FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
EXECUTION COPY
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as of October 19, 2009
(this “Amendment”), is by and among XXXXX & CO., INC., a Delaware corporation (the
“Company”), the other US Borrowers party hereto (collectively with the Company, the “US
Borrowers”), XXXXX OF CANADA, LTD. (the “Canadian Borrower” and, together with the US
Borrowers, the “Borrowers”), the other Loan Parties party hereto (such other Loan Parties,
together with the Borrowers, being hereinafter referred to collectively as the “Loan
Parties”), JPMORGAN CHASE BANK, N.A., BANK OF AMERICA, N.A. and CAPITAL ONE, N.A.
(collectively, the “Continuing Lenders”), XXXXX FARGO FOOTHILL, LLC and SOVEREIGN BANK
(collectively, the “New Lenders”), and solely for the purposes of Section 3 hereof,
CITIBANK, N.A., WACHOVIA BANK, NATIONAL ASSOCIATION and US BANK, NATIONAL ASSOCIATION
(collectively, the “Exiting Lenders”), JPMORGAN CHASE BANK, N.A. as US Administrative Agent
for the Lenders under the Credit Agreement described below (in such capacity, the “US
Administrative Agent”), and JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian
Administrative Agent for the Lenders under such Credit Agreement (in such capacity, the
“Canadian Administrative Agent” and, together with the US Administrative Agent, the
“Administrative Agents”).
WHEREAS the Borrowers are party to an Amended and Restated Credit Agreement dated as of March
31, 2009 among the Borrowers, the other Loan Parties party thereto, the Lenders party thereto and
the Administrative Agents (as amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), pursuant to which the Lenders agreed, subject to the terms and
conditions set forth therein, to make certain Loans to the Borrowers; and
WHEREAS, the Borrowers have requested and the Administrative Agents and the Lenders party
hereto have agreed, on the terms set forth herein, to amend the Credit Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and the agreements contained herein, the
parties hereby agree as follows:
1. Capitalized Terms. Capitalized terms used herein which are defined in the Credit
Agreement have the same meanings herein as therein, except to the extent that such meanings are
amended hereby.
2. Amendments to Credit Agreement. Subject to the satisfaction of the terms and conditions
set forth in Section 5 hereof, the Loan Parties, the Continuing Lenders, the New Lenders and the
Administrative Agents agree that the Credit Agreement is hereby amended as follows:
(a) Amendments to Section 1.01 of the Credit Agreement.
(i) Amendments to Existing Definitions. Section 1.01 of the Credit Agreement is
hereby amended by deleting the definitions of “Availability Period”, “Canadian Revolving Exposure”,
“Full Cash Dominion Period” and “Revolving Maturity Date” and substituting the following therefor:
“Availability Period” means the period from and including the Effective Date to
but excluding the earlier of the Revolving Maturity Date and the date of termination of the
Revolving Commitments.
“Canadian Revolving Exposure” means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender’s Canadian Revolving Loans and its
Canadian LC Exposure and an amount equal to its Applicable Percentage of the aggregate
principal amount of Canadian Swingline Loans and Canadian Protective Advances outstanding at
such time.
“Full Cash Dominion Period” means (a) any period commencing with the occurrence
and during the continuance of an Event of Default until such Event of Default has been cured
or waived and (b) any period (i) commencing on the date that Aggregate Availability shall
have been less than $22,500,000 for three consecutive days and (ii) ending on the date
thereafter on which Aggregate Availability shall have exceeded $27,500,000 for ninety (90)
consecutive days; provided, that solely for purposes of clause (b) above, during the
period from January 1 through March 31 of each year, a Full Cash Dominion Period shall not
commence unless Aggregate Availability shall have been less than $17,500,000 for three
consecutive days.
“Revolving Maturity Date” means May 31, 2013.
(ii) Amendment to Definition of Permitted Acquisition. Section 1.01 of the Credit
Agreement is hereby further amended by deleting clauses (iii) and (iv) of the definition of
“Permitted Acquisition” set forth therein in their entirety and substituting the following
therefor:
“(iii) the aggregate amount of Acquisition Consideration paid by the Loan Parties for
such acquisition and all other Permitted Acquisitions consummated in any fiscal year shall
not exceed the Maximum Acquisition Consideration Amount for such fiscal year;
(iv) as soon as available, but not less than five (5) Business Days prior to the
closing of such acquisition, the Loan Parties shall submit to the Administrative Agents (A)
notice of such acquisition, (B) copies of all business and financial information reasonably
requested by any Administrative Agent, (C) pro forma financial statements which demonstrate,
on a pro forma basis (1) a Fixed Charge Coverage Ratio for the period of twelve consecutive
months most recently ended of not less than 1.25 to 1.00, (2) Aggregate Availability after
giving effect to payment of all consideration for such acquisition of not less than
$30,000,000 (or such greater amount as is set forth in the definition of Maximum Acquisition
Consideration Amount) (it being understood that the Accounts and Inventory being acquired in
connection with such acquisition may be included in the determination of Aggregate
Availabilty under this clause (2) if and only if the Borrowers have complied with the
requirements of clause (v) of this definition set forth below), and (3) Average Aggregate
Quarterly Availability during the period of two consecutive fiscal quarters most recently
ended prior to the consummation of such acquisition of not less than $30,000,000 (or such
greater amount as is set forth in the definition of Maximum Acquisition Consideration
Amount); and (D) a certificate of a Financial Officer certifying that such pro forma
financial statements present fairly in all material respects the financial condition of the
Company and its Subsidiaries on a consolidated basis as of the date thereof after giving
effect to such acquisition and setting forth reasonably detailed calculations demonstrating
compliance with the minimum Fixed Charge Coverage Ratio, minimum Aggregate Availability and
minimum Average Aggregate Quarterly Availability set forth in clause (C) above, and which shall
include a representation and warranty as to compliance with each of the other criteria for a
“Permitted Acquisition”;”
(iii) New Definitions. Section 1.01 of the Credit Agreement is hereby further amended
by inserting the following new definitions therein in appropriate alphabetical order:
“Acquisition Consideration” means, with respect to any acquisition, the
aggregate consideration paid by the Loan Parties for such acquisition, including all
Indebtedness (including all earn out payments and similar obligations) incurred or assumed
in connection with such acquisition or otherwise reflected in the balance sheet of the
Company and its Subsidiaries on a Consolidated Basis.
-2-
“First Amendment Effective Date” means October 19, 2009.
“Maximum Acquisition Consideration Amount” means $25,000,000; provided,
that in any given fiscal year, the Maximum Acquisition Consideration Amount may be increased
to $50,000,000, so long as, with respect to each acquisition the Acquisition Consideration
for which causes the aggregate amount of Acquisition Consideration for such fiscal year to
exceed $25,000,000, (a) the Borrowers shall have Aggregate Availability after giving effect
to the payment of all Acquisition Consideration for such acquisition of not less than
$40,000,000 (it being understood that the Accounts and Inventory being acquired in
connection with such acquisition may be included in the determination of Aggregate
Availabilty under this clause (a) if and only if the Borrowers have complied with the
requirements of clause (v) of the definition of Permitted Acquisition) and (b) the Borrowers
shall have Average Aggregate Quarterly Availability during the period of two consecutive
fiscal quarters most recently ended prior to the consummation of such acquisition of not
less than $40,000,000.
(b) Amendment to Section 2.02 of the Credit Agreement. Section 2.02 of the Credit Agreement is
hereby amended by deleting Section 2.02(d) in its entirety and substituting the following therefor:
“(d) Notwithstanding any other provision of this Agreement, the Borrower Representative
shall not be entitled to request, or to elect to convert or continue, any Borrowing if the
Interest Period requested with respect thereto would end after the Revolving Maturity Date.”
(c) Amendment to Section 2.06 of the Credit Agreement. Section 2.06 of the Credit Agreement is
hereby amended by deleting Section 2.06(c) thereof in its entirety and substituting the following
therefor:
“(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the issuance of
such Letter of Credit (or, in the case of any renewal or extension thereof, one year after
such renewal or extension) and (ii) the date that is five Business Days prior to the
Revolving Maturity Date.”
(d) Amendment to Section 6.08 of the Credit Agreement. Section 6.08(a) of the Credit Agreement is
hereby amended and restated in its entirety and replaced with the following:
“(a) No Loan Party will, nor will it permit any Subsidiary to, declare or make, or
agree to pay or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except (i) the Company may declare and pay
dividends with respect to its common stock payable solely in additional shares of its common
stock, and, with respect to its preferred stock, payable solely in additional shares of such
preferred stock or in shares of its common stock, (ii) Subsidiaries may declare and pay
dividends ratably with respect to their Equity Interests, (iii) the Company may make
Restricted Payments, in an aggregate amount not to exceed $25,000,000 during any fiscal
year, pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Borrowers and their
Subsidiaries, (iv) the Company may pay cash dividends in an aggregate amount not to
exceed $2,500,000 during any fiscal quarter provided that immediately prior to and after
giving effect to the payment of such dividends no Default or Event of Default shall have
occurred and be continuing, and (v) the Company may pay cash dividends in aggregate amount
not to exceed $15,000,000 per fiscal year (inclusive of any dividends paid in accordance
with the provisions of clause (iv) of this Section 6.08(a)) provided that
immediately prior to and after giving effect to the payment of such dividends (w) no Default
or Event of Default shall have occurred and be continuing, (x) the Fixed Charge Coverage
Ratio shall equal or exceed 1.25 to 1.00, (y) the Borrowers shall have Average Aggregate
Quarterly Availability for the period of two consecutive fiscal quarters most recently ended
of at least $30,000,000 and (z) the Borrowers shall have Aggregate Availability after giving
effect to such payment of $30,000,000.”
-3-
(e) Amendment to Section 6.12 of the Credit Agreement. Section 6.12 of the Credit Agreement is
hereby amended and restated in its entirety and replaced with the following:
“SECTION 6.12. Fixed Charge Coverage Ratio. The Loan Parties will not permit
the Fixed Charge Coverage Ratio, determined for any period of four consecutive fiscal
quarters ending on the last day of each fiscal quarter, to be less than 1.00 to 1.00 as of
the last day of any fiscal quarter.”
(f) Amendment to Article VIII of the Credit Agreement. Article VIII of the Credit Agreement is
hereby amended by inserting the following therein as new subsection (k) thereof:
“(k) Each Lender acknowledges and agrees that either Administrative Agent may at any
time or from time to time submit requests to the Lenders pursuant to which such
Administrative Agent shall inquire as to whether any Lender or any of its affiliates has
entered into any Swap Agreement with or provided any Banking Services to any Loan Party and,
upon receipt of any such request, each Lender shall provide the applicable Administrative
Agent with such information and, to the extent requested by such Administrative Agent,
copies of all such Swap Agreements and all agreements evidencing or governing such Banking
Services.”
(g) Amendment to Section 9.02 of the Credit Agreement. Section 9.02(b) of the Credit Agreement is
hereby amended by deleting such Section 9.02(b) in its entirety and substituting the following
therefor:
“(b) Neither this Agreement nor any other Loan Document nor any provision hereof or
thereof may be waived, amended or modified except (i) in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrowers and the
Required Lenders or, (ii) in the case of any other Loan Document, pursuant to an agreement
or agreements in writing entered into by the Administrative Agents and the Loan Party or
Loan Parties that are parties thereto, with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce or forgive the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce or forgive any
interest or fees payable hereunder, without the written consent of each Lender directly
affected thereby, (iii) extend the Revolving Maturity Date, postpone the scheduled date of
expiration of any Commitment, or postpone any scheduled date of payment of the principal
amount of any Loan or LC Disbursement without the written consent of each Lender directly
affected thereby, (iv) postpone any date for the payment of any interest, fees or other
Obligations (other than the principal amount of any Loan or LC Disbursement) payable
hereunder, or reduce the amount of, waive or excuse any such payment, without the written
consent of each Lender directly affected thereby, (v) change Section 2.18(b) or (d) in a
manner that would alter the manner in which payments are shared, without the written consent
of each Lender, (vi) increase the advance rates set forth in the definitions of Canadian
Borrowing Base or US Borrowing Base, or the Aggregate Borrowing Base without consent of each Lender,
(vii) add new categories of or materially broaden the criteria for inclusion of eligible
assets, without the written consent of each Lender, (viii) change any of the provisions of
this Section or the definitions of “Required Lenders” or “Supermajority Revolving Lenders”
or any other provision of any Loan Document specifying the number or percentage of Lenders
(or Lenders of any Class) required to waive, amend or modify any rights thereunder or make
any determination or grant any consent thereunder, without the written consent of each
Lender, (ix) release any Borrower from its Obligations hereunder or all or substantially all
of the Loan Guarantors from their obligation under the Loan Guaranty (except as otherwise
permitted herein or in the other Loan Documents) or limit the liability of all or
substantially all of the Loan Guarantors under the Loan Guaranty, in each case, without the
written consent of each Lender, or (x) except as provided in clauses (c) of
-4-
this Section,
release all or substantially all of the Collateral, without the written consent of each
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agents, the Issuing Bank or the Swingline
Lender hereunder without the prior written consent of the applicable Administrative Agent,
the Issuing Bank or the Swingline Lender, as the case may be. The US Administrative Agent
may also amend the Commitment Schedule to reflect assignments entered into pursuant
to Section 9.04.”
(h) Amendment to Schedules to the Credit Agreement. The Schedules to the Credit Agreement are
hereby amended by deleting the existing Commitment Schedule in its entirety and replacing
it with the new Commitment Schedule attached hereto.
3. Assignment and Assumptions. Each of the parties hereto acknowledges and agrees that (i)
the Exiting Lenders desire to sell and assign their Revolving Commitments to the New Lenders and to
certain of the Continuing Lenders and to be relieved of their obligations under the Credit
Agreement and (ii) the New Lenders desire to purchase and assume portions of the Revolving
Commitments of the Exiting Lenders and to become parties to the Credit Agreement. As an
administrative convenience and to avoid the necessity that each Lender enter into separate
Assignment and Assumptions, the parties hereto acknowledge and agree that effective as of the First
Amendment Effective Date, the following assignments and assumptions of the Revolving Commitments
(the “Assignments”) shall be deemed to have taken place:
(a) Wachovia Bank, National Association shall be deemed to have sold and assigned to
Sovereign Bank and Sovereign Bank shall be deemed to have purchased and assumed from
Wachovia Bank, National Association, the entire $15,619,047.62 portion of the existing
Revolving Commitment of Wachovia Bank, National Association and the corresponding share of
the Revolving Exposure held by Wachovia Bank, National Association;
(b) US Bank, National Association shall be deemed to have sold and assigned to Xxxxx
Fargo Foothill LLC and Xxxxx Fargo Foothill LLC shall be deemed to have purchased and
assumed from US Bank, National Association, the entire $15,619,047.62 portion of the
existing Revolving Commitment of US Bank, National Association and the corresponding share
of the Revolving Exposure held by US Bank, National Association;
(c) Citibank, N.A. shall be deemed to have sold and assigned to Sovereign Bank and
Sovereign Bank shall be deemed to have purchased and assumed from Citibank, N.A., a
$4,380,952.38 portion of the the existing Revolving Commitment of Citibank, N.A. and the
corresponding share of the Revolving Exposure held by Citibank, N.A.;
(d) Citibank, N.A. shall be deemed to have sold and assigned to Xxxxx Fargo Foothill
LLC, and Xxxxx Fargo Foothill LLC shall be deemed to have purchased and assumed from
Citibank, N.A., a $13,507,936.50 portion of the existing Revolving Commitment of Citibank,
N.A. and the corresponding share of the Revolving Exposure held by Citibank, N.A.;
(d) Citibank, N.A. shall be deemed to have sold and assigned to Bank of America, N.A.,
and Bank of America, N.A. shall be deemed to have purchased and assumed from Citibank,
N.A., a $1,793,650.80 portion of the existing Revolving Commitment of Citibank, N.A. and the
corresponding share of the Revolving Exposure held by Citibank, N.A.; and
(e) Citibank, N.A. shall be deemed to have sold and assigned to JPMorgan Chase Bank,
N.A., and JPMorgan Chase Bank, N.A. shall be deemed to have purchased and assumed from
Citibank, N.A., a $1,793,650.80 portion of the existing Revolving Commitment of Citibank,
N.A. and the corresponding share of the Revolving Exposure held by Citibank, N.A.
-5-
After giving effect to the foregoing Assignments, the Revolving Commitment and Applicable
Percentage of each Lender shall be as set forth on the revised Commitment Schedule attached
hereto.
Effective on the First Amendment Effective Date: (i) each New Lender shall be deemed to be a
party to and a “Lender” under the Credit Agreement and shall be bound by all of the terms and
provisions applicable to Lenders under the Credit Agreement, (ii) each New Lender shall deliver to
the Agent cash in an amount equal to such New Lender’s Applicable Percentage of the aggregate
Revolving Loans outstanding on the First Amendment Effective Date, (iii) each Continuing Lender
whose Applicable Percentage will increase as a result of the Assignments shall deliver to the Agent
cash in an amount sufficient to provide for such Continuing Lender to hold its increased Applicable
Percentage of the aggregate Revolving Loans outstanding on the First Amendment Effective Date, and
(iv) the Agent shall distribute the cash delivered by the New Lenders as described in clause (ii)
and by the Continuing Lenders as described in clause (iii) to the Exiting Lenders in amounts
sufficent to fully repay the principal amount of Revolving Loans owing to such Exiting Lenders.
Upon the Agent’s receipt of the interest and commitment fees required to be paid by the
Borrowers on the next Interest Payment Date, the Agent shall distribute to each of the Continuing
Lenders, New Lenders and Exiting Lenders their respective pro rata shares of such interest and
commitment fees based on their respective daily Applicable Percentages of the outstanding Revolving
Loans.
Each Exiting Lender hereby (A) represents and warrants that (I) it is the legal and beneficial
owner of the applicable rights and obligations assigned by it pursuant to the Assignments (such
rights and obligations being the “Assigned Interests”), (II) the Assigned Interests are
free and clear of any lien, encumbrance or other adverse claim and (III) it has full power and
authority, and has taken all action necessary, to execute and deliver this Amendment and to
consummate the transactions contemplated by this Section 3; and (B) assumes no responsibility with
respect to (I) any statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (II) the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (III) the financial condition of any Borrower, any of their Subsidiaries or Affiliates
or any other Person obligated in respect of any Loan Document or (IV) the performance or observance
by any Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their
respective obligations under any Loan Document.
Each New Lender (A) represents and warrants that (I) it has full power and authority, and has
taken all action necessary, to execute and deliver this Amendment and to consummate the
transactions contemplated by this Section 3 and to become a Lender under the Credit Agreement, (II)
it satisfies the requirements, if any, specified in the Credit Agreement that are required to be
satisfied by it in order to acquire the applicable rights and obligations being acquired by it
pursuant to the Assignments (such rights
and obligations being the “Acquired Interests”) and become a Lender, (iii) from and
after the First Amendment Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Acquired Interests, shall have the
obligations of a Lender thereunder, (IV) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Amendment and to purchase the Acquired Interests on
the basis of which it has made such analysis and decision independently and without reliance on the
US Administrative Agent or any other Lender, and (V) if it is a Foreign Lender, concurrently
herewith, such New Lender has delivered to the US Administrative Agent any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by
such New Lender; and (B) agrees that (I) it will, independently and without reliance on the US
Administrative Agent, the Exiting Lenders or any other
-6-
Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, and (II) it will perform in accordance with
their terms all of the obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender.
Notwithstanding anything to the contrary contained in the Credit Agreement, the parties
acknowledge and agree that this Section 3 shall be deemed to satisfy all requirements set forth in
Section 9.04 of the Credit Agreement for the assignment and assumption of the Revolving Commitments
and related rights and obligations being sold and assigned pursuant hereto, including without
limitation, the requirement that a separate Assignment and Assumption be entered into in connection
with each such sale and assignment.
THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT THE EXITING LENDERS ARE ENTERING INTO THIS
AMENDMENT SOLELY FOR PURPOSES OF THIS SECTION 3 AND SHALL NOT BE DEEMED TO BE BOUND BY ANY TERM OR
PROVISION OF THIS AMENDMENT OTHER THAN THIS SECTION 3.
4. No Default; Representations and Warranties, etc. The Loan Parties represent and warrant
to the Lenders and the Administrative Agents that as of the date hereof, after giving effect to the
amendments set forth herein (a) the representations of the Loan Parties contained in Article III of
the Credit Agreement are true and correct in all material respects as of the date hereof as if made
on such date (except to extent that such representations and warranties expressly relate to an
earlier date, in which case they shall be true and correct as of such date); (b) no Default or
Event of Default is continuing; and (c) the execution, delivery and performance by the Loan Parties
of this Amendment (i) have been duly authorized by all necessary corporate and, if required,
shareholder action on the part of each Loan Party, (ii) will not violate any applicable material
law or regulation or the organizational documents of any Loan Party and (iii) will not violate or
result in a default under any material indenture, agreement or other instrument binding on any Loan
Party or any of its assets.
5. Conditions Precedent. The effectiveness of this Amendment shall be conditioned upon the
satisfaction of each of the following conditions precedent:
(a) The Administrative Agents shall have received from the Loan Parties, the Continuing Lenders,
the New Lenders and the Existing Lenders either (a) a counterpart of this Amendment signed on
behalf of such party or (b) written evidence reasonably satisfactory to the Administrative Agents
(which may include telecopy transmission of a signed signature page of this Amendment) that such
party has signed a counterpart of this Amendment.
(b) The US Administrative Agent shall have received the fee letter dated as of October 19, 2009
among the US Administrative Agent, JPMorgan Securities, Inc. and the Company duly executed on
behalf of the Company and the Company shall have paid the fees set forth therein to JPMorgan
Securities, Inc. and to the US Administrative Agent for the benefit of the applicable Lenders as
provided therein.
(c) The US Administrative Agent shall have received all fees and other amounts due and payable to
the Administrative Agents and the Lenders party hereto in connection with this Amendment,
including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed by the Loan Parties hereunder or under the Credit Agreement (including without
limitation, the fees and disbursements of counsel to the Administrative Agents in connection
herewith).
(d) The Administrative Agents shall have received such other documents as the Administrative Agents
shall have reasonably requested, all of which shall be in form and substance satisfactory to the
Admninistrative Agents.
-7-
6. Miscellaneous.
(a) The Loan Parties, the Continuing Lenders, the New Lenders and the Administrative Agents hereby
ratify and confirm the terms and provisions of the Credit Agreement and the other Loan Documents
and agree that, except to the extent specifically amended hereby, the Credit Agreement, the other
Loan Documents and all related documents shall remain in full force and effect. Nothing contained
herein shall constitute a waiver of any provision of the Loan Documents, except such waivers or
consents as are expressly set forth herein.
(b) The Loan Parties hereby agree that no later than 60 days after the First Amendment Effective
Date, the Loan Parties shall execute and deliver to the Administrative Agents such amendments to
and confirmations of the Security Agreement, the Mortgages and such other Loan Documents as the
Administrative Agents may request to reflect the extension of the Revolving Maturity Date effected
hereby, which amendments and confirmations shall be satisfactory in form and substance to the
Administrative Agents.
(c) For avoidance of doubt, the parties hereto hereby acknowledge and agree that all references in
the Credit Agreement to the “Maturity Date” shall be deemed to be references to the “Revolving
Maturity Date.”
(d) The Loan Parties, the Continuing Lenders, the New Lenders and the Administrative Agents hereby
agree that, notwithstanding anything to the contrary set forth in the Credit Agreement, any Lender
may make Canadian Revolving Loans to the Canadian Borrower by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loans.
(e) The Borrower agrees to pay all reasonable out-of-pocket costs and expenses incurred by JPMorgan
Chase Bank, N.A. and its respective Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agents), in connection with the preparation and
administration of this Amendment or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby shall be consummated).
(f) This Amendment may be executed in any number of counterparts (including by way of facsimile
transmission), each of which, when executed and delivered, shall be an original, but all
counterparts shall together constitute one instrument.
(g) This Amendment shall be governed by the laws of the State of New York and shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and assigns.
[Signature Pages Follow]
-8-
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Amended and
Restated Credit Agreement to be duly executed by their respective authorized officers as of the day
and year first above written.
| US BORROWERS: XXXXX & CO. INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX MBC, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF NEW YORK CITY, L.L.C. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX GCOM2 SOLUTIONS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX BUSINESS COMMUNICATIONS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
[Signature Pages to First Amendment to Amended and Restated Credit Agreement]
| XXXXX OF DALLAS LIMITED PARTNERSHIP |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF LOS ANGELES, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF SOUTH BEND, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF CHICAGO, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF BOSTON, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF PHOENIX, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| XXXXX OF ATLANTA, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF CLEVELAND, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF DALLAS, INC. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| CANADIAN BORROWER: XXXXX OF CANADA, LTD. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| OTHER LOAN PARTIES: XXXXX ENTERPRISE SOLUTIONS, L.L.C. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX OF SOUTH BEND I, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| XXXXX SOLUTIONS, L.L.C. |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX TECHNOLOGY ENTERPRISE, LLC |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
| XXXXX MB CORPORATION |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Treasurer and V.P. of Tax and Finance | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| US ADMINISTRATIVE AGENT: JPMORGAN CHASE BANK, N.A., individually, as US Administrative Agent, Issuing Bank and US Swingline Lender |
||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| CANADIAN ADMINISTRATIVE AGENT: JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, individually as Canadian Administrative Agent and Canadian Swingline Lender |
||||
| By: | /s/ Xxx Xxxxx | |||
| Name: | Xxx Xxxxx | |||
| Title: | Senior Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| CONTINUING LENDER: JPMORGAN CHASE BANK, N.A. |
||||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |||
| Name: | Xxxx X. Xxxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| CONTINUING LENDER: BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| EXITING LENDER: CITIBANK, N.A. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| EXITING LENDER: WACHOVIA BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Tray Xxxxx | |||
| Name: | Tray Xxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| CONTINUING LENDER: CAPITAL ONE, N.A. |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Senior Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| EXITING LENDER: US BANK, NATIONAL ASSOCIATION |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| NEW LENDER: SOVEREIGN BANK |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Senior Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| NEW LENDER: XXXXX FARGO FOOTHILL, LLC |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Executive Vice President | |||
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
| XXXXX FARGO FOOTHILL CANADA ULC1 |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: | Executive Vice President | |||
| 0 | Xxxxx Xxxxx Xxxxxxxx Xxxxxx ULC, an Affiliate of Xxxxx Fargo Foothill, LLC, is not a Lender and does not have a separate Commitment under the Credit Agreement. |
[Signature Page to First Amendment to Amended and Restated Credit Agreement]
Commitment Schedule
| Applicable | ||||||||
| Lender | Revolving Commitment | Percentage | ||||||
JPMorgan Chase Bank, N.A. |
$ | 29,126,984.13 | 23.680474900 | % | ||||
Bank of America, N.A. |
$ | 29,126,984.13 | 23.680474900 | % | ||||
Xxxxx Fargo Foothill, LLC |
$ | 29,126,984.12 | 23.680474900 | % | ||||
Sovereign Bank |
$ | 20,000,000.00 | 16.260162602 | % | ||||
Capital One, N.A. |
$ | 15,619,047.62 | 12.698412699 | % | ||||
Citibank, N.A. |
$ | 0 | 0 | % | ||||
Wachovia Bank, National Association |
$ | 0 | 0 | % | ||||
US Bank, National Association |
$ | 0 | 0 | % | ||||
Total |
$ | 123,000,000.00 | 100 | % | ||||
