Unassociated Document


    
      FIRST AMENDMENT TO CREDIT
AGREEMENT

       

      This FIRST AMENDMENT to Credit Agreement (this
“Amendment”)
is entered into as of November 8, 2010, among DUFF & PHELPS, LLC, a Delaware
limited liability company (the “Borrower”), DUFF & PHELPS
ACQUISITIONS, LLC (“Holdings”),
CHANIN CAPITAL PARTNERS LLC (“Chanin”), and RASH & ASSOCIATES,
L.P. (“Rash” and together with
Holdings and Chanin, each a “Guarantor” and together the “Guarantors”), BANK OF AMERICA, N.A.,
as Administrative Agent and L/C Issuer (as such terms are defined in the
Credit Agreement defined below), and each of the Lenders (as defined in the
Credit Agreement defined below) signatory hereto.

       

      WITNESSETH:

       

      WHEREAS, the Borrower, the
Administrative Agent, the L/C Issuer and the Lenders have entered into that
certain Credit Agreement dated as of July 15, 2009 (as from time to time
amended, modified, supplemented, restated, or amended and restated, the “Credit Agreement”;
capitalized terms used in this Amendment not otherwise defined herein shall have
the respective meanings given thereto in the Credit Agreement), pursuant to
which the L/C Issuer and the Lenders have made available to the Borrower certain
Committed Loans; and

       

      WHEREAS, the Borrower has
requested that the Administrative Agent and the Lenders make certain adjustments
to the Consolidated Fixed Charge Coverage definition and covenant and certain
other amendments to the Credit Agreement.

      NOW, THEREFORE, in
consideration of the premises and further valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:

      1.            
Amendments to Credit Agreement: Restated
Defined Terms.  The following defined terms set forth in
Section 1.02 of the Credit Agreement are hereby amended and restated as
follows:

      “Consolidated Fixed Charge
Coverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated EBITDA minus, without duplication, (i) Capital Expenditures, (ii)
United States federal income taxes or other taxes measured by net income paid by
Holdings and its Subsidiaries and distributions made to the holders of Equity
Interests of Holdings for the payment of such taxes and (iii) cash
Restricted Payments to Persons other than another Group Member (other than
Restricted Payments described in part (ii) above or Restricted Payments made
with proceeds of a substantially concurrent sale of Equity Interests of Holdings
or DPC), in each case for the period of the four prior fiscal quarters ending on
such date, to (b)
Consolidated Fixed Charges for the period of the four prior fiscal quarters
ending on such date.  The amounts described in clauses (a)(i), (a)(ii), and
(a)(iii) above for the three (3) fiscal quarters most recently ended prior to
the Closing Date for which financial statements are available are set forth on
Schedule 1.02.  For purposes of calculating the Consolidated Fixed Charge
Coverage Ratio for any four fiscal quarter period which includes the second
fiscal quarter of 2009, the following shall be excluded: (i) Restricted Payments
consisting of the redemption by Holdings of 4,550,000 of its New Class A Units
which occurred in May of 2009 and (ii) the repayment in full on or about May 22,
2009 of all principal amounts outstanding under the Amended and Restated Credit
Agreement, dated as of July 30, 2008, among the Borrower, Holdings, the lenders
and L/C issuers party thereto and General Electric Capital Corporation as
administrative agent and collateral agent.

      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

         

      

      “Consolidated Fixed
Charges” means, for any period, for DPC and its Subsidiaries on a
consolidated basis, the sum for such period of (a) Consolidated Cash Interest
Charges for such period, and (b) the principal amount of Consolidated
Funded Indebtedness of such Person and its Subsidiaries permanently repaid
(other than pursuant to a refinancing) during such period.  Consolidated
Fixed Charges for the three (3) fiscal quarters most recently ended prior to the
Closing Date for which financial statements are available are set forth on Schedule 1.03.

      “Related Treasury
Management Arrangement” means any Bank of America ePayables Solution and
any arrangement for the delivery of treasury management services to or for the
benefit of any Loan Party which is entered into or maintained with a Lender or
Affiliate of a Lender and which is not prohibited by the express terms of the
Loan Documents; provided that, at any time the provider of such services ceases
to be a Lender or an Affiliate of a Lender hereunder, such arrangements shall no
longer be considered “Related Treasury Management Arrangements”.

      2.            
Amendments to Credit Agreement: Restricted
Payments.  Section 7.06(d)(v) of the Credit Agreement is
hereby amended and restated as follows:

      “(v)
any other Restricted Payment so long as at the time such Restricted Payment is
declared or otherwise agreed to, such Restricted Payment is not specifically
prohibited hereunder, no Default or Event of Default then exists or would result
therefrom, and after giving effect thereto the Borrower remains in compliance
with the financial covenants set forth in Section 7.11 on a pro forma
basis.”

      3.            
Amendments to Credit Agreement: Burdensome
Agreements.  Section 7.09 of the Credit Agreement is hereby
amended and restated as follows:

      “7.09  Burdensome
Agreements.  Enter into any Contractual Obligation (other than (i)
this Agreement or any other Loan Document, (ii) limits on Liens on, or sales of,
property whose acquisition, use, repair, improvement or construction is financed
with purchase money Indebtedness or Capitalized Lease Obligations (or Permitted
Refinancings thereof), (iii) Contractual Obligations governing Indebtedness
permitted hereunder, and (iv) licenses for Intellectual Property containing
customary anti-assignment provisions) that (a) limits the ability of any Group
Member to (x) make Restricted Payments to any Loan Party or to otherwise
transfer property to the Loan Parties, (y) Guarantee the Obligations or (z)
create, incur, assume or suffer to exist Liens on property of such Person; provided, however, that this clause (z) shall
not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section
7.03(e) solely to the extent any such negative pledge relates to the
property financed by or the subject of such Indebtedness; or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to
secure another obligation of such Person.”

      4.            
Amendments to Credit Agreement: Consolidated
Fixed Charge Coverage Ratio.  Section 7.11(a) of the Credit
Agreement is hereby amended and restated as follows:

      “             
(a)           Consolidated Fixed Charge
Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage Ratio
to be less than (i) as of the last day of each fiscal quarter of DPC through and
including June 30, 2010, 2.00:1:00 and (ii) as of the last day of each fiscal
quarter of DPC thereafter, 1.25:1.00.”

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

         

      

      5.            
Effectiveness; Conditions
Precedent.  The effectiveness of this Amendment shall be
conditioned upon the Administrative Agent’s receipt of two (2) counterparts of
this Amendment, duly executed by the Borrower, the Administrative Agent, the L/C
Issuer and the Required Lenders.

      6.            
Representations and
Warranties.  In order to induce the Administrative Agent and
the Lenders to enter into this Amendment, the Borrower represents and warrants
to the Administrative Agent and the Lenders as follows:

      (a)           
After giving effect to this Amendment, the representations and warranties made
by the Borrower and each other Loan Party in Article V of the Credit Agreement and
in each of the other Loan Documents, or which are contained in any document
furnished at any time under or in connection herewith or therewith, are true and
correct in all material respects on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to an earlier
date, provided, however, that the representations and warranties contained in
subsections (a) and (b) of Section 5.05
of the Credit Agreement are deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Credit
Agreement;

      (b)          
This Amendment has been duly authorized, executed and delivered by the Borrower
and constitutes a legal, valid and binding obligation of the Borrower, except as
may be limited by general principles of equity or by the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally; and

      (c)           
After giving effect to this Amendment, no Default or Event of Default has
occurred and is continuing. 

      7.            
Reaffirmation of Guaranty. 
Each of the Guarantors hereby expressly: (a) consents to the
execution by the Borrower, the Administrative Agent, the L/C Issuer and each of
the Lenders of this Amendment; (b) acknowledges that the Obligations
referred to in and guaranteed by the Guaranty include all of the obligations and
liabilities owing from time to time by the Borrower to the Administrative Agent,
the L/C Issuer and each of the Lenders, including, but not limited to, the
obligations and liabilities of the Borrower to the Administrative Agent, the L/C
Issuer and each of the Lenders under and pursuant to the Credit Agreement, as
amended from time to time, and as evidenced by the Note, as modified, extended,
and/or replaced from time to time; (c) acknowledges that such Guarantor
does not have any set-off, defense or counterclaim to the payment or performance
of any of the obligations of the Borrower under the Credit Agreement or such
Guarantor under the Guaranty; (d) reaffirms, assumes and binds itself in
all respects to all of the obligations, liabilities, duties, covenants, terms
and conditions that are contained in the Guaranty; (e) agrees that all such
obligations and liabilities under the Guaranty shall continue in full force and
that the execution and delivery of this Amendment to, and its acceptance by, the
Bank shall not in any manner whatsoever (i) impair or affect the liability
of any Guarantor to the Administrative Agent, the L/C Issuer or any of the
Lenders under the Guaranty, (ii) prejudice, waive, or be construed to
impair, affect, prejudice, or waive the rights and abilities of the
Administrative Agent, the L/C Issuer or any of the Lenders at law, in equity or
by statute, against any Guarantor pursuant to the Guaranty, and/or
(iii) release or discharge, nor be construed to release or discharge, any
of the obligations and liabilities owing to the Administrative Agent, the L/C
Issuer or any of the Lenders by any Guarantor under the Guaranty; and (f)
represents and warrants that each of the representations and warranties made by
such Guarantor in any of the documents executed in connection with the Loan
remain true and correct as of the date hereof.

      8.            
Entire Agreement.  This
Amendment, together with all the Loan Documents and all related amendments,
consents, waivers, and other similar documents (collectively, the “Relevant
Documents”), sets forth the entire understanding and agreement of the parties
hereto in relation to the subject matter hereof and supersedes any prior
negotiations and agreements among the parties relating to such subject
matter.  No promise, condition, representation or warranty, express or
implied, not set forth in the Relevant Documents shall bind any party hereto,
and no such party has relied on any such promise, condition, representation or
warranty.  Each of the parties hereto acknowledges that, except as
otherwise expressly stated in the Relevant Documents, no representations,
warranties or commitments, express or implied, have been made by any party to
any other party in relation to the subject matter hereof or thereof.  None
of the terms or conditions of this Amendment may be changed, modified, waived or
canceled orally or otherwise, except in writing and in accordance with Section 10.01 of the Credit
Agreement.

      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

         

      

      9.            
Full Force and Effect of
Agreement.  Except as hereby specifically amended, modified
or supplemented, the Credit Agreement and all other Loan Documents are hereby
confirmed and ratified in all respects and shall be and remain in full force and
effect according to their respective terms.  

      10.          
Counterparts.  This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original as against any party whose signature appears thereon, and all
of which shall together constitute one and the same instrument.

      11.          
Governing Law.  THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK, and shall be further subject to the provisions of Section 10.15 of the Credit
Agreement.

      12.          
Enforceability.  Should
any one or more of the provisions of this Amendment be determined to be illegal
or unenforceable as to one or more of the parties hereto, all other provisions
nevertheless shall remain effective and binding on the parties
hereto.

      13.          
References.  All
references in any of the Loan Documents to the Credit Agreement (whether as
“Credit Agreement” or “Agreement,” as applicable based on the context) shall
mean the Credit Agreement, as amended, supplemented or modified
hereby.

      14.          
Successors and Assigns. 
This Amendment shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent, the L/C Issuer and each of the Lenders, and their
respective successors, legal representatives, and assignees to the extent such
assignees are permitted assignees as provided in Section 10.06 of the Credit
Agreement.

      [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

       

      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      



    IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be made, executed and delivered by
their duly authorized officers as of the day and year first above written.

     

    
      	 	
              DUFF & PHELPS, LLC
      

              as
      the Borrower

            	 
	 	 	 	 
	
               

            	
              By:

            	/s/
      Jacob L. Silverman 	 
	 	Name:	Jacob
      L. Silverman   	 
	 	Title:	Chief
      Financial Officer    	 
	 	 	 	 


    

     

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

     

    
      	 
      	
              

                DUFF
      & PHELPS ACQUISITIONS, LLC 

                as
      Guarantor

              

            	 
      
	 
      	 
      	 
      	 
      
	 
      	
              By:

            	
              /s/
      Jacob L. Silverman

            	 
      
	 
      	
              Name:

            	
              Jacob
      L. Silverman

            	 
      
	 
      	
              Title:

            	
              Chief
      Financial Officer

            	 
      
	 
      	 
      	 
      	 
      


    

     

    
      
        
          	 	

                  CHANIN
      CAPITAL PARTNERS LLC

                  as
      Guarantor

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/
      Jacob L. Silverman	 
	 	Name:	Jacob
      L. Silverman	 
	 	Title:	Chief Financial Officer	 
	 	 	 	 


        

      

       

      
        
          	 
      	
                  

                    RASH
      & ASSOCIATES, L.P. 


                    as
      Guarantor

                  

                	 
      
	 
      	 
      	 
      	 
      
	 	By:
      Rash Acquisition GP, its general partner	 
	 	 	 	 
	 
      	
                  By:

                	
                  /s/
      Jacob L. Silverman

                	 
      
	 
      	Name:	
                  Jacob
      L. Silverman

                	 
      
	 
      	Title:	
                  Chief Financial Officer

                	 
      
	 
      	 
      	 
      	 
      


        

         

      

    

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      
        	 	BANK OF AMERICA, N.A.,
      
as Administrative Agent	 
	 	 	 	 
	
                 

              	
                By:

              	/s/
      Brian Peterson	 
	 	Name:	Brian
      Peterson	 
	 	Title:	Senior
      Vice President	 
	 	 	 	 


      

    

    


    
      	 	BANK OF AMERICA, N.A.,
      
as a Lender and L/C Issuer	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/
      Brian Peterson	 
	 	Name:	Brian
      Peterson	 
	 	Title:	Senior
      Vice President