Exhibit 10.2
NINTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS NINTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER (the "Amendment")
is made and entered into as of the 27th day of December 2003, by and among
XXXXXX INDUSTRIES, INC., a Tennessee corporation ("Parent"), each of the other
Subsidiaries of Parent listed on the signature pages hereof (together with
Parent, collectively, "Borrowers"), and THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent and Lender ("Agent").
W I T N E S S E T H:
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WHEREAS, reference is hereby made to that certain Credit Agreement,
dated as of July 23, 2001, by and among Borrowers, Agent, and certain financial
institutions signatory from time to time thereto as Lenders (as amended,
modified, supplemented and restated from time to time the "Credit Agreement"),
pursuant to which the Lenders agreed to make certain loans to Borrowers; and
WHEREAS, Agent, Lenders and Borrowers wish to reduce the respective
amounts of the Maximum Xxxxxx Revolver Amount and the Maximum RoadOne Revolver
Amount, and to make the Ninth Amendment Date Term Loan and New Term Loan B, both
as hereinafter defined; and
WHEREAS, the Borrowers, the Agent and Lenders desire to make certain
other amendments to the Credit Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing promises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not otherwise
expressly defined herein shall have the respective meanings given to such terms
in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) Annex A to the Credit Agreement shall be amended by:
(i) amending the definition of Maximum Xxxxxx
Revolver Amount by deleting the amount "$30,000,000" and inserting in lieu
thereof the text "$13,500,000; PROVIDED, HOWEVER, that the Maximum Xxxxxx
Revolver Amount shall be increased from time to time in an amount equal to the
reduction of the Maximum RoadOne Revolver Amount set forth in the definition of
Maximum RoadOne Revolver Amount in connection with the application to the
Obligations of Net Senior Creditor Proceeds required to be applied thereto in
accordance with Section 3.4(b)(i)." ;
(ii) amending subsection (b)(iv) of the definition of
Maximum RoadOne Revolver Amount by deleting the amount "$2,500,000" and
inserting in lieu thereof the amount "$1,500,000"; and
(iii) adding thereto, in the appropriate place based
on alphabetical order, the following new defined terms:
"EARLY TERMINATION FEE" shall have the meaning ascribed to such term in
Section 3.2(b).
"NINTH AMENDMENT" means that certain "Ninth Amendment to Credit
Agreement" by and among the Borrowers, Lenders, and Agent, as identified
therein, effective as of the Ninth Amendment Effective Date.
"NINTH AMENDMENT EFFECTIVE DATE" means December 27, 2003.
(b) Section 1.3 of the Credit Agreement shall be amended by
deleting the text thereof in its entirety and inserting in lieu thereof the
following text:
1.3 TERM LOANS.
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(a) ORIGINAL TERM LOANS.
(i) AMOUNTS OF THE ORIGINAL TERM LOANS. Each
Lender severally agrees to make a term loan (any such term loan being referred
to as a "CLOSING DATE TERM LOAN" and such term loans being referred to
collectively as the "CLOSING DATE TERM LOANS") to the Borrowers on the Closing
Date, upon the satisfaction of the conditions precedent set forth in ARTICLE 8,
in an amount equal to such Lender's Pro Rata Share of $8,000,000. To the extent
that, as of the Ninth Amendment Effective Date, the outstanding balance of the
Closing Date Term Loans (the "Balance") is less than $5,000,000, Lenders, agrees
to make an additional term loan to the Borrowers (the "NINTH AMENDMENT DATE TERM
LOAN") on such date equal to the difference between $5,000,000 and the Balance.
Each Closing Date Term Loan and the Ninth Amendment Date Term Loan shall be
referred to herein individually as, an "ORIGINAL TERM LOAN", and collectively as
the "ORIGINAL TERM LOANS".
(ii) MAKING OF THE CLOSING DATE TERM LOANS.
Each Lender shall make the amount of such Lender's Closing Date Term Loans
available to the Agent in same day funds, to the Agent's designated account, not
later than 3:00 p.m. (Atlanta, Georgia time) on the Closing Date. After the
Agent's receipt of the proceeds of such Closing Date Term Loans, upon
satisfaction of the conditions precedent set forth in ARTICLE 8, the Agent shall
make the proceeds of such Closing Date Term Loans available to the Borrowers on
such Funding Date by transferring same day funds equal to the proceeds of such
Closing Date Term Loans received by the Agent to the Designated Account.
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(iii) MAKING OF THE NINTH AMENDMENT DATE
TERM LOAN. On the Ninth Amendment Effective Date, the Agent shall make the
proceeds of the Ninth Amendment Date Term Loan available to the Borrowers by
transferring same day funds equal to the Ninth Amendment Effective Date Term
Loan to the Designated Account.
(iv) ORIGINAL TERM LOAN AMORTIZATION. The
Original Term Loan shall be due and payable in consecutive monthly principal
installments of $167,000 each on the first day of each calendar month,
commencing on August 1, 2001, with a final principal installment of all unpaid
principal due and payable on the Termination Date; PROVIDED, HOWEVER, that the
principal installment payments otherwise due by the Borrowers on November 1,
2003, December 1, 2003 and January 1, 2004 in accordance with the preceding
sentence shall be deferred and shall be due and payable by the Borrowers on the
Termination Date. Each such installment shall be payable to the Agent for the
account of the applicable Lenders. Payments or prepayments of the Original Term
Loans may not be reborrowed.
(b) NEW TERM LOANS.
(i) AMOUNTS OF THE NEW TERM LOANS. Each
Lender severally agrees to make a term loan (any such term loan being referred
to as a "NEW TERM LOAN A" and such term loans being referred to collectively as
the "NEW TERM LOANS A") to the Borrowers on the date on which the Seventh
Amendment becomes effective in accordance with its terms (the "NEW TERM LOAN A
FUNDING DATE"), in an amount equal to such Lender's Pro Rata Share of
$2,000,000. In addition, CIT, as Lender hereunder, agrees to make a term loan
(the "NEW TERM LOAN B") to the Borrowers on the Ninth Amendment Effective Date,
in an amount equal to $10,000,000. Each of the New Term Loans A and the New Term
Loan B shall be referred to herein individually as, a "NEW TERM LOAN" and
collectively as, the "NEW TERM LOANS"). The New Term Loans shall initially be
Base Rate Term Loans.
(ii) MAKING OF THE NEW TERM LOANS A. Each
Lender shall make the amount of such Lender's New Term Loan A available to the
Agent in same day funds, to the Agent's designated account, not later than 3:00
p.m. (Atlanta, Georgia time) on the New Term Loan A Funding Date. After the
Agent's receipt of the proceeds of such New Term Loans A, the Agent shall make
the proceeds of such New Term Loans A available to the Borrowers on such Funding
Date by paying down the balance of the then-outstanding Revolving Credit Loans
by the aggregate amount of the New Term Loans A (without any permanent reduction
in the Commitments as a result of such pay-down).
(iii) MAKING OF THE NEW TERM LOAN B. The
Agent shall make the proceeds of the New Term Loan B available to the Borrowers
on the Ninth Amendment Effective Date by paying down the balance of the
then-outstanding Revolving Credit Loans by the aggregate amount of the New Term
Loan B (without any permanent reduction in the Commitments as a result of such
pay-down).
(iii) NEW TERM LOAN PRINCIPAL PAYMENT. The
full principal amount of the New Term Loans, together with any then unpaid
interest thereon, shall be due and payable on the Termination Date. Interest
shall be payable on the New Term Loans in accordance with SECTION 2.1(A).
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(c) Section 2.7 and Section 7.23 of the Credit Agreement shall
be amended by deleting such Sections from the Credit Agreement in their
entirety.
(d) Section 3.2 of the Credit Agreement shall be amended by
amending subsection (b) of Termination of Total Facility by deleting the last
sentence thereof in its entirety and inserting in lieu thereof the following
text:
"If this Agreement is terminated at any time from the Ninth Amendment
Effective Date through and including July 23, 2004, whether pursuant to this
Section or pursuant to SECTION 9.2, the Borrowers shall pay to the Agent, for
the account of the Lenders, an early termination fee (the "EARLY TERMINATION
FEE") in an amount equal to 2% of the sum of (i) the Maximum Revolver Amount
(after giving effect to any prior reductions thereof in accordance with SECTION
3.2(A)) PLUS (ii) the principal balance of the Term Loans; PROVIDED, HOWEVER,
that if this Agreement is terminated at any time during the aforementioned
period, and such termination is made in connection with a sale or transfer (in a
single transaction or two or more related transactions undertaken
contemporaneously) of 80% or more of the equity interest in Parent to a Person
who is not an Affiliate of Parent, the Early Termination Fee shall be an amount
equal to 1% of the sum of (iii) the Maximum Revolver Amount (after giving effect
to any prior reductions thereof in accordance with Section 3.2(a)) PLUS (iv) the
principal balance of the Term Loans. If this Agreement is terminated at any time
after July 23, 2004 but prior to the Stated Termination Date, the Early
Termination Fee shall be an amount equal to 1% of the sum of (iii) the Maximum
Revolver Amount (after giving effect to any prior reductions thereof in
accordance with Section 3.2(a)) PLUS (iv) the principal balance of the Term
Loans."
(e) Section 6.8 of the Credit Agreement shall be amended by deleting
the text thereof in its entirety and inserting in lieu thereof the following:
6.8 SOLVENCY. Each Borrower is Solvent prior to and after
giving effect to the Borrowings to
be made on the Closing Date and the issuance of the Letters of Credit to be
issued on the Closing Date, and, except for the Junior Credit Agreement Payment
Default, as defined in the Forbearance Agreement, as of the Ninth Amendment
Effective Date, shall remain Solvent during the term of this Agreement.
(f) Each reference to Material Adverse Effect in Sections
6.18, 6.24 and 8.2(a)(iii) shall be deemed amended by the following
parenthetical: "(except in respect of the Junior Credit Agreement Payment
Default, as defined in the Forbearance Agreement)"
(g) Section 7.24 of the Credit Agreement shall be amended by
deleting the text thereof in its entirety and inserting in lieu thereof the
following:
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7.24 EBITDA. On a consolidated basis, the Xxxxxx Borrowers shall
maintain an aggregate amount of EBITDA for each trailing three month period
ended as of the last day of each Fiscal Month, commencing on March 31, 2004, of
not less than $2,500,000.
(h) Schedule 1.1 to the Credit Agreement shall be amended and
restated in the form attached hereto.
3. FORBEARANCE AGREEMENT AND CERTAIN WAIVERS. Reference is hereby made
to that certain Forbearance Agreement, dated as of October 31, 2003 (the
"FORBEARANCE AGREEMENT"), entered into by the Borrowers, Agent and Lender
whereby Agent and Lenders agreed to forbear from exercising all remedies
available to them under the Credit Agreement by reason of certain Existing
Defaults (as defined in the Forbearance Agreement). In consideration of the
forbearances, the Borrowers agreed to pay to the Agent, for the benefit the
Lenders, a "Waiver and Forbearance Fee" in the amount of $200,000 and a
"Contingent Payment Fee" in the amount of $100,000. Agent and Lenders
acknowledge and agree that, as of the Ninth Amendment Effective Date, (a) the
Existing Defaults, any breach of Section 6.25 of the Credit Agreement and the
breach of Section 7.13 of the Credit Agreement described in Section 4(a)(ii) of
the Eighth Amendment, (b) the Forbearance Agreement shall be deemed terminated
and (c) the Default Rate shall no longer be charged on the Obligations in
respect of the Existing Defaults. In addition, Agent and Lenders waive both the
Waiver and Forbearance Fee and the Contingent Payment Fee in their entireties.
4. CONSENT. Agent and Lenders hereby consent, for purposes of Section
7.15 of the Credit Agreement, to the repayment by the Borrowers of the $150,000
indebtedness (the "150K Debt") described in Section 4(a)(ii) of the Eighth
Amendment.
5. RELEASE. As a material inducement to Agent and Lenders to enter
into this Amendment and to continue to make loans under the Credit Agreement, as
amended hereby, all of which are to the direct advantage and benefit of the
Borrowers, the Borrowers, for themselves and their successors and assigns, (i)
do hereby remise, release, waive, relinquish, acquit, satisfy and forever
discharge Agent and Lenders, and all of the respective past, present and future
officers, directors, employees, agents, affiliates, attorneys, representatives,
participants, heirs, successors and assigns of Agent and Lenders (collectively,
the "Discharge Parties" and each a "Discharged Party"), from any and all manner
of debts, accountings, bonds, warranties, representations, covenants, promises,
contracts, controversies, agreements, liabilities, obligations, expenses,
damages, judgments, executions, actions, suits, claims, counterclaims, demands,
defenses, setoffs, objections and causes of action of any nature whatsoever,
whether at law or in equity, either now accrued or hereafter maturing and
whether known or unknown, including, but not limited to,
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any and all claims which may be based on allegations of breach of contract,
failure to lend, fraud, promissory estoppel, libel, slander, usury, negligence,
misrepresentation, breach of fiduciary duty, bad faith, lender malpractice,
undue influence, duress, tortious interference with contractual relations,
interference with management, or misuse of control which Borrowers now have or
hereafter can, shall or may have by reason of any matter, cause, thing or event
occurring on or prior to the date of this Amendment arising out of, in
connection with or relating to (i) the Obligations, including, but not limited
to, the administration or funding thereof, (ii) the Credit Agreement and any
Loan Documents, or the indebtedness evidenced and secured thereby, and (iii) any
other agreement or transaction between Borrowers and any Discharged Party
relating to or in connection with the Loan Documents or the transactions
contemplated therein; and (b) do hereby covenant and agree never to institute or
cause to be instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against any Discharged
Party, by reason of or in connection with any of the foregoing matters, claims
or causes of action, provided, however, that the foregoing release and covenant
not to xxx shall not apply to any claims arising after the date of this
Amendment with respect to acts, occurrences or events after the date of this
Amendment.
6. FEES. Borrower shall pay to Agent, for the benefit of itself and the
Lenders, a fee of $850,000 (the "Amendment Fee") due and payable on January 2,
2004. The Amendment Fee shall be fully earned by Agent and the Lenders on the
Ninth Amendment Effective Date and shall not be subject to refund or rebate.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWERS. To induce
Agent and Lenders to enter into this Amendment, each Borrower hereby represents,
warrants and covenants to Agents and Lenders that:
(a) as of the date hereof, and after giving effect to the
terms hereof, there exists no Default or Event of Default under the
Credit Agreement or any of the other Loan Documents;
(b) each representation and warranty made or deemed to be made
in this Amendment and in the Loan Documents is true and correct in all
material respects on and as of the date of this Amendment (except to
the extent that any such representation or warranty relates to a prior
specific date or period) and Borrowers hereby reaffirm each of the
agreements, covenants and undertakings set forth in the Loan Documents
and in each and every other agreement, instrument and other document
executed in connection therewith or pursuant thereto as if Borrowers
were making said agreements, covenants and undertakings on the date
hereof;
(c) each Borrower has the power and is duly authorized to
enter into, deliver and perform this Amendment; and
(d) this Amendment and each of the Loan Documents is the
legal, valid and binding obligation of each Borrower enforceable
against it in accordance with its terms.
8. MISCELLANEOUS. Each of the Borrowers agrees to take such further
action as the Agents shall reasonably request in connection herewith to evidence
the agreements herein contained. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument. The Credit Agreement, as amended hereby, shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto. This
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Amendment shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of Georgia, but without giving effect to
principles of conflicts of laws thereof. This Amendment may not be modified,
altered or amended except by agreement in writing signed by all of the parties
hereto. Each Borrower acknowledges that it has consulted with counsel and with
such other expert advisors as it deemed necessary in connection with the
negotiation, execution and delivery of this Amendment. This Amendment shall be
construed without regard to any presumption or rule requiring that it be
construed against the party causing this Amendment or any part hereof to be
drafted.
[signature pages follow]
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IN WITNESS WHEREOF, Borrowers, the Agent and the Lenders have caused
this Agreement to be duly executed, all as of the date first above written.
"PARENT"
XXXXXX INDUSTRIES, INC.
By: /s/ J. Xxxxxxx Xxxx
J. Xxxxxxx Xxxx
Chief Financial Officer
"SUBSIDIARY XXXXXX BORROWERS"
APACO, INC.
B&B ASSOCIATED INDUSTRIES, INC.
CHEVRON, INC.
CENTURY HOLDINGS, INC.
CHAMPION CARRIER CORPORATION
COMPETITION WHEELIFT, INC.
GOLDEN WEST TOWING EQUIPMENT INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
MID AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
XXXXXX FINANCIAL SERVICES GROUP,
INC.
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
XXXXXX INDUSTRIES INTERNATIONAL,
INC.
XXXXXX INDUSTRIES TOWING
EQUIPMENT INC.
PURPOSE, INC.
SONOMA CIRCUITS, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
By:/s/ J. Xxxxxxx Xxxx
-------------------------------
J. Xxxxxxx Xxxx
Vice President and Attorney-in-Fact of each
entity listed above
[signatures continue on following pages]
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"SUBSIDIARY ROADONE BORROWERS"
AETEX, INC., F/K/A A-EXCELLENCE
TOWING CO.
ALL AMERICAN TOWING SERVICES,
INC.
B-G TOWING, INC.
BEAR TRANSPORTATION, INC.
BTRCX, INC. F/K/A BERT'S TOWING
RECOVERY CORPORATION
BBSX, INC. F/K/A XXX XXXXX SERVICES,
INC.
BASIEX, INC. F/K/A BOB'S AUTO SERVICE,
INC.
BTRX, INC.
BVSWS, INC. F/K/A XXX XXXXXXX AND SONS
WRECKER SERVICE, INC.
CAL WEST TOWING, INC.
CBTX, INC., F/K/ACEDAR BLUFF 24 HOUR
TOWING, INC.
CCASX, INC.
CEX, INC., F/K/A CHAD'S INC.
CVDC, F/K/A CLEVELAND VEHICLE
DETENTION CENTER, INC.
X.X. XXXXXXXX, INC.
DVREX, INC.
DOLLAR ENTERPRISES, INC.
DSX, INC., F/K/A XXXXXX'X SERVICES, INC.
GMAR, INC., F/K/A GOOD MECHANIC AUTO
CO. OF RICHFIELD, INC.
GREAT AMERICA TOWING, INC.
GREG'S TOWING, INC.
HTX, INC.
LTSX, INC., F/K/A LAZER TOW SERVICES, INC.
LASX, INC.
LWKR, INC.
MAEJO, INC.
MEL'S ACQUISITION CORP.
MGEX, INC.
MSTEX, INC.
MTSX INC.
XXXXXX'X TOWING, INC.
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X.X.X., INC.
PEX, INC., F/K/A/ PIPES ENTERPRISES,INC.
RMA ACQUISITION CORP.
RRIC ACQUISITION CORP.
RSX, INC., F/K/A RECOVERY SERVICES,
INC.
ROAD ONE, INC.
ROADONE EMPLOYEE SERVICES, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
ROAD ONE SPECIALIZED TRANSPORTATION, INC.
ROADONE TRANSPORTATION AND LOGISTICS, INC.
R.M.W.S., INC.
SWSX, INC. (F/K/A SUBURBAN WRECKER SERVICE,
INC.)
TEXAS TOWING CORPORATION
TPCTH, INC.
TREASURE COAST TOWING, INC.
TREASURE COAST TOWING OF XXXXXX COUNTY,
INC.
TSSC, INC., F/K/A TRUCK SALES & SALVAGE
CO., INC.
TWSX, INC.
WSX, INC., F/K/A WES'S SERVICE
INCORPORATED
WTX, INC. (F/K/A XXXXXX TOWING, INC.)
WTC, INC.
WTEX, INC.
ZTRX, INC., F/K/A XXXXXX TOWING &
RECOVERY, INC.
By: J. Xxxxxxx Xxxx
--------------------------------------
J. Xxxxxxx Xxxx
Vice President and Attorney-in-Fact
of each entity listed above
[Signatures Continue on Following Pages]
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"AGENT"
THE CIT GROUP/BUSINESS CREDIT, INC., as
Agent
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
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[Signatures Continue on Following Page]
"LENDERS"
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Vice President
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