1
Exhibit f.14
SECOND AMENDMENT TO
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO LOAN AGREEMENT, dated as of the 8th day of
October, 1997 (this "Second Amendment"), to the Loan Agreement referred to below
is entered into by and among SIRROM INVESTMENTS, INC., a corporation organized
under the laws of Tennessee (the "Borrower"), SIRROM CAPITAL CORPORATION, a
corporation organized under the laws of Tennessee (the "Guarantor"), the Lenders
party hereto (the "Lenders"), and FIRST UNION NATIONAL BANK (f/k/a FIRST UNION
NATIONAL BANK OF TENNESSEE), a national banking association, as Agent for the
Lenders (the "Agent").
Statement of Purpose
Certain of the Lenders have made certain loans to the Borrower pursuant
to the Fourth Amended and Restated Loan Agreement dated as of August 16, 1996
(as amended by the First Amendment to Loan Agreement dated as of November 19,
1996, and as further amended, modified or supplemented from time to time, the
"Loan Agreement") by and among the Borrower, the Guarantor, the Lenders party
thereto (the "Initial Lenders") and the Agent.
The Borrower and the Guarantor have requested, and the Agent and the
Initial Lenders have agreed, to amend the Loan Agreement and certain of the
other Loan Documents to provide for, among other matters, (i) the confirmation
of the provisions of the Waiver and Extension Letter dated January 17, 1997, a
copy of which is attached hereto as Schedule A (the "Waiver and Extension
Letter"), from the Agent to the Borrower and the Guarantor providing for the
extension of the Termination Date under the Loan Agreement, (ii) the increase in
the Aggregate Commitment, (iii) a revision to the calculation of the Borrowing
Base, (iv) a revision to the criteria for the Borrower's Valuation Method, (v)
the addition of certain Lenders to the Loan Agreement, (vi) the reaffirmation
and clarification of certain of the collateral granted under the Borrower Pledge
Agreement and (vii) certain other amendments provided for herein, said amendment
being pursuant to the terms and conditions of this Second Amendment.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1.01 Capitalized Terms. Except as otherwise provided in this Second
Amendment, all capitalized undefined terms used in this Second Amendment shall
have the meanings assigned thereto in the Loan Agreement.
2
2.01 Amendments to Loan Agreement. The parties hereto acknowledge that
it is the intention of this Second Amendment (i) to confirm the provisions of
the Waiver and Extension Letter which provided for the extension of the
Termination Date under the Loan Agreement, (ii) to increase the Aggregate
Commitment, (iii) to provide for the addition of certain Lenders to the Loan
Agreement and (iv) to amend certain other provisions of the Loan Agreement.
Without limiting the generality of the foregoing, the Loan Agreement shall be
amended as follows:
(a) Loan Amounts. It is acknowledged that immediately prior to the
effectiveness of this Second Amendment (i) the Aggregate Commitment shall equal
$50,000,000 and (ii) the Swingline Commitment shall equal $5,000,000. Upon the
effectiveness of this Second Amendment, (i) the Aggregate Commitment shall equal
$125,000,000 and (ii) the Swingline Commitment shall equal $10,000,000. Any
reference in any Loan Document to the Aggregate Commitment or to the amount of
the Loans under the Credit Agreement of up to an aggregate principal amount of
$50,000,000 shall be deemed to refer to the Aggregate Commitment as set forth in
this Second Amendment or to the amount of the Loans under the Credit Agreement
of up to an aggregate principal amount of $125,000,000 and any reference in any
Loan Document to the Swingline Commitment or to the amount of the Swingline
Loans under the Credit Agreement of up to an aggregate principal amount of
$5,000,000 shall be deemed to refer to the Swingline Commitment as set forth in
this Second Amendment or to the amount of the Swingline Loans under the Credit
Agreement of up to an aggregate principal amount of $10,000,000.
(b) Schedules.
(i) Schedules to Credit Agreement. Attached hereto are copies
of each Schedule referenced in the Loan Agreement revised to include
all information required to be provided therein, including, without
limitation, any information required to be provided pursuant to this
Second Amendment. Each reference to a Schedule in the Loan Agreement
which indicates that the information provided therein is true as of the
Closing Date shall be deemed to be a reference to such information as
of the closing date of this Second Amendment.
(ii) Schedules to Security Documents. Attached hereto are copies of
(i) Schedule I referenced in each Pledge Agreement revised to include
all information required to be provided therein, including, without
limitation, any information required to be provided pursuant to this
Second Amendment and (ii) Schedule 1, Schedule 2 and Schedule 3
referenced in the Security Agreement revised to include all information
required to be provided therein, including, without limitation, any
information required to be provided pursuant to this Second Amendment.
Each reference to Schedule
2
3
I in each Pledge Agreement and Schedule 1, Schedule 2 and Schedule 3 in
the Security Agreement which indicates that the information provided
therein is true as of the Closing Date shall be deemed to be a
reference to such information as of the closing date of this Second
Amendment.
(iii) Commitments. The Borrower and the Lenders hereby acknowledge
that upon the effectiveness of this Second Amendment the Revolving
Credit Commitment of each Lender shall be as set forth on Schedule 1
attached hereto.
(c) Lenders. The parties hereto acknowledge that each Lender not party
to the Loan Agreement prior to the date of this Second Amendment shall be a
Lender under the Loan Agreement and shall have all of the rights and obligations
of a Lender under the Loan Agreement and the other Loan Documents.
(d) Amendment to Reflect Confirmation of Waiver and Extension Letter.
In connection with the terms and provisions of the Waiver and Extension Letter,
the parties hereto hereby agree as follows:
(i) It is understood that the provisions of the Waiver and
Extension Letter pertain only to the first request of the Borrower to
extend the date set forth in subsection (a) of Section 2.7 and shall
not be deemed to be a waiver of, or consent to, a modification or
amendment of, any other term or condition of the Loan Agreement
(including, without limitation, any request at a later date to modify
or amend any term or condition of Section 2.7 of the Loan Agreement).
Accordingly, the Loan Agreement is hereby amended by deleting the
reference to "December 28, 1998" in subsection (a) of Section 2.7 of
the Loan Agreement and inserting "May 31, 2000" in lieu thereof.
(ii) In addition, as set forth in the Waiver and Extension Letter,
the parties hereto agree that the Borrower may pursuant to the terms of
Section 2.7 of the Loan Agreement request two additional one-year
extensions of the date set forth in clause (a) of Section 2.7 of the
Loan Agreement (thus permitting the Borrower to request the extension
of the date set forth in clause (a) of Section 2.7 of the Loan
Agreement to May 31, 2001 pursuant to its first request and to May 31,
2002 pursuant to its second request). It is understood that the parties
hereto agree that decision of the Borrower to request the remaining two
(2) one-year extensions of the date set forth in clause (a) of Section
2.7 of the Loan Agreement shall be made by providing the Agent and each
of the Lenders with a written request for such extensions not more than
one hundred twenty (120) days and not fewer than ninety (90) days prior
to May 31, 1998 with respect to the first request and May 31, 1999 with
respect to the second request. Accordingly, the proviso of the first
sentence of Section 2.7 of the Loan
3
4
Agreement is hereby deleted and the following is substituted in lieu
thereof:
;provided that the Borrower may request up to two (2) one year
extensions of the date set forth in clause (a) above by
providing the Agent and each of the Lenders with a written
request for such extensions not more than one hundred twenty
(120) days and not fewer than ninety (90) days prior to May
31, 1998 with respect to the first request and May 31, 1999
with respect to the second request (each, an "Extension
Date").
(e) Amendment to Existing Definitions. The definitions of the quoted
terms set forth below which are set out in Section 1.1 of the Loan Agreement are
hereby amended in their entirety to read as follows:
"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 date of the Second Amendment, the Aggregate Commitment shall
be One Hundred Twenty-Five Million Dollars ($125,000,000).
"Agreement" means this Fourth Amended and Restated Loan
Agreement, as amended by the First Amendment to Fourth Amended and
Restated Loan Agreement dated as of November 19, 1996, the Second
Amendment to Fourth Amended and Restated Loan Agreement dated as of
October 8, 1997, and as further amended, modified or supplemented from
time to time.
"Borrowing Base" means, as of any date of determination, an
amount equal to (a) seventy-five percent (75%) of Eligible Loans plus
(b) the lesser of (i) eighty percent (80%) of Eligible Securities and
(ii) Twenty Million Dollars ($20,000,000) minus (c) the aggregate
amount of SBA Debt outstanding at such date and minus (d) any liability
of the Borrower under Hedging Agreements under this Agreement
calculated on a marked to market basis. For the purposes of this
definition, "Eligible Loans" means all loans in the Borrower's
portfolio or its Subsidiaries' portfolios payable to the Borrower or
one or more of its Subsidiaries excluding the following: (A) loans
classified as credit rating #5 or #6 in the Borrower's Rating System,
(B) all loans with any interest or principal more than thirty (30) days
past due and (C) loans classified as credit rating #4 and credit rating
#3 in the Borrower's Rating System and determined to be non- eligible
by the Agent, in the Agent's sole discretion; and "Eligible Securities"
means (i) all publicly traded equity securities (regardless of whether
such securities are restricted in the hands of the Borrower) in the
Borrower's portfolio, and (ii) all warrants which are currently
4
5
exercisable for the purchase of shares of publicly traded equity
securities in the Borrower's portfolio in an aggregate amount not to
exceed $10,000,000, each valued in accordance with the Borrower's
Valuation Method.
"Commitment" means, as to any Lender, the obligation of such
Lender to make Loans to the Borrower hereunder in an aggregate
principal amount at any time outstanding not to exceed the amount set
forth opposite such Lender's name on Schedule 1 hereto, as the same may
be reduced or modified at any time or from time to time pursuant to the
terms hereof.
"First Union" means First Union National Bank (f/k/a First
Union National Bank of Tennessee), a national banking association, and
its successors.
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including
interest accruing after the filing of any bankruptcy or similar
petition) the Loans, (b) all payment and other obligations owing by the
Borrower to any Lender (or any Affiliate of a Lender) or the Agent
under any Hedging Agreement, and (c) all other fees and commissions
(including attorney's fees), charges, indebtedness, loans, liabilities,
financial accommodations, obligations, covenants and duties owing by
the Borrower to the Lenders or the Agent, of every kind, nature and
description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and
whether or not evidenced by any note, and whether or not for the
payment of money under or in respect of this Agreement, any Note or any
of the other Loan Documents.
"Portfolio Certificate" means a certificate appropriately
completed and in the form of Exhibit E-3 hereto confirming the
ownership by the Credit Parties and their Subsidiaries of all of the
investments in their respective issuers and obligors and confirming
that neither Credit Party nor any Subsidiary thereof shall have any
investment in any issuer or obligor in which the other Credit Party or
any Subsidiary thereof has any investment, except that (A) the Parent
may have an investment in (including without limitation loans to) an
issuer or obligor in which a Subsidiary thereof (other than the
Borrower or any of its Subsidiaries) has an investment (including
without limitation loans) and (B) the Parent or any of its Subsidiaries
(other than the Borrower or any of its Subsidiaries) may have
investments in (including without limitation loans to) issuers or
obligors in whom the Borrower or any of its Subsidiaries has an equity
investment in the form of warrants or capital stock interests as long
as the aggregate value of all such equity investments of the Borrower
and its Subsidiaries in such issuers or obligors does not
5
6
exceed ten percent (10%) of the value of all assets of the Borrower and
its Subsidiaries as determined in accordance with GAAP.
"Required Lenders" means, at any date, any combination of
holders of at least sixty-six and two-thirds percent (66-2/3%) of the
aggregate unpaid principal amount of the Revolving Credit Notes, or if
no amounts are outstanding under the Revolving Credit Notes, any
combination of Lenders whose Commitment Percentages aggregate at least
sixty-six and two-thirds percent (66-2/3%).
"Swingline Commitment" means Ten Million Dollars
($10,000,000).
(f) Deletion of Defined Term. The definition of "Lender Addition and
Acknowledgment Agreement" which is set forth in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety. In connection therewith, Exhibit N
to the Loan Agreement shall be deleted in its entirety.
(g) Additional Defined Terms. Section 1.1 of the Credit Agreement is
further amended by the addition of the following definitions:
"First Amendment" means the First Amendment to Fourth Amended
and Restated Loan Agreement dated as of November 19, 1996 by and among
the Borrower, the Guarantor, the Lenders party thereto, and the Agent.
"Second Amendment" means the Second Amendment to Fourth
Amended and Restated Loan Agreement dated as of October 8, 1997 by and
among the Borrower, the Guarantor, the Lenders party thereto, and the
Agent.
(h) Amendment to Section 2.8. Section 2.8 of the Loan Agreement is
hereby deleted in its entirety and "INTENTIONALLY OMITTED" is inserted in lieu
thereof.
(i) Amendment to Section 3.1(a). Clause (b) of Subsection 3.1(a) of the
Loan Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
(b) the aggregate principal balance of the Swingline Note or
any portion thereof shall bear interest at the Base Rate minus .50%
(the "Swingline Rate Margin").
(j) Amendment to Section 3.1(b). Clause (v) of Subsection 3.1(b) of the
Loan Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
6
7
(v) there shall be no more than eight (8) Interest Periods
outstanding at any time.
(k) Addition to Section 3.3(b). The following sentence shall be added
to the end of subsection (b) of Section 3.3 of the Loan Agreement:
In order to compensate each Lender party to this Agreement on the
closing date of the Second Amendment who has increased its Commitment
from its Commitment prior to such date or who has a new Commitment, an
additional up-front fee at a rate per annum equal to .150% on a
pro-rata basis among Lenders with an increased or new Commitment on the
amount of the increase in the Aggregate Commitment as of the closing
date of the Second Amendment (which upfront fees shall be payable on or
before the closing date of the Second Amendment).
(l) Amendment to Section 3.3(c). Subsection (c) of Section 3.3 of the
Loan Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
(c) Agent's and Other Fees. In order to compensate the Agent
for restructuring the Loans and amending and restating the Existing
Loan Agreement and for its obligations hereunder, the Borrower agrees
to pay to the Agent, for its account, the fees set forth in the
separate fee letter agreement executed by the Borrower and the Agent
dated July 12, 1996 (as updated by the separate fee letter agreement
executed by the Borrower and the Agent dated August 29, 1997).
(m) Amendment to Section 7.11. Section 7.11 of the Loan Agreement is
hereby deleted in its entirety and the following is substituted in lieu thereof:
SECTION 7.11. Visits and Inspections.
(a) Permit representatives of the Agent or any Lender, from
time to time, upon reasonable prior notice, (i) to visit and inspect
its properties; inspect, audit and make extracts from its books,
records and files, including, but not limited to, management letters
prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets,
liabilities, financial condition, results of operations and business
prospects and (ii) to meet with SBA representatives once each calendar
quarter (and at any time a Default or Event of Default has occurred and
is continuing) to discuss the Borrower's standing with the SBA and the
SBA's view of the Borrower's operations and prospects. The Credit
Parties shall use their best efforts to arrange any meetings between
the Agent or any Lender and the SBA permitted hereunder.
7
8
(b) Permit representatives of the Agent (and any Lender at the
same time and in coordination with the Agent), from time to time (but
in any event no less than annually), upon reasonable prior notice, (i)
to review the Borrower's collection and administration of its loans and
investments in order to assess compliance by the Borrower with the
written policies and procedures (including, without limitation, the
Borrower's Rating System and the Borrower's Valuation Method) of the
Borrower and with this Agreement and the other Loan Documents and (ii)
to conduct an audit of the loans and investments of the Borrower, and
all documents executed in connection therewith, in conjunction with any
review under clause (i) above. The Agent shall use reasonable efforts
to complete any such review or audit within a reasonable period of time
and the results of any such review shall be communicated to the Lenders
in a reasonable summary format and in reasonable time after such
review. Absent a Default or Event of Default, the Borrower shall not be
obligated to bear the costs of any such review or audit.
(n) Amendment to Section 7.14. Section 7.14 of the Loan Agreement is
hereby deleted in its entirety and the following is substituted in lieu thereof:
SECTION 7.14. Ownership of Portfolio Companies. Maintain
ownership of all of the investments in their respective issuers and
obligors; provided that (a) with respect to the Parent, such ownership
may be direct or indirect through the creation of special purpose
vehicles created for the purpose of the ownership of such investments
(including without limitation loans) and (b) neither Credit Party nor
any Subsidiary thereof shall have any investment in any issuer or
obligor in which the other Credit Party or any Subsidiary thereof has
any investment, except (i) that the Parent may have an investment in
(including without limitation loans to) an issuer or obligor in which a
Subsidiary thereof (other than the Borrower or any of its Subsidiaries)
has an investment (including without limitation loans) and (ii) the
Parent or any of its Subsidiaries (other than the Borrower or any of
its Subsidiaries) may have investments in (including without limitation
loans to) issuers or obligors in whom the Borrower or any of its
Subsidiaries has an equity investment in the form of warrants or
capital stock interests as long as the aggregate value of all such
equity investments of the Borrower and its Subsidiaries in such issuers
or obligors does not exceed ten percent (10%) of the value of all
assets of the Borrower and its Subsidiaries as determined in accordance
with GAAP.
(o) Amendment to Section 8.4. Section 8.4 of the Loan Agreement is
hereby deleted in its entirety and the following is substituted in lieu thereof:
8
9
SECTION 8.4. Non-Accrual and Delinquent Loans. As of the end
of any fiscal quarter, permit the ratio of (a) loans in its portfolio
(calculated on a fair value basis) which have payments more than
forty-five (45) days past due or which are on a non-accrual basis to
(b) the aggregate amount of loans in its portfolio (calculated on a
fair value basis) to exceed (i) .150 to 1.00 for any fiscal quarter or
(ii) .125 to 1.00 for any two (2) consecutive fiscal quarters.
(p) Amendment to Section 9.7. Section 9.7 of the Loan Agreement is
hereby deleted in its entirety and the following is substituted in lieu thereof:
SECTION 9.7. Limitations on Dividends and Distributions.
Declare or pay any dividends upon any of its capital stock; purchase,
redeem, retire or otherwise acquire, directly or indirectly, any shares
of its capital stock, or make any distribution of cash, property or
assets among the holders of shares of its capital stock, or make any
change in its capital structure; provided that:
(a) any Credit Party or any Subsidiary may pay dividends in
shares of its own capital stock;
(b) any Subsidiary of the Borrower may pay cash dividends to
the Borrower;
(c) so long as no Default or Event of Default shall have
occurred and be continuing and such Credit Party maintains its status
as a "regulated investment company", each Credit Party may pay
dividends required under the Code to maintain its status as a
"regulated investment company";
(d) so long as no Default or Event of Default shall have
occurred and be continuing, the Borrower may pay realized capital gain
dividends to the Parent; provided the Parent will make a capital
contribution to the Borrower in the form of cash and otherwise in a
manner satisfactory to the Agent on the date of such payment in an
aggregate amount equal to the amount of such realized capital gain
dividends less income taxes required to be paid by the Parent under the
Code in connection therewith; and
(e) so long as no Default or Event of Default shall have
occurred and be continuing, the Parent may pay long term capital gain
dividends to its shareholders.
(q) Amendment to Section 13.11(h). Subsection (h) of Section 13.11 of
the Loan Agreement is hereby deleted in its entirety and the following is
substituted in lieu thereof:
9
10
(h) Certain Pledges or Assignments. Nothing herein shall
prohibit any Lender from pledging or assigning any Note to any Federal
Reserve Bank in accordance with Applicable Law or from assigning a
portion of its rights and obligations hereunder to an Affiliate solely
for the purpose of inducing that Affiliate to enter into Hedging
Agreements on its behalf.
(r) Amendment to Section 13.12. Section 13.12 of the Loan Agreement is
hereby deleted in its entirety and the following is substituted in lieu thereof:
SECTION 13.12. Amendments, Waivers and Consents. Except as set
forth below, any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived
by the Lenders, and any consent given by the Lenders, if, but only if,
such amendment, waiver or consent is in writing signed by the Required
Lenders (or by the Agent with the consent of the Required Lenders) and
delivered to the Agent and, in the case of an amendment, signed by the
Credit Parties; provided that no amendment, waiver or consent shall (a)
increase the amount or extend the time of the obligation of the Lenders
to make Loans (including, without limitation, pursuant to Section 2.7),
(b) except as specifically set forth in Section 2.7 hereof, extend the
originally scheduled time or times of payment of the principal of any
Loan or the time or times of payment of interest on any Loan, (c)
reduce the rate of interest or fees payable on any Loan, (d) permit any
subordination of the principal or interest on any Loan, (e) release any
Collateral (other than as specifically provided in this Section 13.12)
or Security Document (other than as specifically permitted in this
Agreement or the applicable Security Document), (f) reduce the
"Guaranteed Obligations" as defined in Section 10.1 or release the
Guarantor from its obligations under Article X, (g) amend the
provisions of this Section 13.12 or the definition of Required Lenders
or (h) amend the definition of Borrowing Base, without the prior
written consent of each Lender; and provided further that so long as no
Default or Event of Default has occurred or is continuing or would be
created, upon the request of the Borrower the Agent may, in its
reasonable discretion, release any Collateral pledged by the Borrower
under the Borrower Pledge Agreement on the basis of the sale or
transfer of notes, warrants or other securities in the ordinary course
of business of the Borrower and in accordance with the terms of the
applicable instruments governing said notes, warrants or securities. In
addition, no amendment, waiver or consent to the provisions of Article
XII shall be made without the written consent of the Agent.
(s) Amendments to Borrower's Valuation Method; Exhibit E-1. Exhibit E-1
(Description of Rating System and Valuation Method) to the Loan Agreement shall
be deleted in its entirety and a new
10
11
Exhibit E-1 (Description of Rating System and Valuation Method) in the form
attached to this Second Amendment is incorporated by reference into the Loan
Agreement in lieu thereof.
(t) Amendments to Portfolio Certificate; Exhibit E-3. Exhibit E-3
(Portfolio Certificate) to the Loan Agreement shall be deleted in its entirety
and a new Exhibit E-3 (Portfolio Certificate) in the form attached to this
Second Amendment is incorporated by reference into the Loan Agreement in lieu
thereof.
(u) Amendments to Borrowing Base Certificate; Exhibit D. Exhibit D
(Borrowing Base Certificate) to the Loan Agreement shall be deleted in its
entirety and a new Exhibit D (Borrowing Base Certificate) in the form attached
to this Second Amendment is incorporated by reference into the Loan Agreement in
lieu thereof.
(v) Additional Exhibits. Attached hereto is (i) a copy of the form of
the Fifth Amended and Restated Revolving Credit Note, substantially in the form
of Exhibit A-1 hereto, and (ii) a copy of the form of the Second Amended and
Restated Swingline Note, substantially in the form of Exhibit A-2 hereto. The
form of each such Exhibit shall be substituted in lieu of the form of each such
Exhibit attached to the original Credit Amendment (prior to this Second
Amendment).
3.01 Amendments to Borrower Pledge Agreement. In addition to the
amendments previously set forth herein, the parties hereto acknowledge that it
is the intention of this Second Amendment to reaffirm and clarify the nature of
certain of the collateral granted under the Borrower Pledge Agreement. Without
limiting the generality of the foregoing, the Borrower Pledge Agreement shall be
amended as follows:
(a) Amendment to Existing Definitions. The definitions of the quoted
terms set forth below which are set out in Section 1 of the Borrower Pledge
Agreement are hereby amended in their entirety to read as follows:
"Pledged Debt" means the indebtedness described on Schedule I
and issued by the obligors named therein and the instruments evidencing
such indebtedness, and all principal, interest, cash, instruments and
other property (including, without limitation, all collateral or other
security interests granted by the obligors named therein to the Pledgor
as security for such indebtedness and all instruments relating thereto)
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such indebtedness, and all
Proceeds therefrom; all additional indebtedness (to the extent not
effectively pledged to the Lender pursuant to another Loan Document)
from time to time owed to the Pledgor by any obligor and the
instruments evidencing such indebtedness, and all principal, interest,
11
12
cash, instruments and other property (including, without limitation,
all collateral or other security interests granted by the obligors
named therein to the Pledgor as security for such indebtedness and all
instruments relating thereto) from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of
such additional indebtedness, and all Proceeds therefrom.
(b) Amendment to Section 2. The following sentence is hereby set forth
as an addition to Section 2 of the Borrower Pledge Agreement:
The Pledgor and the Agent hereby acknowledge that the
Collateral delivered to the Agent and granted as collateral
security for the prompt and complete payment and performance
when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations shall include, without
limitation, all collateral or other security interests granted
by the obligors of the Pledged Debt named therein to the
Pledgor as security for the Pledged Debt and all instruments
relating thereto.
4.01 Consent to SBA Amendments. The undersigned hereby consent to the
terms and provisions of that certain First Amendment to the Amended and Restated
Security Agreement dated as of August 16, 1996 between the Borrower and the SBA,
in the form attached hereto as Exhibit I and acknowledge the terms and
provisions of that certain First Amendment to the Amended and Restated Pledge
Agreement dated as of August 16, 1996 between the Borrower and the SBA, in the
form attached hereto as Exhibit II.
5.01 Effectiveness. This Second Amendment shall become effective on the
date (the "closing date of this Second Amendment") that the Agent has received
each of the following:
(a) a fully executed copy hereof;
(b) fully executed originals of the Fifth Amended and Restated
Revolving Credit Notes in favor of the Lenders;
(c) a fully executed original of the Second Amended and Restated
Swingline Note in favor of the Swingline Lender;
(d) evidence that all filings and recordations that are necessary
to perfect the security interests of the Lenders in the
Collateral shall have been filed or recorded in all
appropriate locations and evidence satisfactory to the Agent
that such security interests constitute valid and perfected
first priority Liens therein;
12
13
(e) evidence of payment by the Borrower of any documentary/recording
tax incurred in connection with this Second Amendment and any
filings and recordations executed in connection with the Borrower
Pledge Agreement, the Parent Pledge Agreement and the Security
Agreement;
(f) pursuant to the terms of the Borrower Pledge Agreement and the
Bailment Agreement, the Custodian shall have received the
original notes (endorsed in blank), stock certificates and
warrants pledged pursuant to the Borrower Pledge Agreement,
together with an appropriate undated transfer power and
irrevocable proxy for each stock certificate and warrant, duly
executed in blank by the registered owner thereof;
(g) the results of a Lien search of all filings made against each
Credit Party under the Uniform Commercial Code as in effect in
any state in which the chief executive office of such Credit
Party or the Collateral of such Credit Party is located,
indicating among other things that its assets are free and
clear of any Lien except for the Liens permitted by Section 9.3
of the Loan Agreement;
(h) a certificate from the treasurer or chief financial officer (or
other officer acceptable to the Agent) of each Credit Party, in
form and substance satisfactory to the Agent, to the effect that
all representations and warranties of such Credit Party contained
in this Second Amendment, the Loan Agreement and the other Loan
Documents are true, correct and complete; that such Credit Party
is not in violation of any of the covenants contained in this
Second Amendment, the Loan Agreement and the other Loan
Documents; that, after giving effect to the transactions
contemplated by this Second Amendment, the Loan Agreement and the
other Loan Documents, no Default or Event of Default has occurred
and is continuing; and that such Credit Parties and its
Subsidiaries have satisfied each of the closing conditions;
(i) a certificate of the secretary or assistant secretary of each
Credit Party certifying that attached thereto is a true and
complete copy of the charter documents of such Credit Party, and
all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of
incorporation; that attached thereto is a true and complete copy
of the bylaws of such Credit Party as in effect on the date of
such certification; that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of
Directors of such Credit Party authorizing (A) the execution,
delivery
13
14
and performance of this Second Amendment, the Loan Agreement
and the other Loan Documents to which such Credit Party is a
party and (B) the borrowings contemplated under the Loan
Agreement; and as to the incumbency and genuineness of the
signature of each officer of such Credit Party executing this
Second Amendment, any other Loan Document to which such Person
is a party, and each other document executed in connection
herewith;
(j) long-form certificates as of a recent date of the good standing
of each Credit Party under the laws of its jurisdiction of
organization, its principal place of business and each other
jurisdiction where such Credit Party is qualified to do business
and a certificate of the relevant taxing authorities of such
jurisdictions certifying that such Person has filed required tax
returns and owes no delinquent taxes;
(k) a completed Borrowing Base Certificate in the form of Exhibit D
attached to the Loan Agreement;
(l) a completed Portfolio Certificate in the form of Exhibit E-3
attached to the Loan Agreement together with a copy of the
Portfolio Reports in form and substance acceptable to the Agent,
each dated no earlier than thirty (30) days prior to the date of
this Second Amendment;
(m) favorable opinions of counsel to the Credit Parties addressed
to the Agent and the Lenders with respect to the Credit Parties,
this Second Amendment, the Loan Documents, and such other matters
as the Agent and the Lenders shall request;
(n) copies of the United States Internal Revenue Service forms
required by Section 3.11(e) of the Loan Agreement;
(o) a Form FR U-1 duly authorized, executed and delivered by the
Borrower;
(p) all necessary approvals, authorizations and consents, if any be
required, of any Person and of all Governmental Authorities and
courts having jurisdiction with respect to the transactions
contemplated by this Second Amendment, the Loan Agreement and the
other Loan Documents, including, without limitation, the written
approval of the SBA and the SEC the terms and provisions of this
Second Amendment;
(q) the most recent audited and unaudited Consolidated financial
statements of the Credit Parties and their
14
15
Subsidiaries, all in form and substance satisfactory to the Agent;
(r) a certificate, in form and substance satisfactory to the Agent,
and certified as accurate by the chief executive officer or chief
financial officer of each Credit Party, that (A) each Credit
Party and each of its Subsidiaries are each Solvent; and (B)
attached thereto are the financial projections previously
delivered to the Agent representing the good faith opinions of
each Credit Party and senior management thereof as to the
projected results contained therein;
(s) the payment by the Credit Parties to the Agent and the Lenders
the fees set forth or referenced in the separate fee letter dated
August 29, 1997, any fees set forth in Section 3.3 and any other
accrued and unpaid fees or commissions due under this Second
Amendment or the Loan Agreement (including, without limitation,
legal fees and expenses in connection with the transactions
contemplated hereby), and to any other Person such amount as may
be due thereto in connection with the transactions contemplated
by this Second Amendment and the Loan Agreement, including all
taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan
Documents;
(t) since December 31, 1996, there shall not have occurred any
material adverse change in the business, condition (financial
or otherwise), operations, prospects or properties of any
Credit Party or any Subsidiary thereof, or any event, condition
or state of facts that is reasonably likely to have a Material
Adverse Effect;
(u) evidence satisfactory to the Agent of the receipt by the
Borrower from the Parent of proceeds in the form of equity
capital in an amount not less than fifty percent (50%) of the
amount by which the Lenders' Commitments hereunder on the closing
date of this Second Amendment exceed $50,000,000;
(v) a fully executed copy of the First Amendment to Intercreditor
Agreement, in form and substance satisfactory to the Agent; and
(w) a fully executed copy of each of (i) the First Amendment to the
Amended and Restated Pledge Agreement dated as of August 16, 1996
between the Borrower and the SBA and (ii) the First Amendment to
the Amended and Restated Security Agreement dated as of August 16,
1996 between the Borrower and the SBA, each in form and substance
satisfactory to the Agent; and
15
16
(x) any other agreement or document reasonably requested by the
Agent in connection with the transactions contemplated hereby.
6.01 General Provisions.
(a) Representations and Warranties. Each of the Borrower and the
Guarantor hereby confirms that each representation and warranty made by it under
the Loan Agreement and the Loan Documents is true and correct as of the date
hereof and that no Default or Event of Default has occurred or is continuing
under the Loan Agreement or the Loan Documents. Each of the Borrower and the
Guarantor hereby represents and warrants that as of the date hereof there are no
claims or offsets against or defenses or counterclaims to their respective
obligations under the Loan Agreement or any other Loan Document. For the
purposes hereof and of the Loan Agreement, each reference in the representations
and warranties in the Credit Agreement to the effectiveness thereof as of the
Closing Date shall be deemed to be a reference to the effectiveness thereof as
of the closing date of this Second Amendment.
(b) Reaffirmation of the Guaranty and the Parent Pledge Agreement. The
Guarantor, as guarantor under the Loan Agreement and as pledgor under the Parent
Pledge Agreement, (i) agrees to the terms of this Second Amendment and all other
documents and instruments in connection with the Second Amendment, (ii) hereby
expressly ratifies and reaffirms its guaranty of the Obligations and the pledge
pursuant to the Parent Pledge Agreement, and (iii) agrees that its obligations
hereunder and under the Loan Documents, as amended by this Second Amendment, are
absolute, without right of setoff and shall in no way be affected or impaired
for any reason.
(c) Limited Amendment. Except as expressly amended herein, the Loan
Agreement and each other Loan Document shall continue to be and shall remain, in
full force and effect. This Second Amendment shall not be deemed (i) to be a
waiver of, or consent to, a modification or amendment of, any other term or
condition of the Loan Agreement or (ii) to prejudice any other right or rights
which the Agent or Lenders may now have or may have in the future under or in
connection with the Loan Agreement or the Loan Documents or any of the
instruments or agreements referred to therein, as the same may be amended or
modified from time to time.
(d) Use of Proceeds. The Borrower shall use the proceeds of the Loans
made pursuant to this Second Amendment (i) to finance asset growth and (ii) for
working capital and general corporate requirements of the Borrower and its
Subsidiaries.
(e) Costs and Expenses. The Borrower hereby agrees to pay or reimburse
the Agent for all of its reasonable and customary out-of-pocket costs and
expenses incurred in connection with the preparation, negotiation and execution
of this Second Amendment,
16
17
including, without limitation, the reasonable fees and
disbursements of counsel.
(f) Counterparts. This Second Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(g) GOVERNING LAW. THIS SECOND 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.
(h) Fax Transmission. A facsimile, telecopy or other reproduction of
this Second Amendment may be executed by one or more parties hereto, and an
executed copy of this Second Amendment may be delivered by one or more parties
hereto by facsimile or similar instantaneous electronic transmission device
pursuant to which the signature of or on behalf of such party can be seen, and
such execution and delivery shall be considered valid, binding and effective for
all purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Second Amendment as well as any facsimile, telecopy
or other reproduction hereof.
17
18
IN WITNESS WHEREOF the undersigned hereby causes this Second Amendment
to be executed and delivered as of the date first above written.
BORROWER:
SIRROM INVESTMENTS, INC.
By:
------------------------------------
Name:
------------------------------
Title:
-----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
18
19
GUARANTOR:
SIRROM CAPITAL CORPORATION
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
19
20
AGENT:
FIRST UNION NATIONAL BANK (f/k/a
FIRST UNION NATIONAL BANK OF
TENNESSEE), as Agent
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
20
21
LENDERS:
FIRST UNION NATIONAL BANK (f/k/a
FIRST UNION NATIONAL BANK OF
TENNESSEE), as Lender
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
21
22
FIRST AMERICAN NATIONAL BANK
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
22
00
XXXXXXX XXXX XX XXXXXXXXX
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
23
24
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
24
25
BANK OF AMERICA, FSB
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
25
26
BANK ONE KENTUCKY, N.A.
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
26
27
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
27
28
CORESTATES BANK, N.A.
By:
----------------------------------
Name:
-----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
28
29
THE FIRST NATIONAL BANK OF CHICAGO
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
29
30
FLEET BANK, N.A.
By:
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
30
00
XXXXX XXXX XX XXXXXXXXXX, N.A
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
31
32
CONSENT TO SECOND AMENDMENT
OF U.S. SMALL BUSINESS ADMINISTRATION
The undersigned hereby consents to the terms and provisions of the Second
Amendment to Fourth Amended and Restated Loan Agreement dated as of October 8,
1997 by and among Sirrom Investments, Inc., as Borrower, Sirrom Capital
Corporation, as Guarantor, the Lenders party thereto, as Lenders, First Union
National Bank (f/k/a First Union National Bank of Tennessee), as Agent. In
connection therewith, the undersigned (i) reaffirms all of its respective
obligations under the Intercreditor Agreement dated as of August 16, 1996 (as
amended, restated, modified or otherwise supplemented) by and among First Union
National Bank (f/k/a First Union National Bank of Tennessee), The Small Business
Administration and First American National Bank (Trust Department), (ii)
confirms that each reference therein and in any other Loan Document to the First
Union Loans shall be deemed to refer to such Loans in an aggregate principal
amount up to $125,000,000 and (iii) confirms that the Borrower is a duly
licensed small business investment company authorized by U.S. Small Business
Administration under the SBIC Regulations and that the Borrower is in good
standing with U.S. Small Business Administration.
The undersigned hereby causes this Consent to Second Amendment to be executed
and delivered as of the 8th day of October, 1997.
U.S. SMALL BUSINESS ADMINISTRATION
[CORPORATE SEAL]
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
32
33
Schedule 1
to
Fourth Amended and Restated Loan Agreement
(as amended, restated, supplemented or otherwise modified)
dated as of August 16, 1996
Lenders and Commitments
COMMITMENT
AND COMMITMENT
LENDER PERCENTAGE ADDRESS
------ -------------- -------
First Union $25,000,000 First Union National Bank
National Bank (20%) of Tennessee
(f/k/a First 000 Xxxxxx Xxxxxx Xxxxx
Xxxxx National Xxxxxxxxx, Xxxxxxxxx 00000
Bank of Attention: Xxxxxx X. Xxxxxxxx
Tennessee) Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
and
First Union National Bank of
North Carolina
Syndication Agency Services
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
First American $ 7,500,000 First American National Bank
National Bank (6%) First Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxx,
Vice President
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
AmSouth Bank of $15,000,000 AmSouth Bank of Tennessee
Tennessee (12%) 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
34
First Tennessee $ 7,500,000 First Tennessee Bank National
Bank National (6%) Association
Association X.X. Xxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Bank of America, $10,000,000 Bank of America, FSB
FSB (8%) 0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
Attention: Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Telephone: (000) 000-0000
(000) 000-0000
Telecopy: (000) 000-0000
Bank One Kentucky, Bank One Kentucky, N.A.
N.A. $10,000,000 000 Xxxx Xxxx Xxxxxx
(0%) Xxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Texas Commerce Bank Texas Commerce Bank National
National $10,000,000 Association
Association (8%) 0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
CoreStates Bank, $10,000,000 CoreStates Bank, N.A.
N.A. (8%) 0000 Xxxxxxxx Xxxxxx
X.X. 0-0-0-00
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Fleet Bank, N.A. $10,000,000 Fleet Bank, N.A.
(8%) 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
2
35
The First National The First National Bank
Bank of Chicago $10,000,000 of Chicago
(8%) One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Union Bank of
California, N.A. $10,000,000 Union Bank of California, N.A.
(8%) 000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
3
36
Schedules
to
Loan Agreement
[Attached Hereto]
37
Schedule I
to
Borrower Pledge Agreement
[Attached Hereto]
38
Schedule I
to
Parent Pledge Agreement
[Attached Hereto]
39
Schedule A
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
Waiver and Extension Letter
[Attached Hereto]
40
Exhibit A-1
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
Form of Revolving Credit Note
[Attached Hereto]
41
EXHIBIT A-1
to
Fourth Amended and Restated Loan Agreement
dated as of August 16, 1996
by and among
Sirrom Investments, Inc.,
as Borrower,
Sirrom Capital Corporation,
as Guarantor
the Lenders party thereto,
and
First Union National Bank of Tennessee,
as Agent
FIFTH AMENDED AND RESTATED REVOLVING CREDIT NOTE
$__________ October 8, 1997
FOR VALUE RECEIVED, the undersigned, SIRROM INVESTMENTS, INC., a
corporation organized under the laws of Tennessee (the "Borrower"), hereby
promises to pay to the order of __________(the "Bank"), at the times, at the
place and in the manner provided in the Loan Agreement hereinafter referred to,
the principal sum of up to ____________________ ($__________), or, if less, the
aggregate unpaid principal amount of all Loans disbursed by the Bank under the
Loan Agreement referred to below, together with interest at the rates as in
effect from time to time with respect to each portion of the principal amount
hereof, determined and payable as provided in the Loan Agreement.
This Note is a Note referred to in, and is entitled to the benefits of,
the Fourth Amended and Restated Loan Agreement dated as of August 16, 1996 (as
amended by the First Amendment to Loan Agreement dated as of November 19, 1996,
the Second Amendment to Loan Agreement dated as of October 8, 1997, and as
further amended, restated, supplemented or otherwise modified from time to time,
the "Loan Agreement"), by and among the Borrower, Sirrom Capital Corporation, as
guarantor (the "Parent"), the Lenders who are or may become party thereto (the
"Lenders"), and First Union National Bank (f/k/a First Union National Bank of
Tennessee), as Agent for the Lenders (the "Agent"). The Loan Agreement contains,
among other things, provisions for the time, place and manner of payment of this
Note, the determination of the interest rate borne by and fees payable in
respect of this Note, acceleration of the payment of this Note upon the
happening of certain stated events and the mandatory repayment of this Note
under certain circumstances.
The Borrower agrees to pay on demand all costs of collection, including
reasonable attorneys' fees, if any part of this Note, principal or interest, is
collected after maturity with the aid of an attorney.
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
1
42
THIS NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH CAROLINA
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NORTH CAROLINA.
Pursuant to the Assignment and Assumption Agreement dated as of August
16, 1996 between the Parent and the Borrower, the Parent transferred all of its
rights and obligations under the Third Amended and Restated Loan Agreement dated
as of December 27, 1995, as amended, by and among the Parent, the Lenders party
thereto, and the Agent, and the documents executed in connection therewith, to
the Borrower, and the Borrower assumed all of such rights and obligations.
[This Note amends and restates the obligations of the Borrower under
the Fourth Amended and Restated Revolving Credit Note dated [August 16, 1996]
[December 2, 1996] executed by the Borrower in favor of the Bank.]
2
43
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under seal by a duly authorized officer as of the day and year first above
written.
SIRROM INVESTMENTS, INC.
[CORPORATE SEAL]
By:
--------------------------------
Name:
--------------------------
Title:
-------------------------
3
44
Exhibit A-2
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
Form of Swingline Note
[Attached Hereto]
45
EXHIBIT A-2
to
Fourth Amended and Restated Loan Agreement
dated as of August 16, 1996
by and among
Sirrom Investments, Inc.,
as Borrower,
Sirrom Capital Corporation,
as Guarantor,
the Lenders party thereto,
and
First Union National Bank of Tennessee,
as Agent
SECOND AMENDED AND RESTATED SWINGLINE NOTE
$10,000,000 October 8, 1997
FOR VALUE RECEIVED, the undersigned, SIRROM INVESTMENTS, INC., a
corporation organized under the laws of Tennessee (the "Borrower"), hereby
promises to pay to the order of FIRST UNION NATIONAL BANK (f/k/a FIRST UNION
NATIONAL BANK OF TENNESSEE) (the "Bank"), at the times, at the place and in the
manner provided in the Loan Agreement hereinafter referred to, the principal sum
of up to Ten Million Dollars ($10,000,000), or, if less, the aggregate unpaid
principal amount of all Swingline Loans disbursed by the Bank under the Loan
Agreement referred to below, together with interest at the rates as in effect
from time to time with respect to each portion of the principal amount hereof,
determined and payable as provided in the Loan Agreement.
This Swingline Note is a Note referred to in, and is entitled to the
benefits of, the Fourth Amended and Restated Loan Agreement dated as of August
16, 1996 (as amended by the First Amendment to Loan Agreement dated as of
November 19, 1996, the Second Amendment to Loan Agreement dated as of October 8,
1997, and as further amended, restated, supplemented or otherwise modified from
time to time, the "Loan Agreement"), by and among the Borrower, Sirrom Capital
Corporation, the guarantor (the "Parent"), the Lenders who are or may become
party thereto (the "Lenders"), and First Union National Bank (f/k/a First Union
National Bank of Tennessee), as Agent for the Lenders (the "Agent"). The Loan
Agreement contains, among other things, provisions for the time, place and
manner of payment of this Swingline Note, the determination of the interest rate
borne by and fees payable in respect of this Swingline Note, acceleration of the
payment of this Swingline Note upon the happening of certain stated events and
the mandatory repayment of this Swingline Note under certain circumstances.
The Borrower agrees to pay on demand all costs of collection, including
reasonable attorneys' fees, if any part of this Swingline Note, principal or
interest, is collected after maturity with the aid of an attorney.
1
46
Presentment for payment, notice of dishonor, protest and notice of
protest are hereby waived.
THIS SWINGLINE NOTE IS MADE AND DELIVERED IN THE STATE OF NORTH
CAROLINA AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NORTH CAROLINA.
Pursuant to the Assignment and Assumption Agreement dated as of August
16, 1996 between the Parent and the Borrower, the Parent transferred all of its
rights and obligations under the Third Amended and Restated Loan Agreement dated
as of December 27, 1995, as amended, by and among the Parent, the Lenders party
thereto, and the Agent, and the documents executed in connection therewith, to
the Borrower, and the Borrower assumed all of such rights and obligations.
This Note amends and restates the obligations of the Borrower under the
Amended and Restated Swingline Note dated August 16, 1996 executed by the
Borrower in favor of the Bank.
2
47
IN WITNESS WHEREOF, the Borrower has caused this Swingline Note to be
executed under seal by a duly authorized officer as of the day and year first
above written.
SIRROM INVESTMENTS, INC.
[CORPORATE SEAL]
By:
----------------------------------
Name:
----------------------------
Title:
---------------------------
3
48
Exhibit D
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
Borrowing Base Certificate
[Attached Hereto]
49
EXHIBIT D
to
Fourth Amended and Restated Loan Agreement
dated as of August 16, 1996
by and among
Sirrom Investments, Inc.,
as Borrower,
Sirrom Capital Corporation,
as Guarantor,
the Lenders party thereto,
and
First Union National Bank of Tennessee,
as Agent
BORROWING BASE CERTIFICATE
DATE: _________
This Borrowing Base Certificate (the "Certificate") is delivered
pursuant to the Fourth Amended and Restated Loan Agreement dated as of August
16, 1996 (as amended, restated, supplemented or otherwise modified from time to
time, the "Loan Agreement") by and among SIRROM INVESTMENTS, INC., a corporation
organized under the laws of Tennessee (the "Borrower"), SIRROM CAPITAL
CORPORATION, a corporation organized under the laws of Tennessee (the
"Guarantor"), the lenders who are or may become party thereto (collectively, the
"Lenders"), and FIRST UNION NATIONAL BANK (f/k/a FIRST UNION NATIONAL BANK OF
TENNESSEE), as Agent for the Lenders (the "Agent"). Capitalized terms used
herein and defined in the Loan Agreement are used herein with such defined
meanings.
A. Eligible Loans and Eligible Securities.
1. Eligible Loans as of the end of
the preceding calendar month or ________:
(a) All outstanding portfolio Loans
of the Borrower or any
of its Subsidiaries A.1.(a)________
(b) Loans classified as credit
rating #5 or #6 A.1.(b)________
(c) Loans with interest or
principal more than 30 days
past due A.1.(c)________
(d) Loans classified as credit
rating #4 and determined by
the Agent to be non-eligible A.1.(d)________
(e) Loans classified as credit
rating #3 and determined by
the Agent to be non-eligible A.1.(e)________
1
50
(f) Line A.1.(a) minus the sum of
Line A.1.(b) + Line A.1.(c) +
Line A.1.(d) + Line A.1.(e) A.1.(f)________
2. Eligible Securities as of the
end of the preceding calendar
month or _________:
(a) All publicly traded equity
securities (regardless of whether
such securities are restricted in
the hands of the Borrower) A.2.(a)________
(b) All warrants for the purchase of
shares of publicly traded securities
in the Borrower's portfolio in an
aggregate amount not to exceed
$10,000,000 A.2.(b)________
(c) Line A.2.(a) plus Line A.2.(b) A.2.(c)________
B. Borrowing Base.
1. The sum of the following as
of the end of the preceding calendar
month or _____________:
(a) Seventy-five percent (75%)
of Eligible Loans B.1(a) ________
(b) Plus the lesser of (i) eighty
percent (80%) of Eligible
Securities and (ii) $20,000,000 B.1(b) ________
(c) Minus the aggregate amount
of SBA Debt outstanding B.1(c) ________
(d) Minus the liability of the Borrower
under Hedging Agreements calculated
on a marked to market basis as of
the last day of the preceding fiscal
quarter B.1(d) ________
(e) Line B.1(a) plus Line
B.1(b) minus Line B.1(c)
minus Line B.1.(d) B.1(e) ________
C. Aggregate Commitment.
1. Aggregate amount of the
Lenders' Commitments C.1 ________
2
51
D. Borrowing Limitation.
1. Borrowing Limitation:
Lesser of
(a) Total Borrowing
Base (Line B.1(e)) D.1(a) ________
(b) Aggregate Commitment
(Line C.1) D.1(b) ________
E. Availability.
1. Availability:
(a) Lesser of D.1(a) or D.1(b) E.1(a) ________
(b) Outstanding Revolving
Credit Loans E.1(b) ________
(c) Outstanding Swingline Loans E.1(c) ________
(d) Line E.1(a) minus Line E.1(b)
minus Line E.1(c) E.1(d) ________
3
52
The information contained herein has been taken from and is consistent
with the Portfolio Reports delivered to the Agent together herewith.
SIRROM INVESTMENTS, INC.
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
4
53
Exhibit E-1
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
Description of Valuation and Rating Method
[Attached Hereto]
54
Exhibit E-3
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
Portfolio Certificate
[Attached Hereto]
55
EXHIBIT E-3
to
Fourth Amended and Restated Loan Agreement
dated as of August 16, 1996
by and among
Sirrom Investments, Inc.,
as Borrower,
Sirrom Capital Corporation,
as Guarantor,
the Lenders party thereto,
and
First Union National Bank of Tennessee,
as Agent
Portfolio Certificate
The undersigned, on behalf of SIRROM INVESTMENTS, INC., a corporation
organized under the laws of Tennessee (the "Borrower") and SIRROM CAPITAL
CORPORATION, a corporation organized under the laws of Tennessee (the
"Guarantor"), hereby certifies to FIRST UNION NATIONAL BANK (f/k/a FIRST UNION
NATIONAL BANK OF TENNESSEE), in its capacity as Agent for the Lenders referred
to below (the "Agent"):
1. This Certificate is delivered pursuant to Section 6.4(a) of the
Fourth Amended and Restated Loan Agreement dated as of August 16, 1996 (as
amended or supplemented from time to time, the "Loan Agreement") by and among
the Borrower, the Guarantor, the Lenders who are or may become party thereto
(collectively, the "Lenders") and the Agent. Capitalized terms used herein and
not defined herein shall have the meanings assigned thereto in the Loan
Agreement.
2. The Credit Parties and their Subsidiaries own all of the investments
in their respective issuers and obligors.
3. Neither Credit Party nor any Subsidiary thereof owns or has any
investment in any issuer or obligor in which the other Credit party or any
Subsidiary thereof owns or has any investment, except that (A) the Parent may
own or have an investment in (including without limitation loans to) an issuer
or obligor in which a Subsidiary thereof (other than the Borrower or any of its
Subsidiaries) owns or has an investment and (B) the Parent or any of its
Subsidiaries (other than the Borrower or any of its Subsidiaries) may have
investments in (including without limitation loans to) issuers or obligors in
whom the Borrower or any of its Subsidiaries has an equity investment in the
form of warrants or capital stock interests as long as the aggregate value of
all such equity investments of the Borrower and its Subsidiaries in such issuers
or obligors does not exceed ten percent (10%) of the value of all assets of the
Borrower and its Subsidiaries as determined in accordance with GAAP.
1
56
WITNESS the following signature as of the ____ day of __________, 19___.
SIRROM INVESTMENTS, INC.
[SEAL]
-----------------------------
Name:
-------------------------------
Title:
------------------------------
SIRROM CAPITAL CORPORATION
[SEAL]
------------------------------
Name:
------------------------------
Title:
-----------------------------
2
57
Exhibit I
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
First Amendment to SBA Security Agreement
58
Exhibit II
to
Second Amendment to
Fourth Amended and Restated Loan Agreement
dated as of October 8, 1997
First Amendment to SBA Pledge Agreement
