AMENDMENT NO. 4
This AMENDMENT NO. 4 (this "Amendment") to the Bank Credit
Agreement, dated as of December 11,1998 (as previously amended by
Amendment No. 1, dated February 4, 1999, Amendment No. 2, dated June
15, 1999, and Amendment No. 3, dated October 28, 1999, collectively,
the "Credit Agreement"), is entered into as of December 17, 1999, by
and between Xxxxxxx Leasing Corp., a Delaware corporation ("Xxxxxxx"),
First Union National Bank, a national banking association ("First
Union") and BankBoston, N.A., a national banking association
("BankBoston") (each of First Union and BankBoston being referred to
hereinafter as a "Lender" and collectively as the "Lenders").
WHEREAS, the Lenders and Xxxxxxx have agreed to amend certain of
the terms and conditions of the Credit Agreement, to increase the
amount available hereunder and to extend the term of the Credit
Agreement; and
WHEREAS, capitalized terms used and not defined herein shall have
the meanings ascribed thereto in the Credit Agreement.
NOW, THEREFORE, Xxxxxxx and the Lenders hereby agree as follows:
Section 1. AMENDMENT TO THE CREDIT AGREEMENT.
Section 1.1 Section 1.1(a) is hereby amended by deleting
subsection 1.1(a)(ii)(x) and by deleting the words "(y) all other
Indebtedness" from the first sentence of Section 1.1(a)(ii) and
replacing them with the words "unsecured indebtedness."
Section 1.2 Section 1.1(b) of the Credit Agreement is hereby
amended by deleting the Section in its entirety and replacing it with
the following: 1.1(b) [RESERVED]
Section 1.3. Section 1.3 of the Credit Agreement is hereby
amended by deleting subsection (g) in its entirety. Section 1.3 is
hereby further amended by replacing the Exhibit A referenced therein
with Exhibit A attached hereto and made a part hereof.
Section 1.4 Section 1.4 of the Credit Agreement is amended by
deleting the section in its entirety and replacing it with the
following:
1.4 Interest. (a) Prior to the Revolving Expiration Date,
outstanding amounts under Facility A shall accrue interest at the
LIBOR Market Index Rate plus 95 basis points.
(b) After the Revolving Expiration Date, outstanding
amounts under Facility A shall accrue interest at LIBOR Market
Index Rate plus 150 basis points.
Section 1.5 The Credit Agreement is hereby amended by adding
the following as new Section 1.7:
1.7 Notes. Each Lender's Facility A Loans and the
obligation of Xxxxxxx to repay such Facility A Loans shall be evidenced
by a separate Note executed by Xxxxxxx and payable to the order of such
Lender.
Section 1.6 Section 2.1 of the Credit Agreement is amended by
deleting subsection (b) in its entirety, by re-lettering subsection (a)
as new subsection (b) and by adding the following as new subsection
(a):
(a) On the Revolving Expiration Date, and notwithstanding
anything else to the contrary in the Credit Agreement, the
Borrower shall pay to the Lenders all accrued and unpaid interest,
all fees which are due and owing hereunder and all outstanding
principal amounts of Facility A Loans in excess of $50,000,000.
Section 1.7 Section 2.2(a) of the Credit Agreement is hereby
deleted and replaced in its entirety with the following:
(a) Interest Periods. (i) Loans bearing interest at the LIBOR
Market Index Rate shall have an Interest Period of 90 days,
provided that, prior to the Revolving Expiration Date, the
Interest Period may be the number of days between the date of the
Facility A Loan and the Revolving Expiration Date. If any
Interest Period shall expire on a date on which Banks are required
or permitted by law in Charlotte, North Carolina, Boston,
Massachusetts or London, England to close (all days other than
such days are hereafter called "Business Days"), such Interest
Period shall expire on the next succeeding Business Day; provided
that if any Interest Period would otherwise expire on a day that
is not a Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day; and provided
further any Interest Period that begins on the last day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
relevant calendar month at the end of such Interest Period. (ii)
No Interest Period shall extend beyond the Maturity Date.
Section 1.8 Section 2.2(b) is amended by deleting the first
sentence thereof, and replacing it with the following:
(b) Interest on each LIBOR Market Index Rate based loan shall be
payable at the expiration of each Interest Period as defined in
subsection 2.2(a)(ii). After the Revolving Expiration Date,
interest on the balance outstanding from time to time shall be
payable on the Installment Payment Date.
Section 1.9 Section 2.3 is amended by deleting the section in
its entirety and replacing it with the following:
2.3 Optional Prepayment. Facility A Loans bearing interest
at the LIBOR Market Index Rate may be prepaid without penalty at
any time on one day's notice.
Section 1.10 Section 2.4 is hereby amended by deleting each
reference to a Facility B Loan.
Section 1.11 The Credit Agreement is hereby amended by adding a
new Section 7.19 as follows:
7.19 Upfront Fee. Xxxxxxx agrees to pay to each Lender a
fee at the time of execution of Amendment No. 4 in an amount equal
to $52,500 (for an aggregate total of $105,000).
Section 1.12 The Credit Agreement is hereby amended by deleting
Section 9.3 in its entirety.
Section 1.13 Section 8.1 of the Credit Agreement is hereby
amended by deleting the reference to "Section 16.29" and replacing it
with "Section 16.31."
Section 1.14 Section 10.1 of the Credit Agreement is hereby
amended by adding the following as new Section 10(j):
10(j) The consummation of a merger with UPS Truck
Leasing, Inc. by any affiliate (as the term is defined in 11
U.S.C. Section 101) of Xxxxxxx other than Xxxxxxx Leasing Corp.
Section 1.15 Section 11.1 of the Credit Agreement is hereby
amended by re-lettering the existing paragraph therein as Section
11.1(a) and adding the following as new Section 11.1(b):
11.1(b) Unless otherwise earlier terminated pursuant to the
terms of this Credit Agreement, the Lenders' obligation to make
Facility A Loans shall terminate on the Revolving Expiration Date.
Section 1.16 Section 16.9 of the Credit Agreement is amended by
deleting that section in its entirety and replacing it with the
following:
16.9 "Commitment Amount" means $170,000,000 in the aggregate
and $85,000,000 with respect to each Lender as the same may be
reduced from time to time.
Section 1.17 Section 16.31 of the Credit Agreement is hereby
amended by adding the following at the end of the sentence: "less any
intangible assets, including without limitation, goodwill."
Section 1.18 Section 16.34 of the Credit Agreement is amended by
deleting "December 10, 1999" and replacing it with "March 31, 2000."
Section 1.19 The Credit Agreement is hereby amended to delete
Sections 16.42, 16.43, 16.44 and 16.45 in their entirety.
Section 1.20 The Credit Agreement is hereby amended by deleting
Section 16.21 in its entirety and by replacing it with the following
new Section 16.21:
16.21 "LIBOR Market Index Rate", for any day, is the rate
for 1 month U.S. dollar deposits as reported on Telerate page 3750
as of 11:00 a.m., London time, on such day, or if such day is not
a London business day, then the immediately preceding London
business day (or if not so reported, then as determined by Bank
from another recognized source or interbank quotation).
Section 1.21 Exhibit C to the Credit Agreement is deleted in its
entirety and replaced with Exhibit C hereto, which is incorporated
herein by reference.
Section 2. CONSENT TO ACQUISITION. Section 2.1 Consent and
Waiver Pertaining to Acquisition. The Lenders hereby consent to
Xxxxxxx' acquisition of UPS Truck Leasing, Inc. (the "Acquisition") and
waive any default which such Acquisition may trigger pursuant to
Section 8.4 of the Credit Agreement, provided however that this waiver
and consent shall only be effective provided the terms of such
acquisition conform in all material respects to the description of the
acquisition and pro formas concerning the acquisition previously
provided to the Lenders.
Section 2.2 Delivery of Amended Borrowing Base Certificate.
Xxxxxxx hereby agrees that it shall deliver to Lenders a Borrowing Base
Certificate in the form of exhibit C attached hereto on the closing
date of the Acquisition, which Borrowing Base Certificate shall set
forth the information as to its Borrowing Base and the other matters
called for thereby as of such date. The Borrowing Base Certificate
required to be delivered herein shall calculate all information
contained therein taking into account the effect of the Acquisition.
The Borrowing Base Certificate required to be delivered herein shall be
in lieu of the requirement in Section 7.10 of the Credit Agreement that
Xxxxxxx deliver a Borrowing Base Certificate on January 25, 2000.
Section 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective upon receipt by each of the Lenders of (i) a duly
executed signature page hereto from Xxxxxxx and each of the Lenders;
(ii) a resolution of Xxxxxxx' Board of Directors authorizing this
Amendment No. 4; (iii) an incumbency certificate; (iv) promissory notes
in favor of each of the Lenders in the form of Exhibit D annexed
hereto; (v) an enforceability opinion of counsel; (vi) provision of a
certificate of good standing of Xxxxxxx; and (vii) payment of the
upfront fee.
Section 4. REPRESENTATIONS AND WARRANTIES. Xxxxxxx hereby
represents and warrants to the Lenders as follows:
Section 4.1 Representations and Warranties in Credit Agreement.
The representations and warranties of Xxxxxxx contained in the Credit
Agreement, as amended hereby, are true and correct in all material
respects when made and continue to be true and correct in all material
respects on the date hereof, except as such representations and
warranties are affected by the transactions contemplated or permitted
by the credit Agreement, as amended hereby, or are expressly made as of
a prior date.
Section 4.2 Authority, No Conflicts, etc. The execution,
delivery and performance by Xxxxxxx of this Amendment and the
consummation of the transactions contemplated hereby, (i) are within
the corporate powers of Xxxxxxx and have been duly authorized by all
necessary corporate action on the part of Xxxxxxx, (ii) do not require
any approval or consent of, or notice to or filing with, any
governmental agency or authority, any court or other tribunal, or any
other Person which has not been given or obtained, (iii) do not violate
any provisions of any law, rule, or regulation or any provision of any
order, judgment, injunction, or decree presently in effect, or any
provision of the charter documents or by-laws of Xxxxxxx, (iv) do not
result in any breach of or constitute a default under any other
agreement or instrument to which Xxxxxxx is a party or by which it or
any of its properties are bound, and (v) do not result in or require
the creation or imposition of any mortgage, deed of trust, pledge,
lien, security interest or other charge or encumbrance of any nature
upon any of the assets or properties of Xxxxxxx.
Section 5. NO OTHER AMENDMENTS OR WAIVERS. Xxxxxxx
acknowledges that except as expressly provided in this Amendment, all
of the terms and conditions of the credit Agreement shall remain in
full force and effect without any defense, counterclaim, or right or
claim of set-off. This Amendment does not, and shall not, constitute
a waiver of any present or future Default or Event of Default. Nothing
in this Amendment shall be construed to imply any willingness on the
part of the Lenders to grant any similar or other future amendment of
any of the terms and conditions of the Credit Agreement.
Section 6. EXECUTION COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by each party on a separate
counterpart, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one instrument.
In proving this Amendment, it shall not be necessary to produce or
account for more than one such counterpart signed by the party against
whom enforcement is sought.
Section 7. EFFECTIVE DATE. Subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, this Amendment
shall be deemed to be effective as of the date first above written.
Section 8. GOVERNING LAW. This Amendment shall be deemed to
be a contract under the laws of the Commonwealth of Pennsylvania and
shall for all purposes be construed in accordance with and governed by
the internal laws of said Commonwealth without reference to principles
of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
XXXXXXX LEASING CORP.
Attest: /s/ X. X. XxXxxxxxx By: /s/ I. Xxxxx Xxxxx
Title: President
Name: I. Xxxxx Xxxxx
FIRST UNION NATIONAL BANK
By: /s/ Xxxx X. Xxxxxxx
Title: Senior Vice President
Name: Xxxx X. Xxxxxxx
BANKBOSTON, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
Title: Director
Name: Xxxxxx X. Xxxxxxx
EXHIBIT A
LOAN REQUEST
____________________________
[Date]
To: First Union National Bank
and
BankBoston, N.A.
To Whom It May Concern:
The undersigned, ____________________________, refers to the Bank
Credit Agreement, dated as of _______________________ (the "Credit
Agreement"; the terms defined therein being used herein as therein
defined), between the undersigned and BankBoston, N.A. or First Union
National Bank and hereby gives you notice pursuant to Section 1.3 of
the Credit Agreement that the undersigned hereby requests a Loan under
the Credit Agreement and, in that connection, sets forth below the
information relating to such Loan, as required by Section 1.3 of the
Credit Agreement. The undersigned also represents that the requested
borrowings will not exceed the Borrowing Base Amount at any time.
Amount of the Loan requested _________________
Loan date _________________
Principal amount of loans outstanding
at the date of this request by Lender _________________
Other information requested by Lender _________________
Very truly yours,
______________________
By: ___________________
Title:
EXHIBIT C
Consolidated Borrowing Base Certificate
For______ Quarter, _________
HEADER HEADER HEADER
LEASES IN COMMERCIAL TOTAL
GOOD STANDING RENTAL FLEET
A. Net Book Value of Motor Vehicles
Maximum Commercial Rental Fleet permitted (40%
of Total of Line A per Section 16.7(c)). If Net Book
value of Commercial Rental Fleet exceeds this amount,
the Net Book Value of Commercial Rental Fleet in
Line A must be reduced to 2/3 of Net Book Value of
Eligible Equipment subject to Leases in Good Standing
in order to comply with Section 16.7(c).
B. Total Net Book Value of Eligible Equipment other than
Motor Vehicles (Not to exceed $5 Million).
C. Net Book Value of Eligible Equipment (A+B)
D. Borrowing Base Amount (90% of C)
Less Total Exclusions:
E. Other Indebtedness of Xxxxxxx
1. Xxxxxxx notes securing RTLC Collateral Trust Debentures
2. Obligations guaranteed by Xxxxxxx
3. Outstanding Letters of Credit for the account of Xxxxxxx
4. Outstanding Facility A Loans from Lenders
5. All other unsecured indebtedness of Xxxxxxx
F. Total Exclusions
G. Net Borrowing Base (D-F)
Lesser of:
H. $170,000,000
Less:
1. Outstanding Facility A Loans
2. Outstanding Letters of Credit issued by Lenders
I. Net Borrowing Base (G)
Remaining Facility A Availability
THE FOREGOING INFORMATION IS CERTIFIED TO BE CORRECT:
XXXXXXX LEASING CORP.
BY:_________________________________
NAME:______________________________
TITLE:______________________________
DATED:_____________________________
EXHIBIT D
BORROWER NOTE
December 17,1999
Xxxxxxx Leasing Corp., a Delaware corporation (the "Borrower"),
promises to pay to the order of First Union National Bank (the
"Lender") the aggregate unpaid principal amount of all Loans made by
the Lender to the Borrower pursuant to Section 1.1 of the Bank Credit
Agreement hereinafter referred to (as the same has been amended,
modified, supplemented and/or restated from time to time, the
"Agreement"), in immediately available funds at the main office (or
such other place as may be required under the Agreement) of the Lender
in Charlotte, North Carolina together with interest on the unpaid
principal amount hereof at the rates and on the dates set forth in the
Agreement. The Borrower shall pay the principal of an accrued and
unpaid interest on the Loans in accordance with the Agreement.
The Lender shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance with its
usual practice, the date and amount of each Loan and the date and
amount of each principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled
to the benefits of, the Bank Credit Agreement, dated as of December 11,
1998, as amended, among the Borrower, Bank of the Lender and
BankBoston, N.A. to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including
the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them
in the Agreement.
This Note shall be governed by the internal laws (and not the law
of conflicts) of the Commonwealth of Pennsylvania, United States of
America.
XXXXXXX LEASING CORP.
By: /s/ I. Xxxxx Xxxxx
Print Name: I. Xxxxx Xxxxx
Print Title: President
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF XXXXXXX LEASING CORP.
DATED DECEMBER 17, 1999
Principal Maturity Principal
Borrowing Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
EXHIBIT D
BORROWER NOTE
December 17, 1999
Xxxxxxx Leasing Corp., a Delaware corporation (the "Borrower"),
promises to pay to the order of BankBoston, N.A. (the "Lender") the
aggregate unpaid principal amount of all Loans made by the Lender to
the Borrower pursuant to Section 1.1 of the Bank Credit Agreement
hereinafter referred to (as the same has been amended, modified,
supplemented and/or restated from time to time, the "Agreement"), in
immediately available funds at the main office (or such other place as
may be required under the Agreement) of the Lender in Boston,
Massachusetts together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The
Borrower shall pay the principal of an accrued and unpaid interest on
the Loans in accordance with the Agreement.
The Lender shall, and is hereby authorized to, record on the
schedule attached hereto, or to otherwise record in accordance with its
usual practice, the date and amount of each Loan and the date and
amount of each principal payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled
to the benefits of, the Bank Credit Agreement, dated as of December 11,
1998, as amended, among the Borrower, Bank of the Lender and First
Union National Bank to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including
the terms and conditions under which this Note may be prepaid or its
maturity date accelerated. Capitalized terms used herein and not
otherwise defined herein are used with the meanings attributed to them
in the Agreement.
This Note shall be governed by the internal laws (and not the law
of conflicts) of the Commonwealth of Pennsylvania, United States of
America.
XXXXXXX LEASING CORP.
By: /s/ I. Xxxxx Xxxxx
Print Name: I. Xxxxx Xxxxx
Print Title: President
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF XXXXXXX LEASING CORP.
DATED DECEMBER 17, 1999
Principal Maturity Principal
Borrowing Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
