Exhibit 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment") is made and
entered into as of the 26th day of December 2003, by and among XXXXXX
INDUSTRIES, INC., a Tennessee corporation ("Parent"), each of the other
Subsidiaries of Parent listed on the signature pages hereof (together with
Parent, collectively, "Borrowers"), the Lenders whose signatures appear on the
signature pages hereof (the "Lenders"), THE CIT GROUP/BUSINESS CREDIT, INC., as
Collateral Agent, and BANK OF AMERICA, N.A., as Administrative Agent,
Syndication Agent, Existing Title Collateral Agent and Letter of Credit Issuer
(in such capacities, together with the Collateral Agent, the "Agents").
W I T N E S S E T H:
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WHEREAS, Borrower, the Lenders and the Agents entered into that certain
Credit Agreement, dated as of July 23, 2001, pursuant to which the Lenders
agreed to make certain loans to Borrowers (as amended, modified, supplemented
and restated from time to time, the "Credit Agreement"); and
WHEREAS, Borrowers, Lenders and Agents desire to amend the Credit
Agreement by terminating the Commitments of Bank of America, N.A. ("Bank of
America") and Fleet Capital Corporation ("Fleet") as lenders thereunder and to
release Bank of America as Administrative Agent, Syndication Agent, Existing
Title Collateral Agent and Letter of Credit Issuer.
NOW, THEREFORE, in consideration of the foregoing promises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise
expressly defined herein shall have the respective meanings given to such terms
in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) Annex A to the Credit Agreement shall be amended by:
(i) amending the definition of Administrative Agent
by deleting the name "Bank of America" and inserting in lieu thereof the name
"CIT".
(ii) amending the definition of Existing Titled
Collateral Agent by deleting the name "Bank of America" and inserting in lieu
thereof the name "CIT".
(iii) amending the definition of Letter of Credit
Issuer by deleting the text thereof in its entirety and replacing it with the
following: means any Affiliate of CIT that issues any Letter of credit pursuant
to this Agreement.
(iv) amending the definition of Syndication Agent by
deleting the name "Bank of America" and inserting in lieu thereof the name
"CIT".
(b) adding thereto, in the appropriate place based on
alphabetical order, the following new defined terms:
"EIGHTH AMENDMENT" means that certain "Eighth Amendment to Credit
Agreement" by and among the Borrowers, Lenders, and Agents, as identified
therein, effective as of the Eighth Amendment Effective Date.
"EIGHTH AMENDMENT EFFECTIVE DATE" means December 26, 2003.
(c) The introductory paragraph of the Credit Agreement shall
be amended by deleting the text thereof in its entirety and inserting in lieu
thereof the following text:
This Credit Agreement, dated as of July 23, 2001, (this "AGREEMENT")
among the financial institutions from time to time parties hereto (such
financial institutions, together with their respective successors and assigns,
are referred to hereinafter each individually as a "LENDER" and collectively as
the "LENDERS"), The CIT Group/Business Credit, Inc., as collateral agent,
administrative agent, syndication agent, existing titled collateral agent and as
Letter of Credit Issuer ("AGENT" sometimes also referred to herein as "AGENTS"),
and Xxxxxx Industries, Inc., a Tennessee corporation ("PARENT"), and each of the
other Xxxxxx Borrowers and Road One Borrowers, as such terms are hereafter
defined (Parent and the other Xxxxxx Borrowers and Road One Borrowers,
collectively, "BORROWERS", and, individually, a "BORROWER").
(d) Section 1.2(b)(3) of the Credit Agreement shall be amended
by deleting the text thereof in its entirety and in lieu thereof inserting the
following place-holder: "[Intentionally Reserved]".
(e) Section 1.4(h) of the Credit Agreement shall be amended by
deleting the second sentence thereof in its entirety.
(f) Schedule 1.1 to the Credit Agreement shall be amended
and restated in the form attached hereto.
(g) The Credit Agreement shall be amended by replacing all
references to Bank of America as Existing Titled Collateral Agent,
Administrative Agent and Syndication Agent with references to CIT as Existing
Titled Collateral Agent, Administrative Agent and Syndication Agent.
3. The Borrowers, Lenders and Agents acknowledge and agree that as of
the date hereof, (i) the respective Commitments of Bank of America and Fleet
shall terminate, (iii) each of Bank of America and Fleet shall relinquish its
rights as a Lender under the Credit Agreement (other than any rights Bank of
America and Fleet may have as a Lender under subsection 13.11 of the Credit
Agreement), including, without limitation the right to payment of any portion of
the Waiver and Forbearance Fee and the Contingent Payment Fee (as defined in the
Forbearance Agreement, dated as of October 31, 2003, entered into by and among
the Agents, Lenders and
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Borrowers (the "Forbearance Agreement")); (iv) each of Bank of America and Fleet
shall be released from its obligations as a Lender under the Credit Agreement
(including, without limitation, any obligations relating to letters of credit
outstanding as of the date hereof) and any related loan documents and shall
cease to be a party thereto, and (v) Bank of America shall be released from its
obligations as administrative agent, syndication agent, existing titled
collateral agent and letter of credit issuer under the Credit Agreement. In
addition, Borrowers agree to pay to the Agent, for distribution among Bank of
America, Fleet and CIT, based on the each party's commitment percentage
immediately prior to the effectiveness of this Amendment, any and all interest,
unused line fees and letter of credit fees accrued up to and including the
Eighth Amendment Effective Date which are due to the Lenders pursuant to Article
2 of the Credit Agreement.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWERS. To induce
Agents and Lenders to enter into this Amendment, each Borrower hereby
represents, warrants and covenants to Agents and Lenders that:
(a) as of the date hereof, and after giving effect to the
terms hereof, there exists no Default or Event of Default under the
Credit Agreement or any of the other Loan Documents, except (i)
Existing Defaults (as defined in the Forbearance Agreement) and (ii)
the Event of Default resulting from Borrowers' breach of Section 7.13
of the Credit Agreement by the incurrence of debt to Mr. Xxxx Xxxxxx
in the amount of $150,000 in connection with the payment of a certain
expense deposit to General Electric Capital Corporation;
(b) each representation and warranty made or deemed to be made
in this Amendment and in the Loan Documents is true and correct in all
material respects on and as of the date of this Amendment (except to
the extent that any such representation or warranty relates to a prior
specific date or period and except for any representation or warranty
that is untrue as a result of the occurrence or continuance of any of
the Existing Defaults as defined in the Forbearance Agreement) and
Borrowers hereby reaffirm each of the agreements, covenants and
undertakings set forth in the Loan Documents and in each and every
other agreement, instrument and other document executed in connection
therewith or pursuant thereto as if Borrowers were making said
agreements, covenants and undertakings on the date hereof;
(c) each Borrower has the power and is duly authorized to
enter into, deliver and perform this Amendment; and
(d) this Amendment and each of the Loan Documents is the
legal, valid and binding obligation of each Borrower enforceable
against it in accordance with its terms.
(e) (i) each Borrower's obligations relating to the Letters of
Credit issued by Bank of America under the Credit Agreement, including
reimbursement for payments by Bank of America on the Letters of Credit
and all fees, expenses, indemnification and other obligations of the
Borrower relating thereto (collectively, "Bank of America
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Obligations"), shall remain in full force and effect, notwithstanding
termination of Bank of America's Commitment hereunder, and (ii)
concurrently with Bank of America's execution of this Amendment, the
Borrowers are delivering to Bank of America, and hereby pledge to Bank
of America, cash collateral (the "Cash Collateral"), for the benefit
of Collateral Agent, Bank of America, and Lenders, to secure the
Obligations and the Bank of America Obligations, in an amount equal to
103% of the stated amount of such Letters of Credit; and
(f) each Borrower acknowledges and agrees that it has no
actual or potential claim or cause of action against any of the Agents
or Lenders relating to any actions or events occurring on or before
the date hereof, and hereby waives and releases any right to assert
the same.
5. CASH COLLATERAL. Each of the parties hereto acknowledges and agrees
that the security interest of Collateral Agent in the Cash Collateral is
subordinate to Bank of America's liens in and to the Cash Collateral. With
respect to each Letter of Credit, the Cash Collateral securing such Letter of
Credit (to the extent not used to reimburse Bank of America for draws on the
applicable Letter of Credit, or any fees and expenses directly related thereto)
will be released to the Collateral Agent upon receipt by Bank of America of (a)
the original of such Letter of Credit, or (b) confirmation from the beneficiary
thereof, reasonably satisfactory to Bank of America, that such Letter of Credit
has been terminated.
6. MISCELLANEOUS. Each of the Borrowers agrees to take such further
action as the Agents shall reasonably request in connection herewith to evidence
the agreements herein contained. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument. The Credit Agreement, as amended hereby, shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto. This Amendment shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of Georgia, but without giving
effect to principles of conflicts of laws thereof. This Amendment may not be
modified, altered or amended except by agreement in writing signed by all of the
parties hereto. Each Borrower acknowledges that it has consulted with counsel
and with such other expert advisors as it deemed necessary in connection with
the negotiation, execution and delivery of this Amendment. This Amendment shall
be construed without regard to any presumption or rule requiring that it be
construed against the party causing this Amendment or any part hereof to be
drafted.
[signature pages follow]
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IN WITNESS WHEREOF, Borrowers, the Agents and the Lenders have caused
this Agreement to be duly executed, all as of the date first above written.
"PARENT"
XXXXXX INDUSTRIES, INC.
By:/s/ J. Xxxxxxx Xxxx
J. Xxxxxxx Xxxx
Chief Financial Officer
"SUBSIDIARY XXXXXX BORROWERS"
APACO, INC.
B&B ASSOCIATED INDUSTRIES, INC.
CHEVRON, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
COMPETITION WHEELIFT, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
MID AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
XXXXXX FINANCIAL SERVICES GROUP,
INC.
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
XXXXXX INDUSTRIES INTERNATIONAL,
INC.
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
PURPOSE, INC.
SONOMA CIRCUITS, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
By:/s/ J. Xxxxxxx Xxxx
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J. Xxxxxxx Xxxx
Vice President and Attorney-in-Fact of each
entity listed above
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"SUBSIDIARY ROADONE BORROWERS"
AETEX, INC., F/K/A A-EXCELLENCE
TOWING CO.
ALL AMERICAN TOWING SERVICES,
INC.
B-G TOWING, INC.
BEAR TRANSPORTATION, INC.
BTRCX, INC. F/K/A BERT'S TOWING
RECOVERY CORPORATION
BBSX, INC. F/K/A XXX XXXXX SERVICES,
INC.
BASIEX, INC. F/K/A BOB'S AUTO SERVICE,
INC.
BTRX, INC.
BVSWS, INC. F/K/A XXX XXXXXXX AND SONS
WRECKER SERVICE, INC.
CAL WEST TOWING, INC.
CBTX, INC., F/K/ACEDAR BLUFF 24 HOUR
TOWING, INC.
CCASX, INC.
CEX, INC., F/K/A CHAD'S INC.
CVDC, F/K/A CLEVELAND VEHICLE
DETENTION CENTER, INC.
X.X. XXXXXXXX, INC.
DVREX, INC.
DOLLAR ENTERPRISES, INC.
DSX, INC., F/K/A XXXXXX'X SERVICES, INC.
GMAR, INC., F/K/A GOOD MECHANIC AUTO
CO. OF RICHFIELD, INC.
GREAT AMERICA TOWING, INC.
GREG'S TOWING, INC.
HTX, INC.
LTSX, INC., F/K/A LAZER TOW SERVICES, INC.
LASX, INC.
LWKR, INC.
MAEJO, INC.
MEL'S ACQUISITION CORP.
MGEX, INC.
MSTEX, INC.
MTSX INC.
XXXXXX'X TOWING, INC.
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X.X.X., INC.
PEX, INC., F/K/A/ PIPES ENTERPRISES,INC.
RMA ACQUISITION CORP.
RRIC ACQUISITION CORP.
RSX, INC., F/K/A RECOVERY SERVICES,
INC.
ROAD ONE, INC.
ROADONE EMPLOYEE SERVICES, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
ROAD ONE SPECIALIZED TRANSPORTATION, INC.
ROADONE TRANSPORTATION AND LOGISTICS, INC.
R.M.W.S., INC.
SWSX, INC. (F/K/A SUBURBAN WRECKER SERVICE,
INC.)
TEXAS TOWING CORPORATION
TPCTH, INC.
TREASURE COAST TOWING, INC.
TREASURE COAST TOWING OF XXXXXX COUNTY,
INC.
TSSC, INC., F/K/A TRUCK SALES & SALVAGE
CO., INC.
TWSX, INC.
WSX, INC., F/K/A WES'S SERVICE
INCORPORATED
WTX, INC. (F/K/A XXXXXX TOWING, INC.)
WTC, INC.
WTEX, INC.
ZTRX, INC., F/K/A XXXXXX TOWING &
RECOVERY, INC.
By: J. Xxxxxxx Xxxx
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J. Xxxxxxx Xxxx
Vice President and Attorney-in-Fact
of each entity listed above
[Signatures Continue on Following Pages]
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"ADMINISTRATIVE AGENT, SYNDICATION
AGENT AND EXISTING TITLED
COLLATERAL AGENT"
BANK OF AMERICA, N.A., as the
Administrative Agent, Syndication Agent
and Existing Titled Collateral Agent
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
"LETTER OF CREDIT ISSUER"
BANK OF AMERICA, N.A., as the Letter of
Credit Issuer
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
"COLLATERAL AGENT"
THE CIT GROUP/BUSINESS CREDIT, INC., as
the Collateral Agent
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
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[Signatures Continue on Following Page]
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"LENDERS"
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
-----------------------------------
Title: Senior Vice President
-----------------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
FLEET CAPITAL CORPORATION, as a Lender
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
-----------------------------------
Title: Vice President
-----------------------------------
