Exhibit 10(k)
THIRTEENTH AMENDMENT TO REVOLVING
CREDIT AND TERM LOAN AGREEMENT
This Thirteenth Amendment to Revolving Credit and term Loan
Agreement ("Amendment") is dated as of July 5, 2000 by and among
1st Franklin Financial Corporation ("Company"), Bank United,
Southtrust Bank of Georgia, N.A. and Xxxxxx Trust and Savings
Bank (each a "Bank" and collectively, the "Banks"), Bank United,
as agent for Banks (in such capacity, the "Agent").
BACKGROUND
A. Company, Banks and Agent entered into that certain
Revolving Credit and Term Loan Agreement dated as of
October 1, 1985 (as has been and may hereafter be
amended or modified from time to time, the "Loan
Agreement") and certain other instruments, documents
and agreements entered into pursuant thereto
(collectively with the Loan Agreement, the "Existing
Loan Document"). All capitalized terms which are not
defined herein shall have the meaning ascribed thereto
in the Loan Agreement.
B. Company has requested that Agent and Banks amend
the Loan Agreement in certain respects and Agent and
Banks have agreed subject to the terms of this
Amendment.
NOW, THEREFORE, the parties hereto, intending to be legally
bound, hereby promise and agree as follows:
1. Temporary Amendment. Notwithstanding anything to
the contrary contained in Section 2.07 of the Loan
Agreement, the month during which written notice of
termination must be given by a majority in interest of
Banks to terminate the commitment of all Banks to lend
under the Loan Agreement shall be extended, for the
year of 2000 only, for a two month period from the
month of June, 2000 to the month of August, 2000. To
evidence such temporary amendment, Section 2.07(a) and
Section 2.07(b) of the Loan Agreement is hereby amended
as necessary, including changing the word "June" to
"August" in each place that the word July appears and
changing the word "January" to "March" in each place
where the word January appears.
2. Effectiveness Conditions. This Amendment shall be
effective upon the completion of the following
conditions precedent (all agreements, documents and
instruments to be in form and substance satisfactory to
Agent and Agent's counsel):
a. Execution and delivery by Company and of
this Amendment to Agent; and
b. Execution and/or delivery of all other
agreements, instruments and documents requested by
Agent to effectuate and implement the terms hereof
and the Existing Loan Documents.
3. Representations and Warranties. Company
represents and warrants to Agent and Banks that:
a. All warranties and representations made
to Banks under the Loan Agreement and the Existing
Loan Documents are true and correct as to the date
thereof.
b. The execution and delivery by Company
and of this Amendment and the performance by each
of them of the transactions herein contemplated
(i) are and will be within such party's powers,
(ii) have been authorized by all necessary
organizational action, and (iii) are not and will
not be in contravention of any order of any court
or other agency of government, of law or any other
indenture, agreement or undertaking to which
Company is a party or by which the property of
Company or be in conflict with, result in a breach
of, or constitute (with due notice and/or lapse of
time) a default under any such indenture,
agreement or undertaking or result in the
imposition of any lien, charge or encumbrance of
any nature on any of the properties of Company.
c. This Amendment and any assignment,
instrument, document, or agreement executed and
delivered in connection herewith, will be valid,
binding and enforceable in accordance with its
respective terms.
d. No Event of Default or Default has
occurred under the Loan Agreement or any of the
other Existing Loan Documents.
4. Business Operations. Company hereby agrees to
continue to operate its business and operations in a
manner consistent with its past business practice,
continue to meet the standards generally observed by
prudent finance companies and conform to its policies
as have been previously disclosed to Agent in writing.
5. Representations and Release of Claims. Except as
otherwise specified herein, the terms and provisions
hereof shall in no manner impair, limit, restrict or
otherwise affect the obligations of Company, or any
third party to Agent and/or Banks as evidenced by the
Existing Loan Documents. Company and hereby
acknowledge, agree, and represent that (a) there are no
claims or offsets against, or defenses or counterclaims
to, the terms or provisions of the Existing Loan
Documents, and the other obligations created or
evidenced by the Existing Loan Documents; (b) neither
Company nor has any claims, offsets, defenses or
counterclaims arising from any of Lender's acts or
omissions with respect to the Existing Loan Documents,
or Agent's or Banks's performance under the Existing
Loan Documents; and (c) Company promises to pay to the
order of Banks the indebtedness evidenced by the Notes
according to the terms thereof. In consideration of
the modification of certain provisions of the Existing
Loan Documents, all as herein provided, and the other
benefits received by Company hereunder, Company and
each hereby RELEASE, RELINQUISH and forever DISCHARGE
Agent, Banks and their predecessors, successors,
assigns, shareholders, principals, parents,
subsidiaries, agents, officers, directors, employees,
attorneys and representatives (collectively, the
"Released Parties"), of and from any and all claims,
demands, actions and causes of action of any and every
kind or character, whether known or unknown, present or
future, which Company or have, or may have against
Released Parties, arising out of or with respect to any
and all transactions relating to the Loan Agreement,
the Notes, the Guaranty, and the other Existing Loan
Documents occurring prior to the date hereof, including
any other loss, expense and/or detriment, of any kind
or character, growing out of or in any way connected
with or in any way resulting from the acts, actions or
omissions of the Released Parties and including any
loss, cost or damage in connection with any breach of
fiduciary duty, breach of any duty of fair dealing,
breach of competence, breach of funding commitment,
undue influence, duress, economic coercion, conflict of
interest, negligence, bad faith, malpractice,
violations of the Racketeer Influence and Corrupt
Organizations Act, intentional or negligent infliction
of emotional or mental distress, tortious interference
with corporate governments or prospective business
advantage, tortious interference with contractual
relations, breach of contract, deceptive trade
practices, libel, slander, conspiracy, the charging,
contracting for, taking, reserving, collecting or
receiving of interest in excess of the highest lawful
rate applicable to the Existing Loan Documents (i.e.,
usury), any violations of federal or state law, any
violations of Regulation B, Equal Credit Opportunity,
bank tying act claims or any violation of federal
antitrust acts.
6. Ratification of Existing Loan Documents. Except
as expressly set forth herein, all of the terms and
conditions of the Loan Agreement and Existing Loan
Documents are hereby ratified and confirmed and
continue unchanged and in full force and effect. All
references to the Loan Agreement shall mean the Loan
Agreement as modified by this Amendment.
7. Governing Law. This Amendment shall by governed
by, construed and enforced in accordance with the laws
of the Commonwealth of Pennsylvania, excluding its
conflict of laws rules.
8. Counterparts. This Amendment may be executed in
any number of counterparts, each of which when so
executed shall be deemed to be an original, and such
counterparts together shall constitute one and the same
respective agreement. Signature by facsimile shall
also bind the parties hereto.
SIGNATURES ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have caused this Amendment
to be executed by their respective duly authorized officers as of
the date first above written.
COMPANY: 1ST FRANKLIN FINANCIAL CORPORATION
By: /s/ A. Xxxxx Xxxxxxx
---------------------
Title: Vice President and CFO
AGENT: BANK UNITED
By: /s/ Xxxxx X. Xxxxxx
-------------------
Title: Vice President
BANKS: BANK UNITED
Commitment By: /s/ Xxxxx X. Xxxxxx
$7,000,000 -------------------
Title: Vice President
SOUTHTRUST BANK OF GEORGIA, N.A.
Commitment By: /s/ R. Xxxxxxxxxxx Xxxxxx
$7,000,000 -------------------------
Title: Vice President
XXXXXX TRUST AND SAVINGS BANK
Commitment By: /s/ Xxxxxx X. Xxxxxx
$7,000,000 --------------------
Title: Managing Director
