AMENDMENT TO CREDIT AGREEMENT
THIS AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is made as of this
_____ day of November, 1998, by and between THE XXXX GROUP INC., a Louisiana
corporation, MERCANTILE BUSINESS CREDIT INC., a Missouri corporation, CITY
NATIONAL BANK OF BATON ROUGE, a national bank, UNION PLANTERS BANK N.A., a
national banking association, and HIBERNIA NATIONAL BANK, a national bank
(collectively, the "Lenders"), and MERCANTILE BUSINESS CREDIT INC., a Missouri
corporation, as agent for Lenders (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, Borrower, Agent and Lenders have heretofore entered into that
certain Credit Agreement dated as of May 15, 1998 (the "Agreement"); and
WHEREAS, Borrower desires to amend the Agreement in the manner hereinafter
set forth.
NOW, THEREFORE, in consideration of the above premises and for other
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby agree as follows:
1. The definition of "Consolidated Net Operating Cash Flow" in Section 1 of
the Agreement is hereby deleted in its entirety.
2. Section 7.1(i)(i) of the Agreement is hereby deleted in its entirety,
and in its place shall be substituted the following:
Debt Service Coverage Ratio. Maintain on a consolidated basis as of each
fiscal quarter-end during the Term hereof a ratio of Consolidated EBITDA to
Consolidated Debt Service, each determined for the 12-month period ending as of
each such fiscal quarter-end, of not less than 2.50 to 1.0 for each fiscal
quarter ending during the Term hereof;
3. Exhibit D to the Credit Agreement is hereby deleted in its entirety, and
in its place shall be substituted Exhibit D hereto.
4. Borrower hereby agrees to reimburse Agent and Lenders upon demand for
all out-of-pocket costs and expenses (including reasonable attorneys' fees and
expenses) incurred by Agent and Lenders in the preparation, negotiation and
execution of this Amendment and all other documents, instruments and agreements
relating to this amendment of Borrower's existing credit facilities with Lender.
All of the obligations of Borrower under this Paragraph 4 shall survive
termination of the Agreement.
5. Borrower hereby represents and warrants to Agent and Lenders that:
(a) the execution, delivery and performance by Borrower of this Amendment
are within the corporate powers of Borrower, have been duly authorized by all
necessary corporate action and require no action by or in respect of, or filing
with, any governmental or regulatory body, agency or official. The execution,
delivery and performance by Borrower of this Amendment do not conflict with, or
result in a breach of the terms, conditions or provisions of, or constitute a
default under or result in any violation of, and the Borrower is not now in
default under or in violation of, the terms of its Articles of Incorporation or
Bylaws, any applicable law, any rule, regulation, order, writ, judgment or
decree of any court or governmental or regulatory agency or instrumentality, or
any agreement or instrument to which Borrower is a party or by which Borrower is
bound or to which Borrower is subject;
(b) this Amendment has been duly executed and delivered and constitutes the
legal, valid and binding obligation of Borrower enforceable in accordance with
its terms; and
(c) as of the date hereof, all of the covenants, representations and
warranties of Borrower set forth in the Agreement are true and correct and no
"Event of Default" (as defined therein) under or within the meaning of the
Agreement has occurred and is continuing.
6. Borrower hereby releases Agent and Lenders and their successors,
assigns, directors, officers, agents, employees, representatives and attorneys
from any and all claims, demands, causes of action, liabilities or damages,
whether now existing or hereafter arising or contingent or noncontingent, or
actions in law or equity of any type or matter, relating to or in connection
with any statements, agreements, action or inaction on the part of Agent or
Lenders at any time prior to the execution of this Amendment, with respect to
Borrower or the Agreement.
7. The Agreement, as hereby amended, and any other agreements executed in
connection therewith, are and shall remain the binding obligations of Borrower,
and all of the provisions, terms, stipulations, conditions, covenants and powers
contained therein shall stand and remain in full force and effect, except only
as the same are herein and hereby specifically varied or amended, and the same
are hereby ratified and confirmed.
8. All references in the Agreement to "this Agreement" and any other
references of similar import shall henceforth mean the Agreement as amended by
this Amendment. All capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed to them in the Agreement, as
amended by this Amendment.
9. This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that Borrower
may not assign, transfer or delegate any of its rights or obligations hereunder.
10. This Amendment shall be governed by and construed in accordance with
the internal laws of the State of Missouri.
11. In the event of any inconsistency or conflict between this Amendment
and the Agreement, the terms, provisions and conditions of this Amendment shall
govern and control.
12. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND OR
RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER, AGENT AND LENDERS
FROM ANY MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER,
AGENT AND LENDERS COVERING SUCH MATTERS ARE CONTAINED IN THE AGREEMENT, AS
HEREBY AMENDED, WHICH CONSTITUTES A COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENTS BETWEEN BORROWER, AGENT AND LENDERS EXCEPT AS BORROWER, AGENT AND
LENDERS MAY LATER AGREE IN WRITING TO MODIFY. THE AGREEMENT, AS HEREBY AMENDED,
EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES HERETO AND
SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS (ORAL OR WRITTEN) RELATING TO
THE SUBJECT MATTER HEREOF.
13. This Amendment is made solely for the benefit of Borrower Agent and
Lenders as set forth herein, and is not intended to be relied upon or enforced
by any other person or entity.
14. This Amendment may be executed in one or more counterparts by the
parties hereto, and shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first written above on this _____ day of November, 1998.
Borrower:
THE XXXX GROUP INC.
By: _________________________________________________
Title:__________________________________________________
Agent:
MERCANTILE BUSINESS CREDIT INC.
By:
Title:
Lenders:
Revolving Credit Commitment: MERCANTILE BUSINESS CREDIT INC.
$31,250,000.00
By:
Title:
Revolving Credit Commitment: CITY NATIONAL BANK OF BATON ROUGE
$25,000,000.00
By:
Title:
Revolving Credit Commitment: UNION PLANTERS BANK OF LOUISIANA
$18,750,000.00
By:
Title:
Revolving Credit Commitment: HIBERNIA NATIONAL BANK
$25,000,000.00
By:
Title:
EXHIBIT D
COMPLIANCE CERTIFICATE
_________________, 19___
Mercantile Business Credit Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Senior Credit Officer
Gentlemen:
Reference is hereby made to that certain Credit Agreement dated as of May
15, 1998, by and between you, as agent for the Banks named therein, and the
undersigned (as from time to time amended, the "Agreement"). All capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed to them in the Agreement.
The undersigned hereby certifies to you that as of the date hereof:
(a) All of the representations and warranties set forth in Section 6 of the
Agreement are true and correct as if made on the date hereof;
(b) No violation or breach of any of the affirmative covenants set forth in
Section 7.1 of the Agreement has occurred and is continuing;
(c) No violation or breach of any of the negative covenants set forth in
Section 7.2 of the Agreement has occurred and is continuing;
(d) No Default or Event of Default under or within the meaning of the
Agreement has occurred and is continuing;
(e) The financial statements of Borrower and its Consolidated Subsidiaries
delivered to you with this letter are true, correct and complete in all material
respects and have been prepared in accordance with generally accepted accounting
principles consistently applied; and
(f) The financial covenant information set forth in Schedule 1 to this
letter is true and correct.
Very truly yours,
THE XXXX GROUP INC.
By:
Name:
Title:
Schedule 1
To Compliance Certificate
(The Certificate attached hereto is as of ________________)
Capitalized terms used herein shall have the meanings set forth in the
Credit Agreement dated as of May 15, 1998 among The Xxxx Group Inc., Mercantile
Business Credit Inc., as agent, and the lenders named therein (as amended,
restated, supplemented or otherwise modified from time to time, the
"Agreement"). Subsection references herein relate to the subsections of the
Agreement.
A. MAXIMUM CAPITAL EXPENDITURES
1. Actual Capital Expenditures for current
Fiscal Year-To-Date $____________
2. Maximum Permitted (Section 7.2(i)) $____________
B. CONSOLIDATED EBITDA
For the 12 months ended _____________:
1. Net Income (excluding extraordinary items) $ ____________
2. Income Tax Expense $ ____________
3. Interest Expense $ ____________
4. Amortization and Depreciation Expenses $ ____________
5. Consolidated EBITDA (sum of Lines B1 through B4) $ ____________
C. DEBT SERVICE COVERAGE RATIO
1. Consolidated EBITDA (from B5 above) $ ____________
2. Interest Expense (from Line B3 above) $ ____________
3. Scheduled payments of principal on Indebtedness
(for the 12 months ending ______________) $ ____________
6. Consolidated Debt Service (Sum of D2 and D3) $ ____________
7. Debt Service Coverage (D1 divided by D4) _____ to 1.0
8. Minimum Required (Section 7.1(i)(i)) 2.50 to 1.0
D. MAXIMUM LEVERAGE RATIO
1. Average Revolving Credit Loans outstanding $ ____________
2. Face amount of Letters of Credit outstanding $ ____________
3. Other Borrowed Money Indebtedness outstanding $ ____________
4. Consolidated Total Funded Debt outstanding as of _______
(Sum of E1 through E3) $ ____________
5. Consolidated EBITDA (from B5 above) $ ____________
6. Leverage Ratio (E4 divided by E5) _____ to 1.0
7. Maximum Permitted (Section 7.1(i)(ii)) 4.00 to 1.0
E. SHAREHOLDERS' EQUITY
1. Shareholders' Equity as of ______________ $ ____________
2. Beginning Required Shareholders' Equity $135,000,000.00
3. Cumulative Quarterly Net Income (excluding $ ____________
any Quarterly Net Losses) for Quarters ending
November 30, 1997 and thereafter
4. Net Proceeds of Capital Stock issued subsequent
to August 31, 1997 $ ____________
5. Total Required Shareholders' Equity (Sum of
F2 through F4) $ ____________
F. TOTAL FUNDED DEBT TO TOTAL CAPITALIZATION
1. Consolidated Total Funded Debt (Line E4 above) $ ____________ 2.
Shareholders' Equity (Line F1 above) $ ____________ 3. Total Capitalization
(Sum of G1 plus G2) $ ____________ 4. Ratio of G1 divided by G3) _____ to
1.0 5. Maximum Permitted Ratio (Section 7.1(i)(iv)) 0.60 to 1.0
G. OTHER INDEBTEDNESS
1. Purchase money debt as of _________________ $ ____________
2. Maximum permitted (Section 7.2(a)(iv)) $ ____________
3. Subordinated Debt as of _______________ $ ____________
4. Maximum permitted (Section 7.2(a)(v)) $ ____________
5. Other Indebtedness $ ____________
6. Maximum permitted (Section 7.2(a)(vi)) $ ____________
H. RESTRICTION ON LEASES____________
1. Direct and indirect obligations with respect to leases $ ____________ 2.
Maximum permitted (Section 7.2(m)) $ ____________
