July 1, 2002
Xxxxxxx Business Services, Inc.
0000 XX Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Gentlemen:
This letter amendment (this "Amendment") is to confirm the changes agreed
upon between XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Bank") and XXXXXXX
BUSINESS SEVICES, INC. ("Borrower") to the terms and conditions of that certain
letter agreement between Bank and Borrower dated as of May 31, 2000, as amended
from time to time (the "Agreement").
RECITALS
WHEREAS, Pursuant to the Agreement, Xxxxxxxx remains indebted to Bank
under a line of credit in the maximum principal amount of Thirteen Million
Dollars ($13,000,000.00) (the "Prior Line of Credit"), which is evidenced by
that certain Revolving Line of Credit Note dated May 31, 2001 (the "Prior Line
of Credit Note"). The Prior Line of Credit Note shall mature and become due and
payable in full on July 1, 2002 and as of the date hereof, the outstanding
principal balance under the Prior Line of Credit is $4,266,764.89, plus accrued
but unpaid interest.
WHEREAS, Pursuant to the Agreement, Xxxxxxxx remains indebted to Bank
under a term loan in the original principal amount of Six Hundred Ninety-three
Thousand Seven Hundred Fifty Dollars ($693,750.00) (the "Term Loan A"), which is
evidenced by that certain Promissory Note dated August 12, 1993 (the "Term Note
A"). Term Note A shall mature and become due and payable in full on August 1,
2003 and as of the date hereof, the outstanding principal balance under Term
Loan A is $372,001.84, plus accrued but unpaid interest.
WHEREAS, Bank and Xxxxxxxx have agreed to certain changes in the terms and
conditions set forth in the Agreement and have agreed to amend the Agreement to
reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, subject to the terms and conditions described
herein, the parties hereto agree that the Agreement shall be amended as follows;
PROVIDED, HOWEVER, that nothing shall terminate any security interests or other
documents in favor of Bank, all of which shall remain in full force and effect
unless expressly amended hereby:
Xxxxxxx Business Services, Inc.
July 1, 2002
Page 2
1. The Agreement is hereby amended by deleting "July 1, 2002" as the last
day on which Bank will make advances under the Line of Credit, and by
substituting for said date "September 2, 2002," with such change to be effective
upon the execution and delivery to Bank of a promissory note substantially in
the form of Exhibit A attached hereto (the "Line of Credit Note") (which
promissory note shall replace and be deemed the Line of Credit Note defined in
and made pursuant to the Agreement) and all other contracts, instruments and
documents required by Bank to evidence such change; PROVIDED, HOWEVER that
advances made under the Prior Line of Credit Note shall be deemed made under the
Prior Line of Credit Note.
2. AMENDMENT TO PARAGRAPH V.3. Paragraph V.3(c) is hereby renumbered as
Paragraph V.3 (d) and the following is hereby added to the Agreement as
Paragraph V.3(c):
"(c) not later than 26 days after and as of the end of each first and
second month of each fiscal quarter and 35 days after and as of the end of each
fiscal quarter, a financial statement of Xxxxxxxx, to include balance sheet and
income statement;"
3. AMENDMENT TO PARAGRAPHS V.9 (B) AND (D). Paragraphs V.9 (b) and (d) are
hereby deleted in their entirety and the following substituted therefor:
"(b) EBITDA not less than negative $1,950,000.00 as of fiscal quarter
ending June 30, 2002, measured on a trailing four-quarter basis, with "EBITDA"
defined as net profit before tax plus interest expense (net of capitalized
interest expense), depreciation expense and amortization expense.
(d) Outstanding Line Liabilities not greater than seventy percent (70%) of
Borrower's trade accounts receivable as of each fiscal quarter end, commencing
fiscal quarter ending June 30, 2002 with "Outstanding Line Liabilities" defined
as outstanding borrowings under the Line of Credit plus the face amount of
outstanding Letters of Credit."
4. RESTRUCTURING FEE. In consideration of the changes set forth herein and
as a condition to the effectiveness hereof, immediately upon signing this
Amendment Borrower shall pay to Bank a non-refundable fee of $10,000.00 (the
"Restructuring Fee").
5. CONDITIONS PRECEDENT. The obligation of Bank to amend the terms and
conditions of the Agreement as provided herein, is subject to the fulfillment to
Bank's satisfaction of all of the following conditions by no later than July 7,
2002:
(a) Bank shall have received, in form and substance satisfactory to Bank,
each of the following, duly executed:
(i) This Amendment.
(ii) The Line of Credit Note.
(iii) Such other documents as Bank may require under any other section
of this Amendment.
(B) RESTRUCTURING FEE. Bank shall have received the Restructuring Fee in
immediately available funds.
Xxxxxxx Business Services, Inc.
July 1, 2002
Page 3
(C) OTHER FEES AND COSTS. In addition to Borrower's obligations under the
Agreement and the other Loan Documents, Borrower shall have paid to Bank the
full amount of all costs and expenses, including reasonable attorneys' fees
(including the allocated costs of Bank's in-house counsel) expended or incurred
by Bank in connection with the negotiation and preparation of this Amendment,
for which Bank has made demand.
(e) INTEREST. Interest under the Prior Line of Credit Note shall have been
paid current.
(f) INTEREST AND PRINCIPAL. Interest and principal under Term Note A shall
have been paid current.
6. GENERAL RELEASE. In consideration of the benefits provided to Borrower
under the terms and provisions hereof, Xxxxxxxx hereby agrees as follows
("General Release"):
(a) Borrower, for itself and on behalf of its successors and assigns, does
hereby release, acquit and forever discharge Bank, all of Bank's predecessors in
interest, and all of Bank's past and present officers, directors, attorneys,
affiliates, employees and agents, of and from any and all claims, demands,
obligations, liabilities, indebtedness, breaches of contract, breaches of duty
or of any relationship, acts, omissions, misfeasance, malfeasance, causes of
action, defenses, offsets, debts, sums of money, accounts, compensation,
contracts, controversies, promises, damages, costs, losses and expenses, of
every type, kind, nature, description or character, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length (each, a "Released Claim" and collectively, the "Released
Claims"), that Borrower now has or may acquire as of the later of: (i) the date
this Amendment becomes effective through the satisfaction (or waiver by Bank) of
all conditions hereto; (ii) the date that Borrower has executed and delivered
this Amendment to Bank (hereafter, the "Release Date"), including without
limitation, those Released Claims in any way arising out of, connected with or
related to any and all prior credit accommodations, if any, provided by Bank, or
any of Bank's predecessors in interest, to Borrower, and any agreements, notes
or documents of any kind related thereto or the transactions contemplated
thereby or hereby, or any other agreement or document referred to herein or
therein.
(b) Borrower hereby acknowledges, represents and warrants to Bank that it
agrees to assume the risk of any and all unknown, unanticipated or misunderstood
defenses and Released Claims which are released by the provisions of this
General Release in favor of Bank, and Borrower hereby waives and releases all
rights and benefits which it might otherwise have under any state or local laws
or statutes with regard to the release of such unknown, unanticipated or
misunderstood defenses and Released Claims.
(c) Each person signing below on behalf of Xxxxxxxx acknowledges that he
or she has read each of the provisions of this General Release. Each such person
fully understands that this General Release has important legal consequences,
and each such person realizes that they are releasing any and all Released
Claims that Borrower may have as of the Release Date. Xxxxxxxx hereby
acknowledges that it has had an opportunity to obtain a lawyer's advice
concerning the legal consequences of each of the provisions of this General
Release.
(d) Borrower hereby specifically acknowledges and agrees that: (i) none of
the provisions of this General Release shall be construed as or constitute an
admission of any liability on the part of Bank; (ii) the provisions of this
General Release shall constitute an
Xxxxxxx Business Services, Inc.
July 1, 2002
Page 4
absolute bar to any Released Claim of any kind, whether any such Released Claim
is based on contract, tort, warranty, mistake or any other theory, whether
legal, statutory or equitable; and (iii) any attempt to assert a Released Claim
barred by the provisions of this General Release shall subject Borrower to the
provisions of applicable law setting forth the remedies for the bringing of
groundless, frivolous or baseless claims or causes of action.
7. MISCELLANEOUS. Except as specifically provided herein, all terms and
conditions of the Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Agreement shall have the same meaning
when used herein. This Amendment and the Agreement shall be read together, as
one document. This Amendment may be executed in any number of counterparts, each
of which when executed and delivered shall be deemed to be an original, and all
of which when taken together shall constitute one and the same Amendment.
8. REAFFIRMATION; CERTIFICATION. Borrower hereby remakes all
representations and warranties contained in the Agreement and reaffirms all
covenants set forth therein. Borrower further certifies that as of the date of
Xxxxxxxx's acknowledgment set forth below there exists no default or defined
event of default under the Agreement or any promissory note or other contract,
instrument or document executed in connection therewith, nor any condition, act
or event which with the giving of notice or the passage of time or both would
constitute such a default or defined event of default.
9. Except as specifically provided herein, all terms and conditions of the
Agreement remain in full force and effect, without waiver or modification. All
terms defined in the Agreement shall have the same meaning when used herein.
This Amendment and the Agreement shall be read together, as one document.
10. Borrower hereby remakes all representations and warranties contained
in the Agreement and reaffirms all covenants set forth therein. Borrower further
certifies that as of the date of Xxxxxxxx's acknowledgment set forth below there
exists no default or defined event of default under the Agreement or any
promissory note or other contract, instrument or document executed in connection
therewith, nor any condition, act or event which with the giving of notice or
the passage of time or both would constitute such a default or defined event of
default.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK AFTER
OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
Xxxxxxx Business Services, Inc.
July 1, 2002
Page 5
Your acknowledgment of this Amendment shall constitute acceptance of the
foregoing terms and conditions.
Sincerely,
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxx
----------------------
Xxxxxxx X. Xxx
Vice President
Acknowledged and accepted as of 06/25/02 :
----------------
XXXXXXX BUSINESS SERVICE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxxx
Vice President-Finance
REVOLVING LINE OF CREDIT NOTE
$12,000,000.00 Portland, Oregon
July 1, 2002
FOR VALUE RECEIVED, the undersigned XXXXXXX BUSINESS SERVICES, INC.
("Borrower") promises to pay to the order of XXXXX FARGO BANK, NATIONAL
ASSOCIATION ("Bank") at its office at 0000 XX 0xx Xxxxxx, Xxxxx, 00xx Xxxxx,
Xxxxxxxx Xxxxxx, or at such other place as the holder hereof may designate, in
lawful money of the United States of America and in immediately available funds,
the principal sum of Twelve Million Dollars ($12,000,000.00), or so much thereof
as may be advanced and be outstanding, with interest thereon, to be computed on
each advance from the date of its disbursement as set forth herein.
INTEREST:
(a) INTEREST. The outstanding principal balance of this Note shall bear
interest (computed on the basis of a 360-day year, actual days elapsed) at a
rate per annum one percent (1%) above the Prime Rate in effect from time to
time. The "Prime Rate" is a base rate that Bank from time to time establishes
and which serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto. Each change in the rate of
interest hereunder shall become effective on the date each Prime Rate change is
announced within Bank.
(b) PAYMENT OF INTEREST. Interest accrued on this Note shall be payable on
the first day of each month, commencing August 1, 2002.
(c) DEFAULT INTEREST. From and after the maturity date of this Note, or
such earlier date as all principal owing hereunder becomes due and payable by
acceleration or otherwise, the outstanding principal balance of this Note shall
bear interest until paid in full at an increased rate per annum (computed on the
basis of a 360-day year, actual days elapsed) equal to four percent (4%) above
the rate of interest from time to time applicable to this Note.
BORROWING AND REPAYMENT:
(a) BORROWING AND REPAYMENT. Borrower may from time to time during the
term of this Note borrow, partially or wholly repay its outstanding borrowings,
and reborrow, subject to all of the limitations, terms and conditions of this
Note and of any document executed in connection with or governing this Note;
provided however, that the total outstanding borrowings under this Note shall
not at any time exceed the principal amount stated above. The unpaid principal
balance of this obligation at any time shall be the total amounts advanced
hereunder by the holder hereof less the amount of principal payments made hereon
by or for any Borrower, which balance may be endorsed hereon from time to time
by the holder. The outstanding principal balance of this Note shall be due and
payable in full on September 2, 2002.
(b) ADVANCES. Advances xxxxxxxxx, to the total amount of the principal sum
stated above, may be made by the holder at the oral or written request of (i)
Xxxxxxx X. Xxxxxxxx or Xxxxxxx X. Xxxxxxxxxx, any one acting alone, who are
authorized to request advances and direct the disposition of any advances until
written notice of the revocation of such authority is received by the holder at
the office designated above, or (ii) any person, with respect to
advances deposited to the credit of any deposit account of any Borrower, which
advances, when so deposited, shall be conclusively presumed to have been made to
or for the benefit of each Borrower regardless of the fact that persons other
than those authorized to request advances may have authority to draw against
such account. The holder shall have no obligation to determine whether any
person requesting an advance is or has been authorized by any Borrower.
(c) APPLICATION OF PAYMENTS. Each payment made on this Note shall be
credited first, to any interest then due and second, to the outstanding
principal balance hereof.
EVENTS OF DEFAULT:
The occurrence of any of the following shall constitute an "Event of
Default" under this Note:
(a) The failure to pay any principal, interest, fees or other charges when
due hereunder or under any contract, instrument or document executed in
connection with this Note.
(b) The filing of a petition by or against any Borrower, any guarantor of
this Note or any general partner or joint venturer in any Borrower which is a
partnership or a joint venture (with each such guarantor, general partner and/or
joint venturer referred to herein as a "Third Party Obligor") under any
provisions of the Bankruptcy Reform Act, Title 11 of the United States Code, as
amended or recodified from time to time, or under any similar or other law
relating to bankruptcy, insolvency, reorganization or other relief for debtors;
the appointment of a receiver, trustee, custodian or liquidator of or for any
part of the assets or property of any Borrower or Third Party Obligor; any
Borrower or Third Party Obligor becomes insolvent, makes a general assignment
for the benefit of creditors or is generally not paying its debts as they become
due; or any attachment or like levy on any property of any Borrower or Third
Party Obligor.
(c) The death or incapacity of any individual Borrower or Third Party
Obligor, or the dissolution or liquidation of any Borrower or Third Party
Obligor which is a corporation, partnership, joint venture or other type of
entity.
(d) Any default in the payment or performance of any obligation, or any
defined event of default, under any provisions of any contract, instrument or
document pursuant to which any Borrower or Third Party Obligor has incurred any
obligation for borrowed money, any purchase obligation, or any other liability
of any kind to any person or entity, including the holder.
(e) Any financial statement provided by any Borrower or Third Party
Obligor to Bank proves to be incorrect, false or misleading in any material
respect.
(f) Any sale or transfer of all or a substantial or material part of the
assets of any Borrower or Third Party Obligor other than in the ordinary course
of its business.
(g) Any violation or breach of any provision of, or any defined event of
default under, any addendum to this Note or any loan agreement, guaranty,
security agreement, deed of trust, mortgage or other document executed in
connection with or securing this Note.
MISCELLANEOUS:
(a) REMEDIES. Upon the occurrence of any Event of Default, the holder of
this Note, at the holder's option, may declare all sums of principal and
interest outstanding hereunder to be immediately due and payable without
presentment, demand, notice of nonperformance, notice of protest, protest or
notice of dishonor, all of which are expressly waived by each Borrower, and the
obligation, if any, of the holder to extend any further credit hereunder shall
immediately cease and terminate. Each Borrower shall pay to the holder
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of the holder's in-house counsel), expended
or incurred by the holder in connection with the enforcement of the holder's
rights and/or the collection of any amounts which become due to the holder under
this Note, and the prosecution or defense of any action in any way related to
this Note, including without limitation, any action for declaratory relief,
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person) relating to any
Borrower or any other person or entity.
(b) OBLIGATIONS JOINT AND SEVERAL. Should more than one person or entity
sign this Note as a Borrower, the obligations of each such Borrower shall be
joint and several.
(c) GOVERNING LAW. This Note shall be governed by and construed in
accordance with the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK AFTER
OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date
first written above.
XXXXXXX BUSINESS SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxxxxx
Vice President-Finance
