EXHIBIT 10.8
AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"AMENDMENT") is made and entered into as of June 17, 2005, by and among XXXXXX
INDUSTRIES, INC., a Tennessee corporation ("XXXXXX"), and XXXXXX INDUSTRIES
TOWING EQUIPMENT INC., a Delaware corporation and wholly owned subsidiary of
Xxxxxx ("XXXXXX TOWING") (Xxxxxx and Xxxxxx Towing may be referred to herein
individually as a "BORROWER" and together as the "Borrowers"), and XXXXXXX X.
XXXXXX as successor Agent to Harbourside Investments, LLLP (in such capacity,
the "AGENT") for the Lenders from time to time under the Credit Agreement (as
defined below) and as sole lender (the "LENDER").
W I T N E S S E T H:
WHEREAS, the Borrowers entered into that certain Amended and Restated
Credit Agreement dated as of July 23, 2001 with the Lenders signatory thereto
and Bank of America, N.A. as initial agent for the lenders thereunder (the
"ORIGINAL AGENT"), as amended and modified prior to the date hereof pursuant to
(i) that certain Amendment No. 1 to Amended and Restated Credit Agreement dated
as of April 12, 2002, among Borrowers, certain Subsidiaries of Borrowers, the
Original Agent, Bank of America, N.A., Wachovia Bank, N.A., AmSouth Bank and
SunTrust Bank, (ii) that certain letter agreement dated November 19, 2003, by
Contrarian Funds, LLC ("CONTRARIAN") and Bank of America, N.A., (iii) that
certain Amendment No. 3 to Amended and Restated Credit Agreement dated as of
January 14, 2004, among Borrowers, certain Subsidiaries of Borrowers, Contrarian
Funds, LLC as successor agent to the Original Agent and a lender and Harbourside
Investments, LLLP, a Georgia limited liability limited partnership
("HARBOURSIDE") as a Lender, and (iv) that certain Amendment No. 4 to Amended
and Restated Credit Agreement dated as of November 5, 2004, among Borrowers,
certain Subsidiaries of Borrowers and Harbourside as successor agent to
Contrarian and as a lender (as so amended and modified prior to the date hereof,
the "ORIGINAL CREDIT Agreement"); and
WHEREAS, the outstanding principal amount of the original term loan
owing by the Borrowers to the Lender immediately prior to the effectiveness of
this Amendment is $4,293,217.14 (such term loan is referred to herein as the
"EXISTING TERM LOAN"); and
WHEREAS, the Borrowers have requested and, subject to the terms and
conditions set forth herein, the Lender has agreed to make a new term loan to
the Borrowers on the date of this Amendment in the aggregate principal amount of
$5,706,782.86 (such term loan is referred to herein as the "NEW TERM LOAN"), the
proceeds of which are to be used by Borrowers to repay a portion of the
outstanding loans owing to CIT Group/Business Credit, Inc. ("CIT GROUP") as
lender, and to Xxxxxxx X. Xxxxxx as a participant in a portion of the
outstanding loans advanced to the Borrowers and certain of their Subsidiaries,
under that certain Credit Agreement dated as of July 23, 2001, among the lenders
party thereto, CIT Group, as administrative agent, and the Borrowers and certain
of their Subsidiaries, as amended (as so amended, the "CIT CREDIT AGREEMENT").
WHEREAS, Borrowers have requested that the terms of the Original Credit
Agreement and the Loan Documents be further amended in the manner set forth
herein, and the Agent and the sole Lender, subject to the terms and conditions
contained herein, have agreed to such amendments as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Unless the context otherwise requires, all
capitalized terms used herein without definition shall have the definitions
provided therefor in the Original Credit Agreement.
2. AMENDMENTS TO ORIGINAL CREDIT AGREEMENT AND LOAN DOCUMENTS.
Subject to the conditions hereof, the Original Credit Agreement and the other
Loan Documents are hereby amended, effective as of the date hereof, as follows:
A. SECTION 1.1 of the Original Credit Agreement is hereby amended
by adding the following new definitions:
"CIT CREDIT AGREEMENT" has the meaning set forth in the recitals
to the Fifth Amendment.
"CIT GROUP" has the meaning set forth in the recitals to the
Fifth Amendment.
"CONTINUING SUBSIDIARY(IES)" means any Subsidiary that is not a
Discontinued Subsidiary.
"DISCONTINUED SUBSIDIARY" means each Subsidiary set forth on
SCHEDULE 1 to the Fifth Amendment.
"EXISTING TERM LOAN" has the meaning set forth in the recitals
to the Fifth Amendment.
"FIFTH AMENDMENT" means that certain Amendment No. 5 to Amended
and Restated Credit Agreement dated as of the Fifth Amendment Effective Date,
among the Borrowers and Xxxxxxx X. Xxxxxx as successor Agent and sole Lender.
"FIFTH AMENDMENT EFFECTIVE DATE" means June 17, 2005.
"NEW TERM LOAN" has the meaning set forth in the recitals to the
Fifth Amendment.
"NEW TERM NOTE" means that certain Promissory Note dated June
17, 2005 issued by Borrowers to Xxxxxxx X. Xxxxxx in the aggregate principal
amount of the Existing Term Loan and the New Term Loan.
B. SECTION 1.1 of the Original Credit Agreement is hereby further
amended by deleting the definitions of "Base Rate", "Default Rate", "Eligible
Assignee", "Intercreditor
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Agreement", "Notes", "Senior Credit Agreement", "Senior Facility", "Senior
Lenders", "Stated Termination Date" and "Term Loan", and replacing said
definitions with the following new definitions to read in their entirety as
follows:
"BASE RATE" means 9% per annum.
"DEFAULT RATE" means the lesser of (i) a rate of interest per
annum which shall be 2% above the Base Rate, and (ii) the maximum rate permitted
by applicable law.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an affiliate or
Approved Fund of a Lender; and (iii) any other Person approved by the Agent and,
unless an Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 11.1, approved by Xxxxxx;
PROVIDED, HOWEVER, that either Xxxxxx or an affiliate of Xxxxxx may qualify as
an Eligible Assignee.
"INTERCREDITOR AGREEMENT" means that certain Intercreditor and
Subordination Agreement dated as the Fifth Amendment Effective Date by and among
the Agent, for the benefit of itself and the Lenders and the Senior Lender, as
amended, modified, restated or supplemented from time to time.
"NOTES" means the New Term Note, together with any promissory
notes from time to time issued in replacement or substitution thereof.
"SENIOR CREDIT AGREEMENT" means that certain Credit Agreement
dated as of the Fifth Amendment Effective Date between Xxxxxx and Senior Lender,
as amended, restated, modified or supplemented from time to time.
"SENIOR FACILITY" means the revolving credit and term loan
facilities made available to Xxxxxx under the Senior Credit Agreement.
"SENIOR LENDER(S)" means Wachovia Bank, National Association, as
lender under the Senior Credit Agreement, together with its successors and
permitted assigns as lenders under the Senior Credit Agreement.
"STATED TERMINATION DATE" means September 17, 2008.
"TERM LOAN" means individually, each of the Existing Term Loan
and the New Term Loan, as the context may require, and "TERM LOANS" means,
collectively, the Existing Term Loan and the New Term Loan.
C. SECTION 2.1 of the Original Credit Agreement is deleted and
replaced with the following new SECTION 2.1 to read in its entirety as follows:
2.1 TERM LOANS; PAYMENT OF PRINCIPAL.
(a) As of the Fifth Amendment Effective Date and
after giving effect to the transactions to be consummated on the Fifth Amendment
Effective Date, the aggregate outstanding principal amount of the Existing Term
Loan is $4,293,217.14. On the Fifth
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Amendment Effective Date, Lender hereby agrees to make the New Term Loan to the
Borrowers in the aggregate principal amount of $5,706,782.86.
(b) The entire principal amount of the Term Loans
shall be due and payable on the Stated Termination Date.
D. SECTION 2.2 of the Original Credit Agreement is hereby amended
by deleting subparagraph (c) of said Section in its entirety.
E. SECTION 2.4 of the Original Credit Agreement is hereby deleted
and replaced with the following new SECTION 2.4 to read in its entirety as
follows the following:
2.4 NOTES. On the Fifth Amendment Effective Date, the
Borrowers will issue to the Lender the New Term Note evidencing the Term Loan,
substantially in the form of EXHIBIT A attached to the Fifth Amendment. The New
Term Note shall supercede and replace in its entirety that certain Tranche B
Promissory Note dated February 12, 2004 in the original principal amount of
$4,293,217.14 previously issued by the Borrowers to Harbourside.
F. SECTION 2.7 of the Original Credit Agreement is hereby deleted
and replaced with the following new SECTION 2.7 to read in its entirety as
follows the following:
2.7 [Reserved]
G. SECTION 2.8 of the Original Credit Agreement is hereby deleted
and replaced with the following new SECTION 2.8 to read in its entirety as
follows the following:
2.8 USE OF PROCEEDS. The proceeds of the New Term Loan shall
be used by the Borrowers together with the proceeds of the Senior Facility
advanced on the Fifth Amendment Effective Date, to pay off all of the
outstanding indebtedness of Borrowers and their Subsidiaries owing to CIT Group
as lender and to Xxxxxxx X. Xxxxxx as a participant in a portion of the
outstanding loans advanced to the Borrowers and certain of their Subsidiaries,
under the CIT Credit Agreement.
H. SECTION 2.9 of the Original Credit Agreement is hereby deleted
and replaced with the following new SECTION 2.9 to read in its entirety as
follows the following:
2.9 [Reserved]
I. Article VI (Representations and Warranties), Article VII
(Affirmative Covenants), Article VIII (Negative Covenants) and Article IX
(Events of Default) are hereby amended such that each reference to "Subsidiary"
appearing in said Articles shall be deleted and replaced with the term
"Continuing Subsidiary".
J. Schedule 6.4 (Subsidiaries), Schedule 6.6 (Existing\
Indebtedness), Schedule 6.7 (Title to Properties), Schedule 6.10 (Litigation)
and Schedule 6.19 (Employment Matters) are hereby amended and restated in their
entirety as set forth on Annex I attached hereto.
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K. SECTION 7.22 of the Original Credit Agreement is hereby amended
by deleting subparagraph (b) of said Section in its entirety and by amending
subparagraph (a)(i) as follows:
(i) Mortgages, Deeds of Trust or other similar documentation
necessary to grant to the Agent for the benefit of the Agent and
the Lenders a Lien on the real property owned by each Borrower
and each Guarantor (collectively, the "Mortgages") (subject only
to Permitted Liens); PROVIDED, HOWEVER, that (a) a Lien on such
real property is also granted in favor of the Senior Lender and
(b) such Lien in favor of the Agent is junior in priority to any
Lien granted in favor of the Senior Lender in accordance with
and pursuant to the Intercreditor Agreement;
L. SECTION 8.1 of the Original Credit Agreement is hereby deleted
in its entirety. Borrowers hereby agree that they will comply with each of the
financial covenants set forth in Section 9.1 of the Senior Credit Agreement (as
amended, modified, restated or supplemented from time to time) and each such
financial covenants (and any defined terms used therein) shall be incorporated
by reference in this Section 8.1 as if fully set forth herein. Borrowers further
agree that any failure to so comply with such financial covenants shall
constitute an immediate Event of Default hereunder.
M. SECTION 8.4 of the Original Credit Agreement is hereby amended
by deleting subparagraphs (h), (i) and (j) thereof and replacing said
subparagraphs with a new subparagraphs to read in its entirety as follows:
(h) inventory repurchase obligations incurred with respect
to floor plan financing for Independent Distributors;
(i) partial recourse obligations of Xxxxxx incurred with
respect to floor plan financing for Independent Distributors;
(j) Indebtedness in favor of the Senior Lender under the
Senior Facility;
N. SECTION 8.3 of the Original Credit Agreement is hereby amended
by adding the following new paragraph at the end thereof:
In addition to, but not in duplication of, of the foregoing,
Borrowers and their Continuing Subsidiaries shall be permitted to incur, create
or permit to exist any Liens constituting "Permitted Liens" under and as defined
in the Senior Credit Agreement (as amended, modified, restated or supplemented
from time to time).
O. SECTION 8.4 of the Original Credit Agreement is hereby further
amended by adding the following new paragraph at the end thereof:
In addition to, but not in duplication of, of the foregoing,
Borrowers and their Continuing Subsidiaries shall be permitted to incur any
other Indebtedness to the extent permitted under Section 9.3 of the Senior
Credit Agreement (as amended, modified, restated or supplemented from time to
time).
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P. SECTION 8.6 of the Original Credit Agreement is hereby further
amended by adding the following new paragraph at the end thereof:
In addition to, but not in duplication of, of the foregoing,
Borrowers and their Continuing Subsidiaries shall be permitted to make
investments to the extent permitted under Section 9.4 of the Senior Credit
Agreement (as amended, modified, restated or supplemented from time to time).
Q. SECTION 8.19 of the Original Credit Agreement is hereby further
amended by deleting said Section and replacing it with the following new SECTION
8.19 to read in its entirety as follows:
8.19 MODIFICATION OF SENIOR FACILITY. Enter into any
agreement, amendment, increase, extension, renewal, waiver, or other
modification (a "Change") with respect to the Senior Facility (including but not
limited to the Senior Credit Agreement and the other documents related thereto)
without the prior written consent of the Agent and the Lenders if such Change
has the effect of:
(i) increasing the Consolidated Fixed Charge Coverage Ratio
(as defined in the Senior Credit Agreement) required to be maintained by Xxxxxx
under the terms of the Senior Credit Agreement in order to satisfy the
requirements under the definition of "Permitted Payments" in the Intercreditor
Agreement; or
(iii) otherwise specifically prohibiting the payment or
prepayment of any amount of principal to the Lenders hereunder, which payment
would otherwise be permitted under the terms hereof (as in effect on the Fifth
Amendment Effective Date) or under the Intercreditor Agreement.
R. Article IX (Events of Default) is hereby further amended such
that each reference to "$250,000" appearing in said Article shall be deleted and
replaced with "$1,500,000".
S. The Agreement and each of the other Loan Documents are further
amended such that each reference appearing therein to "Senior Agent" or "Senior
Agents" shall be deemed to refer to "Senior Lender".
3. CONTINUING EFFECT OF LOAN DOCUMENTS.
(a) Each Guarantor hereby (i) consents and agrees to the
amendments to the Original Credit Agreement and other Loan Documents set forth
herein and (ii) confirms its joint and several guarantee of payment of all the
Guarantors' Obligations pursuant to the Guaranty.
(b) Each of the Borrowers and Guarantors hereby acknowledge
and agree that each of the Security Instruments (i) remains in full force and
effect and is hereby reaffirmed, (ii) continues to secure all of the Obligations
of the Borrowers and the Guarantors' Obligations pursuant to the Guaranty, as
applicable, and (iii) notwithstanding anything to the contrary in any Security
Instrument, shall remain in effect until the Facility Termination Date.
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4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
certifies that after giving effect to this Amendment:
(a) The Borrowers and each Subsidiary have the power and
authority to execute and perform this Amendment and have taken all action
required for the lawful execution, delivery and performance thereof; and
(b) No event has occurred and no condition exists which has
not been waived which, upon the consummation of the transaction contemplated
hereby, will constitute a Default or an Event of Default on the part of the
Borrowers under the Original Credit Agreement (as amended hereby) or any other
Loan Document (as amended hereby) either immediately or with the lapse of time
or the giving of notice, or both.
5. CONDITIONS TO EFFECTIVENESS. This Amendment shall not be
effective until the following condition shall have been satisfied:
(a) this Amendment shall have been duly executed and
delivered by the Borrowers, the Agent and the Lender;
(b) the Confirmation of Guaranty in the form attached hereto
shall have been duly executed and delivered by each of the Guarantors;
(c) Borrowers shall have duly executed and delivered to
Lender the New Term Note in the form of EXHIBIT A attached hereto;
(d) Lender shall have received an opinion of counsel to
Borrowers in form and scope reasonably satisfactory to Lender as to the due
execution, due authorization and enforceability of this Amendment by Borrowers;
and
Upon the satisfaction of the condition set forth in this SECTION 5, the
Amendment Agreement shall be effective as of the date hereof.
6. ENTIRE AGREEMENT. This Amendment sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated herein, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment may be changed, modified, waived or
canceled orally or otherwise, except as provided in the Original Credit
Agreement as amended hereby.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby
specifically amended, modified or supplemented, the Original Credit Agreement
and the other Loan Documents, each as amended hereby, are hereby confirmed and
ratified in all respects and shall remain in full force and effect according to
their respective terms.
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8. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Delivery of an executed
signature page hereof by facsimile transmission shall be effective as delivery
of a manually executed counterpart hereof.
9. GOVERNING LAW. This Amendment shall in all respects be governed
by, and construed in accordance with, the laws of the State of Georgia.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
11. NO NOVATION. This Amendment is given as an amendment and
modification of, and not as a payment of, the Obligations of the Borrowers under
the Original Credit Agreement and is not intended to constitute a novation of
the Original Credit Agreement. All of the indebtedness, liabilities and
obligations owing by the Borrowers under the Original Credit Agreement (as
amended hereby) and the Guarantor's obligations under the Guaranties, as
applicable, shall continue to be secured by the "Collateral" as defined in the
Original Credit Agreement (as amended hereby) and the Borrowers and the
Guarantors acknowledge and agree that the "Collateral" as defined in the
Original Credit Agreement (as amended hereby) shall continue to constitute
"Collateral" hereunder and remains subject to a security interest in favor of
the Agent for the benefit of itself and the Lenders and to secure such
Obligations and Guarantors' Obligations.
12. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of each of the Borrowers, the Lenders and the Agent and
their respective successors, assigns and legal representatives; PROVIDED,
however, that the Borrowers, without the prior consent of the Agent, may not
assign any rights, powers, duties or obligations hereunder.
[REMAINDER OF PAGE INTENTIONALLY BLANK; NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5
to Amended and Restated Credit Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
BORROWERS:
XXXXXX INDUSTRIES, INC.
By: /s/ J. Xxxxxxx Xxxx
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Name: J. Xxxxxxx Xxxx
------------------------------------
Title: Chief Financial Officer
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XXXXXX INDUSTRIES TOWING EQUIPMENT INC.
By: /s/ J. Xxxxxxx Xxxx
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Name: J. Xxxxxxx Xxxx
------------------------------------
Title: Chief Financial Officer
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AGENT AND LENDER:
XXXXXXX X. XXXXXX, INDIVIDUALLY, AS AGENT
AND SOLE LENDER
/s/ Xxxxxxx X. Xxxxxx
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