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Exhibit 10.38
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FIRST AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
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First Amendment dated as of November 15, 1999 to Revolving Credit Agreement
(the "First Amendment"), by and among FREEDOM SECURITIES CORPORATION, a Delaware
corporation (the "Borrower"), BANKBOSTON, N.A. and the other lending
institutions listed on SCHEDULE 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Existing Banks"), ▇▇▇▇▇ Fargo Bank, National
Association (the "New Bank" and, together with the Existing Banks, the "Banks")
and BankBoston, N.A. in its capacity as administrative and documentation agent
for the Banks (the "Agent"), amending certain provisions of the Revolving Credit
Agreement dated as of August 21, 1998 (as amended and in effect from time to
time, the "Credit Agreement") by and among the Borrower, the Existing Banks, the
Agent and The Bank of New York in its capacity as syndication agent. Terms not
otherwise defined herein which are defined in the Credit Agreement shall have
the same respective meanings herein as therein.
WHEREAS, the New Bank wishes to become a party to the Credit Agreement, and
certain of the Existing Banks wish to assign certain portions of their Revolving
Credit Loans, and Commitments under the Credit Agreement to the New Bank and
certain Existing Banks; and
WHEREAS, the Borrower has requested, and the Banks have agreed upon the
terms and conditions described herein, that the aggregate Commitments of the
Banks to extend credit under the Credit Agreement be increased to $100,000,000
WHEREAS, the Borrower and the Banks have agreed to modify certain other
terms and conditions of the Credit Agreement as specifically set forth in this
First Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Paragraph 1. AMENDMENT TO SECTION 1 OF THE CREDIT AGREEMENT. Section 1.1 of
the Credit Agreement is hereby amended as follows:
(a) the definition of "Applicable Margin" set forth in the Credit
Agreement is hereby amended by deleting the definition in its
entirety and restating it as follows:
APPLICABLE MARGIN. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a
"Rate Adjustment Period"), the Applicable Margin shall be the applicable
margin set forth below with respect to the Borrower's Leverage Ratio, as
determined for the period ending on the fiscal quarter ended immediately
preceding the applicable Rate Adjustment Period.
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APPLICABLE APPLICABLE APPLICABLE
MARGIN FOR MARGIN FOR MARGIN FOR
LEVERAGE BASE RATE EURODOLLAR FEDERAL FUNDS COMMITMENT
TIER RATIO LOANS RATE LOANS RATE LOANS FEE RATE
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Greater than
1 or equal to 0.00% 1.25% 1.25% 0.20%
0.25:1.00
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Less than
2 0.25:1.00 but 0.00% 1.125% 1.125% 0.20%
greater than
or equal to
0.15:1.00
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3 Less than 0.00% 1.00% 1.00% 0.20%
0.15:1.00
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Notwithstanding the foregoing, (a) for Revolving Credit Loans
outstanding and the Commitment Fee Rate during the period commencing on
November 15, 1999 through the date immediately preceding the first
Adjustment Date to occur after the fiscal quarter ending December 31, 1999,
the Applicable Margin shall be set at Tier 3, and (b) if the Borrower fails
to deliver any Compliance Certificate pursuant to Paragraph 7.4(c) hereof
then, for the period commencing on the next Adjustment Date to occur
subsequent to such failure through the date immediately following the date
on which such Compliance Certificate is delivered, the Applicable Margin
shall be the highest Applicable Margin set forth above.
(b) the definition of "Balance Sheet Date" is hereby amended by deleting
the date "December 31, 1997" which appears in such definition and substituting
in place thereof the date "December 31, 1998";
(c) the definition of "Revolving Credit Loan Maturity Date" is hereby
amended by deleting the date "August 21, 2001" which appears in such definition
and substituting in place thereof the date "November 15, 2003"; and
(d) Section 1.1 of the Credit Agreement is further amended by inserting
the following definition in the appropriate alphabetical order:
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate
amount of interest required to be paid or accrued by the Borrower and its
Subsidiaries during such period on all Funded Debt of the Borrower and its
Subsidiaries outstanding during all or any part of such period, whether
such interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of any
Capitalized Lease or any Synthetic Lease and including commitment fees,
agency fees, facility fees, balance deficiency fees and similar fees or
expenses in connection with the borrowing of money.
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Paragraph 2. AMENDMENT TO SECTION 4 OF THE CREDIT AGREEMENT. Section 4 of
the Credit Agreement is hereby amended as follows:
(a) Section 4.5 of the Credit Agreement is hereby amended by
deleting Paragraph 4.5 in its entirety and restating it as follows:
4.5. INABILITY TO DETERMINE EURODOLLAR RATE; DISCRETIONARY LENDING
FOR FEDERAL FUNDS RATE LOANS.
4.5.1. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to
the commencement of any Interest Period relating to any Eurodollar Rate
Loan, the Agent shall determine that adequate and reasonable methods do not
exist for ascertaining the Eurodollar Rate that would otherwise determine
the rate of interest to be applicable to any Eurodollar Rate Loan during
any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and
the Banks) to the Borrower and the Banks. In such event (a) any Loan
Request or Conversion Request with respect to Eurodollar Rate Loans shall
be automatically withdrawn and, unless a Federal Funds Rate Loan is elected
by the Borrower pursuant to Paragraph 2.6, shall be deemed a request for
Base Rate Loans, (b) each Eurodollar Rate Loan will automatically, on the
last day of the then current Interest Period relating thereto, become a
Base Rate Loan, and (c) the obligations of the Banks to make Eurodollar
Rate Loans shall be suspended until the Agent or the Majority Banks
determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Agent, or, as the case may be, the Agent upon the
instruction of the Majority Banks, shall so notify the Borrower and the
Banks.
4.5.2. DISCRETIONARY LENDING. Notwithstanding any other provision
herein, for the period from December 1, 1999 through and including January
15, 2000 (the "Funding Period"), the Banks shall have no obligation to make
or maintain any Federal Funds Rate Loans (including, without limitation, a
conversion of a Revolving Credit Loan of another Type into a Federal Funds
Rate Loan), and any and all such Federal Funds Rate Loans so made shall be
made at the sole and absolute discretion of the Banks. To the extent the
Borrower submits a Loan Request during the Funding Period for a Federal
Funds Rate Loan, unless all the Banks agree to make such Federal Funds Rate
Loan, no such Revolving Credit Loan shall be made, and such Loan Request
shall be automatically withdrawn and, unless a Eurodollar Rate Loan is
elected by the Borrower pursuant to Paragraph 2.6, shall be deemed a
request for Base Rate Loans.
(b) Section 4.7 of the Credit Agreement is hereby amended by inserting at
the end of the text of Paragraph 4.7 the sentence "Each Bank shall allocate such
additional amounts among its customers in good faith and on an equitable basis."
Paragraph 3. AMENDMENT TO SECTION 9 OF THE CREDIT AGREEMENT. Section 9 of
the Credit Agreement is hereby amended as follows:
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(a) Section 9.2 of the Credit Agreement is hereby amended by (i) deleting
the amount "$150,000,000" which appears in Paragraph 9.2(a) and substituting in
place thereof the amount "$220,000,000"; and (ii) deleting the date "September
30, 1998" which appears in Paragraph 9.2(a) and substituting in place thereof
the date "September 30, 1999"; and
(b) Section 9 of the Credit Agreement is further amended by inserting
immediately after the end of the text of Paragraph 9.2 the following:
9.3. INTEREST COVERAGE RATIO. The Borrower will not, during any
fiscal quarter, permit the ratio of (a) EBITDA for the period of four (4)
consecutive fiscal quarters of the Borrower ending on the relevant date to
(b) Consolidated Total Interest Expense for such period to be less than
4.00:1.00; PROVIDED, HOWEVER, the parties hereto hereby agree that the
Borrower shall only be required to demonstrate compliance with this
Paragraph 9.3 at such times as any Revolving Credit Loan is outstanding and
on the date on which any Revolving Credit Loan is requested and the
Drawdown Date thereof.
Paragraph 4. AMENDMENT TO SCHEDULE 1 OF THE CREDIT AGREEMENT. SCHEDULE 1 of
the Credit Agreement is hereby amended by deleting such schedule in its entirety
and substituting in place thereof the SCHEDULE 1 attached hereto.
Paragraph 5. ASSIGNMENT AND ACCEPTANCE.
(a) For the purposes of the assignment contemplated herein, the provisions
of Paragraph 19.1 of the Credit Agreement are hereby waived and the parties
hereto hereby consent and agree to such assignment.
(b) Credit Lyonnais (the "Assignor") hereby sells and assigns to each of
BankBoston, N.A., The Bank of New York and ▇▇▇▇▇ Fargo Bank, National
Association (collectively, the "Assignees"), and each Assignee hereby purchases
and assumes from the Assignor, a certain percentage of the Assignor's rights and
obligations under the Credit Agreement as of the effective date hereof,
including, without limitation, such percentage interest in the Assignor's
Commitment as in effect on the effective date, and the outstanding amount of the
Revolving Credit Loans owing to the Assignor on the effective date and the
Revolving Credit Note held by the Assignor (such interest being hereinafter
referred to as the "Assigned Portion") such that, after giving effect to the
assignments contemplated hereby, the Commitment and Commitment Percentage of the
Assignor shall be zero, and the respective Commitments and Commitment
Percentages of each Assignee (after giving effect to the increase in the Total
Commitment contemplated by this First Amendment) shall be as set forth on
SCHEDULE 1 attached hereto, and each Assignee shall have that percentage
interest in all Revolving Credit Loans. Notwithstanding any term or provision of
Paragraph 19 of the Credit Agreement to the contrary, the execution and delivery
hereof by the Assignor, each Assignee, the Agent and the Borrower shall
constitute an Assignment and Acceptance delivered in accordance with the Credit
Agreement and shall be effective in respect of the assignment contemplated
hereby.
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(c) the Assignor (i) represents and warrants that as of the date hereof,
its Commitment and Commitment Percentage is sufficient to give effect to this
Assignment and Acceptance; (ii) makes no representation or warranty, express or
implied, and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or any of the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement, any
of the other Loan Documents or any other instrument or document furnished
pursuant thereto or the attachment, perfection or priority of any security
interest or mortgage, other than that it is the legal and beneficial owner of
the interest being assigned by it hereunder free and clear of any claim or
encumbrance; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Subsidiaries or any other Person primarily or secondarily liable in respect
of any of the Obligations, or the performance or observance by the Borrower or
any of its Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of its obligations under the Credit
Agreement or any of the other Loan Documents or any other instrument or document
delivered or executed pursuant thereto; and (iv) requests that in connection
with such assignment as set forth herein the Borrower exchange the Revolving
Credit Note of the Assignor for new Revolving Credit Notes, each dated as of the
effective date hereof payable to the order of each Assignee in the principal
amount of the Commitment set forth opposite each Assignee's name on SCHEDULE 1
to the Credit Agreement as amended hereby and each such new note shall be deemed
to be a "Note" under the Credit Agreement.
(d) each Assignee (i) represents and warrants (as to itself only and not as
to any other Assignee) that it has received a copy of the Credit Agreement and
the other Loan Documents, together with copies of the financial statements
referred to in Paragraph 7.4 of the Credit Agreement and such other documents
and information as it deems appropriate to make its own credit analysis and
decision to enter into this agreement, that it is an Eligible Assignee under the
Credit Agreement and that all acts, conditions and things required to be done
and performed have occurred prior to the execution, delivery and performance of
this assignment, and to render the same the legal, valid and binding obligation
of each such Assignee, enforceable against it in accordance with its terms, have
been done and performed and have occurred in due and strict compliance with all
applicable laws; (ii) agrees that it will, independently and without reliance
upon the Assignor, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement; and
(iii) appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement and the other Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, and agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement and the other Loan Documents are required to be performed by it
as a Bank.
(e) Upon the effectiveness of the assignment contemplated hereby, the
Assignor shall return to the Borrower its Note, marked "Cancelled".
(f) Upon the effectiveness of the assignment, the Existing Banks and the
New Bank shall take all necessary actions with respect to outstanding Revolving
Credit Loans to make allocations among such Banks so that each Bank's interest
in the outstanding Revolving Credit
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Loans equals its Commitment Percentage after giving effect to the transactions
contemplated hereby.
Paragraph 6. ADDITION OF NEW BANK.
(a) Each of the Agent and the Borrower consent to the addition of the New
Bank as a Bank hereunder such that, after giving effect thereto and as of the
effective date hereof, the New Bank shall be a party to the Credit Agreement and
shall have the rights and obligations of a Bank thereunder.
(b) The New Bank (a) represents and warrants that (i) it is duly and
legally authorized to enter into this Amendment, (ii) the execution, delivery
and performance of this Amendment do not conflict with any provision of law or
of the charter or by-laws of the New Bank, or of any agreement binding on the
New Bank, (iii) all acts, conditions and things required to be done and
performed and to have occurred prior to the execution, delivery and performance
of this First Amendment, and to render the same the legal, valid and binding
obligation of the New Bank, enforceable against it in accordance with its terms,
have been done and performed and have occurred in due and strict compliance with
all applicable laws; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Paragraph 7.4 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (c) agrees that it will, independently
and without reliance upon the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (d) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Loan Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; and (e) agrees that it will
perform in accordance with their terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank.
Paragraph 7. CONDITIONS TO EFFECTIVENESS. This First Amendment shall not
become effective until the Agent receives the following:
(a) a counterpart of this First Amendment, executed by the Borrower, the
Guarantors, the Banks and the Agent;
(b) new Notes payable to each Assignee and the New Bank in the amount set
forth opposite such Bank's name on SCHEDULE 1 hereto;
(c) evidence that all necessary corporate action has been taken on the
part of the Borrower to authorize the transactions contemplated hereby;
(d) compliance with all the terms and provisions of the letter agreement
between the Agent and the Borrower.
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Paragraph 8. REPRESENTATIONS AND WARRANTIES. The Borrower hereby repeats,
on and as of the date hereof, each of the representations and warranties made by
it in Paragraph 6 of the Credit Agreement, and such representations and
warranties remain true as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to an earlier
date), PROVIDED, that all references therein to the Credit Agreement shall refer
to such Credit Agreement as amended hereby. In addition, the Borrower hereby
represents and warrants that the execution and delivery by the Borrower of this
First Amendment and the performance by the Borrower of all of its agreements and
obligations under the Credit Agreement as amended hereby are within the
corporate authority of each the Borrower and has been duly authorized by all
necessary corporate action on the part of the Borrower.
Paragraph 9. RATIFICATION, ETC. Except as expressly amended hereby, the
Credit Agreement and all documents, instruments and agreements related thereto,
including, but not limited to the Guaranty, are hereby ratified and confirmed in
all respects and shall continue in full force and effect. The Credit Agreement
and this First Amendment shall be read and construed as a single agreement. All
references in the Credit Agreement or any related agreement or instrument to the
Credit Agreement shall hereafter refer to the Credit Agreement as amended
hereby.
Paragraph 10. NO WAIVER. Nothing contained herein shall constitute a waiver
of, impair or otherwise affect any Obligations, any other obligation of the
Borrower or any rights of the Agent or the Banks consequent thereon.
Paragraph 11. COUNTERPARTS. This First Amendment may be executed in one or
more counterparts, each of which shall be deemed an original but which together
shall constitute one and the same instrument.
Paragraph 12. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
