Exhibit 10.4
TENTH AMENDMENT
TO REVOLVING CREDIT AGREEMENT
This TENTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "Tenth
Amendment") dated as of May 11, 1995, 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 ("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).
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
the First Amendment dated September 2, 1994, the Second Amendment dated
November 8, 1994, the Third Amendment dated November 22, 1994, the Fourth
Amendment dated as of December 22, 1994, the Fifth Amendment dated as of
January 6, 1995, the Sixth Amendment dated as of February 3, 1995, the
Seventh Amendment dated as of February 6, 1995, the Eighth Amendment dated as
of April 12, 1995, the Ninth Amendment dated as of April 28, 1995 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 and the Agent and the Banks have agreed to so
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:
1. INTEREST COVERAGE. Section 9.3 of the Credit Agreement is hereby
amended by deleting it in its entirety and inserting in lieu thereof the
following:
"9.3 INTEREST COVERAGE. The Borrower will not permit the ratio
of (i) Consolidated Earnings Before Interest and Taxes for any period
of four consecutive fiscal quarters (treated as a single accounting
period), to (ii) Consolidated Total Interest Expense for such period,
to be less than 1.15 to 1.00 at any time."
2. CONDITIONS TO EFFECTIVENESS. This Tenth Amendment shall not become
effective unless and until:
(a) the Agent receives counterparts of this Tenth 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 Tenth Amendment, including, without limitation, copies,
certified by the Secretary or Assistant Secretary of the Borrower
as of the date hereof, of the resolutions of the Borrower approving
this Tenth Amendment; and copies, certified by the Secretary or
Assistant Secretary of the Guarantor as of the date hereof, of the
resolutions of the Guarantor approving this Tenth Amendment, in a
form satisfactory to the Agent and all documents incident hereto
shall be satisfactory in form and substance to the Agent, and the
Agent shall have received all
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information and counterpart originals or certified or other copies
of such documents as the Agent may reasonably request in a form
satisfactory to the Agent.
3. 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 Tenth 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 Tenth Amendment; and (c) no
event has occurred or is continuing and no condition exists which constitutes
a Default or Event of Default.
4. RATIFICATION, ETC. Except as expressly amended by this Amendment,
the Credit Agreement and the Loan Documents and all documents, instruments
and agreements related thereto, including, but not limited to the Security
Documents, are hereby ratified and confirmed in all respects and shall
continue in full force and effect. The Borrower confirms and agrees that the
Obligations of the Borrower to the Banks under the Loan Documents, as
amended and supplemented hereby, are secured by, guarantied under, and
entitled to the benefits, of the Security Documents. The Borrower, the
Guarantor, the Agent and the Banks hereby acknowledge and agree that all
references to the Credit Agreement and the Obligations thereunder contained
in any of the Loan Documents shall be references to the Credit Agreement and
the Obligations, as affected and increased hereby and as the same may be
amended, modified, supplemented, or restated from time to time. The Security
Documents and the perfected first priority security interests of the Banks
thereunder shall continue in full force and effect, and the collateral
security and guaranties provided for in the Security Documents shall not be
impaired by this Amendment. The Credit Agreement and this Tenth Amendment
shall be read and construed as a single agreement.
5. MISCELLANEOUS. 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 Tenth Amendment and the documents referred to herein
(including reasonable legal fees). 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. This Tenth 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. Section headings in this Tenth Amendment are
included herein for convenience of reference only and shall not constitute
part of this Tenth Amendment for any other purpose. This Tenth 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 Tenth
Amendment as a sealed instrument as of the date first set forth above.
HPSC, INC.
By: /s/ Rene Lefebvre
---------------------------------
Chief Financial Officer
THE FIRST NATIONAL BANK
OF BOSTON, individually and
as Agent
By: /s/ Michell B. Fellman
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Michell B. Fellman
Director
BANK OF AMERICA ILLINOIS,
individually and as co-agent
By: /s/ Bridget A. Garavalia
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Bridget A. Garavalia
Vice President
CONSENTED TO BY THE UNDERSIGNED GUARANTOR:
AMERICAN COMMERCIAL
FINANCE CORPORATION
By: /s/ John W. Everets
---------------------------------
President