EXHIBIT 10.24
SECOND AMENDMENT
TO REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Second
Amendment") dated as of November 8, 1994, by and among HPSC, INC. (the
"Borrower"), a Delaware corporation, THE FIRST NATIONAL BANK OF BOSTON ("FNBB"),
a national banking association, BANK OF AMERICA ILLINOIS (formerly know as
Continental Bank N.A.) ("BoAI", and together with FNBB, the "Banks"), and THE
FIRST NATIONAL BANK OF BOSTON as Agent for the Banks and BoAI as co-agent for
the Banks. Capitalized terms used herein without definition shall have the
meanings set forth in the Credit Agreement (as defined below).
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WHEREAS, the Borrower, the Agent and the Banks are parties to that certain
Revolving Credit Agreement dated as of June 23, 1994 (as amended by that certain
First Amendment dated as of September 2, 1994 and as may be further amended,
modified or supplemented and in effect from time to time, the "Credit
Agreement");
WHEREAS, the Borrower has requested that certain terms and provisions of the
Credit Agreement be amended to enable the Borrower to enter into a Stock
Purchase Agreement dated as of November 1, 1994, by and among the Borrower, the
other parties thereto and the Chemical Bank, as agent, substantially in the form
of EXHIBIT A attached hereto and made a part hereof; and
WHEREAS, pursuant to the terms of the Stock Purchase Agreement, the
Borrower must deliver a letter of credit in favor of Chemical Bank, as agent;
WHEREAS, the Borrower has requested that a letter of credit facility be
added to the existing Credit Agreement in order to enable it to comply with its
obligations under the Stock Purchase Agreement;
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WHEREAS, the Agent and the Banks, subject to the terms and provisions
hereof have agreed to amend the Credit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
THE STOCK PURCHASE AGREEMENT.
EXHIBIT I to the Credit Agreement is replaced with EXHIBIT A attached
hereto and made a part hereof.
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AMENDMENT TO THE CREDIT AGREEMENT.
DEFINITIONS.
Section 1.1 of the Credit Agreement is hereby amended by inserting the
following new definitions in the appropriate place in the alphabetical sequence:
"APPLICABLE RATE. See Section 3A.6.
LETTER OF CREDIT. See Section 3A.1.
LETTER OF CREDIT APPLICATION. See Section 3A.1.1.
LETTER OF CREDIT FEE. See Section 3A.6.
LETTER OF CREDIT PARTICIPATION. See Section 3A.1.4.
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MAXIMUM DRAWING AMOUNT. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in Section 3A.2.
UNIFORM CUSTOMS. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or any successor version thereto adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with, Section 3A.2."
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CHANGES IN CERTAIN DEFINITIONS.
Section 1 of the Credit Agreement is hereby further amended by amending
certain definitions therein.
(a) The definition of "Commitment" is hereby
deleted in its entirety and replaced with the following:
"COMMITMENT. With respect to each Bank, the amount set forth on SCHEDULE 1
hereto as the amount of such Bank's commitment to make Loans to, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrower, as the same may be reduced from time to time; or if
such commitment is terminated pursuant to the provisions hereof, zero."
(b) The definition of "Loan Documents" is hereby
deleted in its entirety and replaced with the following:
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"LOAN DOCUMENTS. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and the Security Documents.
(c) The definition of "Obligations" is hereby
deleted in its entirety and replaced with the following:
"OBLIGATIONS. All Indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Revolving Credit Loans made or Reimbursement Obligations incurred or any of the
Notes, Letter of Credit Applications, Letters of Credit or other instruments at
any time evidencing any thereof."
(d) The definition of "Stock Purchase Agreement" is
hereby deleted in its entirety and replaced with the following:
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"STOCK PURCHASE AGREEMENT. That certain Stock Purchase Agreement dated as
of November 1, 1994 by and among the Borrower the other parties thereto and the
Chemical Bank, as agent, which is attached hereto and made a part hereof as
EXHIBIT I."
COMMITMENT TO LEND.
Section 2.1 of the Credit Agreement is hereby amended by deleting the first
sentence thereof and replacing it with the following:
"Subject to the terms and conditions set forth in this Credit Agreement,
each of the Banks severally agrees to lend to the Borrower and the Borrower may
borrow, repay, and reborrow from time to time between the Closing Date and the
Revolving Credit Loan Maturity Date upon notice by the Borrower to the Agent
given in accordance with Section 2.6, such sums as are requested by the Borrower
up to a maximum aggregate principal amount outstanding (after giving effect to
all amounts requested) at any one time equal to such Bank's Commitment MINUS
such Bank's Commitment Percentage of the sum of the Maximum Drawing Amount and
all Unpaid Reimbursement
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Obligations, PROVIDED that the sum of the outstanding amount of the Revolving
Credit Loans (after giving effect to all amounts requested) PLUS the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not at any time
exceed the lesser of (i) the Total Commitment and (ii) the Borrowing Base."
COMMITMENT FEE.
Section 2.2 of the Credit Agreement is hereby amended by inserting, in the
seventh line thereof, the words "MINUS the sum of the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations" between the words "which the Total
Commitment" and the words "exceeds the outstanding amount".
MANDATORY REPAYMENTS.
Section 3.2 of the Credit Agreement is hereby amended by deleting the first
sentence thereof in its entirety and replacing it with the following:
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"(e) MANDATORY REPAYMENTS. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds the lesser of (i) the
Total Commitment and (ii) the Borrowing Base, for more than five (5) consecutive
Business Days, then the Borrower shall immediately pay the amount of such excess
to the Agent for the respective accounts of the Banks for application: first,
to any Unpaid Reimbursement Obligations; second, to the Revolving Credit Loans;
and third, to provide to the Agent cash collateral for Reimbursement Obligations
as contemplated by Section 3A.2(b) and (c). Each payment of any Unpaid
Reimbursement Obligations or prepayment of the Revolving Credit Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to the
Reimbursement Obligation owing to each such Bank or (as the case may be) the
respective unpaid principal amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion."
LETTERS OF CREDIT.
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The Credit Agreement shall be amended by inserting the following new
Section 3A between the end of existing Section 3.3 and the beginning of existing
Section 4:
"Section 3A. LETTERS OF CREDIT.
Section 3A.1. LETTER OF CREDIT COMMITMENTS.
3A.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms and
conditions hereof and the execution and delivery by the Borrower of a letter of
credit application on the Agent's customary form (a "Letter of Credit
Application"), the Agent on behalf of the Banks and in reliance upon the
agreement of the Banks set forth in Section 3A.1.4 and upon the representations
and warranties of the Borrower contained herein, agrees, in its individual
capacity, to issue, extend and renew for the account of the Borrower one or more
standby letters of credit (individually, a "Letter of Credit"), in such form as
may be requested by the Borrower and agreed to by the Agent in order to comply
with the requirements of Section 7.2 of the Stock Purchase Agreement; PROVIDED,
HOWEVER, that, after giving effect to such request, (a) the sum of the aggregate
Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not exceed
One Million Five Hundred Thousand Dollars ($1,500,000.00) at any one time and
(b) the sum of (i) the Maximum Drawing Amount on all Letters of Credit, (ii) all
Unpaid Reimbursement Obligations, and (iii) the amount of all Loans outstanding
shall not exceed the lesser of (A) the Total Commitment and (B) the Borrowing
Base.
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3A.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit Application
shall be completed to the satisfaction of the Agent. In the event that any
provision of any Letter of Credit Application shall be inconsistent with any
provision of this Credit Agreement, then the provisions of this Agreement shall,
to the extent of any such inconsistency, govern.
3A.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for the
payment of sight drafts for honor thereunder when presented in accordance with
the terms thereof and when accompanied by the documents described therein and
(ii) have an expiry date no later than the date which is fourteen (14) Business
Days prior to the Revolving Credit Loan Final Maturity Date. Each Letter of
Credit so issued, extended or renewed shall be subject to the Uniform Customs.
3A.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS. Each Bank severally agrees that it
shall be absolutely liable, without regard to the occurrence of any Default or
Event of Default or any other condition precedent whatsoever, to the extent of
such Bank's Commitment Percentage, to reimburse the Agent on demand for the
amount of each draft paid by the Agent under each Letter of Credit to the extent
that such amount is not reimbursed by the Borrower pursuant to Section 3A.2
(such agreement for a Bank being called herein the "Letter of Credit
Participation" of such Bank).
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3A.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a Bank shall
be treated as the purchase by such Bank of a participating interest in the
Borrower's Reimbursement Obligation under Section 3A.2 in an amount equal to
such payment. Each Bank shall share in accordance with its participating
interest in any interest which accrues pursuant to Section 3A.2.
Section 3A.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) except as otherwise expressly provided in Section 3A.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored by the
Agent, or the Agent otherwise makes a payment under or pursuant to such Letter
of Credit, (i) the amount paid by the Agent under or pursuant to such Letter of
Credit, and (ii) the amount of any customary taxes, fees, charges or other
reasonable costs and expenses whatsoever incurred by the Agent or any Bank in
connection with any payment made by the Agent or any Bank under, or pursuant to,
such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment to an
amount less than the Maximum Drawing Amount, an amount equal to such difference,
which amount shall be held by the
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Agent for the benefit of the Banks and the Agent as cash collateral for all
Reimbursement Obligations, and
(c) upon the termination of the Total Commitment or the acceleration of
the Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then Maximum Drawing Amount
of all Letters of Credit, which amount shall be held by the Agent for the
benefit of the Banks and the Agent as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Agent at the Agent's Head
Office in immediately available funds. Interest on any and all
amounts remaining unpaid by the Borrower under this Section 3A.2 at
any time from the date such amounts become due and payable (whether as
stated in this Section 3A.2, by acceleration or otherwise) until
payment in full (whether before or after judgment) shall be payable to
the Agent on demand at the rate specified in Section 4.11 for overdue
principal of the Loans.
Section 3A.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented
or other demand for payment shall be made under any Letter of Credit, the Agent
shall notify the Borrower of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrower fails to reimburse the Agent as
provided in
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Section 3A.2 on or before the date that such draft is paid or other payment is
made by the Agent, the Agent may at any time thereafter notify the Banks of the
amount of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following the receipt of such notice,
each Bank shall make available to the Agent, at its Head Office, in immediately
available funds, such Bank's Commitment Percentage of such Unpaid Reimbursement
Obligation, together with an amount equal to the product of (i) the average,
computed for the period referred to in clause (iii) below, of the weighted
average interest rate paid by the Agent for federal funds acquired by the Agent
during each day included in such period, TIMES (ii) the amount equal to such
Bank's Commitment Percentage of such Unpaid Reimbursement Obligation, TIMES
(iii) a fraction, the numerator of which is the number of days that elapse from
and including the date the Agent paid the draft presented for honor or otherwise
made payment to the date on which such Bank's Commitment Percentage of such
Unpaid Reimbursement Obligation shall become immediately available to the Agent,
and the denominator of which is 360. The responsibility of the Agent to the
Borrower and the Banks shall be only to determine that the documents (including
each draft) delivered under each Letter of Credit in connection with such
presentment shall be in conformity in all material respects with such Letter of
Credit.
Section 3A.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this
Section 3A shall be absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrower further agrees with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 3A.2
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shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, the beneficiary of any Letter of Credit or any
financing institution or other party to which any Letter of Credit may be
transferred or any claims or defenses whatsoever of the Borrower against the
beneficiary of any Letter of Credit or any such transferee. The Agent and the
Banks shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Agent or any Bank under or in connection with
each Letter of Credit and the related drafts and documents, if done in good
faith, shall be binding upon the Borrower and shall not result in any liability
on the part of the Agent or any Bank to the Borrower.
Section 3A.5. RELIANCE BY ISSUER. To the extent not inconsistent with
Section 3A.4, the Agent shall be entitled to rely, and shall be fully protected
in relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action requested by the Majority
Banks unless it shall first have
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received such advice or concurrence of the Majority Banks as it reasonably deems
appropriate or it shall first be indemnified to its reasonable satisfaction by
the Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement in accordance with a request of the Majority Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
the Banks and all future holders of the Revolving Credit Notes or of a Letter of
Credit Participation.
Section 3A.6. LETTER OF CREDIT FEE. The Borrower shall, on the date of
issuance or any extension or renewal of any Letter of Credit and at such other
time or times as such charges are customarily made by the Agent, pay a fee (in
each case, a "Letter of Credit Fee") to the Agent in respect of each Letter of
Credit equal to the Applicable Rate (as defined below) per annum of the face
amount of such Letter of Credit, PLUS the Agent's customary issuance fee. For
the purposes of this Section 3A.6, "Applicable Rate" shall mean the percentage
rate per annum then in effect that the Borrower would pay with respect to
Eurodollar Rate Loans as the applicable margin over the Eurodollar Rate as set
forth in Section 2.5 of this Credit Agreement."
PAYMENTS TO AGENT.
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Section 4.3.1 of the Credit Agreement is hereby amended by inserting the
words "Reimbursement Obligations, Letter of Credit Fees," between the words
"principal, interest," and the words "commitment fees and any other amounts due
hereunder".
COMPUTATIONS.
Section 4.4 of the Credit Agreement is hereby amended by inserting the
words "and Letter of Credit Fees" between the words "commitment fees," and the
words "shall, unless otherwise expressly".
ADDITIONAL COSTS.
Section 4.7 of the Credit Agreement is hereby amended by deleting existing
subsections (a) through (e) and inserting in lieu thereof the following:
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"(a) subject any Bank or the Agent to any tax,
levy, impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Credit Agreement, the other Loan Documents, any Letters of
Credit, such Bank's Commitment or the Loans or deposits obtained to fund Loans
or Letters of Credit (other than taxes based upon or measured by the net profit
or income of such Bank or the Agent); or
(b) materially change the basis of taxation
(except for changes in taxes on income or profits) of payments to any Bank of
the principal of or the interest on the Loans or any other amounts payable to
any Bank or the Agent under this Credit Agreement or the other Loan Documents;
or
(c) impose or increase or render applicable
(other than to the extent specifically provided for elsewhere in this Credit
Agreement) any special deposit, assessment, liquidity, capital adequacy, or
reserve or other similar requirement (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Bank; or
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(d) impose on any Bank or the Agent any other
conditions or requirements with respect to this Credit Agreement, the other Loan
Documents, the Letters of Credit, the Loans, such Bank's Commitment, or any
class of loans, letters of credit or commitments of which any of the Loans, the
Letters of Credit, or such Bank's Commitment forms a part, and the result of any
of the foregoing is
(i) to increase the cost to any Bank of making, funding, issuing,
renewing, extending or maintaining any of the Loans or such Bank's Commitment or
any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement Obligation or
other amount payable to such Bank or the Agent hereunder on account of such
Bank's Commitment, any Letter of Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any payment or to
forego any interest or Reimbursement Obligation or other sum payable hereunder,
the amount of which payment or foregone interest or Reimbursement Obligation or
other sum is calculated by reference to the gross amount of any sum receivable
or deemed received by such Bank or the Agent from the Borrower hereunder,
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then, and in each such case, the Borrower will, upon written demand made by
such Bank or (as the case may be) the Agent at any time and from time to time
and as often as the occasion therefor may arise, pay to such Bank or the Agent
such additional amounts as will be sufficient to compensate the Bank or the
Agent for such additional cost, reduction, payment or foregone interest,
Reimbursement Obligation or other sum."
REGULATIONS U AND X.
Section 6.17 of the Credit Agreement is hereby amended by deleting it in
its entirety and substituting in lieu thereof the following:
"Section 6.17. REGULATIONS U AND X. The proceeds of the Loans shall be
used for working capital purposes, except to the extent permitted by Section
7.12 of this Agreement. The Borrower will obtain Letters of Credit solely for
the purpose of complying with the requirements of Section 7.2 of the Stock
Purchase Agreement. No portion of any Loan which is to be used for the purpose
of purchasing or carrying any "margin security" or "margin stock" will be
secured directly or indirectly by "margin
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security" or "margin stock" as such terms are used in Regulations U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224."
USE OF PROCEEDS.
Section 7.12 of the Credit Agreement is hereby amended by deleting it in
its entirety and substituting in lieu thereof the following:
"7.12. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans
solely for working capital purposes, PROVIDED, HOWEVER, that the Borrower may
use up to a maximum aggregate amount equal to $7,000,000 MINUS the sum of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations of proceeds of
the Loans towards the purchase of 1,949,182 shares of the Borrower's Common
Stock, $0.01 par value, pursuant to the terms of the Stock Purchase Agreement,
and PROVIDED FURTHER that the Borrower may not use more than $1,000,000 of
proceeds of the Loans for the portion of the Purchase Price (as defined in the
Stock Purchase Agreement) to be paid by the Borrower on the Closing Date (as
defined in the Stock Purchase Agreement). The Borrower will obtain Letters of
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Credit solely for the purpose of complying with the requirements of Section
7.2 of the Stock Purchase Agreement."
NEGATIVE COVENANTS OF THE BORROWER.
The introductory text of Section 8 of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
"Section 8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. The Borrower
covenants and agrees that, so long as any Loan, Unpaid Reimbursement Obligation,
Letter of Credit or Note is outstanding or any Bank has any obligation to make
any Loans or the Agent has any obligations to issue, extend or renew any Letters
of Credit hereunder:"
CLOSING CONDITIONS.
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The introductory text of Section 10 of the Credit Agreement is hereby
deleted in its entirety and replaced with the following:
"Section 10. CLOSING CONDITIONS. The obligations of the Banks to make the
initial Revolving Credit Loans and of the Agent to issue any initial Letters of
Credit shall be subject to the satisfaction of the following conditions
precedent."
LEGALITY OF TRANSACTIONS.
Section 11.2 of the Credit Agreement is hereby amended by inserting at the
end thereof the following text:
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"or to participate in the issuance, extension or renewal of such Letter of
Credit or in the reasonable opinion of the Agent would make it illegal for the
Agent to issue, extend or renew such Letter of Credit."
CONDITIONS TO ALL BORROWINGS.
The introductory text of Section 11 of the Credit Agreement is hereby
deleted in its entirety and replaced with the following text:
"Section 11. CONDITIONS TO ALL BORROWINGS. The obligation of the Banks to
make any Loans and of the Agent to issue, extend or renew any Letters of Credit
whether on or after the Closing Date shall be subject to the satisfaction of
each of the following conditions precedent:"
BORROWING BASE REPORT.
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Section 11.5 of the Credit Agreement is hereby amended by inserting before
the period at the end thereof, the words "or of the date of issuance, extension
or renewal of the requested Letter of Credit".
EVENTS OF DEFAULT AND ACCELERATION.
Section 12.1(a) of the Credit Agreement is hereby amended by inserting, in
the first line thereof, the words "or any Reimbursement Obligations" between the
words "principal of the Loans" and the words "when the same shall become due".
Section 12.1(b) of the Credit Agreement is hereby amended by inserting, in
the third line thereof, the words "any Letter of Credit Fee" between the words
"commitment fee," and the words "the Agent's fee".
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The final paragraph of Section 12.1 of the Credit Agreement (after Section
12(r) is hereby amended by inserting, in the fourth line, the text ", and all
Reimbursement Obligations" between the words "the other Loan Documents" and the
words "to be, and they shall thereupon".
REMEDIES.
Section 12.3 of the Credit Agreement is hereby amended by inserting, in the
fourth line, the words "or the Reimbursement Obligations" between the words
"with respect to the Loans" and the words " may proceed to protect".
Section 12.3 of the Credit Agreement is hereby further amended by
inserting, in the fourteenth line, the words "or purchaser of any Letter of
Credit Participation" between the word "Note," and the words "is intended to be
exclusive".
SETOFF; SHARING; ETC.
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Section 13 of the Credit Agreement is hereby deleted in its entirety and
replaced with the following:
"Section 13. SETOFF. Regardless of the adequacy of any
collateral, during the continuance of any Event of Default, any deposits or
other sums credited by or due from any of the Banks to the Borrower and any
securities or other property of the Borrower in the possession of such Bank may
be applied to or set off by such Bank against the payment of Obligations and any
and all other liabilities, direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of the Borrower to such Bank.
Each of the Banks agrees with each other Bank that (i) if an amount to be set
off is to be applied to Indebtedness of the Borrower to such Bank, other than
Indebtedness evidenced by the Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness evidenced by all such
Notes held by such Bank or constituting Reimbursement Obligations owed to such
Bank, and (ii) if such Bank shall receive from the Borrower, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Bank by proceedings against the Borrower
at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by, or Reimbursement
Obligations owed to, such Bank any amount in excess of its ratable portion of
the payments received
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by all of the Banks with respect to the Notes held by, and Reimbursement
Obligations owed to, all of the Banks, such Bank will make such disposition and
arrangements with the other Banks with respect to such excess, either by way of
distribution, PRO TANTO assignment of claims, subrogation or otherwise as shall
result in each Bank receiving in respect of the Notes held by it or
Reimbursement Obligations owed it, its proportionate payment as contemplated by
this Credit Agreement; PROVIDED that if all or any part of such excess payment
is thereafter recovered from such Bank, such disposition and arrangements shall
be rescinded and the amount restored to the extent of such recovery, but without
interest."
DELINQUENT BANKS.
Section 14.5.3 of the Credit agreement is hereby deleted in its entirety
and replaced with the following:
"Notwithstanding anything to the contrary contained in this Credit
Agreement or any of the other Loan Documents, any Bank that fails (i) to make
available to the Agent its PRO RATA share of any Loan or to purchase any Letter
of Credit Participation or (ii) to comply with the provisions of Section 13 with
respect to making dispositions and arrangements with the other Banks, where such
Bank's share of
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any payment received, whether by setoff or otherwise, is in excess of its PRO
RATA share of such payments due and payable to all of the Banks, in each case
as, when and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall be deemed
a Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments due to it
from the Borrower, whether on account of outstanding Loans, Unpaid Reimbursement
Obligations, interest, fees or otherwise, to the remaining nondelinquent Banks
for application to, and reduction of, their respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations. The Delinquent Bank
hereby authorizes the Agent to distribute such payments to the nondelinquent
Banks in proportion to their respective PRO RATA shares of all outstanding Loans
and Unpaid Reimbursement Obligations. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans and Unpaid Reimbursement Obligations
of the nondelinquent Banks, the Banks' respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations have returned to those in
effect immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency."
HOLDERS OF NOTES.
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Section 14.6 of the Credit Agreement is hereby amended by inserting, in
the second line, the words "or the purchaser of any Letter of Credit
Participation" between the words "of any Note" and the words "as the absolute
owner or purchaser".
CONDITIONS TO ASSIGNMENTS.
Section 18.1 of the Credit Agreement is
hereby amended by deleting the close parenthesis after the word "it" at the
end of the forth line and inserting, in the fifth line, the words "and its
participating interest in the risk relating to any Letters of Credit)" between
the words "the Note or Notes held by it" and the phrase "; PROVIDED that".
CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.
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Section 18.2 of the Credit Agreement is hereby amended by deleting from the
end of clause (g) thereof the word "and". Section 18.2 of the Credit Agreement
is hereby further amended by inserting, immediately before the period after
clause (h) thereof, the words "; and (i) such assignee acknowledges that it has
made arrangements with the assigning Bank satisfactory to such assignee with
respect to its PRO RATA share of Letter of Credit Fees in respect of outstanding
Letters of Credit".
REGISTER.
Section 18.3 of the Credit Agreement is hereby amended by inserting, in the
fifth line thereof, the words "and Letter of Credit Participations purchased by"
between the words "Revolving Credit Loans owing to" and the words ", the Banks
from time to time".
PARTICIPATIONS.
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Section 18.5 of the Credit Agreement is hereby amended by inserting, in the
second to last line, the words "Letter of Credit Fees" after the words
"commitment fees or" and the words "to which such participant".
ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER.
Section 18.7 of the Credit Agreement is hereby amended by inserting, in the
ninth line thereof, the words "or Reimbursement Obligations" between the words
"interest in any of the Loans" and the period.
Section 18.7 is hereby further amended by inserting, in the tenth line
thereof, the words "or Reimbursement Obligations" between the words
"participating interest in any of the Loans" and the words "to a participant,".
NOTICES.
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Section 19 of the Credit Agreement is hereby amended by inserting, in the
third line thereof the words "or any Letter of Credit Applications" between the
words "or the Notes" and the words "shall be in writing".
CONSENTS, AMENDMENTS, WAIVERS, ETC.
Section 25 of the Credit Agreement is hereby amended by inserting, in the
thirteenth line thereof, the words "or Letter of Credit Fees" between the words
"amount of Commitment Fee" and the words "hereunder may not". Section 25 is
hereby further amended by inserting, in the seventeenth line thereof, the words
"Letter of Credit Fees," between the words "Agent's Fee" and the words "and
Section 14 may not".
AMENDMENT TO EXHIBIT E, FORM OF ASSIGNMENT AND ACCEPTANCE.
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Exhibit E to the Credit Agreement is hereby amended by inserting, in the
third line of Paragraph 2 thereof, the words "and its participating interest in
the risk relating to any outstanding Letters of Credit" between the words
"hereof, its Commitment Percentage is" and the text "_____.00%". Exhibit E is
hereby further amended by inserting, in the fourth line of Paragraph 2 thereof,
the words "its participating interest in Unpaid Reimbursement Obligations and"
between the text "_____.00%" and the text ", the aggregate outstanding".
Exhibit E is hereby further amended by deleting, from the beginning of clause
(vi) of Paragraph 3 thereof, the word "and". Exhibit E is hereby further
amended by inserting, immediately before the period after clause (vi) thereof,
the words "; and (vii) acknowledges that it has made arrangements with the
Assignor satisfactory to it with respect to its PRO RATA share of Letter of
Credit Fees in respect of outstanding Letters of Credit".
CONDITIONS TO EFFECTIVENESS.
This Second Amendment shall not become effective unless and until (a) the
Bank receives counterparts of this Second Amendment executed by each of the
Borrower, the Banks, the Agent and the Guarantor and (b) all proceedings in
connection with the transactions contemplated by this Amendment and all
documents incident hereto shall be satisfactory in form and substance to the
Agent, and the Agent shall have received all information and counterpart
originals or certified or other copies of such documents as the Agent may
reasonably request.
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REPRESENTATIONS AND WARRANTIES; NO DEFAULT.
The Borrower represents and warrants to the Agent and the Banks that (a)
each and every one of the representations and warranties made by the Borrower to
the Agent and the Banks in Section 6 or elsewhere in the Credit Agreement or in
the other Loan Documents, as amended by this Second Amendment are true and
correct in all material respects on and as of the date hereof except to the
extent that any of such representations and warranties relate, by the express
terms thereof, solely to a date prior hereto; (b) the Borrower has duly and
properly performed, complied with and observed each of its covenants, agreements
and obligations contained in Sections 7 and 8 or elsewhere in the Credit
Agreement or the other Loan Documents, as amended by this Second Amendment; and
(c) no event has occurred or is continuing and no condition exists which
constitutes a Default or Event of Default.
RATIFICATION, ETC.
Except as expressly amended hereby, the Credit Agreement and the Loan
Documents and all documents, instruments and agreements related thereto,
including, but not limited to the Security
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Documents, are hereby ratified and confirmed in all respects and shall continue
in full force and effect. The Credit Agreement and this Second Amendment shall
be read and construed as a single agreement. All references in the Credit
Agreement or any related agreement or instrument to the Credit Agreement shall
hereafter refer to the Credit Agreement as amended hereby.
EXPENSES AND FEES.
The Borrower hereby agrees to pay to the Agent, on demand by the Agent, all
reasonable out-of-pocket costs and expenses incurred or sustained by the Agent
or any of the Banks in connection with the preparation of this Second Amendment
and the documents referred to herein (including reasonable legal fees).
NO WAIVER.
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Nothing contained herein shall constitute a waiver of, impair or otherwise
affect any Obligations, any other obligation of the Borrower or any rights of
the Agent or either of the Banks consequent thereon.
COUNTERPARTS.
This Second Amendment may be executed in one or more counterparts, each of
which shall be deemed an original but which together shall constitute one and
the same instrument.
HEADINGS.
Section headings in this Second Amendment are included herein for
convenience of reference only and shall not constitute part of this First
Amendment for any other purpose.
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GOVERNING LAW.
THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
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IN WITNESS WHEREOF, the undersigned have duly executed this Second
Amendment as a sealed instrument as of the date first set forth above.
HPSC, INC.
By: /s/ John Everets, Jr
--------------------------
John Everets, Jr
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: /s/ Mitchell B. Feldman
--------------------------
Mitchell B. Feldman
BANK OF AMERICA ILLINOIS,
individually and as co-agent
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By: /s/ Mark N. Hurley
--------------------------
Mark N. Hurley
CONSENTED TO BY THE UNDERSIGNED GUARANTOR:
AMERICAN COMMERCIAL
FINANCE CORPORATION
By: /s/ John Everets, Jr
--------------------------
John Everets, Jr