AMENDMENT NUMBER TWO TO AMENDED AND RESTATED FINANCING AGREEMENT
EXHIBIT 10.1
EXECUTION VERSION
AMENDMENT NUMBER TWO
TO AMENDED AND RESTATED FINANCING AGREEMENT
TO AMENDED AND RESTATED FINANCING AGREEMENT
This AMENDMENT NUMBER TWO TO AMENDED AND RESTATED FINANCING AGREEMENT (this
“Amendment”) is entered into as of March 30, 2009, by and among PRG-XXXXXXX INTERNATIONAL,
INC., a Georgia corporation (the “Parent”), PRG-XXXXXXX USA, INC., a Georgia corporation
(“PRG-Xxxxxxx USA” and together with the Parent, individually and collectively, jointly and
severally, the “Borrower”), the lenders party hereto (each a “Lender” and
collectively, the “Lenders”), ABLECO FINANCE LLC, a Delaware limited liability company
(“Ableco”), as collateral agent for the Lenders (in such capacity, together with any
successor collateral agent, the “Collateral Agent”), and XXXXX FARGO FOOTHILL, INC., a
California corporation, as administrative agent for the Lenders (in such capacity, together with
any successor administrative agent, the “Administrative Agent” and together with the
Collateral Agent, each an “Agent” and collectively, the “Agents”) with reference to
the following:
WHEREAS, the Borrower, each subsidiary of the Parent listed as a “Guarantor” on the
signature pages thereto (each a “Guarantor” and collectively, jointly and severally, the
“Guarantors”), the Agents and the Lenders are parties to that certain Amended and Restated
Financing Agreement, dated as of September 17, 2007 (as amended by that certain Amendment Number
One to Amended and Restated Financing Agreement dated as of March 28, 2008 and as further amended,
restated, supplemented, or otherwise modified from time to time, the “Financing
Agreement”);
WHEREAS, the Borrower has requested that the Agents and Lenders amend the Financing Agreement
as set forth herein; and
WHEREAS, upon the terms and conditions set forth herein, the Agents and Lenders are willing to
accommodate the Borrower’s request.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Financing Agreement, as amended hereby.
2. Amendments to Financing Agreement.
(a) Section 1.01 of the Financing Agreement is hereby amended by adding the following
new definitions of “AR Addition”, “AR Availability” and “Second Amendment Effective Date” in proper
alphabetical order:
““AR Addition” means 0.25 multiplied by AR Availability.”
““AR Availability” means the sum of (A) up to 85% of the value of the Net
Amount of Eligible Accounts Receivable, less the amount, if any, of the Dilution
Reserve, plus (B) the lesser of (x) up to 20% of the Eligible Backlog, and (y) 50%
of the amount determined under clause (A) of this definition.”
““Second Amendment Effective Date” means March 30, 2009.”
(b) The definition of “Borrowing Base Addition” in Section 1.01 of the
Financing Agreement is hereby amended and restated in its entirety as follows:
“Borrowing Base Addition” means, as of any date of determination during
any period set forth in the below table, the amount set forth opposite such period
in the below table:
Applicable Period | Borrowing Base Addition | ||||||
During the period from March 28,
2008 to and including September 30,
2008
|
$10,000,000 | ||||||
During the period from October 1,
2008 to and including December 31,
2008
|
$9,750,000 | ||||||
During the period from January 1 ,
2009 to the Second Amendment
Effective Date
|
$9,500,000 | ||||||
During the period from and including
the Second Amendment Effective Date
to and including June 30, 2009
|
The lesser of $3,000,000 and AR Addition | ||||||
During the period from July 1, 2009
to and including September 30, 2009
|
The lesser of $2,900,000 and AR Addition | ||||||
During the period from October 1,
2009 to and including December 31,
2009
|
The lesser of $2,800,000 and AR Addition | ||||||
During the period from January 1,
2010 to and including March 31, 2010
|
The lesser of $2,700,000 and AR Addition | ||||||
During the period from April 1, 2010
to and including June 30, 2010
|
The lesser of $2,600,000 and AR Addition | ||||||
During the period from July 1, 2010
to and including September 30, 2010
|
The lesser of $2,500,000 and AR Addition | ||||||
During the period from October 1,
2010 to and including December 31,
2010
|
The lesser of $2,400,000 and AR Addition | ||||||
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Applicable Period | Borrowing Base Addition | ||||||
During the period from January 1,
2011 to and including March 31, 2011
|
The lesser of $2,300,000 and AR Addition | ||||||
During the period from April 1, 2011
to and including June 30, 2011
|
The lesser of $2,200,000 and AR Addition | ||||||
During the period from July 1, 2011
to and including September 30, 2011
|
The lesser of $2,100,000 and AR Addition | ||||||
During the period from October 1,
2011 to and including December 31,
2011
|
The lesser of $2,000,000 and AR Addition | ||||||
(c) Section 7.02(h) of the Financing Agreement is hereby amended by deleting clause
(D) of the proviso set forth therein and replacing it with the following:
“(D) (i) on or before March 31, 2009, the Parent may purchase up to $2,000,000 in the
aggregate of the Parent’s Capital Stock on the open market or through privately-negotiated
transactions and (ii) from April 1, 2009 until March 31, 2010, the Parent may purchase up to
$5,000,000 in the aggregate of the Parent’s Capital Stock on the open market or through
privately-negotiated transactions so long as (x) no Default or Event of Default shall have
occurred and be continuing either immediately before or after giving effect thereto and (y)
after giving effect thereto, the aggregate outstanding principal amount of Revolving Loans
does not exceed $10,000,000.”
(d) Section 7.03(b) of the Financing Agreement is hereby amended by deleting the table
appearing therein and replacing it with the following:
“Fiscal Quarter End | Fixed Charge Coverage Ratio | ||||
September 30, 2007
|
1.40:1.00 | ||||
December 31, 2007
|
1.30:1.00 | ||||
March 31, 2008
|
1.50:1.00 | ||||
June 30, 2008
|
1.30:1.00 | ||||
September 30, 2008
|
1.90:1.00 | ||||
December 31, 2008
|
1.90:1.00 | ||||
March 31, 2009
|
1.80:1.00 | ||||
June 30, 2009
|
1.50:1.00 | ||||
September 30, 2009
|
1.50:1.00 | ||||
December 31, 2009
|
1.80:1.00 | ||||
March 31, 2010
|
1.85:1.00 | ||||
June 30, 2010
|
1.90:1.00 | ||||
September 30, 2010
|
1.90:1.00 | ||||
December 31, 2010
|
1.90:1.00 | ||||
March 31, 2011
|
2.00:1.00 | ||||
June 30, 2011
|
2.00:1.00 | ||||
September 30, 2011
|
2.00:1.00 | ||||
December 31, 2011
|
2.00:1.00” | ||||
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(e) Section 7.03(c) of the Financing Agreement is hereby amended by deleting the table
appearing therein and replacing it with the following:
“Fiscal Quarter End | Consolidated EBITDA | ||||||
September 30, 2007
|
29,100,000 | ||||||
December 31, 2007
|
28,400,000 | ||||||
March 31, 2008
|
25,700,000 | ||||||
June 30, 2008
|
25,000,000 | ||||||
September 30, 2008
|
26,900,000 | ||||||
December 31, 2008
|
24,000,000 | ||||||
March 31, 2009
|
29,250,000 | ||||||
June 30, 2009
|
26,000,000 | ||||||
September 30, 2009
|
26,000,000 | ||||||
December 31, 2009
|
27,000,000 | ||||||
March 31, 2010
|
29,750,000 | ||||||
June 30, 2010
|
30,850,000 | ||||||
September 30, 2010
|
29,450,000 | ||||||
December 31, 2010
|
27,050,000 | ||||||
March 31, 2011
|
27,600,000 | ||||||
June 30, 2011
|
28,150,000 | ||||||
September 30, 2011
|
28,750,000 | ||||||
December 31, 2011
|
29,125,000 | ” | |||||
3. Conditions Precedent to Amendment. The satisfaction of each of the following shall
constitute conditions precedent to the effectiveness of this Amendment and each and every provision
hereof:
(a) The Collateral Agent shall have received this Amendment, duly executed by the parties
hereto, and the same shall be in full force and effect.
(b) The Collateral Agent shall have received the reaffirmation and consent of each Guarantor
attached hereto as Exhibit A, duly executed and delivered by each Guarantor.
(c) The Borrower shall pay concurrently with the closing of the transactions evidenced by this
Amendment, all fees, costs, expenses and taxes then payable pursuant to Section 2.06
(including the fees due and payable under the Fee Letter, if any) or
12.04 (including the attorneys fees of the Agents incurred in
connection with this Amendment) of the Financing Agreement.
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(d) After giving effect to this Amendment, the representations and warranties herein and in
the Financing Agreement and the other Loan Documents shall be true and correct in all material
respects on and as of the date hereof, as though made on such date (except to the extent that such
representations and warranties relate solely to an earlier date).
(e) After giving effect to this Amendment, no Default or Event of Default shall have occurred
and be continuing on the date hereof.
(f) No injunction, writ, restraining order, or other order of any nature prohibiting, directly
or indirectly, the consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against the Borrower, any Agent, or any Lender.
4. Representations and Warranties. The Borrower represents and warrants to the Agents
and Lenders that (a) the execution, delivery, and performance of this Amendment and of the
Financing Agreement, as amended hereby, (i) are within its powers, (ii) have been duly authorized
by all necessary action, and (iii) are not in contravention of any law applicable to it or of the
terms of its governing documents, or of any contract or undertaking to which it is a party or by
which any of its properties may be bound or affected; (b) this Amendment and the Financing
Agreement, as amended hereby, are legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws; (c) after
giving effect to this Amendment, no Default or Event of Default has occurred and is continuing on
the date hereof or as of the date upon which the conditions precedent set forth herein, are
satisfied; and (d) the Borrower is not in violation of its organizational documents or any law,
rule, regulation, judgment or order of any Governmental Authority applicable to it or any of its
property or assets, or any material term of any agreement or instrument (including, without
limitation, any Material Contract) binding on or otherwise affecting it or any of its properties,
except where such violation could not reasonably be expected to have a Material Adverse Effect.
5. Advice of Counsel. The Borrower has had advice of independent counsel of its own
choosing in negotiations for and the preparation of this Amendment, has read this Amendment in full
and final form, and has had this Amendment fully explained to it to its satisfaction.
6. Payment of Costs and Fees. The Borrower shall pay to each Agent all costs, all
reasonable out-of-pocket expenses, and all fees and charges of every kind in connection with the
preparation, negotiation, execution and delivery of this Amendment and any documents and
instruments relating hereto. In addition thereto, the Borrower agrees to reimburse each Agent on
demand for its costs arising out of this Amendment and all documents or instruments relating hereto
(which costs may include the reasonable fees and expenses of any attorneys retained by any Agent).
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7. Reaffirmation of Loan Documents. By executing this Amendment, the Borrower hereby
restates, ratifies and reaffirms each and every term and condition set forth in the Financing
Agreement and the other Loan Documents to which it is a party effective as of the date hereof. By
executing this Amendment, the Borrower hereby acknowledges, consents and agrees that all of its
obligations and liabilities under the Financing Agreement (as amended hereby) remain in full force
and effect, and that the execution and delivery of this Amendment and any and all documents
executed in connection therewith shall not alter, amend, reduce or modify its obligations and
liability under the Financing Agreement (as amended hereby) or any of the other Loan Documents to
which it is a party.
8. Choice of Law. The validity of this Amendment, its construction, interpretation
and enforcement, the rights of the parties hereunder, shall be determined under, governed by, and
construed in accordance with the laws of the State of New York.
9. Counterpart Execution. This Amendment may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same instrument, and
any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of
an executed counterpart of this Amendment by telefacsimile or electronic mail shall be equally as
effective as delivery of an original executed counterpart of this Amendment. Any party delivering
an executed counterpart of this Amendment by telefacsimile or electronic mail also shall deliver an
original executed counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.
10. Effect on Loan Documents.
(a) The Financing Agreement, as amended hereby, and each of the other Loan Documents shall be
and remain in full force and effect in accordance with their respective terms and hereby are
ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment
shall not operate, except as expressly set forth herein, as a modification or waiver of any right,
power, or remedy of any Agent or any Lender under the Financing Agreement or any other Loan
Document. The modifications contained herein are limited to the specifics hereof (including facts
or occurrences on which the same are based), shall not apply with respect to any facts or
occurrences other than those on which the same are based, shall not excuse any non-compliance with
the Loan Documents, and shall not operate as a consent to any matter under the Loan Documents.
(b) To the extent that any such Loan Document purports to assign or pledge to the Collateral
Agent or to grant to the Collateral Agent a security interest in or lien on, any collateral as
security for the Obligations from time to time existing in respect of the Financing Agreement
immediately prior to the date hereof, such pledge or assignment or grant of the security interest
or lien is hereby ratified and confirmed in all respects.
(c) Upon and after the effectiveness of this Amendment, each reference in the Financing
Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to
the Financing Agreement, and each reference in the other Loan Documents to “the Financing
Agreement”, “thereunder”, “therein”,
“thereof or words of like import referring to the Financing
Agreement, shall mean and be a reference to the Financing Agreement
as modified and amended hereby.
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(d) To the extent that any terms and conditions in any of the Loan Documents shall contradict
or be in conflict with any terms or conditions of the Financing Agreement, after giving effect to
this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to
reflect the terms and conditions of the Financing Agreement as modified or amended hereby.
(e) This Amendment is a Loan Document.
11. Entire Agreement. This Amendment embodies the entire understanding and agreement
among the parties hereto with respect to the subject matter hereof and supersedes any and all prior
or contemporaneous agreements or understandings with respect to the subject matter hereof, whether
express or implied, oral or written.
[signature page follows]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
BORROWER: PRG-XXXXXXX INTERNATIONAL, INC., a Georgia corporation |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | ||||
Title: CFO | ||||
PRG-XXXXXXX USA, INC., a Georgia corporation |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | ||||
Title: CFO | ||||
[SIGNATURE PAGE TO AMENDMENT NUMBER TWO
TO AMENDED AND RESTATED FINANCING AGREEMENT]
TO AMENDED AND RESTATED FINANCING AGREEMENT]
AGENTS AND LENDERS: ABLECO FINANCE LLC, as Collateral Agent and, on behalf of itself and its affiliate assign, as a Lender |
||||
By: | /s/ Xxxx Xxxxxx | |||
Name: Xxxx Xxxxxx | ||||
Title: Senior Vice President | ||||
XXXXX FARGO FOOTHILL, INC., as the Administrative Agent and a Lender |
||||
By: | /s/ Xxxxxx Xxxxxxx | |||
Name: Xxxxxx Xxxxxxx | ||||
Title: X.X. | ||||
XXXXXX PRIVATE INVESTMENTS, L.P., as a Lender |
||||
By: | /s/ Xxxxx Xxxxxxxx | |||
Name: Xxxxx Xxxxxxxx | ||||
Title: Chief Operating Officer | ||||
[SIGNATURE PAGE TO AMENDMENT NUMBER TWO
TO AMENDED AND RESTATED FINANCING AGREEMENT]
TO AMENDED AND RESTATED FINANCING AGREEMENT]
Exhibit A
REAFFIRMATION AND CONSENT
All capitalized terms used herein but not otherwise defined herein shall have the meanings
ascribed to them in that certain Amended and Restated Financing Agreement dated as of September 17,
2007 (as amended by that certain Amendment Number One to Amended and Restated Financing Agreement
dated as of March 28, 2008 and as further amended, restated, supplemented or otherwise modified
from time to time, the “Financing Agreement”) by and among PRG-XXXXXXX INTERNATIONAL, INC.,
a Georgia corporation (the “Parent”), PRG-XXXXXXX USA, INC., a Georgia corporation
(“PRG-Xxxxxxx USA” and together with the Parent, individually and collectively, jointly and
severally, the “Borrower”), each subsidiary of the Parent listed as a “Guarantor”
on the signature pages thereto (each a “Guarantor” and collectively, jointly and severally,
the “Guarantors”), the lenders from time to time party thereto (each a “Lender” and
collectively, the “Lenders”), ABLECO FINANCE LLC, a Delaware limited liability company
(“Ableco”), as collateral agent for the Lenders (in such capacity, together with any
successor collateral agent, the “Collateral Agent”), and XXXXX FARGO FOOTHILL, INC., a
California corporation, as administrative agent for the Lenders (in such capacity, together with
any successor administrative agent, the “Administrative Agent” and together with the
Collateral Agent, each an “Agent” and collectively, the “Agents”) or in Amendment
Number Two to Amended and Restated Financing Agreement, dated as of March 30, 2009 (the
“Amendment”), by and among the Borrower, the Lenders, and the Agents. The undersigned each
hereby (a) represents and warrants to the Collateral Agent that the execution, delivery, and
performance of this Reaffirmation and Consent are within its powers, have been duly authorized by
all necessary action, and are not in contravention of any law, rule, or regulation, or any order,
judgment, decree, writ, injunction, or award of any arbitrator, court, or governmental authority,
or of the terms of its charter or bylaws, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected; (b) consents to the amendment of the
Financing Agreement as set forth in the Amendment; (c) acknowledges and reaffirms its obligations
owing to the Agents and the Lenders under any Loan Documents to which it is a party; and (d) agrees
that each of the Loan Documents to which it is a party is and shall remain in full force and
effect. Although the undersigned each has been informed of the matters set forth herein and has
acknowledged and agreed to the same, they each understand that neither any Agent nor any Lender has
any obligations to inform it of such matters in the future or to seek its acknowledgment or
agreement to future amendments, and nothing herein shall create such a duty. Delivery of an
executed counterpart of this Reaffirmation and Consent by telefacsimile shall be equally as
effective as delivery of an original executed counterpart of this Reaffirmation and Consent. Any
party delivering an executed counterpart of this Reaffirmation and Consent by telefacsimile also
shall deliver an original executed counterpart of this Reaffirmation and Consent but the failure to
deliver an original executed counterpart shall not affect the validity, enforceability, and binding
effect of this Reaffirmation and Consent. This Reaffirmation and Consent shall be governed by the
laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have each caused this Reaffirmation and Consent to be
executed as of the date of the Amendment,
PRG-XXXXXXX CANADA, LLC, a Georgia limited liability company THE PROFIT RECOVERY GROUP MEXICO, INC., a Georgia corporation PRG-XXXXXXX PUERTO RICO, INC., a Georgia corporation THE PROFIT RECOVERY GROUP COSTA RICA, INC., a Georgia corporation PRG-XXXXXXX CHILE, INC., a Georgia corporation PRG INTERNATIONAL, INC., a Georgia corporation PRGFS, INC., a Delaware corporation PRGTS, LLC, a Georgia limited liability company HS&A ACQUISITION — UK, INC., a Texas corporation PRG-XXXXXXX AUSTRALIA, INC., a Georgia corporation PRG-XXXXXXX BELGIUM, INC., a Georgia corporation PRG-XXXXXXX EUROPE, INC., a Georgia corporation THE PROFIT RECOVERY GROUP GERMANY, INC., a Georgia corporation PRG-XXXXXXX FRANCE, INC., a Georgia corporation THE PROFIT RECOVERY GROUP NETHERLANDS, INC., a Georgia corporation THE PROFIT RECOVERY GROUP NEW ZEALAND, INC., a Georgia corporation PRG-XXXXXXX SCANDINAVIA, INC., a Georgia corporation PRG-XXXXXXX PORTUGAL, INC., a Georgia corporation PRG-XXXXXXX SWITZERLAND, INC., a Georgia corporation THE PROFIT RECOVERY GROUP ITALY, INC., a Georgia corporation THE PROFIT RECOVERY GROUP SPAIN, INC., a Georgia corporation THE PROFIT RECOVERY GROUP ASIA, INC., a Georgia corporation THE PROFIT RECOVERY GROUP SOUTH AFRICA, INC., a Georgia corporation PRG-XXXXXXX JAPAN, INC., a Georgia corporation PRG-XXXXXXX PUERTO RICO, a Puerto Rico foreign partnership |
||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: Xxxxx Xxxxxx | ||||
Title: CFO | ||||
[SIGNATURE PAGE TO EXHIBIT A TO AMENDMENT NUMBER TWO
TO AMENDED AND RESTATED FINANCING AGREEMENT]
TO AMENDED AND RESTATED FINANCING AGREEMENT]