THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into as of the
5th day of April, 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 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
dddregarding permitted Investments, 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 adding the
definition of “******* Acquisition” to read as follows:
“******* Acquisition” means the acquisition of up to a $******* non-controlling
interest in *********, which acquisition shall include an initial investment of up to
$******* with the ability to invest up to an additional $******* on or before March 31,
2008.
(b) Section 7.02(f) and (g) of the Credit Agreement are hereby deleted in their
entirety and are replaced with the following:
(f) Investments existing on the date hereof and as set forth on
Schedule 7.02;
(g) Investments constituting acquisitions of the Equity Interests of
a Person or acquisitions of property which do not constitute a
controlling interest in such existing business, to the extent that
THIRD AMENDMENT TO CREDIT AGREEMENT - Page 1
such Investments do not exceed $5,000,000 for any single acquisition
or $20,000,000 in the aggregate during any fiscal year (not
including, for purposes of calculations under this Section 7.02(g),
the ******* Acquisition);
(h) the ******* Acquisition; and
(i) Investments otherwise permitted in this Agreement.
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
(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
THIRD AMENDMENT TO CREDIT AGREEMENT - Page 2
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 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.]
THIRD AMENDMENT TO CREDIT AGREEMENT - Page 3
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. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx, Xx. | |||
| Name: | Xxxxx X. Xxxxxxxx, Xx. | |||
| Title: | Chairman | |||
SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT
| GUARANTY BANK, as Administrative Agent, a Lender, Letter of Credit Issuer and Swing Line Lender |
||||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Vice President | |||
SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agent and a Lender |
||||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: | Senior Vice President | |||
SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT
| BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Assistant Vice President | |||
| REGIONS BANK |
||||
| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Senior Vice President | |||
| SOVEREIGN BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
