EXHIBIT 10Q
SECOND AMENDMENT TO
REVOLVING CREDIT AND
SECURITY AGREEMENT
THIS SECOND AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (this
"Second Amendment") executed and delivered as of July 3, 2005, by and between
WACHOVIA BANK, National Association ("Bank"), and among AUTOINFO, INC., a
Delaware corporation, SUNTECK TRANSPORT CO., INC., a Florida corporation and
SUNTECK TRANSPORT & LOGISTICS, INC., a Florida corporation (collectively, the
"Borrower").
RECITALS:
A. On May 23, 2003, Borrower and Bank, executed and delivered that certain
Revolving Credit and Security Agreement (the "Credit Agreement") under the terms
of which Bank provided a line of credit to Borrower in the amount of $1,500,000.
B. On June 29, 2004, Borrower and Bank, executed and delivered that
certain First Amendment to Revolving Credit and Security Agreement (the "First
Amendment") which increased the Maximum Loan Amount to $2,500,000, extended the
facility and amended certain other terms of the Credit Agreement.
C. The parties desire to make certain changes to the terms of the Credit
Agreement, as amended by the First Amendment, as described herein.
NOW, THEREFORE, in consideration of the agreements set forth herein and
other good and valuable consideration, the Bank and the Borrower hereby agree as
follows:
1. Definitions. All capitalized terms used herein shall have the same meanings
as used in the Credit Agreement, unless otherwise defined in this Second
Amendment and the rules of construction set forth in the Credit Agreement shall
apply to this Second Amendment. Any reference herein to the Credit Agreement
shall mean the Credit Agreement as amended by the First Amendment and this
Second Amendment.
2. Amendments.
A. Borrowing Base Certificate. Section 5.6(a) of the Credit agreement
is hereby amended and restated to read as follows:
"(a) Periodic Borrowing Base Information. Within twenty (20) days
of the end of each month (or more frequently if required by
Bank), a completed Borrowing Base Certificate in such form as
Bank shall require (a "Borrowing Base Certificate"). Each
Borrowing Base Certificate shall be certified by the chief
financial officer or president of Borrower to be accurate and
complete and in compliance with the terms of the Loan
Documents. Bank shall accept the following form of Borrowing
Base Certificate until it notifies Borrower otherwise: (a) for
months which do not end on a calendar quarter end, Borrower
shall deliver to Bank a Borrowing Base
Certificate in the form of the attached Exhibit "A", which
includes an accounts receivable aging and inventory report and
complete the Borrowing Base Certificate using the following
calculation: total accounts receivable less accounts
receivable over 60 days from invoice date, multiplied by 75%,
and (b) for months ending on calendar quarter ends, Borrower
shall deliver to Bank a Borrowing Base Certificate in the form
of the attached Exhibit "B", which includes (i) an accounts
receivable report in a form approved by the Bank (an "Accounts
Receivable Report") which shall include the amount and age of
each Account, the name and mailing address of each Account
Debtor, a detailing of all credits due such Account Debtor by
Borrower stated in the number of days which have elapsed since
the date each such credit was issued by Borrower, and such
other information as Bank may require in order to verify the
Eligible Accounts, all in reasonable detail and in form
acceptable to Bank, (ii) a report reconciling (x) the Accounts
of Borrower as set forth on the Accounts Receivable Report
attached to the Borrowing Base Certificate to (y) the
aggregate Accounts set forth in the financial statements
delivered to Bank pursuant to Section 5.6(b) (which shall be
based upon Borrower's general ledger)."
(B) Payables Report. Section 5.6(f) of the Credit Agreement is hereby amended
and restated as follows:
(a) Payables Report. Within fifteen (15) days of the end of each month
(or more frequently if required by Bank), Borrower shall deliver to
Bank an accounts payable report ("Payables Report") in a form
acceptable to Bank. Bank shall accept the following form of Payables
Report until it notifies Borrower otherwise: (a) for months which do
not end on a calendar quarter end, an accounts payable aging report
in a form acceptable to Bank, and (b) for months ending on calendar
quarter ends, an accounts payable report containing the following
information: (i) a schedule of all accounts payable of Borrower
setting forth for each such account the number of days which have
elapsed since the original date of invoice and containing the name
and address of each vendor and such other detail requested by Bank,
and (ii) a report reconciling (x) the accounts payable of Borrower
as set forth on the report delivered in 5.6(f)(b)(i) above to (y)
the aggregate accounts payable set forth in the financial statements
delivered to Bank pursuant to Section 5.6(b) (which shall be based
upon Borrower's general ledger);
(C) Eligible Accounts. Subsection (h) of the definition of Eligible Accounts
in Exhibit 1 to the Credit Agreement is hereby amended and restated to
read as follows:
(i) :...(i) Accounts owed by the United States of America or other
governmental or quasi-governmental unit, agency or subdivision
unless Borrower shall have complied with all applicable federal and
state assignment of claims laws, provided that Accounts of the Army
Air Force Exchange Service (AAFES) shall be eligible ;..."
(D) Termination Date. The definition of Termination Date in Exhibit 1 to the
Credit Agreement is hereby amended and restated to read as follows:
"Termination Date" means June 30, 2006 (unless extended in writing by
Bank).
3. Effectiveness. The effectiveness of this Second Amendment shall be subject to
the prior or concurrent satisfaction of each of the conditions precedent set
forth in this Section 3:
a. Delivery of Documents. The Bank shall have received counterparts of
the following documents executed by the Borrower and dated as of the
date hereof:
(i) this Second Amendment;
(ii) that certain Second Renewal Revolving Promissory Note dated of
even date herewith; and
(iii) such documents, certificates, affidavits and acknowledgments
as may be reasonably required by the Bank to consummate the
transaction contemplated by this Second Amendment.
b. Other Conditions Precedent. Borrower shall pay all of Banks
reasonable attorneys fees and costs incurred in connection with the
transaction contemplated by this Second Amendment.
4. No Event of Default/Representations and Warranties. The Borrower certifies to
the Bank that Borrower has kept, observed, performed and fulfilled each and
every covenant, provision and condition of the Credit Agreement and each other
Loan Document to which Borrower is a party on its part to be performed and that
no Event of Default has occurred with respect to Borrower under the Credit
Agreement or any other Loan Document to which Borrower is a party. The Borrower
further certifies to Bank that, both immediately before and after giving effect
to this Second Amendment, the representations and warranties set forth in
Article 4 of the Credit Agreement with respect to the Borrower, are true and
correct in all material respects on and as of the date of this Second Amendment.
5. Credit Agreement Confirmed. This Second Amendment shall be deemed to be an
amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
is hereby ratified, approved and confirmed in each and every respect.
6. Miscellaneous.
a. Invalidity. In the event that any one or more of the provisions
contained in this Second Amendment shall, for any reason, be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Second Amendment.
b. Counterparts. This Second Amendment may be executed in several
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
c. Reference. From and after the effective date hereof, all references to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
amended by this Second Amendment.
d. Governing Law. This Second Amendment shall be governed by and
interpreted and enforced in accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be duly executed and delivered as of the date first above written.
"BANK"
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ David C. Jackson
--------------------
Name: David C. Jackson
Title: Vice President
"BORROWER"
AutoInfo, Inc.
By: /s/ Harry M. Wachtel
--------------------
Name: Harry M. Wachtel
Its: President
Sunteck Transport Co., Inc.
By: /s/ Harry M. Wachtel
--------------------
Name: Harry M. Wachtel
Its: President
Sunteck Transport & Logistics, Inc.
By: /s/ Harry M. Wachtel
--------------------
Name: Harry M. Wachtel
Its: President