SECOND AMENDMENT TO CREDIT AGREEMENT
EXHIBIT 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of the
16th day of February, 2007, to be effective as of May 26, 2006, 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 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
regarding permitted Indebtedness, and the Administrative Agent and the Lenders have agreed to such
amendment in order to provide clarification, 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 and each
other broker dealer and/or futures commission merchant 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 the
definition of “Short Term Subsidiary Indebtedness” in its entirety and replacing it with the
following:
“Short Term Subsidiary Indebtedness” means, with respect to the Broker
Dealer Subsidiaries, that certain Indebtedness incurred (a) for the purpose of purchasing
Equity
SECOND AMENDMENT TO CREDIT AGREEMENT - Page 1
Interests and other working capital purposes and (b) for the purpose of purchasing
commodities contracts, futures contracts, or Swap Contracts or options related thereto in an
aggregate amount not to exceed $10,000,000, each in the ordinary course of business
consistent with such Broker Deal Subsidiary’s historical practice.
(c) Section 7.03 of the Credit Agreement is hereby amended by (i) deleting the
word “and” at the end of Section 7.03(d); (ii) deleting the period at the end of
Section 7.03(e) and replacing it with a semi-colon; and (iii) adding new
Sections 7.03(f) and (g) at the end thereof reading in their entirety as
follows:
(f) Indebtedness of types incurred by the Borrower or any of the
Subsidiaries consistent with the historical practices and the ordinary
course of business of any of the Subsidiaries or of the Borrower (determined
as of the date of the Second Amendment hereto), including (i) Guarantees
related to a Subsidiary’s ordinary trade activities, including but not
limited to those made in favor of exchanges, market centers, third party
clearing firms, record keeping centers or technology providers and (ii)
Guarantees made in favor of lenders to a Subsidiary’s customers required in
connection with such customers’ purchase of exchange seats or memberships,
provided that the relevant exchange seat or membership’s
value is, at the time the Guarantee is made, at least twice the principal
amount of the Indebtedness so Guaranteed; and
(g) Guarantees by the Borrower not otherwise permitted by this
Section 7.03 of obligations in an aggregate amount not to exceed
$35,000,000 at any one time; provided that no single Guarantee shall exceed
a notional or principal amount of $10,000,000 and further provided that all
Guarantees existing or contemplated as of the date of the Second Amendment
hereto are listed on the attached Schedule 7.03(g).
(d) The Schedules to the Credit Agreement are hereby amended by adding a new
Schedule 5.13 and a new Schedule 7.03(g) in the forms attached hereto as
Annex I and Annex II, respectively.
2. 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
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(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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE
SECOND AMENDMENT TO CREDIT AGREEMENT - Page 3
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.]
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IN WITNESS WHEREOF, the Borrowers, 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 SECOND 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 SECOND AMENDMENT TO CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agent and a Lender |
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| By: | /s/ XXXXXX XXXXXXXXXX | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO SECOND AMENDMENT TO CREDIT AGREEMENT
| BANK OF AMERICA, N.A. |
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| By: | /s/ XXXXXXXX XXXXXXX | |||
| Name: | Xxxxxxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| REGIONS BANK |
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| By: | /s/ XXXXX XXXXXX | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| SOVEREIGN BANK |
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| By: | /s/ XXXXX X. XXXXX | |||
| Name: | Xxxxx X. Xxxxx | |||
| Title: | Executive Vice President | |||
