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Exhibit 10.30
FOURTH AMENDMENT
TO
AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
LEASECOMM CORPORATION,
AS BORROWER,
THE LENDERS NAMED THEREIN
AND
FLEET BANK, NATIONAL ASSOCIATION, AS AGENT
JULY 31, 1998
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FOURTH AMENDMENT TO AMENDED AND RESTATED
LOAN AGREEMENT
FOURTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (this "Amendment")
made as of the 31st day of July, 1998 by and among LEASECOMM CORPORATION, a
Massachusetts corporation (the "Borrower"), FLEET BANK, NATIONAL ASSOCIATION, a
national banking association, in its individual corporate capacity, SANWA
BUSINESS CREDIT CORPORATION, a Delaware corporation, FIRST UNION NATIONAL BANK
(as successor to 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, NATIONAL ASSOCIATION, 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.
WITNESSETH:
WHEREAS, 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, the Second Amendment to Amended and
Restated Loan Agreement made as of August 6, 1996, and the Third Amendment to
Loan Agreement and Consent made as of the August 11, 1998 (the "Loan Agreement")
pursuant to which, INTER ALIA, the Lenders agreed to make available to the
Borrower a revolving credit and term loan facility;
WHEREAS, the Guarantor is proposing to register, offer to sell and sell its
shares of Common Stock, par value $.01 per share (the "Common Stock"), under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Form
S-1 Registration Statement under the Securities Act of 1933 (the offer and sale
of such shares pursuant to such Registration Statement being hereinafter
referred to as the "IPO"); and
WHEREAS, as in connection with the IPO, the Borrower has requested the
Lenders to agree to amend the Loan Agreement in certain respects, as hereinafter
provided, and the Lenders are willing to agree to such changes, subject to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
1. AMENDMENTS. The Loan Agreement is hereby amended as follows:
(a) The definition of "PRINCIPAL OFFICE" in Section 1.1 of the Loan
Agreement is hereby amended and restated in its entirety as follows:
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"'PRINCIPAL OFFICE' - the principal office of the Agent, which office is
currently located at 1185 Avenue of the Americas, New York, New York
10036."
(b) The definition "IPO" is hereby added to Section 1.1 to read in its entirety
as follows:
"'IPO' - the initial public offering and sale of the shares of Common
Stock, par value $.01 per share, of the Guarantor pursuant to an effective
Form S-1 Registration Statement under the Securities Act of 1933, as
amended.
(c) Section 7.4 is hereby amended and restated to read in its entirety as
follows:
"SECTION 7.4 MERGERS, ACQUISITIONS.
Merge or consolidate with any Person (whether or not the Borrower is
the surviving entity) or acquire all or substantially all of the assets or
any of the capital stock of any Person or sell all or any substantial part
of its assets or create any Subsidiaries, whether wholly- or
partially-owned; provided that a Loan Party (the "Acquiring Entity") may,
upon prior written notice to the Agent and the Lenders, acquire any third
Person, whether by merger, consolidation or acquisition of assets, subject
to satisfaction of each of the following conditions: (i) if such
transaction shall constitute a merger or consolidation, the Acquiring
Entity shall be the surviving entity, (ii) the purchase price and other
consideration for such transaction or related series of transactions (which
shall include any assumption of indebtedness or issuance of capital stock
(valued at the fair market value thereof)) shall not in the aggregate
exceed the lesser of $10,000,000 or an amount equal to 15% of the
Consolidated Tangible Capital Funds (measured as of the most recently
available financial statements of the Guarantor) or, if the purchase price
and other consideration shall exceed such amount, the Majority Lenders
shall have given their prior written consent thereto, provided such consent
shall be deemed to have been given if: (x) the Borrower shall have
submitted directly to each of the Lenders and the Agent a written request
for consent which request shall be delivered in hard copy by commercial
messenger or courier service or by certified mail, return receipt
requested, (y) such request shall have been accompanied by all appropriate
supporting documentation, including, without limitation, pro forma
financial statements and a certificate from the chief financial officer of
the Guarantor setting forth a pro forma recalculation of the financial
covenants in Section 6.9 evidencing compliance with such covenants as at
and through the end of the period covered by
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the most recent financial statements delivered to the Agent and the Lenders
pursuant to the Loan Agreement, and other financial and other information
necessary to enable to the Lenders to provide an informed consent with
respect to such acquisition and (z) neither the Agent nor the Majority
Lenders shall have objected to such transaction, either by telephone,
facsimile or in writing, within ten (10) Business Days of actual receipt by
each of the Lenders and the Agent of the items described in preceding parts
(x) and (y), (iii) the business or assets acquired shall be in the same
line of business as the Borrower and the portfolio of leases, if any,
constituting such assets acquired shall satisfy the credit and risk
acceptance policies and criteria of the Borrower then generally applicable
to the Borrower's own leases and (iv) no Default or Event of Default shall
exist either before or after giving effect to such transaction."
(d) Section 7.6 is hereby deleted in its entirety.
(e) Section 7.7 is hereby amended to delete the following from where it appears
therein: "any shares of stock or".
(f) Section 7.8 is hereby amended to add the following immediately prior to the
end of the sentence: "and the Guarantor may prepay any Subordinated Debt
provided (x) such prepayment is made from the net proceeds of the initial public
offering of its Common Stock and (y) Consolidated Tangible Capital Funds and
Consolidated Tangible Net Worth shall be in excess of the respective amounts
thereof immediately prior to the IPO."
(g) Subsection (B) of Section 7.9 is hereby amended and restated to read in its
entirety as follows:
"(B) any other Investments, provided that the same are permitted
pursuant to Section 7.4.";
and the paragraph immediately succeeding subsection (B) is hereby deleted in its
entirety.
(h) Section 8.9 is hereby amended and restated to read in its entirety as
follows:
"SECTION 8.9 OWNERSHIP OF STOCK AND CONTROL OF BORROWER.
(a) The Guarantor shall at any time own, beneficially and of record,
less than 100% in the aggregate of all of the issued and outstanding shares
of capital stock of the Borrower, (b) any Person or group of Persons
(within the meaning of Section 13(d) or 14(d)(2) of the Securities Exchange
Act of 1934, as amended) other than the Principals shall own and/or Control
more than 50% of the issued and outstanding shares of capital stock of the
Guarantor on a fully diluted basis (assuming the exercise of all
outstanding stock options) of the Guarantor having ordinary voting
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rights for the election of directors or (c) the Principals shall own in the
aggregate less than 45%, or own and/or Control in the aggregate less than
60%, of the issued and outstanding shares of capital stock, on a fully
diluted basis (assuming the exercise of all outstanding stock options), of
the Guarantor having ordinary voting rights for the election of directors;
PROVIDED that subpart (c) shall not apply if and for so long as the Common
Stock of the Guarantor shall be subject to the reporting requirements of
the Securities Exchange Act of 1934, as amended."
(i) Section 11.9 is hereby amended to substitute the following for the address
for the Agent or, in its capacity as Lender, the Bank:
Fleet Bank, National Association
1185 Avenue of the Americas
New York, New York 10036
Attention: Leasing & Finance Companies
Telecopier: (212) 819-6212
2. 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.
(b) IPO. The IPO shall have occurred and the Agent shall have received
evidence satisfactory to it to such effect.
(c) 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.
(d) 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 pursuant to the Third Amendment to Loan
Agreement and Consent made as of August 11, 1997;
(ii) Specimen signature(s) of the person(s) authorized to execute this
Amendment;
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(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.
(e) BANK OF BOSTON FACILITY. The Bank of Boston Facility shall have been
amended to reflect the amendments set forth herein (or shall be amended
subject only to effectiveness of the amendments set forth herein) to the
extent the provisions being amended pursuant to this Amendment are
contained therein, and the Agent shall have received evidence satisfactory
to it to such effect.
(f) PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Amendment and all documents incident
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.
(g) 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 2 are satisfied on such date.
(h) LEGAL MATTERS. All legal matters incident to the effectiveness of this
Amendment shall be satisfactory to counsel to the Agent.
3. 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
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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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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: Peter Bleyleben
Title: President and CEO
LENDERS:
FLEET BANK, NATIONAL ASSOCIATION
Address:
Fleet Bank, N.A.
1185 Avenue of the Americas
New York, New York 10036
Attention: Mr. Harris C. Mehos
Vice President
Telecopier: (212) 819-6212
By: /s/ Harris C. Mehos
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Name: Harris C. Mehos
Title: Vice President
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SANWA BUSINESS CREDIT CORPORATION
Address:
Sanwa Business Credit Corporation
One South Wacker Drive
Chicago, Illinois 60606
Attention: Mr. Jeff Griffor
Credit Manager
Telecopier: (312) 853-1335
By: /s/ Jeffrey A. Griffor
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Name: Jeffrey A. Griffor
Title: Credit Manager
FIRST UNION NATIONAL BANK (successor
to CORESTATES BANK, N.A.)
Address:
1339 Chestnut Street
Mailstop: PA4827
Philadelphia, Pennsylvania 19101-7618
Attention: Ms. Theresa Smith
Vice President
Telecopier: (215) 786-7704
By: /s/ Theresa Smith
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Name: Theresa Smith
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION
Address:
PNC Bank, National Association
1600 Market Street
Philadelphia, Pennsylvania 19103
Attention: Mr. Philip Jackson
Senior Vice President
Telecopier: (215) 585-4769
By: /s/ Philip C. Jackson
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Name: Philip C. Jackson
Title: Senior Vice President
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/ F. Andrew Beise
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Name: F. Andrew Beise
Title: Vice President
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AGENT:
FLEET BANK, NATIONAL ASSOCIATION,
as Agent
By: /s/ Harris C. Mehos
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Name: Harris C. Mehos
Title: Vice President
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CONFIRMATION OF GUARANTY
The undersigned Guarantor of the Obligations under the Loan Documents
hereby consents and agrees to the amendment on the date hereof, pursuant to the
Fourth Amendment to Amended and Restated Loan Agreement (the "Fourth
Amendment"), of the Amended and Restated Loan Agreement dated as of July 28,
1995, as amended by the First Amendment to Amended and Restated Loan Agreement
made as of October 30, 1995, the Second Amendment to Amended and Restated Loan
Agreement made as of August 6, 1996, and the Third Amendment to Loan Agreement
and Consent made as of August 11, 1997, acknowledges receipt of a copy of the
Fourth Amendment and agrees that its guaranty of the payment and performance of
the Obligations pursuant to the Guaranty dated as of July 29, 1993 remains in
full force and effect and shall continue to apply to the Obligations, after
giving effect to the Fourth Amendment. The undersigned hereby reaffirms as of
the date hereof each and every representation and warranty made pursuant to the
Guaranty, and confirms that each and every such representation and warranty is
true and correct on and as of the date hereof as if made on and as of such date.
Dated: as of July 31, 1998
BOYLE LEASING TECHNOLOGIES, INC.
By: /s/ Richard F. Latour
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Name: Richard F. Latour
Title: Executive Vice President, COO/CFO
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