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Exhibit 10.1
FIFTH AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
FIFTH AMENDMENT, dated as of October 8, 1998 (this
"Amendment"), by and among SIRROM INVESTMENTS, INC., a Tennessee corporation
(the "Borrower"), SIRROM CAPITAL CORPORATION, a Tennessee corporation (the
"Guarantor"), the lenders party to the Existing Loan Agreement (as defined
below) (the "Lenders"), and FIRST UNION NATIONAL BANK (f/k/a FIRST UNION
NATIONAL BANK OF TENNESSEE), as agent for the Lenders thereunder (in such
capacity, the "Agent"), to the Existing Loan Agreement. Capitalized terms used
but not otherwise defined herein shall have the meanings given to them in the
Existing Loan Agreement.
STATEMENT OF PURPOSE
The Borrower, the Guarantor, the Lenders and the Agent are
parties to that certain Fourth Amended and Restated Loan Agreement, dated as of
August 16, 1996 (as heretofore amended, supplemented or otherwise modified, the
"Existing Loan Agreement"; as amended by this Amendment, the "Loan Agreement").
The Borrower and the Guarantor have requested that the
Existing Loan Agreement be amended to reduce the aggregate Commitments to Fifty
Million Dollars ($50,000,000), and to make certain other modifications in the
Loan Agreement as more fully set forth herein, and the Agent and the Lenders
parties hereto are willing to agree to such amendments on the terms, and subject
to the conditions, set forth herein.
Accordingly, the Borrower, the Guarantor, the Required Lenders
and the Agent hereby agree that the Existing Loan Agreement is hereby amended as
follows:
SECTION 1. Amendments to Loan Agreement. (a) Section 1.1 of
the Existing Loan Agreement is hereby amended by (i) deleting the definition of
"Aggregate Commitment" set forth therein and substituting in lieu thereof the
following new definition in the appropriate alphabetical order:
""Aggregate Commitment" means the aggregate amount of
the Lenders' Commitments hereunder, as such amount may be reduced at
any time or from time to time pursuant to the terms hereof. As of the
Fifth Amendment Effective Date, the Aggregate Commitment shall be
Fifty Million Dollars ($50,000,000)."; and
(ii) adding the following new definitions in the appropriate
alphabetical order:
"Fifth Amendment" means the Fifth Amendment, dated as
of October 8, 1998, to this Agreement.
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"Fifth Amendment Effective Date" means the "Amendment
Effective Date", as defined in Section 4 of the Fifth Amendment.
""Identified Assets" means, collectively, all of the
business, assets and property (including, without limitation,
intangible assets and goodwill) of the Guarantor and the Borrower
primarily utilized in the businesses known as (a) Xxxxxx Xxxxxxxx & Co.
and similar investment banking businesses, (b) the "Tandem" division of
the Guarantor, and (c) the Canadian business currently operated as a
joint venture between the Guarantor and Toronto Dominion Bank."
""Net Proceeds" means (i) the aggregate cash
consideration received by the Guarantor, the Borrower or a Subsidiary
thereof in connection with any transaction referred to in Section
2.4(e) less (ii) the expenses (including out-of-pocket expenses)
incurred by the Guarantor, the Borrower or such Subsidiary in
connection with such transaction (including, in the case of any
issuance of debt or equity securities, underwriters' commissions and
fees) and the amount of any federal and state taxes incurred in
connection with such transaction, in each case as certified by an
executive officer of the Borrower to the Agent at the time of such
transaction."
(b) Section 2.4 of the Existing Loan Agreement is hereby
amended by adding at the end thereof the following new clause (e):
"(e) Unless the Required Lenders otherwise agree, the
Borrower shall prepay the Loans, and the Commitments shall be
automatically and permanently reduced, in an amount equal to (i) 100%
of the Net Proceeds of any sale, lease, assignment, exchange or other
disposition for cash of, or of any pledge, mortgage, hypothecation or
other financing secured by, any Identified Assets or portion thereof
(including, without limitation, insurance proceeds paid as a result of
any destruction, casualty or taking of any Identified Asset or portion
thereof), and (ii) 100% of the Net Proceeds of any sale or issuance of
debt securities, or equity securities, in either case by the Guarantor
or the Borrower or any Subsidiary thereof, whether in a public
offering, a private placement or otherwise. Nothing in this Section
2.4(e) shall be construed to derogate any restriction or limitation
contained in any Loan Document imposed on any transaction of the types
described in this Section 2.4(e), including without limitation the
restrictions set forth in Sections 9.6 and 9.8 hereof."
(c) Section 6.1 of the Existing Loan Agreement is hereby
mended by adding at the end thereof the following new clause (d) to read in its
entirety as follows:
"(d) As soon as practicable but in any event within
five (5) Business Days following the Fifth Amendment Effective Date,
and on the first Business Day of each month thereafter, the Credit
Parties shall furnish to the Agent and each Lender the following:
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(i) Cash flow projections (including a
summary of sources and uses of cash) for each of the Borrower,
and of the Guarantor and its consolidated Subsidiaries, in
each case on a month by month basis for the period of three
months following the Fifth Amendment Effective Date and each
later date such projections are provided, showing in
reasonable detail the Credit Parties' projected funding
requirements for such periods (including loan repayments), and
otherwise in form and substance reasonably satisfactory to the
Agent;
(ii) A schedule of the loan proposals with
respect to which the Borrower has committed or proposed to
make loans, setting forth the Person or Persons which would be
the borrower or obligor on such anticipated loan, the amount
of such anticipated loan and the expected funding date of such
anticipated loan, together with, if requested, copies of the
offer letters, term sheets or other similar instruments
relating to such anticipated loans; and
(iii) A schedule of existing loan facilities
made available by the Borrower with respect to which there are
unfunded lending commitments, setting forth the borrower or
obligor on such loan facilities, the amount of such loan
facilities and the unfunded portion thereof, and the expected
funding date of such unfunded portion."
(d) Section 6.4 of the Existing Loan Agreement is hereby
amended by deleting the word "and" at the end of clause (d), and by adding
immediately after clause (d) thereof the following new clauses (e) and (f) to
read in their entirety as follows:
"(e) Promptly after the funding of any loans by the
Borrower after the Fifth Amendment Effective Date, a copy of (i) the
commitment letter, term sheet or similar instrument with respect to
such loan, and (ii) the Borrower's underwriting memorandum ("sideways
sheet") with respect to such loan; and
(f) Promptly after any transfer of any portfolio
loans or securities of the Borrower or any Subsidiary to any other
Person, written notice of such transfer, setting forth the
identification of such loan or security, the principal amount and
market value thereof, and the terms of such transfer (including the
sale price or other consideration received in connection with such
transfer), it being understood that nothing in this Section 6.4(f)
shall be construed to derogate any restriction or limitation contained
in any Loan Document imposed on any transfer of any portfolio loans or
securities of the Borrower or any Subsidiary, including without
limitation the restrictions set forth in Section 9.6 hereof; and";
and by redesignating clause (e) as clause (g) thereof.
(e) Schedule 1 to the Existing Agreement is hereby amended by
deleting such Schedule 1 in its entirety and substituting in lieu thereof
Schedule 1 to this Amendment.
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SECTION 2. Reservation of Rights. Upon the effectiveness of
this Amendment, the letter from the Agent to the Borrower, dated September 29,
1998, shall be automatically rescinded and be of no further force or effect. The
Agent and the Lenders parties hereto hereby advise the Borrower that the Agent
and the Lenders do not waive any Events of Default which may exist, and that the
current non-exercise of rights, remedies, powers and privileges by the Agent and
the Lenders under the Loan Documents and applicable law with respect to such
Events of Default, if any, shall not be, and shall not be construed as, a waiver
thereof, and the Agent and the Lenders reserve their rights (i) fully to invoke
any and all such rights, remedies, powers and privileges under the Loan
Documents and applicable law at any time any of them deems appropriate in such
respect of any Events of Default that may exist, (ii) to refuse to make
available any further extensions of credit except in strict accordance with the
terms of the Loan Documents (including Section 4.3(a) of the Loan Agreement) and
(iii) to require that all Loans bear interest at the rates specified in the
Credit Agreement (including Section 3.1(c) of the Loan Agreement). Nothing in
this Amendment, and no extension of credit made by the Lenders on or after
September 30, 1998, shall be construed as an acknowledgment or determination by
the Agent or any Lender that, since December 31, 1995, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of the Credit Parties and their Subsidiaries
and no event has occurred or condition arisen that could reasonably be expected
to have a Material Adverse Effect.
SECTION 3. Reaffirmation of the Guaranty and Parent Pledge
Agreement. The Guarantor, as guarantor under the Loan Agreement and as pledgor
under the Parent Pledge Agreement, (a) agrees to the terms of this Amendment and
all other documents, instruments, and agreements executed, delivered, or
otherwise provided in connection with this Amendment, (b) expressly ratifies and
reaffirms (i) its guaranty of the Obligations and (ii) its pledge made pursuant
to the terms and provisions of the Parent Pledge Agreement, and (c) agrees that
its obligations hereunder and under the Loan Documents, as amended by this
Amendment, are absolute, without right of setoff, and shall in no way be
affected or impaired for any reason, including, without limitation, the
execution and delivery of this Amendment.
SECTION 4. Conditions to Effectiveness of Amendment. This
Amendment shall become effective on the date (the "Amendment Effective Date") on
which the Agent shall have received this Amendment, executed and delivered by a
duly authorized officer of the Borrower, the Guarantor, the Required Lenders,
and the Agent.
SECTION 5. Delivery of Amendment to SBA. Pursuant to the terms
and provisions of the Intercreditor Agreement, the Agent shall deliver an
executed copy of this Amendment to the SBA following the Amendment Effective
Date.
SECTION 6. Certain Fees and Expenses. The Credit Parties
hereby agree, notwithstanding anything to the contrary set forth in the Loan
Documents (including, without limitation, Section 7.11(b) of the Loan
Agreement), to pay the reasonable fees and expenses (not to exceed $20,000) of
portfolio and process auditors retained by the Agent and the
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Lenders from and after the date hereof in connection with a review of the
portfolios of the Credit Parties and the businesses conducted by them, to be
undertaken reasonably promptly following the date hereof.
SECTION 7. Limited Effect. Except as expressly amended and
modified by this Amendment, the Existing Loan Agreement shall continue to be,
and shall remain, in full force and effect in accordance with its terms.
SECTION 8. Counterparts. This Amendment may be executed by the
parties hereto on any number of separate counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
instrument.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NORTH
CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the Borrower, the Guarantor, the Lenders
and the Agent have caused this Fifth Amendment to be duly executed and delivered
by their duly authorized officers, all as of the day and year first above
written.
Borrower:
SIRROM INVESTMENTS, INC.
By /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
Guarantor:
SIRROM CAPITAL CORPORATION
By /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
Fifth Amendment Signature Pages
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Agent:
FIRST UNION NATIONAL BANK, AS AGENT
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Lenders:
FIRST UNION NATIONAL BANK, AS LENDER
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
FIRST AMERICAN NATIONAL BANK
By /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name:
Title:
AMSOUTH BANK
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
By /s/ J. Xxxx Xxxxxx
------------------------------------
Name: J. Xxxx Xxxxxx
Title: Vice President
Fifth Amendment Signature Pages
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BANK OF AMERICA, FSB
By /s/ Xxxxx Xxxxxx
------------------------------------
Name:
Title:
BANK ONE KENTUCKY, N.A.
By /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Title: First Vice President
CHASE BANK OF TEXAS
By /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
Fifth Amendment Signature Pages
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FLEET BANK, N.A.
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
UNION BANK OF CALIFORNIA, N.A.
By /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Fifth Amendment Signature Pages
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ACKNOWLEDGED, ACCEPTED AND CONSENTED TO:
THE SMALL BUSINESS ADMINISTRATION
By:
---------------------------------
Name:
Title:
Fifth Amendment Signature Pages
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SCHEDULE 1 TO FIFTH AMENDMENT
Schedule 1 to
the Loan Agreement
LENDERS AND COMMITMENTS
AND ADDRESSES FOR NOTICE
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LENDER COMMITMENT AND COMMITMENT PERCENTAGE
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Commitment Commitment
Percentage
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First Union National Bank $14,000,000 28%
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First American National Bank $3,000,000 6%
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AmSouth Bank of Tennessee $6,000,000 12%
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First Tennessee Bank National Association $3,000,000 6%
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Bank of America, FSB $4,000,000 8%
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Bank One Kentucky, N.A. $4,000,000 8%
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Chase Bank of Texas $4,000,000 8%
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The First National Bank of Chicago $4,000,000 8%
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Fleet Bank, N.A. $4,000,000 8%
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Union Bank of California, N.A. $4,000,000 8%
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Total: $50,000,000 100%
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LENDER ADDRESS
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First Union National Bank 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention:
Telephone:
Telecopy:
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First American National Bank First American Center, 00xx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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AmSouth Bank 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
copy to:
0000 0xx Xxx. Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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First Tennessee Bank National Association Xxxx Xxxxxx Xxx 00000
Xxxxxxxxx, XX 00000
Attention: J. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Bank of America, FSB 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx/Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000/(000) 000-0000
Telecopy: (000) 000-0000
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Bank One Kentucky, N.A. Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Chase Bank of Texas [Address]
[Address]
Attention:
Telephone:
Telecopy:
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The First National Bank of Chicago Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Fleet Bank, N.A. 000 Xxxx Xxxxxx X0X0X00
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx/Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000 or 6933
Telecopy: (000) 000-0000
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Union Bank of California, N.A. 000 Xxxxxxxxxx Xxxxxx X-000
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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