AMENDMENT NO. 5 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 5 TO CREDIT AGREEMENT (this "Amendment Agreement")
is made and entered into as of the 26th day of July, 2000, and effective as
provided in SECTION 15 hereof, by and among XXXXXX INDUSTRIES, INC., a Tennessee
corporation ("Xxxxxx"), and XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware
corporation and wholly owned subsidiary of Xxxxxx ("Xxxxxx Towing") (Xxxxxx and
Xxxxxx Towing may be referred to herein individually as a "Borrower" and
together as the "Borrowers"), EACH OF THE GUARANTORS SIGNATORY HERETO (the
"Guarantors"), BANK OF AMERICA, N.A., SUCCESSOR TO NATIONSBANK, N.A., a national
banking association organized and existing under the laws of the United States,
as agent ("Agent") for the Lenders under the Credit Agreement (as defined
below), and the Lenders signatory hereto. Unless the context otherwise requires,
all terms used herein without definition shall have the definitions provided
therefor in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Agent, the Lenders and the Borrowers have entered into
that certain Credit Agreement dated as of January 30, 1998, as amended by
Amendment No. 1 to Credit Agreement dated as of January 31, 1998 and by
Amendment No. 2 to Credit Agreement dated as of October 30, 1998 and by
Amendment No. 3 to Credit Agreement dated as of July 27, 1999 and by Amendment
No. 4 to Credit Agreement dated as of August 13, 1999 (as hereby and from time
to time amended, supplemented, modified or replaced, the "Credit Agreement"),
pursuant to which the Lenders have agreed to make and have made available to the
Borrowers a credit facility including a revolving credit facility with a letter
of credit sublimit and a swing line sublimit; and
WHEREAS, the Borrowers have requested that the terms of the Credit
Agreement be amended in the manner set forth herein, including an extension of
the maturity date of the credit facilities provided under the Credit Agreement
to August 1, 2001, and the conversion of the aggregate principal amount of
$25,000,000 in Revolving Credit Outstandings into a term loan, and the Agent and
the Lenders, subject to the terms and conditions contained herein, have agreed
to such amendment, to be effective as of April 30, 2000;
WHEREAS, the Borrowers, the Agent, and the Lenders acknowledge that the
terms of this Amendment Agreement constitute an amendment and modification of,
and not a novation of, the Credit Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereby agree as
follows:
1. DEFINITIONS. The term "Credit Agreement" or "Agreement" (as the case
may be) as used herein and in the Loan Documents shall mean the Credit Agreement
as hereby amended and modified, and as further amended, modified or supplemented
from time to time as permitted thereby. The term "Lender" as used herein and in
the Loan Documents shall include each of the financial institutions signatory
hereto as a Lender.
2. AMENDMENTS TO AND RESTATEMENTS OF TERMS OF THE CREDIT AGREEMENT.
Subject to the conditions hereof, the Credit Agreement is hereby amended,
effective as of the date hereof, as follows:
(a) The provision of the credit agreement entitled
"witnesseth" is hereby amended and restated in its entirety as follows:
"WHEREAS, the Borrowers have requested that the Lenders make
available to the Borrowers (a) a revolving credit facility in the
maximum principal amount at any time outstanding of $115,000,000, which
will include (i) a $5,000,000 sublimit for the issuance of letters of
credit and (ii) a $5,000,000 sublimit for a swing line, the proceeds of
which revolving credit facility are to be used as provided in SECTION
2.12 hereof, and (b) a term loan facility in the maximum principal
amount outstanding of $25,000,000, the proceeds of which term loan
facility are to be used as provided in SECTION 2A.10 hereof; and
WHEREAS, the Lenders are willing to make such revolving credit
facility and term loan facility available to the Borrowers, the Swing
Line Lender is willing to make the swing line facility available to the
Borrowers and the Issuing Bank is willing to issue letters of credit on
behalf of the Borrowers, all upon the terms and conditions set forth
herein;
NOW, THEREFORE, the Borrowers, the Lenders and the Agent
hereby agree as follows:"
(b) The following definitions set forth in section 1.1 Of the
credit agreement are hereby amended and restated in their entirety as follows:
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, (i) with respect to the Revolving Credit Facility and the
Letter of Credit Facility (including its Participations and its obligations
hereunder to the Issuing Bank and the Swing Line Lender to acquire
Participations), the numerator of which shall be such Lender's Revolving Credit
Commitment and the denominator of which shall be the Total Revolving Credit
Commitment, and (ii), with respect to the Term Loan Facility, the numerator of
which shall be such Lender's Term Loan Commitment and the denominator shall be
the Total Term Loan Commitment, which Applicable Commitment Percentage for each
Lender as of the Closing Date is as set forth in EXHIBIT A; PROVIDED that the
Applicable Commitment Percentage of each Lender shall be increased or decreased
to reflect any assignments to or by such Lender effected in accordance with
SECTION 12.1.
"Applicable Margin" means
(a) With respect to Loans under the Revolving Credit Facility, for each
Eurodollar Rate Loan or Base Rate Loan that percent per annum as set forth
below, which shall be (i) determined as of each Determination Date based upon
the computations set forth in the compliance certificates
furnished to the Agent pursuant to SECTIONS 8.1(A)(II) OR 8.1(B)(II) as of such
Determination Date and for the period then ended, subject to review and approval
of such computations by the Agent, and any such change shall be effective
commencing on the fifth Business Day following the date such certificate is
received (or, if earlier, the date such certificate was required under such
sections to be delivered) (the "Compliance Date") and (ii) applicable to all
Eurodollar Rate Loans and all Base Rate Loans existing on and after the most
recent Compliance Date, based upon the RATIO of (x) Consolidated Funded Total
Indebtedness as at the applicable Determination Date to (y) Consolidated EBITDA
for the Four-Quarter Period of Xxxxxx ended at the applicable Determination
Date, as specified below:
Applicable Margin for Eurodollar Rate Loans Applicable Margin for Base Rate Loans
-------------------------------------------- -------------------------------------------
Ratio of Consolidated July 26, 2000 December 1, February 1, July 26, 2000 December 1, February 1,
Funded Total Indebtedness to 2000 2001 to 2000 2001
to November 30, to and November 30, to and
------------- ---- ------------- ---
Consolidated EBITDA 2000 January 31, Thereafter 2000 January 31, Thereafter
------------------- ---- ------------ ---------- ---- ------------ ----------
2001 2001
---- ----
Greater than 3.50 to 1.00 3.75% 4.25% 4.75% 2.25% 2.75% 3.25%
Greater than or equal to 3.50% 3.50% 3.50% 2.00% 2.00% 2.00%
3.00 to 1.00 but less
than or equal to 3.50 to
1.00
Greater than or equal to 3.00% 3.00% 3.00% 1.50% 1.50% 1.50%
2.50 to 1.00 but less
than 3.00 to 1.00
Less than 2.50 to 1.00 2.50% 2.50% 2.50% 1.00% 1.00% 1.00%
(b) With respect to Loans under the Term Loan Facility, for each
Eurodollar Rate Segment or Base Rate Segment that percent per annum as set forth
below:
Applicable Margin for Eurodollar Rate Segments Applicable Margin for Base Rate Segments
------------------------------------------------------------- ------------------------------------------------------
July 26, 2000 December 1, 2000 July 26, 2000 December 1, 2000 February 1,
to to February 1, 2001 to to 2001
November 30, 2000 January 31, 2001 and Thereafter November 30, 2000 January 31, 2001 and Thereafter
----------------- ---------------- -------------- ----------------- ---------------- --------------
5.00% 6.50% 8.00% 3.50% 5.00% 6.50%
"Asset Disposition" means any voluntary disposition, whether by sale,
lease or transfer, of (a) any or all of the assets, excluding cash, cash
equivalents and inventory disposed of in the ordinary course of business, of
Xxxxxx or its Subsidiaries, and (b) any of the capital stock, or securities and
investments interchangeable, exercisable or convertible for or into, or
otherwise
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entitling the holder to receive, any of the capital stock of any Subsidiary
(other than a disposition to Xxxxxx or a Guarantor in the case of (a) and (b)).
"Capital Expenditures" means, with respect to Xxxxxx and its
Subsidiaries, for any period the SUM of (without duplication) (i) all
expenditures (whether paid in cash or accrued as liabilities) by Xxxxxx or any
Subsidiary during such period for items that would be classified as "property,
plant or equipment" or comparable items on the consolidated balance sheet of
Xxxxxx and its Subsidiaries, including without limitation all transactional
costs incurred in connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures paid for
with proceeds of casualty insurance as evidenced in writing and submitted to the
Agent together with any compliance certificate delivered pursuant to SECTION
8.1(A) or (B), PLUS (ii) with respect to any Capital Lease entered into by
Xxxxxx or its Subsidiaries during such period, the present value of the lease
payments due under such Capital Lease over the term of such Capital Lease
applying a discount rate equal to the interest rate provided in such Capital
Lease (or in the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in SECTION 8.1(A)), all of the
foregoing determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis, PLUS (iii) all
expenditures (paid in cash or accrued for) with respect to Off Balance Sheet
Liabilities of Xxxxxx, including but not limited to the Bank America Lease
Transaction and other sale/leaseback transactions.
"Commitment Fee Rate" means that percent per annum as set forth below,
which shall be (i) determined as of each Determination Date based upon the
computations set forth in the compliance certificates furnished to the Agent
pursuant to SECTIONS 8.1(A)(II) OR 8.1(B)(II) as of such Determination Date and
for the period then ended, subject to review and approval of such computations
by the Agent, and any such change shall be effective commencing on the fifth
Business Day following the date such certificate is received (or, if earlier,
the date such certificate was required under such sections to be delivered) (the
"Compliance Date") and (ii) applicable after the most recent Compliance Date,
based upon the RATIO of (x) Consolidated Funded Total Indebtedness as at the
applicable Determination Date to (y) Consolidated EBITDA for the Four-Quarter
Period of Xxxxxx ended at the applicable Determination Date, as specified below:
Commitment Fee
---------------
Ratio of Consolidated Funded July 26, 2000 December 1, 2000 February 1,
Total Indebtedness to to to 2001
Consolidated Ebitda November 30, 2000 January 31, 2001 and thereafter
------------------- ----------------- ---------------- --------------
Greater than 3.50 to 1.00 0.50% 0.625% 0.75%
Less than or equal to 3.50 to 0.50% 0.50% 0.50%
1.00
"Consolidated EBITDA" means, with respect to Xxxxxx and its
Subsidiaries for any Four-Quarter Period ending on the date of computation
thereof, (A) the SUM of, without duplication,
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(i) Consolidated Net Income, (ii) Consolidated Interest Expense, (iii) taxes on
income, (iv) amortization, (v) depreciation and (vi) non-recurring noncash
restructuring charges as approved by the Required Lenders, MINUS (B) the SUM of,
without duplication, (a) net gains on the collection of proceeds of life
insurance policies, (b) any write-up of any asset other than as permitted in
accordance with Statement No. 16 of the Financial Accounting Standards Board,
and (c) any other net gain or credit of an extraordinary nature as determined in
accordance with GAAP applied on a Consistent Basis; PROVIDED, HOWEVER, that for
each of the first four fiscal quarters following any Acquisition consummated
prior to the date of Amendment No. 5 and permitted under the Credit Agreement as
in effect prior to the effectiveness of Amendment No. 5, the calculation of
Consolidated EBITDA for each Four-Quarter Period ending on the last day of each
such fiscal quarter shall include the historical financial performance of the
acquired business for that portion of such Four-Quarter Period occurring prior
to such Acquisition, to the extent that such Acquisition has not otherwise been
reflected in Xxxxxx'x consolidated financial statements; PROVIDED, further, that
as applied in SECTION 9.1(C) hereof, Consolidated EBITDA shall be calculated for
the fiscal quarter of Xxxxxx ending on the date of computation thereof rather
than for the Four-Quarter Period ending on the date of computation thereof.
"Continue", "Continuation" and "Continued" shall refer to the
continuation pursuant to SECTIONS 2.8 OR 2A.11 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one Interest Period
to the next Interest Period.
"Convert", "Conversion" and "Converted" shall refer to a conversion
pursuant to SECTIONS 2.8 OR 2A.11 or ARTICLE V of one Type of Loan into another
Type of Loan.
"Debt Offering" means Indebtedness of Xxxxxx or any Subsidiary not
otherwise permitted under SECTION 9.4(A) through 9.4(F) which is incurred with
the consent of the Required Lenders, expressly including but not limited to
floor plan financing arrangements acceptable to the Required Lenders.
"Loan" means any borrowing pursuant to an Advance under the Revolving
Credit Facility, or the Term Loan or any Segment thereof. Notwithstanding the
foregoing, references to any "Loan" or "Loans" in SECTIONS 2.1 THROUGH 2.10
shall be deemed to refer to Revolving Loans.
"Notes" means, collectively, the promissory notes of the Borrowers
evidencing Loans and Swing Line Loans executed and delivered to the Lenders
substantially in the forms of EXHIBITS J-1, J-2 and J-3, respectively, as
amended, restated, modified, or supplemented.
"Outstandings" means, collectively, at any date, the Letter of Credit
Outstandings, the Swing Line Outstandings, the Revolving Credit Outstandings,
and the Term Loan Outstandings on such date.
"Partially-Owned Subsidiary" means a Subsidiary in which Xxxxxx or one
of Xxxxxx'x Subsidiaries owns less than 100% of the equity interest.
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"Required Lenders" means, as of any date, (i) the Lenders on such date
having Credit Exposures (as defined below) aggregating not less than 66.67% of
the aggregate Credit Exposures of all Lenders on such date AND (ii) such Lenders
include no less than one fewer than the total number of Lenders at such time For
purposes of the preceding sentence, the amount of the "Credit Exposure" of each
Lender shall be equal to the aggregate principal amount of the Loans owing to
such Lender plus the amount of such Lender's Applicable Commitment Percentage of
Letter of Credit Outstandings and Swing Line Outstandings plus the aggregate
unutilized amounts of such Lender's Revolving Credit Commitment (after
accounting for such Lender's Applicable Commitment Percentage of any Letter of
Credit Outstandings and any Swing Line Outstandings); PROVIDED that, (i) if any
Lender with a Revolving Credit Commitment shall have failed to pay to the
Issuing Bank its Applicable Commitment Percentage of any drawing under any
Letter of Credit resulting in an outstanding Reimbursement Obligation, such
Lender's Credit Exposure attributable to Letters of Credit Outstandings shall be
deemed to be held by the Issuing Bank for purposes of this definition and (ii)
if any Lender shall have failed to pay to the Swing Line Lender its Applicable
Commitment Percentage of any Swing Line Loan, such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held by the
Swing Line Lender for purposes of this definition.
"Revolving Credit Outstandings" means, as of any date of determination,
the aggregate principal amount of all Loans under the Revolving Credit Facility
then outstanding and all interest accrued thereon.
"Stated Termination Date" means August 1, 2001, or such later date as
the parties may agree pursuant to SECTION 2.13.
"Total Revolving Credit Commitment" means a principal amount equal to
$115,000,000, as reduced from time to time in accordance with SECTIONS 2.3 AND
2.7.
(c) The following definitions are hereby deleted from Section 1.1 Of
the credit agreement:
"Consolidated Fixed Charge Coverage Ratio"
"Consolidated Fixed Charges"
"Consolidated Senior Funded Indebtedness"
"Consolidated Shareholders' Equity"
"Cost of Acquisition"
"Permitted Acquisition"
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(d) The following definitions are hereby added to Section 1.1 Of the
credit agreement in alphabetical position and shall read as follows:
"Amendment No. 5" means Amendment No. 5 to Credit Agreement dated as of
July 26, 2000 by and among the Borrowers, the Agent and the Lenders.
"Apportioned Reduction of Credit Facilities" means:
(i) with respect to any mandatory prepayment specified in SECTIONS
2.3(B)(II), 2.3(b)(iii), 2A.8(II), or 2A.8(III) resulting from
either (a) the Asset Disposition of one or more Eligible
Assets or (b) any Debt Offering in connection with which the
Agent shall release one or more Eligible Assets from the Lien
thereon arising under the Security Instruments, (x) the
payment of Revolving Credit Outstandings in an aggregate
amount equal to the sum of the Eligible Asset Borrowing Base
Contributions equal to the greater of (1) the entire remaining
Net Proceeds from such sale or Debt Offering after giving
effect to the payment described in clause (x) or (2) the sum
of the Minimum Disposition Values of such Eligible Assets
reduced (in the case of item (2) only) by the amount of the
payment described in clause (x); PROVIDED, HOWEVER, that in
the event and to the extent that all Term Loan Outstandings
shall have been repaid, then the amount described in clause
(y) shall be paid as an additional prepayment of Revolving
Credit Outstandings;
(ii) with respect to any mandatory prepayment specified in SECTIONS
2.3(B)(III) or 2A.8(iii) resulting from the Asset Disposition
of any asset other than an Eligible Asset, the payment of Term
Loan Outstandings in an amount equal to the greater of (x)
100% of the Net Proceeds from such sale or disposition or (y)
the Minimum Disposition Values of the assets so sold or
disposed of; PROVIDED, HOWEVER, that in the event and to the
extent that all Term Loan Outstandings shall have been repaid,
then the amount described in this subparagraph (ii) shall be
paid as an additional prepayment of Revolving Credit
Outstandings; and
(iii) with respect to any other mandatory prepayment specified in
SECTIONS 2.3(B) and 2A.(8), including prepayments resulting
from any Equity Offering or any Debt Offering not described in
subparagraph (i) above, the payment of Term Loan Outstandings
equal to 100% of the Net Proceeds thereof; PROVIDED, HOWEVER,
that in the event and to the extent that all Term Loan
Outstandings shall have been repaid, then the amount described
in this subparagraph (iii) shall be paid as an additional
prepayment of Revolving Credit Outstandings.
"Base Rate Segment" means a Segment bearing interest or to bear
interest at the Base Rate.
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"Borrowing Base" means the sum of (i) 80% of the total amount of
Eligible Receivables, (ii) 55% of total invoice cost of Eligible Inventory,
(iii) 80% of the total net book value of Eligible Equipment, (iv) 80% of the
total appraised fair market value of Eligible Real Estate, and (v) 80% of the
total net book value of Eligible Demonstrators.
"Borrowing Base Certificate" means a certificate in the form attached
hereto as EXHIBIT N and incorporated herein by reference.
"Designated Assets" means the assets of the Company more particularly
described on a separate schedule provided by the Borrowers to the Agent on the
date of Amendment No. 5.
"Eligible Asset" means any Eligible Receivables, Eligible Inventory,
Eligible Equipment, Eligible Demonstrator, or Eligible Real Estate, as the
context may require.
"Eligible Asset Borrowing Base Contribution" means, at the time of
computation thereof, with respect to any Eligible Asset of Xxxxxx or any
Subsidiary, the amount included in the Borrowing Base at such date attributable
to such Eligible Asset.
"Eligible Demonstrators" means those vehicles which (i) are used by
Xxxxxx or a Subsidiary as a demonstration or trial model, (ii) are owned by
Xxxxxx or any Subsidiary, (iii) are subject to no Lien other than the lien of
the Agent in connection with this Agreement and Permitted Liens described in
SECTION 9.3(B) and 9.3(c) hereof and in which, at all times required by the Loan
Documents, the Agent has a duly perfected first priority Lien thereon under the
Security Instruments, (iv) are in salable and good working condition, and (v)
are garaged or located at a place of business of Xxxxxx or a Subsidiary, except
for routine off-site display or road testing by customers in the ordinary course
of business.
"Eligible Equipment" means any equipment, including new and used trucks
not constituting inventory, owned by Xxxxxx or any Subsidiary which (i) is
subject to no Lien other than the Lien of the Agent in connection with this
Agreement and Permitted Liens described in SECTION 9.3(B) and 9.3(C) hereof and
in which, at all times required by the Loan Documents, the Agent has a duly
perfected first priority Lien thereon under the Security Instruments, (ii) is in
salable and good working condition, (iii) is not stored or located (or as to
motor vehicles, garaged or otherwise permanently located) at a location other
than a place of business of Xxxxxx or a Subsidiary, and (iv) is not a
demonstrator.
"Eligible Inventory" means goods owned by Xxxxxx or any Subsidiary
which (i) are held for sale or lease, or to be furnished under contracts of
service, including finished goods, work-in-process, chassis, and raw materials,
and (ii) are subject to no Lien other than the Lien of the Agent in connection
with this Agreement and Permitted Liens described in SECTION 9.3(B) and 9.3(C)
hereof and in which, at all times required by the Loan Documents, the Agent has
a duly perfected first priority Lien thereon under the Security Instruments, but
not including (a) goods not legally owned by Xxxxxx or any Subsidiary (including
without limitation goods and chassis on consignment
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from any supplier or vendor), (b) goods not in new and salable condition or that
fails to meet any applicable government standard, including damaged goods, (c)
goods of which Xxxxxx or a Subsidiary is the legal owner which are stored or
located at a location other than a place of business of Xxxxxx or a Subsidiary,
(d) demonstrators, and (e) other inventory that the Agent in its reasonable
discretion determines to be slow moving or obsolete or otherwise, in the
exercise of its reasonable discretion, determines not to be Eligible Inventory.
"Eligible Real Estate"means any real property owned by Xxxxxx or any
Subsidiary (i) which is subject to a duly perfected first-priority lien in favor
of the Agent for the benefit of the Lenders subject only to such exceptions as
are acceptable to the Agent in its discretion, (ii) as to which there has not
occurred or is threatened to occur any taking, liability or other loss of the
utility or value thereof which the Agent in its reasonable discretion determines
to be material as a result of any theft, damage, destruction, eminent domain
proceeding, environmental claim or other occurrence on or affecting such real
estate, and (iii) with respect to which the Agent has received such additional
insurance policies and certification, opinions, and other documents as are
required to be delivered under SECTION 8.19 with respect to the real property
referred to therein.
"Eligible Receivables" means any account receivable of Xxxxxx or any
Subsidiary representing a right to receive payment of any sums due or to become
due from the sale or lease of goods or equipment and/or the performance of
services by Xxxxxx or any Subsidiary (i) as to which the creation was in the
ordinary course of business and the right to receive payment is absolute and not
contingent, and (ii) which are subject to no Lien other than the Lien of the
Agent in connection with this Agreement and Permitted Liens described in SECTION
9.3(b) hereof and in which the Agent has a duly perfected first priority Lien
thereon under the Security Instruments, PROVIDED Eligible Receivables does not
include (a) accounts aged more than ninety (90) days from the original invoice
date, (b) accounts representing monies due for goods sold or leased or services
rendered to any Affiliate of Xxxxxx or any Subsidiary, (c) accounts due from an
account debtor which has other accounts, 50% or more of which are aged more than
ninety (90) days from the original invoice date, (d) accounts due from any
Person outside the United States, Great Britain, or Canada (other than accounts
which are supported by an irrevocable letter of credit acceptable to, and if
requested by the Agent delivered to, the Agent, and accounts due from Western
Corporation in Japan in an amount not to exceed $1,000,000), (e) accounts
subject to offset by any account debtor of Xxxxxx or any Subsidiary, (f)
accounts shown on Xxxxxx'x or any Subsidiary's accounts aging report which are
not identified by a specific customer name or which have not been invoiced, (g)
any account as to which the Agent, in its reasonable discretion, is not or does
not continue to be satisfied with the credit standing of the account debtor in
relation to the amount of credit extended, (h) any account which arises out of a
contract or order which, by its terms, forbids or makes void or unenforceable
any assignment of the account arising with respect thereto, and (i) any account
that the Agent in its reasonable discretion deems doubtful of collection or
otherwise, in the exercise of its reasonable discretion, determines not to be an
Eligible Receivable.
"Eurodollar Rate Segment" means a Segment bearing interest or to bear
interest at the Eurodollar Rate.
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"Facility Termination Date" means such date as all of the following
shall have occurred: (a) the Borrowers shall have permanently terminated the
Revolving Credit Facility and the Swing Line by payment in full of all Revolving
Credit Outstandings and Letter of Credit Outstandings and Swing Line
Outstandings, together with all accrued and unpaid interest thereon, except for
the undrawn portion of Letters of Credit as have been fully cash collateralized
in a manner consistent with the terms of the LC Account Agreement, (b) the
Borrowers shall have paid all Term Loan Outstandings in full, together with all
accrued and unpaid interest thereon, (c) all Swap Agreements shall have been
terminated, expired or cash collateralized, (d) all Term Loan Commitments,
Revolving Credit Commitments and Letter of Credit Commitments shall have
terminated or expired and (e) the Borrowers shall have fully, finally and
irrevocably paid and satisfied in full all Obligations (other than Obligations
consisting of continuing indemnities and other contingent Obligations of the
Borrowers or any Guarantor that may be owing to the Lenders pursuant to the Loan
Documents and expressly survive termination of this Agreement).
"Minimum Disposition Values" means (i) with respect to Designated
Assets or other assets the disposition of which is permitted pursuant to SECTION
9.5 (E) or (F) without further consent of any Lender or the Lien in favor of the
Agent in which is released in connection with a Debt Offering otherwise
permitted hereunder, 90% of the net book value of such assets and (ii) with
respect to the disposition of any other asset, the net book value thereof.
"Navistar Intercreditor Agreement" means that certain Intercreditor
Agreement executed or to be executed by and among the Agent, International Truck
and Engine Corporation, and Navistar Financial Corporation documenting the terms
previously disclosed to the Lenders and related terms ancillary thereto.
"Navistar Consignment Agreement" means that certain Consignment and
Sales Agreement by and among the Navistar International Transportation Corp.,
Xxx Xxxxx, Inc., and Xxxxxx Towing documenting the terms previously disclosed to
the Lenders and related terms ancillary thereto.
"Revolving Loans" means any borrowing pursuant to an Advance under the
Revolving Credit Facility.
"Segment" means a portion of the Term Loan (or all thereof) with
respect to which a particular interest rate is (or is proposed to be)
applicable.
"Term Loan" means the loan made pursuant to the Term Loan Facility in
accordance with SECTION 2A.1.
"Term Loan Commitment" means, with respect to each Lender, the
obligation of such Lender to make the Term Loan to the Borrower in a principal
amount equal to such Lender's Applicable Commitment Percentage of the Total Term
Loan Commitment as set forth on EXHIBIT A.
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"Term Loan Facility" means the facility described in SECTION 2A.1
providing for a Term Loan to the Borrower by the Lenders in the original
principal amount of $25,000,000.
"Term Loan Outstandings" means, as of any date of determination, the
aggregate principal amount of the Term Loan then outstanding and all interest
accrued thereon.
"Term Loan Termination Date" means (i) the Stated Termination Date or
(ii) such earlier date of termination of Lenders' obligations pursuant to
SECTION 10.1 upon the occurrence of an Event of Default, or (iii) such date as
the Borrower may voluntarily and permanently terminate the Term Loan Facility by
payment in full of all Obligations incurred in connection with the Term Loan.
"Total Term Loan Commitment" means a principal amount equal to
$25,000,000, as reduced from time to time in accordance with SECTIONS 2A.7, 2A.8
AND 2A.9.
(e) Section 2.1(A) and (b) of the Credit Agreement are hereby amended
and restated in their entirety as follows:
2.1 Revolving Loans.
---------------
(a) COMMITMENT. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrowers under the Revolving Credit Facility from time to time from
the Closing Date until the Revolving Credit Termination Date on a pro
rata basis as to the total borrowing requested by the Borrowers on any
day determined by such Lender's Applicable Commitment Percentage up to
but not exceeding the Revolving Credit Commitment of such Lender,
PROVIDED, HOWEVER, that the Lenders will not be required and shall have
no obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent
has accelerated the maturity of any of the Notes as a result of an
Event of Default; PROVIDED FURTHER, however, that immediately after
giving effect to each such Advance, the principal amount of Revolving
Credit Outstandings plus Letter of Credit Outstandings plus Swing Line
Outstandings shall not exceed the LESSER of (i) the Borrowing Base (as
shown on the most recently delivered Borrowing Base Certificate), and
(ii) the Total Revolving Credit Commitment. Within such limits, the
Borrowers may borrow, repay and reborrow under the Revolving Credit
Facility on a Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit
Termination Date; PROVIDED, HOWEVER, that (A) no Eurodollar Rate Loan
shall be made which has an Interest Period that extends beyond the
Stated Termination Date and (B) each Eurodollar Rate Loan repaid other
than on the last day of the Interest Period with respect thereto shall
be accompanied by the additional payment, if any, required by SECTION
5.5.
(b) AMOUNTS. The aggregate unpaid principal amount of the
Revolving Credit Outstandings plus Letter of Credit Outstandings plus
Swing Line Outstandings shall not exceed at any time the lesser of (i)
the Borrowing Base or (ii) the Total Revolving Credit
11
Commitment. In the event there shall be outstanding any such excess,
the Borrowers shall immediately make such payments and prepayments as
shall be necessary to comply with this SECTION 2.1(B). Each Loan
hereunder, other than Base Rate Refunding Loans, and each Conversion
under SECTION 2.8, shall be in an amount of at least $2,000,000, and,
if greater than $2,000,000, in an integral multiple of $1,000,000.
(f) Section 2.3(b) of the Credit Agreement is hereby amended and
restated in its entirety s follows:
(b) MANDATORY PREPAYMENTS. The Borrowers shall make the
following required prepayments in respect of the Revolving Credit
Facility, each such payment to be made to the Agent for the benefit of
the Lenders within the time period specified below:
(i) EQUITY OFFERINGS. Xxxxxx shall make, or shall
cause each applicable Subsidiary to make, an Apportioned
Reduction of Credit Facilities prepayment from the Net
Proceeds of any Equity Offering. Each such prepayment shall be
made within five (5) Business Days of receipt of such Net
Proceeds and upon not less than three (3) Business Days'
written notice to the Agent, and shall include within one (1)
Business Day of repayment a certificate of an Authorized
Representative setting forth in reasonable detail the
calculations utilized in computing the amount of the Net
Proceeds.
(ii) DEBT OFFERINGS. Xxxxxx shall make, or shall
cause each applicable Subsidiary to make, an Apportioned
Reduction of Credit Facilities prepayment in connection with
any Debt Offering. Each such prepayment shall be made within
five (5) Business Days of receipt of any Net Proceeds
therefrom and upon not less than three (3) Business Days'
written notice to the Agent, and shall include within one (1)
Business Day of repayment a certificate of an Authorized
Representative setting forth in reasonable detail the
calculations utilized in computing the amount of the Net
Proceeds.
(iii) ASSET DISPOSITIONS. In the event of any Asset
Disposition by Xxxxxx or any Subsidiary, Xxxxxx shall make, or
shall cause each applicable Subsidiary to make, an Apportioned
Reduction of Credit Facilities prepayment in connection with
such Asset Disposition. Each such prepayment shall be made
within five (5) Business Days of receipt of any proceeds of
such Asset Disposition and upon not less than three (3)
Business Days' written notice to the Agent, which notice shall
include a certificate of an Authorized Representative setting
forth in reasonable detail the calculations utilized in
computing the amount of such prepayment.
All mandatory prepayments made and allocable to the Revolving
Credit Facility pursuant to this SECTION 2.3(B) shall be applied to the
principal amount remaining outstanding under the Revolving Loans (as
adjusted to give effect to any prior payments or prepayments of
principal), and shall be accompanied by payment by the Borrowers of
accrued and unpaid
12
interest on the amounts prepaid. In addition, the Total Revolving
Credit Commitment shall be permanently reduced by each amount
determined pursuant to the provisions of (i), (ii) or (iii) above which
is required as a mandatory prepayment of the Revolving Credit Facility
(even if such amount is greater than the actual principal amounts
outstanding under the Revolving Credit Facility). All prepayments under
this SECTION 2.3(B) shall be applied first to Base Rate Loans, if any,
then outstanding and the balance, if any, to such Eurodollar Rate Loans
as the Borrowers may elect in the related notice of prepayment or,
failing such election, as the Agent may elect.
(g) Section 2.7 Of the Credit Aagreement is hereby amended and restated
in its entirety as follows:
2.7 Other Commitment Reductions.
---------------------------
(a) VOLUNTARY REDUCTIONS. The Borrowers shall, by notice from
an Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Agent, effective upon receipt,
to reduce the Total Revolving Credit Commitment. The Agent shall give
each Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice or telephonic notice (confirmed in writing) of
such reduction. Each such reduction shall be in the aggregate amount of
$2,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Revolving Credit Commitment,
and shall permanently reduce the Total Revolving Credit Commitment and
the Revolving Credit Commitment of each Lender pro rata. Each reduction
of the Total Revolving Credit Commitment shall be accompanied by
payment of the Loans to the extent that the principal amount of
Revolving Credit Outstandings plus Letter of Credit Outstandings plus
Swing Line Outstandings exceeds the Total Revolving Credit Commitment
after giving effect to such reduction, together with accrued and unpaid
interest on the amounts prepaid. No such repayment or reduction shall
result in the payment of any Eurodollar Rate Loan other than on the
last day of the Interest Period of such Eurodollar Rate Loan unless
such prepayment is accompanied by amounts due, if any, under SECTION
5.5.
(b) ADDITIONAL MANDATORY REDUCTIONS. On November 30, 2000, the
Total Revolving Credit Commitment shall be automatically and
permanently reduced by the positive difference, if any, of $10,000,000
MINUS the aggregate amount of permanent reductions in the Total
Revolving Credit Commitment occurring subsequent to July 26, 2000 and
prior to November 30, 2000 resulting from a mandatory prepayment of
Revolving Credit Outstandings in connection with the sale or other
disposition of Designated Assets (pursuant to SECTION 2.3(B)). The
mandatory reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Loans to the extent that the principal
amount of Revolving Credit Outstandings plus Letter of Credit
Outstandings plus Swing Line Outstandings exceeds the Total Revolving
Credit Commitment after giving effect to such reduction, together with
accrued and unpaid interest on the amounts prepaid.
13
(h) Section 2.12 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
2.12 USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrowers and
Guarantors to finance Capital Expenditures and letters of credit and for general
working capital needs and other corporate purposes.
(i) A new Article IIA is hereby added to the Credit Agreement
immediately following Article II which shall read as follows:
ARTICLE IIA
The Term Loan
-------------
2A.1. FUNDING OF TERM LOAN. Subject to the terms and conditions of this
Agreement, simultaneously with the effectiveness of Amendment No. 5, an
aggregate principal amount of $25,000,000 in Revolving Credit Outstandings shall
be converted into and become Term Loan Outstandings, and shall constitute the
funding of the principal amount of the Term Loan. Upon such funding, (x) the
amount of Revolving Loans held by each Lender shall be reduced by such Lender's
Applicable Commitment Percentage of $25,000,000, and (y) each Lender shall hold
a principal amount of Term Loan Outstandings equal to the amount of such
reduction in such Lender's Revolving Loans. The principal amount of each Segment
outstanding under the Term Loan from time to time shall bear interest, at the
Borrower's election, at an interest rate per annum equal to the Base Rate or the
Eurodollar Rate; PROVIDED, HOWEVER, that (i) no Eurodollar Rate Segment shall
have an Interest Period that extends beyond the Stated Termination Date, (ii)
each Eurodollar Rate Segment shall be in the minimum amount of $2,000,000 and,
if greater, an integral multiple of $1,000,000 and (iii) any prepayment of the
principal amount of any Eurodollar Rate Segment other than on the last day of
the Interest Period with respect thereto shall be accompanied by the additional
payment, if any, required by SECTION 5.5. No amount of the Term Loan repaid or
prepaid by the Borrower may be reborrowed hereunder, and no subsequent advances
of Term Loan amounts shall be made by any Lender after the initial funding.
2A.2 PAYMENT OF PRINCIPAL. Subject to optional or mandatory prepayment
as specified herein, the entire principal amount of Term Loan Outstandings shall
be due and payable in full on the Term Loan Termination Date.
2A.3 PAYMENT OF INTEREST.
(a) The Borrowers shall pay interest to the Agent for the account of
each Lender on the outstanding and unpaid principal amount of the Term Loan made
by such Lender for the period commencing on the effective date of Amendment No.
5 and, with respect to any Eurodollar Rate Segment, the commencement of the
Interest Period with respect to such Segment until (but not including) the end
of the applicable Interest Period or the date any Segment shall be Continued or
be otherwise due at the then applicable Base Rate for Base Rate Segments or
applicable Eurodollar Rate
14
for Eurodollar Rate Segments, as elected by the Borrowers in the applicable
Interest Rate Selection Notice or as deemed elected by the Borrowers or
otherwise applicable to such Loan as provided herein; PROVIDED, HOWEVER, that if
any amount shall not be paid when due (at maturity, by acceleration or
otherwise) or if any other Event of Default shall have occurred and be
continuing hereunder, all amounts outstanding hereunder shall bear interest
thereafter at the Default Rate from the date such Event of Default occurred
until the date such Event of Default is cured or waived.
(b) Interest on each Eurodollar Rate Segment shall be computed on the
basis of a year of 360 days and interest on each Base Rate Segment shall be
computed on the basis of a year of 365/366 days, ands in each case calculated
for the actual number of days elapsed. Interest on the Term Loan shall be paid
(i) quarterly in arrears on the last Business Day of each March, June, September
and December commencing September 2000, with respect to each Base Rate Segment,
(ii) on the last day of the applicable Interest Period for each Eurodollar Rate
Segment and, for any Eurodollar Rate Segment having an Interest Period extending
beyond three (3) months, also on the date occurring every three (3) months after
the commencement of such Interest Period, and (iii) on the Term Loan Termination
Date.
2A.4 NON-CONFORMING PAYMENTS. (a) Each payment of principal (including
any prepayment) and payment of interest and fees, and any other amount required
to be paid to the Lenders with respect to the Term Loan, shall be made to the
Agent at the Principal Office, for the account of each Lender, in Dollars and in
immediately available funds before 12:30 P.M. on the date such payment is due.
The Borrowers shall give the Agent prior written notice of any such payment of
principal, which notice shall specify (i) the date the payment will be made and
(ii) the Segment to which payment relates and which notice shall be given prior
to 11:00 A.M. (A) in the case of Eurodollar Rate Segments, on the third Business
Day preceding the payment and (B) in the case of Base Rate Loans, on the date of
such payment. The Agent may, at the election of the Borrowers, but shall not be
obligated to, debit the amount of any such payment which is not made by such
time to any ordinary deposit account, if any, of any of the Borrowers with the
Agent.
(b) The Agent shall deem any payment made by or on behalf of the
Borrowers hereunder that is not made both (i) in Dollars and in immediately
available funds and (ii) prior to 12:30 P.M. on the date payment is due to be a
non-conforming payment. Any such payment shall not be deemed to be received by
the Agent until the later of (A) the time such funds become available funds and
(B) the next Business Day. Any non-conforming payment shall constitute a Default
or Event of Default. The Agent shall give prompt telephonic or telefacsimile
notice to the Borrowers if a non-conforming payment constitutes a Default or an
Event of Default. Interest shall continue to accrue on any principal as to which
a non-conforming payment is made until the later of (x) the date such funds
become available funds or (y) the next Business Day at the Default Rate from the
date such amount was due and payable.
(c) In the event that any payment hereunder or under the Notes
evidencing the Term Loan becomes due and payable on a day other than a Business
Day, then such due date shall be extended to the next succeeding Business Day
unless provided otherwise under clause (ii) of the
15
definition of "Interest Period"; PROVIDED that interest shall continue to accrue
during the period of any such extension.
2A.5 NOTES. The portion of the Term Loan made by each Lender shall be
evidenced by a Note in substantially the form of EXHIBIT J-3 payable to the
order of such Lender in the respective amount of its Applicable Commitment
Percentage of the Total Term Loan Commitment, which Note shall be dated the
effective date of Amendment No. 5 or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the Borrowers.
2A.6 PRO RATA PAYMENTS. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Term Loan and fees
payable under Section 2A.12 shall be made to the Agent for the account of the
Lenders pro rata based on their Applicable Commitment Percentages, (b) all
payments to be made by the Borrowers for the account of each of the Lenders on
account of principal, interest and fees, shall be made without diminution,
setoff, recoupment or counterclaim, and (c) the Agent will promptly distribute
to the Lenders in immediately available funds payments received in fully
collected, immediately available funds from the Borrowers.
2A.7 OPTIONAL PREPAYMENTS. The Borrower may prepay the Term Loan in
whole or in part from time to time on any Business Day, without penalty or
premium, upon at least three (3) Business Days' telephonic notice from an
Authorized Representative (effective upon receipt) to the Agent prior to 10:30
A.M., which notice shall be irrevocable. The Authorized Representative shall
provide the Agent written confirmation of each such telephonic notice but
failure to provide such confirmation shall not affect the validity of such
telephonic notice. Any prepayment, shall be made at a prepayment price equal to
(i) the amount of principal to be prepaid, plus (ii) all accrued and unpaid
interest on the amount so prepaid, to the date of prepayment. All prepayments
under this SECTION 2A.7 shall be made in the minimum principal amount of
$1,000,000 or any integral multiple of $100,000 in excess thereof (or in the
entire remaining principal balance of the Term Loan), and all such prepayments
of principal shall be applied first to Base Rate Segments, if any, then
outstanding and the balance, if any, to such Eurodollar Rate Segments as the
Borrowers may elect in such notice of prepayment or, failing such election, as
the Agent may elect.
2A.8 MANDATORY PREPAYMENTS. In addition to the required payments of
principal of the Term Loan set forth in SECTION 2A.2 and any optional payments
of principal of the Term Loan effected under SECTION 2A.7, the Borrower shall
make the following required prepayments of the Term Loan, each such payment to
be made to the Agent for the benefit of the Lenders within the time period
specified below:
(i) EQUITY OFFERINGS. Xxxxxx shall make, or shall
cause each applicable Subsidiary to make, an Apportioned
Reduction of Credit Facilities prepayment from the Net
Proceeds of any Equity Offering. Each such prepayment shall be
made within five (5) Business Days of receipt of such Net
Proceeds and upon not less than three (3) Business Days'
written notice to the Agent, and shall include within one (1)
Business Day of repayment a certificate of an Authorized
16
Representative setting forth in reasonable detail the
calculations utilized in computing the amount of the Net
Proceeds.
(ii) DEBT OFFERINGS. Xxxxxx shall make, or shall
cause each applicable Subsidiary to make, an Apportioned
Reduction of Credit Facilities prepayment in connection with
any Debt Offering. Each such prepayment shall be made within
five (5) Business Days of receipt of any Net Proceeds from
such Debt Offering and upon not less than three (3) Business
Days' written notice to the Agent, and shall include within
one (1) Business Day of repayment a certificate of an
Authorized Representative setting forth in reasonable detail
the calculations utilized in computing the amount of the Net
Proceeds.
(iii) ASSET DISPOSITIONS. In the event of any Asset
Disposition by Xxxxxx or any Subsidiary, Xxxxxx shall make, or
shall cause each applicable Subsidiary to make, an Apportioned
Reduction of Credit Facilities prepayment in connection with
any Asset Disposition. Each such prepayment shall be made
within five (5) Business Days of receipt of any proceeds of
such Asset Disposition and upon not less than three (3)
Business Days' written notice to the Agent, which notice shall
include a certificate of an Authorized Representative setting
forth in reasonable detail the calculations utilized in
computing the amount of such prepayment.
All mandatory prepayments made and allocable to the Term Loan
Facility pursuant to this SECTION 2A.8 shall be applied to the
principal amount remaining outstanding under the Term Loan (as adjusted
to give effect to any prior payments or prepayments of principal) and
shall be accompanied by payment by the Borrowers of accrued and unpaid
interest on the amounts prepaid. In addition, the Total Term Loan
Commitment shall be permanently reduced by the amount of each required
prepayment of the Term Loan determined pursuant to the provisions of
clauses (i), (ii) or (iii) above which is required as a mandatory
prepayment of the Term Loan Facility. All prepayments under this
SECTION 2A.8 shall be applied first to Base Rate Segments, if any, then
outstanding and the balance, if any, to such Eurodollar Rate Segments
as the Borrowers may elect in the related notice of prepayment or,
failing such election, as the Agent may elect.
2A.9 ADDITIONAL MANDATORY TERM LOAN COMMITMENT REDUCTION. On November
30, 2000, the Total Term Loan Commitment then in effect shall be automatically
and permanently reduced by the positive difference, if any, of $3,000,000 MINUS
the aggregate amount of permanent reductions in the Total Term Loan Commitment
pursuant to occurring subsequent to July 26, 2000 and prior to November 30, 2000
resulting from a mandatory prepayment of Term Loan Outstandings in connection
with the sale or other disposition of Designated Assets (pursuant to SECTION
2A.8). To the extent that the principal amount of Term Loan Outstandings exceeds
the Total Term Loan Commitment after giving effect to such reduction, the
Borrowers shall on such date prepay a principal amount of Term Loan Outstandings
equal to such excess, together with accrued and unpaid interest on the amounts
prepaid.
17
2A.10 USE OF PROCEEDS. The proceeds of the Term Loan shall be used by
the Borrowers and Guarantors to finance Capital Expenditures and letters of
credit and for general working capital needs and other corporate purposes.
2A.11 CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject
to the limitations set forth below and in ARTICLE V, the Borrowers may:
(a) upon delivery, effective upon receipt, of a properly completed
Interest Rate Selection Notice to the Agent on or before 11:00 A.M. on any
Business Day, Convert all or a part of Eurodollar Rate Segments to Base Rate
Segments on the last day of the Interest Period for such Eurodollar Rate
Segments; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing, upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before 11:00 A.M.
three (3) Business Days' prior to the date of such election or Conversion:
(i) elect a subsequent Interest Period for all or a portion of
Eurodollar Rate Segments to begin on the last day of the then current
Interest Period for such Eurodollar Rate Segments; and
(ii) Convert Base Rate Segments to Eurodollar Rate Segments on
any Business Day.
Each election and Conversion pursuant to this SECTION 2A.11 shall be
subject to the limitations on Eurodollar Rate Loans set forth in the definition
of "Interest Period" herein and in SECTIONS 2A.1 and ARTICLE V. The Agent shall
give written notice to each Lender of such notice of election or Conversion
prior to 3:00 P.M. on the day such notice of election or Conversion is received.
All such Continuations or Conversions of Segments shall be effected pro rata
based on the Applicable Commitment Percentages of the Lenders.
2A.12 TERM LOAN FACILITY FEE. The Borrowers agree to pay to the Agent,
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, a facility fee equal to 2.0% of Term Loan Outstandings on (i)
November 30, 2000 and (ii) January 31, 2001.
(j) The first line of text in Article VIII of the Credit
Agreement following the headings is hereby amended by deleting the phrase
"Revolving Credit Termination Date" and substituting in lieu thereof the phrase
"Facility Termination Date".
(k) Section 8.1 Of the Credit Agreement is hereby amended and
restated in its entirety as follows:
8.1 FINANCIAL REPORTS, ETC. (a) As soon as practical and in any event
within 90 days after the end of each Fiscal Year of Xxxxxx, deliver or cause to
be delivered to the Agent and each
18
Lender (i) consolidated balance sheets of Xxxxxx and its Subsidiaries as at the
end of such Fiscal Year, and the notes thereto, and the related consolidated
statements of income, stockholders' equity and cash flows, and the respective
notes thereto, for such Fiscal Year, setting forth comparative financial
statements for the preceding Fiscal Year, all prepared in accordance with GAAP
applied on a Consistent Basis and containing opinions of Xxxxxx Xxxxxxxx LLP, or
other such independent certified public accountants selected by Xxxxxx and
approved by the Agent, which are unqualified as to the scope of the audit
performed and as to the "going concern" status of Xxxxxx and its Subsidiaries
and without any exception not acceptable to the Required Lenders, and (ii) a
certificate of an Authorized Representative demonstrating compliance with
SECTIONS 9.1(A) through 9.1(D), 9.2 and 9.4, which certificate shall be in the
form of EXHIBIT M;
(b) as soon as practical and in any event within 45 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) consolidated balance sheets of Xxxxxx
and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income and stockholders' equity and cash flows for
such fiscal quarter and for the period from the beginning of the then current
Fiscal Year through the end of such reporting period, and accompanied by a
certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of Xxxxxx and its Subsidiaries
as of the end of such fiscal period and the results of their operations and the
changes in their financial position for such fiscal period, in conformity with
the standards set forth in GAAP with respect to interim financial statements,
and (ii) a certificate of an Authorized Representative containing computations
for such quarter comparable to that required pursuant to SECTION 8.1(a)(ii);
(c) together with each delivery of the financial statements required by
SECTION 8.1(A)(I), deliver to the Agent and each Lender a letter from Xxxxxx'x
accountants specified in SECTION 8.1(A)(I) stating that in performing the audit
necessary to render an opinion on the financial statements delivered under
SECTION 8.1(a)(i), they obtained no knowledge of any Default or Event of Default
by the Borrowers in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); or if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) as soon as practical and in any event within thirty (30) days after
the end of each month, deliver to the Agent and each Lender a Borrowing Base
Certificate in the form of EXHIBIT N;
(e) promptly upon their becoming available to Xxxxxx, deliver to the
Agent and each Lender a copy of (i) all regular or special reports or effective
registration statements which Xxxxxx or any Subsidiary shall file with the
Securities and Exchange Commission (or any successor thereto) or any securities
exchange, (ii) any proxy statement distributed by Xxxxxx or any Subsidiary to
its shareholders, bondholders or the financial community in general, and (iii)
any management letter or other report submitted to Xxxxxx or any Subsidiary by
independent accountants in connection with any annual, interim or special audit
of Xxxxxx or any Subsidiary;
19
(f) promptly deliver or cause to be delivered to the Agent written
notice of any event which constitutes or which with the passage of time or
giving of notice or both would constitute a default or event of default under
any Material Contract to which Xxxxxx or any of its Subsidiaries is a party or
by which Xxxxxx or any Subsidiary thereof or any of their respective properties
may be bound; and
(g) promptly, from time to time, deliver or cause to be delivered to
the Agent such other information regarding Xxxxxx'x and any Subsidiary's
operations, business affairs and financial condition as the Agent may reasonably
request.
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or,
SUBJECT TO SECTION 12.1(F), to any other Person who shall acquire or consider
the assignment of, or acquisition of any participation interest in, any
Obligation permitted by this Agreement PROVIDED that notice is given to Xxxxxx
if such information is delivered to a Person not enumerated herein.
(l) Section 8.19(A) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
8.19 ADDITIONAL SUPPORT DOCUMENTS.
(a) Within fifteen (15) days after the end of each
fiscal quarter, with respect to each Domestic Subsidiary
acquired or created during such fiscal quarter cause to be
delivered to the Agent for the benefit of the Lenders each of
the following:
(i) a Guaranty executed by each such
Domestic Subsidiary substantially in the form of
EXHIBIT F hereto;
(ii) a Security Agreement of such Domestic
Subsidiary substantially similar to the Security
Agreement delivered by the existing Domestic
Subsidiaries, together with such Uniform Commercial
Code financing statements on Form UCC-1 or otherwise
duly executed by such Domestic Subsidiary as "Debtor"
and naming the Agent for the benefit of the Agent and
the Lenders as "Secured Party," in form, substance
and number sufficient in the reasonable opinion of
the Agent and its special counsel to be filed in all
Uniform Commercial Code filing offices in all
jurisdictions in which filing is necessary or
advisable to perfect in favor of the Agent for the
benefit of the Agent and the Lenders the Lien on
Collateral conferred under such Security Instrument
to the extent such Lien may be perfected by Uniform
Commercial Code filing;
20
(iii) a Negative Pledge Agreement executed
by each such Domestic Subsidiary substantially in the
form of EXHIBIT I hereto;
(iv) a Pledge Agreement executed by each
such Domestic Subsidiary's stockholders substantially
in the form of EXHIBIT K-1 or K-2 hereto, as
applicable, pledging 100% (or such lesser percentage
as such Person shall own of any Partially-Owned
Subsidiary) of the capital stock and related
interests and rights of such Domestic Subsidiary, or
other comparable instrument pledging or assigning to
the Agent for the benefit of the Lenders all of the
equity, membership or partnership interest of such
Domestic Subsidiary;
(v) stock certificates representing 100% of
the capital stock and related interests and rights of
each such Domestic Subsidiary, or other appropriate
evidence of ownership of 100% of the equity,
membership or partnership interest of each such
Domestic Subsidiary, in each case together with duly
executed stock powers or powers of assignment in
blank affixed thereto, or in the case that any such
Domestic Subsidiary is a partnership or other entity
that has not issued certificates evidencing ownership
of such partnership or other entity, the Collateral
Assignment of Interests and Certificate and Receipt
of Registrar of such entity with respect to the
registration of the Lien on Assigned Interests so
long as such assignment is not prohibited by the
Governing Documents of such entity;
(vi) an opinion of counsel to each such
Domestic Subsidiary dated as of the date of delivery
of the Guaranty, Security Agreement and other Loan
Documents provided for in this SECTION 8.19(A) and
addressed to the Agent and the Lenders, in form and
substance substantially identical to the opinion of
counsel delivered pursuant to SECTION 6.1(A)(II) on
the Closing Date (including opinions covering the
Security Agreement and the validity and perfection of
the liens created thereunder), with respect to each
Loan Party which is party to any Loan Document which
such newly acquired or created Subsidiary is required
to deliver or cause to be delivered pursuant to this
SECTION 8.19(A);
(vii) current copies of the Organizational
Documents and Operating Documents of each such
Domestic Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions)
of the Board of Directors, partners, or appropriate
committees thereof (and, if required by such
Organizational Documents or Operating Documents, of
the shareholders) of such Domestic Subsidiary
authorizing the actions and the execution and
delivery of documents described in this SECTION
8.19(A); and
21
(viii) such other documents and agreements
as may be reasonably requested by the Agent,
including but not limited to (A) an agreement or
instrument granting power of attorney to VINtek (as
defined in SECTION 8.24 below) and (B) a lockbox
agreement or blocked account agreement in favor of
the Agent, and any documents related thereto, in form
and substance satisfactory to the Agent.
(m) Section 8.24 Of the Credit Agreement is hereby amended and restated
in its entirety as follows:
8.24 ADDITIONAL COLLATERAL DOCUMENTS; AUDIT.
(a) REAL PROPERTY COLLATERAL. The Borrowers agree that on or before
September 30, 2000 (unless otherwise indicated), each will deliver, and will
cause each Guarantor to deliver, and in the case of each of the Mortgages (as
defined below), duly record or cause to be duly recorded, the following, in form
and substance acceptable to the Agent:
(i) On or before August 31, 2000, Mortgages, Deeds of
Trust or other similar documentation necessary to
grant to the Agent for the benefit of the Agent and
the Lenders a lien on the real property owned by each
Borrower and each Guarantor (collectively, the
"Mortgages") described below (subject only to
existing liens approved by the Agent):
(A) Ooltewah, Tennessee real property owned by
Xxxxxx Industries Towing Equipment, Inc.;
(B) Greeneville, Tennessee real property owned
by Xxxxxx/Greeneville, Inc.;
(C) Mercer, Pennsylvania real property owned by
Chevron, Inc.; and
(D) Such other properties as described on
SCHEDULE 8.24 hereto.
(ii) Mortgagee title insurance policies from a title
insurance company satisfactory to the Agent covering
the Mortgages, in each case indicating the liens of
the Mortgages are a first lien priority (subject only
to existing liens approved by the Agent), containing
no exceptions to coverage not acceptable to the Agent
and providing a revolving credit endorsement and
other endorsements required by Agent for such policy.
(iii) Surveys for each of the properties covered by the
Mortgages.
(iv) Certification as to whether the location of each
property is within any "special flood hazard" area
within the meaning of the Federal Flood Disaster
Protection Act of 1973.
22
(v) Appraisals from a certified Appraiser selected by the
Borrowers and acceptable to the Agent for each of the
properties covered by the Mortgages.
(vi) Environmental Reports on all real property covered by
a Mortgage from an environmental firm satisfactory to
Agent showing no environmental hazards with respect
to such real property.
(vii) On or before August 31, 2000, legal opinions from
counsel for the Borrowers in Pennsylvania, Tennessee,
and in those states listed on SCHEDULE 8.24, with
respect to the documents executed and delivered under
this SECTION 8.24 and the perfection of the liens
created thereby in form and substance satisfactory to
the Agent.
(viii) Insurance policies or Certificates of Insurance, as
the Agent may require, evidencing compliance by the
Borrowers with the insurance requirements of this
Agreement and the Security Instruments with respect
to the properties covered by the Mortgages.
(ix) If any improvements (existing or proposed) on the
real property covered by the Mortgages are or will be
located in an area identified by the U.S. Department
of Housing and Urban Development as an area having
"special flood hazards," Borrowers shall furnish
flood insurance acceptable to the Agent in an amount
not less than the appraised value of the real
property to be insured or if no appraisal for such
property shall be obtained, in an amount acceptable
to the Agent.
(x) UCC-11 search reports no older than thirty (30) days
from the appropriate UCC filing office in the states
where the Borrowers and Guarantors are doing business
showing no liens or security interests on any assets
of the Borrowers or Guarantors other than Permitted
Liens.
(xi) Collateral Assignment of Lease covering the Road One
Headquarters located at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxxxx, Xxxxxxxxx covered by the Lease Agreement
dated August 6, 1997 between Xxxxxxx Limited
Partnership, as landlord, and Road One, Inc., as
lessee, together with a Landlord Consent, Waiver and
Estoppel Certificate executed by the landlord
satisfactory to Agent.
(xii) With respect to each leased location on which
inventory (other than motor vehicles) or equipment
(other than motor vehicles) in an amount deemed
material by the Agent is located, a Collateral
Assignment of Leases with respect to all real
property owned by a Borrower or Guarantor and leased
to others and all real property not owned by a
Borrower or Guarantor and leased
23
to a Borrower or Guarantor, together with, (i) on a
best efforts basis by Borrowers and Guarantors, a
Landlord Consent, Waiver and Estoppel Certificate
executed by each landlord or tenant as applicable,
and (ii) local counsel opinions covering perfection
of liens in jurisdictions in which the Agent deems
necessary.
(xiii) WITHIN SIXTY (60) DAYS after (a) the acquisition by a
Borrower or any Guarantor of any real property or (b)
the lease to or by a Borrower or any Guarantor of any
real property described in clause (xii), in either
case occurring after the date of Amendment No. 5, the
Borrowers shall deliver, or shall cause the
appropriate Guarantor to deliver, to the Agent the
items listed in clauses (i) through (ix) or (xii), as
applicable, with respect to such real property or
lease, to the satisfaction of the Agent;
PROVIDED that with respect to any real property which (i) is not and
will not in the future be included in the Borrowing Base as Eligible Real
Estate, as indicated by the Borrower on SCHEDULE 8.24 or by written notice to
the Agent, as applicable, and (ii) has a net book value of less than $150,000
(computed by aggregating the value of all contiguous or near-contiguous
properties which together constitute a single functional unit), (A) the
Borrowers shall not be required to deliver those items listed in clauses (ii),
(iii), (v) and (vi), and (B) the Borrowers shall deliver to the Agent such
documents and instruments as requested by the Agent to evidence that title to
such property is held by a Borrower or Subsidiary and any exceptions to such
title, including deeds and existing title insurance policies.
(b) CERTIFICATE OF TITLE COLLATERAL. The Borrowers agree that each will
deliver, and will cause each Guarantor to deliver, the following, in the time
periods specified therefor:
(i) With respect to all property which is a motor vehicle
or other good that is (A) covered by a certificate of
title or other comparable instrument issued under a
statute of a state under the law of which indication
of a security interest on such certificate or
instrument is required as a condition of perfection
and (B) not subject to a purchase money Lien in favor
of another creditor which is permitted by SECTION 9.3
hereof (collectively, whether such property is now
owned or hereafter acquired, "Certificate of Title
Property"), ON OR BEFORE JULY 26, 2000 the Borrowers
will deliver, and will cause each Subsidiary which is
a party to a Security Agreement to deliver, to the
Agent the original certificates of title or other
comparable instrument for all Certificate of Title
Property owned by a Borrower or any such Subsidiary
as of July 26, 2000. The Borrowers agree that the
Agent shall engage VINtek, Inc. ("VINtek") as its
agent and custodial administrator to administer and
manage the certificates of title or other comparable
documents and accomplish the perfection of liens in
favor of the Agent and the Lenders on behalf of the
Agent in the Certificate of Title Property, pursuant
to a Custodial Administration Agreement dated as of
July 26, 2000 among the Agent, the Borrowers, the
24
Guarantors, and VINtek (the "VINtek Agreement"), and
that they shall execute and cause to be executed by
the Guarantors an agreement or instrument
satisfactory to VINtek and the Agent granting power
of attorney to VINtek for the purpose of
administering and managing such certificates of title
or other comparable documents and perfecting such
Liens. The Borrowers agree that all fees and expenses
of VINtek, and all filing fees, taxes, and other
amounts incurred in connection with such perfection
and administration shall be paid by the Borrowers.
The Agent and the Lenders agree that upon request of
the Agent by the Borrowers, and subject to the
consent of the Agent, the Agent will act and will
cooperate with VINtek to effectuate a release of the
Lien of the Agent and the Lenders with respect to
certain Certificate of Title Property which is to be
sold (subject to any mandatory prepayment applicable
thereto under SECTION 2.3(B) and SECTION 2A.8).
(ii) Upon request by VINtek, and NOT LATER THAN FIVE (5)
BUSINESS DAYS FOLLOWING RECEIPT THEREOF BY EITHER OF
THE BORROWERS FROM VINTEK, the Borrowers shall
execute and deliver, and will cause each Subsidiary
which is a party to a Security Agreement to execute
and deliver, to VINtek (i) all certificates of title
or other comparable instruments which VINtek returns
or delivers to the Borrowers and instructs the
Borrowers to execute in order to accomplish
perfection of the Liens on the Certificate of Title
Property in favor of the Agent for the benefit of the
Agent and the Lenders, (ii) any applications for
notation of a security interest or other comparable
forms required in conjunction with the executed
certificates of title to accomplish perfection of
such Liens on the Certificate of Title Property which
VINtek delivers to and instructs the Borrowers to
execute or cause to be executed, and (iii) such other
certificates, agreements, notices or other items as
VINtek or the Agent deem necessary to perfect such
Liens on the Certificate of Title Property.
(iii) WITHIN TWENTY (20) DAYS after the acquisition by a
Borrower or any Subsidiary which is a party to a
Security Agreement of any Certificate of Title
Property acquired after the date of Amendment No. 5,
the Borrowers will, and will cause each Subsidiary
to: (a) execute such certificate of title as may be
required to indicate the security interest of the
Agent thereon; (b) complete and execute any
applications for notation of the Agent's security
interest or other comparable forms required by the
applicable state's law in conjunction with the
executed certificates of title in order to perfect
the Lien of the Agent for the benefit of the Agent
and the Lenders in the Certificate of Title Property;
and (c) file at its expense the items in subsections
(a) and (b), along with such other certificates,
agreements, notices, or other comparable forms as may
be necessary, with the appropriate Governmental
Authority in the applicable jurisdiction in order to
perfect such Lien.
25
(iv) The Borrower will cause the appropriate Governmental
Authority to deliver directly to VINtek, or if
delivered to a Borrower or any Subsidiary, cause to
be delivered to VINtek WITHIN FIVE (5) BUSINESS DAYS
after receipt thereof from the appropriate
Governmental Authority by a Borrower or Subsidiary,
either the original certificate of title with the
Agent's Lien noted thereon or a newly issued
certificate of title or comparable instrument, as
applicable, with the Agent's Lien noted thereon, to
be managed and administered in accordance with the
VINtek Agreement.
(c) FIELD AUDIT. The Borrowers further acknowledge and agree that,
prior to the Facility Termination Date, the Agent and its representatives may
undertake from time to time further field audits and/or valuations of the
inventory, equipment, accounts receivable, fixed assets, and field audits of the
internal controls of the Borrowers and the Guarantors and that the costs and
expenses of these audits and valuations shall be paid by the Borrowers. The
Borrowers agree to cooperate and cause the Guarantors to cooperate with the
Agent and its representatives to facilitate completion of all such audits and
valuations.
(n) Section 8.25 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
8.25 FINANCIAL ADVISOR. The Borrowers shall at their expense engage on
or before August 31, 2000 and thereafter retain a financial advisor acceptable
to the Agent, for the purpose of advising and assisting the Borrowers in the
evaluation of possible sales of assets.
(o) The first line of text in ARTICLE IX of the Credit Agreement
following the headings is hereby amended by deleting the phrase "Revolving
Credit Termination Date" and substituting in lieu thereof the phrase "Facility
Termination Date."
(p) Section 9.1 Of the Credit Agreement is hereby amended and restated
in its entirety as follows:
9.1 FINANCIAL COVENANTS.
(a) CAPITAL EXPENDITURES. Make or become permitted to make
Capital Expenditures in excess of $4,000,000 in the aggregate in any
Fiscal Year of Xxxxxx ending after April 30, 2000, or in excess of
$2,000,000 in any fiscal quarter ending on or after July 31, 2000 (on a
non-cumulative basis, with the effect that amounts not expended in any
period may not be carried forward to any other period).
(b) CONSOLIDATED FUNDED TOTAL INDEBTEDNESS TO CONSOLIDATED
EBITDA. Permit the ratio of Consolidated Funded Total Indebtedness to
Consolidated EBITDA to be greater than (i) 3.50 to 1.00 for the Fiscal
Year ending April 30, 2001 and (ii) 3.00 to 1.00 for any Four-Quarter
Period thereafter until the Facility Termination Date.
26
(c) MINIMUM CONSOLIDATED EBITDA. Permit Consolidated EBITDA to be less
than the following amounts for the following periods:
Consolidated EBITDA
Period Must Not be Less Than
------ ------------------------
Fiscal quarter ending July 31, 2000: $ 3,800,000
Fiscal quarter ending October 31, 2000: $ 5,600.000
Fiscal quarter ending January 31, 2001: $ 8,500,000
Fiscal quarter ending April 30, 2001: $10,800,000
(q) Section 9.2 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
9.2 ACQUISITIONS. Enter into any agreement, contract, binding
commitment or other arrangement providing for, or otherwise effect, any
Acquisition, or take any action to solicit the tender of securities or proxies
in respect thereof in order to effect any Acquisition.
(r) Section 9.3 of the Credit Agreement is Hereby Amended and Restated
in Its Entirety as Follows:
9.3 LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by Xxxxxx or any Subsidiary, other than Liens
created in favor of the Agent and the Lenders under the Loan Documents and the
following (collectively, the "Permitted Liens"):
(a) Liens existing as of the date hereof and as set forth in
SCHEDULE 7.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP and which Liens
are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
27
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) purchase money Liens to secure Indebtedness permitted
under SECTION 9.4(D) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% and not more than 100%
of the purchase price of such assets as of the date of purchase thereof
and no property other than the assets so purchased secures such
Indebtedness;
(f) Liens arising in connection with Capital Leases permitted
under SECTION 9.4(D) provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases;
(g) Liens arising in connection with the Navistar Consignment
Agreement and the Navistar Intercreditor Agreement; and
(h) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded) affecting real property, which
do not interfere materially with the ordinary conduct of the business
of Xxxxxx or any Subsidiary and which do not materially detract from
the value of the property to which they attach or materially impair the
use thereof to Xxxxxx or any Subsidiary.
(s) Section 9.4 of the Credit Agreement is Hereby Amended and Restated
in Its Entirety as Follows:
9.4 INDEBTEDNESS. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except the following (collectively the
"Permitted Indebtedness"):
(a) Indebtedness existing as of the Closing Date as set forth
in SCHEDULE 7.6; PROVIDED the outstanding principal amount of such
Indebtedness shall not at any time exceed $1,000,000 in the aggregate;
and PROVIDED, FURTHER, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change any terms of
subordination, repayment or rights of conversion, put, exchange or
other rights from such terms and rights as in effect on the Closing
Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
28
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness described in SECTION 9.3 and
obligations under Capital Leases in an aggregate principal amount
outstanding at any time not to exceed the sum of (i) $300,000 and (ii)
the aggregate amount of purchase money Indebtedness and obligations
under Capital Leases existing as of the date of Amendment No. 5;
(e) obligations of Xxxxxx incurred in the ordinary course of
business consistent with past practice directly or indirectly
guaranteeing any trade account Indebtedness of any Subsidiary in an
aggregate amount not to exceed $1,000,000 outstanding at any time;
(f) the Guaranty permitted hereunder of Guarantors; and
(g) any Debt Offering, PROVIDED that the proceeds thereof are
utilized to effect a mandatory prepayment as provided in SECTION 2.3(B)
and SECTION 2A.8.
(t) Section 9.5 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
9.5 TRANSFER OF ASSETS. Sell, lease, transfer or otherwise dispose of
any assets of Xxxxxx or any Subsidiary other than:
(a) dispositions of inventory in the ordinary course of
business;
(b) dispositions of property that is substantially worn,
damaged, obsolete or, in the judgment of Xxxxxx, no longer best used or
useful in its business or that of any Subsidiary;
(c) transfers of assets necessary to give effect to investment
or merger or consolidation transactions permitted by SECTIONS 9.6 and
9.7; and
(d) transfers of machinery or equipment from Xxxxxx or a
Subsidiary to any Foreign Subsidiary in the ordinary course of business
consistent with past practice, which machinery or equipment has a book
value which, when aggregated with the value of transactions with
Foreign Subsidiaries permitted by clause (b) of SECTION 9.9, does not
exceed $500,000 in any Fiscal Year;
(e) Asset Dispositions of a value not to exceed $200,000 for
any one asset or $1,000,000 in the aggregate from the date of Amendment
No. 5 for which there is made a mandatory prepayment pursuant to
SECTION 2.3(B) and SECTION 2A.8; and
(f) Asset Dispositions of Designated Assets for which there is
made a mandatory prepayment pursuant to SECTION 2.3(B) and SECTION 2A.8.
29
(u) Section 9.6 Of the Credit Agreement is hereby amended and restated
in its entirety as follows:
9.6 INVESTMENTS. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make any investment or
permit to exist any interest whatsoever in any other Person or permit to exist
any loans or advances to any Person, except that Xxxxxx and its Subsidiaries may
maintain investments or invest in:
(a) Eligible Securities;
(b) investments, including joint ventures, existing as of the
date hereof and as set forth in SCHEDULE 7.4;
(c) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(d) investments in Xxxxxx Towing or in Guarantors;
(e) loans and advances to employees in the ordinary course of
business of Xxxxxx in an aggregate amount outstanding at any one time
not to exceed $200,000; and
(f) investments in conditional sales contracts or finance
leases owned by Xxxxxx Financial and originated in connection with the
financing by Xxxxxx Financial of sales of inventory in the ordinary
course of business consistent with past practice.
(v) Section 9.7 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
9.7 MERGER OR CONSOLIDATION. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it; PROVIDED,
HOWEVER, (i) any Domestic Subsidiary of Xxxxxx may merge into or transfer all or
substantially all of its assets into or consolidate with Xxxxxx, Xxxxxx Towing
or any other wholly owned Guarantor, and (ii) any Foreign Subsidiary may merge
into or transfer all or substantially all of its assets to or consolidate with
Xxxxxx or any other Subsidiary.
(w) Section 9.8 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
9.8 RESTRICTED PAYMENTS. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing.
(x) Section 9.17 of the Credit Agreement is hereby amended and restated
in its entirety as follows:
30
9.18 PREPAYMENTS, ETC. OF INDEBTEDNESS. (a) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in any
manner, or make any payment in violation of any subordination terms of, any
Indebtedness.
(b) amend, modify or change in any manner any term or condition of any
Indebtedness described in SECTION 9.4(A) or any lease so that the terms and
conditions thereof are less favorable to the Agent and the Lenders than the
terms of such Indebtedness or leases as of the Closing Date.
(y) Section 10.1(C) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
(c) if default shall be made in the performance or observance of any
covenant set forth in SECTION 2.3(B), 2.12, 8.7, 8.11, 8.12, 8.19, 8.22, 8.24,
8.25 or ARTICLE IX; or
(Z) SECTION 12.1 OF THE CREDIT AGREEMENT IS HEREBY AMENDED AND RESTATED
IN ITS ENTIRETY AS FOLLOWS:
12.1 ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Notes, its Term Loan Commitment and its Revolving Credit Commitment);
PROVIDED, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this Agreement,
any such partial assignment shall be in an amount at least equal to $5,000,000
or an integral multiple of $5,000,000 (or, if less, the entire remaining amount
of the total of such Lender's Revolving Credit Commitment and Term Loan
Commitment) in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under the Term
Loan Facility, Revolving Credit Facility and Letter of Credit Facility and the
Notes; and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the form of
EXHIBIT B hereto, together with any Notes subject to such assignment and a
processing fee of $3,500; PROVIDED, that in the case of contemporaneous
assignments by a Lender to more than one fund managed by or advised by the same
investment advisor (which funds are not then Lenders hereunder), only a single
$3,500 fee shall be payable for all such contemporaneous assignments; and
PROVIDED FURTHER, that no such fee shall be payable by any Lender in connection
with the original issue of the Notes on the Closing Date.
31
Upon execution, delivery and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of such assignment, have the obligations, rights, and benefits of a Lender
hereunder and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under this Agreement.
Upon the consummation of any assignment pursuant to this Section, the assignor,
the Agent and the Borrowers shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If the assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrowers and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with SECTION 5.6.
(b) The Agent shall maintain at its address referred to in SECTION 12.2
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment and Term Loan Commitment of, and principal amount of
the Loans owing to, each Lender from time to time (the "REGISTER"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrowers, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrowers or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of EXHIBIT B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations at its expense to one or more
Persons in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Revolving Credit Commitment, its Term Loan
Commitment, or its Loans); PROVIDED, HOWEVER, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the Borrowers shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to its Loans and its Notes and to approve
any amendment, modification or waiver of any provision of this Agreement (other
than amendments, modifications or waivers decreasing the amount of principal of
or the rate at which interest is payable on such Loans or Notes, extending any
scheduled principal payment date or date fixed for the payment of interest on
such Loans or Notes, or extending its Revolving Credit Commitment or Term Loan
Commitment) and (iv) the sale of any such participation which requires the
Borrowers to file a registration statement with federal or state regulatory
authorities shall not be permitted.
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Notes to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal
32
Reserve Bank. No such assignment shall release the assigning Lender from its
obligations hereunder.
(f) Any Lender may furnish any information concerning Xxxxxx or any of
its Subsidiaries in the possession of such Lender from time to time to assignees
and participants (including prospective assignees and participants) so long as
such Lender shall require in writing (which writing names the Borrowers as third
party beneficiaries thereof) any such assignee or participant or prospective
assignee or participant to maintain the confidentiality of any information
delivered to it which is not publicly available.
(g) The Borrowers may not assign, nor shall they cause, suffer or
permit any Guarantor to assign, any rights, powers, duties or obligations under
this Agreement or the other Loan Documents without the prior written consent of
all the Lenders.
(aa) SECTION 12.6 OF THE CREDIT AGREEMENT is hereby amended by
adding at the beginning of clause (v) thereof the following phrase, "except as
otherwise provided for herein,"
(bb) A NEW SECTION 12.6A IS HEREBY ADDED TO THE CREDIT
AGREEMENT IMMEDIATELY FOLLOWING SECTION 12.6 WHICH SHALL READ AS FOLLOWS:
12.6A. RELEASE OF LIENS. The Agent is hereby authorized, at the request
and expense of the Borrowers, (a) to release the Liens arising under the
Security Instruments as may be necessary to effectuate any Asset Disposition or
Debt Offering otherwise permitted hereunder, and (b) to release any Guaranty of
any Subsidiary all or substantially all of the capital stock of which or other
equity interests in which are being sold in an Asset Disposition otherwise
permitted hereunder.
(cc) EXHIBIT A TO THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS SET FORTH ON ANNEX I ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE.
(dd) EXHIBIT B TO THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS SET FORTH ON ANNEX II ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE.
(ee) EXHIBIT G TO THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS SET FORTH ON ANNEX III ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE.
(ff) EXHIBIT J-1 TO THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS SET FORTH ON ANNEX IV ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE.
(gg) EXHIBIT J-3, IN THE FORM OF ANNEX V ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE, IS MADE A PART OF THE CREDIT AGREEMENT.
(hh) EXHIBIT M TO THE CREDIT AGREEMENT IS HEREBY AMENDED AND
RESTATED IN ITS ENTIRETY AS SET FORTH ON ANNEX VI ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE.
33
(ii) EXHIBIT N, IN THE FORM OF ANNEX VII ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE, IS MADE A PART OF THE CREDIT AGREEMENT.
(jj) SCHEDULE 8.24 TO THE CREDIT AGREEMENT IS HEREBY AMENDED
AND RESTATED IN ITS ENTIRETY AS SET FORTH ON ANNEX VIII ATTACHED HERETO AND
INCORPORATED HEREIN BY REFERENCE.
3. CONTINUING EFFECT OF LOAN DOCUMENTS. (a) Each Guarantor hereby (i)
consents and agrees to the amendments to the Credit Agreement set forth herein
and (ii) confirms its joint and several guarantee of payment of all the
Guarantors' Obligations pursuant to the Guaranty.
(b) Each of the Borrowers and Guarantors hereby acknowledge and agree
that each of the Security Instruments (i) remains in full force and effect and
is hereby reaffirmed, (ii) continues to secure all of the Obligations of the
Borrowers and the Guarantors' Obligations pursuant to the Guaranty, as
applicable, and (iii) notwithstanding anything to the contrary in any Security
Instrument, shall remain in effect until the Facility Termination Date.
4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
certifies that:
a. The representations and warranties made by the Borrowers in
ARTICLE VII of the Credit Agreement are true and correct in all
material respects on and as of the date hereof, with the same effect as
though such representations and warranties were made on the date
hereof, except that the financial statements referred to in SECTION
7.6(A) shall be those most recently furnished to each Lender pursuant
to SECTIONS 8.1(A) AND (B) of the Credit Agreement.
b. The Borrowers and each Subsidiary have the power and
authority to execute and perform this Amendment Agreement and have
taken all action required for the lawful execution, delivery and
performance thereof.
c. There has been no material adverse change in the business,
properties, prospects, operations or condition, financial or otherwise,
of Xxxxxx and its Subsidiaries since the date of the most recent
financial reports of Xxxxxx received by each Lender under SECTION 8.1
of the Agreement; and
d. No event has occurred and no condition exists which has not
been waived which, upon the consummation of the transaction
contemplated hereby, will constitute a Default or an Event of Default
on the part of the Borrowers under the Credit Agreement or any other
Loan Document either immediately or with the lapse of time or the
giving of notice, or both.
5. CONDITIONS TO EFFECTIVENESS. This Amendment shall not be effective
until the Agent has received to its satisfaction each of the following:
34
a. five (5) counterparts of this Amendment Agreement executed
by the Borrowers, the Guarantors, the Agent and the Lenders;
b. the duly executed (i) amended and restated Notes in the
form of EXHIBITS J- 1 to the Credit Agreement with respect to the
Revolving Credit Facility, issued in substitution for and as a
modification of the Notes issued prior to the date hereof, and (ii) new
Notes in the form of Annex V hereto with respect to the Term Loan
Facility;
c. a Borrowing Base Certificate calculated with respect to
values as of June 30, 2000, except in the case of the values of assets
of Road One, Inc. and its Subsidiaries which shall be calculated with
respect to values as of May 31, 2000, which shall constitute the
Borrowing Base Certificate until July 31, 2000;
d. an opinion of counsel to the Borrowers and the Guarantors
acceptable to the Agent with respect to the Amendment and the Notes;
e. payment of all fees then due to the Agent and the Lenders
in connection with the execution and delivery of this Amendment,
including but not limited to (i) an upfront amendment fee equal to
0.50% of $140,000,000 (the sum of the Total Revolving Credit Commitment
PLUS the Total Term Loan Commitment) payable to the Agent, for the pro
rata benefit of the Lenders based on their Applicable Commitment
Percentages, and (ii) fees and expenses of counsel to the Agent and the
Lenders;
f. delivery by the Borrowers of the documents and instruments
described in SECTION 8.24 of the Credit Agreement and required to be
delivered on or prior to the date hereof;
g. a fully executed counterpart of the Custodial
Administration Agreement among Borrowers, Guarantors, VINtek, Inc., and
the Agent;
h. a fully executed agreement or instrument by the Borrowers
and Guarantors granting power of attorney to VINtek, Inc, in form and
substance satisfactory to VINtek and the Agent, for the purpose of
performing its obligations under the Custodial Administration
Agreement;
i. a certificate from the Borrowers and the Guarantors
certifying as to:
(i) Articles of Incorporation (certified)
(ii) Bylaws
(iii) Resolutions of the Board of Directors
authorizing the execution, delivery, and
performance of this Amendment, including the
Term Loan Facility, and the agreements and
instruments described in clauses (b), (g),
(h), (j) and (k);
j. execution by the Borrowers of one or more lockbox
agreements, and any documents related thereto or deemed necessary by
the Agent in conjunction therewith
35
(collectively, the "Lockbox Agreements"), in form and substance
satisfactory to the Agent; PROVIDED, HOWEVER, that such Lockbox
Agreements shall not be deemed delivered until the occurrence of an
Event of Default;
k. such other documents, instruments and certificates as
reasonably requested by the Agent.
6. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and not one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as otherwise expressly stated herein, no representations, warranties or
commitments, express or implied, have been made by any party to the other. None
of the terms or conditions of this Amendment Agreement may be changed, modified,
waived or canceled orally or otherwise, except by writing, signed by all the
parties hereto, specifying such change, modification, waiver or cancellation of
such terms or conditions, or of any preceding or succeeding breach thereof.
7. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. COUNTERPARTS. This Amendment Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
9. GOVERNING LAW. This Agreement shall in all respects be governed by,
and construed in accordance with, the laws of the State of Georgia.
10. ENFORCEABILITY. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
11. CREDIT AGREEMENT. All references in any of the Loan Documents to
the "Credit Agreement" shall mean the Credit Agreement as amended hereby.
12. RELEASE. Borrowers and Guarantors acknowledge that they have no
existing defense, counterclaim, offset, cross-complaint, claim or demand of any
kind or nature whatsoever that can be asserted to reduce or eliminate all or any
part of their respective liability to pay in full the indebtedness outstanding
under the Credit Agreement and the Notes and the other Loan Documents. In
consideration for the execution of this Amendment Agreement, Borrowers and
Guarantors do hereby release and forever discharge the Agent and the Lenders and
all of their officers, directors,
36
employees and agents from any and all actions, causes of action, debts, dues,
claims, demands, liabilities and obligations of every kind and nature, both in
law and equity, known or unknown, which might be asserted against the Agent or
the Lenders based on actions or events occurring on or prior to the date of this
Amendment Agreement. This release applies to all matters arising out of or
relating to the Credit Agreement and the other Loan Documents and the lending,
deposit and borrowing relationships between the Borrowers, the Guarantors, the
Agent and the Lenders, including the administration, collateralization, and
funding thereof.
13. NO NOVATION. This Agreement is given as an amendment and
modification of, and not as a payment of, the Obligations of the Borrower under
the Credit Agreement and is not intended to constitute a novation of the Credit
Agreement. All of the indebtedness, liabilities and obligations owing by the
Borrower under the Credit Agreement (i) evidenced by the Notes shall continue to
be evidenced by either new Notes or amended and restated Notes issued by the
Borrower hereunder in substitution for, and not payment or novation of, the
Notes and (ii) shall continue to be secured by the "Collateral" as defined in
the Credit Agreement and the Borrower acknowledges and agrees that the
"Collateral" as defined in the Existing Credit Agreement shall continue to
constitute "Collateral" hereunder and remains subject to a security interest in
favor of the Agent for the benefit of itself and the Lenders and to secure the
liabilities of the Borrower re-evidenced by this Agreement and the other Loan
Documents.
14. DEFAULT WAIVER. Effective as of the date hereof, the Agent and the
Lenders hereby waive any Default or Event of Default resulting from any
violation by the Borrowers of any provision of SECTION 9.1 of the Credit
Agreement for the reporting period of the Borrowers ending April 30, 2000. This
waiver shall be a one-time waiver covering the period ended April 30, 2000 and
shall in no way serve to waive any obligations of the Borrowers other than as
expressly set forth above.
15. EFFECTIVE DATE OF AMENDMENT. This Amendment Agreement is effective
as of the date hereof, PROVIDED that the amendment and restatement of the
definition of "Stated Termination Date" contained in SECTION 2(B) hereof shall
be effective as of April 30, 2000.
16. SUCCESSORS AND ASSIGNS. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrowers, the Lenders and the
Agent and their respective successors, assigns and legal representatives;
PROVIDED, however, that the Borrowers, without the prior consent of the Agent,
may not assign any rights, powers, duties or obligations hereunder.
17. EXPENSES. The Borrowers agree to pay to the Agent all reasonable
costs and expenses (including without limitation legal fees and expenses)
incurred or arising in connection with the negotiation and preparation of this
Amendment Agreement.
37
18. LENDERS. Each of the financial institutions signatory hereto as a
Lender (and each other financial institution which may hereafter execute and
deliver an instrument of assignment pursuant to SECTION 12.1 of the Credit
Agreement ) shall be deemed a "Lender" and party to the Credit Agreement and
other Loan Documents and shall be entitled to all rights and benefits described
therein, be bound by the provisions thereof and perform all obligations as a
Lender thereunder.
[SIGNATURE PAGES FOLLOW.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5
to Credit Agreement to be duly executed by their duly authorized officers, all
as of the day and year first above written.
BORROWERS:
XXXXXX INDUSTRIES, INC.
By: /s/ J. Xxxxx Xxxx
Name: J. Xxxxx Xxxx
Title: XX
XXXXXX INDUSTRIES TOWING EQUIPMENT INC.
By: /s/ J. Xxxxx Xxxx
Name: J. Xxxxx Xxxx
Title: VP
AMENDMENT NO. 5 TO CREDIT AGREEMENT
SIGNATURE PAGE 1 OF 6
GUARANTORS:
XXXXXXXX WRECKER SERVICE, INC.
A-EXCELLENCE TOWING CO.
ALL AMERICAN TOWING SERVICES, INC.
ALLIED GARDENS TOWING, INC.
ALLIED TOWING AND RECOVERY, INC.
ALTAMONTE TOWING, INC.
XXXXXXXX TOWING SERVICE, INC.
APACO, INC.
APPLE TOWING CO., INC.
ARROW WRECKER SERVICE, INC.
A TO Z ENTERPRISES, INC.
B&B ASSOCIATED INDUSTRIES, INC.
B-G TOWING, INC.
BEAR TRANSPORTATION, INC.
XXXXX TOWING & RECOVERY, INC.
BERT'S TOWING RECOVERY
CORPORATION
XXXX XXXXXXX TOWING CO.
XXX XXXXX SERVICES, INC.
BOB'S AUTO SERVICE, INC.
XXX XXXXXXX AND SONS WRECKER SERVICE, INC.
BOULEVARD & TRUMBULL TOWING, INC.
XXXXXX'X, INC.
BRYRICH CORPORATION
C&L TOWING SERVICES, INC.
CAL WEST TOWING, INC.
CEDAR BLUFF 24 HOUR TOWING, INC.
CENTRAL VALLEY TOWING, INC.
CENTURY HOLDINGS, INC.
CHAD'S, INC.
CHAMPION CARRIER CORPORATION
CHEVRON, INC.
CHICAGO METRO SERVICES, INC.
XXXXXXXX XXXXXXX AUTOMOTIVE SERVICE, INC.
CLEVELAND VEHICLE DETENTION CENTER, INC.
XXXXXXX'X TOWING & RECOVERY, INC.
COMPETITION WHEELIFT, INC.
X.X. XXXXXXXX, INC.
DVR TOWING & RECOVERY, INC.
AMENDMENT NO. 5 TO CREDIT AGREEMENT
SIGNATURE PAGE 2 OF 6
DICK'S TOWING & ROAD SERVICE, INC.
DOLLAR ENTERPRISES, INC.
ON'S TOWING, INC.
XXXXXX'X SERVICES, INC.
DUN-RITE TOWING, INC.
DURU, INC.
E.B.T., INC.
EXPORT ENTERPRISES, INC.
GARY'S TOWING & SALVAGE POOL, INC.
GOLDEN WEST TOWING EQUIPMENT,
INC.
GOOD MECHANIC AUTO CO. OF
RICHFIELD, INC.
GREAT AMERICA TOWING, INC.
GREG'S TOWING, INC.
H&H TOWING ENTERPRISES, INC.
HALL'S TOWING SERVICE, INC.
XXXXXXXXXXX TOWING, INC.
H.M.R. ENTERPRISES, INC.
INTERSTATE TOWING & RECOVERY, INC.
XXXXXXX WRECKER SERVICE, INC.
XXXXXXXX ENTERPRISES, INC.
XXXXX'X, INC.
XXXXX'X OF FT. XXXXXX, INC.
KAUFF'S OF MIAMI, INC.
KAUFFS OF PALM BEACH, INC.
KEN'S TOWING, INC.
KING AUTOMOTIVE & INDUSTRIAL
EQUIPMENT, INC.
XXXXX WRECKER SERVICE, INC.
LAZER TOW SERVICES, INC.
XXXXXXXX'X AUTO SERVICE, INC.
XXXXX WRECKER SERVICE, INC.
LINCOLN TOWING ENTERPRISES, INC.
M&M TOWING AND RECOVERY, INC.
MAEJO, INC.
MEL'S ACQUISITION CORP.
MERL'S TOWING SERVICE, INC.
MID AMERICA WRECKER & EQUIPMENT
SALES, INC. OF COLORADO
MIKE'S WRECKER SERVICE, INC.
XXXXXX FINANCIAL SERVICES GROUP, INC.
XXXXXX/GREENEVILLE, INC.
XXXXXX INDUSTRIES DISTRIBUTING, INC.
AMENDMENT NO. 5 TO CREDIT AGREEMENT
SIGNATURE PAGE 3 OF 6
XXXXXX INDUSTRIES INTERNATIONAL,
INC.
XXXXX'X SERVICE & TOWING, INC.
XXXXX'X TOWING SERVICE, INC.
XXXXXXXXX'X GARAGE, INC.
XXXXXX'X TOWING, INC.
OFFICIAL TOWING, INC.
X'XXXX TRUCK SERVICE, INC.
PETE'S A TOWING, INC.
PIPES ENTERPRISES, INC.
PRO-TOW, INC.
XXXXXX'X TRUCK CENTER, INC.
PURPOSE, INC.
RAR ENTERPRISES, INC.
RANDY'S HIGH COUNTRY TOWING, INC.
XXX XXXXXX, INC.
RMA ACQUISITION CORP.
RRIC ACQUISITION CORP.
RAY'S TOWING, INC.
RECOVERY SERVICES, INC.
RETRIEVER TOWING, INC.
ROAD XXXXXX, INC.
ROAD ONE, INC.
ROADONE EMPLOYEE SERVICES, INC.
ROAD ONE INSURANCE SERVICES, INC.
ROAD ONE SERVICE, INC.
ROADONE SPECIALIZED TRANSPORTATION, INC.
ROADONE TRANSPORTATION AND LOGISTICS, INC.
XXXXX XXXXXX WRECKER SERVICE INC.
SANDY'S AUTO & TRUCK SERVICE, INC.
SAKSTRUP TOWING, INC.
SONOMA CIRCUITS, INC.
SOUTHERN WRECKER CENTER, INC.
SOUTHERN WRECKER SALES, INC.
SOUTHWEST TRANSPORT, INC.
SPEED'S AUTOMOTIVE, INC.
SPEED'S RENTALS, INC.
XXXXX'X AUTOMOTIVE SERVICES, INC.
SUBURBAN WRECKER SERVICE, INC.
TEAM TOWING AND RECOVERY, INC.
TED'S OF FAYVILLE, INC.
AMENDMENT NO. 5 TO CREDIT AGREEMENT
SIGNATURE PAGE 4 OF 6
TEXAS TOWING CORPORATION
XXXXXXXX'X WRECKER SERVICE, INC.
TOW PRO CUSTOM TOWING & HAULING, INC.
TREASURE COAST TOWING, INC.
TRUCK SALES & SALVAGE CO., INC.
WES'S SERVICE INCORPORATED
WESTERN TOWING; XXXXXXX/XXXXXX
ENTERPRISES, INC.
WHITEY'S TOWING, INC.
XXXXXX TOWING, INC.
ZEBRA TOWING, INC.
XXXXXX TOWING & RECOVERY, INC.
By: /s/ J. Xxxxx Xxxx
Name: J. Xxxxx Xxxx
Title: Attorney-in-fact
AMENDMENT NO. 5 TO CREDIT AGREEMENT
SIGNATURE PAGE 5 OF 6
AGENT AND LENDERS:
BANK OF AMERICA, N.A.
SUCCESSOR TO NATIONSBANK, N.A.,
as Agent for the Lenders and as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
AMSOUTH BANK, FORMERLY KNOWN AS
FIRST AMERICAN NATIONAL BANK
By: /s/ P. Xxxx Xxxxxx
Name: P. Xxxx Xxxxxx
Title: S.R. V.P.
SUNTRUST BANK
By: /s/ Xxx X. Xxxx
Name: Xxx X. Xxxx
Title: Vice President
AMENDMENT NO. 5 TO CREDIT AGREEMENT
SIGNATURE PAGE 6 OF 6
ANNEX I
NEW EXHIBIT A
EXHIBIT A
Applicable Commitment Percentages
Lender Revolving Term Applicable
------ Credit Loan Commitment
Commitment Commitment Percentage
---------- ---------- ----------
Bank of America, N.A $ 62,428,571.43 $ 13,571,428.57 54.0000000000%
Wachovia Bank, N.A $ 19,714,285.71 $ 4,285,714.29 17.1428571429%
AmSouth Bank, f/k/a
First American National Bank $ 16,428,571.43 $ 3,571,428.57 14.0000000000%
SunTrust Bank $ 16,428,571.43 $ 3,571,428.57 14.0000000000%
ANNEX II
NEW EXHIBIT B
Form of Assignment and Acceptance
DATED ,
--------------- ----
Reference is made to the Credit Agreement dated as of January 30, 1998
(as from time to time amended, restated, supplemented, modified, or replaced,
the "Agreement") among XXXXXX INDUSTRIES, INC., a Tennessee corporation
("Xxxxxx"), XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware Corporation
("Xxxxxx Towing," and together with Xxxxxx, the "Borrowers"), the Lenders (as
defined in the Agreement), and Bank of America, N.A., successor to NationsBank,
National Association, as Agent for the Lenders ("Agent"). Unless otherwise
defined herein, terms defined in the Agreement are used herein with the same
meanings.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest in the Term Loan Commitment and the Revolving Credit
Commitment specified on SCHEDULE 1. After giving effect to such sale and
assignment, the Assignee's Revolving Credit Commitment and Term Loan Commitment
and the amount of the Loans owing to the Assignee will be as set forth on
SCHEDULE 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under the
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iv) attaches the Notes held by the Assignor and requests that the Agent
exchange such Notes for new Notes payable to the order of the Assignee in an
amount equal to the Revolving Credit Commitment and Term Loan Commitment,
respectively, assumed by the Assignee pursuant hereto and to the Assignor in an
amount equal to the Revolving Credit Commitment and Term Loan Commitment
retained by the Assignor, if any, as specified on SCHEDULE 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
SECTION 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision
B-1
to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit Agreement
as are delegated to the Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service or other forms required under SECTION
5.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent and approval
by Xxxxxx if required under the Credit Agreement. The effective date for this
Assignment and Acceptance (the "EFFECTIVE DATE") shall be the date of acceptance
hereof by the Agent and approval by Xxxxxx if required under the Credit
Agreement, unless otherwise specified on SCHEDULE 1.
5. Upon such acceptance and recording by the Agent and approval by
Xxxxxx if required under the Credit Agreement, as of the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent and approval by
Xxxxxx if required under the Credit Agreement, from and after the Effective
Date, the Agent shall make all payments under the Credit Agreement and the Notes
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Georgia.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of SCHEDULE 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
B-2
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance and SCHEDULE 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the date specified
thereon.
[NAME OF ASSIGNOR], as Assignor
By:
-----------------------------------------------
Title:
Dated: , 20 _
-----------
[NAME OF ASSIGNEE], as Assignee
By:
------------------------------------------------
Title:
Lending Office:
Accepted [and Approved] *
this ___ day of ___________, 20 _
BANK OF AMERICA, N.A., as Agent
By:
-----------------------------
Title:
[Approved this ____ day
of ____________, 20__
XXXXXX INDUSTRIES, INC.
By: ]*
------------------------
Title:
* Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
B-3
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
a. Revolving Credit Facility:
Percentage interest of Revolving Credit Commitment assigned: ________%
Assignee's Revolving Credit Commitment: $_______
Aggregate outstanding principal amount of
Revolving Loans assigned: $_______
Principal amount of Revolving Note payable
to Assignee: $_______
Principal amount of Revolving Note payable
to Assignor: $_______
b. Term Loan Facility
Percentage interest of Term Loan Commitment assigned: ________%
Assignee's Term Loan Commitment: $_______
Aggregate outstanding principal amount of
Term Loans assigned: $_______
Principal amount of Term Note payable
to Assignee: $_______
Principal amount of Term Note payable
to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): _______, 20__
B-4
ANNEX III
NEW EXHIBIT G
Form of Interest Rate Selection Notice
To: Bank of America, N.A.,
as Agent
Xxxxxxxxxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
30, 1998 among XXXXXX INDUSTRIES, INC., a Tennessee corporation ("Xxxxxx"),
XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation ("Xxxxxx
Towing," and together with Xxxxxx, the "Borrowers"), the Lenders (as defined in
the Agreement), and Bank of America, N.A., successor to NationsBank, National
Association, as Agent for the Lenders ("Agent"), as from time to time amended,
restated, supplemental, modified or replaced (the "Agreement"). Capitalized
terms used but not defined herein shall have the respective meanings therefor
set forth in the Agreement.
The Borrowers through their Authorized Representative hereby give
notice to the Agent of the following selection of a type of Loan or Segment and
Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
--------- ------ ------ ------------
a. Revolving Credit Loans:
----------------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
b. Term Loan Segment:
-----------------
Base Rate Loan ______ _________ ____________
Eurodollar Rate Loan ______ _________ ____________
--------------------------------------------------
(1) For any Eurodollar Rate Loan or Eurodollar Rate Segment, one, two,
three or six months.
(2) Must be $2,000,000 or if greater an integral multiple of $1,000,000,
unless a Base Rate Refunding Loan.
G-1
(3) At least three (3) Business Days later if a Eurodollar Rate Loan or
Eurodollar Rate Segment.
XXXXXX INDUSTRIES, INC.
XXXXXX INDUSTRIES TOWING EQUIPMENT INC.
BY:___________________________________
Authorized Representative
DATE:_________________________________
X-0
XXXXX XX
XXXXXXX X-0
Form of Revolving Note
Amended and Restated Promissory Note
(Revolving Loan)
$__________________________ Charlotte, North Carolina
------- --, ----
FOR VALUE RECEIVED, XXXXXX INDUSTRIES, INC., a Tennessee corporation
having its principal place of business located in Ooltewah, Tennessee ("Xxxxxx")
and XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation having its
principal place of business located in Ooltewah, Tennessee ("Xxxxxx Towing")
(Xxxxxx and Xxxxxx Towing each are referred to as a "Borrower" and collectively,
the "Borrowers"), hereby promise to pay to the order of
________________________________ (the "Lender"), in its individual capacity, at
the office of BANK OF AMERICA, N.A., as agent for the Lenders (the "Agent"),
located at One Independence Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places as the Agent
may designate in writing) at the times set forth in the Credit Agreement dated
as of January 30, 1998 among the Borrowers, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (as amended, supplemented or
restated and in effect from time to time, the "Agreement"; all capitalized terms
not otherwise defined herein shall have the respective meanings set forth in the
Agreement), in lawful money of the United States of America in immediately
available funds, the principal amount of ___________________________ DOLLARS
($___________) or, if less than such principal amount, the aggregate unpaid
principal amount of all Revolving Loans made by the Lender to the Borrowers
pursuant to the Agreement on the Revolving Credit Termination Date or such
earlier date as may be required pursuant to the terms of the Agreement, and to
pay interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in ARTICLE II of
the Agreement. All or any portion of the principal amount of Revolving Loans may
be prepaid or required to be prepaid as provided in the Agreement.
Each Borrower shall be jointly and severally liable as a primary
obligor.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereafter shall bear interest which shall be payable on
demand at the rates per annum set forth in the proviso to SECTION 2.2(A) of the
Agreement or the maximum rate permitted under applicable law, if lower, until
such principal and interest have been paid in full. Further, in the event of
such acceleration, this Note shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrowers.
J-1-1
In the event any amount evidenced by this Note is not paid when due at
any stated or accelerated maturity, the Borrowers agree to pay, in addition to
the principal and interest, all costs of collection, including reasonable
attorneys' fees and disbursements, and interest due hereunder thereon at the
rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Note is one of the Notes referred to in the Agreement evidencing
Revolving Loans and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Loans evidenced hereby were
or are made and are to be repaid. The obligations evidenced hereby are secured
by the Security Instruments. This Note is subject to certain restrictions on
transfer or assignment as provided in the Agreement.
This Note is given as a substitution of, and not as a payment of, the
obligations of the Borrowers under the existing Note dated January 30, 1998 of
the Borrower payable to the Lender (the "Existing Note"), other than those
evidenced by the Note issued in connection with the Term Loan. The indebtedness,
liabilities and obligations owing by the Borrower under the Existing Note
continue to be evidenced by this Note delivered in substitution for, and not
payment or novation of, the Existing Note.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issued against any other of them and returned unsatisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, dishonor, demand or any other formality are hereby
waived by all parties bound hereon.
This Note shall be governed by and construed in accordance with the law
of the State of Georgia.
[SIGNATURE PAGE FOLLOWS.]
J-1-2
IN WITNESS WHEREOF, each of the Borrowers has caused this Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
XXXXXX INDUSTRIES, INC.
ATTEST:
Seceretary By:
-------------------- -----------------------------
Name:
-----------------------------
Title:
----------------------------
(SEAL)
XXXXXX INDUSTRIES TOWING EQUIPMENT INC.
ATTEST:
By:
----------------------------------
Secretary Name:
------------------------- --------------------------------
Title:
-------------------------------
(SEAL)
X-0-0
XXXXX X
XXXXXXX X-0
Form of Term Note
Promissory Note
(Term Loan)
$__________________________ Charlotte, North Carolina
------- --, ----
FOR VALUE RECEIVED, XXXXXX INDUSTRIES, INC., a Tennessee corporation
having its principal place of business located in Ooltewah, Tennessee ("Xxxxxx")
and XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware corporation having its
principal place of business located in Ooltewah, Tennessee ("Xxxxxx Towing")
(Xxxxxx and Xxxxxx Towing each are referred to as a "Borrower" and collectively,
the "Borrowers"), hereby promise to pay to the order of
________________________________ (the "Lender"), in its individual capacity, at
the office of BANK OF AMERICA, N.A., as agent for the Lenders (the "Agent"),
located at One Independence Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 (or at such other place or places as the Agent
may designate in writing) at the times set forth in the Credit Agreement dated
as of January 30, 1998 among the Borrowers, the financial institutions party
thereto (collectively, the "Lenders") and the Agent (as amended, supplemented or
restated and in effect from time to time, the "Agreement"; all capitalized terms
not otherwise defined herein shall have the respective meanings set forth in the
Agreement), in lawful money of the United States of America in immediately
available funds, the principal amount of ____________________________ DOLLARS
($___________) on the Term Loan Termination Date or such earlier date as may be
required pursuant to the terms of the Agreement, and to pay interest from the
date hereof on the unpaid principal amount hereof, in like money, at said
office, on the dates and at the rates provided in ARTICLE II of the Agreement.
All or any portion of the principal amount of the Term Loan may be prepaid or
required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount hereof and
accrued but unpaid interest thereon evidenced by this Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest due hereunder, all costs of collection, including reasonable
attorneys' fees, and interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
J-3-1
This Note is one of the Notes referred to in the Agreement evidencing
the Term Loan and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Term Loan evidenced hereby
was made and is to be repaid. The obligations evidenced hereby are secured by
the Security Instruments. This Note is subject to certain restrictions on
transfer or assignment as provided in the Agreement.
The indebtedness evidenced by this Note constitutes a continuation and
modification of a portion of that indebtedness previously outstanding under the
Revolving Credit Facility. This Note is given as a substitution of, and not as a
payment of, the existing Note dated January 30, 1998 of the Borrower payable to
the Lender (the "Existing Note"). All of the indebtedness, liabilities and
obligations owing by the Borrower under the Existing Note shall continue and be
evidenced in part by this Note delivered in partial substitution for, and not
payment or novation of, the Existing Note.
This Note shall be governed by and construed in accordance with the
laws of the State of Georgia.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned unsatisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
J-3-2
IN WITNESS WHEREOF, each of the Borrowers has caused this Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
XXXXXX INDUSTRIES, INC.
ATTEST:
By:
------------------------------------- ------------------------------
Secretary Name:
------------------------ ----------------------------
Title:
---------------------------
(SEAL)
XXXXXX INDUSTRIES TOWING EQUIPMENT INC.
ATTEST:
By:
------------------------------------- ------------------------------
Secretary Name:
------------------------- ----------------------------
TITLE:
---------------------------
(SEAL)
J-3-3
ANNEX VI
NEW EXHIBIT M
Compliance Certificate
Bank of America, N.A., successor
to NationsBank, N.A.
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
30, 1998 (, as from time to time amended, restated, modified, replaced, or
supplemented the "Agreement") among XXXXXX INDUSTRIES, INC., a Tennessee
corporation ("Xxxxxx"), XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware
corporation ("Xxxxxx Towing," and together with Xxxxxx, the "Borrowers"), the
Lenders (as defined in the Agreement) and Bank of America, N.A., successor to
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies to you as of
_____________, 20___ (the "Determination Date") as follows:
1. Calculations
A. Compliance with Section 9.1(a): Capital Expenditures
TOTAL FOR FISCAL QUARTER: __________________
TOTAL FOR FISCAL YEAR: __________________
REQUIRED: MAXIMUM OF $2,000,000 IN ANY FISCAL QUARTER.
--------
MAXIMUM OF $4,000,000 IN ANY FISCAL YEAR.
B. Compliance with Section 9.1(b): Consolidated Funded
Total Indebtedness to Consolidated EBITDA
1. Consolidated Funded Total Indebtedness $__________
2. Consolidated EBITDA for such FOUR-QUARTER PERIOD $__________
-------------------
a. Consolidated Net Income $__________
b. Consolidated Interest Expense $__________
c. Taxes on income $__________
d. Amortization $__________
M-1
e. Depreciation $__________
f. Non-recurring noncash
restructuring charges (if approved)$__________
g. Net gains on the collection of
proceeds of life insurance
policies $__________
h. Write-ups of any assets other than
permitted by FAS 16 $__________
i. Other extraordinary net gains
or credits $__________
TOTAL ([a + b +c + d + e + f] -
[g + h + i] $__________
3. Ratio of B.2 to B.1 ____ to ____
REQUIRED: 1. LINE 3 MUST NOT BE MORE THAN 3.50
TO 1.00 FOR FISCAL YEAR ENDING APRIL 30, 2001
2. LINE 3 MUST NOT BE MORE THAN 3.00
TO 1.00 FOR ANY FOUR-QUARTER PERIOD ENDING
APRIL 30, 2001
C. Compliance with Section 9.1(c): Minimum Consolidated EBITDA
1. Consolidated EBITDA for such fiscal QUARTER just ended $__________
-------
a. Consolidated Net Income $__________
b. Consolidated Interest Expense $__________
c. Taxes on income $__________
d. Amortization $__________
e. Depreciation $__________
f. Non-recurring noncash
restructuring charges (if approved)$__________
g. Net gains on the collection of
proceeds of life insurance
policies $__________
h. Write-ups of any assets other than
permitted by FAS 16 $__________
i. Other extraordinary net gains
or credits $__________
TOTAL ([a + b +c + d + e + f] -
[g + h + i] $__________
Required: July 31, 2000: $3,800,000
October 31, 2000: $5,600,000
January 31, 2001: $8,500,000
April 30, 2001: $10,800,000
M-2
D. Compliance with Section 9.4(a): Existing Indebtedness
1. Existing Indebtedness $__________
Required: Not More Than $1,000,000 Outstanding
At Any Time
E. Compliance with Section 9.4(d): Purchase Money Indebtedness
and Capital Lease Obligations
1. Purchase money and Capital Lease obligations $__________
Required: Not More Than the Sum of (I) $300,000
and (Ii) the Aggregate Amount of Purchase
Money Indebtedness and Obligations Under
Capital Leases Existing as of the Date of
Amendment No. 5.
F. Compliance with Section 9.4(e): Guarantees of Trade
Account Indebtedness
1. Guarantees of trade account indebtedness $__________
Required: Not More Than $1,000,000 Outstanding
At Any Time
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrowers have not defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant to
any of the Loan Documents; and (b) no Default or Event of Default
specified in ARTICLE X of the Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred since
__________ (the date of the last similar certification), the Borrowers
propose to take the following action with respect to such Default or
Event of Default:
______________________________________________________.
(NOTE, if no Default or Event of Default has occurred, insert "Not
Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with SECTION 8.1 of the
Agreement.
M-3
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 20___.
By:
Authorized Representative
Name:
Title:
M-4
ANNEX VII
EXHIBIT N
Borrowing Base Certificate
Bank of America, N.A., successor
to NationsBank, N.A.
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: (000) 000-0000
Reference is hereby made to the Credit Agreement dated as of January
30, 1998, (as from time to time amended, restated, modified, replaced, or
supplemented the "Agreement") among XXXXXX INDUSTRIES, INC., a Tennessee
corporation ("Xxxxxx"), XXXXXX INDUSTRIES TOWING EQUIPMENT INC., a Delaware
corporation ("Xxxxxx Towing," and together with Xxxxxx, the "Borrowers"), the
Lenders (as defined in the Agreement) and Bank of America, N.A., successor to
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not otherwise defined herein shall have the
respective meanings therefor set forth in the Agreement. The undersigned, a duly
authorized and acting Authorized Representative, hereby certifies to you as of
_____________, 20___ (the "Determination Date") as follows:
AVAILABILITY UNDER REVOLVING CREDIT FACILITY
I.
Borrowing
Asset Gross Ineligible Eligible Advance % Base Amount
----- ----- ---------- -------- --------- -----------
1. Inventory ______ ______ ______ ______ ______
a. ______ ______ ______ ______ ______
b ______ ______ ______ ______ ______
c. ______ ______ ______ ______ ______
Total Inventory: ______ ______ ______ ______ ______
2. Receivables: ______ ______ ______ ______ ______
a. ______ ______ ______ ______ ______
b ______ ______ ______ ______ ______
c. ______ ______ ______ ______ ______
N-1
Total Receivables: ______ ______ ______ ______ ______
N-2
3. Equipment: ______ ______ ______ ______ ______
a. ______ ______ ______ ______ ______
b ______ ______ ______ ______ ______
c. ______ ______ ______ ______ ______
Total Equipment: ______ ______ ______ ______ ______
4. Demonstrators: ______ ______ ______ ______ ______
a. ______ ______ ______ ______ ______
b ______ ______ ______ ______ ______
c. ______ ______ ______ ______ ______
Total Demonstrators: ______ ______ ______ ______ ______
5. Real Estate: ______ ______ ______ ______ ______
a. ______ ______ ______ ______ ______
b ______ ______ ______ ______ ______
c. ______ ______ ______ ______ ______
Total Real Estate: ______ ______ ______ ______ ______
TOTAL BORROWING BASE:__________________________*
*NOT TO EXCEED TOTAL REVOLVING
CREDIT COMMITMENT.
II.
1. Total Borrowing Base: $
--------------------
2. Revolving Credit Outstandings $
--------------------
3. Availability [1-2] $ *
------------
* If negative, immediate prepayment of the amount of such deficit is required.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 20___.
N-3
By:
-----------------------------
Authorized Representative
Name:
--------------------------
Title:
--------------------------
N-4
ANNEX VIII
SCHEDULE 8.24
Real Properties
