SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 10.1
SEVENTH AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT, dated as of April 19, 2011 (this "Amendment"), is made by and among Keltic Financial Partners II, LP, a Delaware limited partnership ("Lender"), and Xxxxxx Technologies Company, a Tennessee corporation ("Borrower").
WITNESSETH
WHEREAS, Borrower and Lender are parties to that certain Amended and Restated Loan Agreement, dated as of June 26, 2007 (as it may be amended, restated, modified or supplemented from time to time, the "Loan Agreement"; capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Loan Agreement);
WHEREAS, Borrower has requested that Lender make certain amendments to the Loan Agreement, and Lender is agreeable to such request only on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties do hereby agree as follows:
STATEMENT OF TERMS
1. Amendments. (a) Section 1.34 of the Loan Agreement is hereby amended by deleting the date "June 26, 2011" and inserting in place thereof the date "June 26, 2012".
(b) The first sentence of Section 3.7 of the Loan Agreement is amended and restated as follows:
If Borrower prepays the principal of the Revolving Loan (other than from time to time from working capital) or if the outstanding Obligations become due prior to the Maturity Date for any reason or no reason, Borrower shall pay to Lender at the time of such prepayment, liquidated damages in an amount equal to: (a) one percent (1.0%) of the Maximum Facility if the prepayment is made prior to June 26, 2012; provided that if Borrower and Lender restructure (with or without one or more other participating lenders), extend the term, or otherwise renew the credit facility represented by the Loan Agreement, Borrower shall not be required to pay any liquidated damages; and (b) zero percent (0.0%) of the Maximum Facility if the prepayment is made after June 26, 2012.
2. Representations and Warranties. To induce Lender to enter into this Amendment, Borrower hereby represents and warrants to Lender as follows: (a) each representation and warranty set forth in the Loan Agreement is true and correct on and as of the date hereof ; (b) no Default or Event of Default has occurred and is continuing as of this date under the Loan Agreement or the other Loan Documents, (c) Borrower has the power and is duly authorized to enter into, deliver and perform this Amendment and to perform its obligations under the Loan Agreement, as amended hereby; (d) each of this Amendment and the Loan Agreement, as amended hereby, constitutes the legal, valid and binding obligation of Borrower enforceable against it in accordance with its terms; and (e) that since June 26, 2007 there have been no liens, encumbrances, security interests or claims filed against or created in Borrower's owned property located at Champaign, Illinois.
3. Conditions Precedent to Effectiveness of this Amendment. The effectiveness of this Amendment is subject to the fulfillment of the following conditions precedent, each as determined by each Lender:
(a) Lender shall have received one or more counterparts of this Amendment duly executed and delivered by Borrower;
(b) Lender shall have received one or more counterparts of the Agreement and Consent of Guarantors attached to this Amendment duly executed and delivered by each such Guarantor; and
(c) Lender shall have received such other agreements, documents, certificates and instruments as Lender may reasonably require.
4. Continuing Effect of Loan Agreement. Except as expressly amended and modified hereby, the provisions of the Loan Agreement and the Liens granted hereunder, are and shall remain in full force and effect, and are hereby ratified and confirmed by Borrower, and this Amendment shall be limited precisely as drafted and shall not constitute a waiver of any Event of Default or a modification or amendment of any terms and conditions of the Loan Agreement other than as expressly set forth herein.
5. Release. In consideration of the agreements of Lender contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Borrower and each Guarantor, on behalf of itself/himself and its/his successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Lender, and its successors and assigns, and its present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Lender and all such other Persons being hereinafter referred to collectively as the "Releasees" and individually as a "Releasee"), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which Borrower and/or such Guarantor or any of its/his successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, including, without limitation, for or on account of, or in relation to, or in any way in connection with any of the Loan Agreement, the Guaranty or any of the other Loan Documents or transactions, course of performance or course of dealing thereunder or related thereto; provided, however, that nothing herein shall release Lender from its obligations to Borrower under the terms of this Amendment.
6. Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. Any signature delivered by a party via facsimile shall be deemed to be an original signature hereto.
7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered as of the day and year first specified above.
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XXXXXX TECHNOLOGIES COMPANY |
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By: /s/ Xxxxx X. Xxxxxxx |
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Name: Xxxxx X. Xxxxxxx |
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Title: President and Chief Operating Officer |
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KELTIC FINANCIAL PARTNERS II, LP |
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By: KELTIC FINANCIAL SERVICES LLC, |
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By: /s/ Xxxx Xxxxxxxx |
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Name: Xxxx Xxxxxxxx |
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Title: Executive Vice President and Chief Credit Officer |
AGREEMENT AND CONSENT OF GUARANTORS
Each of the undersigned guarantors, intending to be legally bound, does hereby (a) agree to the provisions of Section 5 of the foregoing Amendment, (b) consent to the execution, delivery and performance of the within and foregoing Amendment, and (c) confirm and reaffirm, without setoff, counterclaim, deduction or other claim of avoidance of any nature, the continuing effect of such guarantor's guaranty of the Obligations after giving effect to the foregoing Amendment.
XXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXXX HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
Dated: April 19, 2011
