FOURTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of the
31st day of July, 2007 by and among the lenders listed on the signature pages hereof (the
“Lenders”), XXXXXX WORLDWIDE, INC., a Delaware corporation (“Borrower”), GUARANTY
BANK, as Administrative Agent, Swing Line Lender, Arranger and Letter of Credit Issuer for the
Lenders (the “Administrative Agent”), and Wachovia Bank, National Association, as
Documentation Agent (the “Documentation Agent”), each to the extent and in the manner
provided for in the Credit Agreement (defined below and herein so called).
BACKGROUND
A. The Lenders, the Borrower, the Documentation Agent and the Administrative Agent are parties
to that certain Credit Agreement dated as of May 26, 2006, (as it may have been or may be amended,
extended, renewed, or restated from time to time, the “Credit Agreement”). Capitalized
terms defined in the Credit Agreement and not otherwise defined herein shall be used herein as
defined in the Credit Agreement.
B. The Borrower has requested an amendment to the certain provisions of the Credit Agreement,
and the Administrative Agent and the Lenders have agreed to such amendment, subject to the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the parties hereto covenant and agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is hereby amended as
follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by deleting the
definition of “Broker Dealer Subsidiaries” in its entirety and replacing it with the
following:
“Broker Dealer Subsidiaries” means Xxxxxx Financial
Services, Inc., Xxxxxx Financial Service Canada, Inc., Xxxxxx
Financial Services Limited, Xxxxxx GHCO, Xxxxxx Financial Futures,
Inc., SAH, Inc. and each other broker dealer and/or futures
commission merchant direct or indirect Subsidiary of the Borrower
engaged in activities substantially similar to those of such Persons
(including subsets of such activities).
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting
sections (a) and (c) of the definition of “Change of Control” and replacing them with the
following:
FOURTH AMENDMENT TO CREDIT AGREEMENT — Page 1
“Change of Control” means an event or series of events by which:
(a) other than (i) the Current Management Group and (ii) J. Xxxxx
Xxxx, his immediate family, and their respective Affiliates, any
“person” or “group,” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall
be deemed to have “beneficial ownership” of all securities that such
person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such
right, an “option right”)), directly or indirectly, of 25% or more
of the equity securities of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of
the Borrower on a fully-diluted basis (and taking into account all
such securities that such person or group has the right to acquire
pursuant to any option right);
(c) other than those Persons excluded under paragraph (a) above, any
Person or two or more Persons acting in concert shall have acquired
by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or
their acquisition of the power to exercise, directly or indirectly,
control over the management or policies of the Borrower, or control
over the equity securities of the Borrower entitled to vote for
members of the board of directors or equivalent governing body of
the Borrower on a fully-diluted basis (and taking into account all
such securities that such Person or group has the right to acquire
pursuant to any option right) representing 25% or more of the
combined voting power of such securities.
(c)
Section 1.01 of the Credit Agreement is hereby amended by deleting
subsection (b) of the definition of “Permitted Acquisitions” in its entirety and replacing
it with the following:
(b) as soon as available, but not less than ten (10) Business Days
prior to any such acquisition, the Borrower has provided to the
Lenders (i) a copy of the information regarding such acquisition as
provided to the Borrower’s board of directors and (ii) a Compliance
Certificate (A) setting forth the covenant calculations both prior
to and after giving effect to the proposed acquisition, and (B)
certifying that no Default shall have occurred and be continuing
after giving effect to such acquisition;
FOURTH AMENDMENT TO CREDIT AGREEMENT — Page 2
(d) Section 1.01 of the Credit Agreement is hereby amended by deleting the last
paragraph in the definition of “Permitted Acquisitions” (added by the First Amendment) in
its entirety and replacing it with the following:
Notwithstanding anything contained herein to the contrary,
acquisitions during any fiscal year for which the Cash Purchase
Consideration does not exceed an aggregate amount of $10,000,000
shall be considered “Permitted Acquisitions” whether or not the
Borrower has provided the notices, certificates and certifications
required by subsection (b) of this definition, so long as all such
notices, certificates and certifications are provided to the Lenders
within 30 days following the effective date of each such
acquisition.
(e) Section 6.06 of the Credit Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
6.06 Maintenance of Properties. (a) Maintain, preserve and
protect all of its properties and equipment in the operation of its
business in good working order and condition, ordinary wear and tear
excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof, except in case of clauses (a) and (b) if
the failure to do so would not reasonably be expected to have a
Material Adverse Effect or would not violate Section 7.05
hereof.
2. CONSENT TO REPURCHASE OF EQUITY INTERESTS. Notwithstanding anything contained in
Section 7.02, 7.03 and 7.06 of the Agreement, on or after August 1, 2007 the
Borrower shall be permitted to repurchase its Equity Interests in an amount required to purchase
shares of its capital stock valued (at the time of such purchase) of up to an aggregate amount of
$25,000,000.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall not be effective until each of
the following conditions precedent shall have been met to the satisfaction of the Administrative
Agent:
(a) Since the date of the most recent financial statements provided to the Lenders,
there shall have been no event or circumstance, either individually or in the aggregate,
that has had or would reasonably be expected to have a Material Adverse Effect;
(b) No Default shall exist after giving effect to this Amendment;
(c) The Administrative Agent shall have received confirmation that the Borrower has
paid all expenses and fees arising in connection with all matters undertaken or performed at
the request of the Administrative Agent; and
FOURTH AMENDMENT TO CREDIT AGREEMENT — Page 3
(d) The Administrative Agent shall have received, in form and substance satisfactory to
the Administrative Agent, a duly executed copy of this Amendment and the other applicable
Loan Documents, together with such additional documents, instruments and certificates as the
Administrative Agent shall require in connection therewith, all in form and substance
satisfactory to the Administrative Agent.
4. REPRESENTATIONS AND WARRANTIES. The representations and warranties contained
herein and in all other Loan Documents, as amended hereby, shall be true and correct as of the date
hereof as if made on the date hereof.
5. REFERENCE TO CREDIT AGREEMENT. Upon the effectiveness of this Amendment, each
reference in the Credit Agreement to “this Agreement,” “hereunder,” or words of like import shall
mean and be a reference to the Credit Agreement, as affected and amended by this Amendment.
6. COUNTERPARTS; EXECUTION VIA FACSIMILE OR ELECTRONIC TRANSMITTAL. This Amendment
may be executed in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Amendment may be validly
executed and delivered by facsimile or other electronic transmission.
7. GOVERNING LAW: BINDING EFFECT. This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas and shall be binding upon the Borrower, the
Administrative Agent, the Documentation Agent, each Lender and their respective successors and
assigns.
8. HEADINGS. Section headings in this Amendment are included herein for convenience
of reference only and shall not constitute a part of this Amendment for any other purpose.
9. LOAN DOCUMENT. This Amendment is a Loan Document and is subject to all provisions
of the Credit Agreement applicable to Loan Documents, all of which are incorporated in this
Amendment by reference the same as if set forth in this Amendment verbatim.
10. SEVERABILITY. Any provisions of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provisions so held to be invalid or
unenforceable.
11. RATIFICATIONS. Except as expressly modified and superseded by this Amendment, the
terms and provisions of the Credit Agreement and the other Loan Documents are ratified and
confirmed and shall continue in full force and effect. The representations and warranties
contained herein and in all other Loan Documents, as amended hereby, shall be true and correct as
of, and as if made on, the date hereof. The Credit Agreement as amended hereby shall continue to
be legal, valid, binding and enforceable in accordance with its respective terms.
12. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE
FOURTH AMENDMENT TO CREDIT AGREEMENT — Page 4
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of page left intentionally blank. Signature pages follow.]
FOURTH AMENDMENT TO CREDIT AGREEMENT — Page 5
IN WITNESS WHEREOF, the Borrower, the Lenders, the Documentation Agent and the Administrative
Agent have executed this Amendment as of the date first above written.
| BORROWER: XXXXXX WORLDWIDE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxxx, Xx. | |||
| Name: | Xxxxx X. Xxxxxxxx, Xx. | |||
| Title: | Chairman | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT
| GUARANTY BANK, as Administrative Agent, a Lender, Letter of Credit Issuer and Swing Line Lender |
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| By: | /s/Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agent and a Lender |
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| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT
| BANK OF AMERICA, N.A. |
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| By: | /s/ Xxxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT
| REGIONS BANK |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT
| SOVEREIGN BANK | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT
