WAIVER TO REVOLVING CREDIT AND TERM LOAN AGREEMENT
Exhibit 10.1
WAIVER TO
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS WAIVER TO REVOLVING CREDIT AND TERM LOAN AGREEMENT, dated as of March 8, 2013 (this “Waiver”), is made by and among JTH HOLDING, INC., a Delaware corporation (the “Borrower”), SUNTRUST BANK, in its capacity as administrative agent (the “Administrative Agent”) for the Lenders (as defined in the Credit Agreement defined below) and as issuing bank (the “Issuing Bank”) and swingline lender (the “Swingline Lender”), the Lenders party hereto, JTH TAX, INC., a Delaware corporation (“JTH”), LTS PROPERTIES, LLC, a Virginia limited liability company (“Properties”), LTS SOFTWARE INC., a Virginia corporation (“Software”), WEFILE INC., a Virginia corporation (“Wefile”), JTH FINANCIAL, LLC, a Virginia limited liability company (“JTH Financial”), and JTH PROPERTIES 1632, LLC, a Virginia limited liability company (“1632,” and together with JTH, Properties, Software, Wefile and JTH Financial, collectively, the “Subsidiary Loan Parties,” and together with the Borrower, collectively, the “Loan Parties,” and individually, a “Loan Party”).
RECITALS:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to the Revolving Credit and Term Loan Agreement, dated as of April 30, 2012, as amended by the Waiver and Amendment to Revolving Credit and Term Loan Agreement, dated as of December 19, 2012, as amended by the Supplement and Joinder Agreement, dated as of December 28, 2012 (as further amended, supplemented, amended and restated or otherwise modified through the date hereof, the “Credit Agreement”). Capitalized terms defined in the Credit Agreement and undefined herein shall have the same defined meanings when such terms are used in this Waiver;
WHEREAS, as of the end of the Fiscal Quarter ending January 31, 2013, the Leverage Ratio of the Borrower exceeded the level then required by Section 6.1 of the Credit Agreement, and, accordingly, the Borrower was not in compliance with that requirement (the “Specified Failure”);
WHEREAS, the Borrower and the other Loan Parties have requested that the Administrative Agent and the Lenders waive their right to declare any Default or Event of Default with respect to the Specified Failure; and
WHEREAS, pursuant to Section 10.2(b) of the Credit Agreement, the Administrative Agent and the Required Lenders have agreed, subject to the terms and conditions hereinafter set forth, to grant a limited waiver with respect to the Specified Failure.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), the parties hereto hereby agree as follows:
1. Incorporation of Recitals. The foregoing recitals to this Waiver are incorporated in and made a part of this Waiver to the same extent and the same effect as if fully set forth herein.
2. Waiver. Subject to the terms and conditions of this Waiver (including, without limitation the following clauses (a) and (b)), each of the Lenders and the Administrative Agent hereby waives its right to declare a Default or an Event of Default under Sections 5.1(c), 5.2, 6.1, 8.1(d) or 8.1(e) of the Credit Agreement with respect to the Specified Failure. The foregoing shall not relieve the Borrower or any other Loan Party of their obligations to comply with the provisions of Sections 5.1(c), 5.2, 6.1, 8.1(d) or 8.1(e) of the Credit Agreement other than with respect to the circumstances of the Specified Failure. The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event not later than April 1, 2013, an unaudited consolidated balance sheet of the Borrower and its Subsidiaries as of February 28, 2013 and the related unaudited consolidated statement of income and consolidated statement of cash flows of the Borrower and its Subsidiaries for such period; and
(b) concurrently with the delivery of the financial statements referred to in clause (a) above, a Compliance Certificate signed by the principal executive officer and the principal financial officer of the Borrower reflecting a calculation of the Leverage Ratio of not greater than 4.00:1.0; provided, however, for this purpose, the determination of the Leverage Ratio (and all component definitions thereof) shall be at and based upon the period of twelve consecutive fiscal months ending February 28, 2013.
3. No Implied Waivers. Each of the Borrower and each other Loan Party acknowledges and agrees that the limited, express waiver contained herein shall not constitute a waiver, express or implied, of any other Default, Event of Default, covenant, term or provision of the Credit Agreement or any of the other Loan Documents, nor shall it create any obligation, express or implied, on the part of the Administrative Agent or any other Lender to waive, or to consent to any amendment of, any existing or future Default, Event of Default or violation of any covenant, term or provision of the Credit Agreement or any of the other Loan Documents. The Administrative Agent and the Lenders shall be entitled to require strict compliance by the Borrower and the other Loan Parties with the Credit Agreement and each of the other Loan Documents, notwithstanding the limited, express waiver contained herein, and nothing herein shall be deemed to establish a course of action or a course of dealing with respect to requests by the Borrower or any other Loan Party for waivers or amendments of any Default, Event of Default, covenant, term or provision of the Credit Agreement or any of the other Loan Documents.
4. Conditions to Effectiveness of this Waiver. This Waiver and the limited waiver contained herein shall become effective on the date (the “Waiver Effective Date”) when each of the conditions set forth below shall have been fulfilled to the satisfaction of the Administrative Agent:
(a) The Administrative Agent shall have received counterparts of this Waiver, duly executed and delivered on behalf of the Borrower and the other Loan Parties.
(b) Other than the Specified Failure, no event shall have occurred and be continuing that constitutes an Event of Default, or that would constitute an Event of Default but for the requirement that notice be given or that a period of time elapse, or both.
(c) All representations and warranties of the Borrower contained in the Credit Agreement, and all representations and warranties of each other Loan Party in each Loan Document to which it is a party, shall be true and correct in all material respects at the Waiver Effective Date as if made on and as of such Waiver Effective Date, except that (a) any representation or warranty relating to any financial statements shall be deemed to be applicable to the financial statements most recently delivered to the Administrative Agent in accordance with the provisions of the Loan Documents and (b) each other representation or warranty expressly stated to be made as of the Closing Date shall not be deemed to have been repeated as of any date other than the Closing Date.
(d) The Borrower shall have delivered to the Administrative Agent (1) certified copies of evidence of any corporate and company actions taken by the Borrower and the other Loan Parties to authorize the execution and delivery of this Waiver, (2) certified copies of any amendments to the articles or certificate of incorporation, bylaws, partnership certificate or operating agreement of the Borrower and each other Loan Party since December 28, 2012, (3) a certificate of incumbency for the officers or other authorized agents or partners of the Borrower and each other Loan Party executing this Waiver and (4) such additional supporting documents as the Administrative Agent or counsel for the Administrative Agent reasonably may request.
(e) All documents delivered pursuant to this Waiver must be of form and substance satisfactory to the Administrative Agent and its counsel, and all legal matters incident to this Waiver must be satisfactory to the Administrative Agent’s counsel.
5. Amendment Only; No Novation; Modification of Loan Documents. Each of the Borrower and each other Loan Party acknowledges and agrees that this Waiver only amends the terms of the Credit Agreement and the other Loan Documents and does not constitute a novation, and each of the Borrower and each other Loan Party ratifies and confirms the terms and provisions of, and its obligations under, the Credit Agreement and the other Loan Documents in all respects. Each of the Borrower and each other Loan Party acknowledges and agrees that each reference in the Loan Documents to any particular Loan Document shall be deemed to be a reference to such Loan Document as amended by this Waiver. To the extent of a conflict between the terms of any Loan Document and the terms of this Waiver, the terms of this Waiver shall control.
6. Successors and Assigns. This Waiver shall be binding upon and inure to the benefit of the Borrower, the other Loan Parties, the Lenders and the Administrative Agent and their respective successors and assigns.
7. No Further Amendments. Nothing in this Waiver or any prior amendment to the Loan Documents shall require the Administrative Agent or any Lender to grant any further amendments to the terms of the Loan Documents. Each of the Borrower and each other Loan Party acknowledges and agrees that there are no defenses, counterclaims or setoffs against any of their respective obligations under the Loan Documents.
8. Representations and Warranties. Each of the Borrower and each other Loan Party represents and warrants that this Waiver has been duly authorized, executed and delivered by it in accordance with resolutions adopted by its board of directors or comparable managing body.
All other representations and warranties made by the Borrower and each other Loan Party in the Loan Documents are incorporated by reference in this Waiver and are deemed to have been repeated as of the date of this Waiver with the same force and effect as if set forth in this Waiver, except that (a) any representation or warranty relating to any financial statements shall be deemed to be applicable to the financial statements most recently delivered to the Administrative Agent in accordance with the provisions of the Loan Documents and (b) each other representation or warranty expressly stated to be made as of the Closing Date shall not be deemed to have been repeated as of any date other than the Closing Date. Each of the Borrower and each other Loan Party represents and warrants to the Administrative Agent, the Lenders and the Issuing Bank that, after giving effect to the terms of this Waiver, no Default has occurred and been continuing.
9. Confirmation of Lien. Each of the Borrower and each other Loan Party hereby acknowledges and agrees that the Collateral is and shall remain in all respects subject to the lien, charge and encumbrance of the Credit Agreement and the other Loan Documents and nothing herein contained, and nothing done pursuant hereto, shall adversely affect or be construed to adversely affect the lien, charge or encumbrance of, or conveyance effected by the Loans or the priority thereof over other liens, charges, encumbrances or conveyances.
10. Ratification. The terms of the Credit Agreement and the other Loan Documents shall remain in full force and effect and are ratified and affirmed by the Borrower and each other Loan Party.
11. Fees and Expenses. The Borrower agrees to pay all out-of-pocket costs and expenses of the Administrative Agent and its Affiliates, including the fees, charges and disbursements of counsel for the Administrative Agent and its Affiliates, in connection with the preparation and administration of this Waiver.
12. Severability. Any provision of this Waiver held to be illegal, invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of the remaining provisions hereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
13. Governing Law. This Waiver shall be construed in accordance with and be governed by the law (without giving effect to the conflict of law principles thereof) of the Commonwealth of Virginia. THIS WAIVER WILL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE COMMONWEALTH OF VIRGINIA.
14. Counterparts. This Waiver may be executed by one or more of the parties to this Waiver on any number of separate counterparts (including by telecopy), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. It shall not be necessary that the signature of, or on behalf of, each party, or that the signatures of the persons required to bind any party, appear on more than one counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed by their respective duly authorized representatives all as of the day and year first above written.
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BORROWER: | ||
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JTH HOLDING, INC., a Delaware corporation | ||
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By: |
/s/Xxxx X. Xxxxxxxxxxx | |
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Name: |
Xxxx X. Xxxxxxxxxxx | |
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Title: |
Vice President and Chief Financial Officer | |
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SUBSIDIARY LOAN PARTIES: | ||
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JTH TAX, INC., a Delaware corporation | ||
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By: |
/s/Xxxx X. Xxxxxxxxxxx | |
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Name: |
Xxxx X. Xxxxxxxxxxx | |
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Title: |
Vice President and Chief Financial Officer | |
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LTS PROPERTIES, LLC, a Virginia limited liability company | ||
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By: |
JTH TAX, INC., a Delaware corporation | |
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By: |
/s/Xxxx X. Xxxxxxxxxxx |
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Xxxx X. Xxxxxxxxxxx | |
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Vice President and Chief Financial Officer | |
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LTS SOFTWARE INC., a Virginia corporation | ||
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By: |
/s/Xxxx X. Xxxxxxxxxxx | |
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Name: |
Xxxx X. Xxxxxxxxxxx | |
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Title: |
Chief Financial Officer | |
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WEFILE INC., a Virginia corporation | ||
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By: |
/s/Xxxxxxxx Xxxxx | |
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Name: |
Xxxxxxxx Xxxxx | |
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Title: |
President | |
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JTH FINANCIAL, LLC, a Virginia limited liability company | ||
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By: |
JTH HOLDING, INC., a Delaware corporation | |
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By: |
/s/Xxxx X. Xxxxxxxxxxx |
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Xxxx X. Xxxxxxxxxxx | |
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Vice President and Chief Financial Officer | |
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JTH PROPERTIES 1632, LLC, a Virginia limited liability company | ||
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By: |
JTH FINANCIAL, LLC, a Virginia limited liability company, Manager | |
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By: |
JTH HOLDING, INC., a Delaware corporation | |
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By: |
/s/Xxxx X. Xxxxxxxxxxx |
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Xxxx X. Xxxxxxxxxxx | |
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Vice President and Chief Financial Officer | |
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ADMINISTRATIVE AGENT: | |
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SUNTRUST BANK | |
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as Administrative Agent, as Issuing Bank and as Swingline Lender | |
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By: |
/s/Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Vice President |
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LENDERS: | |
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SUNTRUST BANK, as Lender | |
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By: |
/s/Xxxxx X. Xxxxxxx |
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Name: |
Xxxxx X. Xxxxxxx |
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Title: |
Vice President |
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CITIZENS BANK OF PENNSYLVANIA, as Lender | |
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By: |
/s/Xxxx Xxxxxxxx |
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Name: |
Xxxx Xxxxxxxx |
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Title: |
Vice President |
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BANK OF AMERICA, N.A., as Lender | |
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By: |
/s/Jundie Cadiena |
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Name: |
Jundie Cadiena |
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Title: |
Senior Vice President |
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BRANCH BANKING AND TRUST COMPANY, as Lender | |
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By: |
/s/S. Xxxxxx Xxxx |
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Name: |
S. Xxxxxx Xxxx |
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Title: |
Senior Vice President |
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FIRST TENNESSEE BANK NATIONAL ASSOCIATION, as Lender | |
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By: |
/s/Xxxxxx X. Xxxx III |
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Name: |
Xxxxxx X. Xxxx III |
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Title: |
Senior Vice President |
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XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Lender | |
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By: |
/s/Xxxxx Xxxxx |
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Name: |
Xxxxx Xxxxx |
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Title: |
Senior Vice President |
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CAPITAL ONE, NATIONAL ASSOCIATION, as Lender | |
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By: |
/s/Xxxxxx Xxxxxxx |
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Name: |
Xxxxxx Xxxxxxx |
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Title: |
Senior Vice President |
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BMO XXXXXX FINANCING, INC., as a Lender | |
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By: |
/s/Xxxxxxxxx Xxxxxxxxx |
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Name: |
Xxxxxxxxx Xxxxxxxxx |
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Title: |
Director |
