Exhibit 10.22
EXECUTION
THE XXXXXXX XXXXXX COMPANY
XXXXXX'X, INC.
THIRD AMENDMENT
TO CREDIT AND GUARANTY AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AND GUARANTY AGREEMENT (this "AMENDMENT") is
dated as of November 24, 2004 and is entered into by and among THE XXXXXXX
XXXXXX COMPANY, a Massachusetts corporation (the "COMPANY"), XXXXXX'X, INC., a
Delaware corporation ("HOLDINGS"), CERTAIN FINANCIAL INSTITUTIONS listed on the
signature pages hereto (the "LENDERS"), XXXXXXX XXXXX CREDIT PARTNERS L.P., as
Lead Arranger, Bookrunner and Syndication Agent ("SYNDICATION AGENT"), FLEET
NATIONAL BANK ("FLEET"), as Administrative Agent ("ADMINISTRATIVE AGENT") and is
made with reference to that certain CREDIT AND GUARANTY AGREEMENT dated as of
August 15, 2001, as amended by that certain First Amendment to Credit and
Guaranty Agreement dated as of March 27, 2002 and as amended by that certain
Second Amendment to Credit and Guaranty Agreement dated as of July 29, 2003 (the
"CREDIT AGREEMENT"). Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement after giving
effect to this Amendment.
RECITALS
WHEREAS, Company has requested that Requisite Lenders agree to amend the
Credit Agreement to eliminate the requirements of Section 5.12; and
WHEREAS, Requisite Lenders are willing to agree to such an amendment;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION I. AMENDMENT TO CREDIT AGREEMENT
1.1 AMENDMENT TO SECTION 1.1: DEFINITIONS.
Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "Letter of Credit Sublimit" and replacing it with the following:
""LETTER OF CREDIT SUBLIMIT" means the lesser of (i) $60,000,000 and (ii)
the aggregate unused amount of the Revolving Commitments then in effect."
1.2 AMENDMENT TO SECTION 5.12: INTEREST RATE PROTECTION.
Section 5.12 of the Credit Agreement is hereby amended by deleting such
section in its entirety and replacing it with the following:
"5.12 [RESERVED]."
SECTION II. CONDITIONS TO EFFECTIVENESS
A. Section I of this Amendment shall become effective as of the date
hereof (the "THIRD AMENDMENT EFFECTIVE DATE") upon receipt by Administrative
Agent of a counterpart signature page of this Amendment duly executed by each of
the Credit Parties and Requisite Lenders.
SECTION III. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, each Credit Party which is a
party hereto represents and warrants to each Lender that the following
statements are true and correct in all material respects:
A. CORPORATE POWER AND AUTHORITY. Each Credit Party, which is party
hereto, has all requisite power and authority to enter into this Amendment and
to carry out the transactions contemplated by, and perform its obligations
under, the Credit Agreement as amended by this Amendment (the "AMENDED
AGREEMENT") and the other Credit Documents.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Credit
Documents have been duly authorized by all necessary action on the part of each
Credit Party.
C. NO CONFLICT. The execution and delivery by each Credit Party of this
Amendment and the performance by each Credit Party of the Amended Agreement and
the other Credit Documents do not and will not (i) violate (A) any provision of
any law, statute, rule or regulation, or of the certificate or articles of
incorporation or partnership agreement, other constitutive documents or by-laws
of Holdings, Borrower or any Credit Party or (B) any applicable order of any
court or any rule, regulation or order of any Governmental Authority, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under any Contractual Obligation of the
applicable Credit Party, where any such conflict, violation, breach or default
referred to in clause (i) or (ii) of this Section III.C., individually or in the
aggregate could reasonably be expected to have a Material Adverse Effect, (iii)
except as permitted under the Amended Agreement, result in or require the
creation or imposition of any Lien upon any of the properties or assets of each
Credit Party (other than any Liens created under any of the Credit Documents in
favor of Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or partners or any approval or consent of any Person
under any Contractual Obligation of each Credit Party, except for such approvals
or consents which will be obtained on or before the Third Amendment Effective
Date and except for any such approvals or consents the failure of which to
obtain will not have a Material Adverse Effect.
D. GOVERNMENTAL CONSENTS. No action, consent or approval of, registration
or filing with or any other action by any Governmental Authority is or will be
required in connection with the execution and delivery by each Credit Party of
this Amendment and the performance by Borrower and Holdings of the Amended
Agreement and the other Credit Documents, except for such actions, consents and
approvals the failure to obtain or make which could not reasonably be
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expected to result in a Material Adverse Effect or which have been obtained and
are in full force and effect.
E. BINDING OBLIGATION. This Amendment and the Amended Agreement have been
duly executed and delivered by each of the Credit Parties party thereto and each
constitutes a legal, valid and binding obligation of such Credit Party to the
extent a party thereto, enforceable against such Credit Party in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting creditors' rights
generally and except as enforceability may be limited by general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT.
The representations and warranties contained in Section 4 of the Amended
Agreement are and will be true and correct in all material respects on and as of
the Third Amendment Effective Date to the same extent as though made on and as
of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true and correct
in all material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Default other than Identified
Events of Default.
SECTION IV. [RESERVED].
SECTION V. GENERAL RELEASE
In consideration of the Agents' and the Lenders' execution of this
Amendment, Holdings, Borrower and each Credit Party, unconditionally and
irrevocably acquits and fully and forever releases and discharges the Agents and
each Lender and all affiliates, partners, subsidiaries, officers, employees,
agents, attorneys, principals, directors, trustees and advisors and shareholders
of such Persons, and their respective heirs, legal representatives, successors
and assigns (collectively, the "CREDITOR RELEASEES") from any and all claims,
demands, causes of action, obligations (other than any contractual obligations
under this Amendment, the Credit Agreement and any other Credit Document),
remedies, suits, damages and liabilities of any nature whatsoever, whether now
known, suspected or claimed, whether arising under common law, in equity or
under statute, which such Credit Party ever had or now has against any of the
Creditor Releasees and which may have arisen at any time prior to the date
hereof and which were in any manner related to this Amendment or related
documents, instruments or agreements or the enforcement or attempted or
threatened enforcement by any of the Creditor Releasees of any of their
respective rights, remedies or recourse related thereto (collectively, the
"CREDITOR RELEASED CLAIMS"). Each of Holdings and Borrower covenants and agrees
that it will not, and will cause the other Credit Parties not to, commence,
voluntarily aid in any way, prosecute or cause to be commenced or prosecuted
against any of the Creditor Releasees any action or other proceeding based upon
any of the Creditor Released Claims. Notwithstanding the foregoing, in no event
shall the foregoing be interpreted, construed or otherwise deemed as an
admission or suggestion by the Agents and Lenders of any wrong doing or
liability owed to Holdings, Borrower, any Credit Party or any other Person.
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SECTION VI. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER CREDIT
DOCUMENTS.
(i) On and after the Third Amendment Effective Date, each reference
in the Credit Agreement to "this Amendment", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Credit Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement as amended
by this Amendment.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Credit Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of any Agent or Lender under, the Credit Agreement
or any of the other Credit Documents.
B. HEADINGS. Section and Subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
COMPANY: THE XXXXXXX XXXXXX COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: EVP & CFO
HOLDINGS: XXXXXX'X, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Name: Xxxxxxx X. Xxxxx
Title: EVP & CFO
SYNDICATION AGENT: XXXXXXX SACHS CREDIT PARTNERS L.P.
By:/s/ Xxxxxxxxx Xxxxxxx
---------------------------
Authorized Signatory
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A. AS AGENT FOR
FLEET NATIONAL BANK AS
ADMINISTRATIVE AGENT
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
XXXXXXX SACHS CREDIT PARTNERS L.P.
LENDER: By signing below, you have indicated your
consent to the Third Amendment
By: /s/ Xxxxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Authorized Signatory
LENDER:
FLEET NATIONAL BANK AS LENDER
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Flagship CLO 2001-I
By: Flagship Capital Management, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
Flagship CLO II
By: Flagship Capital Management, Inc.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
LENDER: By signing below, you have indicated your
consent to the Third Amendment
SIERRA CLO I LTD
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
Centre Pacific, LLP
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
AVALON CAPITAL LTD. 2 Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
CHARTER VIEW PORTFOLIO Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
DIVERSIFIED CREDIT PORTFOLIO LTD. Third Amendment
By: INVESCO Senior Secured Management, Inc.
as Investment Adviser
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
AIM FLOATING RATE FUND Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Sub-Adviser
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
INVESCO EUROPEAN CDO I.S.A. Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
SEQUILS-LIBERTY, LTD. Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
SAGAMORE CLO LTD. Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Collateral Manager
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have
-------------------------------------------- indicated your consent to the
SARATOGA CLO I, LIMITED Third Amendment
By: INVESCO Senior Secured Management, Inc.
As Asset Manager
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
LENDER: By signing below, you have indicated your
consent to the Third Amendment
By: AIB DEBT MANAGEMENT LIMITED
/s/ Xxxxxx X'Xxxxxxx
----------------------------------
Name: Xxxxxx X'Xxxxxxx
Title: Assistant Vice President
Investment Advisor to
AIB Debt Management, Limited
/s/ Xxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Vice President
Investment Advisor to
AIB Debt Management, Limited
LENDER: By signing below, you have indicated your
consent to the Third Amendment
By: ALLIED IRISH BANKS PLC
/s/ Xxxxxx X'Xxxxxxx
----------------------------------
Name: Xxxxxx X'Xxxxxxx
Title: Assistant Vice President
/s/ Xxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
LENDER: By signing below, you have indicated your
consent to the Third Amendment
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: DIRECTOR
BALANCED HIGH-YIELD FUND II, LTD.
BY: ING Capital Advisors LLC,
as Asset Manager
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: DIRECTOR
ENDURANCE CLO I, LTD.
c/o: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: DIRECTOR
ING-ORYX CLO, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: DIRECTOR
LENDER: By signing below, you have indicated your
consent to the Third Amendment
NEMEAN CLO, LTD.
BY: ING Capital Advisors LLC,
as Investment Manager
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: DIRECTOR
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------
Name: XXXXXX X. XXXXXXXXXX
Title: DIRECTOR
LENDER: TRANSAMERICA BUSINESS
CAPITAL CORPORATION,
By: /s/ Xxxxx Xxxxxx
-----------------
Name: Xxxxx Xxxxxx
Title: Duly Authorized Signatory
LENDER: BNP PARIBAS By signing below, you have indicated your
consent to the Third Amendment
By: /s/ Xxxxxx Squerer
-----------------------------
Name: XXXXXX SQUERER
Title: DIRECTOR
Merchant Banking Group
/s/ Xxxxxxx Xxxxxx
XXXXXXX XXXXXX
VICE PRESIDENT
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Sankaty Advisors, LLC as Collateral Manager for
Xxxxx Point CLO, Limited, as Term Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director/Portfolio
Manager
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Sankaty Advisors, LLC as Collateral Manager for
Race Point CLO, Limited, as Term Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director/Portfolio
Manager
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Sankaty Advisors, LLC as Collateral Manager for
Race Point II CLO, Limited, as Term Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director/Portfolio
Manager
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Sankaty Advisors, LLC as Collateral Manager for
Castle Hill I-Ingots, Ltd., as Term Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director/Portfolio
Manager
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Sankaty Advisors, LLC as Collateral Manager for
Castle Hill II-Ingots, Ltd., as Term Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director/Portfolio
Manager
LENDER: By signing below, you have indicated your
consent to the Third Amendment
Sankaty Advisors, LLC as Collateral Manager for
Castle Hill III CLO, Ltd., as Term Lender
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director/Portfolio
Manager
LENDER: By signing below, you have indicated your
consent to the Third Amendment
LONG LANE MASTER TRUST IV
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Agent
LENDER: By signing below, you have indicated your
consent to the Third Amendment
HARBOUR TOWN FUNDING LLC
By: /s/ Xxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
LENDER: By signing below, you have indicated your
consent to the Third Amendment
CIT LENDING SERVICES
CORPORATION
By: /s/ Xxxx X. Xxxxxx, XX
---------------------------------
Name: Xxxx X. Xxxxxx, XX
Title: Vice President
PROVIDENT BANK:
By signing below, you have indicated your consent to the Third Amendment
By: /s/ Xxxx X. XxXxxxxxxxx
----------------------------
Name: Xxxx X. XxXxxxxxxxx
Title: Senior Vice President
LENDER: KZH PONDVIEW LLC By signing below, you have indicated your
consent to the Third Amendment
By: /s/ Hi Hua
-------------------------
Name: HI HUA
Title: AUTHORIZED AGENT
