FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT ("First Amendment") is
entered into as of June 24, 1998, by and between BUSINESS LOAN CENTER, INC., a
Delaware corporation ("Borrower"), BLC FINANCIAL SERVICES, INC., a Delaware
corporation, and TRANSAMERICA BUSINESS CREDIT CORPORATION, a Delaware
corporation ("Lender"), with reference to the following facts:
RECITALS
A. Pursuant to the Loan Agreement dated as of March 25, 1998 executed by
Borrower, Parent and Lender (the "Loan Agreement"), Lender agreed to make
certain financial accommodations to or for the benefit of Borrower upon the
terms and conditions set forth therein. Unless otherwise noted in this First
Amendment, (i) capitalized terms used herein shall have the meanings attributed
to them in the Loan Agreement, (ii) references to Sections shall refer to
Sections of the Loan Agreement or Schedules thereto, as applicable, and (iii)
references to Schedules shall refer to Schedules to the Loan Agreement.
B. Borrower has requested, and Lender has agreed, to amend the Loan
Agreement to increase the Maximum Credit Line from $25,000,000 to $35,000,000,
all on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the continued performance by
Borrower of its promises and obligations under the Loan Agreement and the other
Loan Documents, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender hereby agree
as follows:
A G R E E M E N T
1. Incorporation of Loan Agreement and Other Loan Documents. Except as
expressly modified under this First Amendment, all of the terms and conditions
set forth in the Loan Agreement and the other Loan Documents are incorporated
herein by this reference, and Borrower hereby acknowledges, confirms, and
ratifies its obligations under the Loan Agreement and the other Loan Documents.
2. Amendments to Loan Agreement and other Loan Documents. As of the date
of this First Amendment, the Loan Agreement and
the other Loan Documents are hereby amended in the following manner:
2.1 Amendment to Maximum Credit Line. The definition of "Maximum
Credit Line" in Section 1.1 is amended by substituting the amount "$35,000,000"
for the amount "$25,000,000" therein. The same substitution shall be deemed made
by this First Amendment with respect to all other references in the Loan
Agreement or the other Loan Documents to the maximum amount of the credit
facility under the Loan Agreement or the principal amount of the Revolving
Credit Note.
2.2 Amendment to Provisions for Certain Notices. Section 9.1(a) of
the Loan Agreement is amended by deleting the existing text thereof in its
entirety and substituting therefor the following amended and restated version
thereof:
(a) If to Lender, at:
Transamerica Business Credit Corporation
Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Account Executive - Business Loan
Center
Facsimile: (000) 000-0000
and
Transamerica Business Credit Corporation
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
With copies to:
Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
provided, that notice to Lender for purposes of Section
2.13(a)(i) shall be given to Xxxxxxx X. Xxxxxx (or another
Account Executive for Business Loan Center designated by
Lender) by telephone at (000) 000-0000 or by facsimile at
(000) 000-0000, and no copy of such transmission is required
to be sent to any other Person.
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The addresses specified above for notices to Lender shall be deemed substituted
by this First Amendment for the notice addresses contained in any of the other
Loan Documents.
3. Amendment Fee. Borrower agrees to pay to Lender a fully earned and
non-refundable fee (the "Amendment Fee") in the amount of $58,333 in
consideration of Lender's agreement to enter into this First Amendment. The
Amendment Fee shall be due and payable by Borrower to Lender on the date that
this First Amendment becomes effective pursuant to Section 4 of this First
Amendment.
4. Conditions to Effectiveness. The amendments set forth in Section 2 of
this First Amendment are subject to satisfaction of each of the following
conditions:
(a) receipt by Lender of a copy of this First Amendment, duly
executed by Borrower, Parent, and Lender;
(b) receipt by Lender of an amended and restated version of
the Revolving Credit Note, in the form attached as Exhibit A to this First
Amendment, duly executed by Borrower;
(c) receipt by Lender of such officer's certificates, board of
directors' resolutions, or other evidence satisfactory to Lender of each of
Borrower's and Parent's corporate authority and legal ability to execute,
deliver and perform this First Amendment and to consummate the transaction
contemplated hereunder;
(d) payment by Borrower of the Amendment Fee; and
(e) the absence of any Defaults or Events of Default.
5. Entire Agreement. This First Amendment, together with the Loan
Agreement and the other Loan Documents, is the entire agreement between the
parties hereto with respect to the subject matter hereof. This First Amendment
supersedes all prior and contemporaneous oral and written agreements and
discussions with respect to the subject matter hereof. Except as otherwise
expressly modified herein, the Loan Documents shall remain in full force and
effect.
6. Representations and Warranties. Borrower hereby confirms that the
representations and warranties contained in the Loan Agreement were true and
correct in all material respects when made and, except to the extent (a) that a
particular representation or warranty by its terms expressly applies only to an
earlier date, or (b) Borrower has previously advised Lender in writing as
contemplated under the Loan Agreement, are true and correct in all material
respects as of the date hereof. The Loan
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Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof.
7. Miscellaneous.
7.1 Counterparts. This First Amendment may be executed in identical
counterpart copies, each of which shall be an original, but all of which shall
constitute one and the same agreement.
7.2 Headings. Section headings used herein are for convenience of
reference only, are not part of this First Amendment, and are not to be taken
into consideration in interpreting this First Amendment.
7.3 Recitals. The recitals set forth at the beginning of this First
Amendment are true and correct, and such recitals are incorporated into and are
a part of this First Amendment.
7.4 Governing Law. This First Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Illinois
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflict of laws.
7.5 No Novation. Except as specifically set forth in paragraph 2 of
this First Amendment, the execution, delivery and effectiveness of this First
Amendment shall not (a) limit, impair, constitute a waiver of or otherwise
affect any right, power or remedy by Lender under the Loan Agreement or any
other Loan Document, (b) constitute a waiver of any provision in the Loan
Agreement or in any of the other Loan Documents, or (c) alter, modify, amend or
in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Loan Agreement, all of which are ratified and
affirmed in all respects and shall continue in full force and effect.
7.6 Conflict of Terms. In the event of any inconsistency between the
provisions of this First Amendment and any provision of the Loan Agreement, the
terms and provisions of this First Amendment shall govern and control.
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IN WITNESS WHEREOF, this First Amendment has been duly executed as
of the date first written above.
BORROWER:
BUSINESS LOAN CENTER, INC.,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Xxxxxxxx Xxxxxx
Chief Financial Officer
PARENT:
BLC FINANCIAL SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxxxxxxx
President
LENDER:
TRANSAMERICA BUSINESS CREDIT
CORPORATION, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
Senior Account Executive
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EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT NOTE
$35,000,000 Chicago, Illinois June __, 1998
BUSINESS LOAN CENTER, INC., a Delaware corporation ("Borrower"), for
value received, promises and agrees to pay to the order of TRANSAMERICA BUSINESS
CREDIT CORPORATION, a Delaware corporation ("Lender"), at its offices located at
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, in coin or currency
of the United States of America which at the time of payment is legal tender for
the payment of public and private debts, the principal sum of THIRTY-FIVE
MILLION AND NO/100 DOLLARS ($35,000,000), or so much thereof as may be advanced
pursuant to the Loan Agreement hereinafter mentioned.
All capitalized terms which are used but not defined in this Amended
and Restated Revolving Credit Note ("Note") shall have the same meanings as in
the Loan Agreement dated as of March 5, 1998, between Borrower, BLC Financial
Services, Inc., a Delaware corporation, and Lender (such Loan Agreement,
together with all amendments or supplements thereto, being referred to herein as
the "Loan Agreement").
In addition to the principal sum referred to in the first paragraph
of this Note, Borrower also agrees to pay interest at the rates, and calculated
in the manner, provided in the Loan Agreement. In no event shall the interest
rate exceed the Highest Lawful Rate. In the event that the interest rate payable
hereunder would, without giving effect to the previous sentence, exceed the
Highest Lawful Rate, then, should any interest payable hereunder thereafter fall
below the Highest Lawful Rate, interest shall continue to accrue at the Highest
Lawful Rate until such time as Lender has received an amount of interest equal
to what Lender would have received but for the limitation on the interest rate
contained in this paragraph, at which time the interest payable shall again
accrue at the rate otherwise provided for in the Loan Agreement until such
interest rate again exceeds the Highest Lawful Rate, in which event the terms of
this paragraph shall again apply.
Accrued interest is due and payable monthly, the first such payment
being due and payable on the first Business Day of the month next succeeding the
month in which the date of this Note falls, and the remaining payments being due
and payable on the first Business Day of each and every succeeding calendar
month thereafter and at the maturity of this Note.
Borrower may, at its option, prepay this Note at any time.
Prepayment of this Note is subject to the terms and
conditions set forth in the Loan Agreement, including Sections 2.6 and 2.11
thereof.
Borrower and any and each co-maker, guarantor, accommodation party,
endorser or other Person liable for the payment or collection of this Note
expressly waive demand and presentment for payment, notice of nonpayment, notice
of intent to accelerate, notice of acceleration, protest, notice of protest,
notice of dishonor, bringing of suit, and diligence in taking any action to
collect amounts called for hereunder and in the handling of Collateral at any
time existing as security in connection herewith, and shall be directly and
primarily liable for the payment of all sums owing and to be owing hereon,
regardless of and without any notice, diligence, act or omission as or with
respect to the collection of any amount called for hereunder or in connection
with any Lien at any time had or existing as security for any amount called for
hereunder; provided, that the foregoing waivers shall not constitute a waiver of
any notice that the holder hereof or Lender, as the case may be, is specifically
required to deliver to Borrower under the Loan Agreement, the Security
Agreement, or applicable law.
If default is made in the payment of this Note (whether of
principal, interest or other amounts) when due (regardless of how the maturity
of this Note may be brought about) and the same is placed in the hands of an
attorney for collection, or suit is filed hereon, or proceedings are had in
bankruptcy, probate, receivership, or other judicial proceedings for the
establishment or collection of any amount called for hereunder, or any amount
payable or to be payable hereunder is collected through any such proceedings, or
the holder of this Note otherwise attempts to enforce Borrower's Liabilities or
such holder's rights hereunder, then Borrower agrees to pay to the holder of
this Note all reasonable costs and expenses incurred by the holder, including,
without limitation, reasonable attorneys' fees.
This Note amends and restates, and supersedes in its entirety, the
prior Revolving Credit Note dated March 25, 1998 executed by Borrower in the
original principal amount of $25,000,000, which prior Revolving Credit Note is
being marked by Lender "Cancelled and Superseded" contemporaneously with the
execution and delivery to Lender of this Note.
This Note is issued pursuant to the Loan Agreement and is entitled
to the benefits of the Loan Agreement and the Security Documents. Reference is
made to the Loan Agreement for provisions for the acceleration of the maturity
hereof on the occurrence of certain events specified therein, for interest rate
provisions and computations and for all other pertinent purposes. Prior to the
initial Revolving Loan hereunder or by reason of payments hereon, there may be
times when no Liabilities are owing
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hereunder; but notwithstanding any such occurrence, this Note shall remain valid
and shall be in full force and effect as to Revolving Loans made pursuant to the
Loan Agreement subsequent to each such occurrence.
This Note is secured by the Collateral described in the Security
Documents executed in connection herewith for the benefit of Lender.
THIS NOTE, THE LOAN AGREEMENT, AND THE OTHER LOAN DOCUMENTS ARE
CONTRACTS MADE UNDER AND SHALL, IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY, AND PERFORMANCE, AND ALL CLAIMS AND CAUSES OF ACTION
RELATED HERETO AND THERETO, WHETHER SOUNDING IN CONTRACT OR IN TORT, BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE UNITED STATES OF
AMERICA AND THE STATE OF ILLINOIS, AS SUCH LAWS ARE NOW IN EFFECT (WITHOUT
REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS) AND, WITH RESPECT
TO USURY LAWS, IF ANY, APPLICABLE TO LENDER AND TO THE EXTENT ALLOWED THEREBY,
AS SUCH LAWS MAY HEREAFTER BE IN EFFECT WHICH ALLOW A HIGHER MAXIMUM NONUSURIOUS
INTEREST RATE THAN SUCH LAWS NOW ALLOW; PROVIDED, THAT IF ANY OF THE COLLATERAL
SHALL BE LOCATED IN ANY JURISDICTION OTHER THAN ILLINOIS, THE LAWS OF SUCH
JURISDICTION SHALL GOVERN THE METHOD, MANNER AND PROCEDURE FOR FORECLOSURE OF
LENDER'S LIEN UPON SUCH COLLATERAL AND THE ENFORCEMENT OF LENDER'S OTHER
REMEDIES IN RESPECT OF SUCH COLLATERAL TO THE EXTENT THAT THE LAWS OF SUCH
JURISDICTION ARE DIFFERENT FROM OR INCONSISTENT WITH THE LAWS OF ILLINOIS. IT IS
THE INTENT OF BORROWER AND LENDER THAT THE LAWS OF THE STATE OF ILLINOIS SHALL
GOVERN THIS NOTE, THE LOAN AGREEMENT, AND THE OTHER SECURITY INSTRUMENTS, AND
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.
This Note has been delivered as of the date first written above.
BUSINESS LOAN CENTER, INC.,
a Delaware corporation.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxxxxxx
President
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ACKNOWLEDGMENT OF INSTRUMENTS
STATE OF ___________________ )
) SS.
COUNTY OF __________________ )
On __________________________ before me, the undersigned notary public in
and for said state, personally appeared ________________________, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument, the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
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