EXHIBIT 4.24
FIRST AMENDMENT AND WAIVER
TO NOTE AND EQUITY PURCHASE AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO NOTE AND EQUITY PURCHASE AGREEMENT
(this "Amendment") is entered into as of June 29, 2005 by and among CORRPRO
COMPANIES, INC., an Ohio corporation ("Parent"), CCFC, INC., a Nevada
corporation ("CCFC"), OCEAN CITY RESEARCH CORP., a New Jersey corporation
("OCRC"), and CORRPRO INTERNATIONAL, INC. (f/k/a Corrpro Companies Latin
America, Inc.), a Delaware corporation ("Intermediate Holdings", and together
with Parent, CCFC and OCRC, the "US Loan Parties"), COMMONWEALTH XXXXXX HOLDINGS
LTD., a corporation amalgamated under the laws of the Province of Alberta,
Canada and a Foreign Wholly-Owned Subsidiary of Intermediate Holdings
("Commonwealth Xxxxxx"), CORRPRO CANADA, INC., a corporation amalgamated under
the laws of the Province of Alberta, Canada ("Corrpro Canada"), and XXXXX
INSPECTIONS LTD., a corporation amalgamated under the laws of the Province of
Alberta, Canada ("Xxxxx"; Commonwealth Xxxxxx, Corrpro Canada and Xxxxx are
sometimes referred to herein collectively as the "Canadian Loan Parties", and US
Loan Parties and the Canadian Loan Parties are sometimes referred to herein
collectively as the "Loan Parties"), the securities purchasers that are now and
hereafter at any time parties hereto and are listed in Annex A (or any amendment
or supplement thereto) attached hereto (each a "Purchaser" and collectively,
"Purchasers"), and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware
corporation ("ACFS"), as administrative agent for Purchasers (in such capacity
"Agent").
WITNESSETH:
WHEREAS, the Loan Parties, the Purchasers and the Agent have entered into
that certain Note and Equity Purchase Agreement, dated of March 30, 2004 (as the
same may be amended, restated, supplemented or otherwise modified from time to
time, the "Purchase Agreement");
WHEREAS, the Loan Parties have advised Agent that an Event of Default has
occurred pursuant to Section 8.1(d) of the Purchase Agreement for the Loan
Parties failure to comply with Subsection 7.2(a)(v) by exceeding the limit of
Capitalized Lease Obligations permitted thereunder as in effect prior to the
date hereof (the "Existing Default"); and
WHEREAS, the Loan Parties have requested that Agent and Purchasers waive
the Existing Default and amend Subsection 7.2(a)(v) and Agent and Purchasers are
willing to do so subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Purchase Agreement.
2. Amendment. Subject to the terms and provisions of this Amendment,
clause (v) of Subsection 7.2(a) is hereby restated in its entirety to read as
follows:
"(v) indebtedness of the Loan Parties not to exceed $500,000 in the
aggregate
at any time outstanding consisting of Capitalized Lease Obligations;"
3. Limited Waiver. Subject to the terms and conditions set forth in
this Amendment, Agent and Purchasers hereby irrevocably waive the Existing
Default. Nothing contained herein shall be deemed to constitute a waiver of
compliance with any term or condition contained in the Purchase Agreement or any
of the other Purchase Documents except as expressly stated herein, or constitute
a course of conduct or dealing among the parties. Except as expressly stated
herein, Agent and Purchasers reserve all rights, privileges and remedies under
the Purchase Documents. Except as expressly stated herein, the Purchase
Agreement and other Purchase Documents remain unmodified and in full force and
effect.
4. Conditions. The effectiveness of this Amendment is subject to the
following conditions precedent:
(a) except for the Existing Default, no Default or Event of Default
shall have occurred and be continuing;
(b) the execution and delivery of this Amendment by each Loan Party,
Agent and Purchasers;
(c) the representations and warranties contained herein are true and
correct;
(d) all corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments and
other legal matters incident thereto shall be satisfactory to Agent and its
legal counsel; and
(e) certain provisions of the Senior Credit Agreement shall have
been amended or waived to permit the transactions contemplated by this
Amendment, in form and substance reasonably satisfactory to Agent and the
Purchasers.
5. Representations and Warranties. Each Loan Party hereby represents
and warrants to Agent and Purchasers as follows:
(a) such Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or amalgamation, as applicable;
(b) such Loan Party has the power and authority to execute, deliver
and perform its obligations under this Amendment;
(c) the execution, delivery and performance by such Loan Party of
this Amendment and any and all other Purchase Documents executed and/or
delivered in connection herewith has been duly authorized by all necessary
action and will not violate the Charter Documents or By-Laws of such Loan Party;
(d) after giving effect to this Amendment and the transactions
contemplated hereby, the representations and warranties contained in the
Purchase Agreement and the other Purchase Documents to which it is a party are
true and correct on and as of the date hereof as though made on and as of such
date, except to the extent such representations and warranties
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relate specifically to an earlier date, in which event they are true and correct
as of such earlier date;
(e) such Loan Party's Charter Documents and By-Laws have not been
amended since the date of the Purchase Agreement;
(f) this Amendment, the Purchase Agreement and the other Purchase
Documents constitute the legal, valid and binding obligation of such Loan Party,
enforceable against it in accordance with their terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditor's rights generally or by equitable principles
relating to enforceability; and
(g) after giving effect to this Amendment and the transactions
contemplated hereby, no Default or Event of Default exists.
6. Counterparts. This Amendment may be executed in multiple
counterparts, each of which when so executed shall be deemed an original and all
said counterparts when taken together shall be deemed to constitute but one and
the same instrument.
7. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of each Loan Party and their successors and assigns and the
Agent and the Purchasers and their successors and assigns.
8. Further Assurances. Each Loan Party hereby agrees from time to time,
as and when requested by the Agent or Purchasers, to execute and deliver or
cause to be executed and delivered, all such documents, instruments and
agreements and to take or cause to be taken such further or other action as the
Agent or Purchasers may reasonably deem necessary or desirable in order to carry
out the intent and purposes of this Amendment, the Purchase Agreement and the
other Purchase Documents.
9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
10. Severability. Wherever possible, each provision of this Amendment
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
11. Expenses of Agent and Purchasers. Each of the Loan Parties agrees to
pay on demand all reasonable costs and expenses incurred by the Agent and
Purchasers in connection with any and all amendments, modifications, and
supplements to the Purchase Documents, including, without limitation, the costs
and fees of Agent's and Purchasers' legal counsel, and all costs and expenses
incurred by the Agent and Purchasers in connection with the enforcement or
preservation of any rights under the Purchase Agreement or any other Purchase
Documents, including, without limitation, the costs and fees of the Agent's and
Purchasers' legal counsel.
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12. Reaffirmation. Each of the Loan Parties, as debtor, grantor, pledgor,
guarantor, assignor, or in any other similar capacity in which such Loan Party
grants liens or security interests in its property or otherwise acts as
accommodation party or guarantor, as the case may be, hereby (i) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, under each of the Purchase Documents to which it is a party and (ii)
to the extent such Loan Party granted liens on or security interests in any of
its property pursuant to any such Purchase Document as security for or otherwise
guaranteed the obligations under or with respect to the Purchase Documents,
ratifies and reaffirms such guarantee and grant of security interests and liens
and confirms and agrees that such security interests and liens hereafter secure
all of such obligations. Each of the Loan Parties hereby consents to this
Amendment and acknowledges that each of the Purchase Documents remains in full
force and effect and is hereby ratified and reaffirmed. The execution of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Agent or Purchasers except as expressly stated herein, constitute a waiver of
any provision of any of the Purchase Documents except as expressly stated herein
or serve to effect a novation of any the obligations of any of the Loan Parties
under the Purchase Documents.
13. Release. Each Loan Party further acknowledges and agrees that (i) it
has no claims, counterclaims, offsets, credits or defenses to the Purchase
Documents and the performance of its obligations thereunder or (ii) if it has
any such claims, counterclaims, offsets, credits or defenses to the Purchase
Documents and/or any transaction related to the Purchase Documents, the same are
hereby waived, relinquished and released in consideration of Agent's and
Purchasers' execution and delivery of this Amendment.
[Remainder of page intentionally left blank; signature page follows.]
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IN WITNESS WHEREOF, the US Loan Parties have executed this Amendment as of
the day and year first set forth above.
US LOAN PARTIES:
CORRPRO COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Chief Financial Officer
CCFC, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Treasurer
OCEAN CITY RESEARCH CORP.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Treasurer
CORRPRO INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Treasurer
IN WITNESS WHEREOF, the Canadian Loan Parties have executed this Amendment
as of the day and year first set forth above.
CANADIAN LOAN PARTIES:
COMMONWEALTH XXXXXX HOLDINGS, LTD.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
President
CORRPRO CANADA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
President
XXXXX INSPECTIONS LTD.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxx
President
IN WITNESS WHEREOF, the Agent and the Purchasers have executed this
Amendment as of the day and year first set forth above.
AGENT:
AMERICAN CAPITAL FINANCIAL SERVICES,
INC.
By: /s/ Xxxxxxx X. XxxXxxxxx
-------------------------------
Xxxxxxx X. XxxXxxxxx
Vice President
PURCHASERS:
AMERICAN CAPITAL STRATEGIES, LTD.
By: /s/ Xxxxxxx X. XxxXxxxxx
-------------------------------
Xxxxxxx X. XxxXxxxxx
Vice President
EXHIBIT A
Asset Purchase Agreement
