EXHIBIT 10.28
FIRST AMENDMENT TO
FINANCING AND SHARE PURCHASE AGREEMENT
This FIRST AMENDMENT TO FINANCING AND SHARE PURCHASE AGREEMENT dated
as of December 17, 2001 (this "Amendment") is entered into between XXXXX, INC.
(the "Company") and BANK OF AMERICA, N.A. ("Bank of America").
RECITALS
A. The Company and Bank of America are parties
to that certain Financing and Share Purchase Agreement dated as of
August 16, 1999 (the "Agreement").
B. The parties wish to amend the Agreement as
hereinafter set forth in order to permit a reorganization of certain
Subsidiaries of the Company.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Certain Defined Terms. Capitalized terms which are
used herein without definition and that are defined in the Agreement
shall have the same meanings herein as in the Agreement.
2. Amendments to Agreement. The Agreement is hereby
amended as follows:
2.1 Section 6.2(b) of the Agreement is amended by
deleting such section in its entirety and replacing it with the
following:
"any Lien created under the Amended and Restated Credit
Agreement, dated as of May 26, 2000, among Xxxxx, Inc., and
the other parties named therein, as amended, restated or
otherwise modified from time to time (the "Credit
Agreement"), provided that such Lien also secures equally and
ratably the obligations of the Purchaser under this
Agreement;"
2.2 Section 6.4 of the Agreement is amended so that the
proviso following clause (c) thereof reads in its entirety as follows:
"provided that, notwithstanding the foregoing, so long as the
HSW Mortgage Loan exists, the Company shall not permit HSW
Mortgage Corp. or any direct or indirect parent thereof,
other than the Company (each a "Restricted Subsidiary") to
merge, consolidate with or into, or convey, transfer, lease
or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its
assets (whether now
owned or hereafter acquired) to or in favor of any other
Person, except that (w) any Restricted Subsidiary may merge
or consolidate with or into the Company, provided that the
Company shall be the continuing or surviving corporation, (x)
any Restricted Subsidiary may convey, transfer, lease or
otherwise dispose of all or substantially all of its assets
(upon voluntary liquidation or otherwise), to the Company,
(y) any Restricted Subsidiary may merge or consolidate with
or into any Wholly-Owned Subsidiary of the Company (whereupon
such Restricted Subsidiary shall cease to be a Restricted
Subsidiary and such Wholly-Owned Subsidiary shall become a
Restricted Subsidiary), and (z) any Restricted Subsidiary may
convey, transfer, lease or otherwise dispose of all or
substantially all of its assets (upon voluntary liquidation
or otherwise), to any Wholly-Owned Subsidiary of the Company
(whereupon such Restricted Subsidiary shall cease to be a
Restricted Subsidiary and such Wholly-Owned Subsidiary shall
become a Restricted Subsidiary)."
2.3 Section 6.14 of the Agreement is amended so that the
first sentence thereof reads in its entirety as follows:
"So long as the HSW Mortgage Loan exists, the Company shall
not, and shall not permit any Subsidiary to, sell or
otherwise dispose of any of its interest in any Restricted
Subsidiary, except as permitted by Section 6.4."
3. Representations and Warranties. The Company hereby represents
and warrants to Bank of America as follows:
(i) Representations and Warranties. The representations
and warranties contained in Article IV of the Agreement are true and
correct in all material respects as of the date hereof (except to the
extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such
earlier date).
(ii) Enforceability. The execution and delivery by the
Company of this Amendment, and the performance by the Company of this
Amendment and the Agreement, as amended hereby, are within the
corporate powers of the Company and have been duly authorized by all
necessary corporate action on the part of the Company. This Amendment
and the Agreement, as amended hereby, are valid and legally binding
obligations of the Company, enforceable in accordance with their
terms.
(iii) No Default. No Event of Default or Unmatured Event
of Default has occurred and is continuing.
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4. Effect of Amendment. Except as expressly amended and modified
by this Amendment, all provisions of the Agreement shall remain in full force
and effect; and the Company confirms and reaffirms its obligations under the
Agreement as amended by this Amendment. After this Amendment becomes effective,
all references in the Agreement (or in any other Transaction Agreements) to
"this Agreement", "hereof", "herein" or words of similar effect referring to
the Agreement shall be deemed to be references to the Agreement as amended by
this Amendment. This Amendment shall not be deemed to expressly or impliedly
waive, amend or supplement any provision of the Agreement other than as set
forth herein.
5. Effectiveness. This Amendment shall become effective upon the
receipt by Bank of America on or before December 17, 2001 of counterparts of
this Amendment (whether by facsimile or otherwise) executed by the Company.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, and each
counterpart shall be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. A facsimile of the
signature of any party on any counterpart shall be effective as the signature
of the party executing such counterpart for purposes of the effectiveness of
this Amendment.
7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York without regard
to the conflicts or choice of law principles thereof, but giving effect to the
provisions of New York General Obligations Law ss.5-1401.
8. Section Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or
interpretation of this Amendment or the Agreement or any provision hereof or
thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
XXXXX, INC.
By: /s/ B. Xxxxx Xxxxxxx
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Title: Vice President & Chief
Financial Officer
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BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Managing Director
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