FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.86
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the “Amendment”) is made and entered into as of this 28th day of February 2003, among XXXXXX INDUSTRIES, INC., a Tennessee corporation (“Parent”), each of the other Subsidiaries of Parent listed on the signature page hereto (together with Parent, collectively, “Borrowers”), the Lenders party to this Amendment (the “Lenders”), THE CIT GROUP/BUSINESS CREDIT, INC., as Collateral Agent, and BANK OF AMERICA, N.A., as Administrative Agent, Syndication Agent, Existing Titled Collateral Agent and Letter of Credit Issuer (in such capacity, together with the Collateral Agent, the “Agents”).
W I T N E S S E T H:
WHEREAS, Borrowers, 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, the Borrowers, the Lenders and the Agents desire to make certain amendments to the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. 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. Annex A to the Credit Agreement shall be amended by amending the text of subsection (c)(ii)(C) of the definition of Xxxxxx Borrowing Base by deleting the date “February 28, 2003” and inserting in lieu thereof the date “March 31, 2003.”
3. Annex A to the Credit Agreement shall be amended by amending the definition of Maximum RoadOne Revolver Amount by:
(a) amending the text of subsection (b)(iv) by deleting the text “February 28, 2003,” inserting in lieu thereof the text “March 31, 2003, and”
(b) deleting the text of subsection (b)(v) in its entirety.
4. Representations, Warranties and Covenants of Borrowers. To induce Agent 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,
(b) each representation and warranty made or deemed to be made in this Amendment and in the Loan Documents is true and correct 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 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.
5. Counterparts. 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.
6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of, and the decisions of the courts in, the State of Georgia.
[Signature Page Follows]
IN WITNESS WHEREOF, Borrowers, the Agents and the Lenders have caused this Amendment 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
J. Xxxxxxx Xxxx
Vice President and Attorney-in-Fact of
each entity listed above
“SUBSIDIARY ROADONE BORROWERS”
XXXXXXXX WRECKER SERVICE, INC.
AETEX, INC., f/k/a A-EXCELLENCE
TOWING CO.
ALL AMERICAN TOWING SERVICES,
INC.
ALLIED GARDENS TOWING, INC.
ALLIED TOWING AND RECOVERY, INC.
A TO Z ENTERPRISES, 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.
XXX XXXXXXX AND SONS WRECKER
SERVICE,
INC.
BRYRICH CORPORATION
BTRX, INC.
CAL WEST TOWING, INC.
CARDINAL CENTRE ENTERPRISES, INC.
CBTX, INC., f/k/a/ CEDAR BLUFF 24
HOUR TOWING,
INC.
CENTRAL VALLEY TOWING, INC.
CCASX, INC.
CEX, INC., f/k/a CHAD’S INC.
CLEVELAND VEHICLE DETENTION
CENTER, INC.
X.X.
XXXXXXXX, INC.
DVREX, INC.
DICK’S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
DSX, INC., f/k/a XXXXXX’X SERVICES,
INC.
DURU, INC.
GARY’S TOWING & SALVAGE POOL,
INC.
GOOD MECHANIC AUTO CO.
OF RICHFIELD, INC.
GREAT AMERICA TOWING, INC.
GREG’S TOWING, INC.
HTX, INC.
XXXXX’X INC.
XXXXX’X OF FT. XXXXXX, INC.
XXXXX’X OF MIAMI, INC.
XXXXX’X OF PALMS BEACH, INC.
KEN’S TOWING, INC.
LTSX, INC., f/k/a LAZER TOW SERVICES,
INC.
LASX, INC.
LWKR, INC.
LINCOLN TOWING ENTERPRISES, INC.
MAEJO, INC.
MEL’S ACQUISITION CORP.
MGEX, INC.
MSTEX, INC.
MTSX INC.
XXXXXX’X TOWING, INC.
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.
ROADONE, 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.
SOUTHWEST TRANSPORT, INC.
SUBURBAN WRECKER SERVICE, INC.
TEXAS TOWING CORPORATION
TPCTH, INC.
TREASURE COAST TOWING, INC.
TREASURE COAST TOWING OF XXXXXX
COUNTY, INC.
TRUCK SALES & SALVAGE CO., INC.
TWSX, INC.
WSX, INC., f/k/a WES’S SERVICE
INCORPORATED
WESTERN TOWING; XXXXXXX/XXXXXX
ENTERPRISES, INC.
XXXXXX TOWING, INC.
WTC, INC.
WTEX, INC.
ZTRX, INC., f/k/a XXXXXX TOWING &
RECOVERY, INC.
By:
/s/ J. Xxxxxxx Xxxx
J. Xxxxxxx Xxxx
Vice President and Attorney-in-Fact
of each entity listed above
“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/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
Vice President
“LETTER OF CREDIT ISSUER”
BANK OF AMERICA, N.A., as the letter of
Credit Issuer
By:
/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
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
“LENDERS”
BANK OF AMERICA, N.A., as a Lender
By:
/s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
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: VP
