EXHIBIT 10.26
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 7, 2001 (this "Amendment") is entered into among XXXXX, INC. (the
"Company"), LANFIN INVESTMENTS INC. (the "Canadian Borrower"), the FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (the "Lenders"), FIRST UNION
NATIONAL BANK, as syndication agent, WACHOVIA BANK, N.A., as documentation
agent, BANK OF AMERICA CANADA, as Canadian Agent, BANK OF AMERICA, N.A. ("Bank
of America"), as Issuing Lender and as Administrative Agent, and BANK OF
AMERICA, NATIONAL ASSOCIATION, ACTING THROUGH ITS CANADIAN BRANCH.
RECITALS
A. The Company, the Canadian Borrower, the Lenders, the Canadian
Agent and the Administrative Agent are parties to that certain Amended and
Restated Credit Agreement dated as of May 26, 2000 (the "Agreement").
B. The parties wish to amend the Agreement as hereinafter set
forth in order to, among other things, reflect that Bank of America, National
Association, acting through its Canadian Branch, is succeeding to the rights
and obligations of Bank of America Canada under the Agreement effective as of
January 1, 2002, correct certain financial covenant provisions and permit a
reorganization of certain Subsidiaries of the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms which are used
herein without definition and that are defined in the Agreement shall have the
same meanings herein as in the Agreement.
2. Amendments to Agreement. The Agreement is hereby amended as
follows:
2.1 Effective as of January 1, 2002, the definition of
"Canadian BA Lender" in Section 1.1 of the Agreement is amended by replacing
the words "bank chartered under the Bank Act (Canada)" with the words "bank
mentioned in Schedule I or Schedule II of the Bank Act (Canada) or is an
authorized foreign bank mentioned in Schedule III of the Bank Act (Canada) that
is not subject to the restrictions and requirements referred to in subsection
524(2) of the Bank Act (Canada)".
2.2 Effective as of January 1, 2002, the definition of
"Canadian Prime Rate" in Section 1.1 of the Agreement is amended by replacing
the words "Bank of America Canada" with
"Bank of America, National Association, acting through its Canadian Branch" in
each instance in which they appear in such definition.
2.3 Effective as of January 1, 2002, (i) Bank of America
Canada resigns as Canadian Agent, (ii) the undersigned Required Lenders
appoint, and Bank of America, National Association, acting through its Canadian
Branch accepts the appointment of, Bank of America, National Association,
acting through its Canadian Branch as the Canadian Agent in place of Bank of
America Canada, (iii) Bank of America, National Association, acting through its
Canadian Branch succeeds to all of the rights and is obligated to perform all
of the obligations of the Canadian Agent under the Agreement and the other Loan
Documents, and (iv) Bank of America Canada is released from its obligations as
Canadian Agent under the Credit Agreement and the other Loan Documents, to the
extent such obligations are assumed by Bank of America, National Association,
acting through its Canadian Branch.
2.4 Section 8.1 of the Agreement is amended by replacing
the phrase "the third anniversary of the Effective Date" with the date "May 12,
2002" wherever it occurs therein.
2.5 Section 8.4 of the Agreement is amended so that the
proviso following clause (c) thereof reads in its entirety as follows:
"provided that, notwithstanding the foregoing, so long as the HSW
Mortgage Loan exists, the Company shall not permit HSW Mortgage Corp.
or any direct or indirect parent thereof, other than the Company (each
a "Restricted Subsidiary") to merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all
of its assets (whether now owned or hereafter acquired) to or in favor
of any other Person, except that (w) any Restricted Subsidiary may
merge or consolidate with or into the Company, provided that the
Company shall be the continuing or surviving corporation, (x) any
Restricted Subsidiary may convey, transfer, lease or otherwise dispose
of all or substantially all of its assets (upon voluntary liquidation
or otherwise), to the Company, (y) any Restricted Subsidiary may merge
or consolidate with or into any Wholly-Owned Subsidiary of the Company
(whereupon such Restricted Subsidiary shall cease to be a Restricted
Subsidiary and such Wholly-Owned Subsidiary shall become a Restricted
Subsidiary), and (z) any Restricted Subsidiary may convey, transfer,
lease or otherwise dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise), to any Wholly-Owned
Subsidiary of the Company (whereupon such Restricted Subsidiary shall
cease to be a Restricted Subsidiary and such Wholly-Owned Subsidiary
shall become a Restricted Subsidiary)."
2.6 Section 8.14 of the Agreement is amended so that the
first sentence thereof reads in its entirety as follows:
"So long as the HSW Mortgage Loan exists, the Company shall not, and
shall not permit any Subsidiary to, sell or otherwise dispose of any
of its interest in any Restricted Subsidiary, except as permitted by
Section 8.4."
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3. Representations and Warranties. The Company hereby represents
and warrants to each Agent and each Lender (and the Canadian Borrower
represents and warrants with respect to itself to each Agent and each Lender)
as follows:
(i) Representations and Warranties. The representations
and warranties contained in Article VI of the Agreement are true and
correct in all material respects as of the date hereof (except to the
extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such
earlier date).
(ii) Enforceability. The execution and delivery by each
Borrower of this Amendment, and the performance by each Borrower of
this Amendment and the Agreement, as amended hereby, are within the
corporate powers of such Borrower and have been duly authorized by all
necessary corporate action on the part of such Borrower. This
Amendment and the Agreement, as amended hereby, are valid and legally
binding obligations of each Borrower, enforceable in accordance with
their terms.
(iii) No Default. No Event of Default or Unmatured Event
of Default has occurred and is continuing.
4. Effect of Amendment. Except as expressly amended and modified
by this Amendment, all provisions of the Agreement shall remain in full force
and effect; and each Borrower confirms and reaffirms its Obligations under the
Agreement as amended by this Amendment. After this Amendment becomes effective,
all references in the Agreement (or in any other Loan Document) to "this
Agreement", "hereof", "herein" or words of similar effect referring to the
Agreement shall be deemed to be references to the Agreement as amended by this
Amendment. This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Agreement other than as set forth
herein.
5. Effectiveness. This Amendment shall become effective upon the
receipt by the Agent on or before December 17, 2001 of counterparts of this
Amendment (whether by facsimile or otherwise) executed by the Borrowers, the
Agents, Bank of America, National Association, acting through its Canadian
Branch, and the Required Lenders (including the Required Canadian Lenders).
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. A facsimile of the
signature of any party on any counterpart shall be effective as the signature
of the party executing such counterpart for purposes of the effectiveness of
this Amendment.
7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of North Carolina without
regard to the conflicts or choice of law principles thereof; provided that the
parties hereto shall retain all rights arising under U.S. Federal law.
8. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this amendment or the Agreement or any provision hereof or
thereof.
[SIGNATURE PAGES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXX, INC.
By: /s/ B. Xxxxx Xxxxxxx
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Title: Vice President & CFO
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LANFIN INVESTMENTS INC.
By: /s/ B. Xxxxx Xxxxxxx
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Title: Vice President & Treasurer
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BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Managing Director
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BANK OF AMERICA, N.A., as Issuing Lender
and a U.S. Lender
By: /s/ Xxxxxxx X. Xxxxxxx
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Tide: Managing Director
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S-1 First Amendment
FIRST UNION NATIONAL BANK,
as Syndication Agent and a U.S. Lender
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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WACHOVIA BANK, N.A.,
as Documentation Agent and a U.S. Lender
By: /s/ Xxx Xxxxxxxxx
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Title: Vice President
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BANK OF AMERICA CANADA,
as Canadian Agent and a Canadian Lender
By: /s/ Xxxxxx Sales Xx Xxxxxxx
/s/ Xxxxxx Xxx
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Title: Asst. Vice President
Vice President
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BANK OF AMERICA, NATIONAL ASSOCIATION,
acting through its Canadian Branch
By: /s/ Xxxxx Xxx
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Title: Managing Director
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CONGRESS FINANCIAL CORPORATION
(CANADA), as a Canadian Lender
By: /s/ Xxxxx Xxxxxxxxx
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Title: Senior Vice President
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CANADIAN IMPERIAL BANK OF COMMERCE,
as a Canadian Lender
By: /s/ Xxxxx Xxxxxxx
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Title: Manager Commercial Credit
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