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EXHIBIT 10.6
THIRD AMENDMENT TO AMENDED AND RESTATED
LOAN AGREEMENT AND CONSENT
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT AND CONSENT
(this "Amendment") made as of the 11th day of August, 1997 by and among
LEASECOMM CORPORATION, a Massachusetts corporation (the "Borrower"), FLEET BANK,
N.A. (formerly known as NatWest Bank N.A.), a national banking association, in
its individual corporate capacity, SANWA BUSINESS CREDIT CORPORATION, a Delaware
corporation, CORESTATES BANK, N.A., a national banking association, PNC BANK,
NATIONAL ASSOCIATION, a national banking association, and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company (individually, a "Lender" and,
collectively, the "Lenders"), and FLEET BANK, N.A. (formerly known as NatWest
Bank N.A.), as agent for the Lenders (the "Agent"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed thereto
in the Loan Agreement.
WHEREAS:
A. The Borrower, the Lenders and the Agent are parties to a Loan
Agreement dated as of July 29, 1993, as amended and restated as of July 28,
1995, as further amended by the First Amendment to Amended and Restated Loan
Agreement made as of October 30, 1995 and the Second Amendment to Amended and
Restated Loan Agreement made as of August 6, 1996 (the "Loan Agreement")
pursuant to which, INTER ALIA, the Lenders agreed to make available to the
Borrower a revolving credit and term loan facility;
B. The Borrower has requested that State Street Bank and Trust
Company ("State Street Bank") be added as an additional Lender under the Loan
Agreement and that the Loan Agreement be amended in certain respects as
hereinafter set forth;
C. The Lenders are willing to admit State Street Bank as an
additional Lender and to amend the Loan Agreement, subject to the terms and
conditions hereinafter set forth; and
D. The Borrower wishes the Lenders to consent to certain amendments
to the Certificate of Incorporation of the Borrower and the Lenders are willing
to consent to such amendments;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. TO ADMIT A NEW LENDER UNDER THE LOAN AGREEMENT
(a) Subject to its execution of this Amendment Agreement,
State Street Bank shall be a party to the Loan Agreement and assume
all of the rights and obligations of a Lender under the Loan
Agreement. Every reference to "Lender" or "Lenders" in the Loan
Agreement shall be deemed to include State Street Bank
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(b) State Street Bank hereby (i) represents and warrants that
it is authorized to became a party to the Loan Agreement; (ii)
appoints and authorizes Fleet Bank, N.A. to serve as its Agent under
the Loan Agreement and the Security Documents, as contemplated by
Section 9.1 of the Loan Agreement, and hereby irrevocably authorizes
such Person, as Agent, to take such action on its behalf under the
Loan Agreement and the Security Documents, and to exercise such
powers, and perform such duties under the Loan Agreement and the
Security Documents as are specifically delegated to or required of
the Agent by the terms of the Loan Agreement and the Security
Documents, together with all such other powers as are reasonably
incidental thereto, including, without limitation, the right to
release collateral in accordance with Section 2.6(b) of the Loan
Agreement; and (iii) agrees that it will abide and be bound by all of
the terms, covenants and agreements, and perform all of the
obligations, which by the terms of the Loan Agreement are required to
be abided and performed by it as a Lender, and shall be entitled to
all of the rights, benefits and privileges available or accruing to
Lenders under the Loan Documents. Notwithstanding the foregoing to
the contrary, State Street Bank shall not participate in the two
Libor Loans outstanding under the Loan Agreement which mature on
November 28, 1998 and August 2, 1999, respectively. All notices,
requests, reports and other communications pursuant to the Loan
Agreement to be delivered to State Street Bank as Lender shall, for
purposes of Section 11.9 of the Loan Agreement, be addressed to State
Street Bank at its address set forth immediately above its signature
to this Amendment except as such address may be changed in accordance
with Section 11.9 of the Loan Agreement.
2. AMENDMENTS. The Loan Agreement is hereby amended as follows:
(a) The definition of "COMMITMENT" set forth in Section 1.1 of
the Loan Agreement is hereby amended by deleting the names of the
Lenders and the amounts set forth opposite the Lenders' names at the
end of such definition and replacing such names and amounts with the
following:
"Fleet Bank, N.A. $ 30,000,000
CoreStates Bank, N.A. 25,000,000
Sanwa Business Credit Corporation 25,000,000
PNC Bank, National Association 15,000,000
State Street Bank and Trust Company 10,000,000
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Total: $105,000,000"
(b) The parenthetical phrase "(which calculation shall not
take into account rental payments due and payable under such Eligible
Leases beyond 48
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months after the commencement date of such Eligible Leases)" in the
definition of "BORROWING BASE" in Section 1.1 of the Loan Agreement,
and in each of Sections 2.3(b)(i) and 2.3(b)(ii) of the Loan
Agreement, is hereby amended and restated in its entirety, in each
instance where it appears, as follows:
"(which calculation shall not take into account rental
payments due or payable under such Eligible Leases beyond
60 months after the commencement date of such Eligible
Leases)"
(c) The definition of "COMMITMENT TERMINATION DATE" in
Section 1.1 of the Loan Agreement is hereby amended and restated in
its entirety as follows:
"'COMMITMENT TERMINATION DATE' - July 31, 1999, unless
extended pursuant to Section 2.14 hereof."
(d) The definition of "EQUIPMENT" in Section 1.1 of the Loan
Agreement is hereby amended by adding "stand-alone automated teller
machines, non-fixture food preparation machines for use by
restaurants," to such definition, immediately before "bank credit
card authorization terminals."
(e) The definition of "PRINCIPAL OFFICE" in Section 1.1 of the
Loan Agreement is hereby amended and restated in its entirety as
follows:
"'PRINCIPAL OFFICE' - the principal office of the Agent,
which office is currently located at 592 Fifth Avenue, New
York, New York 10036."
(f) The second sentence of Section 2.1(a) of the Loan
Agreement is hereby amended and restated to read in its entirety as
follows:
"Such Loans shall be made by the Lenders on a PRO RATA
basis, calculated for each Lender based on its Commitment
Percentage at the date of the making of such Loan;
PROVIDED, HOWEVER, at no time shall (i) the aggregate
outstanding principal amount of all Loans exceed the
Commitment or the principal amount of the Loans of any
Lender exceed such Lender's Commitment, (ii) in the case
of Loans based upon Operating Leases, the aggregate
outstanding principal amount of all such Loans exceed the
Sub-limit, (iii) in the case of Loans based upon Eligible
Security Equipment Lease and/or Monitoring Agreements, the
aggregate outstanding principal amount of all such Loans
exceed 25% of the Commitment or (iv) in the case of Loans
based upon Eligible Leases, the aggregate
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outstanding principal amount of all Loans based on
Eligible Leases with an original term of more than 48
months exceed 10% of the aggregate outstanding principal
amount of all Loans; and no Loan will be made hereunder
if, after giving effect thereto and to all other Loans
being made concurrently therewith, any of the foregoing
limits in parts (i) through (iv) shall be exceeded."
(g) Section 2.1(c) of the Loan Agreement is hereby amended and
restated to read in its entirety as follows:
"(c) The Borrower shall pay to the Agent for the benefit
of the Lenders the principal amount outstanding of each
Credit Period Term Loan in consecutive equal monthly
installments equal in number to the weighted average
remaining number of (x) monthly payments due under the
Eligible Leases relating to such Loan without giving
effect to amounts due and payable more than 60 months
after the commencement date of such Eligible Leases
(subject to Sections 2.1(a) and (d)), and (y) months
remaining to fully amortize in accordance with GAAP the
Net Book Value of the Eligible Equipment subject to
Eligible Rental Contracts relating to such Loan, in each
case as specified in the Borrowing Computations with
respect thereto, with a payment being due on the first
Business Day of each calendar month following the
applicable Borrowing Date; provided, however, that all
principal of and interest on all Credit Period Term Loans
shall be paid in full on the fourth anniversary of the
Commitment Termination Date."
(h) Part (ii) of Section 2.1(d) of the Loan Agreement is
hereby amended and restated to read in its entirety as follows:
"(ii) the Borrower shall have delivered to each Lender a
duly completed and executed Conversion Term Note, in form
and substance satisfactory to the Agent, be converted to
Conversion Term Loans the principal amount of which shall
be payable by the Borrower to the Agent in consecutive
monthly installments, (provided that the last installment
shall be in an amount sufficient to pay the entire
outstanding amount of such Loan) equal in number to the
weighted average remaining number of (x) monthly payments
under the Eligible Leases relating to such Loans and (y)
months remaining to fully amortize in accordance with GAAP
the Net Book Value of any Eligible Rental
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Contracts relating to such Loan without giving effect to
amounts due and payable more than 48 months after the,
commencement date of such Eligible Leases and Eligible
Rental Contracts, as specified in the Borrowing
Computations with respect thereto, with a payment being
due on the first Business Day of each calendar month
following the Commitment Termination Date; PROVIDED,
HOWEVER, that all principal of and interest on all
Conversion Term Loans shall be paid in full on the fourth
anniversary of the Commitment Termination Date."
(i) The first sentence of Section 2.5(a) of the Loan Agreement
is hereby amended by deleting ".425% per annum" and substituting in
lieu thereof ".25% per annum."
(j) Subsection (i) of Section 2.9(a) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
"(i) with respect to any Revolving Credit Loan, (x) during
such periods that such Loan (or any portion thereof) is a
Prime Rate Loan, the Prime Rate; and (y) during such
periods that such Loan (or any portion thereof) is a Libor
Loan, Libor plus 1.85%;"
(k) Subsection (ii)(y) of Section 2.9(a) of the Loan Agreement
is hereby amended to add the following proviso immediately prior to
the end thereof:
"PROVIDED, HOWEVER, that any Term Loans outstanding on
August 6, 1996 which are Libor Loans shall bear interest
at the rate established and in effect with respect thereto
as of such date."
(l) Part (i) of the fourth sentence of Section 2.21 of the
Loan Agreement is hereby amended and restated in its entirety as
follows:
"(i) with respect to any Revolving Credit Loan, (x) during
such periods that such Loan (or any portion thereof) is a
Prime Rate Loan, the Prime Rate; and (y) during such
periods that such Loan (or any portion thereof) is a Libor
Loan, Libor plus 1.85%."
3. CONSENT TO AMENDMENT TO THE CERTIFICATE OF INCORPORATION. The
Lenders hereby consent, pursuant to Section 7.12 of the Loan Agreement, to the
amendment by the Borrower of its Certificate of Incorporation in the form
annexed hereto as Exhibit A ("Certificate of Incorporation Amendments"),
effective as of the date thereof.
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4. CONDITIONS PRECEDENT. Prior to or simultaneously with the entry
by the Borrower into this Amendment and as a condition precedent to the
effectiveness of this Amendment:
(a) DOCUMENTS. The Agent shall have received with sufficient
original counterparts for each Lender (i) this Amendment duly
executed by the Borrower and each Lender and (ii) the Confirmation of
Guaranty annexed to this Amendment duly executed by the Guarantor
and, for State Street Bank and each Lender whose Commitment shall
have changed pursuant to Section 2(a) of this Amendment, substitute
Revolving Credit Notes and Credit Period Term Notes in the amount of
the Commitment of such Lender, as set forth in Section 2(a) of this
Amendment, duly executed by the Borrower.
(b) CORPORATE ACTION. The Borrower shall have taken all
corporate action required to be taken to authorize the execution,
delivery and performance of this Amendment, the agreements, documents
and instruments referred to herein and the transactions contemplated
hereby and thereby.
(c) CORPORATE DOCUMENTS AND CERTIFICATES. The Borrower and the
Guarantor shall have delivered to the Agent, with sufficient original
counterparts for each Lender, an officer's certificate, in form and
substance satisfactory to the Agent, confirming the following:
(i) None of its organizational documents have been
amended since the date(s) as of which copies of said
organizational documents were certified to the Agent
(except for the Certificate of Incorporation Amendments);
(ii) Specimen signature(s) of the person(s) authorized to
execute this Amendment;
(iii) The execution, delivery and performance of this
Amendment has been authorized by resolutions of the Board
of Directors of the Borrower and the Guarantor, copies of
which shall be attached to such officer's certificate; and
(iv) Each of the Borrower and the Guarantor remains in
good standing in its respective jurisdiction of
incorporation and in each jurisdiction in which it is
qualified to do business.
(v) There shall have been no amendment, waiver or other
modification to the Bank of Boston Facility.
(d) PROCEEDINGS AND DOCUMENTS. All proceedings in connection
with the transactions contemplated by this Amendment and all
documents incident
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thereto, including, without limitation, the Certificate of
Incorporation Amendments, shall be reasonably satisfactory in form
and substance to the Agent, and the Agent and each Lender, upon
request by such Lender, shall have received all information and such
counterpart originals or certified or other of such documents as the
Agent may reasonably request prior to the date hereof.
(e) COMPLIANCE.
(i) The Borrower and the Guarantor shall have complied
and shall then be in compliance with all of the terms,
covenants and conditions of the Loan Agreement as amended
by this Amendment; and
(ii) The representations and warranties contained in
Article 3 of the Loan Agreement shall be true and correct
on the date hereof; and
(iii) No Default or Event of Default shall have occurred,
and the Agent and each Lender shall have received a
Compliance Certificate dated the date hereof certifying,
INTER ALIA, that the conditions set forth in this Section
4(e) are satisfied on such date.
(f) LEGAL MATTERS. All legal matters incident to the
effectiveness of this Amendment shall be satisfactory to counsel to
the Agent.
5. REAFFIRMATION OF SECURITY INTEREST. The Borrower hereby
reaffirms as of the date hereof each and every security interest and lien
granted in favor of the Agent and the Lenders under the Loan Documents, and
agrees and acknowledges that such security interests and liens shall continue
from and after the date hereof, in each case after giving effect to the Loan
Agreement as amended by this Amendment, and the obligations secured thereby and
thereunder shall include Borrower's obligations under the Loan Agreement as
amended by this Amendment. Each such reaffirmed security interest and lien
remains and shall continue to remain in full force and effect and is hereby in
all respects ratified and confirmed.
6. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS.
(a) On and after the date hereof, each reference in the Loan
Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import, and each reference in the other Loan Documents,
shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement
shall remain in full force and effect in accordance with its terms.
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7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICT OF LAWS.
8. FURTHER ASSURANCES. Each of the parties hereto hereby agrees to
do such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably require to carry into effect the purposes of this Amendment.
9. COSTS AND EXPENSES. The Borrower hereby agrees to pay all
reasonable costs and expenses of the Agent (including reasonable attorneys' fees
and expenses) incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment.
10. COUNTERPARTS; FACSIMILE SIGNATURES. This Amendment may be
executed in any number of counterparts and by different parties on different
counterparts, but all such counterparts shall together constitute but one
agreement. Execution and delivery of this Amendment by facsimile transmission
shall constitute execution and delivery of this Amendment for all purposes, with
the same force and effect as execution and delivery of an originally manually
signed copy hereof.
11. HEADINGS. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment or be given any substantive effect.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first above written.
BORROWER:
LEASECOMM CORPORATION
By: /s/ Peter Bleyleben
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Name:
Title:
LENDERS:
FLEET BANK, N.A.
(formerly known as NatWest Bank N.A.)
Address:
Fleet Bank, N.A.
592 Fifth Avenue
New York, New York 10036
Attention: Mr. Harris C. Mehos
Vice President
Telecopier: (212) 819-6515
By: /s/ Harris Mehos
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Name:
Title:
SANWA BUSINESS CREDIT CORPORATION
Address:
Sanwa Business Credit Corporation
One South Wacker Drive
Chicago, Illinois 60606
Attention: Ms. M. Gail Fitzpatrick
Vice President
Telecopier: (312) 853-1366
By: /s/ M. Gail Fitzpatrick
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Name:
Title:
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CORESTATES BANK, N.A.
Address:
Corestates Bank PNB
1500 Market Street West Tower
Philadelphia, Pennsylvania 19101-7618
Attention: Ms. Verna R. Prentice
Vice President
Telecopier: (215) 973-6054
By: /s/ Verna R. Prentice
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
Address:
PNC Bank, National Association
1600 Market Street
Philadelphia, Pennsylvania 19103
Attention: Ms. Ann Fryland
Vice President
Telecopier: (215) 585-4769
By: /s/ A. Fryland
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Name:
Title:
STATE STREET BANK AND TRUST COMPANY
Address:
State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110-2804
Attention: F. Andrew Beise
Vice President,
Large Corporate Department
Telecopier: (617) 664-4971
By: /s/ L. Anne Boutiette
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Name:
Title:
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AGENT:
FLEET BANK, N.A.
(formerly known as NatWest Bank N.A.), as Agent
By: /s/ Harris Mehas
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Name:
Title:
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