SIXTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
Execution Version
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT dated as of December 17, 2010 (this
“Amendment”) by and among XXXXXXXX & COMPANY, a Georgia corporation (“Xxxxxxxx”),
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 which have delivered signature pages in
accordance herewith (the “Consenting Lenders”) and SUNTRUST BANK, as administrative agent
for the Lenders (in such capacity, together with its successors in such capacity, the
“Administrative Agent”).
WHEREAS, the Borrowers, the Lenders and the Administrative Agent are parties to that certain
Credit Agreement dated as of October 31, 2006 (as amended from time to time and in effect on the
date hereof, the “Credit Agreement”);
WHEREAS, the Borrowers have requested an aggregate borrowing of $50,000,000 of Additional Term
Loans; and
WHEREAS, the Borrowers, the Consenting Lenders, the Lenders agreeing to fund Additional Term
Loans pursuant to the terms and conditions hereof (collectively, the “Funding Lenders”) and
the Administrative Agent desire to amend certain provisions of the Credit Agreement on the terms
and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Additional Term Loans. Each Funding Lender committed to an Additional
Term Loan as set forth in Schedule I hereto severally agrees (i) that it shall be considered a
Lender for all purposes under the Loan Documents and agrees to be bound by the terms thereof and
(ii) to make its pro rata portion of the Additional Term Loans to the Borrowers based on the
aggregate amount set forth in the Notice of Borrowing for Additional Term Loans attached hereto as
Exhibit A and delivered to the Administrative Agent. The terms and provisions of the
Additional Term Loans shall, except as set forth below, be identical to the Term Loans made on the
Closing Date (the “Existing Term Loans”). The aggregate amount of the Additional Term
Loans made under this Amendment shall not exceed $50,000,000. After giving effect to the
Additional Term Loans to be made pursuant to this Amendment and the repayments and prepayments
prior to the date hereof of the Existing Term Loans, the schedule of repayments under Section
2.10(d) of the Credit Agreement (including both Existing Term Loans and Additional Term Loans)
shall be as follows (without giving effect to any further prepayments after the date hereof):
12/31/2010 |
$ | 650,000 | ||
3/31/2011 |
$ | 650,000 | ||
6/30/2011 |
$ | 650,000 | ||
9/30/2011 |
$ | 650,000 | ||
12/31/2011 |
$ | 650,000 | ||
3/31/2012 |
$ | 650,000 | ||
6/30/2012 |
$ | 650,000 | ||
9/30/2012 |
$ | 650,000 | ||
12/31/2012 |
$ | 650,000 | ||
3/31/2013 |
$ | 650,000 | ||
6/30/2013 |
$ | 650,000 | ||
9/30/2013 |
$ | 650,000 | ||
Term Loan Maturity Date |
$ | 215,425,000 |
Section 2. Amendments to Credit Agreement. Subject to satisfaction of the conditions
set forth in Section 3 below, the parties hereto agree that the Credit Agreement is amended as
follows:
(a) The Credit Agreement is hereby amended by adding the following new defined terms to
Section 1.1 thereof in appropriate alphabetic order:
“‘Foreign Currency LC Sublimit’ shall mean $25,000,000.”
“‘Foreign Currency Letter of Credit’ shall mean any Letter of Credit issued in
a Foreign Currency by the Issuing Bank for the account of the Borrowers pursuant to
Section 2.25.”
“‘Sixth Amendment’ shall mean that certain Sixth Amendment to Credit Agreement
dated as of December 17, 2010 among the Borrowers, the Lenders party thereto and the
Administrative Agent.”
“‘Unrestricted Cash’ shall mean, on any date of determination, all money,
currency or credit balances owned by a Person in any demand or deposit account on
the date of determination; provided, however, that amounts calculated under this
definition shall exclude any amounts that would not be considered “cash” under GAAP
or “cash” as recorded on the books of such Person; provided, that the foregoing
amounts shall (i) be included only to the extent such amounts are not subject to any
Lien or other restriction or encumbrance of any kind (other than (x) Liens in favor
of the Administrative Agent and the Lenders under the Security Documents and (y)
Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and customary liens or rights of
set-off in favor of deposit banks contained in agreements governing such demand or
deposit accounts; provided, that this clause (y) shall apply only for so long as
such liens and rights are not being enforced or otherwise exercised) and (ii)
exclude any amounts held by such Person in escrow,
trust or other fiduciary capacity for or on behalf of a client of such Person
or any Affiliate of such Person.”
(b) Section 1.1 of the Credit Agreement is hereby further amended by deleting the defined
terms “Consolidated EBITDA”, “Currency Calculation Date”, “Issuing Bank”, “LC
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Commitment”, “LC
Exposure” and “Total Acquisition Consideration” in their entireties and substituting in lieu
thereof the following:
“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, (iv) non-cash stock based compensation expense,
(v) all other non-cash charges satisfactory to the Administrative Agent in its
reasonable discretion (including (1) 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, but excluding (2) any non-cash charge that will result
in a cash charge in a future period), (vi) all fees and expenses actually paid in
connection with the Fifth Amendment in an aggregate amount not to exceed $4,000,000;
(vii) and all reasonable and documented fees and expenses actually paid in
connection with the Sixth Amendment; provided that the “Consolidated EBITDA” of the
Target for (x) each of the fiscal quarters ended March 31, 2006, June 30, 2006 and
September 30, 2006 shall be deemed to be $4,226,000; (y) the month of October, 2006,
shall be deemed to be $1,408,666; and (z) the months of November and December, 2006,
shall be, without duplication, the actual Consolidated EBITDA of the Target and its
Subsidiaries for such months.
“‘Currency Calculation Date’ means (a) each date of delivery of a Notice of
Revolving Borrowing in accordance with Section 2.3, (b) each date of
delivery of a request for a Letter of Credit in accordance with Section
2.25(b), (c) the date of any required conversion of LIBO Rate Loans pursuant to
Section 2.8(c) and (d) each other date on which the Administrative Agent
shall, in its discretion, calculate the Dollar Equivalent of a Revolving Loan
denominated in a Foreign Currency or the Dollar Equivalent of a Foreign Currency
Letter of Credit, other than on a Currency Calculation Date as set forth in clause
(a) of this definition.”
“‘Issuing Bank’ shall mean SunTrust Bank or any other Lender approved by the
Administrative Agent (such approval not to be unreasonably withheld, conditioned or
delayed) and the Borrowers, each in its capacity as an issuer of Letters of Credit
pursuant to Section 2.25, and each reference in this Agreement and the other
Loan Documents to the “Issuing Bank” shall be deemed to refer to each such Person;
provided, that any reference to the “Issuing Bank” in relation to
a specific Letter of Credit shall be deemed to refer to the issuer of that
specific Letter of Credit.”
“‘LC Commitment’ shall mean that portion of the Aggregate Revolving Commitments
that may be used by the Borrowers for the issuance of Letters of Credit in an
aggregate stated amount not to exceed the Dollar Equivalent of the lesser of (x)
$50,000,000 and (y) the aggregate amount of Revolving
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Commitments held by Revolving
Credit Lenders; provided, however, that the LC Commitment shall (a) be automatically
reduced on a percentage basis equal to the percentage by which the Aggregate
Revolving Commitments have been permanently reduced (except as may be reduced on
Existing Revolving Credit Termination Date) from time to time in accordance with
this Agreement and (b) be automatically increased on a percentage basis equal to the
percentage by which the Aggregate Revolving Commitments have been increased from
time to time in accordance with this Agreement.”
“‘LC Exposure’ shall mean, at any time, the sum of (i) the aggregate undrawn
amount of all outstanding Letters of Credit denominated in Dollars at such time,
plus (ii) the Dollar Equivalent of the aggregate undrawn amount of all outstanding
Foreign Currency Letters of Credit, plus (iii) the aggregate amount of all LC
Disbursements (including the Dollar Equivalent of any LC Disbursements with respect
to Foreign Currency Letters of Credit) that have not been reimbursed by or on behalf
of the Borrowers at such time. The LC Exposure of any Revolving Credit Lender shall
be its Pro Rata Share of the total LC Exposure at such time.”
“‘Total Acquisition Consideration’ shall mean, for any Acquisition, the sum of
the following without duplication: (i) the amount of any cash and fair market value
of other property given as consideration, including the deferred payment of any such
amounts (other than Earnout Obligations), (ii) the amount (determined by using the
outstanding amount or the amount payable at maturity, whichever is greater) of any
obligations for money borrowed incurred, assumed or acquired by either Borrower or
any Subsidiary in connection with such Acquisition, (iii) all amounts paid in
respect of covenants not to compete and consulting agreements that should be
recorded on the financial statements of Xxxxxxxx and its Subsidiaries in accordance
with GAAP, and (iv) the aggregate fair market value of all other consideration given
by either Borrower or any Subsidiary (including any Equity Interest of either
Borrower or any Subsidiary) in connection with such Acquisition; provided, that, if
any Person acquired in connection with an Acquisition permitted hereunder holds cash
immediately prior to such Acquisition that will be Unrestricted Cash immediately
after giving effect to such Acquisition, the amount of such Unrestricted Cash will
be excluded for purposes of determining Total Acquisition Consideration to the
extent, and only to the extent, that the Borrowers demonstrate to the Administrative
Agent that
such Unrestricted Cash will be owned and held by the Person being acquired
immediately after the Acquisition is consummated.”
(c) Subsections (a), (b), (c), (d), (e), (f), (g) and (h) of Section 2.6 of the Credit
Agreement are hereby amended by deleting such subsections in their entireties and substituting in
lieu thereof the following:
“(a) The Borrowers may request Borrowings of Revolving Loans or the issuance of
Letters of Credit in any Foreign Currency; provided, however, that the
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sum of (i)
the aggregate outstanding principal amount of Revolving Loans made in Foreign
Currencies plus (ii) the aggregate outstanding stated amount of all Foreign Currency
Letters of Credit shall not exceed at any time the Foreign Currency Sublimit. Each
Revolving Credit Lender’s Pro Rata Share of each Revolving Loan made in a Foreign
Currency shall be determined by reference to its Dollar Equivalent on the date each
such Revolving Loan is made. As to any Revolving Loan made in a Foreign Currency,
each Revolving Credit Lender may elect to fulfill its commitment to make such
Revolving Loan by causing an Alternate Lending Office to make such Revolving Loan;
provided, however, that no such election shall be made if as a result thereof either
Borrower would be required to pay United States withholding taxes or any additional
amounts. Notwithstanding anything herein to the contrary, all Base Rate Loans and
all Swingline Loans shall be funded only in Dollars. LIBO Rate Loans may be funded
in either Dollars or in a Foreign Currency, in either case, as requested by the
Borrowers pursuant to Section 2.3.
(b) If, after the Closing Date, any Change in Law shall make it unlawful or
impossible for Revolving Credit Lenders to make or maintain or fund Revolving Loans
in the applicable Foreign Currency or for the Issuing Bank to issue Foreign Currency
Letters of Credit in the applicable Foreign Currency, the Administrative Agent shall
notify Borrowers. Upon receipt of such notice, (x) the applicable LIBO Rate Loan
made in a Foreign Currency shall be repaid by the Borrowers and/or converted to an
available Foreign Currency or Dollars on either: (i) the last day of the then
current Interest Period for the affected LIBO Rate Loan, if Revolving Credit Lenders
may lawfully continue to maintain a Revolving Loan at such Foreign Currency to such
day, or (ii) immediately, if Revolving Credit Lenders may not lawfully continue to
so maintain such LIBO Rate Loan, and (y) no additional LIBO Rate Loans may made in
such Foreign Currency and no additional Foreign Currency Letters of Credit may be
issued in such Foreign Currency until such time as a change in law makes it lawful
and possible for the Revolving Credit Lenders to make or maintain or fund Revolving
Loans in the applicable Foreign Currency or for the Issuing Bank to issue Foreign
Currency Letters of Credit in the applicable Foreign Currency, as applicable.
(c) All payments of Obligations under this Agreement, the Notes or any other
Loan Document shall be made in Dollars, except for LIBO Rate
Revolving Loans or LC Disbursements funded in a Foreign Currency, which shall
be repaid, including interest thereon, in the applicable Foreign Currency. If any
payment of any Obligation shall be made in a currency other than the currency
required hereunder, such amount shall be converted into the currency required
hereunder at the current market rate for the purchase of the currency required
hereunder with the currency in which such Obligation was paid, as quoted by the
Administrative Agent in accordance with the methods customarily used by the
Administrative Agent for such purposes as the time of such determination. The
parties hereto hereby agree, to the fullest extent that they may effectively do so
under applicable law, that (i) if for the purposes of obtaining any judgment or
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award it becomes necessary to convert from any currency other than the currency
required hereunder into the currency required hereunder any amount in connection
with the Obligations, then the conversion shall be made as provided above on the
Business Day before the day on which the judgment or award is given, (ii) in the
event that there is a change in the rate of exchange prevailing between the Business
Day before the day on which the judgment or award is given and the date of payment,
the Borrowers will pay to the Administrative Agent, for the benefit of the Lenders,
such additional amounts (if any) as may be necessary, and the Administrative Agent,
on behalf of the Lenders, will pay to the Borrowers such excess amounts (if any) as
result from such change in the rate of exchange, to assure that the amount paid on
such date is the amount in such other currency, which when converted at the rate of
exchange described herein on the date of payment, is the amount then due in the
currency required hereunder, and (iii) any amount due from the Borrowers under this
Section 2.6(c) shall be due as a separate debt and shall not be affected by
judgment or award being obtained for any other sum due. For the avoidance of doubt,
the parties affirm and agree that neither the fixation of the conversion rate of any
Foreign Currency against the Euro as a single currency, in accordance with the
Treaty on European Union, nor the conversion of the Obligations under this Agreement
from any Foreign Currency into Euros will be a reason for early termination or
revision of this Agreement or repayment of any amount due under this Agreement or
create any liability of any party towards any other party for any direct or
consequential loss arising from any of these events. Subject to Section
1.5, as of the date that any Foreign Currency is no longer the lawful currency
of its respective country, all funding and payment Obligations to be made in such
affected currency under this Agreement shall be satisfied in Euros.
(d) If either Borrower shall wind up, liquidate, dissolve or become a debtor in
bankruptcy while there remains outstanding: (i) any amounts owing to the Lenders or
the Issuing Bank hereunder or under the other Loan Documents, (ii) any damages owing
to the Lenders or the Issuing Bank in respect of a breach of any of the terms
hereof, or (iii) any judgment or order rendered in respect of such amounts or
damages, the Borrowers shall indemnify and hold the Revolving Credit Lenders and the
Issuing Bank harmless against any deficiency with respect to the applicable Foreign
Currency in the amounts received by the Revolving
Credit Lenders or the Issuing Bank arising or resulting from any variation as
between: (i) the rate of exchange at which the applicable Foreign Currency is
converted into another currency (the “Liquidation Currency”) for purposes of such
winding-up, liquidation, dissolution or bankruptcy with regard to the amount in the
applicable Foreign Currency due or contingently due hereunder or under the Notes or
under any judgment or order to which the relevant Obligations hereunder or under the
Notes shall have been merged and (ii) the rate of exchange at which Administrative
Agent or the Issuing Bank could, in accordance with normal banking procedures, be
able to purchase the applicable Foreign Currency with the Liquidation Currency at
the earlier of (A) the date of payment of such amounts or damages and (B) the final
date or dates for the filing of proofs of a
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claim in a winding-up, liquidation,
dissolution or bankruptcy. As used in the preceding sentence, the “final date” or
dates for the filing of proofs of a claim in a winding-up, liquidation, dissolution
or bankruptcy shall be the date fixed by the liquidator under the applicable law as
being the last practicable date as of which the liabilities of the applicable
Borrower may be ascertained for such winding-up, liquidation, dissolution or
bankruptcy before payment by the liquidator or other appropriate person in respect
thereof.
(e) The Borrowers agree to indemnify the Administrative Agent, the Issuing Bank
and the Revolving Credit Lenders against any loss or expense which the
Administrative Agent, the Issuing Bank or such Lenders may sustain or incur in
liquidating or employing deposits from third parties acquired to effect, fund or
maintain any Revolving Loan made in a Foreign Currency or any part thereof or issue
any Foreign Currency Letter of Credit as a consequence of (i) the Borrowers’ failure
to make a payment on other than the due date of such Revolving Loan, (ii) the
Borrowers’ failure to borrow under, convert to or renew under the applicable Foreign
Currency on a binding effective date of such borrowing, conversion or renewal or
(iii) the Borrowers’ failure to pay any reimbursement obligations when due in
respect any Foreign Currency Letter of Credit. The Administrative Agent’s
determination of an amount payable under this paragraph (e) shall, in the absence of
error, be conclusive and shall be payable on demand.
(f) The Administrative Agent may from time to time in its discretion calculate
the Dollar Equivalent of (x) any Revolving Loan denominated in a Foreign Currency or
(y) the stated amount any outstanding Foreign Currency Letter of Credit. In the
event that the sum of the aggregate Dollar Equivalent of (x) the aggregate
outstanding principal amount of all Revolving Loans denominated in a Foreign
Currency plus (y) the aggregate stated amount of all outstanding Foreign Currency
Letters of Credit, at any time exceeds the Foreign Currency Sublimit, the
Administrative Agent shall promptly give notice of such fact to the Borrowers and
the Revolving Credit Lenders, and the Borrowers shall be required to make a payment
to the Administrative Agent to reduce the outstanding principal amount of the
outstanding Revolving Loans denominated in a Foreign Currency so that the Dollar
Equivalent thereof equals not more than the
Foreign Currency Sublimit. If (x) after prepaying all outstanding Revolving
Loans denominated in a Foreign Currency in accordance with the preceding sentence,
the Dollar Equivalent of the aggregate undrawn amount of all outstanding Foreign
Currency Letters of Credit exceeds the Foreign Currency Sublimit, or (y) at any time
the Dollar Equivalent of the stated amount of all outstanding Foreign Currency
Letters of Credit exceeds the Foreign Currency LC Sublimit, the Borrowers shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an
amount in cash equal to such excess described in the immediately preceding clauses
(x) or (y), which such account shall be held by the Administrative Agent in
accordance with Section 2.25(h). Such payment or the
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deposit of such cash
collateral shall be made within two (2) Business Days following the date of receipt
of such notice given by the Administrative Agent. Each such prepayment shall be
accompanied by a payment of all accrued and unpaid interest on the Revolving Loans
prepaid and any applicable breakage fees and funding losses pursuant to Section
2.21.
(g) With respect to the payment of any amount denominated in the Euro or in a
National Currency Unit, neither the Issuing Bank nor the Lenders shall be liable to
the Borrowers in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be paid
by the Issuing Bank or a Revolving Credit Lender if the Issuing Bank or such
Revolving Credit Lender, as applicable, has made reasonable efforts to effect all
relevant steps to achieve, on the date required by this Agreement (or, in the case
of the Issuing Bank, the applicable Foreign Currency Letter of Credit), the payment
of such amount in immediately available, freely transferable, cleared funds (in the
Euros or, as the case may be, in a National Currency Unit) to the account with the
bank in the principal financial center in the Participating Member State which the
Borrowers shall have specified for such purpose. In this paragraph, “all relevant
steps” means all such steps as may be prescribed from time to time by the
regulations or operating procedures of such clearing or settlement system as such
Revolving Credit Lender may from time to time select for the purpose of clearing or
settling payment of the Euro.
(h) Without limiting the other provisions herein, the Revolving Credit Lenders
shall be under no obligation to make Revolving Loans in a requested Foreign
Currency, and the Issuing Bank shall be under no obligation to issue a Foreign
Currency Letter of Credit, if the Administrative Agent has received notice from the
Majority Revolving Credit Lenders by 12:30 p.m. two Business Days prior to the date
of a requested Revolving Borrowing or a requested issuance of a Foreign Currency
Letter of Credit, in either case to be denominated in a Foreign Currency that
deposits in the relevant Foreign Currency (in the applicable amounts) are not being
offered to such Lenders in the interbank eurocurrency market for the requested
Interest Period or, with respect to Foreign Currency Letters of Credit, an Interest
Period for one (1) month, in which event the
Administrative Agent will give notice to the Borrowers, no later than 1:30 p.m.
on the second Business Day prior to the requested date of such Borrowing or the
requested date of the issuance of such Foreign Currency Letter of Credit that the
Borrowing, or the issuance of a Foreign Currency Letter of Credit, in either case in
the requested Foreign Currency is not then available, and notice thereof will also
be given promptly by the Administrative Agent to the Revolving Credit Lenders. If
the Administrative Agent shall have notified the Borrowers that any requested
Revolving Loan to be denominated in a Foreign Currency, or any Foreign Currency
Letter of Credit denominated in such Foreign Currency, is not then available, the
Notice of Borrowing relating to such requested Revolving Loan, or the request for
the issuance of such Foreign Currency Letter of Credit, as
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applicable, shall be
deemed to be withdrawn, the Borrowing or issuance requested therein shall not occur
and the Administrative Agent will promptly so notify each Revolving Credit Lender
and, if applicable, the Issuing Bank.”
(d) Section 2.13(b)(ii) of the Credit Agreement is hereby amended by deleting such clause
(b)(ii) in its entirety and substituting in lieu thereof the following:
“(ii) Foreign Currency Overadvance. The Borrowers shall be required to make
mandatory prepayments of Borrowings or cash collateralize outstanding Foreign
Currency Letter of Credits, in each case pursuant to and in accordance with
Section 2.6(f) and Section 2.10(c), as applicable. Any such
prepayment shall be applied (A) to such Revolving Loans as designated by the
Borrowers and, in the event the Borrowers fail to designate such Revolving Loans, to
such Revolving Loans with the earliest maturity dates, based upon the remaining
terms of their respective Interest Periods, in any case, to the Revolving Credit
Lenders in accordance with their Pro Rata Share of such payment or (B) to cash
collateralize outstanding Foreign Currency Letters of Credits, as applicable;
provided, that the Borrowers shall also pay all amounts required pursuant to
Section 2.20.”
(e) Subsections (a), (b), (e), (f) and (h) of Section 2.25 of the Credit Agreement are hereby
amended by deleting such subsections in their entireties and substituting in lieu thereof the
following:
“(a) (i) During the Revolving Credit Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Revolving Credit Lenders pursuant to
Section 2.25(e), agrees to issue, at the request of the Borrowers, Letters
of Credit for the account of the Borrowers on the terms and conditions hereinafter
set forth; provided, that (A) each Letter of Credit shall be a standby letter of
credit which shall expire on the earlier of (x) the date one year after the date of
issuance of such Letter of Credit (or in the case of any renewal or extension
thereof, one year after such renewal or extension) and (y) the date that is five (5)
Business Days prior to the Revolving Credit Termination Date; (B) each Letter of
Credit shall be in a minimum stated amount of at least $100,000 (or, in the case of
any Foreign Currency Letters of Credit, in a minimum stated amount
of such Foreign Currency with a comparable Dollar Equivalent of at least
$100,000, rounded upwards to the nearest 100,000 unit multiple in such Foreign
Currency), or in a minimum stated amount as agreed upon by the Borrowers and the
Issuing Bank; and (C) the Borrowers may not request any Letter of Credit or increase
in the stated amount of any Letter of Credit, if (w) after giving effect to such
issuance or increase, the aggregate LC Exposure would exceed the LC Commitment, (x)
after giving effect to such issuance or increase, the Dollar Equivalent of the
aggregate stated amount of all outstanding Foreign Currency Letters of Credit would
exceed the Foreign Currency LC Sublimit, (y) the issuance or increase of such Letter
of Credit would violate any legal or regulatory restriction then applicable to the
Issuing Bank or any Revolving Credit Lender as
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notified by the Issuing Bank or such
Lender to the Administrative Agent before the date of issuance of such Letter of
Credit or (z) after giving effect to such issuance or increase, the aggregate amount
of the Revolving Credit Exposure of all Revolving Credit Lenders would exceed the
Aggregate Revolving Commitments. Upon the issuance of each Letter of Credit or an
increase in the stated amount thereof, and without further action, each Revolving
Credit Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Issuing Bank without recourse a participation in such Letter
of Credit equal to such Revolving Credit Lender’s Pro Rata Share of the aggregate
amount available to be drawn under such Letter of Credit. Each issuance of a Letter
of Credit shall be deemed to utilize the Revolving Commitment of each Revolving
Credit Lender by an amount equal to the amount of such participation. Each Letter
of Credit shall be denominated in Dollars or in a Foreign Currency.
(ii) Each of the parties hereto: (A) acknowledges that, prior to the Closing
Date, the Issuing Bank issued the Existing Letters of Credit for the account of the
Borrowers and (B) agrees that the Existing Letters of Credit shall, for all purposes
(including the Borrowers’ reimbursement obligations therefor, the reimbursement
obligations of each Lender owing to the Issuing Bank pursuant to Section
2.25(f) and all fees payable in respect of Letters of Credit) be deemed to
constitute a Letter of Credit issued by the Issuing Bank pursuant to this Agreement
for the account of the Borrowers. The Existing Letters of Credit shall be deemed to
be issued on and as of the Closing Date and the LC Commitment shall be deemed to
have automatically been reduced on the Closing Date in an amount equal to the
aggregate stated amount of the Existing Letters of Credit. The Issuing Bank shall,
upon the request of any Lender, deliver copies of any information concerning the
Existing Letters of Credit as any such Lender may reasonably request. All of the
parties hereto agree that in the event there is any inconsistency between the terms
of the letter of credit agreement or application or reimbursement agreement with
respect to an Existing Letter of Credit and this Agreement including, without
limitation, terms relating to the timing of reimbursement, fees, standards of
conduct and other matters, the terms of this Agreement shall control.
(b) To request the issuance of a Letter of Credit (or any amendment, renewal or
extension of an outstanding Letter of Credit), the Borrowers shall give the Issuing
Bank and the Administrative Agent irrevocable written notice at least three (3)
Business Days prior to the requested date of such issuance specifying the date
(which shall be a Business Day) such Letter of Credit is to be issued (or amended,
extended or renewed, as the case may be), the expiration date of such Letter of
Credit, the amount of such Letter of Credit, whether such Letter of Credit is to be
denominated in Dollars or a Foreign Currency (and if the latter, the applicable
Foreign Currency), the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of
Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount of
such Letter of Credit) will be subject to the further conditions that such
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Letter of
Credit shall be in such form and contain such terms as the Issuing Bank shall
approve and that the Borrowers shall have executed and delivered any additional
applications, agreements and instruments relating to such Letter of Credit as the
Issuing Bank shall reasonably require; provided, that in the event of any conflict
between such applications, agreements or instruments and this Agreement, the terms
of this Agreement shall control.
(e) Unless the Borrowers shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior to
the date on which a Letter of Credit drawing is honored that the Borrowers intend to
reimburse the Issuing Bank for the amount of such drawing in funds other than from
the proceeds of Revolving Loans, the Borrowers shall be deemed to have timely given
a Notice of Revolving Borrowing to the Administrative Agent requesting the Revolving
Credit Lenders to make a Base Rate Borrowing (in the case of a Letter of Credit
denominated in Dollars) or a LIBO Rate Borrowing with a rate of interest that would
then be applicable hereunder for a LIBO Rate Loan having an Interest Period of one
month (in the case of a Foreign Currency Letter of Credit), in each case on the date
on which such drawing is honored in an exact amount due to the Issuing Bank plus, to
the extent LIBO Rate Borrowings are not available at such time in the same Foreign
Currency as the Foreign Currency of the applicable Foreign Currency Letter of
Credit, any out-of-pocket transaction costs incurred by the Issuing Bank to convert
any LC Disbursement funded in a Foreign Currency into Dollars; provided, that for
purposes solely of such Borrowing, the conditions precedent set forth in Section
3.2 hereof shall not be applicable. The Administrative Agent shall notify the
Revolving Credit Lenders of such Borrowing in accordance with Section 2.3,
and each Revolving Credit Lender shall make the proceeds of its Base Rate Loan or
LIBO Rate Loan in the applicable Foreign Currency, as applicable, included in such
Borrowing available to the Administrative Agent for the account of the Issuing Bank
in accordance with Section 2.7(a). The proceeds of such Borrowing shall be applied
directly by the Administrative Agent to reimburse the Issuing Bank for such LC
Disbursement.
(f) If for any reason a Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in accordance with the
foregoing Section 2.25(e), then each Revolving Credit Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Borrowing should have
occurred. Each Revolving Credit Lender’s obligation to fund its participation shall
be absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense or
other right that such Lender or any other Person may have against the Issuing Bank
or any other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of the Aggregate Revolving Commitments, (iii)
any adverse change in the condition (financial or otherwise)
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of either Borrower or
any Subsidiary, (iv) any breach of this Agreement by either Borrower or any other
Lender, (v) any amendment, renewal or extension of any Letter of Credit or (vi) any
other circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing. On the date that such participation is required to be funded, each
Revolving Credit Lender shall promptly transfer, in immediately available funds, the
amount of its participation to the Administrative Agent for the account of the
Issuing Bank. Whenever, at any time after the Issuing Bank has received from any
such Revolving Credit Lender the funds for its participation in a LC Disbursement,
the Issuing Bank (or the Administrative Agent on its behalf) receives any payment on
account thereof, the Administrative Agent or the Issuing Bank, as the case may be,
will distribute to such Revolving Credit Lender its Pro Rata Share of such payment;
provided, that if such payment is required to be returned for any reason to the
Borrowers or to a trustee, receiver, liquidator, custodian or similar official in
any bankruptcy proceeding, such Revolving Credit Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof previously distributed
by the Administrative Agent or the Issuing Bank to it.
(h) If any Event of Default shall occur and be continuing, on the Business Day
that the Borrowers receive notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the
Borrowers shall deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Issuing Bank and the Revolving
Credit Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest or fees thereon; provided, that the obligation to
deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or notice of any kind, upon
the occurrence of any Event of Default with respect to either Borrower described in
Section 8.1(g) or Section 8.1(h). Such deposit shall be held by the
Administrative Agent as collateral in an interest bearing account (which account
shall be chosen in the sole discretion of
the Administrative Agent and at the Borrowers’ risk and expense) for the
payment and performance of the obligations of the Borrowers under this Agreement.
The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Interest and profits on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it had not been reimbursed and to the extent not so applied,
shall be held for the satisfaction of the reimbursement obligations of the Borrowers
for the LC Exposure at such time. If the Borrowers are required to provide an
amount of cash collateral hereunder as a result of the occurrence of an Event of
Default or as a result of Section 2.6(f), such amount (to the extent not so applied
as set forth in this paragraph or as set forth in Section 2.13(b)(ii), as
applicable) shall be returned to the Borrowers within three (3) Business Days after
all Events of Default have been cured or waived or after the circumstances
-12-
which
gave rise to the requirement for the Borrowers to provide such cash collateral under
Section 2.6(f) have ceased to exist, as applicable.”
(f) Section 2.28(a) of the Credit Agreement is hereby amended by deleting such clause (a) in
its entirety and substituting in lieu thereof the following:
(a) So long as no Default or Event of Default has occurred and is continuing,
from time to time, the Borrowers may propose to increase the Aggregate Revolving
Commitments (the amount of any such increase, the “Additional Revolving
Commitment Amount”) and/or propose to incur additional Term Loans (the
“Additional Term Loans”), provided, however, that (i) the amount of all
Additional Revolving Commitment Amounts and all Additional Term Loans increased or
made, as applicable, pursuant to this Section shall not exceed $50,000,000 in the
aggregate; (ii) each Additional Revolving Commitment Amount and each Additional Term
Loan shall be in a principal amount of not less than $5,000,000 or a larger multiple
of $1,000,000 and (iii) any proposal to increase the Aggregate Revolving Commitments
shall only include Revolving Commitments that mature on the Revolving Credit
Termination Date. Each existing Lender shall have the right for a period of 10 days
following receipt of notice from the Administrative Agent of any such proposed
increase or incurrence of Additional Term Loans, to elect by written notice to the
Borrowers and the Administrative Agent to increase its Revolving Commitment and/or
make Additional Term Loans (as the case may be) by a principal amount equal to its
Pro Rata Share of the Additional Revolving Commitment Amount or Additional Term
Loans. No existing Lender (or any successor thereto) shall have the right (unless
an increase in the Aggregate Revolving Commitments and/or the making of Additional
Term Loans is requested by the Borrowers pursuant to this Section) or the obligation
to increase its Revolving Commitment, to make Additional Term Loans or to increase
its other obligations under this Agreement and the other Loan Documents, and any
decision by a Lender to increase it Revolving Commitment or make Additional Term
Loans (as the case may be) shall be made in its sole
discretion independently from any other Lender. If any Lender shall fail to
notify the Borrowers and the Administrative Agent in writing regarding whether it
will increase its Revolving Commitment or make Additional Term Loans (as the case
may be) within 10 days after receipt of such notice from the Administrative Agent,
such Lender shall be deemed to have declined to increase its Revolving Commitment or
to make Additional Term Loans (as the case may be).
(g) Section 5.10 of the Credit Agreement is hereby amended by adding the following to the end
of such section:
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“The Borrowers will use the proceeds of the Additional Term Loans as follows:
(a) $30,000,000 of the Additional Term Loans shall be used by the Borrowers to fund
contributions to their underfunded defined benefit pension plans on or before
December 31, 2010 and (b) the remaining $20,000,000 of the Additional Term Loans
shall be used by the Borrowers to fund contributions to their underfunded defined
benefit pension plans on or before January 31, 2011.”
(h) Section 6.1 of the Credit Agreement is hereby amended by deleting such section in its
entirety and substituting in lieu thereof the following:
“Section 6.1 Leverage Ratio. Xxxxxxxx will not permit the Leverage Ratio, as at the
end of each fiscal quarter of Xxxxxxxx set forth below, to exceed the ratio set
forth opposite such period:
| Period | Ratio | |||
Closing Date through and including September 30, 2007 |
4.25 to 1.00 | |||
December 31, 2007 through and including September 30, 2008 |
3.50 to 1.00 | |||
December 31, 2008 through and including September 30, 2009 |
3.00 to 1.00 | |||
December 31, 2009 through and including September 30, 2010 |
3.25 to 1.00 | |||
December 31, 2010 through and including March 31, 2012 |
3.50 to 1.00 | |||
June 30, 2012 through and including December 31, 2012 |
3.00 to 1.00 | |||
March 31, 2013 and thereafter |
2.50 to 1.00” | |||
(i) Section 7.5(a)(iii) of the Credit Agreement is hereby amended by deleting the reference to
“2.75 to 1.00” in such section and substituting in lieu thereof “3.25 to 1.00”.
(j) Section 7.10 of the Credit Agreement is hereby amended by deleting the reference to
“$50,000,000” at the end of section and substituting in lieu thereof “100,000,000”.
Section 3. Conditions Precedent. The effectiveness of this Amendment is subject to
the Administrative Agent’s receipt of each of the following, each in form and substance
satisfactory to the Administrative Agent:
(i) This Amendment duly executed and delivered by the Borrowers, the Required Lenders,
the Funding Lenders and the Administrative Agent;
(ii) A Reaffirmation of Obligations under Loan Documents (the “Reaffirmation”)
duly executed by the Borrowers and each other Loan Party, in the form of Exhibit B
attached hereto;
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(iii) certified copies of resolutions of the board of directors (or equivalent thereof)
of each Loan Party approving the execution, delivery and performance of this Amendment, the
Reaffirmation and the other documents to be executed in connection herewith;
(iv) a favorable opinion of Xxxxx Day, counsel to the Loan Parties, in form and
substance satisfactory to the Administrative Agent, addressed to the Administrative Agent
and the Lenders and addressing such other matters as the Administrative Agent may reasonably
request;
(v) Evidence that an amendment fee in the amount of (i) 0.25% of each Consenting
Lender’s Revolving Commitment and (ii) 0.25% of the principal amount of Term Loans held by
each Consenting Lender has been paid to the Administrative Agent for distribution to those
Consenting Lenders for whom the Administrative Agent (or its counsel) shall have received an
executed signature page from such Consenting Lender (without condition or restriction) on or
before 5:00 p.m. EDT on December 9, 2010;
(vi) Evidence that all fees and expenses payable to the Administrative Agent (including
the out-of-pocket fees and reasonable expenses of counsel to the Administrative Agent) and
the Arranger in connection with this Amendment have been paid;
(vii) A certificate, dated the date on which this Amendment becomes effective and
signed by a Responsible Officer of Xxxxxxxx in the form of Exhibit C attached
hereto;
(viii) (x) An amendment of the Deed to Secure Debt (the “Deed to Secure Debt”) in favor
of the Administrative Agent for the benefit of the Lenders encumbering the real property
owned by Xxxxxxxx and located in Tucker, Georgia and (y) an update to the Lender’s title
policy insuring the Deed to Secure Debt and any and all endorsements thereto as reasonably
required by the Administrative Agent, each in form and substance reasonably satisfactory to
the Administrative Agent; and
(ix) Such other documents as the Administrative Agent, on behalf of the Lenders, may
reasonably request.
Section 4. Representations. Each Borrower represents and warrants to the
Administrative Agent and the Lenders that:
(a) Authorization. Each Borrower has the right and power, and has taken all necessary
action to authorize it, to execute and deliver this Amendment and to perform its obligations
hereunder and under the Credit Agreement, as amended by this Amendment, in accordance with their
respective terms. This Amendment has been duly executed and delivered by a duly authorized officer
of each Borrower and each of this Amendment and the Credit Agreement, as is amended by this
Amendment, is a legal, valid and binding obligation of such Borrower enforceable against such
Borrower, in accordance with its respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
-15-
creditors rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of general applicability.
(b) Compliance with Laws, etc. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of this Amendment and the Credit Agreement, as
amended by this Amendment, in accordance with their respective terms, do not and will not, by the
passage of time, the giving of notice or otherwise: (i) require any government action or violate
any applicable law relating to either Borrower; (ii) conflict with, result in a breach of or
constitute a default under the organizational documents of either Borrower, or any indenture,
agreement or other instrument to which either Borrower is a party or by which they or any of their
properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon
or with respect to any property now owned or hereafter acquired by either Borrower.
(c) No Default. No Default or Event of Default has occurred and is continuing as of
the date hereof or will exist immediately after giving effect to this Amendment.
(d) No Impairment of Liens. The execution, delivery, performance and effectiveness of
this Amendment will not: (a) impair the validity, effectiveness or priority of the Liens granted
pursuant to any Loan Document, and such Liens continue unimpaired with the same priority to secure
repayment of all of the applicable Obligations, whether heretofore or hereafter incurred, and (b)
require that any new filings be made or other action taken to perfect or to maintain the perfection
of such Liens.
Section 5. Reaffirmation of Representations by Borrowers. Each Borrower hereby
repeats and reaffirms all representations and warranties made by such Borrower to the
Administrative Agent and the Lenders in the Credit Agreement and the other Loan Documents to which
it is a party on and as of the date hereof (except with respect to such representations and
warranties that reference a specific date, in which case the Borrowers confirm that such
representations and warranties were true and correct in all material respects as of such specific
date) after giving effect to this Amendment with the same force and effect as if such
representations and warranties were set forth in this Amendment in full.
Section 6. 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 as of the date hereof, with respect to
the Credit Agreement and the other Loan Documents and the transactions contemplated thereby.
Section 7. Effect; Ratification.
(a) Except as expressly herein amended, the terms and conditions of the Credit Agreement and
the other Loan Documents remain unchanged and continue to be in full force and effect. The
amendments contained herein shall be deemed to have prospective application only, unless otherwise
specifically stated herein. The Credit Agreement is hereby ratified and confirmed in all respects.
Each reference to the Credit Agreement in any of the Loan Documents
-16-
(including the Credit
Agreement) shall be deemed to be a reference to the Credit Agreement, as amended by this Amendment.
(b) Nothing contained herein shall be deemed to constitute a waiver of compliance with any
term or condition contained in the Credit Agreement or any of the other Loan Documents, or
constitute a course of conduct or dealing among the parties. The Administrative Agent and the
Lenders reserve all rights, privileges and remedies under the Loan Documents.
(c) Nothing in this Amendment is intended, or shall be construed, to constitute a novation or
an accord and satisfaction of any of the Obligations or to modify, affect or impair the perfection,
priority or continuation of the security interests in, security titles to or other Liens on any
collateral (including the Collateral) securing the Obligations.
(d) This Amendment constitutes the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof.
(e) This Amendment may be executed in any number of counterparts and by different parties
hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be
an original, but all of which when taken together shall constitute a single instrument. Delivery
of an executed counterpart of a signature page of this Amendment by facsimile transmission or by
email in Adobe “.pdf” format shall be effective as delivery of a manually executed counterpart
hereof.
Section 8. Further Assurances. The Borrowers agree to, and to cause any Loan Party
to, take all further actions and execute such other documents and instruments as the Administrative
Agent may from time to time reasonably request to carry out the transactions contemplated by this
Amendment, the Loan Documents and all other agreements executed and delivered in connection
herewith.
Section 9. Miscellaneous. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF. This Amendment shall be
binding upon and shall inure to the benefit of the parties hereto and their respective permitted
successors and assigns.
Section 10. Severability. In case any provision of or obligation under this
Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such provision or obligation
in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 11. Definitions. All capitalized terms not otherwise defined herein are used
herein with the respective definitions given them in the Credit Agreement.
Section 12. Roles. It is agreed that SunTrust Xxxxxxxx Xxxxxxxx, Inc. is and will be
acting as sole lead arranger and bookrunner for the Additional Term Loans.
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[Signature Pages Follow]
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to Credit
Agreement to be duly executed as of the date first above written.
| BORROWERS XXXXXXXX & COMPANY |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President and Treasurer | |||
| XXXXXXXX & COMPANY INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: | Vice President and Treasurer | |||
[Signatures Continued on Following Pages]
[Signature page to Sixth Amendment to Credit Agreement
for Xxxxxxxx & Company and Xxxxxxxx & Company International, Inc.]
for Xxxxxxxx & Company and Xxxxxxxx & Company International, Inc.]
| LENDERS SUNTRUST BANK, as Administrative Agent, Issuing Bank, as Swingline Lender and as a Lender |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[Signatures Continued on Following Pages]
[Form
of Signature page for Consenting [and Funding] Lenders to Sixth Amendment to Credit Agreement
for Xxxxxxxx & Company and Xxxxxxxx & Company International, Inc.]
for Xxxxxxxx & Company and Xxxxxxxx & Company International, Inc.]
| , as a Consenting Lender [and a Funding Lender] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
EXHIBITS
AND SCHEDULE
| Exhibit A | — | Form of Notice of Borrowing of Additional Term Loans | |
| Exhibit B | — | Reaffirmation of Obligations Under Loan Documents | |
| Exhibit C | — | Form of Officer’s Certificate | |
| Schedule I | — | Additional Term Loan Allocations |
