Amendment No. 3 to Note Purchase Agreement dated as of September 30, 2003
Exhibit 10.1
Amendment No. 3
to
Note Purchase Agreement
dated as of September 30, 2003
dated as of September 30, 2003
As of October 13, 2006
To each of the Persons listed in the Attached Schedule 1
(each, a “Current Noteholder”)
(each, a “Current Noteholder”)
Ladies and Gentlemen:
Xxxxxxxx & Company, a Georgia corporation (together with its successors and assigns, the
“Company”) and Xxxxxxxx & Company International, Inc., a Georgia corporation (together with its
successors and assigns, the “Co-Obligor” and together with the Company, the “Obligors”) jointly and
severally agree with you as follows:
1. | NOTE ISSUANCE, ETC. |
(a) The Obligors jointly and severally issued and sold $50,000,000 aggregate principal
amount of their joint and several 6.08% Senior Guarantied Notes due October 10, 2010 (the
“Notes”), pursuant to that certain Note Purchase Agreement dated as of September 30, 2003 by
and among the Obligors and each of the persons listed in Schedule A attached thereto, as
amended by that certain Waiver and Amendment to Note Purchase Agreement, dated as of
September 30, 2005, by and among the Obligors and each of the persons listed in Schedule 1
attached thereto, and as further amended by that certain Waiver and Amendment No. 2 to Note
Purchase Agreement, dated as of June 16, 2006, by and among the Obligors and each of the
persons listed in Schedule 1 attached thereto (prior to the amendment effected hereby, the
“Existing Agreement” and, immediately after giving effect to such amendment, and as may be
further amended, restated or otherwise modified from time to time, the “Amended Agreement”).
(b) The register for the registration and transfer of the Notes indicates that the
Current Noteholders are currently the holders of the entire outstanding principal amount of
the Notes.
2. | DEFINED TERMS. |
Capitalized terms used herein and not otherwise defined herein have the meanings ascribed to
them in the Amended Agreement.
3. | AMENDMENT. |
Subject to Section 5, the Existing Agreement is amended in the manner set forth below (the
“Amendment”):
(a) Amendment to Schedule B of the Existing Agreement. Schedule B of the Existing Agreement
is hereby amended as follows:
(i) The definition of “Permitted Acquisitions” is hereby amended and restated in its
entirety as follows:
““Permitted Acquisitions” means any Acquisition so long as
(a) at the time of such Acquisition, no Default or Event of Default is in
existence;
(b) such Acquisition has been approved or recommended by the board of directors
of the Person being acquired; and
(c)
(i) with respect to an Acquisition consummated during the period from
August 1, 2006 through and including July 31, 2007, the Total Acquisition
Consideration of such Acquisition, when aggregated with the Total
Acquisition Consideration of all Acquisitions consummated by the Company and
the Consolidated Subsidiaries during such period, does not exceed
$25,000,000;
(ii) with respect to an Acquisition consummated during the period from
August 1, 2007 through and including July 31, 2008, the Total Acquisition
Consideration of such Acquisition, when aggregated with the Total
Acquisition Consideration of all Acquisitions consummated by the Company and
the Consolidated Subsidiaries during such period, does not exceed 10% of
Consolidated Net Worth determined as of the last day of the then most
recently ended fiscal quarter of the Company; and
(iii) with respect to an Acquisition consummated before August 1, 2006
or after July 31, 2008, the Total Acquisition Consideration of such
Acquisition, when aggregated with the Total Acquisition Consideration of all
Acquisitions consummated by the Company and the Consolidated Subsidiaries
during the preceding 12 month period, does not exceed 10% of Consolidated
Net Worth determined as of the last day of the then most recently ended
fiscal quarter of the Company.”
4. | WARRANTIES AND REPRESENTATIONS. |
To induce the Current Noteholders to enter into this Amendment No. 3, the Obligors warrant and
represent as follows (it being agreed, however, that nothing in this Section 4 shall
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affect any of the warranties and representations previously made by the Obligors in or
pursuant to the Existing Agreement, and that all of such other warranties and representations, as
well as the warranties and representations in this Section 4, shall survive the effectiveness of
the Amendment):
4.1. | Organization; Power and Authority. |
Each Obligor is duly organized, validly existing and in good standing under the laws of
Georgia, and is duly qualified as a foreign corporation and in good standing in each jurisdiction
in which such qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each Obligor has the corporate power and
authority to execute and deliver this Amendment No. 3 and to perform the provisions hereof.
4.2. | Authorization, etc. |
This Amendment No. 3 has been duly authorized by all necessary corporate action on the part of
each Obligor and constitutes a legal, valid and binding obligation of each Obligor enforceable
against each Obligor, jointly and severally, in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors’ rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.3. | Compliance with Laws, Other Instruments, etc. |
The execution, delivery and performance by the Obligors of this Amendment No. 3 will not (a)
contravene, result in any breach of, or constitute a default under, or result in the creation of
any Lien in respect of any property of the Obligors or any Subsidiary of the Company under, any
applicable indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate
charter or by-laws, or any other applicable agreement or instrument to which the Company, the
Co-Obligor or any Subsidiary of the Company, or any of their respective properties, may be bound or
affected, (b) conflict with or result in a breach of any of the terms, conditions or provisions of
any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to the Obligors or any Subsidiary of the Company or (c) violate any provision of any
statute or other rule or regulation of any Governmental Authority applicable to the Obligors or any
Subsidiary of the Company.
4.4. | Disclosure of Defaults. |
After giving effect to this Amendment No. 3, no event will have occurred and no condition will
exist which would constitute a Default or an Event of Default under the Amended Agreement.
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4.5. | Full Disclosure. |
Neither the financial statements and other certificates previously provided to the Current
Noteholders pursuant to the provisions of the Existing Agreement nor the statements made in this
Amendment No. 3 nor any other written statements furnished by or on behalf of the Obligors to the
Current Noteholders in connection with the proposal and negotiation hereof, taken as a whole,
contain any untrue statement of a material fact or omit a material fact necessary to make the
statements contained therein and herein not misleading.
4.6. | No Material Adverse Change. |
Since December 31, 2005, there has been no change in the financial condition, operations,
business, properties or prospects of the Obligors or any Subsidiary of the Company except changes
that, in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
5. | EFFECTIVENESS OF AMENDMENT. |
This Amendment No. 3 shall become effective as of October 13, 2006 (the “Effective Date”),
provided that
(i) the Company and the Required Holders shall have indicated their written consent hereto by
executing and delivering to each other counterparts hereof; and
(ii) each Current Noteholder shall have received a fully executed copy of that certain
Amendment No. 3 to First Amended and Restated Credit Agreement, dated as of September 21, 2006,
among the Obligors, the lenders party thereto, and SunTrust Bank, as Administrative Agent.
6. | EXPENSES |
Whether or not this Amendment No. 3 becomes effective, the Company will promptly (and in any
event within thirty (30) days of receiving any statement or invoice therefor) pay all reasonable
fees, expenses and costs relating to this Amendment No. 3, including, but not limited to, (a) the
cost of reproducing this Amendment No. 3 and the other documents delivered in connection herewith
and (b) the reasonable fees and disbursements of the Current Noteholders’ special counsel, Xxxxxxx
XxXxxxxxx LLP, incurred in connection with the preparation, negotiation and delivery of this
Amendment No. 3. Nothing in this Section 6 shall be construed to limit the Company’s obligations
under Section 15.1 of the Existing Agreement.
7. | MISCELLANEOUS. |
7.1. | Effect of this Amendment No. 3. |
Except as expressly provided herein:
(a) no terms and provisions of any agreement are modified or changed by this Amendment
No. 3;
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(b) the terms and provisions of the Existing Agreement and the Notes shall continue in
full force and effect; and
(c) each Obligor hereby acknowledges and reaffirms all of its obligations and duties
under the Amended Agreement and the Notes, and by its signature on the Acknowledgment page
hereto, each Guarantor hereby acknowledges and reaffirms all of its obligations and duties
under the Guaranty Agreement.
7.2. | Governing Law. |
This Amendment No. 3 shall be construed and enforced in accordance with, and the rights of the
parties shall be governed by, the law of the State of New York excluding choice-of-law principles
of the law of such State that would require the application of the laws of a jurisdiction other
than such State.
7.3. | Duplicate Originals; Effectiveness. |
Two or more duplicate originals of this Amendment No. 3 may be signed by the parties, each of
which shall be an original but all of which together shall constitute one and the same instrument.
This Amendment No. 3 may be executed in one or more counterparts and shall be effective when at
least one counterpart shall have been executed by each party hereto, and each set of counterparts
which, collectively, show execution by each party hereto shall constitute one duplicate original.
7.4. | Section Headings. |
The titles of the sections hereof appear as a matter of convenience only, do not constitute a
part of this Amendment No. 3 and shall not affect the construction hereof.
7.5. | Entire Agreement. |
This Amendment No. 3 constitutes the final written expression of all of the terms hereof and
is a complete and exclusive statement of those terms.
[Remainder of page intentionally left blank; next page is signature page.]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment No. 3 to be duly executed and
delivered by their respective duly authorized officers.
XXXXXXXX & COMPANY | ||
By: /s/ Xxxxxx X. Xxxxxxxx | ||
Name: Xxxxxx X. Xxxxxxxx | ||
Title: Senior Vice President & Treasurer | ||
XXXXXXXX & COMPANY | ||
INTERNATIONAL, INC. | ||
By:_/s/ Xxxxxx X. Xxxxxxxx | ||
Name: Xxxxxx X. Xxxxxxxx | ||
Title: Vice President & Treasurer |
Schedule 1-1
CURRENT NOTEHOLDERS:
The foregoing is hereby agreed to as of the date thereof.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxx Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Name: Xxxxx X. Xxxxx
Title: Vice President
PRUCO LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
Name: Xxxxx x. Xxxxx
Title: Assistant Vice President
Name: Xxxxx x. Xxxxx
Title: Assistant Vice President
PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY
By: /s/ Xxxxx Xxxxx
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
RGA REINSURANCE COMPANY | ||||
By: | Prudential Private Placement Investors, L.P. | |||
(as Investment Advisor) | ||||
By: | Prudential Private Placement Investors, Inc. | |||
(as its General Partner) | ||||
By: /s/ Xxxxx Xxxxx | ||||
Name: Xxxxx X. Xxxxx | ||||
Title: Vice President |
RELIASTAR LIFE INSURANCE COMPANY | ||||
By: | Prudential Private Placement Investors, L.P. | |||
(as Investment Advisor) | ||||
By: | Prudential Private Placement Investors, Inc. | |||
(as its General Partner) | ||||
By: /s/ Xxxxx Xxxxx | ||||
Name: Xxxxx X. Xxxxx | ||||
Title: Vice President |
Schedule 1-2
Acknowledgment Page
Each of the undersigned consents to the execution and delivery of this Amendment No. 3 by the
Obligors and reaffirms its obligations under the Guaranty Agreement:
CALESCO, INC.
XXXXXXXX & COMPANY OF NEW YORK, INC.
XXXXXXXX LEASING SERVICES, INC.
RISK SCIENCES GROUP, INC.
THE PRISM NETWORK, INC.
XXXXXXXX & COMPANY HEALTHCARE
MANAGEMENT, INC.
QIRRA CUSTOM SOFTWARE, INC.
XXXXXXXXXXXX XXXXXX, INC.
XXXXXXXXXXXX, INC.
XXXXXXXX & COMPANY OF NEW YORK, INC.
XXXXXXXX LEASING SERVICES, INC.
RISK SCIENCES GROUP, INC.
THE PRISM NETWORK, INC.
XXXXXXXX & COMPANY HEALTHCARE
MANAGEMENT, INC.
QIRRA CUSTOM SOFTWARE, INC.
XXXXXXXXXXXX XXXXXX, INC.
XXXXXXXXXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
THE GARDEN CITY GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
Name: Xxxxxx X. Xxxxxxxx
Title: Treasurer
XXXXXXXX & COMPANY L.P. | ||
By:
|
Xxxxxxxx & Company, its General Partner | |
By: /s/ Xxxxxx X. Xxxxxxxx | ||
Name: Xxxxxx X. Xxxxxxxx | ||
Title: Senior Vice President & Treasurer |
Schedule 1-3
XXXXXXXX & COMPANY EMPLOYMENT
SERVICES, INC.
SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
Name: Xxxx X. Xxxxxxxxx
Title: President
Schedule 1-4
XXXXXXXX & COMPANY OF FLORIDA
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Secretary
Name: Xxxxx Xxxx
Title: Secretary
Schedule 1-5
XXXXXXXX & COMPANY OF ILLINOIS
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President
Name: Xxxxxx X. Xxxxxx
Title: President
Schedule 1-6
XXXXXXXX & COMPANY OF CALIFORNIA
By: /s/ Xxxxxxx X. Van Fleet
Name: Xxxxxxx X. Van Fleet
Title: President
Name: Xxxxxxx X. Van Fleet
Title: President
Schedule 1-7
CRAWFORD HEALTHCARE MANAGEMENT
OF NORFOLK AND BALTIMORE, INC.
OF NORFOLK AND BALTIMORE, INC.
By: /s/ Xxxxxxx X. Beach
Name: Xxxxxxx X. Beach
Title: Vice President & Secretary
Name: Xxxxxxx X. Beach
Title: Vice President & Secretary
Schedule 1-8
CRAWFORD INVESTIGATION SERVICES, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: President
Name: Xxxxxx Xxxxxx
Title: President
Schedule 1-9