Exhibit 10.1
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of July 22, 2003, by and between XXXXXXX
BUSINESS SERVICES, INC., a Maryland corporation ("Borrower"), and XXXXX FARGO
BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
A. Borrower is currently indebted to Bank pursuant to the terms and
conditions of that certain Amended and Restated Credit Agreement between
Borrower and Bank dated as of September 2, 2002 as amended from time to time
("Credit Agreement").
B. Pursuant to the Credit Agreement, Borrower remains indebted to Bank
under a line of credit in the original principal amount of Eleven Million
Dollars ($11,000,000.00) (the "Line of Credit"), which is evidenced by that
certain Line of Credit Note dated May 20, 2003 (the "Line of Credit Note"). The
Line of Credit Note shall mature and become due and payable in full on March 31,
2004 and as of the date hereof, the outstanding principal balance under the Line
of Credit is $2,107,896.48, plus accrued but unpaid interest.
C. Bank and Borrower have agreed to certain changes in the terms and
conditions set forth in the Credit Agreement and have agreed to amend the Credit
Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, subject to the terms and conditions described
herein, the parties hereto agree that the Credit Agreement shall be amended as
follows; provided, however, that nothing shall terminate any security interests
or other documents in favor of Bank, all of which shall remain in full force and
effect unless expressly amended hereby:
1. Amendment to Section 5.5. Section 5.5 of the Credit Agreement is hereby
deleted in its entirety, and the following substituted therefore:
"Section 5.5. LOANS, ADVANCES, INVESTMENTS. Make any loans or
advances to or investments in any person or entity, except: (a) any
of the foregoing existing as of, and disclosed to Bank prior to, the
date hereof; (b) equity securities of publicly-traded companies in
amounts not to exceed an aggregate of $200,000.00 plus any
investment gains (net of any losses) thereon; and (c) loans or
advances to Xxxxxxx X. Xxxxxxxx in amounts not to exceed an
aggregate of $110,000.00 outstanding at any one time."
2. Conditions Precedent. The obligation of Bank to amend the terms and
conditions of the Credit Agreement as provided herein, is subject to the
fulfillment to Bank's satisfaction of all of the following conditions by no
later than August 1, 2003:
(a) Bank shall have received, in form and substance satisfactory to Bank,
each of the following, duly executed:
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(i) This Amendment.
(ii) Such other documents as Bank may require under any other section of
this Amendment.
(b) Other Fees and Costs. In addition to Borrower's obligations under the
Credit Agreement and the other Loan Documents, Borrower shall have paid to Bank
the full amount of all costs and expenses, including reasonable attorneys' fees
(including the allocated costs of Bank's in-house counsel) expended or incurred
by Bank in connection with the negotiation and preparation of this Amendment,
for which Bank has made demand.
3. General Release. In consideration of the benefits provided to Borrower
under the terms and provisions hereof, Borrower hereby agrees as follows
("General Release"):
(a) Borrower, for itself and on behalf of its successors and assigns, does
hereby release, acquit and forever discharge Bank, all of Bank's predecessors in
interest, and all of Bank's past and present officers, directors, attorneys,
affiliates, employees and agents, of and from any and all claims, demands,
obligations, liabilities, indebtedness, breaches of contract, breaches of duty
or of any relationship, acts, omissions, misfeasance, malfeasance, causes of
action, defenses, offsets, debts, sums of money, accounts, compensation,
contracts, controversies, promises, damages, costs, losses and expenses, of
every type, kind, nature, description or character, whether known or unknown,
suspected or unsuspected, liquidated or unliquidated, each as though fully set
forth herein at length (each, a "Released Claim" and collectively, the "Released
Claims"), that Borrower now has or may acquire as of the later of: (i) the date
this Amendment becomes effective through the satisfaction (or waiver by Bank) of
all conditions hereto; (ii) the date that Borrower has executed and delivered
this Amendment to Bank (hereafter, the "Release Date"), including without
limitation, those Released Claims in any way arising out of, connected with or
related to any and all prior credit accommodations, if any, provided by Bank, or
any of Bank's predecessors in interest, to Borrower, and any agreements, notes
or documents of any kind related thereto or the transactions contemplated
thereby or hereby, or any other agreement or document referred to herein or
therein.
(b) Borrower hereby acknowledges, represents and warrants to Bank that it
agrees to assume the risk of any and all unknown, unanticipated or misunderstood
defenses and Released Claims which are released by the provisions of this
General Release in favor of Bank, and Borrower hereby waives and releases all
rights and benefits which it might otherwise have under any state or local laws
or statutes with regard to the release of such unknown, unanticipated or
misunderstood defenses and Released Claims.
(c) Each person signing below on behalf of Borrower acknowledges that he
or she has read each of the provisions of this General Release. Each such person
fully understands that this General Release has important legal consequences,
and each such person realizes that they are releasing any and all Released
Claims that Borrower may have as of the Release Date. Borrower hereby
acknowledges that it has had an opportunity to obtain a lawyer's advice
concerning the legal consequences of each of the provisions of this General
Release.
(d) Borrower hereby specifically acknowledges and agrees that: (i) none of
the provisions of this General Release shall be construed as or constitute an
admission of any liability on the part of Bank; (ii) the provisions of this
General Release shall constitute an absolute bar to any Released Claim of any
kind, whether any such Released Claim is based on contract, tort, warranty,
mistake or any other theory, whether legal, statutory or equitable; and (iii)
any attempt to assert a Released Claim barred by the provisions of this General
Release
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shall subject Borrower to the provisions of applicable law setting forth the
remedies for the bringing of groundless, frivolous or baseless claims or causes
of action.
4. Miscellaneous. Except as specifically provided herein, all terms and
conditions of the Credit Agreement shall remain in full force and effect,
without waiver or modification. All terms defined in the Credit Agreement shall
have the same meaning when used in this Amendment. This Amendment and the Credit
Agreement shall be read together, as one document. This Amendment may be
executed in any number of counterparts, each of which when executed and
delivered shall be deemed to be an original, and all of which when taken
together shall constitute one and the same Amendment.
5. Reaffirmation; Certification. Borrower hereby remakes all
representations and warranties contained in the Credit Agreement and reaffirms
all covenants set forth therein. Borrower further certifies that as of the date
of this Amendment there exists no Event of Default as defined in the Credit
Agreement, nor any condition, act or event which with the giving of notice or
the passage of time or both would constitute an Event of Default.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK AFTER
OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
XXXXX FARGO BANK,
XXXXXXX BUSINESS SERVICES, INC. NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxxx X. Day
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Xxxxxxx X. Xxxxxxxxxx Xxxxxxx X. Day
Vice President-Finance Vice President
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