the ratable benefit of the Lenders) without
defense, counterclaim or set-off.
-9-
IN WITNESS WHEREOF, each of the undersigned Subsidiaries has executed
this Acknowledgment and Consent of Subsidiary Guarantors this ___ day of
October, 2000.
XXXXXXX INTERNATIONAL COMPANY
XXXXXXX DATAPRINT, INC.
XXXX X. XXXXXXX COMPANY OF
PUERTO RICO
SCANTRON CORPORATION
SCANTRON QUALITY COMPUTERS, INC.
THE CHECK STORE, INC.
CENTRALIA HOLDING CORP.
VENUS FLYTRAP CORPORATION
CONCENTREX INSURANCE GROUP, INC.
MONEYSCAPE HOLDINGS, INC.
ULTRADATA CORPORATION
CONCENTREX INCORPORATED
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
MECA SOFTWARE, L.L.C.
By:
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Manager
-10-
