EXHIBIT 10.1
THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (the "Third Amendment"), is made and
entered into this 4th day of May, 2009, by and among XXXXXX INDUSTRIES, INC.
(the "Borrower"), MANUFACTURERS AND TRADERS TRUST COMPANY and PNC BANK, NATIONAL
ASSOCIATION, successor to Bank of Lancaster County, a division of BLC Bank N.A.,
successor to Bank of Lancaster County, N.A. (each a "Lender" and collectively,
the "Lenders") and MANUFACTURERS AND TRADERS TRUST COMPANY, as agent (in such
capacity, the "Agent").
B A C K G R O U N D
A. Borrower has borrowed from Lenders and desires to continue to borrow
from Lenders in connection with the operation of its business(es). On April 30,
2007, the parties entered into a Loan Agreement, upon which monies have been
advanced, which was amended by an Amendment to Loan Agreement dated May 2, 2008
and a Second Amendment to Loan Agreement dated September 11, 2008 (as amended,
the "Loan Agreement"). The Loan Agreement is incorporated herein by reference
and made a part hereof. All capitalized terms used herein without definition
which are defined in the Loan Agreement shall have the meanings set forth
therein.
B. Borrower has requested Lenders to amend certain provisions of the Loan
Agreement.
C. The parties desire to enter into this Third Amendment to effectuate such
amendments.
D. Borrower has no defense, charge, defalcation, claim, plea, demand or
set-off against the Loan Agreement or any of the Loan Documents.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. That the above Background is incorporated herein by reference.
2. That the definitions of "Lender" and "Lenders" contained in Section 1.1
of the Loan Agreement be and hereby are amended to substitute "PNC Bank,
National Association, successor to Bank of Lancaster County, a division of BLC
Bank, N.A., successor to Bank of Lancaster County, N.A." for "Bank of Lancaster
County, a division of BLC Bank, N.A., successor to Bank of Lancaster County,
N.A." appearing therein.
3. That the definition of "LIBOR" contained in Section 1.1 of the Loan
Agreement be and hereby is amended to read in its entirety as follows:
"LIBOR" shall mean the rate per annum (rounded upward, if necessary, to the
nearest 1/16th of 1%) obtained by dividing (i) the one-month interest
period London Interbank Offered Rate as fixed by the British Bankers
Association for United States dollar deposits in the London interbank
market at approximately 11:00 a.m. London, England time (or as soon
thereafter as practicable) each day (or if such day is not a London
Business Day, as fixed in the same manner on the immediately preceding
London Business Day, which day's rate shall, unless otherwise provided for,
apply to the immediately succeeding non-London Business Days), as
determined by the Agent from any broker, quoting service or commonly
available source utilized by the Agent, by (ii) a percentage equal to 100%
minus the stated maximum rate of all reserves required to be maintained
against "Eurocurrency Liabilities" as specified in Regulation D (or against
any other category of liabilities, which includes deposits by reference to
which the interest rate on LIBOR Rate Loan(s) is determined, or any
category of extensions of credit or other assets which includes loans by a
non-United States' office of a bank to United States' residents) on such
date to any member bank of the Federal Reserve System. Notwithstanding any
provision above, the practice of rounding to determine LIBOR may be
discontinued at any time in the Agent's sole discretion.
4. That Section 1.1 of the Loan Agreement be and hereby is amended to add a
definition for "London Business Day" as follows:
"London Business Day" shall mean any day on which dealings in United States
dollar deposits are carried on by banking institutions in the London
Interbank Market.
5. That the definition of "Revolving Credit Maturity Date" contained in
Section 1.1 of the Loan Agreement be and hereby is amended to substitute "March
31, 2011" for "March 31, 2010" appearing therein.
6. That Section 2.3 (a) of the Loan Agreement be and hereby is amended
effective __________, 2009, to provide that the applicable interest rate for
LIBOR Advances will be the greater of (a) 2.50 percentage points above one-month
LIBOR, adjusting daily, or (b) 3.50%, notwithstanding the pricing formula
otherwise therein set forth.
7. That Section 2.5(b) of the Loan Agreement be and hereby is amended to
substitute "one and one-quarter percent (1.25%)" for "one percent (1.00%)"
appearing therein as and for the amount of the annual letter of credit fee that
is now due and payable on the aggregate amounts of letters of credit pursuant to
Section 2.4(b).
8. That the Borrower reaffirms and restates the representations and
warranties set forth in Section 7 of the Loan Agreement, as amended by this
Third Amendment, and all such representations and warranties shall be true and
correct on the date hereof with the same force and effect as if made on such
date, except as they may specifically refer to an earlier date(s). The Borrower
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to the Agent and the Lenders that (i) this Third
Amendment has been duly authorized, executed and delivered and constitute a
legal, valid and binding obligation of the Borrower, and is enforceable in
accordance with its terms; (ii) the Borrower is not in default under the Loan
Agreement or any of the other Loan Documents, and the Borrower is in full
compliance with all of the terms and conditions thereof; (iii) no event exists,
or is likely to exist in the future, which with the passage of time, notice, or
both, will constitute a default under the Loan Agreement or any of the other
Loan Documents; and (iv) there have been no material adverse changes in the
Borrower's financial condition or operations which would cause the Borrower to
be in default under any of the financial covenants contained in the Loan
Documents. Borrower shall update all Schedules as of the date of this Third
Amendment.
9. That the terms and conditions, paragraph sections, collateral and
guaranty requirements, representations and warranties of the Loan Agreement and
Loan Documents, together with all understandings by and between the parties to
this Third Amendment evidenced by writings of the same or subsequent date not in
conflict with the above modifications under this Third Amendment shall remain in
full force and effect as the agreement of the parties relative to the Loans, and
are hereby ratified, reaffirmed and confirmed. Any past, present or future delay
or failure of the Agent and the Lenders to demand or enforce strict performance
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of each term and condition of the Loan Agreement and Loan Documents, and any
past, present or future delay or failure of the Agent or the Lenders to exercise
any right, power or privilege shall not be deemed or construed as a waiver with
respect to the same or any other matter, or preclude the future exercise of such
right, power or privilege, or be construed or deemed to be a waiver of or
acquiescence in any such default.
10. That all references to the Loan Agreement, the Loan Documents and the
other documents and instruments delivered pursuant to or in connection
therewith, as well as in writings of the same or subsequent date, shall mean the
Loan Agreement as amended hereby and as each may in the future be amended,
restated, supplemented or modified from time to time. Further, all references to
Bank of Lancaster County, N.A. in the Loan Agreement, the Loan Documents and the
other documents and instruments delivered pursuant to or in connection therewith
shall now be deemed to have been made and to refer to PNC Bank, National
Association, successor to Bank of Lancaster County, a division of BLC Bank,
N.A., successor to Bank of Lancaster County, N.A.
11. That the parties hereto shall, at any time, and from time to time
following the execution of this Third Amendment, execute and deliver all such
further instruments and take all such further action as may be reasonably
necessary or appropriate in order to carry out the provisions of this Third
Amendment.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Borrower,
the Lenders and the Agent have caused this Third Amendment to be executed by
their proper corporate officers thereunto duly authorized as of the day and year
first above written.
ATTEST/WITNESS: XXXXXX INDUSTRIES, INC.
/s/___________________________ By: /s/
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Xxxxx Xxxx, CEO
Title: CFO____________________
MANUFACTURERS AND TRADERS
TRUST COMPANY, in its capacities as
Agent and Lender
By: /s/
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Xxxx X. XxXxxx, Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/
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Title: SVP
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