AMENDMENT NO. 6 TO CREDIT AGREEMENT
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THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT (this "Amendment Agreement")
is made and entered into as of the 14th day of December, 2000, and effective as
provided in SECTION 6 hereof, by and among XXXXXX INDUSTRIES, INC., a Tennessee
corporation ("Xxxxxx"), and XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware
corporation and wholly owned subsidiary of Xxxxxx ("Xxxxxx Towing") (Xxxxxx and
Xxxxxx Towing may be referred to herein individually as a "Borrower" and
together as the "Borrowers"), EACH OF THE GUARANTORS SIGNATORY HERETO (the
"Guarantors"), BANK OF AMERICA, N.A., SUCCESSOR TO NATIONSBANK, N.A., a national
banking association organized and existing under the laws of the United States,
as agent ("Agent") for the Lenders under the Credit Agreement and the Lenders.
Unless the context otherwise requires, all capitalized terms used herein without
definition shall have the definitions provided therefor in the Credit Agreement.
W I T N E S S E T H:
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WHEREAS, the Agent, the Lenders and the Borrowers have entered into
that certain Credit Agreement dated as of January 30, 1998, as amended by
Amendment No. 1 to Credit Agreement dated as of January 31, 1998 and by
Amendment No. 2 to Credit Agreement dated as of October 30, 1998 and by
Amendment No. 3 to Credit Agreement dated as of July 27, 1999 and by Amendment
No. 4 to Credit Agreement dated as of August 13, 1999 and by Amendment No. 5 to
Credit Agreement dated as of July 26, 2000 (as hereby and from time to time
amended, supplemented, modified or replaced, the "Credit Agreement"), pursuant
to which the Lenders have agreed to make and have made available to the
Borrowers a credit facility including a revolving credit facility with a letter
of credit sublimit and a swing line sublimit; and
WHEREAS, the Borrowers have requested that the terms of the Credit
Agreement be amended in the manner set forth herein, and that certain Defaults
under the Credit Agreement be waived, and the Agent and the Lenders, subject to
the terms and conditions contained herein, have agreed to such amendment and
waiver, to be effective as provided herein;
WHEREAS, the Borrowers, the Agent, the Lenders and the Guarantors
acknowledge that the terms of this Amendment Agreement constitute an amendment
and modification of, and not a novation of, the Credit Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereby agree as
follows:
1. DEFINITIONS. The term "Credit Agreement" or "Agreement" (as the case
may be) as used herein and in the Loan Documents shall mean the Credit Agreement
as hereby amended and modified, and as further amended, modified replaced or
supplemented from time to time as permitted thereby.
2. AMENDMENTS TO AND RESTATEMENTS OF TERMS OF THE CREDIT AGREEMENT.
Subject to the conditions hereof, the Credit Agreement is hereby amended,
effective as of the date hereof, as follows:
(A) THE FOLLOWING DEFINITIONS ARE HEREBY ADDED TO SECTION 1.1 OF THE
CREDIT AGREEMENT IN ALPHABETICAL POSITION AND SHALL READ AS FOLLOWS:
"Amendment No. 6" means Amendment No. 6 to Credit Agreement dated
as of December 14, 2000 by and among the Borrowers, the Guarantors, the Agent
and the Lenders.
"Independent Distributors" means any and all distributors of the
Borrowers which do not constitute Subsidiaries of Xxxxxx.
"Total Facility Commitment" means the sum of the Total Revolving
Credit Commitment and the Total Term Loan Commitment.
(B) SECTION 2.7(B) OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
ADDING ROMAN NUMERATE (I) AFTER "ADDITIONAL MANDATORY REDUCTIONS" AND ADDING A
NEW PARAGRAPH WHICH SHALL READ AS FOLLOWS:
(ii) The Total Facility Commitment shall be automatically and
permanently reduced to the following amounts at the following dates (but only if
and to the extent such reductions have not already been achieved as the result
of any reduction of the Total Revolving Credit Commitment pursuant to SECTION
2.3 or 2.7(a) or the Total Term Loan Commitment pursuant to SECTION 2A.7 or
2A.8):
(A) December 15, 2000 -- $125,000,000
(B) January 31, 2001 -- $119,000,000
Each mandatory reduction of the Total Facility Commitment as described above
shall be accompanied by payment of Revolving Loans and/or Term Loan Outstandings
to the extent that the principal amount of Outstandings exceeds the Total
Facility Commitment after giving effect to such reductions together, with
accrued and unpaid interest on the amount prepaid; PROVIDED that any such
prepayments shall be applied first to Term Loan Outstandings and then, in the
event and to the extent that all Term Loan Outstandings shall have been repaid,
to Revolving Credit Outstandings.
(C) SECTION 2A.9 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY
ADDING ROMAN NUMERATE (I) AFTER "ADDITIONAL MANDATORY COMMITMENT REDUCTIONS"
THERETO, AND ADDING A NEW PARAGRAPH WHICH SHALL READ AS FOLLOWS:
(ii) The Total Facility Commitment shall be automatically and
permanently reduced to the following amounts at the following dates (but only if
and to the extent such reductions have not already been achieved as the result
of any reduction of the Total Revolving Credit Commitment pursuant to SECTION
2.3 or 2.7(a) or the Total Term Loan Commitment pursuant to Section 2A.7 or
2A.8):
(A) December 15, 2000 -- $125,000,000
(B) January 31, 2001 -- $119,000,000
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Each mandatory reduction of the Total Facility Commitment as described above
shall be accompanied by payment of Revolving Loans and/or Term Loan Outstandings
to the extent that the principal amount of Outstandings exceeds the Total
Facility Commitment after giving effect to such reductions together with accrued
and unpaid interest on the amount prepaid; PROVIDED that any such prepayments
shall be applied first to Term Loan Outstandings and then, in the event and to
the extent that all Term Loan Outstandings shall have been repaid, to Revolving
Credit Outstandings.
(D) SECTION 8.1 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY RESTATING
SUBSECTION (D) IN ITS ENTIRETY AS FOLLOWS, DELETING THE WORD "AND" AT THE END OF
SUBSECTION (F), DELETING THE PERIOD (.) AT THE END OF SUBSECTION (G) AND ADDING
A SEMICOLON (;) THERETO, AND ADDING A NEW SUBSECTION (H) WHICH SHALL READ AS
FOLLOWS:
(d) as soon as practical and in any event within thirty (30) days after
the end of each month, deliver to the Agent and each Lender a Borrowing Base
Certificate in the form of Exhibit N, together with an accounts receivable aging
report and an inventory report in form and substance reasonably satisfactory to
the Agent and the Lenders and such other information and schedules related
thereto as reasonably required by the Agent or the Lenders;
(h) as soon as practical and in any event within thirty (30) days after
the end of each month, such financial information as shall be required by Agent
and Lenders in their reasonable discretion.
(F) SECTIONS 9.1(A) AND (C) OF THE CREDIT AGREEMENT ARE HEREBY AMENDED
AND RESTATED IN THEIR ENTIRETY AS FOLLOWS:
(a) Capital Expenditures. Make or become permitted to make (i) Capital
Expenditures in excess of $4,000,000 in the aggregate in any Fiscal Year of
Xxxxxx ending after April 30, 2000, or (ii) Capital Expenditures in excess of
$1,500,000 in any fiscal quarter ending on or after the effective date of
Amendment No. 6 (on a non-cumulative basis, with the effect that amounts not
expended in any period may not be carried forward to any other period).
(c) Minimum Consolidated EBITDA. Permit Consolidated EBITDA to be less
than the following amounts for the following periods:
Consolidated EBITDA
PERIOD MUST NOT BE LESS THAN
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Fiscal quarter ending October 31, 2000: $4,600,000
Fiscal quarter ending January 31, 2001: $8,500,000
Fiscal quarter ending April 30, 2001: $10,800,000
Each Fiscal quarter thereafter: $10,800,000
(G) SECTION 9.3 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY DELETING
THE WORD "AND" AT THE END OF SUBSECTION (G), DELETING THE PERIOD (.) AT THE END
OF SUBSECTION (H) AND ADDING A SEMICOLON (;) THERETO, AND ADDING NEW SUBSECTIONS
(I), (J) AND (K) WHICH SHALL READ AS FOLLOWS:
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(i) Liens arising in connection with floor plan financing arrangements
constituting Debt Offerings permitted under SECTION 9.4(G); provided such liens
are limited to the property subject to such financing arrangements and the
proceeds thereof;
(j) Liens arising in connection with inventory repurchase obligations
permitted under SECTION 9.4 (I); provided such liens are limited to the property
subject to such financing arrangements and the proceeds thereof; and
(k) Liens arising in connection with floor plan financings permitted
under Section 9.4 (J); provided such liens are limited to the property subject
to such financing arrangements and the proceeds thereof.
(H) SECTION 9.4 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY DELETING
THE WORD "AND" AT THE END OF SUBSECTION (F), DELETING THE PERIOD (.) AT THE END
OF SUBSECTION (G) AND ADDING A SEMICOLON (;) THERETO, AND ADDING NEW SUBSECTIONS
(H), (I) AND (J) WHICH SHALL READ AS FOLLOWS:
(h) guaranty obligations of Xxxxxx incurred in the course of business
directly or indirectly guaranteeing Indebtedness of any purchaser of a
Designated Asset disposed of in an Asset Disposition permitted under SECTION
9.5(F); provided that the amount of such obligations shall not exceed $3,500,000
in the aggregate at any time from the effective date of Amendment No. 6 through
the Stated Termination Date;
(i) inventory repurchase obligations incurred with respect to floor
plan financing for Independent Distributors; PROVIDED that the amount of such
obligations shall not exceed $30,000,000 in the aggregate at any time; and
(j) partial recourse obligations of Xxxxxx incurred with respect to
floor plan financing for Independent Distributors; PROVIDED that the amount of
such exposure shall not exceed $1,000,000 in the aggregate at any time.
(I) EXHIBIT M OF THE CREDIT AGREEMENT IS HEREBY AMENDED AND RESTATED IN
ITS ENTIRETY AS ATTACHED HERETO AS EXHIBIT M.
3. CONTINUING EFFECT OF LOAN DOCUMENTS. (a) Each Guarantor hereby (i)
consents and agrees to the amendments to the Credit Agreement set forth herein
and (ii) confirms its joint and several guarantee of payment of all the
Guarantors' Obligations pursuant to the Guaranty.
(b) Each of the Borrowers and Guarantors hereby acknowledge and agree
that each of the Security Instruments (i) remains in full force and effect and
is hereby reaffirmed, (ii) continues to secure all of the Obligations of the
Borrowers and the Guarantors' Obligations pursuant to the Guaranty, as
applicable, and (iii) notwithstanding anything to the contrary in any Security
Instrument, shall remain in effect until the Facility Termination Date.
4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
certifies that:
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a. The representations and warranties made by the Borrowers in ARTICLE
VII of the Credit Agreement are true and correct in all material respects on and
as of the date hereof, with the same effect as though such representations and
warranties were made on the date hereof, except that the financial statements
referred to in SECTION 7.6(A) shall be those most recently furnished to each
Lender pursuant to SECTIONS 8.1(A) AND (B) of the Credit Agreement.
b. The Borrowers and each Subsidiary have the power and authority to
execute and perform this Amendment Agreement and have taken all action required
for the lawful execution, delivery and performance thereof.
c. There has been no material adverse change in the business,
properties, prospects, operations or condition, financial or otherwise, of
Xxxxxx and its Subsidiaries since the date of the most recent financial reports
of Xxxxxx received by each Lender under SECTION 8.1 of the Agreement; and
d. No event has occurred and no condition exists which has not been
waived which, upon the consummation of the transaction contemplated hereby, will
constitute a Default or an Event of Default on the part of the Borrowers under
the Credit Agreement or any other Loan Document either immediately or with the
lapse of time or the giving of notice, or both.
5. FEES. In addition to any fees otherwise provided for in the Credit
Agreement, the Borrowers hereby agree to pay an up-front amendment fee (the
"Up-front Fee") equal to 0.10% of the Total Facility Commitment, due and payable
on the effective date of this Amendment Agreement to the Agent for the pro rata
benefit of the Lenders based on their Applicable Commitment Percentages, and
which fee shall be fully earned when due and payable and not refundable.
6. CONDITIONS TO EFFECTIVENESS. This Amendment shall not be effective
until the Agent has received to its satisfaction each of the following:
a. six (6) counterparts of this Amendment Agreement executed by the
Borrowers, the Guarantors, the Agent and the Lenders;
b. payment of all fees then due to the Agent and the Lenders in
connection with the execution and delivery of this Amendment, including but not
limited to (i) the Up-front Fee in the amount of $125,000, (ii) that certain
Term Loan Facility Fee described in SECTION 2A.12 of the Credit Agreement, due
and payable on November 30, 2000, and (iii) fees and expenses of counsel to the
Agent and the Lenders;
c. such other documents, instruments and certificates as reasonably
requested by the Agent.
Upon the satisfaction of the conditions set forth in this SECTION 6,
this Amendment Agreement shall be effective as of the date hereof except as
otherwise provided in SECTION 15, PROVIDED that the amendment and restatement of
SECTION 9.1(C) contained in SECTION 2(F) hereof shall be effective as of October
31, 2000.
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7. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated herein, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment Agreement may be changed, modified,
waived or canceled orally or otherwise, except as provided in the Credit
Agreement.
8. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
9. COUNTERPARTS. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
10. GOVERNING LAW. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Georgia.
11. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
12. CREDIT AGREEMENT. All references in any of the Loan Documents to
the "Credit Agreement" shall mean the Credit Agreement as amended hereby.
13. RELEASE. Borrowers and Guarantors acknowledge that they have no
existing defense, counterclaim, offset, right of recoupment, cross-complaint,
claim or demand of any kind or nature whatsoever that can be asserted to reduce
or eliminate all or any part of their respective liability to pay in full the
indebtedness outstanding under the Credit Agreement and the Notes and the other
Loan Documents. In consideration for the execution of this Amendment Agreement,
Borrowers and Guarantors do hereby release and forever discharge the Agent and
the Lenders and all of their officers, directors, employees and agents from any
and all actions, causes of action, debts, dues, claims, demands, liabilities and
obligations of every kind and nature, both in law and equity, known or unknown,
which might be asserted against the Agent or the Lenders based on actions or
events occurring on or prior to the date of this Amendment Agreement. This
release applies to all matters arising out of or relating to the Credit
Agreement and the other Loan Documents and the lending, deposit and borrowing
relationships between the Borrowers, the Guarantors, the Agent and the Lenders,
including the administration, collateralization, and funding thereof.
14. NO NOVATION. This Agreement is given as an amendment and
modification of, and not as a payment of, the Obligations of the Borrower under
the Credit Agreement and is not intended to constitute a novation of the Credit
Agreement. All of the indebtedness, liabilities and
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obligations owing by the Borrowers under the Credit Agreement and the
Guarantor's obligations under the Guaranties, as applicable, shall continue to
be secured by the "Collateral" as defined in the Credit Agreement and the
Borrowers and the Guarantors acknowledge and agree that the "Collateral" as
defined in the Credit Agreement shall continue to constitute "Collateral"
hereunder and remains subject to a security interest in favor of the Agent for
the benefit of itself and the Lenders and to secure such Obligations and
Guarantors' Obligations.
15. DEFAULT WAIVER. Effective as of October 31, 2000, the Agent and the
Lenders hereby waive any Default or Event of Default resulting from any
violation by the Borrowers of any provision of Section 9.1(c) of the Credit
Agreement for the reporting period ending October 31, 2000. Effective as of the
date hereof, the Agent and the Lenders hereby waive any Default or Event of
Default resulting from the Borrowers' failure to timely pay the Term Loan
Facility Fee required in SECTION 2A.12 of the Credit Agreement. This waiver
shall be a one-time waiver covering the periods described and limited to the
defaults described, and shall in no way serve to waive any obligations of the
Borrowers other than as expressly set forth above.
16. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrowers, the Lenders and the
Agent and their respective successors, assigns and legal representatives;
provided, however, that the Borrowers, without the prior consent of the Agent,
may not assign any rights, powers, duties or obligations hereunder.
17. EXPENSES. Without limiting the provisions of SECTION 12.5 of the
Credit Agreement, the Borrowers agree to pay to the Agent all reasonable costs
and expenses (including without limitation legal fees and expenses) incurred or
arising in connection with the negotiation and preparation of this Amendment
Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6
to Credit Agreement to be duly executed by their duly authorized officers, all
as of the day and year first above written.
BORROWERS:
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XXXXXX INDUSTRIES, INC.
By: ________________________________
Name:_______________________________
Title: _____________________________
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
By: ________________________________
Name:_______________________________
Title:______________________________
GUARANTORS:
-----------
XXXXXXXX WRECKER SERVICE, INC.
A-EXCELLENCE TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
ALLIED GARDENS TOWING, INC.
ALLIED TOWING AND RECOVERY, INC.
ALTAMONTE TOWING, INC.
XXXXXXXX TOWING SERVICE, INC.
APACO, INC.
ARROW WRECKER SERVICE, INC.
A TO Z ENTERPRISES, INC.
B&B ASSOCIATED INDUSTRIES, INC.
B-G TOWING, INC.
BEAR TRANSPORTATION, INC.
XXXXX TOWING & RECOVERY, INC.
BERT'S TOWING RECOVERY
CORPORATION
XXXX XXXXXXX TOWING CO.
XXX XXXXX SERVICES, INC.
BOB'S AUTO SERVICE, INC.
XXX XXXXXXX AND SONS WRECKER
SERVICE, INC.
BOULEVARD & TRUMBULL TOWING, INC.
XXXXXX'X, INC.
BRYRICH CORPORATION
C&L TOWING SERVICES, INC.
CAL WEST TOWING, INC.
CEDAR BLUFF 24 HOUR TOWING, INC.
CENTRAL VALLEY TOWING, INC.
CENTURY HOLDINGS, INC.
CHAD'S, INC.
CHAMPION CARRIER CORPORATION
CHEVRON, INC.
CHICAGO METRO SERVICES, INC.
XXXXXXXX XXXXXXX AUTOMOTIVE
SERVICE, INC.
CLEVELAND VEHICLE DETENTION
CENTER, INC.
XXXXXX'X TOWING, INC.
XXXXXXX'X TOWING & RECOVERY, INC.
COMPETITION WHEELIFT, INC.
X.X. XXXXXXXX, INC.
DALLAS VEHICLE RECOVERY, INC.
DICK'S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
DON'S TOWING, INC.
XXXXXX'X SERVICES, INC.
DUN-RITE TOWING, INC.
DURU, INC.
E.B.T., INC.
EXPORT ENTERPRISES, INC.
GARY'S TOWING & SALVAGE POOL, INC.
GOLDEN WEST TOWING EQUIPMENT,
INC.
GOOD MECHANIC AUTO CO. OF
RICHFIELD, INC.
GREAT AMERICA TOWING, INC.
GREG'S TOWING, INC.
H&H TOWING ENTERPRISES, INC.
HALL'S TOWING SERVICE, INC.
XXXXXXXXXXX TOWING, INC.
H.M.R. ENTERPRISES, INC.
INTERSTATE TOWING & RECOVERY, INC.
XXXXXXX WRECKER SERVICE, INC.
XXXXXXXX ENTERPRISES, INC.
XXXXX'X, INC.
XXXXX'X OF FT. XXXXXX, INC.
XXXXX'X OF MIAMI, INC.
KAUFFS OF PALM BEACH, INC.
KEN'S TOWING, INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
XXXXX WRECKER SERVICE, INC.
LAZER TOW SERVICES, INC.
XXXXXXXX'X AUTO SERVICE, INC.
XXXXX WRECKER SERVICE, INC.
LINCOLN TOWING ENTERPRISES, INC.
M&M TOWING AND RECOVERY, INC.
MAEJO, INC.
MEL'S ACQUISITION CORP.
MERL'S TOWING SERVICE, INC.
MID AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
MIKE'S WRECKER SERVICE, INC.
XXXXXX FINANCIAL SERVICES GROUP,
INC.
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
XXXXXX INDUSTRIES INTERNATIONAL,
INC.
XXXXX'X SERVICE & TOWING, INC.
XXXXX'X TOWING SERVICE, INC.
XXXXXXXXX'X GARAGE, INC.
XXXXXX'X TOWING, INC.
OFFICIAL TOWING, INC.
X'XXXX TRUCK SERVICE, INC.
PETE'S A TOWING, INC.
PIPES ENTERPRISES, INC.
PRO-TOW, INC.
XXXXXX'X TRUCK CENTER, INC.
PURPOSE, INC.
RAR ENTERPRISES, INC.
RANDY'S HIGH COUNTRY TOWING, INC.
XXX XXXXXX, INC.
RMA ACQUISITION CORP.
RRIC ACQUISITION CORP.
RAY'S TOWING, INC.
RECOVERY SERVICES, INC.
RETRIEVER TOWING, INC.
ROAD XXXXXX, INC.
ROAD ONE, INC.
ROADONE EMPLOYEE SERVICES, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
ROADONE SPECIALIZED
TRANSPORTATION, INC.
ROADONE TRANSPORTATION AND
LOGISTICS, INC.
XXXXX XXXXXX WRECKER SERVICE INC.
SANDY'S AUTO & TRUCK SERVICE, INC.
SAKSTRUP TOWING, INC.
SONOMA CIRCUITS, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
SOUTHWEST TRANSPORT, INC.
SPEED'S AUTOMOTIVE, INC.
SPEED'S RENTALS, INC.
XXXXX'X AUTOMOTIVE SERVICES, INC.
SUBURBAN WRECKER SERVICE, INC.
TEAM TOWING AND RECOVERY, INC.
TED'S OF FAYVILLE, INC.
TEXAS TOWING CORPORATION
XXXXXXXX'X WRECKER SERVICE, INC.
TOW PRO CUSTOM TOWING & HAULING,
INC.
TREASURE COAST TOWING, INC.
TRUCK SALES & SALVAGE CO., INC.
XXXXXXX CORPORATION
VULCAN EQUIPMENT COMPANY, INC.
XXXXXX TOWING, INC.
WES'S SERVICE INCORPORATED
WESTERN TOWING; XXXXXXX/XXXXXX
ENTERPRISES, INC.
WHITEY'S TOWING, INC.
XXXXXX TOWING, INC.
ZEBRA TOWING, INC.
XXXXXX TOWING & RECOVERY, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney-in-fact
AGENT AND LENDERS:
BANK OF AMERICA, N.A.
SUCCESSOR TO NATIONSBANK, N.A.,
as Agent for the Lenders and as a Lender
By: /s/ Xxxx P. M. Datton
Name: Xxxx P. M. Datton
Title: VP
WACHOVIA BANK, N.A.
By: /s/ unreadable
Name: unreadable
Title: SVP
AMSOUTH BANK, FORMERLY KNOWN AS
FIRST AMERICAN NATIONAL BANK
By: /s/ M. Xxx Xxxxxxxx
Name: M. Xxx Xxxxxxxx
Title: Commercial Banking Officer
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
EXHIBIT M
Compliance Certificate
Bank of America, N.A., successor
to NationsBank, N.A.
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
30, 1998 (, as from time to time amended, restated, modified, replaced, or
supplemented the "Agreement") among XXXXXX INDUSTRIES, INC., a Tennessee
corporation ("Xxxxxx"), XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware
corporation ("Xxxxxx Towing," and together with Xxxxxx, the "Borrowers"), the
Lenders (as defined in the Agreement) and Bank of America, N.A., successor to
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies to you as of
_____________, 20___ (the "Determination Date") as follows:
1. Calculations
A. Compliance with Section 9.1(a): Capital Expenditures
Total for fiscal quarter: __________________
Total for Fiscal Year: __________________
REQUIRED: Maximum of $1,500,000 in any fiscal quarter.
Maximum of $4,000,000 in any Fiscal Year.
B. Compliance with Section 9.1(b): Consolidated Funded
Total Indebtedness to Consolidated EBITDA
1. Consolidated Funded Total Indebtedness $__________
2. Consolidated EBITDA for such FOUR-QUARTER PERIOD $__________
a. Consolidated Net Income $__________
b. Consolidated Interest Expense $__________
c. Taxes on income $__________
d. Amortization $__________
e. Depreciation $__________
f. Non-recurring noncash
restructuring charges (if approved) $__________
g. Net gains on the collection of
proceeds of life insurance
policies $__________
h. Write-ups of any assets other than
permitted by FAS 16 $__________
i. Other extraordinary net gains
or credits $__________
TOTAL ([a + b +c + d + e + f] -
[g + h + i] $__________
3. Ratio of B.2 to B.1 ____ to ____
REQUIRED: 1. LINE 3 MUST NOT BE MORE THAN 3.50
TO 1.00 FOR FISCAL YEAR ENDING APRIL 30, 2001
2. LINE 3 MUST NOT BE MORE THAN 3.00
TO 1.00 FOR ANY FOUR-QUARTER PERIOD ENDING APRIL 30, 2001
C. Compliance with Section 9.1(c): Minimum Consolidated EBITDA
1. Consolidated EBITDA for such fiscal QUARTER just ended $__________
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a. Consolidated Net Income $__________
b. Consolidated Interest Expense $__________
c. Taxes on income $__________
d. Amortization $__________
e. Depreciation $__________
f. Non-recurring noncash
restructuring charges (if approved) $__________
g. Net gains on the collection of
proceeds of life insurance
policies $__________
h. Write-ups of any assets other than
permitted by FAS 16 $__________
i. Other extraordinary net gains
or credits $__________
TOTAL ([a + b +c + d + e + f] -
[g + h + i] $__________
REQUIRED: JULY 31, 2000: $3,800,000
OCTOBER 31, 2000: $4,600,000
JANUARY 31, 2001: $8,500,000
APRIL 30, 2001: $10,800,000
M-2
D. Compliance with Section 9.4(a): Existing Indebtedness
1. Existing Indebtedness $__________
REQUIRED: NOT MORE THAN $1,000,000 OUTSTANDING
AT ANY TIME
E. Compliance with Section 9.4(d): Purchase Money Indebtedness
and Capital Lease Obligations
1. Purchase money and Capital Lease obligations $__________
REQUIRED: NOT MORE THAN THE SUM OF (I) $300,000
AND (II) THE AGGREGATE AMOUNT OF PURCHASE
MONEY INDEBTEDNESS AND OBLIGATIONS UNDER
CAPITAL LEASES EXISTING AS OF THE DATE OF
AMENDMENT NO. 5.
F. Compliance with Section 9.4(e): Guarantees of Trade
Account Indebtedness
1. Guarantees of trade account indebtedness $__________
REQUIRED: NOT MORE THAN $1,000,000 OUTSTANDING
AT ANY TIME
G. Compliance with Section 9.4(h): Guarantees of Designated Asset Disposition
1. Guarantees of Designated Asset Disposition $__________
REQUIRED: NOT MORE THAN $3,500,000 OUTSTANDING
THROUGH APRIL 30, 2001
H. Compliance with Section 9.4(i): Guarantees of floor plan financing
1. Guarantees of floor plan financing $__________
REQUIRED: NOT MORE THAN $30,000,000 OUTSTANDING
AT ANY TIME
I. Compliance with Section 9.4(j): Guarantees of partial recourse obligations
1. Guarantees of partial recourse obligations $__________
REQUIRED: NOT MORE THAN $1,000,000 OUTSTANDING
AT ANY TIME
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2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrowers have not defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant to
any of the Loan Documents; and (b) no Default or Event of Default
specified in ARTICLE X of the Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrowers
propose to take the following action with respect to such Default or
Event of Default: _______________________________
-----------------------------------------------------------------.
(NOTE, if no Default or Event of Default has occurred, insert "Not
Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with SECTION 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this ___ day of
___________, 20___.
By:
-------------------------------------
Authorized Representative
Name:
-----------------------------------
Title:
----------------------------------
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