EXHIBIT 99(b)
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FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT ("First Amendment") is made
and entered into as of the 14th day of December, 2001 (the "First Amendment
Effective Date"), by and among NATIONAL CITY BANK OF INDIANA ("National City
Bank"), FIRSTAR BANK, N.A., ("Firstar"), PNC BANK ("PNC"), XXXXXX TRUST AND
SAVINGS BANK ("Xxxxxx"), LASALLE BANK NATIONAL ASSOCIATION ("LaSalle Bank") and
THE HUNTINGTON NATIONAL BANK ("Huntington") (National City Bank, Firstar, PNC,
Xxxxxx, LaSalle Bank and Huntington being herein referred to collectively as the
"Lenders"), National City Bank, as agent for the Lenders (the "Agent"), and
FINISHMASTER, INC. (the "Borrower").
Recitals
1. The Borrower, the Lenders and the Agent are parties to a Credit
Agreement dated as of March 29, 2001 (the "Credit Agreement").
2. The Borrower desires to form a wholly-owned Subsidiary,
FinishMaster Services, Inc., an Indiana corporation ("FSI"), and to transfer
certain of its assets and properties to FSI (the "Asset Transfer"). By letter to
the Agent dated December 11, 2001, the Borrower requested that the Agent and the
Lenders (a) consent to the creation of FSI and the Asset Transfer, (b) agree to
increase the maximum aggregate consideration for Permitted Acquisitions in
calendar year 2001 from $8,000,000.00 to $9,000,000.00 and (c) waive certain
provisions of the Credit Agreement as they pertain to the acquisition by the
Borrower of Scotty's Paint Supply, Inc., a Florida corporation ("Scotty's") to
the extent provided in Paragraph 7 of this First Amendment.
3. Subject to the terms and conditions stated in this First Amendment
and pursuant to and in accordance with Section 9.3 of the Credit Agreement, the
Lenders and the Agent are willing to modify and amend the Credit Agreement as
provided in this First Amendment.
Agreement
NOW THEREFORE, the Borrower, the Lenders and the Agent agree as
follows:
1. Definitions. All terms used in the Recitals and in this First
Amendment that are defined in the Credit Agreement and are not otherwise defined
herein are used in this First Amendment with the meanings ascribed to them in
the Credit Agreement, as amended by this First Amendment.
2. Amendments to Credit Agreement.
(a) Increase of Maximum Aggregate Permitted Acquisition Consideration.
Section 7.3(G)(iii)(e) of the Credit Agreement is hereby deleted and replaced
with the following, effective as of the First Amendment Effective Date:
(e) the aggregate purchase price (excluding assumed liabilities but
not indebtedness for borrowed money) in connection with all such
transactions during any calendar year from and after the Closing Date shall
not exceed
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Calendar Year Maximum Aggregate
Consideration for All
Acquisitions
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2001 $9,000,000.00
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2002 $10,000,000.00
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2003 $10,000,000.00
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2004 $10,000,000.00
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2005 $10,000,000.00
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2006 $10,000,000.00
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(b) Schedule 6.8 Replaced. Schedule 6.8 to the Credit Agreement, which
sets forth a description of the corporate structure of the Borrower and its
Subsidiaries, is hereby deleted and replaced with Schedule 6.8 attached hereto
and made a part hereof for all purposes, effective as of the First Amendment
Effective Date.
3. Amendment of Other Loan Documents. All references to the Credit
Agreement in the other Loan Documents shall mean the Credit Agreement, as
modified and amended by this First Amendment and as it may be further amended,
modified, extended, renewed, supplemented and/or restated from time to time and
at any time. The other Loan Documents are hereby modified and amended to the
extent necessary to conform them to, or to cause them to accurately reflect, the
terms of the Credit Agreement, as modified by this First Amendment. Except as
otherwise expressly provided herein, all of the terms and provisions of the
Credit Agreement and the other Loan Documents, as modified and amended by this
First Amendment, remain in full force and effect, and fully binding on the
parties thereto and their respective successors and assigns.
4. Binding on Successors and Assigns. All the terms and provisions of
this First Amendment shall be binding upon and inure to the benefit of the
parties hereto, their respective successors, assigns and legal representatives.
Whenever in this First Amendment any of the parties hereto is referred to, such
reference shall be deemed to include the successors and assigns of such party.
5. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Agent that:
(i) (A) The execution, delivery and performance of this First
Amendment and all agreements and documents delivered pursuant hereto by the
Borrower have been duly authorized by all necessary action and do not and will
not violate any provision of any law, rule, regulation, order, judgment,
injunction, or writ presently in effect applying to the Borrower, or any of its
constituent documents, or result in a breach of or constitute a default under
any material agreement, lease or instrument to which the Borrower is a party or
by which the Borrower or any of its properties may be bound or affected; (B) no
authorization, consent, approval, license, exemption or filing of a registration
with any court or governmental department, agency or instrumentality is or will
be necessary to the valid execution, delivery or performance by the Borrower of
this First Amendment and all agreements and documents delivered pursuant hereto;
and (C) this First Amendment and all agreements and documents delivered pursuant
hereto by the Borrower are the legal, valid and binding obligations of the
Borrower, as a signatory thereto, and enforceable against the Borrower in
accordance with the terms thereof.
(ii) After giving effect to the amendments contained in this First
Amendment, the representations and warranties contained in Article VI of the
Credit Agreement are true and correct on and as of the First Amendment Effective
Date with the same force and effect as if made on and as of the First Amendment
Effective Date, except that the representation in Section 6.4 of the Credit
Agreement shall be deemed to refer to the financial statements of the Borrower
most recently delivered to the Agent prior to the First Amendment Effective
Date.
6. Conditions. The obligation of the Lenders and the Agent to execute
and to perform this First Amendment shall be subject to full satisfaction of the
following conditions precedent on or before the First Amendment Effective Date:
(a) The Agent shall have received copies, certified as of the First
Amendment Effective Date by the Secretary or Assistant Secretary of the
Borrower, of such corporate documents or resolutions of the Borrower as the
Lenders or the Agent may request evidencing necessary corporate action by the
Borrower with respect to this First Amendment and all other agreements or
documents delivered pursuant hereto as the Lenders or the Agent may request.
(b) The Agent shall have received a certificate, in form and substance
satisfactory to the Agent, signed by the chief financial officer of the
Borrower, stating that on the First Amendment Effective Date no Default or
Unmatured Default has occurred and is continuing.
(c) The Agent shall have received the pro forma financial statements
required to be delivered pursuant to Section 7.3(G)(iii)(d) of the Credit
Agreement.
(d) This First Amendment shall have been (i) duly executed and
delivered by the Borrower to the Lenders and the Agent, (ii) duly executed and
delivered to the Lenders and the Agent by Refinishers Warehouse, Inc., a
Michigan corporation, with respect to the Consent and Reaffirmation provided
herein, and (iii) executed by the Lenders and the Agent.
(e) The Borrower shall have paid all costs and expenses incurred by
the Lenders and the Agent in connection with the negotiation, preparation and
closing of this First Amendment and the other documents and agreements delivered
pursuant hereto, including the reasonable fees and out-of-pocket expenses of
Xxxxx & Xxxxxxx, special counsel to the Agent.
7. Acquisition of Scotty's Paint Supply, Inc. On the First Amendment
Effective Date, the Borrower will complete the acquisition of 100% of the
outstanding Capital Stock of Scotty's. The Borrower has advised the Agent that
it intends to merge Scotty's into the Borrower following the acquisition. The
Agent and the Lenders hereby (a) consent to the acquisition by the Borrower of
the Capital Stock of Scotty's and (b) so long as the Merger Condition (as such
term is defined below) is satisfied in full on or before February 14, 2002,
waive, in connection with the acquisition of the Capital Stock of Scotty's, (i)
compliance by the Borrower with Sections 7.2(K), 7.2(L) and 7.3(G)(ii) and (ii)
the requirement that the Borrower include on Schedule 6.8 any reference to
Scotty's as a Subsidiary of the Borrower. As used in this Paragraph 7, the term
"Merger Condition" shall mean a requirement that the Borrower and Scotty's
complete a merger transaction pursuant to which Scotty's is merged into the
Borrower, with the Borrower remaining the surviving entity, on terms and
conditions in all respects satisfactory to the Agent. In the event the Merger
Condition is not satisfied in full on or before February 14, 2002, the consent
and waiver provided for in this Paragraph 7 shall be void ab initio.
8. Consent to Formation of FSI and Asset Transfer. Effective as of the
Transfer Effective Date (as such term is defined below), and subject to the
complete satisfaction of all of the conditions precedent described in Paragraph
6 of this First Amendment and this Paragraph 8, each of the Agent and the
Lenders hereby (a) consents to the formation of FSI as a wholly-owned Subsidiary
of the Borrower and (b) waives any breach of the Credit Agreement or Default
thereunder or under any of the Loan Documents that is caused solely by the
formation of FSI as described herein or by the Asset Transfer. As used herein,
the term "Transfer Effective Date" shall mean the date on which the Borrower
completes the Asset Transfer to FSI.
The consent provided for in this Paragraph 8 is subject in all
respects to the complete satisfaction of the following conditions precedent (the
"Transfer Conditions") on or prior to the Transfer Effective Date:
(a) The Agent shall have received a certificate of existence for FSI,
certified by the Secretary of State of Indiana not more than twenty (20) days
prior to the Transfer Effective Date.
(b) The Agent shall have received copies, certified as of the Transfer
Effective Date by the Secretary or Assistant Secretary of FSI, of its Articles
of Incorporation (together with all amendments thereto), By-Laws and of its
Board of Directors' resolutions (and resolutions of other bodies, if any are
deemed necessary by counsel for any Lender) authorizing the execution and
delivery of the FSI Loan Documents.
(c) The Agent shall have received an incumbency certificate, executed
by the Secretary or Assistant Secretary of FSI, which shall identify by name and
title and bear the signature of the officers of FSI authorized to sign the FSI
Loan Documents, upon which certificate the Agent and the Lenders shall be
entitled to rely until informed of any change in writing by the Borrower or FSI.
(d) FSI shall have executed and delivered to the Agent a Trademark
Security Agreement, in form and substance the same as Exhibit B-6 attached
hereto and made a part hereof for all purposes.
(e) FSI shall have executed and delivered to the Agent a Security
Agreement, in form and substance the same as Exhibit B-7 attached hereto and
made a part hereof for all purposes.
(f) FSI shall have executed and delivered to the Agent a Guaranty, in
form and substance the same as Exhibit B-8 attached hereto and made a part
hereof for all purposes.
(j) The Borrower shall have (i) executed and delivered to the Agent an
Amended and Restated Pledge Agreement, in form and substance the same as Exhibit
B-9 attached hereto and made a part hereof for all purposes (the "Amended Pledge
Agreement"), (ii) delivered to the Agent the original certificates evidencing
one hundred percent (100%) of the issued and outstanding common stock of FSI,
and (iii) executed and delivered to the Agent stock powers in the form of
Exhibit B attached to the Amended Pledge Agreement, duly executed in blank.
(k) The Agent shall have received Uniform Commercial Code search
results pertaining to FSI showing only those Liens as are acceptable to the
Agent.
(l) The Agent shall have received evidence of the filing of Uniform
Commercial Code financing statements reflecting the filing in all places
required by applicable law to perfect the security interests granted to the
Agent, for its benefit and for the benefit of the Lenders (the "FSI Lien"), in
the Collateral (as such term is described in the FSI Security Agreement) as a
first priority Lien as to items of Collateral (as such term is described in the
FSI Security Agreement) in which a security interest may be perfected by the
filing of financing statements, and such other documents and/or evidence of
other actions as may be necessary under applicable law to perfect the FSI Lien
as a first priority Lien, as the Agent may require.
(m) The Agent shall have received a written opinion of the Borrower's
and FSI's counsel, addressed to the Agent and the Lenders, dated as of the
Transfer Effective Date addressing the issues identified in Exhibit A hereto
containing assumptions and qualifications acceptable to the Agent and the
Lenders.
(n) The Lenders and the Agent shall have received such additional
agreements, documents and certifications, fully executed by the Borrower,
Refinishers Warehouse and/or FSI, as may be reasonably requested by the Lenders
and the Agent.
(o) FSI shall have executed and delivered to the Agent, for its
benefit and the benefit of the Lenders, a certificate that contains the
following representations and warranties, each effective as of the Transfer
Effective Date:
(i) (A) The execution, delivery and performance of the Loan
Documents to be executed and delivered by it pursuant to this First
Amendment (the "FSI Loan Documents") and all agreements and documents
delivered pursuant hereto by FSI have been duly authorized by all
necessary action and do not and will not violate any provision of any
law, rule, regulation, order, judgment, injunction, or writ presently
in effect applying to FSI, or any of its constituent documents, or
result in a breach of or constitute a default under any material
agreement, lease or instrument to which FSI is a party or by which FSI
or any of its properties may be bound or affected; (B) no
authorization, consent, approval, license, exemption or filing of a
registration with any court or governmental department, agency or
instrumentality is or will be necessary to the valid execution,
delivery or performance by FSI of the FSI Loan Documents and all
agreements and documents delivered pursuant hereto; and (C) the FSI
Loan Documents and all agreements and documents delivered pursuant
hereto by FSI are the legal, valid and binding obligations of FSI, as
a signatory thereto, and enforceable against FSI in accordance with
the terms thereof.
(ii) FSI (i) is a corporation duly organized, validly existing
and in existence under the laws of the State of Indiana, (ii) is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which failure to be so
qualified and in good standing could not reasonably be expected to
have a Material Adverse Effect, and (iii) has all requisite corporate
power and authority to own, operate and encumber its property and to
conduct its business as presently conducted and as proposed to be
conducted.
(iii) FSI has good and marketable title to all of its material
assets and properties (tangible and intangible, real or personal)
owned by it or a valid leasehold interest in all of its material
leased assets (except insofar as marketability may be limited by any
laws or regulations of any Governmental Authority affecting such
assets), and all such assets and property are free and clear of all
Liens, except Liens permitted under Section 7.3(C) of the Credit
Agreement. Substantially all of the assets and properties owned by,
leased to or used by FSI are in adequate operating condition and
repair, ordinary wear and tear excepted. Neither this First Amendment
nor any other Loan Document, nor any transaction contemplated under
any such agreement, will affect any right, title or interest of FSI in
and to any of such assets in a manner that would have or could
reasonably be expected to have a Material Adverse Effect.
In the event the Transfer Conditions have not been satisfied in full
and the Transfer Effective Date does not occur on or before March 31, 2002, the
consent provided for in this Paragraph 8 shall be void ab initio.
9. Further Assurances. Each of the Borrower, Refinishers Warehouse,
FSI, the Lenders and the Agent, as the case may be, shall duly execute and
deliver, or cause to be executed and delivered, such further instruments and
perform or cause to be performed such further acts as may be necessary or proper
in the reasonable opinion of the Agent to carry out the provisions and purposes
of this First Amendment.
10. Governing Law. This First Amendment shall be governed by, and
construed in accordance with, the laws of the State of Indiana, without regard
to its principles of conflicts or choice of law rules.
11. Survival. All covenants, agreements, undertakings,
representations, and warranties made in this First Amendment shall survive the
execution and delivery of this First Amendment, and shall not be affected by any
investigation made by any party.
12. Entire Agreement. This First Amendment constitutes and expresses
the entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior agreements and understandings,
commitments, inducements or conditions with respect thereto, whether express or
implied, oral or written.
13. Counterparts. This First Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one agreement. In the event any party
executes and delivers this First Amendment via facsimile, such party hereby
agrees that for the purposes of enforcement and all applicable statutes, laws
and rules, including, without limitation, the Uniform Commercial Code, rules of
evidence and statutes of fraud: (i) the facsimile signature of such party shall
constitute a binding signature of such party as a symbol and xxxx executed and
adopted by such party with a present intention to authenticate this First
Amendment; (ii) the facsimile of this First Amendment shall constitute a writing
signed by such party; and (iii) the facsimile of this First Amendment shall
constitute an original of and best evidence of this First Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to Credit Agreement to be executed and delivered by their duly
authorized officers as of the date set forth above.
FINISHMASTER, INC.,
as the Borrower
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
Address: 00 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
NATIONAL CITY BANK OF INDIANA,
as Agent, as a Lender, as an Issuing
Bank and as the Swing Line Bank
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President
Address: National City Bank of Indiana
Xxx Xxxxxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
FIRSTAR BANK, N.A.,
as Lender and Documentation Agent
By: /s/ Xxxxx Dyornik
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
Address: Firstar Bank, N.A.
0000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
PNC BANK, as Lender
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
Address: PNC Bank
000 X. Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
XXXXXX TRUST AND SAVINGS BANK,
as Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
THE HUNTINGTON NATIONAL BANK,
as Lender
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President
Address: The Huntington National Bank
Capital Center
000 Xxxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
LASALLE NATIONAL BANK NATIONAL
ASSOCIATION, as Lender
and Syndication Agent
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: First Vice President
Address: LaSalle National Bank
National Association
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
CONSENT AND REAFFIRMATION
The undersigned hereby acknowledges and consents to the execution of
the First Amendment to Credit Agreement and reaffirms and agrees that its
Guaranty executed on March 29, 2001 (the "Guaranty"), remains in full force and
effect with respect to all of its obligations arising under, pursuant to or in
connection with the Guaranty.
REFINISHERS WAREHOUSE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Secretary
Exhibits
Exhibit A: Opinion of Counsel
Exhibit B-6: Form of Trademark Security Agreement
Exhibit B-7: Form of Security Agreement
Exhibit B-8: Form of Guaranty
Exhibit B-9: Form of Amended and Restated Pledge Agreement
Schedule 6.8: Organizational and Capital Structure
