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EXHIBIT 10.4
THIRD AMENDMENT
TO
THIRD AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Third Amendment dated as of May 14, 1999 to the Third Amended and Restated
Revolving Credit Agreement (the "Third Amendment"), by and among HPSC, INC., a
Delaware corporation (the "Borrower"), AMERICAN COMMERCIAL FINANCE COMPANY, a
Delaware corporation (the "Guarantor" or "ACFC"), BANKBOSTON, N.A. and the other
lending institutions listed on SCHEDULE 1 to the Credit Agreement (as
hereinafter defined) (the "Banks"), and BankBoston, N.A. as agent for the Banks
(in such capacity, the "Agent"), amending certain provisions of the Third
Amended and Restated Revolving Credit Agreement dated as of March 16, 1998 (as
amended and in effect from time to time, the "Credit Agreement") by and among
the Borrower, the Guarantor, the Banks and the Agent. Terms not otherwise
defined herein which are defined in the Credit Agreement shall have the same
respective meanings herein as therein.
WHEREAS, the Borrower and the Banks have agreed to modify certain terms and
conditions of the Credit Agreement as specifically set forth in this Third
Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SS.1. Amendment to Section 1 of the Credit Agreement.
(a) Section 1.1 of the Credit Agreement is hereby amended by deleting the
following definitions in their entirety and restating such definitions as
follows:
Revolving Credit Loan Maturity Date. May 12, 2000.
Term Loan Maturity Date. May 11, 2001.
(b) Section 1.1 of the Credit Agreement is hereby amended by deleting
clause (y) of the proviso to the definition of "Borrowing Base" and replacing it
with the following new clause (y): "(y) (A) the aggregate amount of pre-approved
specific use personally guaranteed line of credit receivables included as
Eligible Accounts Receivable shall not exceed $20,000,000 and (B) the aggregate
amount of Practice Receivables included as Eligible Accounts Receivable shall
not exceed $30,000,000."
(c) Section 1.1 of the Credit Agreement is hereby amended by deleting
clause (ii) of the last sentence of the definition of "Eligible Accounts
Receivable" and replacing it with the following new clause (ii): "(ii) (A) the
maximum aggregate amount of pre-approved specific use personally guaranteed
lines of credit receivables which may be
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treated as Eligible Accounts Receivable is $20,000,000 and (B) the maximum
aggregate amount of Practice Receivables which may be treated as Eligible
Accounts Receivable is $30,000,000."
SS.2. Amendment to Section 4.3 of the Credit Agreement. Section 4.3 of the
Credit Agreement is hereby amended by changing the date "June 30, 1999" to "June
30, 2000".
SS.3. Amendment to Section 10 of the Credit Agreement. Section 10 of the
Credit Agreement is hereby amended as follows in the sub-sections indicated:
(a) Section 10.3(e) is hereby amended by changing the words "the Closing
Date" in the fifth line thereof to "May 14, 1999".
(b) Section 10.4 is hereby amended by changing the figure "$3,000,000" in
the fifth line thereof to "$4,000,000".
SS.4. Amendment to Section 11 of the Credit Agreement. Section 11 of the
Credit Agreement is hereby amended as follows in the sub-sections indicated:
(a) Section 11.1 is hereby amended by changing the ratio in the last line
thereof from "6.00:1.00" to "7.00:1.00".
SS.5. Amendment to Schedule to Credit Agreement. Schedule 1 to the Credit
Agreement is hereby amended by replacing the existing Schedule 1 with the new
Schedule 1 attached hereto.
SS.6. Amendment to Certain Exhibits to Credit Agreement. Exhibit B-1 to the
Credit Agreement is hereby amended by replacing the date "March 15, 1999" on the
first line thereof with the date "May 14, 1999". EXHIBIT B-2 to the Credit
Agreement is hereby amended by replacing the date "May 14, 1999" on the first
line thereof with the date "May 12, 2000".
SS.7. Conditions to Effectiveness. This Third Amendment shall not become
effective until the Agent receives (a) a counterpart of this Third Amendment,
executed by the Borrower, the Guarantor and each of the Banks, (b) revolving
credit notes of the Borrower dated as of May 14, 1999 and otherwise in
substantially the form of exhibit B-1 to the Credit Agreement and completed with
appropriate insertions (the "Revolving Credit Notes"), (c) certificates executed
by the respective secretaries of the Borrower and the Guarantor (i) confirming
that the charter and by-laws of each of the Borrower and the Guarantor have not
been amended since the Closing Date, (ii) as to evidence that all necessary
corporate action for the valid execution and delivery of this Third Amendment
shall have been duly and effectively taken by the Borrower and the Guarantor,
(iii) as to the incumbency and signature of the officers signing this Third
Amendment on behalf of the Borrower and the Guarantor and (iv) certifying as to
the continuing accuracy of the
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Perfection Certificates, (d) a favorable legal opinion, dated as of the date
hereof, in form and substance satisfactory to the Agent from Hill & Xxxxxx,
counsel to the Borrower and the Guarantor, (e) such UCC-3 continuation
statements and UCC-1 financing statements as the Agent shall request, and (f)
for the account of each Bank, an amendment fee equal to .05% of such Bank's
Commitment.
SS.8. Representations and Warranties. The Borrower hereby repeats, on and
as of the date hereof, each of the representations and warranties made by it in
ss.8 of the Credit Agreement, and such representations and warranties remain
true as of the date hereof (except to the extent of changes resulting from
transactions contemplated or permitted by the Credit Agreement and the other
Loan Documents, and to the extent that such representations and warranties
relate expressly to an earlier date), provided, that all references therein to
the Credit Agreement shall refer to such Credit Agreement as amended hereby. In
addition, the Borrower hereby represents and warrants that the execution and
delivery by the Borrower of this Third Amendment and the performance by the
Borrower of all of its agreements and obligations under the Credit Agreement as
amended hereby are within the corporate authority of the Borrower and has been
duly authorized by all necessary corporate action on the part of the Borrower.
SS.9. RATIFICATION, Etc. Except as expressly amended hereby, the Credit
Agreement, the Security Documents and all documents, instruments and agreements
related thereto are hereby ratified and confirmed in all respects and shall
continue in full force and effect. The Credit Agreement and this Third Amendment
shall be read and construed as a single agreement. All references in the Credit
Agreement or any related agreement or instrument (a) to the Credit Agreement
shall hereafter refer to the Credit Agreement as amended hereby and (b) to
Revolving Credit Notes shall hereafter refer to the Revolving Credit Notes
issued pursuant to ss.7 of this Third Amendment.
SS.10. No Waiver. Nothing contained herein shall constitute a waiver of,
impair or otherwise affect any Obligations, any other obligation of the Borrower
or any rights of the Agent or the Banks.
SS.11. Counterparts. This Third Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but which together shall
constitute one and the same instrument.
SS.12. Governing Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(WITHOUT REFERENCE TO CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the undersigned have duly executed this Third Amendment
as a sealed instrument as of the date first set forth above.
HPSC, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President,
Chief Financial Officer
BANKBOSTON, N.A., individually and as Agent
By: /s/ Xxxxxx X. Xxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Director
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MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Assistant Vice President
NATIONAL BANK OF CANADA
By: /s/ A. Xxxxx Xxxxxxx
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Name: A. Xxxxx Xxxxxxx
Title: Vice President and Manager
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice President
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Ratification by Guarantor
The undersigned Guarantor hereby acknowledges and consents to the foregoing
Third Amendment as of May 14, 1999 and agrees that the Guaranty dated as of June
23, 1994 from the undersigned in favor of the Agent and each of the Banks, as
amended by Omnibus Amendment No. 3 to Security Documents, dated March 16, 1998,
and each of the other Security Documents to which it is a party remain in full
force and effect, and the Guarantor confirms and ratifies all of its obligations
thereunder.
AMERICAN COMMERCIAL
FINANCE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Chairman
