EXHIBIT 10.14(c)
SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"), dated as of
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December 30, 1999, among CREDITRUST CORPORATION, (the "Borrower"), the several
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Lenders and other financial institutions parties to the Credit Agreement (as
hereinafter defined) (individually a "Lender"; collectively, the "Lenders"), and
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SUNROCK CAPITAL CORP., as agent (in such capacity, the "Agent").
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W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent are parties to a Credit
Agreement dated as of October 28, 1998 (as heretofore amended, supplemented or
otherwise modified, the "Credit Agreement");
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WHEREAS, the Borrower has requested that certain modifications be made to
the Credit Agreement and the Agent and the Lenders have agreed to so amend the
Credit Agreement on the terms and subject to the conditions set forth herein,
including converting the revolving line of credit extended to the Borrower
pursuant to the Credit Agreement to a discretionary line of credit;
NOW, THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
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Credit Agreement are used herein as therein defined.
2. Amendments to Credit Agreement.
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(a) Subsection 2.1(a) of the Credit Agreement is hereby amended and
restated in full to read:
"(a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender,
severally and not jointly, agrees to make Loans to the Borrower
for the purpose described in Section 3.12, at any time and from
time to time on or after the date hereof and until the earlier of
December 30, 1999 (the "Cut-off Date") or until the Commitment
of such Lender shall have been terminated in accordance with the
terms hereof, in an aggregate principal amount at any time
outstanding not exceeding the amount of such Lender's Commitment,
provided that, no Loan made by the Lenders shall exceed 80% of
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the Portfolio Purchase Price for the Eligible Portfolio being
acquired with the proceeds of such Loan and provided further that
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(i) no
Loan shall be made if after giving effect to the making of such
Loan and the simultaneous application of the proceeds thereof,
the outstanding aggregate principal amount of all Loans made by
all Lenders exceeds the Total Commitment at such time and (ii) at
all times the outstanding aggregate principal amount of all Loans
required to be made by each Lender shall equal the product of (y)
its Commitment Percentage times (z) the outstanding aggregate
principal amount of all Loans required to be made pursuant to
Section 2.2 at such time."
(b) The following subsection (c) shall be added to Section 2.1 of the
Credit Agreement:
"(c) On and following the Cut-off Date, any Loans requested to
be made by any Lender shall be made at the sole discretion
of such Lender on such terms and conditions as are
satisfactory to such Lender but in any event subject to the
limitations of the second proviso in subsection 2.1(a). Any
Lender may decline to make such requested Loan."
(c) Subsection 2.5(b) of the Credit Agreement is hereby amended and
restated in full to read:
"(b) The outstanding principal balance of each Borrowing (that
is, the total amount of the Loans made to purchase an Acquired
Eligible Portfolio) made prior to the Cut-off Date which has not
been prepaid in full pursuant to the provisions of subsection 2.9
on or before the date which in the case of a Borrowing prior to
the Cut-Off Date, is six (6) months after the date such Borrowing
was made shall be payable in twenty four (24) equal monthly
installments commencing on the first day of the month following
such six-month anniversary and on the first day of each month
thereafter. Notwithstanding the foregoing, the outstanding
principal balance of all Loans shall be due and payable on the
Termination Date."
(d) Subsection 6.2(d) of the Credit Agreement is hereby amended and
restated in full to read:
"(d) Future purchase money Debt and obligations in respect of
Capital Leases provided that such Debt and obligations (i) do not
exceed one hundred percent (100%) of the purchase price of the
assets purchased and/or leased and (ii) do not exceed an
additional $4,750,000 in such Debt and Capital Leases in the
aggregate in fiscal year 1999, or $2,000,000 in the aggregate in
any subsequent fiscal year, measured by the principal amount of
the purchase money Debt or the capitalized cost to the Borrower
of the equipment subject to the Capital Lease;"
(e) Subsection 7.1(f) of the Credit Agreement is hereby amended and
restated in full to read:
"(f) The Borrower, any Subsidiary (other than a Special Purpose
Entity) of the Borrower shall (i) default in the payment of any
amount due under any Debt of the Borrower, or any Subsidiary
(other than a Special Purpose Entity) of the Borrower in excess
of $500,000 in the aggregate (other than the Notes), beyond the
period of grace, if any, provided in the instrument or agreement
under which such Debt was created; or (ii) default in the
observance or performance of any other agreement contained in any
such Debt or in any instrument or agreement evidencing, securing
or relating thereto beyond any applicable notice and grace
period, or any other event shall occur the effect of which
default or other event is to cause, or to permit the holder or
holders or beneficiary or beneficiaries of such Debt (or a
trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Debt to become due
and payable prior to its stated maturity or any such Debt is
declared to be due and payable prior to its stated maturity
unless such default, event or declaration referred to in this
subparagraph (ii) is waived or cured to the satisfaction of such
other party as demonstrated to the satisfaction of the Agent by
the Borrower prior to the Agent taking any action under Section
7.2 in respect of such occurrence; or"
3. Representations and Warranties. The Borrower hereby represents and
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warrants to the Lenders and the Agent that:
(a) There exists no Default or Event of Default under the Credit
Agreement as amended hereby
(b) The representations and warranties made in the Credit Agreement
are true and correct in all material respects on and as of the date hereof as if
made on and as of the date hereof; and
(c) The execution and delivery of this First Amendment by and on
behalf of the Borrower has been duly authorized by all requisite action on
behalf of the Borrower and this First Amendment constitutes the legal, valid and
binding obligation of the Borrower, enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4. Conditions Precedent. The effectiveness of the amendments and waiver
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set forth herein is subject to the fulfillment, to the satisfaction of the Agent
and its counsel, of the following conditions precedent:
(a) The Borrower shall have delivered to the Agent the following, all
of which shall be in form and substance satisfactory to the Agent and shall be
duly completed and executed:
(i) This First Amendment; and
(ii) Copies, certified by the Secretary or an Assistant Secretary
of the Borrower of resolutions of the board of directors of the Borrower in
effect on the date hereof authorizing the execution, delivery and performance of
this Second Amendment and the other documents and transactions contemplated
hereby;
(b) The representations and warranties set forth in the Credit
Agreement shall be true and correct in all material respects on and as of the
date hereof.
(c) The Borrower shall have paid to the Agent an additional fee of
$100,000.
5. Ratification; References; No Waiver. Except as expressly amended by
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this Second Amendment, the Credit Agreement shall continue to be, and shall
remain, unaltered and in full force and effect in accordance with its terms.
All references in the Credit Agreement and the other Loan Documents to the
Credit Agreement shall be to the Credit Agreement as amended by this First
Amendment. This First Amendment does not and shall not be deemed to constitute
a waiver by the Agent or the Lenders of any Default or Event of Default or of
any of the Agent's or the Lenders' other rights or remedies.
6. Release and Indemnity. Recognizing and in consideration of the
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Lenders' and the Agent's agreement to the amendments set forth herein, the
Borrower hereby waives and releases the Lenders and the Agent and their
officers, attorneys, agents, and employees from any liability, suit, damage,
claim, loss or expense of any kind or nature whatsoever and howsoever arising
that the Borrower ever had or now has against any of them arising out of or
relating to any Lender's or the Agent's acts or omissions with respect to this
First Amendment, the Credit Agreement, the other Loan Documents or any other
matters described or referred to herein or therein. The Borrower further hereby
agrees to indemnify and hold the Agent and the Lenders and their respective
officers, attorneys, agents and employees harmless from any loss, damage,
judgment, liability or expense (including counsel fees) suffered by or rendered
against the Lenders or the Agent or any of them on account of anything arising
out of this First Amendment, the Credit Agreement, the other Loan Documents or
any other document delivered pursuant thereto up to and including the date
hereof; provided that, the Borrower shall not have any obligation hereunder to
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any Lender or the Agent with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of such Lender or the Agent.
7. Miscellaneous.
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(a) Expenses. The Borrower agrees to pay all of the Agent's
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reasonable out-of-pocket expenses incurred in connection with the preparation,
negotiation and execution of this First Amendment including, without limitation,
the reasonable fees and expenses of Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP.
(b) Governing Law. This First Amendment shall be governed by and
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construed in accordance with the laws of the Commonwealth of Pennsylvania.
(c) Successor and Assigns. The terms and provisions of this First
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Amendment shall be binding upon and shall inure to the benefit of the Borrower,
the Agent and the Lenders and their respective successors and assigns.
(d) Counterparts. This First Amendment may be executed in one or more
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counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same instrument.
(e) Headings. The headings of any paragraph of this First Amendment
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are for convenience only and shall not be used to interpret any provision
hereof.
(f) Modifications. No modification hereof or any agreement referred
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to herein shall be binding or enforceable unless in writing and signed on behalf
of the party against whom enforcement is sought.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CREDITRUST CORPORATION
By: Xxxxxx X. Xxxxxx
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Title: Chairman & CEO
SUNROCK CAPITAL CORP., as Agent and as a
Lender
By: Xxxx Xxxxx
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Title: S.V.P.
