FOURTH MODIFICATION OF AMENDED AND RESTATED REVOLVING LINE OF CREDIT LOAN AGREEMENT, TERM LOANS AGREEMENT AND SECURITY AGREEMENT
Exhibit 10.23
FOURTH
MODIFICATION OF AMENDED AND RESTATED
REVOLVING LINE OF CREDIT LOAN AGREEMENT, TERM LOANS
AGREEMENT AND SECURITY AGREEMENT
THIS FOURTH MODIFICATION OF AMENDED AND RESTATED REVOLVING LINE OF CREDIT LOAN AGREEMENT, TERM LOANS AGREEMENT AND SECURITY AGREEMENT (“Fourth Modification”) is entered into effective as of the 3rd day of February, 2003, by and between On-Site Sourcing, Inc., a Delaware corporation (the “Borrower”), with its principal office at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and Wachovia Bank, National Association, formerly known as First Union National Bank (the “Lender”), a national banking association with an address of 0000 Xxxxx Xxxxxx Xxxx, XxXxxx, Xxxxxxxx 00000.
RECITALS:
R-1. Lender made a loan in the form of a revolving line of credit (“Line of Credit”) to Borrower, currently in the maximum principal sum of Seven Million and 00/100 Dollars ($7,000,000.00), evidenced by an Amended and Restated Revolving Note, dated as of May 30, 2001, as modified by that certain First Modification of Amended and Restated Revolving Note dated as of May 23, 2002 (the “Revolving Note”). The Line of Credit is governed and secured by that certain Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement executed by Borrower and Lender dated as of May 30, 2001, as modified by that certain First Modification of Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement dated as of July 2, 2001, that certain Second Modification of Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement dated as of May 23, 2002, and that certain Third Modification of Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement dated as of September 25, 2002 (as so modified, the “Loan Agreement”).
R-2. The Loan Agreement also governs and secures (1) that certain term loan to Borrower and North Xxxxx Street Realty Company, LLC, a Delaware limited liability company (“North Xxxxx”), in the original principal amount of Five Million Eight Hundred Thousand and 00/100 Dollars ($5,800,000.00), as evidenced by that certain Commercial Note executed by Borrower and North Xxxxx dated as of November 15, 2000; (2) that certain term loan to Borrower in the original principal amount of One Million One Hundred Twenty Five Thousand and 00/100 Dollars ($1,125,000.00), as evidenced by that certain Term Note dated June 12, 2000, and (3) that certain term loan to Borrower in the original principal amount of One Million Seven Hundred Eighty Thousand Three Hundred and 00/100 Dollars ($1,780,300.00), as evidenced by that certain Term Note dated July 2, 2001.
R-3. Borrower and Lender have agreed to modify the Loan Agreement in certain respects as more fully set forth herein.
NOW, THEREFORE, in consideration of the premises, the mutual agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower and the Lender hereby agree as follows:
1. To induce the Lender to enter into this Fourth Modification, the Borrower warrants and represents to the Lender that:
a. The Borrower’s books and records properly reflect the Borrower’s financial condition, and no material adverse change in the Borrower’s financial condition has occurred since the last date that the Borrower provided financial reports to the Lender; and
b. No litigation is pending or threatened against the Borrower of which the Borrower has not informed the Lender in writing; and
c. The Borrower is in compliance with all provisions of the Loan Agreement and with all applicable laws and regulations; and
d. Borrower has the power and authority to enter into this Fourth Modification, to perform its obligations hereunder, to execute all documents being executed and delivered in connection herewith, and to incur the obligations provided for herein, all of which have been duly authorized and approved in accordance with the Borrower’s organizational documents; and
e. This Fourth Modification, together with all documents executed in connection herewith or pursuant hereto, constitute the valid and legally binding obligations of the Borrower in accordance with their respective terms; and
f. The Borrower’s obligations under the Loan Documents (as defined in the Loan Agreement as modified hereby) remain valid and enforceable obligations, and the execution and delivery of this Fourth Modification and any other documents executed in connection herewith shall not be construed as a novation of the Loan Agreement or the other Loan Documents.
2. The definition of “EBIT” set forth in Section 1.1of the Loan Agreement is hereby deleted in its entirety and restated as follows:
“bb. “EBIT” means the consolidated net income of the Borrower and its subsidiaries determined quarterly on a rolling four quarter period basis in accordance with GAAP, after giving effect to all expenses and other property
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charges, but excluding interest and income taxes, and, with the Lender’s prior approval, excluding (i) gains or losses on asset sales, (ii) losses or charges related to impairment of existing goodwill, and (iii) losses related to discontinued operations.”
3. Section 6.14.c. of the Loan Agreement entitled “Interest Coverage Ratio” is deleted in its entirety and restated as follows:
“c. Interest Coverage Ratio. A minimum Interest Coverage Ratio of 2.0 to 1.0 to be measured at the end of each of Borrower’s fiscal quarters, at the end of each of Borrower’s fiscal years and at such other times as Lender may require as determined by Lender in its sole and absolute discretion; provided however, and solely with respect to the Borrower’s fiscal quarters ending December 31, 2002, March 31, 2003, and June 30, 2003 (and any interim periods ending between December 31, 2002, and June 30, 2003), the minimum Interest Coverage Ratio shall be 1.75 to 1.
4. The Borrower promises to pay, on demand, all costs (including attorneys fees) incurred by the Lender for the preparation of this Fourth Modification, any additional documents and any other expenses incurred by Lender in relation to this Fourth Modification.
5. The Borrower authorizes the Lender to advance funds to itself or to third parties to pay the fees, costs and expenses listed in this Fourth Modification, which advances shall be deemed to be Advances to the Borrower under the Loan Agreement.
6. ARBITRATION: PROVISIONS IN THE LOAN AGREEMENT REGARDING ARBITRATION ARE INCORPORATED HEREIN BY REFERENCE AS IF FULLY SET FORTH HEREIN.
7. Except as modified by this Fourth Modification, the Loan Agreement remains in full force and effect and unmodified. Borrower warrants and represents that it has no offsets or defenses to its obligations under the Loan Agreement, as so modified, and the other Loan Documents.
8. In consideration of Lender’s agreement to this Fourth Modification, the Borrower hereby releases and waives any and all claims of any kind that it may have against the Lender as of the date of this Fourth Modification arising out of or relating to the Loan Agreement, as amended by this Fourth Modification.
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IN WITNESS WHEREOF, the parties have executed this Fourth Modification as of the date and year first written above.
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ON-SITE SOURCING, INC., a Delaware corporation |
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By: |
/s/ Xxxxx Xxxxxx |
(SEAL) |
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Name: |
Xxxxx Xxxxxx |
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Title: |
CFO |
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WACHOVIA BANK, NATIONAL ASSOCIATION |
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By: |
/s/ Xxxxxx X. Xxxxx |
(SEAL) |
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Name: |
Xxxxxx X. Xxxxx |
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Title: |
Vice-President |
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STATE OF VIRGINIA
COUNTY OF Arlington: to wit:
I, the undersigned Notary Public in and for the State and County aforesaid, do hereby certify that Xxxxx Xxxxxx as CFO of On-Site Sourcing, Inc., whose name is signed to the foregoing Fourth Modification of Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement, dated the 3rd day of February, 2003, personally appeared before me within the aforesaid jurisdiction and acknowledged the same.
GIVEN under my hand and seal this 3rd day of February, 2003.
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/s/ X. Xxxxxxxxx - Xxxxx |
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Notary Public |
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My Commission expires: 6/30/05 |
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XXXXX XX XXXXXXXX
XXXXXX XX Xxxxxxx: to wit:
I, the undersigned Notary Public in and for the State and County aforesaid, do hereby certify that Xxxxxx X. Xxxxx as Vice-President of Wachovia Bank, National Association, whose name is signed to the foregoing Fourth Modification of Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement, dated the 3rd day of Feburary, 2003, personally appeared before me within the aforesaid jurisdiction and acknowledged the same.
GIVEN under my hand and seal this 3rd day of February, 2003.
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/s/ Xxxxx X. Xxxxxxxx |
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Notary Public |
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My Commission expires: May 31, 2005 |
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CONSENT
OF NORTH XXXXX STREET REALTY COMPANY, LLC TO FOURTH
MODIFICATION TO AMENDED AND RESTATED REVOLVING LINE OF
CREDIT LOAN AGREEMENT, TERM LOANS AGREEMENT
AND SECURITY
AGREEMENT AND RELATED DOCUMENTS
North Xxxxx Street Realty Company, LLC, a Delaware limited liability company (“North Xxxxx”), the grantor under that certain Deed of Trust, Assignment of Rents and Security Agreement dated as of November 15, 2000 (the “Deed of Trust”), benefitting Wachovia Bank, National Association (formerly known as First Union National Bank) (“Wachovia”) to secure, among other things, that Commercial Note executed and made payable by On-Site Sourcing, Inc., a Delaware corporation and North Xxxxx to Wachovia in the original principal amount of Five Million Eight Hundred Thousand and 00/100 Dollars ($5,800,000.00), does hereby acknowledge, consent and agree to the annexed Fourth Modification to Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement (the “Fourth Modification”), and all documents executed in connection with the Fourth Modification, and North Xxxxx represents, warrants and agrees that North Xxxxx has no offsets or defenses to the Deed of Trust, the Fourth Modification and the Amended and Restated Revolving Line of Credit Loan Agreement, Term Loans Agreement and Security Agreement modified thereby (and as previously modified), or any other document or agreement to which North Xxxxx is bound or which was executed for the benefit of Wachovia.
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NORTH XXXXX STREET REALTY COMPANY, LLC, a Delaware limited liability company, by ON-SITE SOURCING, INC., a Delaware corporation, as its sole manager and sole member |
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By: |
/s/ Xxxxx Xxxxxx |
[SEAL] |
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Name: |
Xxxxx Xxxxxx |
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Title: |
CFO |
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State of Virginia |
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County of Arlington |
) To Wit: |
Acknowledged before me by Xxxxx Xxxxxx as CFO of On-Site Sourcing, Inc., a Delaware corporation, as the sole manager and member of North Xxxxx Street Realty Company, LLC, a Delaware limited liability company this 3rd day of February, 2003.
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[SEAL] |
/s/ Xxxxxxxxx - Xxxxx |
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Notary Public |
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My commission expires: 6/30/05 |
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