Exhibit 10.1
FOURTH AMENDMENT TO CREDIT
AGREEMENT AND FIRST AMENDMENT TO PLEDGE AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT
AGREEMENT AND FIRST AMENDMENT TO PLEDGE AGREEMENT dated as of
February 2, 2009 (this “ Amendment ”)
by and among CRAWFORD & COMPANY, a Georgia corporation
(“ Crawford ”), and CRAWFORD & COMPANY
INTERNATIONAL, INC., a Georgia corporation (“
International ”; International and Crawford are
collectively referred to herein as the “ Borrowers
”, and each individually as a “ Borrower
”), each of the Subsidiary Loan Parties party to the Pledge
Agreement (defined below) (collectively referred to herein as the
“ Subsidiary Loan Parties ”, each individually a
“ Subsidiary Loan Party ” and together with the
Borrowers, the “ Pledgors ” and each
individually a “ Pledgor ”), the Lenders party
hereto (the “ Consenting Lenders ”) and SUNTRUST
BANK, as administrative agent for the Lenders (in such capacity,
together with its successors in such capacity, the “
Administrative Agent ”).
WHEREAS, the Borrowers, the Lenders
and the Administrative Agent are parties to that certain Credit
Agreement dated as of October 31, 2006 (as amended from time
to time and in effect on the date hereof, the “ Credit
Agreement ”);
WHEREAS, in connection with the
Credit Agreement, the Pledgors executed and delivered that certain
Pledge Agreement dated as of October 31, 2006 (as in effect on
the date hereof, the “ Pledge Agreement ”) to
the Administrative Agent for the benefit of the Secured Creditors
(as defined in the Pledge Agreement);
WHEREAS, the Borrowers desire to
effect a global restructuring with respect to their corporate
structure and organization;
WHEREAS, the Borrowers also desire
to have the ability to repurchase and retire (on a non-pro rata
basis) from time to time up to $25,000,000 in aggregate principal
amount of their outstanding Term Loans; and
WHEREAS, the Borrowers, the
Pledgors, the Consenting Lenders and the Administrative Agent
desire to amend certain provisions of the Credit Agreement and the
Pledge Agreement on the terms and conditions contained herein in
order to effect the foregoing.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, the parties hereto
hereby agree as follows:
Section 1. Amendments to
Credit Agreement . Subject to satisfaction of the conditions
set forth in Section 3 below, the parties hereto agree that
the Credit Agreement is amended as follows:
(a) The Credit Agreement is hereby
amended by adding the following new defined terms to
Section 1.1 thereof in appropriate alphabetic
order:
“‘ Foreign Loan
Parties ’ shall collectively mean New Cayman Entity
and New UK Holdco, and ‘Foreign Loan Party’ shall mean
each of them individually.” For the avoidance of doubt,
Foreign Loan Parties are not Loan Parties or Subsidiary Loan
Parties, but are Foreign Subsidiaries, in each case as such terms
are defined and used herein.”
“‘ Foreign Loan
Party Guaranty Agreement ’ shall mean that certain
Foreign Loan Party Guaranty Agreement dated as of
February 2, 2009 executed by the Foreign Loan Parties in
favor of the Administrative Agent for the benefit of the
Lenders.”
“‘ Legal Charge
Over Shares ’ shall mean, together: (a) that
certain Legal charge over shares dated as of
February 2, 2009 by International in favor of the
Administrative Agent for the benefit of the Lenders and
(b) that certain Legal charge over shares dated as of
February 2, 2009 by New UK Holdco in favor of the
Administrative Agent for the benefit of the
Lenders.”
“‘
Liquidity ’ shall mean, on any date of
determination, the sum of (a) the aggregate amount of
Revolving Loans that would be available to be funded to the
Borrowers pursuant to Section 2.2 on the date of
determination plus (b) all money, currency or credit
balances owned by the Loan Parties in any demand or deposit account
on the date of determination; provided , however ,
that amounts calculated under this clause (b) shall exclude
any amounts that would not be considered “cash” under
GAAP or “cash” as recorded on the books of the Loan
Parties plus (c) all Permitted Investments of the Loan
Parties on the date of determination; provided , that
amounts under the foregoing clauses (b) and (c) shall
(i) be included only to the extent such amounts are not
subject to any Lien or other restriction or encumbrance of any kind
(other than (x) Liens in favor of the Administrative Agent and
the Lenders under the Security Documents and (y) Liens arising
solely by virtue of any statutory or common law provision relating
to banker’s liens, rights of set-off or similar rights;
provided , that this clause (y) shall apply only for so
long as such liens and rights are not being enforced or otherwise
exercised) and (ii) exclude any amounts held by a Loan Party
in escrow, trust or other fiduciary capacity for or on behalf of a
client of a Loan Party or any Affiliate of a Loan
Party.”
“‘ New Cayman
Entity ’ shall mean Crawford & Company
Financial Services, Ltd., an exempted company incorporated with
limited liability under the laws of the Cayman
Islands.”
“‘ New UK
Holdco ’ shall mean Crawford & Company
EMEA/A-P Holdings Limited, a company organized under the laws of
England and Wales.”
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“‘ New UK Holdco
Security Agreement ’ shall mean that certain
debenture dated as of February 2, 2009 by New UK Holdco in
favor of the Administrative Agent for the benefit of the
Lenders.”
“‘ New UK Holdco
Note ’ shall mean the bonds or notes, or both, issued
from time to time pursuant to that certain bond instrument dated
February 2, 2009 executed by New UK Holdco constituting
up to $250,000,000 of unsecured 7% per cent bonds due 2014 and
all other payment-in-kind notes, if any, issued by New UK Holdco
from time to time in connection with the capitalization of interest
under such bonds or notes, in each case, as amended, restated,
supplemented, or modified from time to time in accordance with the
terms hereof.”
“‘ Transferred
Foreign Subsidiaries ’ shall mean Crawford &
Company Adjusters Limited, Crawford & Company
(Netherlands) B.V., Crawford & Company (Australia) Pty
Limited, Crawford & Company (Norway) AS, Crawford
Australasian Holdings Pty Limited, Crawford France EURL,
Crawford & Company Risk Services (Ireland) Ltd., Claim
Consulting sp. z.o.o., Crawford & Company New Zealand
Limited, Crawford & Company (Sweden) AB,
Crawford & Company Belgium NV, Crawford (Danmark) A/S,
Crawford & Company Italia SRL, Crawford Graham Miller
(Hellas) Ltd., and other Foreign Subsidiaries as Borrowers or any
other Loan Party may from time to time transfer to New UK
Holdco.”
“‘ Voting Equity
Interests ’ means, with respect to any Person, the
Equity Interests entitled to vote for members of the board of
directors or equivalent governing body of such person.
(b) Section 1.1 of the Credit
Agreement is hereby amended by deleting the defined terms
“Applicable Pledge Amount”, “Base Rate”,
“Excess Cash Flow”, “Investment”,
“Loan Documents” and “Security Documents”
and substituting in lieu thereof the following:
“‘ Applicable
Pledge Amount ’ shall mean, in respect of the amount
of Equity Interest of any Foreign Subsidiary pledged or to be
pledged to the Administrative Agent, for the benefit of the
Lenders, pursuant to a Pledge Agreement, (a) the lesser of
(i) sixty-five percent (65%) of all outstanding Voting
Equity Interests of such Foreign Subsidiary and (ii) the total
amount of all outstanding Voting Equity Interests of such Foreign
Subsidiary owned by the Borrowers and their other Subsidiaries and
(b) 100% of all non-voting Equity Interests of such Foreign
Subsidiary.”
“‘ Base
Rate ’ shall mean the highest of (i) the per
annum rate which the Administrative Agent publicly announces from
time to time to be its prime lending rate, as in effect from time
to time, (ii) the Federal Funds Rate, as in effect from time
to time, plus one-half of one percent (0.50%) and (iii) the
sum of (x)
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LIBOR for an Interest Period of one
month, which shall be determined on each Business Day, plus
(y) one percent (1.00%). The Administrative Agent’s
prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate charged to customers. The
Administrative Agent may make commercial loans or other loans at
rates of interest at, above or below the Administrative
Agent’s prime lending rate. Each change in the Base Rate
hereunder shall be effective on the effective date of any change in
the Administrative Agent’s prime lending
rate.”
“‘ Excess Cash
Flow ’ shall mean, for any fiscal year of
Crawford, based on the audited financial statements for such fiscal
year required to be provided under Section 5.1(a) , the
remainder, if any, without duplication, of (a) the sum of:
(i) Consolidated EBITDA for such fiscal year plus
(ii) the net decrease in Working Capital of Crawford and its
Subsidiaries during such fiscal year minus (b) the sum
of the following (without duplication): (i) Unfinanced Capital
Expenditures made by Crawford and its Subsidiaries during such
fiscal year; (ii) cash payments of federal, state, local and
foreign income tax, franchise taxes, state single business unitary
and similar taxes imposed in lieu of income tax made by Crawford
and its Subsidiaries during such fiscal year; (iii) the
aggregate Consolidated Interest Expense paid in cash by Crawford
and its Subsidiaries during such fiscal year; (iv) scheduled
repayments of principal in respect of Indebtedness (for purposes of
this definition, ‘principal’ shall include the
principal component of payments for such period in respect of
Capitalized Lease Obligations) paid during such fiscal year;
(v) voluntary prepayments applied to the Term Loan during such
fiscal year and any repurchases and cancellation of Term Loans by
the Borrowers in accordance with Section 2.13(c)
(determined by reference to the face amount of the Term Loans
repurchased and cancelled); (vi) an amount equal to the
aggregate gain on Asset Sales during such period to the extent
(x) included in arriving at such Consolidated EBITDA and
(y) the Net Cash Sale Proceeds of such Asset Sales are applied
to the prepayment of Loans in accordance with
Section 2.13(b)(v) during such period; provided
, that , the immediately preceding clause (y) shall not
apply to sale proceeds received by Crawford in respect of the sale
of Crawford’s corporate headquarters located at 5620
Glenridge Drive, Atlanta, Georgia; and (vii) the net increase
in Working Capital of Crawford and its Subsidiaries during such
fiscal year.”
“‘
Investment ’ shall mean all expenditures made
and all liabilities incurred (contingently or otherwise) for an
Acquisition or for the acquisition of any Equity Interest or
Indebtedness of, or for loans, advances, capital contributions or
transfers of property or assets to, or in respect of any Guarantees
(or other commitments as described under the definition of
Indebtedness), or obligations of, any Person. In determining the
aggregate amount of Investments outstanding at any particular time:
(a) the amount of any Investment represented by a Guarantee
shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding or, if not so stated
or determinable, the maximum reasonably
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anticipated liability in respect
thereof (assuming such Person is required to perform thereunder) as
determined by such Person in good faith; (b) there shall be
included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such
interest is paid; (c) there shall be deducted in respect of
each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); and
(d) there shall not be deducted in respect of any Investment
any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest
included as provided in the foregoing clause (b) may be
deducted when paid. The amount of any Investment shall be the
original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in
value, forgiveness or conversion to equity of Indebtedness, or
write-ups, write-downs or write-offs with respect to such
Investment. For the avoidance of doubt, “Investment”
does not include the provision of services by Crawford or any
Subsidiary to any Subsidiary, or the forgiveness or capitalization
of any amounts accrued by any such Subsidiary in connection with
the provision of such services.”
“‘ Loan
Documents ’ shall mean, collectively, this Agreement,
the Notes, the LC Documents, all Notices of Borrowing, the
Subsidiary Guarantee Agreement, the Foreign Loan Party Guaranty
Agreement, the other Security Documents, Hedging Agreements entered
into by the Borrowers or any Subsidiary Loan Party with a Person
that was a Lender or an Affiliate of a Lender at the time it
entered into such Hedging Agreement, and any and all other
instruments, agreements, documents and writings executed in
connection with any of the foregoing.”
“‘ Security
Documents ’ shall mean the Security Agreement, the
Pledge Agreement, the New UK Holdco Security Agreement, the Legal
Charge Over Shares, each Control Agreement, any Mortgage, each
Leasehold Mortgage, the certificates evidencing the Equity
Interests as delivered pursuant to the Pledge Agreement and the
Legal Charge Over Shares and related powers delivered in connection
therewith and each other agreement, document, instrument or writing
executed and delivered by the Loan Parties and New UK Holdco, as
applicable, securing the Obligations, and in any event shall
include any UCC-1 financing statement or any other similar document
filed to perfect the Liens under any of the
foregoing.”
(c) Section 2.13 of the Credit
Agreement is hereby further amended by adding the following new
clause (c) in appropriate alphabetical order:
“(c) Notwithstanding anything
to the contrary contained in this Agreement, so long as (x) no
Default or Event of Default has occurred and is continuing or would
result therefrom, (y) the Leverage Ratio at the time of
the
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making of any proposed repurchase of
Term Loans under this Section 2.13 and for which an
officer’s certificate has been delivered pursuant to
Section 5.1(c) is not more than 2.50:1.00 on a pro
forma basis after giving effect to the making of such
repurchase and cancellation of Term Loans so repurchased; and
(z) the Borrowers shall have not less than $75,000,000 of
Liquidity on a pro forma basis immediately after giving
effect to the making of a repurchase of Term Loans pursuant to this
Section 2.13 (and in the case of the foregoing clauses
(x)-(z), certifications thereof shall be made to the Administrative
Agent and the Lenders in form and substance reasonably satisfactory
to the Administrative Agent, signed by a Responsible Officer and
delivered to the Administrative Agent at least three
(3) Business Days prior to the making of each such
repurchase), the Borrowers may repurchase outstanding Term Loans on
the following basis:
(i) At any time prior to
December 31, 2010, the Borrowers may repurchase all or any
portion of the Term Loans of one or more Lenders pursuant to an
Assignment and Acceptance between the Borrowers and such Lender or
Lenders, at a price to be agreed between the Borrowers and such
Lender or Lenders; provided, however , that (A) not
more than $25,000,000 in aggregate face amount of the outstanding
Term Loans may be repurchased in accordance with the terms of this
Section 2.13(c) and (B) the principal amount of
Term Loans offered to be repurchased by the Borrowers pursuant to
this Section 2.13(c) for any given offer shall not be
less than $2,500,000 (or such lesser amount as may be agreed upon
between the Borrowers and the Administrative Agent); and
provided further, however , that, with respect to such
repurchases, the Borrowers shall provide an executed copy of such
Assignment and Acceptance between the Borrowers and such Lender or
Lenders with respect to such repurchase to the Administrative Agent
promptly upon the execution thereof;
(ii) Promptly after the Borrowers
have repurchased any Term Loans pursuant to this
Section 2.13(c) , the Borrowers shall notify the
Administrative Agent and the Lenders of the aggregate principal
amount of Term Loans so repurchased. In addition to the foregoing
and not limiting any other provision of this
Section 2.13(c) , any such Term Loan repurchases by the
Borrowers shall be subject to such other procedures as may be
mutually agreed upon by the Administrative Agent and the Borrowers;
provided, however , that (x) any offer by the Borrowers
to repurchase any Term Loans pursuant to this
Section 2.13(c) shall be made to all Lenders holding
Term Loans (as of a record date to be set by the Administrative
Agent) on the same terms and conditions for each such offer and
(y) each Lender accepting such an offer shall be entitled to
sell and receive payment for repurchase of such Lender’s Term
Loan ratably based upon the aggregate principal amount of Term
Loans owing to all Lenders who have accepted such offer for
repurchase;
(iii) With respect to all
repurchases made by the Borrowers pursuant to this
Section 2.13(c) , (A) the Borrowers shall pay all
accrued and
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unpaid interest, if any, on the
repurchased Term Loans to the date of repurchase of such Term Loans
(to the extent agreed between the Borrowers and the applicable
assignor of the repurchased Term Loans), (B) such repurchases
and cancellations shall not be deemed to be voluntary or optional
prepayments pursuant to Section 2.13(a) or
Section 2.23 and shall not be subject to the provisions
of Section 2.23 , and (C) no such repurchases and
cancellations shall change the scheduled amortization required by
Section 2.10(d) , except to reduce the amount
outstanding and due and payable on the Term Loan Maturity Date (and
such reduction, for the avoidance of doubt, shall only apply, on a
non-pro rata basis, to the Term Loans repurchased by the Borrowers
and canceled pursuant to Section 2.13(c)(iv)) ;
and
(iv) Immediately following any
repurchase by the Borrowers pursuant to this
Section 2.13(c) , any Term Loans so repurchased shall
be immediately cancelled and retired by the Borrowers and shall no
longer be outstanding (and shall not be resold or further assigned
by the Borrowers), and all such Term Loans repurchased shall be
deemed to be canceled, retired and no longer outstanding for all
purposes of this Agreement and the other Loan Documents
(notwithstanding any provisions herein or therein to the contrary)
including, but not limited to (A) the making of, or the
application of, any payments to the Lenders under this Agreement or
any other Loan Document, (B) the making of any request,
demand, authorization, direction, notice, consent or waiver under
this Agreement or any other Loan Document, (C) the providing
of any rights to the Borrowers as a Lender under this Agreement or
any other Loan Document or (D) the determination of Required
Lenders, or for any similar or related purpose, under this
Agreement or any other Loan Document. Further, the Borrowers shall
have no right to claim or receive the benefit of any amounts paid
or payable to a Lender under the Credit Agreement or the other Loan
Documents by virtue of the Borrowers repurchase of one or more Term
Loans under this Section 2.13(c) or
otherwise.”
(d) Section 2.23 is hereby
amended by deleting the first sentence of Section 2.23(b) in
its entirety and substituting in lieu thereof the
following:
“(b) If at any time
insufficient funds are received by and available to the
Administrative Agent to pay fully all Obligations then due
hereunder, the Administrative Agent shall distribute such amounts
in the following order of priority (it being understood and agreed
that, for the avoidance of doubt, any Term Loan repurchases by the
Borrowers pursuant to Section 2.13(c) hereof shall not
be distributed pro-rata among all Lenders):”
(e) Section 2.23 is hereby
further amended by adding the following immediately following the
end of Section 2.23(c):
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“It is understood and agreed
that, for the avoidance of doubt, this Section 2.23(c)
shall not apply with respect to any Term Loan repurchases by the
Borrowers pursuant to Section 2.13(c)
hereof.”
(f) Section 4.2 of the Credit
Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“ 4.2 Organizational Power;
Authorization. The execution, delivery and performance by each
Loan Party and each Foreign Loan Party of the Loan Documents and
the Transaction Documents to which it is a party are within such
Loan Party’s and Foreign Loan Party’s organizational
powers and have been duly authorized by all necessary
organizational, and if required, stockholder, member or partner,
action. This Agreement has been duly executed and delivered by each
of the Borrowers, and constitutes, and each other Loan Document and
Transaction Document to which any Loan Party or Foreign Loan Party
is a party, when executed and delivered by such Loan Party or
Foreign Loan Party, as the case may be, will constitute, valid and
binding obligations of each Borrower, such Loan Party and such
Foreign Loan Party (as the case may be), enforceable against it in
accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium, or similar laws affecting the enforcement
of creditors’ rights generally, general principles of equity,
and, in the case of Foreign Loan Parties, the time barring of
claims under applicable statutes of limitation, the possibility
that a covenant or undertaking to assume liability for or to
indemnify a person against non-payment of UK stamp duty may be
void, or defenses of set-off or counterclaim.”
(g) Section 4.3 of the Credit
Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“ Section 4.3 Governmental
and Third Party Approvals; No Conflicts. The execution,
delivery and performance by the Borrowers of this Agreement, by
each Loan Party and each Foreign Loan Party of the other Loan
Documents to which it is a party and by Crawford of the Transaction
Documents to which it is a party, (a) do not require any
consent or approval of, registration or filing with, or any action
by, any Governmental Authority or any other Person which, in the
case of the Transaction Documents only, would be required to be
obtained or made by Crawford, except those as have been obtained or
made and are in full force and effect, (b) will not violate
any applicable law, rule or regulation or any order or judgment of
any Governmental Authority currently in force, (c) will not
violate the articles or certificate of incorporation, operating
agreement, partnership agreement, by-laws or other organizational
documents of either Borrower or any Subsidiary, (d) will not
violate or result in a default under any indenture, material
agreement or other material instrument binding on either Borrower
or any Subsidiary or any of its assets or give rise to a right
thereunder to require any payment to be made by either Borrower or
any Subsidiary and (e) will
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not result in the creation or
imposition of any Lien on any asset of either Borrower or any
Subsidiary, except Liens created under the Loan
Documents.”
(h) Section 4.19 of the Credit
Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“ Section 4.19 Security
Interests . The Security Documents are effective to create a
valid, binding and enforceable security interest in the Collateral.
As and to the extent required in the Loan Documents, all filings,
assignments, pledges and deposits of documents or instruments have
been made and all other actions have been taken that are necessary,
under applicable law, to establish and perfect the Administrative
Agent’s first priority Lien in the Collateral, other than
actions, if any, under the local law of any Pledged Foreign
Subsidiary (other than the laws of England and Wales) required to
perfect the pledge by any Loan Party or Foreign Loan Party of the
Equity Interests of such Pledged Foreign Subsidiary, anything to
the contrary set forth in any Loan Document notwithstanding. The
Collateral and the Administrative Agent’s rights with respect
to the Collateral are not subject to any setoff, claims,
withholdings or other defenses. Each Loan Party is the owner (or
lessee or licensee in the case of leased or licensed Collateral) of
the Collateral free from any Lien, except for Liens expressly
permitted by Section 7.2 .”
(i) Section 5.15(a) of the
Credit Agreement is hereby amended by deleting the words
“pre-tax” immediately preceding the word
“revenue” in the twenty first line of such
Section.
(j) Section 5.15(d) of the
Credit Agreement is hereby amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(d) If, at any time after the
Closing Date, any Pledged Foreign Subsidiary whose stock
certificate (to the extent such Pledged Foreign Subsidiary has
certificated securities) has not been previously delivered to the
Administrative Agent becomes a Material Foreign Subsidiary (as
defined below), the Borrowers shall cause original certificates
evidencing the Applicable Pledge Amount of Equity Interests of such
Pledged Foreign Subsidiary to be delivered to the Administrative
Agent within 90 days (or such later period as the Administrative
Agent determines is advisable in its reasonable discretion) after
the Borrowers determine such Pledged Foreign Subsidiary has become
a Material Foreign Subsidiary, together with undated stock powers
executed in blank or similar stock transfer documents reasonably
requested by the Administrative Agent. For purposes of this
Agreement (other than Section 5.15(a) ) and the other
Loan Documents, the term “ Material Foreign
Subsidiary ” means any Pledged Foreign Subsidiary
that, as of the last day of any fiscal quarter of Crawford, either:
(i) owns assets having a book value equal to or greater than
two percent (2%) of the book value of the consolidated assets
of International and its Subsidiaries on the date of determination
or (ii) generates revenues equal to or greater than
two
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percent (2%) of the aggregate
revenues of International and its Subsidiaries for the period of
four fiscal quarters of Crawford ending on the date of
determination for which financial statements have been delivered
pursuant to Section 5.1 .”
(k) Section 5.15 of the Credit
Agreement is hereby amended by adding the following new clause
(e) thereto:
“(e) The Borrowers shall
notify the Administrative Agent in advance of any proposed transfer
of a Transferred Foreign Subsidiary by International to New UK
Holdco, which notice shall contain an updated Schedule 1 to the
Pledge Agreement and an updated Schedule 1 to the Legal Charge
Over Shares, as applicable, and a certification by a Responsible
Officer of each of the Borrowers and the New UK Holdco, as
applicable, to the effect that such Schedules will be true,
correct, and complete upon the transfer of such Transferred Foreign
Subsidiary. If under applicable law the transfer of such
Transferred Foreign Subsidiary requires such transfer to be made
free and clear of any Lien in favor of Administrative Agent on the
Equity Interests of such Transferred Foreign Subsidiary, the
Administrative Agent shall, upon request of the Borrowers, promptly
execute and deliver a release of its security interest and Liens on
the Equity Interests of such Transferred Foreign Subsidiary;
provided , however , upon the transfer of such
Transferred Foreign Subsidiary to New UK Holdco, the Borrowers
shall take all actions reasonably necessary, if any, at the sole
cost and expense of the Borrowers to cause the Equity Interests of
such Transferred Foreign Subsidiary to be pledged or charged
pursuant to the terms of the applicable Legal Charge Over
Shares.”
(l) Section 7.1 of the Credit
Agreement is hereby amended by re-lettering clause (k) as
clause (l) and adding the following new clause (k) in
appropriate alphabetical order:
“(k) Indebtedness owing by New
UK Holdco pursuant to the New UK Holdco Note; and”
(m) Section 7.2 of the Credit
Agreement is hereby amended by deleting clause (c) and
substituting in lieu thereof the following:
(c) Liens on assets of Foreign
Subsidiaries (other than New Cayman Entity or any successor
thereto) securing Indebtedness permitted by
Section 7.1(h) ;”
(n) Section 7.4 of the Credit
Agreement is hereby amended by re-lettering clause (k) as
clause (q) and adding the following new clauses (k), (l), (m),
(n), (o) and (p) in appropriate alphabetical
order:
“(k) the issuance to
International by New UK Holdco of the New UK Holdco Note and Equity
Interests in New UK Holdco; provided , that the sole
consideration paid by International for the New UK Holdco Note and
such Equity
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Interests shall be the transfer by
International to New UK Holdco of Equity Interests in the
Transferred Foreign Subsidiaries;
(l) the transfer or contribution by
International of the New UK Holdco Note to New Cayman
Entity;
(m)(i) contributions by
International to the capital of New UK Holdco (including, without
limitation, cash contributions) or (ii) intercompany loans by
International to New UK Holdco, in each case of clauses
(i) and (ii), solely to permit, and in the minimum amount
necessary to allow, New UK Holdco to make required interest
payments in respect of the New UK Holdco Note to New Cayman Entity
on the due date thereof; provided , that 100% of the cash
amount of such contributions or 100% of the loan proceeds of such
intercompany loan shall be promptly paid (or, in the case of an
asset contribution, the same such asset shall be promptly returned)
by New Cayman Entity (but in any event not later than 5 Business
Days after receipt by New Cayman Entity) to International in the
form of a dividend, distribution or return of capital to
International;
(n) transfers permitted to be made
pursuant to Section 7.6(c) and
Section 7.6(d) ;
(o) forgiveness or conversion to
equity of intercompany Indebtedness among Foreign
Subsidiaries;
(p) other Investments (including,
without limitation, forgiveness or conversion to equity of
intercompany Indebtedness) by the Borrowers in Foreign Subsidiaries
not to exceed $2,500,000 during any period of 12 consecutive
months; and”
(o) Section 7.6 of the Credit
Agreement is hereby amended by re-lettering clause (c) as
clause (g) and adding the following new clauses (c), (d),
(e) and (f) in appropriate alphabetical order:
“(c) the sale, disposition or
transfer, from time to time in one or more steps, by International
of the Equity Interests of the Transferred Foreign Subsidiaries
owned by International to New UK Holdco;
(d) the sale, disposition or
transfer of assets by any Subsidiary to any Loan Party;
(e) the sale, disposition or
transfer of assets by any Foreign Subsidiary to any other Foreign
Subsidiary; provided , however , that, except for
sales, dispositions or transfers of Equity Interests in Foreign
Subsidiaries by New UK Holdco to a Loan Party and except for
transactions expressly permitted to be made in accordance with
Section 7.4(m) and Section 7.6(g) , New UK
Holdco shall not
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sell, dispose of or otherwise
transfer any Equity Interests in Foreign Subsidiaries at any time
held by New UK Holdco;
(f) forgiveness or conversion to
equity of intercompany Indebtedness made pursuant to
Section 7.4(o) and Section 7.4(p) ;
and”
(p) Section 7.6 of the Credit
Agreement is hereby further amended by inserting the following at
the end of such Section:
“Notwithstanding anything to
the contrary herein, including, without limitation,
Section 7.1(k) and this Section 7.6 , the
Borrowers shall not permit, cause or allow New Cayman Entity to
sell, pledge, assign or otherwise transfer or convey the New UK
Holdco Note, or any interest therein, to any
Person.”
(q) Section 7.7 of the Credit
Agreement is hereby amended by deleting the first sentence of such
Section in its entirety and substituting in lieu thereof the
following:
“The Borrowers will not, and
will not permit any Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any
other transactions with, any of its Affiliates, officers, directors
or employees, except (a) in the ordinary course of business at
prices and on terms and conditions not less favorable to the
Borrowers or such Subsidiary than could be obtained on an
arm’s-length basis from unrelated third parties,
(b) transactions between or among the Loan Parties not
involving any other Affiliates (subject to limitations set forth
elsewhere in this Article VII) and (c) Indebtedness expressly
permitted by Section 7.1 , Investments expressly
permitted by Section 7.4 , sales of assets expressly
permitted by Section 7.6 and Restricted Payments
expressly permitted by Section 7.5 . For the avoidance
of doubt, anything in this Agreement to the contrary
notwithstanding, the parties to the New UK Holdco Note may forgive
the Indebtedness evidenced by the New UK Holdco Note or convert or
swap the New UK Holdco Note for Equity Interests of New UK
Holdco.”
(r) Section 7.13 of the Credit
Agreement is amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
“ Section 7.13 Information
Regarding Collateral. Except upon thirty (30) days prior
written notice to the Administrative Agent and delivery to the
Administrative Agent of all documents, certificates and information
reasonably requested by the Administrative Agent to maintain the
validity, perfection and priority of the security interests of the
Administrative Agent in the Collateral, the Borrowers will not, and
will not permit any Loan Party or New UK Holdco to, (i) change
any Loan Party’s or New UK Holdco’s corporate name or
in any trade name used to identify it in the conduct of its
business or in the ownership of its properties, (ii) change
the location of any Loan Party’s or New UK Holdco’s
chief
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executive office (except for the
change in Crawford’s chief executive office as specified on
Schedule 7.13 ), its principal place of business, any office
in which it maintains books or records relating to the Collateral,
which locations shall be listed on Schedule 7.13 ,
(iii) locate any Loan Party’s or New UK Holdco’s
equipment (other than such equipment which, together with all such
other inventory or equipment, does not have a fair market value in
excess of $500,000) at any location which is not listed on
Schedule 7.13 (except to the extent such equipment is in
transit from a location listed on Schedule 7.13 to another
location listed on such Schedule), (iv) make any changes in
any Loan Party’s or in New UK Holdco’s identity or
organizational structure if any such changes could adversely affect
the Administrative Agent’s Liens in the Collateral or the
priority or perfection of such Liens in the Collateral,
(v) make any changes in any Loan Party’s organizational
number issued by the Secretary of State of the State of such Loan
Party’s organization or (vi) make any changes in the
jurisdiction of organization of any Loan Party or New UK
Holdco.”
(s) Section 7.14 of the Credit
Agreement is amended by adding the following sentence at the end of
such Section:
“The Borrowers will not, and
will not permit any Subsidiary to, amend or otherwise modify the
terms or provisions of the New UK Holdco Note in any manner or
respect that is adverse to the Lenders; provided , that
(x) the parties may forgive the Indebtedness evidenced by the
New UK Holdco Note or convert or swap the New UK Holdco Note for
Equity Interests of New UK Holdco and (y) the parties may
change the interest rate or the principal amount from time to time
under the New UK Holdco Note.”
(t) Section 8.1(i) of the
Credit Agreement is amended by deleting such Section in its
entirety and substituting in lieu thereof of the
following:
“(i) either Borrower, any
Subsidiary Loan Party or any Foreign Loan Party shall become unable
to pay, shall admit in writing its inability to pay, or shall fail
generally to pay, its debts as they become due;”
(u) Section 8.1(q) of the
Credit Agreement is amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(q) the Security Documents,
the Subsidiary Guaranty Agreement or the Foreign Loan Party
Guaranty Agreement shall for any reason cease to be valid and
binding on, or enforceable against, any Loan Party or Foreign Loan
Party, as the case may be, or any Loan Party or Foreign Loan Party
shall so state in writing, or any Loan Party or Foreign Loan Party
shall challenge the validity of or seek to terminate the Security
Documents, any provision of this Agreement or any other Loan
Document or the Liens in a material portion of the Collateral shall
cease to be perfected,”
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(v) Section 10.4(b) of the
Credit Agreement is amended by deleting such Section in its
entirety and substituting in lieu thereof the following:
“(b) Any Lender may:
(x) at any time assign to one or more banks or other financial
institutions all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including all or a
portion of its Commitment, and the Loans and LC Exposure at the
time owing to it) or (y) pursuant to the terms of
Section 2.13(c) , sell or assign to the Borrowers all
or a portion of its outstanding Term Loans; provided , that
(i) except in the case of an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or to the Borrowers
pursuant to a repurchase of Term Loans permitted by
Section 2.13(c) , the Borrowers and the Administrative
Agent (and, in the case of an assignment of all or a portion of a
Revolving Commitment or any Lender’s obligations in respect
of its LC Exposure or Swingline Exposure, the Issuing Bank and the
Swingline Lender) must give their prior written consent (which
consent shall not be unreasonably withheld or delayed),
(ii) except in the case of an assignment to a Lender, an
Affiliate of a Lender, an Approved Fund or the Borrowers pursuant
to a repurchase of Term Loans permitted by
Section 2.13(c) , or an assignment while an Event of
Default has occurred and is continuing, the amount of the
Commitment or Loan of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $1,000,000 (unless the Borrowers and
the Administrative Agent shall otherwise consent), (iii) each
partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and
obligations under this Agreement and the other Loan Documents,
(iv) the assigning Lender and the assignee shall (unless
otherwise waived by the Administrative Agent) execute and deliver
to the Administrative Agent an Assignment and Acceptance, together
with a processing and recordation fee payable by the assigning
Lender or the assignee (as determined between such Persons) in an
amount equal to $1,000 (unless otherwise waived by the
Administrative Agent) and (v) such assignee (other than the
Borrowers pursuant to a repurchase of Term Loans permitted by
Section 2.13(c) ), if it is not a Lender, shall deliver
a duly c
