Exhibit 10.38
FIRST AMENDMENT
TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT dated as of January 11, 2006 (this "AMENDMENT"),
to the Credit Agreement, dated as of December 8, 2005 (the "CREDIT AGREEMENT"),
by and among XXXXXXX HOLDINGS, INC. a Delaware corporation (the "COMPANY"),
Xxxxxx, X.X. ("XXXXXX") and BNP PARIBAS ("BNP PARIBAS"), as administrative agent
(in such capacity "ADMINISTRATIVE AGENT").
RECITALS
WHEREAS, subsection 2.1A(iv) of the Credit Agreement permits Lenders
and/or other financial institutions not a party to the Credit Agreement, that
are approved by Administrative Agent, to provide up to an aggregate amount of
$10,000,000 in additional Revolving Loan Commitments.
WHEREAS, Company desires to exercise its right under subsection
2.1A(iv) of the Credit Agreement to request additional Revolving Loan
Commitments in an aggregate principal amount of $5,000,000 (the "FIRST AMENDMENT
REVOLVING LOAN COMMITMENTS").
WHEREAS, Xxxxxx has agreed to make additional Revolving Loan
Commitments in an aggregate principal amount of $5,000,000 on the First
Amendment Effective Date (as defined below) and Administrative Agent approves of
the same.
WHEREAS, pursuant to subsection 2.1A(iv) of the Credit Agreement,
Company and Administrative Agent are authorized to amend the Credit Agreement
without the consent of the Lenders to the extent necessary to give effect to
such additional Revolving Loan Commitments.
WHEREAS, pursuant to an Assignment Agreement by and between Xxxxxx and
BNP Paribas, and consented to by Company and Administrative Agent (the
"Assignment"), BNP Paribas has, concurrently herewith, assigned to Xxxxxx (and
Xxxxxx has assumed) $5,000,000 of BNP Paribas' Revolving Loan Commitment such
that after giving effect to this Amendment and the Assignment, the aggregate
Revolving Loan Commitment of Xxxxxx will be $10,000,000.
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the parties hereto hereby agree as follows:
1. DEFINITIONS. Any capitalized term used herein and not defined herein
shall have the meaning assigned to it in the Credit Agreement.
2. AMENDMENTS TO DEFINITIONS.
(a) New definitions of "First Amendment" and "First Amendment
Revolving Loan Commitments" shall be added to Section 1.1 in
alphabetical order reading as follows:
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""FIRST AMENDMENT" means that certain First Amendment to this
Agreement dated as of January 11, 2006."
""FIRST AMENDMENT EFFECTIVE DATE" means the date the First
Amendment becomes effective in accordance with its terms."
""FIRST AMENDMENT REVOLVING LOAN COMMITMENTS" means the
additional Revolving Loan Commitments provided pursuant to the First
Amendment."
3. AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS AND LOANS.
(a) First paragraph of subsection 2.1A(ii) of the Credit
Agreement is hereby amended by deleting such subsection in its entirety
and substituting the following therefor:
(A) "REVOLVING LOANS. Each Revolving Lender severally
agrees, subject to the limitations set forth below with
respect to the maximum amount of Revolving Loans permitted to
be outstanding from time to time, to lend to Company from time
to time during the period from the Closing Date to but
excluding the Revolving Loan Commitment Termination Date an
aggregate amount not exceeding its Pro Rata Share of the
aggregate amount of the Revolving Loan Commitments to be used
for the purposes identified in subsection 2.5B. As of the
First Amendment Effective Date, the amount of each Revolving
Lender's Revolving Loan Commitment is set forth opposite its
name on SCHEDULE 2.1 annexed hereto and the aggregate
Revolving Loan Commitment Amount is $45,000,000 (consisting of
Revolving Loan Commitments in the aggregate amount of
$40,000,000 as of the Closing Date plus First Amendment
Revolving Loan Commitments in the aggregate amount of
$5,000,000); PROVIDED that the amount of the Revolving Loan
Commitment of each Revolving Lender shall be adjusted to give
effect to any assignment of such Revolving Loan Commitment
pursuant to subsection 10.1B and shall be reduced from time to
time by the amount of any reductions thereto made pursuant to
subsection 2.4 and increased from time to time by the amount
of any increases thereto made pursuant to subsection 2.1(iv).
Each Revolving Lender's Revolving Loan Commitment shall expire
on the Revolving Loan Commitment Termination Date and all
Revolving Loans and all other amounts owed hereunder with
respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than that date.
Amounts borrowed under this subsection 2.1A(ii) may be repaid
and reborrowed to but excluding the Revolving Loan Commitment
Termination Date."
4. AMENDMENT TO SCHEDULE 2.1. Schedule 2.1 of the Credit Agreement is
hereby amended by adding Xxxxxx and its $10,000,000 Revolving Loan Commitment
and reducing BNP Paribas' Revolving Loan Commitment by $5,000,000.
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5. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is
subject to the fulfillment of each of the following conditions precedent (the
date such conditions are fulfilled is hereafter referred to as the "FIRST
AMENDMENT EFFECTIVE DATE"):
(a) After giving effect to this Amendment, no Event of Default
or Potential Event of Default shall have occurred and be continuing on
the First Amendment Effective Date or result from this Amendment
becoming effective in accordance with its terms and Company shall have
delivered an Officer's Certificate to such effect.
(b) Administrative Agent shall have executed this Amendment
and received a counterpart of this Amendment that bears the signature
of Xxxxxx, the Company and each of the Guarantors.
(c) All corporate and other proceedings taken or to be taken
in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by
Administrative Agent, acting on behalf of Lenders, and its counsel
shall be satisfactory in form and substance to Administrative Agent and
such counsel, and Administrative Agent and such counsel shall have
received all such counterpart originals or certified copies of such
documents as Administrative Agent may reasonably request.
(d) Administrative Agent shall be satisfied that all
requirements of subsection 2.1A(iv) of the Credit Agreement shall have
been met.
(e) Delivery by Xxxxxx, Company, BNP Paribas and
Administrative Agent of the Assignment, together with such other
documentation and fees required by subsection 10.1 of the Credit
Agreement for the effectiveness of the Assignment pursuant to the
Credit Agreement.
6. EXPENSES. Without limiting any obligation of the Company to
reimburse the expenses pursuant to the terms of the Loan Documents, the Company
hereby agrees that on or before the First Amendment Effective Date, the Company
shall reimburse the Administrative Agent for any and all out of pocket expenses
(including reasonable attorneys' fees) incurred by the Administrative Agent in
connection with this Amendment and the matters related hereto.
7. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Lenders as follows:
(a) Immediately prior to, or after giving effect to this
Amendment, no Event of Default or Potential Event of Default has
occurred and is continuing or would result from this Amendment becoming
effective in accordance with its terms.
(b) The execution, delivery, and performance by each of the
Company and the Guarantors of this Amendment have been duly authorized
by all necessary action on the part of such Person.
(c) The execution, delivery and performance by Company and the
Guarantors of this Amendment and the consummation of the transactions
contemplated
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hereby do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of their
Subsidiaries, the Organizational Documents of Company or any of their
Subsidiaries or any order, judgment or decree of any court or other
Government Authority binding on Company or any of their Subsidiaries,
(ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual
Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the
properties or assets of Company or any of its Subsidiaries (other than
any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any
approval of stockholders or any approval or consent of any Person under
any Contractual Obligation of Company or any of its Subsidiaries,
except for such approvals or consents which will be obtained on or
before the First Amendment Effective Date and disclosed in writing to
Lenders and except, in each case, to the extent such violation,
conflict, Lien or failure to obtain such approval or consent would not
reasonably be expected to result in a Material Adverse Effect.
(d) This Amendment is the legally valid and binding
obligations of each of the Company and the Guarantors, enforceable
against such Person in accordance with its terms, except as enforcement
may be limited by equitable principles or by bankruptcy, insolvency,
reorganization, moratorium, or similar laws relating to or limiting
creditors' rights generally.
8. MISCELLANEOUS.
(a) Except as otherwise expressly provided herein, each of the
Company and the Guarantors hereby agree that (i) the Credit Agreement
and the other Loan Documents are, and shall continue to be, in full
force and effect and are hereby ratified and confirmed in all respects,
except that on and after the First Amendment Effective Date (A) all
references in the Credit Agreement to "this Agreement," "hereto,"
"hereof," "hereunder" or words of like import referring to the Credit
Agreement shall mean the Credit Agreement as amended by this Amendment
and (B) all references in the other Loan Documents to the "Credit
Agreement," "thereto," "thereof," "thereunder" or words of like import
referring to the Credit Agreement shall mean the Credit Agreement as
amended by this Amendment, (ii) to the extent that the Credit Agreement
or any other Loan Document purports to pledge to the Administrative
Agent, or to grant to the Administrative Agent a security interest in
or lien on, any collateral as security for the Obligations, such pledge
or grant of a security interest or lien is hereby ratified and
confirmed in all respects, and (iii) the execution, delivery and
effectiveness of this Amendment shall not operate as an amendment of
any right, power or remedy of the Administrative Agent or the Lenders
under the Credit Agreement or any other Loan Document, nor constitute
an amendment of any provision of the Credit Agreement or any other Loan
Document.
(b) Company hereby acknowledges and agrees that this Amendment
constitutes a "Loan Document" under the Credit Agreement. Accordingly,
it shall be an Event of Default under the Credit Agreement if any
representation or warranty made by
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the Company under or in connection with this Amendment shall have been
untrue, false or misleading in any material respect when made.
(c) This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts,
each of which shall be deemed to be an original, but all of which taken
together shall constitute one and the same agreement. 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.
(d) Section headings herein are included for convenience of
reference only and shall not constitute a part of this Amendment for
any other purpose.
9. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS. Each guarantor listed on
the signature pages hereof ("GUARANTORS") hereby acknowledges that it has read
this Amendment and consents to the terms thereof, and hereby confirms and agrees
that, after the effectiveness of this Amendment, the obligations of each
Guarantor under its applicable Guaranty shall not be impaired, excused or
diminished and the applicable Guaranty is, and shall continue to be, in full
force and effect and is hereby confirmed and ratified in all respects, and that
the Guaranteed Obligations shall include all Obligations under the Credit
Agreement as amended by this Amendment. Each Guarantor further agrees that
nothing in the Credit Agreement, this Agreement or any other Loan Document shall
be deemed to require the consent of such Guarantor to any future amendment to
the Credit Agreement.
10. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK).
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first above written.
COMPANY:
XXXXXXX HOLDINGS, INC.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
GUARANTORS:
GRP HOLDINGS, INC.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Treasurer
XXXXXXX SERVICES, INC.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXXX TECHNOLOGIES, INC.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
FIRST MADISON SERVICES, INC.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
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AG NI HOLDINGS, INC.
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
QUANTUM SERVICING CORPORATION
By: /s/ XXXXXX XXXXX
------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President and Secretary
TMHC HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXXXX FIXED INCOME SERVICES INC.
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXXXX IPS CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
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ADMINISTRATIVE AGENT:
BNP PARIBAS
By: /s/ XXX XXXXXXXXX
------------------------------
Name: Xxx Xxxxxxxxx
Title: Director
By: /s/ XXXXXXX XXXXX
------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
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LENDERS:
XXXXXX, X.X.
By: /s/ XXXXXX X. XXXX
------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
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