EXHIBIT 10.1
FOURTH AMENDMENT TO
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SECOND AMENDED AND RESTATED WAREHOUSE REVOLVING CREDIT
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FACILITY AGREEMENT
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THIS FOURTH AMENDMENT TO THE SECOND AMENDED AND RESTATED WAREHOUSE
REVOLVING CREDIT FACILITY AGREEMENT (this "Amendment") is entered into as of
April 2, 2007 and amends in certain respects the Second Amended and Restated
Warehouse Revolving Credit Facility Agreement dated as of August 31, 2001 (as
amended, the "Credit Agreement"), among XXXXXX LEASING CORPORATION (the
"Borrower"), each of the financial institutions that is or pursuant to the terms
thereof may become a party thereto as lender (individually, a "Lender" , and
collectively, the "Lenders") and NATIONAL CITY BANK, as Agent for the Lenders
(the "Agent").
W I T N E S S E T H:
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WHEREAS, the parties wish to amend certain provisions of the Credit
Agreement; and
WHEREAS, the parties hereto desire to effect such amendments on the terms
and subject to the conditions herein set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Agent, the Borrower and the
Lenders hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not otherwise
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defined herein shall have the respective meanings ascribed to them in the Credit
Agreement.
SECTION 2. Credit Agreement Amendments.
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(a) The definition of "Borrowing Base" in Section 1.01 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Borrowing Base" - as to any Eligible Contract as at the date of any
determination thereof, but subject to paragraphs (a) through (f) of
this definition below, the lesser of (i)(x) 88.5% of the then Net
Present Value of such Eligible Contract (other than Exception
Contracts) and (y) 87.0% of the then Net Present Value of Exception
Contracts or (ii) 100% of the Net Investment pertaining to the Eligible
Equipment subject to such Eligible Contract, less, all security
deposits and advance lease payments and other sums received by the
Borrower relating to any Eligible Contract (solely as they relate to
assets included in the Borrowing Base). Notwithstanding the foregoing:
(a) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts with any one User
(including Affiliates of such User) shall not exceed
$200,000;
(b) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which have initial
lease terms in excess of 60 months from the commencement
date of such Contracts shall not exceed 10% of the aggregate
Commitment for all Lenders;
(c) except for the Exception Contracts and Contracts
evidenced by Financing Agreements, no Contract may be
included in the Borrowing Base for a period of in excess of
360 days;
(d) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Prepayable Contracts shall not exceed $1,000,000;
(e) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Recourse Contracts shall not exceed $1,000,000;
(f) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Sub-lease Contracts shall not exceed $2,000,000; and
(g) the aggregate amount includible in the Borrowing Base of
Net Present Value of Eligible Contracts which constitute
Business Capital Loan Agreements shall not exceed
$15,000,000.
(b) The definition of "Change of Control" in Section 1.01 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Change of Control" means
(a) the sale, lease or transfer of all or substantially all
of the assets of the Borrower to any Person or group (as
such term is defined in Section 13(d)(3) of the Exchange
Act) other than the shareholders listed on Schedule 3.01(a);
(b) the liquidation or dissolution of (or the adoption of a
plan of liquidation by the board of directors) of the
Borrower;
(c) the acquisition by ant Person or group (as so defined)
(other than the shareholders listed on Schedule 3.01(a)) of
a direct or indirect majority in interest (more than 50%) of
the issued and outstanding Voting Securities of the Borrower
by way of merger or consolidation or otherwise; or;
(d) the occurrence of any event that constitutes an (Organic
Change" as such term is defined in the Amended Articles
(provided, however, that a Public Offering (as such term is
defined in the Amended Articles) by the Borrower and
transactions directly related thereto shall not constitute
an Organic Change).
(c) The definition of Commitment Termination Date" in Section 1.01 of
the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"Commitment Termination Date" - the earlier of (x) March 31, 2009 or
such later date as shall be applicable pursuant to Section 2.04 or (y)
such other date as the Commitment shall terminate in accordance with
this Agreement.
(d) The definition of "Contract" in Section 1.01 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"Contract" means any Lease, Finance Agreement, Business Capital
Loan Agreement or Conditional Sale Agreement entered into or otherwise
acquired by the Borrower, in which the Borrower is lessor, sublessor or
seller, as the case may be.
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(e) The definition of "EBITDA" in Section 1.01 of the Credit
Agreement is hereby amended and restated to read in its entirety as follows:
"EBITDA" means for any period, for Xxxxxx Business Services Corp. and
its consolidated subsidiaries, the sum of net income for such period
plus (a) income taxes, (b) Interest Expense and (c) depreciation,
amortization and fair value adjustments, all of which is to be
computed over the previous twelve (12) months.
(f) The definition of "Exception Contracts" in Section 1.01 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Exception Contracts" means the Prepayable Contracts, Recourse
Contracts, Business Capital Loan Agreements, and Sub-lease Contracts.
(g) The definition of "Interest Coverage Ratio" in Section 1.01 of
the Credit Agreement is hereby amended and restated to read in its entirety
as follows:
"Interest Coverage Ratio" means, as of any date of determination, and
with respect to Xxxxxx Business Services Corp. and its consolidated
subsidiaries, EBITDA as a multiple of Interest Expense.
(h) The definition of "Interest Expense" in Section 1.01 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Interest Expense" means, for any period, for Xxxxxx Business Services
Corp. and its consolidated subsidiaries, the sum (without duplication)
of all interest in respect of indebtedness accrued or capitalized
during such period (whether or not actually paid during such period);
plus the net amount payable under hedge agreements (whether or not
actually paid during such period, all of which is to be computed over
the previous twelve (12) months).
(i) The definition of "Prepayable Contracts" in Section 1.01 of the
Credit Agreement is hereby amended and restated to read in its entirety as
follows:
"Prepayable Contracts" - any Contract (other than Business Capital
Loan Agreements) for which Borrower permits the prepayment of all
remaining principal due under the Contract prior to the expiration of
the Contract's term.
(j) The definition of "Principals" in Section 1.01 of the Credit
Agreement is hereby deleted in its entirety.
(k) Section 1.01 of the Credit Agreement is hereby amended to add the
following new defined term:
"Business Capital Loan Agreement" shall mean loan agreement
substantially in this form of Exhibit "A" hereto that evidences
indebtedness owing to Borrower in connection with the lending of money to a
third party for commercial purposes only.
(l) Section 2.04(a) of the Credit Agreement is hereby amended by
deleting the reference to "August 31, 2007" in the second line thereof (as
provided in the Third Amendment to the Credit Agreement) and replacing it
with "March 31, 2009".
(m) Section 6.10(a)(iv) of the Credit Agreement is hereby deleted
in its entirety.
(n) Section 6.10(a)(v) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
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"(v) An Interest Coverage Ratio as at the last day of any Fiscal
Quarter of not less than 1.50:1;"
(o) Exhibit "A" hereto shall be added as "H" to the Agreement.
SECTION 3. Effectiveness. The amendments and consents set forth in Section
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2 of this Amendment shall be conditioned upon (a) receipt by the Agent of
counterparts of this Amendment executed by the Borrower and the Lenders and (b)
the fulfillment to the satisfaction of the Agent of each of the following
conditions:
(i) The Borrower shall have delivered to the Agent in form and
substance satisfactory to the Agent a Certificate of the Secretary or
Assistant Secretary of the Borrower certifying (1) that all corporate
action by the Borrower necessary to authorize the execution, delivery and
performance of each of the Amendment Documents (as hereunder defined) to
which it is a party and the transactions contemplated thereby has been
taken and that such authorization has not been rescinded, limited or
modified, (2) the incumbency (with specimen signatures) of the Authorized
Officers of the Borrower, and (3) that all representations and warranties
set forth in this Amendment are true and correct at and as of the date of
the effectiveness of this Amendment.
(ii) The Agent shall have received such other instruments, agreements
and documents as it shall reasonably require in connection with this
Amendment and the matters referred to above.
(iii) All matters related to the financial condition, assets,
liabilities and creditworthiness of the Borrower shall be satisfactory to
the Agent and the Lenders, in their sole discretion.
SECTION 4. Representations and Warranties. In order to induce the Lenders
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to execute this Amendment, the Borrower hereby represents and warrants to the
Agent and Lenders as follows, which representations and warranties shall survive
the execution and delivery of this Amendment and the other Amendment Documents
(hereinafter defined):
(a) The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of Delaware and has the power to own its
assets and to transact the business in which it is currently engaged and in
which it proposes to be engaged.
(b) The Borrower is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which its
failure to qualify could have a Material Adverse Effect.
(c) The Borrower has the power to execute, deliver and perform this
Amendment, any other agreements or documents being or to be executed and
delivered in connection herewith (collectively the "Amendment Documents").
The Borrower has taken all necessary action (corporate or otherwise) to
authorize the execution, delivery and performance of the Amendment
Documents. No consent or approval of any Person (including, without
limitation, any stockholder of the Borrower), other than any such consent
or approval a copy of which has been delivered to the Agent in form and
substance satisfactory to the Agent, no filing with, action by, consent or
approval of any landlord or mortgagee, no waiver of any Lien or right of
distraint or other similar right and no filing with, action by, consent,
license, approval, authorization or declaration of any governmental
authority, bureau or agency, is or will be required in connection with the
execution, delivery or performance by the Borrower or the validity,
enforcement or priority, of the Amendment Documents.
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(d) The execution, delivery and performance by the Borrower of each of
the Amendment Documents to which it is a party will not (i) violate or
conflict with any provision of law or any rule or regulation, (ii) violate
or conflict with any provision of the Amended Articles or by-laws of the
Borrower, (iii) violate or conflict with or result in a breach of any
order, writ, injunction, ordinance, resolution, decree, or other similar
document or instrument of any court or governmental authority, bureau or
agency, domestic or foreign, or create (with or without the giving of
notice or lapse of time, or both) a default under or breach of any
agreement, bond, note or indenture to which the Borrower is a party, or by
which it is bound or any of its properties or assets are affected, or (iv)
result in the imposition of any Lien of any nature whatsoever upon any of
its properties or assets owned by or used in connection with the business
of the Borrower, except for the Liens created and granted pursuant to the
Security Documents.
(e) This Amendment and each of the other Amendment Documents has been
or will be duly executed and delivered by the Borrower, and when executed
and delivered each will constitute the valid and legally binding obligation
of the Borrower, enforceable against it in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by the availability of equitable remedies.
(f) Neither the Borrower nor any of its Subsidiaries is in default
under any agreement, ordinance, resolution, decree, bond, note, indenture,
order or judgment to which it is a party or by which it is bound, or by
which any of the properties or assets owned by it or used in the conduct of
its business is affected, and the Borrower and its Subsidiaries have
complied and are in compliance with all applicable laws, ordinances and
regulations, including, without limitation, Environmental Laws, in either
case which default, or non-compliance with which laws, could have a
Material Adverse Effect on the Borrower
(g) The Borrower is in full compliance with the terms and conditions
of the Loan Documents, each of the representations and warranties set forth
in the Credit Agreement and the other Loan Documents are true and correct
in all material respects as if made on and as of the date of effectiveness
of this Amendment, and, as of the date of effectiveness of this Amendment
and after giving effect thereto and to the consummation of the transactions
contemplated hereby, no Default or Event of Default has occurred and is
continuing.
(h) Neither the Financial Statements nor any certificate, opinion, or
any other statement made or furnished in writing to the Agent or the
Lenders by or on behalf of the Borrower in connection with this Amendment
or the transactions contemplated hereby, contains any untrue statement of a
material fact, or omits to state a material fact necessary in order to make
the statements contained therein or herein not misleading.
(i) Any failure of any of the representations and warranties made by
Borrower in this Amendment to be true and correct in all respects when made
shall constitute an Event of Default under the Credit Agreement.
SECTION 5. Outstanding Indebtedness. Borrower hereby acknowledges
unconditionally that, as of the close of business on April 2, 2007, the
outstanding principal balance of all Revolving Loans is $7,749,000.00. Borrower
acknowledges and agrees that the foregoing balance of the Revolving Loans,
together with accrued and unpaid interest thereon, is owing to Lender without
claim, counterclaim, recoupment, defense or setoff of any kind.
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SECTION 6. Reference to and Effect on Loan Documents.
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(a) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of
like import, and each reference in the other Loan Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as otherwise expressly set forth herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of any Lender, or the Agent under the Credit
Agreement or any of the other Loan Documents, shall not constitute a waiver
of any provision of the Credit Agreement or any of the other Loan
Documents, nor shall it affect or diminish any Lender's or the Agent's
rights to hereafter require strict performance of any provision of the
Credit Agreement or any of the other Loan Documents.
SECTION 7. Reaffirmation of Security Interest. The Borrower hereby
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reaffirms as of the date hereof each and every security interest and lien
granted in favor of the Agent and the Lenders under the Loan Documents, and
agrees and acknowledges that such security interests and liens shall continue
from and after the date hereof and shall remain in full force and effect from
and after the date hereof, in each case after giving effect to the Credit
Agreement as amended by this Amendment, and the obligations secured thereby and
thereunder shall include Borrower's obligations under the Credit Agreement as
amended by this Amendment. Each such reaffirmed security interest and lien
remains and shall continue to remain in full force and effect and is hereby in
all respects ratified and confirmed.
SECTION 8. Further Assurances. Each of the parties hereto hereby agrees to
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do such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably require to carry into effect the purposes of this Amendment.
SECTION 9. Governing Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
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THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 10. Counterparts. This Amendment may be executed in any number of
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counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. Execution and delivery of
this Amendment by facsimile transmission shall constitute execution and delivery
of this Amendment for all purposes, with the same force and effect as execution
and delivery of an originally manually signed copy hereof.
SECTION 11. Headings; Binding Effect. The headings of the several sections
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of this Amendment are inserted for convenience only and shall not in any way
affect the meaning or construction of any provision of this Amendment. The
provisions of this Amendment shall inure to the benefit of and be binding upon
the parties hereto and their respective permitted successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their proper and duly authorized officers as of the
date set forth above.
BORROWER
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XXXXXX LEASING CORPORATION
By:
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Name:
Title:
LENDERS:
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NATIONAL CITY BANK
By:
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Name:
Title:
FIRSTRUST SAVINGS BANK
By:
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Name:
Title:
SOVEREIGN BANK
By:
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Name:
Title:
XXXXXX X.X. (as successor to
Xxxxxx Trust and Savings Bank)
By:
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Name:
Title:
AGENT:
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NATIONAL CITY BANK, As Agent
By:
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Name:
Title:
ACKNOWLEDGED BY GUARANTOR
XXXXXX BUSINESS SERVICES CORP.
By:
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Name:
Title:
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