Exhibit 10.1
================================================================================
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
September 30, 2005
among
XXXXXXXX & COMPANY
XXXXXXXX & COMPANY INTERNATIONAL, INC.,
The LENDERS Party Hereto
and
SUNTRUST BANK,
as Administrative Agent
----------
SUNTRUST XXXXXXXX XXXXXXXX
(a division of SunTrust Capital Markets, Inc.),
as Lead Arranger
BANK OF AMERICA, N.A.
as Syndication Agent
================================================================================
FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 30,
2005 (this "First Amendment and Restatement") among XXXXXXXX & COMPANY, a
Georgia corporation ("Crawford") and XXXXXXXX & COMPANY INTERNATIONAL, INC., a
Georgia corporation ("International"; International and Crawford are
collectively referred to herein as the "Borrowers", and each individually as, a
"Borrower"), the LENDERS party hereto (the "Lenders") and SUNTRUST BANK
("SunTrust"), as administrative agent for the Lenders (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
WITNESSETH:
WHEREAS, the Borrowers, the Lenders and SunTrust, as Administrative
Agent, are parties to the Revolving Credit Agreement dated as of September 30,
2003 (as amended and in effect immediately prior to the effectiveness of this
First Amendment and Restatement, the "Existing Credit Agreement");
WHEREAS, the Borrowers have requested certain amendments to provisions
of the Existing Credit Agreement, including, among other things, the extension
of the availability of the commitments thereunder, and the Lenders are willing
to make such amendments on the terms and conditions set forth below;
NOW, THEREFORE, the parties hereto hereby agree that, effective as of
the Restatement Effective Date (as defined in Section 4 hereof), the Existing
Credit Agreement shall be amended and restated to read in its entirety as set
forth in the Existing Credit Agreement, which is incorporated herein by this
reference, subject to the amendments set forth in Section 2 hereof (the Existing
Credit Agreement, as so amended and restated hereby, is herein called the "First
Amended and Restated Credit Agreement"):
Section 1. Definitions. Except as otherwise defined herein, terms
defined in the Existing Credit Agreement have the meanings ascribed thereto in
the Existing Credit Agreement, after giving effect to the amendments set forth
in Section 2 hereof.
Section 2. Amendments. Effective as of the Restatement Effective Date,
the Existing Credit Agreement is hereby amended as follows:
2.01. Certain References. References (a) in the Existing Credit
Agreement (including the Exhibits thereto) to "this Agreement", the "Credit
Agreement", and the "Revolving Credit Agreement" (or words of similar import,
including indirect references thereto) shall be deemed to be references to the
First Amended and Restated Credit Agreement, (b) in the Existing Credit
Agreement to "Closing Date" (other than references in the "Closing Date"
contained in Sections 2.17, 3.1, 5.10 and 7.2 of the Existing Credit Agreement)
shall be deemed to be references to the Effective Date (as defined in Section
2.02 below), (c) in Sections 4.14, 4.16 and 7.4 of the Existing Credit Agreement
to "Funding Date" shall be deemed to be references to the Effective Date (as
defined in Section 2.02 below) and (d) in Section 4.16 of the Existing Credit
Agreement to "August 31, 2003" shall be deemed to be a reference to "August 31,
2005".
2.02. Certain Definitions.
(a) Section 1.1 of the Existing Credit Agreement shall be amended by
inserting the following definitions (or, in the case of any of the following
defined terms that are already
defined in the Existing Credit Agreement, by amending and restating in its
entirety each such term to read as set forth below) in their proper respective
alphabetical locations:
"COMMITMENT TERMINATION DATE" shall mean the earliest of (i) September
29, 2010 and (ii) the date on which all amounts outstanding under this Agreement
have been declared or have automatically become due and payable (whether by
acceleration or otherwise).
"CONSOLIDATED EBITDA" shall mean, for the Consolidated Parties for any
period, an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) without duplication and only to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) depreciation and amortization and (iv)
all other non-cash charges satisfactory to the Administrative Agent in its
reasonable discretion (including non-cash charges for such period taken for the
impairment of goodwill in accordance with Statement of Financial Accounting
Standards No. 142 "Goodwill and Other Intangible Assets" issued by the Financial
Accounting Standards Board) minus (c) all software costs capitalized during such
period (other than software purchased or acquired from software vendors), in
each case determined on a consolidated basis in accordance with GAAP for such
period.
"CONSOLIDATED EBITDAR" shall mean, for the Consolidated Parties for
any period, an amount equal to the sum of (a) Consolidated Net Income for such
period plus (b) without duplication and only to the extent deducted in
determining Consolidated Net Income for such period, (i) Consolidated Interest
Expense, (ii) income tax expense, (iii) Consolidated Lease Expense, (iv)
depreciation and amortization and (iv) all other non-cash charges satisfactory
to the Administrative Agent in its reasonable discretion (including non-cash
charges for such period taken for the impairment of goodwill in accordance with
Statement of Financial Accounting Standards No. 142 "Goodwill and Other
Intangible Assets" issued by the Financial Accounting Standards Board) minus (c)
all software costs capitalized during such period (other than software purchased
or acquired from software vendors), in each case determined on a consolidated
basis in accordance with GAAP for such period.
"EFFECTIVE DATE" means the date on which all conditions precedent set
forth in Section 4 of the First Amendment and Restatement have been satisfied.
"FIRST AMENDMENT AND RESTATEMENT" means the First Amendment and
Restatement of this Agreement dated as of September 30, 2005 among the
Borrowers, the Administrative Agent and the Lenders.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any period of four
consecutive fiscal quarters of Crawford, the ratio of (a) Consolidated EBITDAR
for such period to (b) Consolidated Fixed Charges for such period.
"PERMITTED SALE/LEASEBACK TRANSACTION" shall mean a transaction to be
entered into by Crawford after the Closing Date pursuant to which Crawford will
sell its corporate headquarters located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx, and contemporaneously lease property to be used as Xxxxxxxx'x corporate
headquarters; provided, that (i) such sale/leaseback transaction is consummated
no later than June 30, 2006; (ii) Crawford receives gross cash proceeds of not
less than $10,000,000 in connection with such sale, (iii) no Default or Event of
Default exists immediately prior to such sale/leaseback transaction or will
result after giving
-2-
effect to such sale/leaseback transaction and (iv) the terms and conditions of
the lease of such property are reasonably acceptable to the Administrative
Agent.
(b) The following definitions contained in Section 1.1 of the Existing
Credit Agreement shall be deleted in their entirety: "Consolidated EBITR",
"Existing Lenders", "Payoff Letter" and "Statement of Funds Flow".
2.03. Section 4.4 of the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
"SECTION 4.4. FINANCIAL STATEMENTS. The Borrowers have furnished to
each Lender (i) the audited consolidated balance sheet of Crawford as of
December 31, 2004 and the related audited consolidated statements of
income, changes in shareholders' equity and cash flows for the fiscal year
then ended prepared by Ernst & Young LLP and (ii) the unaudited
consolidated balance sheet of Crawford as at the end of June 30, 2005, and
the related unaudited consolidated statements of income and cash flows for
the fiscal quarter then ending, certified by a Responsible Officer. Such
financial statements fairly present in all material respects the
consolidated financial condition of Crawford as of such dates and the
consolidated results of operations for such periods in conformity with GAAP
consistently applied, subject to year end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii).
Since December 31, 2004, there have been no changes, events, acts,
conditions or occurrences of any nature, singly or in the aggregate that
have had or could reasonably be expected to have a Material Adverse Effect.
Since the December 31, 2004, no Consolidated Party has made any Restricted
Payment except as permitted pursuant to Section 7.5."
2.04. Section 5.9 of the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
"SECTION 5.9. USE OF PROCEEDS AND LETTERS OF CREDIT. The Borrowers
will use the proceeds of all Loans after Effective Date to finance
Acquisitions that are permitted hereunder, to finance working capital needs
of the Borrowers and their Subsidiaries and for other general corporate
purposes of the Borrowers and their Subsidiaries including loans from
Borrowers to their Subsidiaries to the extent permitted herein. All Letters
of Credit will be used solely for general corporate purposes.
Notwithstanding the foregoing, the Borrowers will not, directly or
indirectly, use the proceeds of any Loan or any Letter of Credit to make
any loan or other advance to, or Investment in, any Dormant Company."
2.05. Article VI of the Existing Credit Agreement shall be amended and
restated in its entirety as follows:
"ARTICLE VI
FINANCIAL COVENANTS
The Borrowers covenant and agree that, from and after the Closing
Date, so long as any Lender has a Commitment hereunder or the principal of or
interest on or any Loan
-3-
remains unpaid or any fee or any LC Disbursement remains unpaid or any Letter of
Credit remains outstanding:
SECTION 6.1. LEVERAGE RATIO. Crawford will not permit the Leverage
Ratio, as at the end of each fiscal quarter of Crawford set forth below, to
exceed the ratio set forth opposite such period:
PERIOD RATIO
---------------------------------- ------------
Closing Date through June 30, 2006 2.75 to 1.00
July 1, 2006 through June 30, 2007 2.50 to 1.00
July 1, 2007 and thereafter 2.25 to 1.00
SECTION 6.2. FIXED CHARGE COVERAGE RATIO. Crawford will not permit the
Fixed Charge Coverage Ratio, as at the end of each fiscal quarter of Crawford
set forth below, to be less than the ratio set forth opposite such period:
PERIOD RATIO
--------------------------------------- ------------
Closing Date through September 30, 2007 1.50 to 1.00
December 31, 2007 and thereafter 1.75 to 1.00
SECTION 6.3. MINIMUM NET WORTH. Crawford will maintain a Net Worth in
an amount equal to or greater than the sum of (i) $167,260,000, plus (ii) 50% of
cumulative positive Consolidated Net Income accrued after June 30, 2005, plus
(iii) 100% of the Net Proceeds from any Equity Offering; provided, that the Net
Proceeds of an Equity Offering of a debt security that is convertible into or
exchangeable for capital stock of Crawford or a debt security that is issued
with a warrant or other instrument to purchase capital stock of Crawford shall
not be required to be added under this clause (iii) unless and until such debt
security is converted into or exchanged for, or such warrant or other instrument
is exercised for, capital stock of Crawford. For purposes of determining Net
Worth on any date after June 30, 2005, (A) any non-cash adjustment after June
30, 2005 (whether such adjustment is an increase or decrease) to shareholders'
investment related to pension fund liabilities, (B) any non-cash adjustment
after June 30, 2005 (whether such adjustment is an increase or decrease) to
shareholders' investment related to goodwill and (C) any non-cash adjustment
after June 30, 2005 (whether such adjustment is an increase or decrease) to
shareholders' investment related to foreign currency translations shall, in each
case, be excluded. The foregoing covenant shall be calculated and tested
quarterly on the last day of each fiscal quarter of Crawford commencing with the
fiscal quarter ending September 30, 2005."
2.06. Section 7.1 of the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
-4-
"SECTION 7.1. INDEBTEDNESS. The Borrowers will not, and will not
permit any Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Private Placement Indebtedness, including refundings, refinancings
and replacements thereof, and amendments or modifications to the Private
Placement Loan Documents; provided, however, that the aggregate principal amount
of such Private Placement Indebtedness shall not at any time exceed $50,000,000
plus the aggregate amount of Indebtedness available to be incurred at such time
pursuant to clause (i) immediately below (which additional Indebtedness may be
secured to the same extent as the Private Placement Indebtedness);
(c) Indebtedness on the Funding Date set forth on Schedule 7.1 and
borrowings, reborrowings and refinancings of such amounts up to the "Available"
amounts set forth on such Schedule 7.1;
(d) Indebtedness of any Loan Party incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations; provided, that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvements and extensions, renewals, and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof and
(ii) such Indebtedness does not, in the aggregate, exceed $5,000,000 at any time
outstanding;
(e) Indebtedness of any Consolidated Subsidiary (other than a Dormant
Company) owing to a Loan Party to the extent permitted under Section 7.4(d);
(f) Guarantees by any Consolidated Subsidiary of Indebtedness of the
Borrowers and guarantees by a Borrower of Indebtedness of any Consolidated
Subsidiary (other than a Dormant Company); provided, that any Indebtedness of a
Borrower which is guaranteed by a Consolidated Subsidiary and any Indebtedness
of any Consolidated Subsidiary which is guaranteed by a Borrower must otherwise
be permitted under this Section 7.1;
(g) Indebtedness of the Borrowers in respect of obligations under
Hedging Agreements permitted by Section 7.10;
(h) unsecured Indebtedness of Xxxxxxxx & Company (Australia) Pty
Limited in an aggregate amount not to exceed AUD$5,500,000 for the purpose of
effecting a Permitted Acquisition in Australia; and
(i) up to an aggregate principal amount of $5,000,000 of Indebtedness
of the Borrowers and the Consolidated Subsidiaries (other than a Dormant
Company) which shall be (A) unsecured and/or (B) additional Private Placement
Indebtedness incurred pursuant to clause (b) above; provided, however, that the
aggregate principal amount of all Indebtedness outstanding at any one time
pursuant to this clause (i) shall not exceed $5,000,000."
-5-
2.07. Section 7.5(a) of the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
"(a) The Borrowers will not, and will not permit any Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any
dividend on any class of its stock, or make any payment or prepayment on
account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of capital stock, or Indebtedness subordinated in any manner to
the Obligations, or any options, warrants, or other rights to purchase such
capital stock or such Indebtedness, whether now or hereafter outstanding
(each, a "RESTRICTED PAYMENT"), except for (i) dividends payable by
Crawford solely in shares of any class of its capital stock; (ii)
Restricted Payments made by any Subsidiary to either Borrower or to another
Subsidiary (other than a Dormant Company) and (iii) cash dividends paid on,
and cash redemptions of, the common stock of Crawford in an amount not to
exceed 100% of Consolidated Net Income (if greater than $0) earned during
the immediately preceding fiscal year of Crawford; provided, that, in the
case of clauses (i) and (iii) above, no Default or Event of Default has
occurred and is continuing at the time such dividend is paid or redemption
is made or would be caused thereby; provided, further, that in the case of
clause (ii) above, no Default or Event of Default has occurred and is
continuing at the time any such Restricted Payment is made or would be
caused thereby if such Restricted Payment is to be made to any Person other
than a Loan Party. Notwithstanding the foregoing, Crawford may, during its
fiscal year ending December 31, 2006, declare and pay cash dividends on, or
make cash redemptions of, the common stock of Crawford in an aggregate
amount not to exceed the sum of (x) 100% of Consolidated Net Income (if
greater than $0) of Crawford earned during its fiscal year ending December
31, 2005 plus (y) $4,000,000."
2.08. Section 7.6 of the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
"SECTION 7.6. SALE OF ASSETS. Except as permitted under Section
7.3, the Borrowers will not, and will not permit any Subsidiary (other than
a Dormant Company) to, convey, sell, lease, assign, transfer or otherwise
dispose of, any of their respective assets, business or property, whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue
or sell any shares of such Subsidiary's capital stock to any Person other
than Crawford or any Wholly-Owned Subsidiary of Crawford other than a
Dormant Company (or to qualify directors if required by applicable law),
except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for
operations disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in the
ordinary course of business;
(c) the sale or other disposition of the real property and
improvements currently comprising Xxxxxxxx'x corporate headquarters at 0000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx, but only if (i) prior to the
consummation of such sale or disposition (x) replacement offices have been
leased or purchased and (y) Crawford has given the
-6-
Administrative Agent written notice of its new address in accordance with
Section 10.1, (ii) such sale or disposition is consummated no later than
June 30, 2006; (iii) Crawford receives gross cash proceeds of not less than
$10,000,000 in connection with such sale or disposition and (iii) no
Default or Event of Default exists immediately prior to such sale or
disposition or will result after giving effect to such sale or disposition;
and
(d) the sale or other disposition of such assets (which may
include the capital stock of any Subsidiary of the Borrowers or all or
substantially all of the assets of any Subsidiary of the Borrowers) in an
aggregate amount in any fiscal year of Crawford not to exceed $7,500,000."
2.09. Section 7.9 of the Existing Credit Agreement shall be amended
and restated in its entirety to read as follows:
"SECTION 7.9. SALE AND LEASEBACK TRANSACTIONS. The Borrowers will not,
and will not permit any Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby they shall sell or transfer any property,
real or personal, used or useful in their business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that they intend to use for substantially the same purpose or
purposes as the property sold or transferred, except for (i) any such sale
of any fixed or capital assets that is made for cash consideration in an
amount not less than the cost of such fixed or capital asset and is
consummated within 90 days after the Borrowers or such Subsidiary acquires
or completes the construction of such fixed or capital asset and (ii) the
Permitted Sale/Leaseback Transaction."
2.10. Section 10.3(b) of the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
"(b) The Borrowers shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing (each, an "INDEMNITEE") against, and hold each of them harmless
from, any and all costs, losses, liabilities, claims, damages and related
expenses, including the fees, charges and disbursements of any counsel for
any Indemnitee, which may be incurred by or asserted against any Indemnitee
or asserted against any Indemnitee by any third party or by any of the Loan
Parties or their Affiliates arising out of, in connection with or as a
result of (i) the execution or delivery of this Agreement or any other
agreement or instrument contemplated hereby, the performance by the parties
hereto of their respective obligations hereunder or the consummation of any
of the transactions contemplated hereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom (including any
refusal by the Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any
property owned by either Borrower or any Subsidiary or any Environmental
Liability related in any way to either Borrower or any Subsidiary or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any
other theory, whether brought by a third party or by any of the Loan
Parties or their Affiliates, and regardless of whether any Indemnitee is a
party thereto; provided, that such indemnity shall not, as to any
Indemnitee, be available to the extent that such costs,
-7-
losses, liabilities, claims, damages or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to
have resulted from the gross negligence or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Loan Parties against
an Indemnitee for breach in bad faith of such Indemnitee's obligations
hereunder or under any other Loan Document, if such Loan Party has obtained
a final and nonappealable judgment in its favor on such claim as determined
by a court of competent jurisdiction."
2.11. Section 5.12 and Section 7.13 shall be deleted from the Existing
Credit Agreement. In connection with the deletion of Section 5.12 from the
Existing Credit Agreement, the Lenders hereby waive the Event of Default under
the Existing Credit Agreement arising solely by virtue of the failure by the
Borrowers to dissolve Brocklehursts, Inc. as required by such Section 5.12. The
Borrowers acknowledge and agree that the foregoing waiver shall not waive (or be
deemed to be or constitute a waiver of) any other covenant, term or provision in
the Existing Credit Agreement or the First Amended and Restated Credit
Agreement, or hinder, restrict or otherwise modify the rights and remedies of
the Lenders and the Administrative Agent with respect to any other existing
Event of Default (if any) or any future Default or Event of Default under the
First Amended and Restated Credit Agreement or any other Loan Document.
2.12. A new Section 10.13 shall be inserted at the end of Article X of
the Existing Credit Agreement to read as follows:
"SECTION 10.13. USA PATRIOT ACT. Each Lender hereby notifies the
Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may
be required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of the Borrowers
and other information that will allow such Lender to identify the Borrowers
in accordance with said Act."
2.13. Schedules. Schedules 4.5(a), 4.5(b), 4.14, 4.16, 7.1 and 7.4 of
the Existing Credit Agreement shall be replaced by Schedule 4.5(a), Schedule
4.5(b), Schedule 4.14, Schedule 4.16, Schedule 7.1 and Schedule 7.4,
respectively, attached to this First Amendment and Restatement and any reference
in the Existing Credit Agreement to any such schedule (or words of similar
import, including indirect references to such schedule) shall be deemed to be a
reference to the corresponding schedule attached hereto.
Section 3. Representations and Warranties. The Borrowers hereby
represent and warrant to the Lenders and the Administrative Agent that as of the
Restatement Effective Date:
(a) the representations and warranties set forth in Article IV of the
Existing Credit Agreement (as amended and restated hereby) are true and
correct in all material respects as of the Restatement Effective Date,
except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and
warranties shall have been true, correct and complete in all material
respects on and as of such earlier date ;
(b) the execution and delivery by the Borrowers of this First
Amendment and Restatement are within the corporate power and authority of
the Borrowers, have been duly authorized by all requisite corporate action
of the Borrowers, and do not and will not
-8-
contravene any provision of applicable law or the Borrowers' articles of
incorporation or by-laws, or any amendment thereof, or any indenture,
agreement, instrument or undertaking binding on the Borrowers, including,
without limitation, the Note Purchase Agreement. This First Amendment and
Restatement has been duly executed by the Borrowers;
(c) the Existing Credit Agreement and the other Loan Documents remain
in full force and effect and constitute the legal, valid and binding
obligations of the Borrowers, enforceable in accordance with their terms,
except as limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting generally the enforcement of
creditor's rights;
(d) on and as of the date hereof, and on the Restatement Effective
Date, after giving effect to this First Amendment and Restatement, no
Default or Event of Default has occurred or will otherwise exist; and
(e) All Subsidiary Loan Parties, and all Subsidiaries of Crawford that
are required to be or become a Subsidiary Loan Party pursuant to Section
5.10 of the Existing Credit Agreement, have duly executed and delivered the
Reaffirmation (as defined below).
Section 4. Conditions Precedent. The amendment and restatement of the
Existing Credit Agreement contemplated hereby and the obligations of the Lenders
to make Loans under the First Amended and Restated Credit Agreement shall become
effective as of the date (the "Restatement Effective Date") that the
Administrative Agent shall have received each of the following, in form and
substance satisfactory to it:
4.01. Borrower Documents.
(a) This First Amendment and Restatement, duly executed and delivered
by the Borrowers, the Lenders and the Administrative Agent.
(b) A certificate of the Secretary or Assistant Secretary of each
Borrower, attaching and certifying a copy of its bylaws and the resolutions
of its board of directors authorizing the execution, delivery and
performance of this First Amendment and Restatement and certifying the
name, title and true signature of each officer of such Borrower executing
this First Amendment and Restatement;
(c) Certified copies of the articles of incorporation of each
Borrower, together with certificates of good standing from the Secretary of
State of Georgia;
(d) A Reaffirmation of Obligations under Loan Documents (the
"Reaffirmation") duly executed by the Borrowers, the Administrative Agent,
the Lenders and each of the Subsidiary Loan Parties, in the form of Exhibit
A attached hereto;
(e) on or prior to the Restatement Effective Date, delivery of
certified copies of all consents, approvals, authorizations, registrations,
or filings required to be made or obtained by either Borrower and any
Subsidiary Loan Party in connection with this First Amendment and
Restatement and the transactions contemplated herein; and
-9-
(f) Such other documents as the Administrative Agent on behalf of the
Lenders may reasonably request.
4.02. Opinion of Counsel. An opinion of King & Spalding LLP, counsel
for the Borrowers.
4.03. Payment of Amounts under Existing Credit Agreement, Etc.
Evidence satisfactory to the Administrative Agent of payment in full of: (a) all
fees payable to the Administrative Agent and Lead Arranger in connection with
this First Amendment and Restatement as may be separately agreed between
SunTrust and the Borrowers; (b) all unpaid fees payable under Section 2.16 of
the Existing Credit Agreement, accrued through but not including the Restatement
Effective Date; (c) all reasonable costs and expenses of the Administrative
Agent in connection with this First Amendment and Restatement, including,
without limitation, the reasonable fees and expenses of Xxxxxx & Bird LLP,
counsel to SunTrust, in connection with the negotiation, preparation, execution
and delivery of this First Amendment and Restatement.
Section 5. Release. In consideration of the amendments contained
herein, the Borrowers hereby waive and release each of the Lenders, the
Administrative Agent and the Issuing Bank from any and all claims and defenses,
known or unknown, with respect to the Existing Credit Agreement and the other
Loan Documents and the transactions contemplated thereby
Section 6. Miscellaneous. Except as herein provided, the Existing
Credit Agreement shall remain unchanged and in full force and effect. This First
Amendment and Restatement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and any of the
parties hereto may execute this First Amendment and Restatement by signing any
such counterpart and sending the same by telecopier, mail, messenger or courier
to the Administrative Agent. This First Amendment and Restatement shall be
governed by, and construed in accordance with, the law of the State of New York.
[Remainder of page intentionally left bank.]
-10-
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment and Restatement to be duly executed as of the date first above
written.
BORROWERS
XXXXXXXX & COMPANY
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President-Finance
U.S. Federal Tax
Identification No.: 00-0000000
XXXXXXXX & COMPANY
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
U.S. Federal Tax
Identification No.: 00-0000000
Notice Address:
0000 Xxxxxxxxx Xxxxx X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxx
Telecopy No.: 000-000-0000
-00-
XXXXXXX
XXXXXXXX XXXX,
as Administrative Agent, Issuing
Bank,
as Swingline Lender and as a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
as Syndication Agent and a Lender
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
CITIBANK, N.A.,
as a Lender
By: /s/ Michel X. X. Xxxxxxx
------------------------------------
Name: Michel X. X. Xxxxxxx
Title: Managing Director, SC04
Franchise Head
Product Relationship Mgmt. Group
-12-
EXHIBIT A
REAFFIRMATION OF OBLIGATIONS UNDER LOAN DOCUMENTS
Reference is hereby made to that certain Revolving Credit Agreement dated
as of September 30, 2003 among Xxxxxxxx & Company, Xxxxxxxx & Company
International, Inc., the Lenders a party thereto and SunTrust Bank, as
Administrative Agent, as the amended and restated pursuant to that certain First
Amended and Restated Credit Agreement dated as of September 30, 2005 (as so
amended and restate, the "Credit Agreement"; capitalized terms used herein and
not defined herein have the meanings ascribed to such terms in the Credit
Agreement).
Crawford hereby (i) reaffirms its continuing obligations owing to the
Collateral Agent (as defined in the Pledge Agreement) and the Lenders under the
Pledge Agreement and (ii) confirms that the liens and security interests created
by the Pledge Agreement continue to secure the Pledged Obligations (as defined
in the Pledge Agreement).
Each of the undersigned Loan Parties hereby reaffirms its continuing
obligations owing to the Administrative Agent and the Lenders under each of the
other Loan Document (including, without limitation, the Notes and the Subsidiary
Guaranty Agreement) to which such Person is a party, and each Loan Party and
agrees that the amendments and restatements contained in the First Amendment and
Restatement shall not in any way affect the validity and/or enforceability of
any such other Loan Document, or reduce, impair or discharge the obligations of
such Person thereunder.
Each of the undersigned Loan Parties hereby represents and warrants to the
Collateral Agent, the Administrative Agent and the Lenders that: (a) the
execution and delivery by the Loan Parties of this Reaffirmation is within the
power (corporate or otherwise) and authority of the Loan Parties, has been duly
authorized and approved by all requisite action on the part of the Loan Parties,
and does not and will not contravene, breach or conflict with any provision of
applicable law or any of the charter or other organic documents of the Loan
Parties, or any indenture, agreement, instrument or undertaking binding on the
Loan Parties; (b) this Reaffirmation has been duly executed by the Loan Parties;
and (c) the Loan Documents remain in full force and effect and constitute the
legal, valid and binding obligations of the Loan Parties, enforceable in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting generally
the enforcement of creditor's rights; and (d) all of the Obligations are
absolute and unconditional, and such Obligations are not subject to any claim,
defense, deduction, right of offset or otherwise.
This Reaffirmation shall be construed in accordance with and be governed by
the law (without giving effect to the conflict of law principles thereof) of the
State of New York.
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered
this Reaffirmation of Obligations under Loan Documents as of September 30, 2005.
XXXXXXXX & COMPANY
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President-Finance
XXXXXXXX & COMPANY
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President-Finance
XXXXXXXX LEASING SERVICES, INC.
THE PRISM NETWORK, INC.
CALESCO, INC.
XXXXXXXX & COMPANY OF NEW
YORK, INC.
XXXXXXXX & COMPANY HEALTHCARE
MANAGEMENT, INC.
RISK SCIENCES GROUP, INC.
QIRRA CUSTOM SOFTWARE, INC.
XXXXXXXXXXXX XXXXXX, INC.
BROCKLEHURSE, INC.
By: /S/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X.Xxxxxx
Title: Executive Vice President-Finance
-2-
[SIGNATURE PAGE TO CRAWFORD / REAFFIRMATION OF OBLIGATIONS
UNDER LOAN DOCUMENTS DATED SEPTEMBER 30, 2005]
CRAWFORD INVESTIGATION SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: President
XXXXXXXX & COMPANY, L.P.
By: XXXXXXXX & COMPANY
as General Partner
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President-Finance
THE GARDEN CITY GROUP, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President, Finance
CRAWFORD HEALTHCARE
MANAGEMENT OF NORFOLK AND
BALTIMORE, INC.
By: /s/ Xxxxxxx X. Beach
------------------------------------
Name: Xxxxxxx X. Beach
Title: Vice President & Secretary
-3-
[SIGNATURE PAGE TO CRAWFORD / REAFFIRMATION OF OBLIGATIONS
UNDER LOAN DOCUMENTS DATED SEPTEMBER 30, 2005]
XXXXXXXX & COMPANY OF CALIFORNIA
By: /s/ Xxxxx Xxxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxxxxxx
Title: Secretary
XXXXXXXX & COMPANY OF ILLINOIS
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXXXX & COMPANY OF FLORIDA
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President
XXXXXXXX & COMPANY
EMPLOYMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: President
[END OF SIGNATURES]
-4-
