FIFTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is entered into as of September 29, 1998, by and between
Precept Business Services, Inc, a Texas corporation ("PBS"), Precept Business
Products, Inc., a Delaware corporation ("PBI"), Wingtip Couriers, Inc., a
Texas corporation ("Wingtip"), Precept Transportation Services of Texas,
Inc., a Texas corporation ("PTST"), Precept Transportation Services, L.L.C.,
a Nevada limited liability company ("PLLC"), and Relay Couriers, Inc., a
Texas corporation ("Relay"), (PBS, PBI, Wingtip, PTST, PLLC and Relay are
individually hereinafter referred to as a "Borrower"), and WELLS FARGO BANK
(TEXAS), NATIONAL ASSOCIATION ("Bank").
RECITALS
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms
and conditions of that certain First Amended and Restated Credit Agreement
between Borrower and Bank dated as of March 20, 1998, as amended from time to
time ("Credit Agreement").
WHEREAS, Bank and Borrower have agreed to certain changes in the terms
and conditions set forth in the Credit Agreement and have agreed to amend the
Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:
1. Section 1.1.(a) is hereby amended by deleting "Twenty Million
Dollars ($20,000,000.00)" as the maximum principal amount available under the
Line of Credit, and by substituting for said amount "Twenty-Five Million
Dollars ($25,000,000.00)," with such change to be effective upon the
execution and delivery to Bank of a promissory note substantially in the
form of Exhibit A attached hereto (which promissory note shall replace and be
deemed the Line of Credit Note defined in and made pursuant to the Credit
Agreement) and all other contracts, instruments and documents required by
Bank to evidence such change.
2. Section 1.1.(b) is hereby deleted in its entirety, and the following
substituted therefor:
"(b) Outstanding Borrowings under the Line of Credit, to a maximum of
the principal amount set forth above, shall not at any time exceed an
aggregate of Pro Forma
Historical EBITDA multiplied by Two and Three-Fourths (2.75). As used
herein, "Pro Forma Historical EBITDA" shall be defined as EBITDA of
Borrowers for the immediately preceding 12 month period ending on the
last day of the immediately preceding fiscal month plus any adjustments
to EBITDA as agreed to in writing by Bank."
3. Section 4.3.(c) is hereby deleted in its entirety, and the following
substituted therefor:
"(c) Contemporaneously with each monthly financial statement of
Borrowers, required hereby, a borrowing base certificate showing
at least Borrowers calculation of EBITDA and Pro Forma Historical
EBITDA."
4. Borrower shall pay to Bank a non-refundable commitment fee for the
Line of Credit equal to $25,000.00 which fee shall be due and payable in full
on the date Borrower acknowledges this Amendment.
6. Except as specifically provided herein, all terms and conditions of
the Credit Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Credit Agreement shall have the same
meaning when used in this Amendment. This Amendment and the Credit Agreement
shall be read together, as one document.
7. Borrower hereby remakes all representations and warranties contained
in the Credit Agreement and reaffirms all covenants set forth therein.
Borrower further certifies that as of the date of this Amendment there exists
no Event of Default as defined in the Credit Agreement, nor any condition,
act or event which with the giving of notice or the passage of time or both
would constitute any such Event of Default.
NOTICE: THIS DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THE INDEBTEDNESS
CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES RELATING TO THE INDEBTEDNESS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
PRECEPT BUSINESS SERVICES, INC. WELLS FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: William W. Solomon, Jr. By:
---------------------------------- -----------------------------------
Brent Bertino
Title: Senior VP & CFO Relationship Manager/
----------------------------- Assistant Vice President
PRECEPT BUSINESS PRODUCTS, INC. WINGTIP COURIERS, INC.
By: William W. Solomon, Jr. By: William W. Solomon, Jr.
---------------------------------- --------------------------------------
Title: Senior VP & CFO Title: Senior VP & CFO
----------------------------- ------------------------------
PRECEPT TRANSPORTATION SERVICES OF
TEXAS, INC. PRECEPT TRANSPORTATION SERVICES, L.L.C.
By: William W. Solomon, Jr. By: William W. Solomon, Jr.
--------------------------------- ----------------------------------
Title: Senior VP & CFO Title: Senior VP & CFO
----------------------------- ------------------------------
RELAY COURIERS, INC.
By: William W. Solomon, Jr.
---------------------------------
Title: Senior VP & CFO
-----------------------------
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