AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit
10.101
AMENDMENT
NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS
AMENDMENT NO. 4 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
“Agreement”) is
made and entered into as of November 5, 2004, by and among
XXXXXX INDUSTRIES, INC., a
Tennessee corporation (“Xxxxxx”), and
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC., a
Delaware corporation and wholly owned subsidiary of Xxxxxx (“Xxxxxx
Towing”)
(Xxxxxx and Xxxxxx Towing may be referred to herein individually as a
“Borrower” and
together as the “Borrowers”),
EACH
OF THE GUARANTORS SIGNATORY HERETO (the
“Guarantors”),
HARBOURSIDE
INVESTMENTS, LLLP (“Harbourside”) as
successor Agent to Bank of America, N.A. and Contrarian Funds, LLC (in such
capacity, the “Agent”) for
the Lenders under the Credit Agreement (as defined below) and as a
Lender.
W
I T N E S S E T H:
WHEREAS, the
Agent, the Lenders and the Borrowers have entered into that certain Amended and
Restated Credit Agreement dated as of July 23, 2001, as previously amended and
modified from time to time (the “Credit
Agreement”);
and
WHEREAS, the
Borrowers have requested that the terms of the Credit Agreement be amended in
the manner set forth herein, and the Agent and the Lenders, subject to the terms
and conditions contained herein, have agreed to such amendments as set forth
below; and
WHEREAS,
the
Borrowers, the Agent, the Lenders and the Guarantors acknowledge that the terms
of this Agreement constitute an amendment and modification of, and not a
novation of, the Credit Agreement and the Notes;
NOW,
THEREFORE, in
consideration of the mutual covenants and the fulfillment of the conditions set
forth herein, the parties hereby agree as follows:
1. Definitions. Unless
the context otherwise requires, all capitalized terms used herein without
definition shall have the definitions provided therefor in the Credit
Agreement.
2. Amendments
to Credit Agreement. Subject
to the conditions hereof, the Credit Agreement is hereby amended, effective as
of the date hereof, as follows:
(a) Section
1.1 of the
Credit Agreement is hereby amended by amending and restating the following
definition to read in its entirety as follows:
“Stated
Termination Date” means January 1, 2006.
3. Continuing
Effect of Loan Documents.
(a) Each
Guarantor hereby (i) consents and agrees to the amendments to the Credit
Agreement set forth herein and (ii) confirms its joint and several guarantee of
payment of all the Guarantors’ Obligations pursuant to the
Guaranty.
(b) Each of
the Borrowers and Guarantors hereby acknowledge and agree that each of the
Security Instruments (i) remains in full force and effect and is hereby
reaffirmed, (ii) continues to secure all of the Obligations of the Borrowers and
the Guarantors’ Obligations pursuant to the Guaranty, as applicable, and (iii)
notwithstanding anything to the contrary in any Security Instrument, shall
remain in effect until the Facility Termination Date.
4. Representations
and Warranties. Each of
the Borrowers hereby certifies that after giving effect to this
Agreement:
(a) The
Borrowers and each Subsidiary have the power and authority to execute and
perform this Amendment Agreement and have taken all action required for the
lawful execution, delivery and performance thereof; and
(b) No event
has occurred and no condition exists which has not been waived which, upon the
consummation of the transaction contemplated hereby, will constitute a Default
or an Event of Default on the part of the Borrowers under the Credit Agreement
or any other Loan Document either immediately or with the lapse of time or the
giving of notice, or both.
5. Conditions
to Effectiveness. This
Amendment shall not be effective until the following condition shall have been
satisfied:
(a) this
Agreement duly executed by the Borrowers, the Guarantors, the Agent and the
Lenders and Agent shall have received a counterpart thereof from each party
thereto.
Upon the
satisfaction of the condition set forth in this Section
5, the
Amendment Agreement shall be effective as of the date hereof.
6. Entire
Agreement. This
Agreement 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 relative to such subject matter.
No promise, condition, representation or warranty, express or implied, not
herein set forth shall bind any party hereto, and not one of them has relied on
any such promise, condition, representation or warranty. Each of the parties
hereto acknowledges that, except as otherwise expressly stated herein, no
representations, warranties or commitments, express or implied, have been made
by any party to the other. None of the terms or conditions of this Agreement may
be changed, modified, waived or canceled orally or otherwise, except as provided
in the Credit Agreement.
7. Full
Force and Effect of Agreement. Except
as hereby specifically amended, modified or supplemented, the Credit Agreement
and all of the other Loan Documents are hereby confirmed and ratified in all
respects and shall remain in full force and effect according to their respective
terms.
8. Counterparts. This
Amendment Agreement 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. Delivery of an executed signature page hereof by facsimile
transmission shall be effective as delivery of a manually executed counterpart
hereof.
9. Governing
Law. This
Agreement shall in all respects be governed by, and construed in accordance
with, the laws of the State of Georgia.
10. Enforceability. Should
any one or more of the provisions of this Amendment Agreement 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.
11. No
Novation. This
Agreement is given as an amendment and modification of, and not as a payment of,
the Obligations of the Borrower under the Credit Agreement and is not intended
to constitute a novation of the Credit Agreement. All of the indebtedness,
liabilities and obligations owing by the Borrowers under the Credit Agreement
and the Guarantor’s obligations under the Guaranties, as applicable, shall
continue to be secured by the “Collateral” as defined in the Credit Agreement
and the Borrowers and the Guarantors acknowledge and agree that the “Collateral”
as defined in the Credit Agreement shall continue to constitute “Collateral”
hereunder and remains subject to a security interest in favor of the Agent for
the benefit of itself and the Lenders and to secure such Obligations and
Guarantors’ Obligations.
12. Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of each of the
Borrowers, the Lenders and the Agent and their respective successors, assigns
and legal representatives; provided,
however, that the Borrowers, without the prior consent of the Agent, may not
assign any rights, powers, duties or obligations hereunder.
[Remainder
of page intentionally blank; next page is signature
page]
IN
WITNESS WHEREOF, the
parties hereto have caused this Amendment No. 4 to Amended and Restated Credit
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
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BORROWERS:
XXXXXX
INDUSTRIES, INC.
By:
/s/
J. Xxxxxxx Xxxx
Name:
J. Xxxxxxx Xxxx
Title:
Chief Financial Officer
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.
By:
/s/ J. Xxxxxxx Xxxx
Name:
J. Xxxxxxx Xxxx
Title:
Chief Financial Officer
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GUARANTORS:
APACO,
INC.
B&B
ASSOCIATED INDUSTRIES, INC.
CHEVRON,
INC.
CENTURY
HOLDINGS, INC.
CHAMPION
CARRIER CORPORATION
COMPETITION
WHEELIFT, INC.
GOLDEN
WEST TOWING EQUIPMENT INC.
KING
AUTOMOTIVE & INDUSTRIAL EQUIPMENT, INC.
MAEX,
Inc. f/k/a MID AMERICA WRECKER & EQUIPMENT SALES, INC.
OF
COLORADO
XXXXXX
FINANCIAL SERVICES GROUP, INC.
XXXXXX/GREENEVILLE,
INC.
XXXXXX
INDUSTRIES DISTRIBUTING, INC.
XXXXXX
INDUSTRIES INTERNATIONAL, INC.
XXXXXX
INDUSTRIES TOWING EQUIPMENT INC.\
PURPOSE,
INC.
SONOMA
CIRCUITS, INC.
SOUTHERN
WRECKER CENTER, INC.
SOUTHERN
WRECKER SALES, INC.
AETEX,
INC. f/k/a A-EXCELLENCE TOWING CO.
ALL
AMERICAN TOWING SERVICES, INC.
B-G
TOWING, INC.
BEAR
TRANSPORTATION, INC.
BTRCX,
INC. f/k/a BERT’S TOWING RECOVERY CORPORATION
BBSX,
INC. f/k/a XXX XXXXX SERVICES, INC.
BASIEX,
INC. f/k/a BOB’S AUTO SERVICE, INC.
BTRX,
INC.
BVSWS,
INC. f/k/a XXX XXXXXXX AND SONS WRECKER SERVICE,
INC.
CAL
WEST TOWING, INC.
CBTX,
INC. f/k/a CEDAR BLUFF 24 HOUR TOWING, INC.
CCASX,
INC.
CEX,
INC. f/k/a CHAD’S INC. |
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CVDC,
INC. f/k/a CLEVELAND VEHICLE DETENTION CENTER, INC.
X.X.
XXXXXXXX, INC.
DVREX,
INC.
DOLLAR
ENTERPRISES, INC.
DSX,
INC. f/k/a XXXXXX’X SERVICES, INC.
GMAR,
INC. f/k/a GOOD MECHANIC AUTO CO. OF RICHFIELD, INC.
GATX,
INC. f/k/a GREAT AMERICA TOWING, INC.
GREG’S
TOWING, INC.
HTX,
INC.
LTSX,
INC. f/k/a LAZER TOW SERVICES, INC.
LASX,
INC.
LWKR,
INC.
MAEJO,
INC.
MEL’S
ACQUISITION CORP.
MGEX,
INC.
MSTEX,
INC.
MTSX,
INC.
XXXXXX’X
TOWING, INC.
X.X.X.,
INC.
PEX,
INC. f/k/a/ PIPES ENTERPRISES, INC.
RMA
ACQUISITION CORP.
RRIC
ACQUISITION CORP.
RSX,
INC. f/k/a RECOVERY SERVICES, INC.
ROAD
ONE, INC.
ROADONE
EMPLOYEE SERVICES, INC.
ROAD
ONE INSURANCE SERVICES, INC.
ROAD
ONE SERVICE, INC.
ROAD
ONE SPECIALIZED TRANSPORTATION, INC.
ROADONE
TRANSPORTATION AND LOGISTICS,
INC.
R.M.W.S.,
INC.
SWSX,
INC. f/k/a SUBURBAN WRECKER SERVICE, INC.
TEXAS
TOWING CORPORATION
TPCTH,
INC.
TREASURE
COAST TOWING, INC.
TREASURE
COAST TOWING OF XXXXXX COUNTY, INC.
TSSC,
INC. f/k/a TRUCK SALES & SALVAGE CO., INC.
TWSX,
INC.
WSX,
INC. f/k/a WES’S SERVICE INCORPORATED
WTX,
INC. f/k/a XXXXXX TOWING, INC.
WTC,
INC.
WTEX,
INC.
ZTRX,
INC. f/k/a XXXXXX TOWING & RECOVERY, INC.
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By:
/s/ J. Xxxxxxx Xxxx
Chief
Financial Officer
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AGENT
AND LENDERS:
HARBOURSIDE
INVESTMENTS, LLLP, as Agent and sole Lender
By:
/s/ Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
General Partner |
