EXHIBIT 10.3(e)
SEVENTH AMENDMENT TO CREDIT AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment")
dated and effective as of December ____, 2003, is made by and among FREEMARKETS,
INC., a Delaware corporation (the "Borrower"), the Banks (as hereinafter
defined), SILICON VALLEY BANK, individually and in its capacity as Syndication
Agent (the "Syndication Agent"), and PNC BANK, NATIONAL ASSOCIATION, in its
capacity as administrative agent for the Banks (hereinafter referred to in such
capacity as the "Agent").
W I T N E S S E T H:
WHEREAS, reference is made to that certain Credit Agreement, dated as
of November 3, 2000, by and among Borrower, the Banks from time to time party
thereto, the Syndication Agent, and the Agent, as amended by a First Amendment
thereto dated as of December 8, 2000, a Second Amendment thereto dated as of
February 7, 2001, a Third Amendment thereto dated as of October 31, 2001, a
Fourth Amendment thereto dated as of October 10, 2002, a Fifth Amendment thereto
dated as of December 26, 2002, and a Sixth Amendment thereto dated as of
February 28, 2003 (as so amended, the "Credit Agreement"); and
WHEREAS, the parties hereto desire to amend certain terms of the Credit
Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally bound
hereby, covenant and agree as follows:
1. Definitions.
Capitalized terms used herein unless otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement as amended by this
Amendment.
2. Amendment of Credit Agreement.
(a) The definition of EBITDA as set forth in Section 1.1
[Certain Definitions.] of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"EBITDA shall mean for any fiscal quarter, determined for the
Borrower and its Subsidiaries in accordance with GAAP on a
consolidated basis, the net income for such quarter (as a
positive number) adjusted as follows: (i) increased by adding
back to such amount, the amount of each of the following
expenses actually deducted during such fiscal quarter in the
determination of such net income: interest expense, income
taxes, depreciation, amortization and noncash items of
expense; (ii) if the fiscal quarter for which EBITDA is being
determined is the fiscal quarter of the Borrower ended
December 31, 2003, then increased by
adding back to such amount, the amount equal to the lesser of
(y) $5,200,000, and (z) the actual amount of non-recurring
charges related to the closing of the Borrower's Brussels,
Belgium operations and write off of future lease obligations
related to the abandonment of the 28th floor in FreeMarkets
Center, which charges are actually deducted during such fiscal
quarter in the determination of such net income; and (iii)
reduced by subtracting from such amount the amount of non-cash
income actually included during such fiscal quarter in the
determination of such net income."
(b) Section 1.1 [Certain Definitions.] of the Credit
Agreement is hereby amended to insert, between the definitions of "Borrower" and
"Borrowing Base" the following new definition of "Borrower's Investment Policy":
"Borrower's Investment Policy shall mean the Investment Policy
Guidelines of FreeMarkets Investment Company, Incorporated, a
wholly-owned Subsidiary of the Borrower, dated as of November
13, 2003, as amended, modified, supplemented or restated from
time to time as permitted by Section 8.2.20 [Restrictions on
Amendments to Borrower's Investment Policy.] , which policy is
applicable to the Borrower and its Subsidiaries."
(c) Clause (iv) of Section 8.2.4 [Loans and Investments.]
of the Credit Agreement is hereby amended and restated to read as follows:
"(iv) the following permitted investments: (a) marketable
direct obligations issued or unconditionally guaranteed by the
United States of America or any agency, state or
instrumentality thereof; (b) bank obligations, including
certificates of deposit, bank notes and bankers acceptances
when issued by banks whose long-term debt is rated "A" or
higher by Moody's or Standard & Poor's and whose short-term
obligations are rated "P1" or higher or "A1" or higher by
Moody's or Standard & Poor's, respectively; (c) corporate
obligations, including notes rated "A" or higher by Moody's or
Standard & Poor's and commercial paper rated "P1" or higher or
"A1" or higher by Moody's or Standard & Poor's, respectively;
(d) repurchase agreements collateralized at a minimum of 102%
with U.S. Treasury securities or other securities rated "AAA"
or equivalent by Moody's " or Standard & Poor's; (e) money
market mutual funds over $1 billion in assets, with a
historically constant dollar net asset value, substantially
consisting of acceptable securities as stated above in this
clause (iv); (f) mutual funds with fluctuating net asset
values substantially consisting of acceptable securities as
stated above in this clause (iv); provided, that the asset
weighted average durations may not exceed 12 months; provided,
further, that not more than $50,000,000 or 25% of the total
amount of investable cash of the Loan Parties, whichever is
less, may be invested at any one time in such mutual funds;
(g) adjustable rate preferred stock rated "Aa2" or higher or
"AA" or higher by Moody's or Standard & Poor's, respectively;
provided, that the maximum effective maturity of individual
securities may not exceed 24 months, and the average maturity
of all securities purchased may not exceed 12 months;
provided, further, that not more than $50,000,000 or 25% of
the total amount of investable cash, whichever is less, may
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be invested at any one time in adjustable rate preferred
stock; or (h) so long as cash of the Borrower in an amount
(such amount being hereinafter referred to in this clause (iv)
as the "Threshold Amount") equal to or exceeding one hundred
twenty five percent (125%) of the Commitments is either held
in cash or has been invested in investments otherwise
permitted by items (a) through and including (g) of this
clause (iv), then cash in excess of the Threshold Amount may
be invested in other investments which are made in accordance
with the Borrower's Investment Policy;"
(d) Section 8.2 [Negative Covenants] is hereby amended by
adding thereto the following new Section 8.2.20 [Restrictions on Amendments to
Borrower's Investment Policy] as follows:
"8.2.20 Restrictions on Amendments to Borrower's Investment
Policy.
The Borrower shall not and shall not permit any of its
Subsidiaries to amend, modify, supplement or restate the
Borrower's Investment Policy without providing at least 10
Business Days prior notice thereof to the Agent and each of
the Banks (together with a copy of the proposed amendment,
modification, supplement or restatement) and, in the event
that such amendment, modification, supplement or restatement
would be materially adverse to the Borrower or any Subsidiary
of the Borrower, the Agent or any Bank, as determined by the
Required Banks in their reasonable discretion, obtaining the
prior written consent of the Required Banks, which consent
shall not be unreasonably withheld."
3. Conditions of Effectiveness of this Amendment. The
effectiveness of this Amendment is expressly conditioned upon satisfaction of
each of the following conditions precedent:
(a) Fees and Expenses. The Borrower shall pay or cause to
be paid to the Agent for itself and for the account of the Banks the reasonable
costs and expenses of the Agent and the Banks including, without limitation,
reasonable fees of the Agent's counsel in connection with this Amendment.
(b) No Default. Confirmation of Representations and
Warranties, etc. As of the date hereof after giving effect hereto, no Event of
Default or Potential Default shall have occurred. The Borrower by executing this
Amendment hereby certifies and confirms that as of the date hereof and after
giving effect to this Amendment: (a) the execution, delivery and performance of
this Amendment and any and all other documents executed and/or delivered in
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connection herewith have been authorized by all requisite corporate action on
the part of the Borrower and will not violate the Borrower's articles of
incorporation or bylaws, (b) no Event of Default or Potential Event of Default
has occurred or would result from the execution, delivery and performance of
this Amendment, (c) the representations and warranties of the Loan Parties
contained in the Credit Agreement and the other Loan Documents are true and
correct on and as of the date hereof with the same force and effect as though
made by the Loan Parties on such date (except representations and warranties
which relate solely to an earlier date or time), and (d) the Credit Agreement
(as amended by a First Amendment thereto dated as of December 8, 2000, a Second
Amendment thereto dated as of February 7, 2001, a Third Amendment thereto dated
as of October 31, 2001, a Fourth Amendment thereto dated as of October 10, 2002,
a Fifth Amendment thereto dated as of December 26, 2002, a Sixth Amendment dated
February 28, 2003 and this Amendment) and all other Loan Documents are and
remain legal, valid, binding and enforceable obligations in accordance with the
terms thereof.
(c) Confirmation of Guaranty. Each of the Guarantors
shall have executed the Confirmation of Guaranty in the form attached hereto as
Exhibit A.
(d) Organization, Authorization and Incumbency. There
shall be delivered to the Agent for the benefit of each Bank a certificate,
dated as of the date hereof and signed by the Secretary or an Assistant
Secretary of each Loan Party, certifying as appropriate as to:
(i) all action taken by such Loan Party in
connection with this Amendment and the other Loan Documents;
(ii) the names of the officer or officers
authorized to sign this Amendment and the other documents executed and delivered
in connection herewith and described in this Section 3 and the true signatures
of such officer or officers and specifying the officers authorized to act on
behalf of each Loan Party for purposes of the Loan Documents and the true
signatures of such officers, on which the Agent and each Bank may conclusively
rely; and
(iii) copies of its organizational documents,
including its certificate of incorporation and bylaws if it is a corporation,
its certificate of partnership and partnership agreement if it is a partnership,
and its certificate of organization and limited liability company operating
agreement if it is a limited liability company, in each case as in effect on the
date hereof, certified by the appropriate state official where such documents
are filed in a state office together with certificates from the appropriate
state officials as to the continued existence and good standing of each of the
Loan Parties in each state where organized or qualified to do business; provided
that each of the Loan Parties may, in lieu of delivering copies of the foregoing
organizational documents and good standing certificates, certify that the
organizational documents and good standing certificates previously delivered by
the Loan Parties to the Agent remain in full force and effect and have not been
modified, amended or rescinded.
(e) Consents and Approvals. To the extent any consent,
approval, order, or authorization or registration, declaration, or filing with
any governmental authority or other person or legal entity is required in
connection with the valid execution and delivery of this Amendment or the
carrying out or performance of any of the transactions required or
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contemplated by this Amendment, all such consents, approvals, orders or
authorizations shall have been obtained or all such registrations, declarations,
or filings shall have been accomplished prior to the consummation of this
Amendment.
(f) Legal Details; Counterparts. All legal details and
proceedings in connection with the transactions contemplated by this Amendment
shall be in form and substance satisfactory to the Agent, the Agent shall have
received from the Borrower and the Required Banks an executed original of this
Amendment and the Agent shall have received all such other counterpart originals
or certified or other copies of such documents and proceedings in connection
with such transactions, in form and substance satisfactory to the Agent.
(g) Borrower's Investment Policy. The Borrower shall have
delivered to the Agent and each Bank a true and complete copy of Borrower's
Investment Policy (as such term is defined in Section 2 clause (b) above of this
Amendment.
This Amendment shall become effective when it has been executed by the Loan
Parties, the Agent and the Required Banks and each of the other conditions set
forth in this Section 3 has been satisfied.
4. Force and Effect. The Credit Agreement is amended hereby, and
any reference to the Credit Agreement or other Loan Documents in any document,
instrument, or agreement shall hereafter mean and include the Credit Agreement
as amended hereby. No novation is intended or shall occur by or as a result of
this Amendment. Borrower reconfirms, restates, and ratifies the Credit Agreement
as amended hereby and each of the other Loan Documents. This Amendment is not
intended to constitute, nor does it constitute, an interruption, suspension of
continuity, satisfaction, discharge of prior duties, novation, or termination of
the liens, security interests, indebtedness, loans, liabilities, expenses, or
obligations under the Credit Agreement or the other Loan Documents. The Borrower
and the Agent and each of the Banks acknowledges and agrees that the Collateral
has continued to secure the indebtedness, loans, liabilities, expenses, and
obligations under the Credit Agreement since the date of execution of each
applicable Loan Document, and all liens and security interests in the Collateral
which were granted pursuant to any of the Loan Documents shall remain in full
force and effect from and after the date hereof.
5. Governing Law. This Amendment shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
6. Counterparts. This Amendment may be signed in any number of
counterparts each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[SIGNATURES BEGIN ON NEXT PAGE]
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[SIGNATURE PAGE 1 OF 3 TO SEVENTH AMENDMENT TO CREDIT AGREEMENT]
IN WITNESS WHEREOF and intending to be legally bound hereby, the
parties hereto have executed this Amendment as of the date first above written.
ATTEST: FREEMARKETS, INC.
______________________________________ By:_____________________________[Seal]
Name:_________________________________ Name:___________________________
Title:________________________________ Title:__________________________
[SIGNATURE PAGE 2 OF 3 TO SEVENTH AMENDMENT TO CREDIT AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By:_________________________________
Name:_______________________________
Title:______________________________
[SIGNATURE PAGE 3 OF 3 TO SEVENTH AMENDMENT TO CREDIT AGREEMENT]
SILICON VALLEY BANK,
individually and as Syndication Agent
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT A
CONFIRMATION OF GUARANTY
_______________, 2003
To: FreeMarkets Investment Company, Inc. ("Guarantor")
Reference is made to that certain Credit Agreement, dated as of
November 3, 2000, as amended by a First Amendment thereto dated as of December
8, 2000, a Second Amendment thereto dated as of February 7, 2001, a Third
Amendment thereto dated as of October 31, 2001, a Fourth Amendment dated as of
October 10, 2002, a Fifth Amendment thereto dated as of December 26, 2002, a
Sixth Amendment thereto dated as of February 28, 2003, and the Seventh Amendment
(as defined below) (the "Credit Agreement"), by and among FreeMarkets, Inc., a
Delaware corporation (the "Borrower"), the Banks from time to time party thereto
(the "Banks"), Silicon Valley Bank, individually and in its capacity as
Syndication Agent and PNC Bank, National Association, as administrative agent
for the Banks ("Agent"). All terms used herein unless otherwise defined herein
shall have the meanings as set forth in the Credit Agreement.
The Borrower has requested that the Banks and the Agent enter into that
certain Seventh Amendment to the Credit Agreement, dated as of the date hereof
(the "Seventh Amendment"), a copy of which has been delivered to each Loan
Party.
This letter agreement will confirm that the Guarantor has read and
understands the Seventh Amendment. In order to induce the Banks and the Agent to
enter into that Seventh Amendment, the Guarantor hereby consents to the Seventh
Amendment and all prior amendments described above and ratifies and confirms its
respective obligations under each of the Loan Documents (including all exhibits
and schedules thereto) to which it is a party by signing below as indicated,
including without limitation each Guaranty Agreement and each Security Agreement
to which it is a party. The Guarantor hereby acknowledges and agrees that
nothing contained in any of the Loan Documents is intended to create, nor shall
it constitute an interruption, suspension of continuity, satisfaction, discharge
of prior duties, novation or termination of the liens, security interests,
indebtedness, loans, liabilities, expenses or obligations of the Loan Parties
under the Credit Agreement or any other Loan Document.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION,
as Agent
By:_________________________________
[SIGNATURE PAGE TO CONFIRMATION OF GUARANTY
DATED ____________, 2003]
Intending to be legally bound
hereby, the undersigned has
accepted and agreed to the
foregoing as of the date and
year first above written.
GUARANTOR:
FREEMARKETS INVESTMENT COMPANY, INC.
By:_________________________________
Name:_______________________________
Title:______________________________