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EXHIBIT 10.1
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made and entered into this 26th day of February, 1998, by and between CAPITAL
FACTORS, INC., a Florida corporation (hereinafter referred to as "Borrower")
with its chief executive office and principal place of business at 000 Xxxx
Xxxxxxxx Xxxx Xxxx, 0xx Xxxxx, Xxxx Xxxxx, Xxxxxxx 00000, and FLEET CAPITAL
CORPORATION, a Rhode Island corporation (hereinafter referred to as "Fleet"),
successor-by-merger to Fleet Capital Corporation, a Connecticut corporation
("Old Fleet") with an office at 000 Xxxxxxxx Xxxxxxx, X.X., Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
RECITALS:
Old Fleet and Borrower entered into a certain Loan and Security
Agreement dated as of March 4, 1996 (the "Original Loan Agreement"), pursuant to
which Old Fleet made certain revolving credit loans to Borrower.
Effective May 1, 1996, Old Fleet merged into Fleet Credit Corporation,
a Rhode Island corporation ("Fleet Credit"), with Fleet Credit being the
surviving corporation and having changed its name to "Fleet Capital
Corporation."
Fleet and Borrower amended the Original Loan Agreement pursuant to a
certain First Amendment to Loan and Security Agreement dated July 15, 1996,
between Borrower and Fleet (the "First Amendment").
The parties further amended the Original Loan Agreement as set forth in
a certain First Consolidated Amendment to Loan and Security Agreement dated
August 29, 1997, between Borrower and Fleet (the "Consolidated Amendment"), and
the Consolidated Amendment superseded and replaced the First Amendment in its
entirety (the Original Loan Agreement, as amended by the Consolidated Amendment,
is hereinafter referred to as the "Loan Agreement").
The parties desire to further amend the Loan Agreement as hereinafter
set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
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1. DEFINITIONS. All capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Loan Agreement.
2. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
(a) By deleting the reference to "$40,000,000.00" on the cover
page thereof and by substituting therefor a reference to
"$75,000,000.00."
(b) By deleting the reference to "$40,000,000" in the
introductory paragraph to Section 1 thereof and by substituting
therefor a reference to "$75,000,000."
(c) By deleting the first sentence of Section 2.1.1 thereof
and by substituting therefor the following:
Interest shall accrue on the principal amount of the
Revolver Loans outstanding at the end of each day at a
variable rate per annum equal to 1.25% plus the LIBOR Rate in
effect from time to time.
(d) By deleting Section 2.1.2 thereof in its entirety and by
substituting therefor the following:
2.1.2 Default Rate of Interest. Upon and after the
occurrence of an Event of Default, and during the continuation
thereof, the principal amount of all Revolver Loans (and, to
the extent permitted by Applicable Law, all accrued interest
that is past due) shall, at the election of Lender at any time
without notice, bear interest at a variable rate per annum
equal to 3.25% plus the LIBOR Rate in effect from time to time
(the "Default Rate").
(e) By deleting Section 2.5 thereof in its entirety and by
substituting therefor the following:
2.5. Unused Line Fee. Borrower agrees that, effective
February 26, 1998, if the Average Monthly Loan Balance for any
month is less than $75,000,000, then, to the extent of the
difference (the "Deficiency"), Borrower shall pay to Lender a
fee equal to .25% per annum of the Deficiency. The Unused Line
Fee shall be payable monthly, in arrears, on the first day of
each calendar month.
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(f) By deleting Section 8.1.3 thereof in its entirety and by
substituting therefor the following:
8.1.13. Liquidity.
(i) Maintain in full force and effect with
Capital Holding, Union Planters or any other bank or
financial institution on terms similar to the terms
of the Lines of Credit, an unsecured line of credit
which, when aggregated with the amounts realized in
connection with any initial public offering of the
stock of Capital Holding or Borrower after March 4,
1996, is in an amount not less than $50,000,000.
(ii) Maintain Liquidity of at least
$25,000,000.
(g) By deleting clauses (iii) and (iv) of Section 8.2.3
thereof in their entirety and by substituting therefor the following:
(iii) Debt outstanding from time to time
under the Lines of Credit;
(iv) Debt that is unsecured and outstanding
from time to time under any unsecured line of credit,
whether in replacement of or in addition to either of
the Lines of Credit;
(h) The parties acknowledge and agree that any and all
references to "Capital Bank" in the last paragraph of Section 8.2.3 of
the Loan Agreement shall be deemed to be references to "Union
Planters."
(i) By deleting clause (i) of Section 8.2.17 thereof and by
substituting therefor the following:
(i) no Default or Event of Default exists at the time of or
would result from the conveyance, assignment, transfer or sale
of a participation in such Borrower Advance;
(j) By adding the following new clause (v) and additional text
at the end of Section 8.2.17 thereof
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immediately after the phrase "the Borrower Advance" and
immediately preceding the period at the end of Section 8.2.17:
(v) if an Event of Default exists and Lender nonetheless
consents to the conveyance, assignment, transfer or sale by
Borrower of a participation in any Borrower Advance or the
Transaction Documents or other Collateral relating thereto,
the purchaser, assignee or transferee of such participation or
other interest acknowledges the existence of Lender's security
interest in and Lien upon such Borrower Advance, and
Transaction Documents and other Collateral relating thereto,
and agrees that Lender's security interest in and Lien upon
the Borrower Advance, and the Transaction Documents and other
Collateral relating thereto, shall continue therein despite
such conveyance, assignment, transfer or sale, and to such
other matters as Lender shall reasonably require, all pursuant
to a written agreement that is in form and substance
reasonably acceptable to Lender. At any time that an Event of
Default exists, Borrower agrees to use its reasonable efforts
to cause the holder of a participation or other interest in
any Borrower Advance, or the Transaction Documents or other
Collateral relating thereto, which has not yet done so to
enter into a written agreement with Lender and Borrower
pursuant to which such holder of such participation or other
interest acknowledges the existence of Lender's security
interest in and Lien upon the applicable Borrower Advance, and
Transaction Documents and other Collateral relating thereto,
agrees that Lender's security in and Lien upon the Borrower
Advance, and the Transaction Documents and other Collateral
relating thereto, shall continue therein despite such
conveyance, assignment, transfer or sale, and agrees to such
other matters as Lender shall reasonably require. In the event
that the holder of such participation or other interest does
not enter into such an agreement with Borrower and Lender in
the circumstances described in the preceding sentence,
Borrower agrees that Lender may, at its election, choose not
to treat the Borrower Advances in which such holder has a
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participation or other interest as Qualified Borrower
Advances.
(k) By deleting the definition of "Borrowing Base" in Appendix
A thereto and by substituting therefor the following:
Borrowing Base - on any date of determination
thereof, an amount equal to the lesser of:
(i) $75,000,000; or
(ii) an amount equal to:
(a) 90% of the Net Amount of Qualified
Borrower Advances outstanding at such date;
MINUS
(b) the Availability Reserve.
(l) By deleting the definition of "Capital Bank" in Appendix A
thereto.
(m) By adding the following new definitions to Appendix A
thereto in the proper alphabetical sequence:
Line of Credit Documents - the Capital Holding Line
of Credit Documents and the UPC Line of Credit Documents.
Line of Credit Notes - the Capital Holding Line of
Credit Note and the UPC Line of Credit Note.
Lines of Credit - the Capital Holding Line of Credit
and the UPC Line of Credit.
Union Planters - Union Planters Bank of Florida
(formerly known as Capital Bank).
UPC Line of Credit - the unsecured line of credit
from UPC in favor of Borrower under the UPC Line of Credit
Documents.
UPC Line of Credit Documents - the UPC Line of Credit
Note and any and all other documents, agreements and
instruments heretofore, now or hereafter executed by Borrower
in respect to the UPC Line of
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Credit.
UPC Line of Credit Note - the promissory note dated
January 2, 1998, made by Borrower to the order of UPC in the
original principal amount of $150,000,000.
UPC - Union Planters Corporation, a Tennessee
corporation.
(n) By deleting the definition of "Liquidity" in Appendix A
thereto and by substituting therefor the following:
Liquidity - at any date of determination, the sum of
Availability plus the unutilized amount under the Lines of
Credit (or any line or lines of credits substituted therefor
in accordance with the Agreement).
(o) Lender acknowledges that, effective December 31, 1997,
Parent was merged with and into Union Planters Corporation, a Tennessee
corporation ("UPC"), with UPC being the surviving corporation of such
merger, and that the same shall not be deemed to constitute a Default
or an Event of Default under the Loan Agreement. The parties
acknowledge and agree that from and after January 19, 1998, any and all
references in the Loan Agreement to the term "Parent" shall be deemed
to be references to UPC. The parties further acknowledge that,
effective January 19, 1998, Capital Bank changed its name to Union
Planters Bank of Florida ("Union Planters"), and that from and after
December 31, 1997, any and all references in the Loan Agreement to
"Capital Bank" that are not otherwise dealt with specifically in this
Amendment shall be deemed to be references to Union Planters.
3. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and
reaffirms each of the Loan Documents and all of Borrower's covenants, duties and
liabilities thereunder.
4. ACKNOWLEDGMENTS AND STIPULATIONS. Borrower acknowledges and
stipulates that the Loan Agreement and the other Loan Documents executed by
Borrower are legal, valid and binding obligations of Borrower that are
enforceable against Borrower in accordance with the terms thereof; and the Liens
granted by Borrower in the Collateral in favor of Fleet are duly perfected,
first priority Liens.
5. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Fleet, to induce Fleet to enter into this
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Amendment, that, after giving effect to the amendments set forth in Section 2
hereof, no Default or Event of Default exists on the date hereof; the execution,
delivery and performance of this Amendment have been duly authorized by all
requisite corporate action on the part of Borrower and this Amendment has been
duly executed and delivered by Borrower; and all of the representations and
warranties made by Borrower in the Loan Agreement are true and correct on and as
of the date hereof.
6. EFFECTIVENESS; GOVERNING LAW. This Amendment shall be effective upon
acceptance by Fleet in Atlanta, Georgia, whereupon the same shall be governed by
and construed in accordance with the internal laws of the State of Georgia.
7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
8. NO NOVATION, ETC.. Except as otherwise expressly provided in this
Amendment, nothing herein shall be deemed to amend or modify any provision of
the Loan Agreement, any of the Other Agreements or any of the Security
Documents, each of which shall remain in full force and effect. This Amendment
is not intended to be, nor shall it be construed to create, a novation or accord
and satisfaction, and the Loan Agreement as herein modified shall continue in
full force and effect.
9. COUNTERPARTS; TELECOPIED SIGNATURES. This Amendment may be executed
in any number of counterparts and by different parties to this Agreement on
separate counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute one and the same agreement.
Any signature delivered by a party by facsimile transmission shall be deemed to
be an original signature hereto.
10. FURTHER ASSURANCES. Borrower agrees to take such further actions as
Fleet shall reasonably request from time to time in connection herewith to
evidence the amendments set forth herein to the Loan Agreement.
11. SECTION TITLES. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
12. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO THIS
AMENDMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the
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date first written above.
CAPITAL FACTORS, INC.
("Borrower")
By: /s/ Xxxxxx Xxxxxx
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XXXXXX XXXXXX,
Senior Vice President
Accepted and agreed to in Atlanta, Georgia, this _____ day of February,
1998.
FLEET CAPITAL CORPORATION
("Fleet")
By:
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Title:
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CONSENT AND REAFFIRMATION
The undersigned guarantor of the Obligations of Borrower at any time
owing to Fleet hereby: (i) acknowledges receipt of a copy of the foregoing
Second Amendment to Loan and Security Agreement; (ii) consents to Borrower's
execution and delivery thereof; (iii) agrees to be bound thereby; and (iv)
affirms that nothing contained therein shall modify in any respect whatsoever
its guaranty of the Obligations and reaffirms that such guaranty is and shall
remain in full force and effect.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of such Second Amendment to Loan and
Security Agreement.
CAPITAL FACTORS HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
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XXXX X. XXXXXX, President
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CAPITAL FACTORS, INC.
ASSISTANT SECRETARY'S CERTIFICATE
OF
BOARD OF DIRECTORS RESOLUTIONS
I, Xxxxxxx X. Xxxxxx, DO HEREBY CERTIFY, that I am the Assistant
Secretary of Capital Factors, Inc. (the "Corporation"), a corporation duly
organized and existing under and by virtue of the laws of the State of Florida
and am keeper of the records and seal thereof; that the following is a true,
correct and compared copy of the resolutions duly adopted by the unanimous
consent of all members of the Board of Directors of said Corporation effective
as of February 27, 1998; and that said resolutions are still in full force and
effect:
RESOLVED, that the (i) making, execution and delivery to Fleet Capital
Corporation ("Lender") of (1) a Second Amendment to Loan and Security Agreement
(the "Amendment") providing for the amendment of certain terms of that certain
Loan and Security Agreement dated as of March 4, 1996, between the Corporation
and Lender, as amended (the "Loan Agreement"), in the form annexed hereto as
Annex 1, and (2) all other agreements, documents and instruments contemplated by
or referred to in the Amendment or executed by the Corporation in connection
therewith; and (ii) the carrying out, modification, amendment or termination of
any arrangements or agreements at any time existing between the Corporation and
Lender, are hereby ratified and approved.
RESOLVED, that the Loan Agreement and each amendment to the Loan
Agreement heretofore executed by any officer or director of the Corporation and
any actions taken under the Loan Agreement as thereby amended are hereby
ratified and approved.
I DO FURTHER CERTIFY that Xxxx X. Xxxxxx is the President of the
Corporation, Xxxxxx Xxxxxx is the Senior Vice President of Corporation and
Xxxxxxx X. Xxxxxx is the Assistant Secretary of the Corporation and each is duly
elected, qualified and acting as such, respectively.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of
the Corporation, as of February 27, 1998.
/s/Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX,
Assistant Secretary
[CORPORATE SEAL]
I, Xxxx X. Xxxxxx, President of said Corporation, do hereby certify
that the foregoing is a correct copy of the resolutions passed by the Board of
Directors of the Corporation and that Xxxxxxx X. Xxxxxx is Assistant Secretary
of the Corporation and is duly authorized to attest to the passage of said
resolutions.
/s/Xxxx X. Xxxxxx
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XXXX X. XXXXXX, President
