Exhibit 10.22
[EXECUTION COPY]
AMENDMENT AGREEMENT TO CREDIT AGREEMENT
Amendment Agreement to Credit Agreement, dated as of March 17, 2000 (this
"Amendment Agreement"), among XXXXX XXXXX, a New York general partnership (the
"Borrower"), XXXXX XXXXX INC., a Delaware corporation ("Holdings"), DRI I INC.,
a Delaware corporation ("DRI I" and, together with Holdings, collectively, the
"Parent Guarantors"), XXXXX XXXXX INTERNATIONAL, INC., a Delaware corporation
("Xxxxx Xxxxx IP") XXXXX XXXXX REALTY, INC., a Delaware corporation ("Xxxxx
Xxxxx Realty" and together with Xxxxx Xxxxx IP, collectively, the "Affiliate
Guarantors" and, together with the Parent Guarantors, collectively, the
"Designated Guarantors"), the various financial institutions as are or may
become parties hereto (collectively, the "Lenders"), DLJ CAPITAL FUNDING, INC.
("DLJ"), as syndication agent (in such capacity, the "Syndication Agent") for
the Lenders, FLEET NATIONAL BANK ("Fleet"), as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders and CREDIT LYONNAIS NEW
YORK BRANCH ("Credit Lyonnais"), as the documentation agent (in such capacity,
the "Documentation Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, pursuant to the Second Amended and Restated Credit Agreement,
dated as of March 17, 1999 (together with all Loan Documents (as defined
therein), in each case as amended prior to the date hereof, the "Existing Credit
Agreement"), among the Borrower, the Designated Guarantors, the various
financial institutions party thereto (collectively, the "Existing Lenders"), the
Syndication Agent, the Administrative Agent and the Documentation Agent, the
Existing Lenders made and were committed to make Credit Extensions to the
Borrower on the terms and conditions set forth therein;
WHEREAS, the Borrower and Designated Guarantors have requested, and the
Lenders have agreed, subject to the terms and conditions hereinafter set forth,
to amend and restate the Existing Credit Agreement (together with all schedules
and exhibits thereto) in its entirety in the form of the Third Amended and
Restated Credit Agreement (as defined below);
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings (such
meanings to be equally applicable to the singular and plural form thereof):
"Affiliate Guarantors" is defined in the preamble.
"Amendment Agreement" is defined in the preamble.
"Amendment Effective Date" is defined in Section 3.1.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Designated Guarantors" is defined in preamble.
"DRI I" is defined in the preamble.
"Xxxxx Xxxxx IP" is defined in preamble.
"Xxxxx Xxxxx Realty" is defined in preamble.
"Existing Credit Agreement" is defined in the first recital.
"Holdings" is defined in the preamble.
"Parent Guarantors" is defined in the preamble.
"Third Amended and Restated Credit Agreement" is defined in Section 2.1.
SECTION 1.2. Other Definitions. Terms for which meanings are provided in
the Third Amended and Restated Credit Agreement are, unless otherwise defined
herein or the context otherwise requires, used in this Amendment Agreement with
such meanings.
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ARTICLE II
AMENDMENT AND RESTATEMENT
OF EXISTING CREDIT AGREEMENT
SECTION 2.1. Amendment and Restatement of Existing Credit Agreement. On
the Amendment Effective Date, the Existing Credit Agreement (including all
schedules and exhibits thereto) shall be and is hereby amended and restated to
read in its entirety as set forth in Annex I hereto (as set forth in such Annex
I, the "Third Amended and Restated Credit Agreement"), and as so amended and
restated is hereby ratified, approved and confirmed in each and every respect.
The rights and obligations of the parties to the Existing Credit Agreement with
respect to the period prior to the Amendment Effective Date shall not be
affected by such amendment and restatement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Amendment Effective Date; Conditions Precedent to Borrowing
of Additional Term C Loans. This Amendment Agreement (and the amendments and
modifications contained herein) shall become effective on the date (the
"Amendment Effective Date") when each of the conditions set forth in this
Article III shall have been fulfilled to the reasonable satisfaction of the
Agents. The obligation of each Lender having an Additional Term C Loan
Commitment to make the initial Additional Term C Loan shall be subject to the
prior or concurrent satisfaction of each of the conditions precedent set forth
in this Article in addition to those set forth in Section 5.1 of the Third
Amended and Restated Credit Agreement.
SECTION 3.1.1. Execution of Counterparts. The Agents shall have received
executed counterparts of this Amendment Agreement, duly executed and delivered
on behalf of each of the Borrower, the Designated Guarantors, the Agents and the
Required Lenders (which shall include (a) those Lenders having greater than 50%
of the Revolving Loan Commitments prior to the Amendment Effective Date, (b)
those Lenders holding greater than 50% of the aggregate amount of the Loans
outstanding under the Term C Loans and (c) each Lender that has an Additional
Term C Loan Commitment, if any).
SECTION 3.1.2. Resolutions, etc. The Agents shall have received, with a
copy for each Lender, from each Obligor a certificate, dated the Amendment
Effective Date, of its Secretary, Assistant Secretary or general partners, as
applicable, as to (i) resolutions of its Board of Directors or all partnership
action, as applicable, then in full force and effect authorizing the execution,
delivery and performance of this Amendment Agreement, (ii) the incumbency and
signatures of those of its officers or general partners, as applicable,
authorized to act with respect to this Amendment Agreement and
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each such other Loan Document executed by it and (iii) the full force and
validity of its Organic Documents and true and complete copies of all amendments
thereto since December 16, 1999, upon which certificate each Agent, the
Documentation Agent, the Issuer and each Lender may conclusively rely until it
shall have received a further certificate of the Secretary, Assistant Secretary
or general partners, as applicable, of such Obligor canceling or amending such
prior certificate.
SECTION 3.1.3. Opinion of Counsel. The Agents shall have received an
opinion, dated the Amendment Effective Date and addressed to the Agents, the
Documentation Agent and all of the Lenders from Xxxxxx & Xxxxxxx, special New
York counsel to each of the Obligors, in form and substance reasonably
satisfactory to the Agents and its counsel.
SECTION 3.1.4. Amendment Fee. The Agents shall have received, (a) for the
account of each Lender that delivers an executed signature page to the Amendment
Agreement to the Syndication Agent prior to 5:00 p.m., New York City time, March
14, 2000, an amendment fee in an amount equal to .125% of the sum of (i) the
outstanding principal amount of Term Loans owing to such Lender on such date
plus (ii) the product of such Lender's Percentage of the Commitment to make
Revolving Loans multiplied by the Revolving Loan Commitment Amount on such date
and (b) all fees, costs and expenses due and payable pursuant to Sections 3.3
and 11.3 of the Credit Agreement to the extent then invoiced.
SECTION 3.1.5. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Agents and their counsel. The Agents and their counsel shall have
received all information, approvals, opinions, documents or instruments as the
Agents or their counsel may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. In order to induce the
Lenders to execute and deliver this Amendment Agreement, each of the Borrower
and each Designated Guarantor hereby represents and warrants as set forth below:
(a) After giving effect to this Amendment Agreement, the amendment
of the Existing Credit Agreement does not impair the validity,
effectiveness or priority of the Liens granted pursuant to the Pledge
Agreement and the Security Agreement (as such terms are defined in the
Existing Credit Agreement, collectively, the "Security Documents"), and
such Liens continue unimpaired with the same priority to secure repayment
of all Obligations, whether heretofore or hereafter incurred. Neither the
amendment of the Existing Credit Agreement effected pursuant to this
Amendment Agreement nor the execution, delivery, performance or
effectiveness of this
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Amendment Agreement requires that any new filings be made or other action
taken to perfect or to maintain the perfection of such Liens. The position
of the Lenders with respect to such Liens, the Collateral (as defined in
the Security Documents) in which a security interest was granted pursuant
to the Security Documents, and the ability of the Administrative Agent to
realize upon such Liens pursuant to the terms of the Security Documents
have not been adversely affected in any material respect by the amendment
of the Existing Credit Agreement effected pursuant to this Amendment
Agreement or by the execution, delivery, performance or effectiveness of
this Amendment Agreement.
(b) Each Obligor reaffirms as of the Amendment Effective Date such
Person's respective covenants and agreements contained in the Credit
Agreement, each Security Agreement and each Pledge Agreement to which such
Person is a party, including, in each case, as such covenants and
agreements may be modified by the Amendment Agreement. Each such Obligor
further confirms that each such Loan Document to which such Person is a
party is and shall continue to be in full force and effect and the same
are hereby ratified, approved and confirmed in all respects, except that
upon the occurrence of the Amendment Effective Date, all references in
such Loan Documents to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", "therein" or words of like or similar import
shall mean and be a reference to the Credit Agreement and the Loan
Documents (as such term is defined in the Credit Agreement).
(c) Both before and immediately after giving effect to this
Amendment Agreement,
(i) the representations and warranties set forth in Article VI
of the Credit Agreement (excluding, however, those contained in
Section 6.7 of the Credit Agreement) and each other Loan Document
are, in each case, true and correct (unless stated to relate solely
to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date);
(ii) except as disclosed by the Borrower or any Parent
Guarantor to the Agents, the Documentation Agent and the Lenders
pursuant to Section 6.7 of the Credit Agreement
(A) no labor controversy, litigation, arbitration or
governmental investigation or proceeding (including any
relating to any Pharmaceutical Law) is pending or, to the
knowledge of the Borrower or any Parent Guarantor, threatened
against the Borrower, any Parent Guarantor or any of their
respective Subsidiaries which could reasonably be expected to
have a Material Adverse Effect or which purports to affect the
legality, validity or enforceability of this Second Amendment,
the Credit Agreement, the Notes or any other Loan Document;
and
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(B) no development has occurred in any labor
controversy, litigation, arbitration or governmental
investigation or proceeding (including any relating to any
Pharmaceutical Law) disclosed pursuant to Section 6.7 of the
Credit Agreement which could reasonably be expected to have a
Material Adverse Effect; and
(iii) no Default has (or will have) occurred and is (or will
be) continuing, and neither the Borrower, any Parent Guarantor nor
any of their respective Subsidiaries are in material violation of
any law or governmental regulation or court order or decree
(including any Pharmaceutical Law).
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Cross-References. References in this Amendment Agreement to
any Article or Section are, unless otherwise specified or otherwise required by
the context, to such Article or Section of this Amendment Agreement.
SECTION 5.2. Loan Document Pursuant to Credit Agreement. This Amendment
Agreement is a Loan Document executed pursuant to the Third Amended and Restated
Credit Agreement and shall be construed, administered and applied in accordance
with all of the terms and provisions of the Third Amended and Restated Credit
Agreement.
SECTION 5.3. Successors and Assigns. This Amendment Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 5.4. Counterparts. This Amendment Agreement may be executed by the
parties hereto in several counterparts, each of which when executed and
delivered shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION 5.5. Governing Law. THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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Signature Page to Xxxxx Xxxxx Amendment Agreement
IN WITNESS WHEREOF, the signatories hereto have caused this Amendment
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
BORROWER:
XXXXX XXXXX
By Xxxxx Xxxxx Inc., a general partner
By____________________________________
Title:
By DRI I Inc., a general partner
By____________________________________
Title:
PARENT GUARANTORS:
XXXXX XXXXX INC.
By____________________________________
Title:
DRI I INC.
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
AFFILIATE GUARANTORS:
XXXXX XXXXX INTERNATIONAL, INC.
By____________________________________
Title:
XXXXX XXXXX REALTY, INC.
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
DLJ CAPITAL FUNDING, INC., as the
Syndication Agent and as a Lender
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
FLEET NATIONAL BANK, as the Administrative
Agent and as a Lender
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
CREDIT LYONNAIS NEW YORK BRANCH, as
the Documentation Agent and as a Lender
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
LENDERS:
SUMMIT BANK
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
BHF (USA) CAPITAL CORPORATION
By____________________________________
Title:
By____________________________________
Title:
BALANCED HIGH-YIELD FUND II LTD.,
By: BHF (USA) CAPITAL CORPORATION,
acting as attorney-in-fact
By____________________________________
Title:
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
XXXXXX FINANCIAL, INC.
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
ORIX USA CORPORATION
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
OSPREY INVESTMENTS PORTFOLIO
By Citibank, N.A., as Manager
By____________________________________
Title:
STRATEGIC MANAGED LOAN PORTFOLIO
By Citibank, N.A., as Manager
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
XXX XXXXXX CLO I, LIMITED
By Xxx Xxxxxx Management, Inc., as
Collateral Manager
By____________________________________
Title:
XXX XXXXXX SENIOR FLOATING RATE FUND By Xxx
Xxxxxx Investment Advisory Corp.
By____________________________________
Title:
XXX XXXXXX PRIME RATE INCOME TRUST By Xxx
Xxxxxx Investment Advisory Corp.
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
Xxxxxxx Xxxxx Global Investment Series:
INCOME STRATEGIES PORTFOLIO
By Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By____________________________________
Title:
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO
By Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By____________________________________
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By Xxxxxxx Xxxxx Asset Management, L.P., as
Investment Advisor
By____________________________________
Title:
DEBT STRATEGIES FUND, INC.
By____________________________________
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By____________________________________
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND II, INC.
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Signature Page to Xxxxx Xxxxx Amendment Agreement
By____________________________________
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By____________________________________
Title:
XXXXX XXXXX INSTITUTIONAL SENIOR
LOAN FUND
By: Xxxxx Xxxxx Management, as Investment
Advisor
By____________________________________
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: Xxxxx Xxxxx Management, as Investment
Advisor
By____________________________________
Title:
OXFORD STRATEGIC INCOME FUND
By: Xxxxx Xxxxx Management, as Investment
Advisor
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
KZH PAMCO LLC
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
CAPTIVA III FINANCE LTD., as advised by
Pacific Investment Management Company
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
THE CHASE MANHATTAN BANK
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
ATHENA CDO, Limited
By: Pacific Investment Management Company,
as its Investment Advisor
By: PIMCO Management Inc., a general partner
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
THE FUJI BANK, LTD.
By____________________________________
Title:
MOUNTAIN CAPITAL CLO I, LTD.
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
CLYDESDALE CBO I, LTD.
By Nomura Corporate Research and Asset
Management Inc. as Investment Advisor
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
XXXXX XXX FLOATING RATE LIMITED LIABILITY
COMPANY
By Xxxxx Xxx & Farnham Incorporated as
advisor
By____________________________________
Title:
LIBERTY XXXXX XXX ADVISOR FLOATING
RATE ADVANTAGE FUND
By Xxxxx Xxx & Farnham Incorporated as
advisor
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
FLOATING RATE PORTFOLIO
By Invesco Senior Secured Management, Inc.,
as attorney in fact
By____________________________________
Title:
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Signature Page to Xxxxx Xxxxx Amendment Agreement
ELT LTD.
By____________________________________
Title:
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