EXHIBIT 10.42
FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of February 7, 2002, is by and among PRG-Xxxxxxx USA, Inc. (formerly The Profit
Recovery Group USA, Inc.), a Georgia corporation (the "Borrower"), PRG-Xxxxxxx
International, Inc. (formerly The Profit Recovery Group International, Inc.), a
Georgia corporation (the "Parent"), each of the Domestic Subsidiaries of the
Parent (together with the Parent, the "Guarantors"), the Lenders party thereto
and Bank of America, N.A., as Administrative Agent. All capitalized terms used
herein and not otherwise defined shall have the meanings provided in the Credit
Agreement (as defined below).
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Lenders and the
Administrative Agent entered into that certain Credit Agreement dated as of
December 31, 2001 (as amended or modified from time to time, the "Credit
Agreement");
WHEREAS, the Lenders have requested and the Borrower has agreed to
amend certain terms of the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the agreements contained herein
and other good and valuable consideration, the parties hereby agree as follows:
1. Amendment. The definition of "Required Lenders" set forth in
Section 1.1 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
"Required Lenders" means:
(i) until such time as there are four or more
Lenders hereunder, Lenders holding in the aggregate more than
eighty percent (80%) of (A) the Revolving Commitments (and
Participation Interests therein) or (B) if the Commitments
have been terminated, the outstanding Loans and Participation
Interests (including the Participation Interests of the
Issuing Lender in any Letters of Credit); and
(ii) at such time as there are four or more
Lenders hereunder and thereafter, Lenders holding in the
aggregate at least sixty-six and two-thirds percent (66-2/3%)
of (A) the Revolving Commitments (and Participation Interests
therein) or (B) if the Commitments have been terminated, the
outstanding Loans and Participation Interests (including the
Participation Interests of the Issuing Lender in any Letters
of Credit);
provided in each case that the Revolving Commitment,
outstanding Loans and Participation Interests of any Lender
not then in compliance with its obligations hereunder (as
determined by the Administrative Agent) shall be excluded
from the determination of Required Lenders.
2. Conditions Precedent. This Amendment shall become effective
immediately upon the receipt by the Administrative Agent of counterparts of
this Amendment, duly executed by the Borrower, the Guarantors, the
Administrative Agent and the Lenders.
3. Miscellaneous.
(a) The term "Credit Agreement" as used in each of the
Credit Documents shall hereafter mean the Credit Agreement as amended
by this Amendment. Except as herein specifically agreed, the Credit
Agreement, and the obligations of the Credit Parties thereunder and
under the other Credit Documents, are hereby ratified and confirmed
and shall remain in full force and effect according to their terms.
(b) The Credit Parties acknowledge and confirm (i) that
the Administrative Agent, on behalf of the Lenders, has a valid and
enforceable first priority security interest in the Collateral, (ii)
that the Borrower's obligation to repay the outstanding principal
amount of the Loans and reimburse the Issuing Lender for any drawing
on a Letter of Credit is unconditional and not subject to any offsets,
defenses or counterclaims, (iii) that the Administrative Agent and the
Lenders have performed fully all of their respective obligations under
the Credit Agreement and the other Credit Documents, and (iv) by
entering into this Amendment, the Lenders do not waive or release any
term or condition of the Credit Agreement or any of the other Credit
Documents or any of their rights or remedies under such Credit
Documents or applicable law or any of the obligations of any Credit
Party thereunder.
(c) The Credit Parties represent and warrant to the
Lenders that (i) the representations and warranties of the Credit
Parties set forth in Section 6 of the Credit Agreement are true and
correct as of the date hereof and (ii) no event has occurred and is
continuing which constitutes a Default or an Event of Default.
(d) This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of this
Amendment to produce or account for more than one such counterpart.
(e) This Amendment shall be governed by and construed in
accordance with, the laws of the State of Georgia.
(f) This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
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(g) The Borrower and the Guarantors, as applicable,
affirm the liens and security interests created and granted in the
Collateral Documents and agree that this Amendment shall in no manner
adversely affect or impair such liens and security interests.
(h) Each Credit Party hereby represents and warrants as
follows:
(i) Each Credit Party has taken all necessary
action to authorize the execution, delivery and performance
of this Amendment.
(ii) This Amendment has been duly executed and
delivered by the Credit Parties and constitutes each of the
Credit Parties' legal, valid and binding obligations,
enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting creditors' rights generally and
(ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
(iii) No consent, approval, authorization or
order of, or filing, registration or qualification with, any
court or governmental authority or third party is required in
connection with the execution, delivery or performance by any
Credit Party of this Amendment.
(i) The Guarantors (i) acknowledge and consent to all of
the terms and conditions of this Amendment, (ii) affirm all of their
obligations under the Credit Documents and (iii) agree that this
Amendment and all documents executed in connection herewith do not
operate to reduce or discharge the Guarantors' obligations under the
Credit Agreement or the other Credit Documents.
(j) This Amendment together with the other Credit
Documents represent the entire agreement of the parties and supersedes
all prior agreements and understandings, oral or written if any,
relating to the Credit Documents or the transactions contemplated
herein and therein.
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Each of the parties hereto has caused a counterpart of this Amendment
to be duly executed and delivered as of the date first above written.
BORROWER: PRG-XXXXXXX USA, INC. (formerly The Profit Recovery
Group USA, Inc.), a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President - Finance,
Chief Financial Officer and Treasurer
GUARANTORS: PRG-XXXXXXX INTERNATIONAL, INC. (formerly The Profit
Recovery Group International, Inc.), a Georgia
corporation
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President - Finance,
Chief Financial Officer and Treasurer
PRGFS, INC.,
PRGLS, INC.,
PRGRS, INC.,
each a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President - Finance
PRG HOLDING CO. (FRANCE) NO. 1 LLC,
PRG HOLDING CO. (FRANCE) NO. 2 LLC,
each a Delaware limited liability company
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President - Finance,
Chief Financial Officer and Treasurer
GUARANTORS: THE PROFIT RECOVERY GROUP U.K., INC.,
THE PROFIT RECOVERY GROUP ASIA, INC.,
THE PROFIT RECOVERY GROUP CANADA, INC.,
THE PROFIT RECOVERY GROUP NEW ZEALAND, INC.,
THE PROFIT RECOVERY GROUP NETHERLANDS, INC.,
THE PROFIT RECOVERY GROUP BELGIUM, INC.,
THE PROFIT RECOVERY GROUP MEXICO, INC.,
THE PROFIT RECOVERY GROUP FRANCE, INC.,
THE PROFIT RECOVERY GROUP AUSTRALIA, INC.,
THE PROFIT RECOVERY GROUP GERMANY, INC.,
PRG INTERNATIONAL, INC.,
THE PROFIT RECOVERY GROUP SWITZERLAND, INC.,
THE PROFIT RECOVERY GROUP SOUTH AFRICA, INC.,
THE PROFIT RECOVERY GROUP SPAIN, INC.,
THE PROFIT RECOVERY GROUP ITALY, INC.,
THE PROFIT RECOVERY GROUP GREECE, INC.,
THE PROFIT RECOVERY GROUP PORTUGAL, INC.,
PAYMENT TECHNOLOGIES, INC.,
THE PROFIT RECOVERY GROUP COSTA RICA, INC.,
PRG, INC.,
PRG USA, INC.,
each a Georgia corporation
By: /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: Executive Vice President - Finance,
Chief Financial Officer and Treasurer
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
