AMENDMENT NO. 8 TO CREDIT AGREEMENT
AMENDMENT
NO. 8
TO CREDIT AGREEMENT
This
Amendment No. 8 (this “Amendment”)
to the
Credit Agreement, dated as of September 30, 2005 (as amended by Amendment No.
1,
dated as of June 14, 2006 and Amendment No. 2, dated October 31, 2006, and
subject to a Consent and Waiver No. 3, dated as of October 31, 2006, Waiver
No.
4, dated as of March 30, 2007, and Amendment No. 5, dated as of August 31,
2007,
Waiver No. 6, dated as of September 25, 2007 and Amendment No. 7, dated as
of
October 4, 2007 the “Credit
Agreement”),
and
entered into by and among Duff & Xxxxxx, LLC (the “Borrower”),
Duff
& Xxxxxx Acquisitions, LLC, as one of the guarantors (“Holdings”),
the
persons designated as “Lenders” on the signature pages hereto (the “Lenders”)
and
General Electric Capital Corporation, in its capacity as Administrative Agent
(the “Administrative
Agent”)
for
its own benefit and the benefit of the Lenders, is dated as of January 31,
2008
and entered into by and among Borrower, the other Loan Parties signatory hereto,
the Lenders signatory hereto and Administrative Agent.
R E C I T A L S:
WHEREAS,
the parties hereto wish to amend the Credit Agreement on the terms and
conditions hereof; and
WHEREAS,
Section
11.1(a)
of the
Credit Agreement requires the written consent of the Required Lenders and the
Borrowers to certain amendments to the Credit Agreement.
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions
and
covenants herein contained, and subject to the terms and conditions hereof
the
Borrowers, the Loan Parties signatory hereto, the Lenders whose signatures
appear below and the Administrative Agent agree as follows:
Section
1.
DEFINITIONS
1.1 Defined
Terms.
Unless
otherwise provided all capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement.
Section
2.
AMENDMENT
2.1 Amendments.
Subject
to the satisfaction of the conditions set forth in Section
3,
the
Credit Agreement is hereby amended as follows:
(a) Section
1.1
is
amended by adding the following definitions in the appropriate alphabetical
locations:
“Amendment
No. 8”
means
Amendment No. 8, dated as of January 9, 2008, to this Agreement.
“Amendment
No. 8 Effective Date”
means
the ‘Effective Date’ (as such term is defined in Amendment No. 8).
“D&P”
means
Duff & Xxxxxx Corporation, a Delaware corporation.
(b) Article
IV
is
amended by adding a new Section
4.18
at the
end thereof as follows:
“Section
4.18 Duff
& Xxxxxx Corporation.
“As
of
the Amendment No. 8 Effective Date, D&P has not engaged in any business,
operations or activity, or held any property, other than (i) holding Stock
and
Stock Equivalents of Holdings, (ii) issuing, registering, selling and redeeming
its own Stock (and Stock Equivalents), (iii) paying taxes, (iv) holding
directors’ and shareholders’ meetings, preparing corporate and similar records
and other activities required to maintain its separate corporate or other legal
structure, (v) preparing reports to, and preparing and making notices to and
filings with, Governmental Authorities and to its holders of Stock and Stock
Equivalents and (vi) activities reasonably related or ancillary to any of the
foregoing activities.”
(c) Section
5.1
of the
Credit Agreement is amended by replacing the word “Borrower” appearing therein
with the phrase “Prior to December 31, 2007, Borrower, and on and after December
31, 2007, D&P”.
(d) Section
5.2
of the
Credit Agreement is amended by
replacing the word “Borrower” appearing therein with the phrase “Prior to
December 31, 2007, Borrower, and on and after to December 31, 2007,
D&P”.
(e) Section
6.1
of the
Credit Agreement is amended by adding the following sentence at the end such
Section:
“Notwithstanding
the foregoing, the parties hereby agree that Borrower may satisfy the reporting
requirements set forth in this Section
6.1
by
delivering to the Administrative Agent when due the reports, Financial
Statements, balance sheets or other documents, as applicable (together with
related Borrower and accountant certifications), that are prepared with respect
to D&P to the extent such reports, Financial Statements, balance sheets or
other documents, as applicable, are prepared on a consolidated and, where
applicable, a consolidating basis and otherwise satisfy the reporting
requirements set forth in the Section
6.1,
and all
references in Sections
6.1(a),
6.1(b)
and
6.1(c)
to
Holdings shall be deemed to be references to D&P and solely for the purposes
of Section
6.1,
the
term “Group Member” shall include D&P.”
(f) Section
8.8
of the
Credit Agreement is amended by replacing clause (viii) with the following:
“(viii) executing
such documents as are necessary to consummate any Permitted Acquisition
including the issuance of its own Stock and Stock Equivalents and complying
with
the requirements thereof so long as no other Indebtedness or liabilities are
incurred by Holdings in connection therewith”.
(g) Section
9.1
is
amended by (i) replacing the period ending paragraph (h) thereof with “; or” and
inserting immediately thereafter the following paragraph (i):
“(i)
At
any
time after the Amendment No. 8 Effective Date, D&P shall engage in any
business, operations or activity, or hold any property, other than (i) holding
Stock and Stock Equivalents of Holdings, (ii) issuing, registering, selling
and
redeeming its own Stock (and Stock Equivalents), (iii) paying taxes, (iv)
holding directors’ and shareholders’ meetings, preparing corporate and similar
records and other activities required to maintain its separate corporate or
other legal structure, (v) preparing reports to, and preparing and making
notices to and filings with, Governmental Authorities and to its holders of
Stock and Stock Equivalents (vi) receiving, and holding proceeds of Restricted
Payments of Holdings and distributing the proceeds thereof to its shareholders,
(vii)
executing such documents as are necessary to consummate any Permitted
Acquisition including the issuance of its own Stock and Stock Equivalents and
complying with the requirements thereof so long as no other Indebtedness or
liabilities are incurred by D&P in connection therewith and
(viii) activities reasonably related or ancillary to any of the foregoing
activities.”
2
Section
3.
CONDITIONS
TO EFFECTIVENESS
The
amendment provided in Section
2.1
shall
become effective on the date (the “Effective
Date”)
that
the following conditions have been satisfied in full or waived by the Required
Lenders:
(a) Administrative
Agent shall have received one or more counterparts of this Amendment No. 8
executed and delivered by the Loan
Parties,
the Required Lenders and Administrative Agent; and
(b) There
shall be no continuing Default or Event of Default and the representations
and
warranties of the Loan
Parties
contained in the Loan Documents, shall be true and correct in all material
respects as of the Effective Date or such other specific date as of which any
such representation or warranty is by its terms made.
Section
4.
LIMITATION
ON SCOPE
Except
as
expressly amended hereby, the Loan Documents shall remain in full force and
effect in accordance with their respective terms. The amendment set forth herein
shall be limited precisely as provided for herein and shall not be deemed to
be
a waiver of, amendment of, consent to or modification of any term or provision
of the Loan Documents or any other document or instrument referred to therein
or
of any transaction or further or future action on the part of any Loan Party
requiring the consent of Administrative Agent or Lenders except to the extent
specifically provided for herein. Administrative Agent and Lenders have not
and
shall not be deemed to have waived any of their respective rights and remedies
against any Loan Party for any existing or future Defaults or Events of
Default.
Section
5.
MISCELLANEOUS
(a) Each
Loan
Party hereby represents and warrants as follows:
(i) this
Amendment No. 8 has been duly authorized and executed by such Loan Party and
the
Credit Agreement, as amended by this Amendment No. 8 is the legal, valid and
binding obligation of such Loan Party, enforceable in accordance with its terms,
except as (1) such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the rights
of
creditors in general and (2) the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(ii) such
Loan
Party repeats and restates the representations and warranties of such Loan
Party
contained in the Credit Agreement as of the Effective Date, except to the extent
such representations and warranties relate to a specific date; provided
that
references to the “Credit Agreement” or “this Agreement” in such representations
and warranties shall be deemed to be references to the Credit Agreement as
amended pursuant to this Amendment No. 8.
(b) This
Amendment No. 8 is being delivered in the State of New York.
(c) Each
Loan
Party hereby ratifies and confirms that the Credit Agreement as amended hereby
remains in full force and effect.
3
(d) Each
Loan
Party agrees that all Loan Documents, as amended hereby or otherwise amended
in
connection herewith, remain in full force and effect notwithstanding the
execution and delivery of this Amendment No. 8 and all other Loan Documents
and
that nothing contained in this Amendment No. 8 shall constitute a defense to
the
enforcement of any Loan Document.
(e) This
Amendment No. 8 may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which counterparts together shall constitute but one and the same
instrument.
(f) All
references in the Loan Documents to the “Credit Agreement” and in the Credit
Agreement as amended hereby to “this Agreement,” “hereof,” “herein” or the like
shall mean and refer to the Credit Agreement as amended by this Amendment No.
8
(as well as by all subsequent amendments, restatements, modifications and
supplements thereto).
(g) This
Amendment is a “Loan Document” and each of the following provisions of the
Credit Agreement is hereby incorporated herein by this reference with
the
same effect as though set forth in its entirety herein,
mutatis
mutandis,
and as
if “this Agreement” in any such provision read “this Amendment No. 8”:
Section
12.13
(Governing Law), Section
12.14
(Jurisdiction), Section
12.15
(Waiver
of Jury Trial) and Section 12.16
(Severability).
[Signature
page is next page]
4
Witness
the due execution hereof by the respective duly authorized officers of the
undersigned of this Amendment No. 8 to the Credit Agreement as of the date
first
written above.
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DUFF
& XXXXXX, LLC
as
Borrower
|
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| By: | /s/ Xxxxx Xxxxxxxxx | |
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Name: Xxxxx Xxxxxxxxx |
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| Title: CFO | ||
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DUFF
& XXXXXX ACQUISITIONS, LLC
as
Holdings
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| By: | /s/ Xxxxx Xxxxxxxxx | |
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Name: Xxxxx Xxxxxxxxx |
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| Title: CFO | ||
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GENERAL
ELECTRIC CAPITAL CORPORATION,
as
Administrative Agent, L/C Issuer, and Lender
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| By: | /s/ Xxxxxxxx Xxxxx | |
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Name: Xxxxxxxx Xxxxx |
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| Title: Its duly authorized signatory | ||
Amendment
No. 8 to Credit Agreement
| LASALLE BANK ASSOCIATION, as Syndication Agent and a Lender | ||
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| By: | /s/ Xxxxx Xxxxx | |
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Name: Xxxxx Xxxxx |
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| Title: Vice President | ||
2
| AIB DEBT MANAGEMENT LIMITED, as a Lender | ||
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| By: | ||
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Name: Xxxxxxx X. Xxxxx |
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| Title: | ||
3
| APIDOS CDO I, as a Lender | ||
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| By: | /s/ Xxx XxXxxxxx | |
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Name: Xxx XxXxxxxx |
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| Title: Authorized Signatory | ||
| APIDOS CDO II, as a Lender | ||
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| By: | Name: Xxx XxXxxxxx | |
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Title: Authorized Signatory |
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| Title | ||
| APIDOS CDO III, as a Lender | ||
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| By: | /s/ Xxx XxXxxxxx | |
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Name: Xxx XxXxxxxx |
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| Title: Authorized Signatory | ||
| APIDOS CDO IV, as a Lender | ||
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| By: | /s/ Xxx XxXxxxxx | |
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Name: Xxx XxXxxxxx |
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| Title: Authorized Signatory | ||
4
| SOVEREIGN BANK, as a Lender | ||
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| By: | /s/ Xxxxxxxxx Xxxxxx | |
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Name: Xxxxxxxxx Xxxxxx |
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| Title: Senior Vice President | ||
5
| ING CAPITAL LLC, as a Lender | ||
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| By: | /s/ Xxxxxxxx X. Xxxxx | |
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Name: Xxxxxxxx X. Xxxxx |
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| Title: Director | ||
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CONSENT
AND REAFFIRMATION
The
undersigned (“Guarantor”)
hereby
(i) acknowledges receipt of a copy of the foregoing Amendment No. 8; (ii)
consents to Borrower’s execution and delivery thereof and approves and consents
to the transactions contemplated thereby; (iii) agrees to be bound thereby;
and
(iv) affirms that nothing contained therein shall modify or diminish in any
respect whatsoever its obligations under the Guaranty and the other Loan
Documents to which it is a party and reaffirms that such Guaranty is and shall
continue to remain in full force and effect. This acknowledgement by the
Guarantor is made and delivered to induce Agent and Lenders to enter into
Amendment No. 8, and the Guarantor acknowledges that Agent and Lenders would
not
enter into Amendment No. 8 in the absence of the acknowledgements contained
herein. Although Guarantor has been informed of the matters set forth herein
and
has acknowledged and agreed to same, Guarantor understands that Agent and
Lenders have no obligation to inform Guarantor of such matters in the future
or
to seek Guarantor’s acknowledgment or agreement to future amendments or waivers,
and nothing herein shall create such a duty. Capitalized terms used herein
without definition shall have the meanings given to such terms in the Amendment
No. 8 to which this Consent is attached or in the Credit Agreement referred
to
therein, as applicable.
IN
WITNESS WHEREOF, the undersigned has executed this Consent and Reaffirmation
on
and as of the date of Amendment No. 8.
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DUFF
& XXXXXX ACQUISITIONS, LLC
as
Holdings
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| By: | /s/ Xxxxx Xxxxxxxxx | |
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Name: Xxxxx Xxxxxxxxx |
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| Title: CFO | ||
Consent
and Reaffirmation
