Exhibit 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
June 30, 2000, to that certain Credit Agreement dated as of November 17, 1999,
among Equivest Finance, Inc. (the "Borrower"), Peppertree Acquisition Corp.
("Newco"), Peppertree Acquisition Corp. II ("Newco II") and Bank of America,
N.A. (the "Lender")
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WITNESSETH:
WHEREAS, the Lender, the Borrower, Newco and Newco II entered into
the Credit Agreement; and
WHEREAS the Borrower has requested that certain amendments to the
Credit Agreement be made and the Lender is on the terms and conditions stated
below willing to grant such requests to' the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the parties hereby agree as follows:
1 - Definitions. Except as otherwise set forth herein, capitalized
terms not defined herein shall have the respective meanings assigned to such
terms in the Credit Agreement.
2. Amendments to the Credit Agreement.
Effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 5 hereof, the Credit Agreement is
hereby amended as follows:
(a) Section 1.1 is amended by amending the proviso to the definition
of "Change of Control" to read in its entirety as follows: "; provided, however,
that it is understood and agreed that any sale of stock of the Borrower held by
the Estate in an aggregate amount equal to or greater than 10% of the shares of
the Borrower held by the Estate on the Agreement Date shall be deemed to be a
Change of Control";
(b) Section 1.1 is amended by deleting "Extension Fee" and its
definition in its entirety;
(c) Section 1.1 is amended by deleting the definitions of "First
Extension Period" and "Second Extension Period" and adding a new definition in
alphabetical order as follows : `"Extension Period' has the meaning specified in
Section 2.8(a) hereof';
(d) Section 1.1 is amended by deleting the definition of "LIBOR
Basis" in its entirety and adding in its place the following: "means a simple
per annum interest rate equal to the lesser of (a) the Highest Lawful Rate and
(b)(i) during the Initial Term, the sum of the LIBOR Base Rate plus 3.00%; (ii)
for the period from and including August 18, 2000 through 393814.8.02 8114100
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and including November 17, 2000, the sum of the LIBOR Base Rate plus 350%; or
(iii) during the Extension Period, the sum of the LIBOR Base Rate plus 3.75%";
(e) Section 1.1 is amended by deleting from the definition of
"Maturity Date" the following: "August 17, 2000" and adding in its place the
following: "November 17, 2000";
(f) Section 1.1 is amended by deleting clause (a) of the definition
of "Reference Rate" in its entirety and adding in its place the following:
"(a)(i) during the Initial Tern, 0.50%, (ii) during the period from and
including August 18,2000 through and including November 17, 2000, 1.00% or (iii)
during the Extension Period, 1.25%. plus, in each case";
(g) Section 11 is amended by deleting clause (ii) of the proviso of
the definition of "Subsidiary" in its entirety and adding in its place the
following: "(ii) no Securitization Subsidiary shall be deemed to be a Subsidiary
for purposes of this Agreement other than with respect to the calculation of
Excess Cash Flow";
(h) Section 2.3(d) is hereby deleted in its entirety;
(i) The first sentence of Section 2.5(b)(ii) is amended to read in
its entirety as follows:" On the date! of any (A) Asset Sale or (B) Offering,
the Borrower shall prepay the Term Note in an amount equal to all of the Net
Cash Proceeds of such Asset Sale or Offering";
(j) Section 2.5 (1,) (iii) is amended to read in its entirety as
follows: "Unless the Borrower and the Lender shall have negotiated a mutually
acceptable amortization schedule for the Term Loan in accordance with Section
2.8(a)(ii) and provided that the Extension Period shall have been exercised
pursuant to Section 2.8 hereof on January 1,2001 and on each Payment Date
thereafter the Borrower shall apply an amount equal to 80% of Excess Cash Flow
for the second preceding calendar month to the prepayment of the Term Note,
provided, however, that, in the event that Net Cash Proceeds of any Asset Sale
have been applied to prepay the Term Note pursuant to Section 2.5(b)(ii) above,
such Net Cash Proceeds shall be excluded from the calculation of Excess Cash
Flow";
(k) Section 25(b) is amended by adding a new subsection (iv) thereto,
to read in its entirety as follows; "(iv) On each of September 17, 2000 and
October 17, 2000, the Borrower shall prepay the Term Note in an amount equal to
$300,000 and, provided the Extension Period shall have been exercised pursuant
to Section 2.8, on November 17, 2000, the Borrower shall prepay the Term Note in
an amount equal to the greater of (A) $300,000 and (B) the amortization payment
for such date agreed to by the Lender and the Borrower, if any, pursuant to
Section 2. 8(a)(ii) hereof';
(I) Clauses (i) and (ii) of Section 2.8(a) are amended to read in
their entirety as follows: "(i) a written notice stating that the Borrower
desires to extend the Maturity Date of the Term Note until February 17, 2001,
and certifying to the effect that (A) no Default or Event of Default Exists
under any of the Loan Documents; (B) an interested buyer has been found to
purchase the shares o f the Borrower held by the Estate (the "Buyer"); (C) the
Buyer has the
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financial means to consummate the purchase of such shares from the Estate (the
"Estate Purchase"); and (D) the Borrower and the Buyer are in the process of
finalizing the purchase documents and closing the Estate Purchase; and (ii)
payment of an advisory fee on the date notice is given in an amount set forth in
a fee letter dated as of June 30, 2000 between the Borrower and the Lender, in
which case the Term Note shall, subject to written notice that such
certification is true and correct on the current Maturity Date, mature On
February 17,2001 (the "Extension Period"); provided, however, that, in
connection with the satisfaction of the conditions for the Extension Period, the
Lender and the Borrower agree to renegotiate the terms of the amortization of
the Term Note to substitute an amortization schedule for the provisions of
Section 2.5(b)(iii), it 1,eing understood and agreed that if the Lender and the
Borrower are unable to agree upon an amortization schedule for the Term Note,
the provisions with respect to the application of Excess Cash Flow to the
prepayment of the Term Note set forth in Section 2.5(b)(iii) shall apply";
(in) Section 2.8 is amended by deleting subsection (b) in
its entirety and adding in its place the following:
"Reserved"; and
"1.90:1.00".
(n) Section 7.11 is amended by deleting "2.25:1.00" and adding in its place
3. Representations and Warranties. To induce the Lender to enter into
this Amendment, each of the Borrower, Newco and Newco II, represents and
warrants, as of the date of the execution and delivery of this Amendment, that:
(a) It has the power, authority and legal right to make and deliver
this Amendment and to perform its obligations under the Credit Agreement, as
amended by this Amendment, without any notice, consent, approval or
authorization not already obtained, and that it has taken. all necessary action
to authorize the same.
(1,) The making and delivery of this Amendment and the performance of
the Credit Agreement, as amended by this Amendment, does not violate any
provision of law or any regulation, or its charter or by-laws, or result in the
breach of or constitute a default under or require any consent under any
indenture or other agreement or instrument to which it is a party or by which it
or any of its properties may be bound or affected. The Credit Agreement, as
amended by this Amendment, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except as the
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors' rights
generally.
(c) The representations and warranties made by it contained in the
Credit Agreement are true and correct on the date of the execution and delivery
of this Amendment and after giving effect hereto.
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(d) No Event of Default or Default has occurred and is continuing
under the Credit Agreement on the date of the execution and delivery of this
Amendment and after giving effect hereto.
4. Conditions Precedent. This Amendment shall become effective, as of
the date hereof, upon receipt by the Lender of (I) a counterpart of this
Amendment, duly executed and delivered by the Borrower, (ii) the fees payable on
the date of the execution and delivery of this Amendment set forth in that
certain Fee Letter dated as of the date hereof between the Lender and the
Borrower and (iii) all other costs and expenses, including, without limitation,
the fees and expenses of counsel to the Lender.
5. Reference to and Effect on the Loan Documents.
(a) On and after the date hereof, (i) all references in the Credit
Agreement to "this Agreement", "hereof', "herein", or similar terms, (ii) all
references to the Credit Agreement in each agreement, in3trument and other
document executed or delivered in connection with the Credit Agreement and (iii)
all references to the Credit Agreement and all other Loan Documents, shall mean
and refer to the Credit Agreement as amended by this Amendment.
(b) Except as specifically amended hereby, the Credit Agreement and
all other Loan Documents shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, operate as a waiver of any right, power or remedy of the Lender under any
Loan Document, nor constitute a waiver of any provision of any Loan Document.
6. Counterparts. This Amendment may be signed in any number of
counterparts, each of which shall be an original and all of which taken together
shall constitute a single instrument with the same effect as if the signatures
thereto and hereto were upon the same instrument.
7. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflict of law principles thereof (except Section 5-1401 of the General
Obligations Law).
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
BANK OF AMERICA, N.A., as Lender
By: s/ Robert N. Allen
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Name: Robert N. Allen
Title: Vice President
EQUIVEST FINANCE, INC., as Borrower
By: s/ Gerald L. Klaben, Jr.
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Name: Gerald L. Klaben, Jr.
Title: Senior VP &
Chief Financial Officer