Contract
EXHIBIT 10.2
SIXTH AMENDMENT
TO
SECOND AMENDED AND RESTATED
WAREHOUSE REVOLVING CREDIT FACILITY AGREEMENT
THIS SIXTH AMENDMENT TO THE SECOND
AMENDED AND RESTATED WAREHOUSE REVOLVING CREDIT FACILITY AGREEMENT (this
“Amendment”) is
entered into as of March 31, 2009 and amends in certain respects the Second
Amended and Restated Warehouse Revolving Credit Facility Agreement dated as of
August 31, 2001 (as amended, the “Credit Agreement”),
among XXXXXX LEASING
CORPORATION, a Delaware corporation (the “Borrower”), each of
the financial institutions that is or pursuant to the terms thereof may become a
party thereto as lender (individually a “Lender” and
collectively the “Lenders”) and NATIONAL CITY BANK, a national
banking association, as Agent for the Lenders (the “Agent”).
W I T N E S S E T
H:
WHEREAS, the parties wish to
amend certain provisions of the Credit Agreement; and
WHEREAS, the parties hereto
desire to effect such amendments on the terms and subject to the conditions
herein set forth.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Agent, the Borrower and the Lenders hereby agree as
follows:
SECTION
1. Defined
Terms.
(a) General
Terms. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed to them in the Credit
Agreement.
(b) Additional
Definitions. The following definitions are hereby added to
Section 1.01 of the Credit Agreement to read in their entirety as
follows.
“Base Rate Floor”
means three and three quarters of one percent (3.75%).
“Daily LIBOR Rate”
means, for any day, the rate per annum determined by the Agent by dividing (x)
the Published Rate by (y) a number equal to 1.00 minus the percentage prescribed
by the Federal Reserve for determining the maximum reserve requirements with
respect to any eurocurrency funding by banks on such day.
“Termination Date”
means the earlier of (a) June 29, 2009 or (b) such other date as the Loans shall
be due in accordance with this Agreement.
“Published Rate” means
the rate of interest published each Business Day in The Wall Street Journal
“Money Rates” listing under the caption “London Interbank Offered Rates” for a
one month period (or, if no such rate is published therein for any reason, then
the Published Rate shall be the eurodollar rate for a one month period as
published in another publication determined by the Agent).
(c) Amended
Definitions. The following definitions in Section 1.01 of the
Credit Agreement are hereby amended and restated in their entirety as
follows:
“Applicable Margin”
means two and one quarter of one percent (2.25%).
“Base Rate” means, for
any day, a fluctuating per annum rate of interest equal to the highest of (i)
the Prime Rate, (ii) the Federal Funds Rate plus ½ of 1%, (iii) the Daily LIBOR
Rate plus 1%, and (iv) the Base Rate Floor.
“Borrowing Base” - as
to any Eligible Contract as at the date of any determination thereof (but
subject to paragraphs (a) through (i) of this definition below): (i) if such
Eligible Contract is not an Exception Contract, the lesser of (x) 80.0% of the
then Net Present Value of such Eligible Contract and (y) 85.0% of the Net
Investment pertaining to the Eligible Equipment subject to such Eligible
Contract; and (ii) if such Eligible Contract is an Exception Contract, the
lesser of (x) 75.0% of the then Net Present Value of such Eligible Contract and
(y) 80.0% of the Net Investment pertaining to the Eligible Equipment subject to
such Eligible Contract; less, in any case, all security deposits and advance
lease payments and other sums received by the Borrower relating to any Eligible
Contract (solely as they relate to assets included in the Borrowing
Base). Notwithstanding the foregoing:
(a) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts with any one User (including Affiliates of such User) shall
not exceed $200,000;
(b) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts which have initial lease terms in excess of 60 months from
the commencement date of such Contracts shall not exceed 10% of the aggregate
Commitment for all Lenders;
(c) except
for the Exception Contracts and Contracts evidenced by Financing Agreements, no
Contract may be included in the Borrowing Base for a period of in excess of 360
days;
(d) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts which constitute Prepayable Contracts shall not exceed
$125,000;
(e) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts which constitute Recourse Contracts shall not exceed
$125,000;
(f) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts which constitute Sub-lease Contracts shall not exceed
$250,000;
(g) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts which constitute Business Capital Loan Agreements shall not
exceed $3,000,000;
(h) the
aggregate amount includible in the Borrowing Base of Net Present Value of
Eligible Contracts which constitute Exception Contracts which are 31 days or
more past due shall not exceed 10% of the total Borrowing Base; and
(i) no
Exception Contract may be included in the Borrowing Base if it was not reported
on the Borrowing Base Report dated March 13, 2009.
“Commitment Termination
Date” means the earlier of (a) March 30, 2009, or such later date as
shall be applicable pursuant to Section 2.04 or (b) such other date as the
Commitment shall terminate in accordance with this Agreement.
“Post-Default Rate”
means a rate of interest per annum equal to 2% in excess of the Base Rate plus
the Applicable Margin as in effect from time to time.
SECTION
2. Amendment of Schedule 1.01
to Credit Agreement. Schedule 1.01 to the Credit Agreement is
hereby amended and restated, in its entirety, with Schedule 1.01 to this
Amendment and the Commitments of each Lender are hereby reduced to reflect the
amounts set forth opposite such Lender’s name of such restated Schedule
1.01.
SECTION
3. Amendment to Section 2.01 of
the Credit Agreement. Paragraph (e) of Section 2.01 of the
Credit Agreement is hereby amended and restated, in its entirety, as
follows:
(e) Each
Revolving Loan shall be paid in full on the Termination
Date. Revolving Loans may, in addition, be prepaid from time to time
in accordance with Section 2.07.
SECTION
4. Amendment to Section 2.02 of
the Credit Agreement. Section 2.02 of the Credit Agreement is
hereby amended and restated, in its entirety, as follows:
2.02 Notices. The
Borrower shall give the Agent written notice in substantially the form of Exhibit B hereto (a
“Notice”) of
each prepayment of a Loan. Each Notice shall be irrevocable and shall
be effective only if received by the Agent no later than 12:00 P.M.,
Philadelphia time, on the date which is at least one Business Day prior to the
date of the prepayment of the Loan designated in the Notice. Each
such Notice of a prepayment shall specify (a) the amount of Loan to be prepaid,
and (b) the date of such prepayment (which shall be a Business
Day).
SECTION
5. Amendment to Section 2.06 of
the Credit Agreement. Section 2.06 of the Credit Agreement is
hereby amended and restated, in its entirety, as follows:
2.06 Conversion of
Loans. No Loan may be converted into a LIBOR
Loan.
SECTION
6. Amendment to Section 2.09 of
the Credit Agreement. Section 2.09 of the Credit Agreement is
hereby amended and restated, in its entirety, as follows:
2.09 Payment of
Loans. On the Termination Date, the Borrower shall be
obligated to pay to the Agent, for itself and for the accounts of the Lenders,
as applicable, (a) the outstanding principal amount of the Loans together with
accrued interest thereon (subject to any prepayment required to be made prior
thereto under this Agreement), and (b) all other amounts otherwise owing under
this Agreement, the Notes and any other Loan Documents.
SECTION
7. Amendment to Section 5.04 of
the Credit Agreement. Section 5.04 of the Credit Agreement is
hereby amended by adding the following text immediately prior to the period at
the end of such Section:
“; and
(b) together with each Borrowing Base Report described in (a) above, a schedule
of each of the Exception Contracts included in the reporting of the Borrowing
Base on such Borrowing Base Report”
SECTION
8. Amendment to Section 11.09
of the Credit Agreement. The addresses set forth in Section
11.09 of the Credit Agreement are hereby amended and restated as
follows:
If to the
Borrower:
Xxxxxx
Leasing Corporation
000
Xxxxxxxxxx Xxxx
Xxxxx
Xxxxxx, XX 00000
Attention: Mr.
Xxxxxx Xxxx, Chief Executive Officer
With a
Copy to: Xx. Xxxxxx Xxxxxx, General Counsel
Tel: (000)
000-0000
If to the
Agent:
National
City Bank
Xxx Xxxxx
Xxxxx Xxxxxx, 00xx
Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attention: Xx.
Xxxxxxx Xxxxxx
Tel: (000)
000-0000
Facsimile: (000)
000-0000
with a
copy (other than in the case of Notices and reports and other documents
delivered in compliance with Article 5 hereof) to:
Xxxx
Xxxxx LLP
2500 One
Liberty Place
0000
Xxxxxx Xxxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxx X. Xxxxxxx
Tel: (000)
000-0000
Facsimile: (000)
000-0000
SECTION
9. Effectiveness. The
amendments and consents set forth in this Amendment shall be conditioned upon
the receipt by the Agent of counterparts of this Amendment executed by the
Borrower and the Lenders, and acknowledged by the guarantor, and the fulfillment
to the satisfaction of the Agent of each of the following
conditions:
(a) The
Borrower shall have delivered to the Agent in form and substance satisfactory to
the Agent a Certificate of the Secretary or Assistant Secretary of the Borrower
certifying (i) that all corporate action by the Borrower necessary to authorize
the execution, delivery and performance of each of the Amendment Documents (as
hereunder defined) and the transactions contemplated thereby (including, as
described below, with respect to the JPMorgan Facility) has been taken and that
such authorization has not been rescinded, limited or modified, (ii) the
incumbency (with specimen signatures) of the Authorized Officers of the
Borrower, and (iii) that all representations and warranties set forth in this
Amendment are true and correct at and as of the date of the effectiveness of
this Amendment;
(b) the
Borrower shall have entered into either (i) an extension, through a date not
earlier than June 29, 2009, or (ii) an amortizing restructuring, in form
satisfactory to the Lenders, of its warehouse facility existing under the
Amended & Restated Series 2002-A Supplement to the Master Facility
Agreement, dated as of March 15, 2006, as amended, by and among the Borrower,
Xxxxxx Leasing Receivables Corp. II, Xxxxxx Leasing Receivables II LLC, JPMorgan
Chase Bank, N.A. and Xxxxx Fargo Bank, N.A. (the “JPMorgan
Facility”);
(c) Each
Lender shall have been paid the extension fee required of the Borrower as agreed
between such Lender and the Borrower;
(d) The
Lenders shall have received a schedule of each of the Exception Contracts
included in the Borrowing Base Report dated March 13, 2009;
(e) all
reasonable costs and reasonable expenses of the Agent and the Lenders in
connection with the preparation and review of this Amendment, including, but not
limited to, the reasonable fees, expenses and disbursements of Xxxx Xxxxx LLP,
special counsel to the Agent, and any other Lender’s counsel;
(f) The Agent
shall have received such other instruments, agreements and documents as it shall
reasonably require in connection with this Amendment and the matters referred to
above; and
(g) All
matters related to the financial condition, assets, liabilities and
creditworthiness of the Borrower shall be satisfactory to the Agent and the
Lenders, in their sole discretion.
SECTION
10. Representations and
Warranties. In order to induce the Lenders to execute this
Amendment, the Borrower hereby represents and warrants to the Agent and Lenders
as follows, which representations and warranties shall survive the execution and
delivery of this Amendment and the other Amendment Documents (hereinafter
defined):
(a) The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of Delaware and has the power to own its assets and to transact
the business in which it is currently engaged and in which it proposes to be
engaged;
(b) The
Borrower is duly qualified to do business as a foreign corporation and is in
good standing in each jurisdiction in which its failure to qualify could have a
Material Adverse Effect;
(c) The
Borrower has the power to execute, deliver and perform this Amendment, any other
agreements or documents being or to be executed and delivered in connection
herewith (collectively the “Amendment
Documents”), and has taken all necessary action (corporate or otherwise)
to authorize the execution, delivery and performance of the Amendment
Documents;
(d) No
consent or approval of any Person (including, without limitation, any
stockholder of the Borrower), other than any such consent or approval a copy of
which has been delivered to the Agent in form and substance satisfactory to the
Agent, no filing with, action by, consent or approval of any landlord or
mortgagee, no waiver of any Lien or right of distraint or other similar right
and no filing with, action by, consent, license, approval, authorization or
declaration of any governmental authority, bureau or agency, is or will be
required in connection with the execution, delivery or performance by the
Borrower or the validity, enforcement or priority, of the Amendment
Documents;
(e) The
execution, delivery and performance by the Borrower of each of the Amendment
Documents to which it is a party will not (i) violate or conflict with any
provision of law or any rule or regulation, (ii) violate or conflict with any
provision of the Amended Articles or by-laws of the Borrower, (iii)
violate or conflict with or result in a breach of any order, writ, injunction,
ordinance, resolution, decree, or other similar document or instrument of any
court or governmental authority, bureau or agency, domestic or foreign, or
create (with or without the giving of notice or lapse of time, or both) a
default under or breach of any agreement, bond, note or indenture to which the
Borrower is a party, or by which it is bound or any of its properties or assets
are affected, or (iv) result in the imposition of any Lien of any nature
whatsoever upon any of its properties or assets owned by or used in connection
with the business of the Borrower, except for the Liens created and granted
pursuant to the Security Documents;
(f) This
Amendment and each of the other Amendment Documents has been or will be duly
executed and delivered by the Borrower, and when executed and delivered each
will constitute the valid and legally binding obligation of the Borrower,
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally or by the
availability of equitable remedies;
(g) Neither
the Borrower nor any of its Subsidiaries is in default under any agreement,
ordinance, resolution, decree, bond, note, indenture, order or judgment to which
it is a party or by which it is bound, or by which any of the properties or
assets owned by it or used in the conduct of its business is affected, and the
Borrower and its Subsidiaries have complied and are in compliance with all
applicable laws, ordinances and regulations, including, without limitation,
Environmental Laws, in either case which default, or non-compliance with which
laws, could have a Material Adverse Effect on the Borrower;
(h) The
Borrower is in full compliance with the terms and conditions of the Loan
Documents, each of the representations and warranties set forth in the Credit
Agreement and the other Loan Documents are true and correct in all material
respects as if made on and as of the date of effectiveness of this Amendment,
and, as of the date of effectiveness of this Amendment and after giving effect
thereto and to the consummation of the transactions contemplated hereby, no
Default or Event of Default has occurred and is continuing;
(i) Neither
the Financial Statements nor any certificate, opinion, or any other statement
made or furnished in writing to the Agent or the Lenders by or on behalf of the
Borrower in connection with this Amendment or the transactions contemplated
hereby, contains any untrue statement of a material fact, or omits to state a
material fact necessary in order to make the statements contained therein or
herein not misleading; and
(j) Any
failure of any of the representations and warranties made by Borrower in this
Amendment to be true and correct in all respects when made shall constitute an
Event of Default under the Credit Agreement.
SECTION
11. Outstanding
Indebtedness. Borrower hereby acknowledges unconditionally
that, as of the close of business on March 30, 2009, the outstanding principal
balance of all Revolving Loans is $4,940,000. Borrower acknowledges
and agrees that the foregoing balance of the Revolving Loans, together with
accrued and unpaid interest thereon, is owing to Lender without claim,
counterclaim, recoupment, defense or setoff of any kind.
SECTION
12. Reference
to and Effect on Loan Documents.
(a) On and
after the date hereof, each reference in the Credit Agreement to “this
Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each
reference in the other Loan Documents to the Credit Agreement, shall mean and be
a reference to the Credit Agreement as amended hereby.
(b) Except as
otherwise expressly set forth herein, the execution, delivery and effectiveness
of this Amendment shall not operate as a waiver of any right, power or remedy of
any Lender, or the Agent under the Credit Agreement or any of the other Loan
Documents, shall not constitute a waiver of any provision of the Credit
Agreement or any of the other Loan Documents, nor shall it affect or diminish
any Lender’s or the Agent’s rights to hereafter require strict performance of
any provision of the Credit Agreement or any of the other Loan
Documents.
SECTION
13. Reaffirmation of Security
Interest. The Borrower hereby reaffirms as of the date hereof
each and every security interest and lien granted in favor of the Agent and the
Lenders under the Loan Documents, and agrees and acknowledges that such security
interests and liens shall continue from and after the date hereof and shall
remain in full force and effect from and after the date hereof, in each case
after giving effect to the Credit Agreement as amended by this Amendment, and
the obligations secured thereby and thereunder shall include Borrower’s
obligations under the Credit Agreement as amended by this
Amendment. Each such reaffirmed security interest and lien remains
and shall continue to remain in full force and effect and is hereby in all
respects ratified and confirmed.
SECTION
14. Further
Assurances. Each of the parties hereto hereby agrees to do
such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably require to carry into effect the purposes of this
Amendment.
SECTION
15. Governing
Law. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA
WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION
16. Counterparts. This
Amendment may be executed in any number of counterparts and by the different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument. Execution and delivery of this Amendment by facsimile
transmission shall constitute execution and delivery of this Amendment for all
purposes, with the same force and effect as execution and delivery of an
originally manually signed copy hereof.
SECTION
17. Headings; Binding
Effect. The headings of the several sections of this Amendment
are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Amendment. The provisions of
this Amendment shall inure to the benefit of and be binding upon the parties
hereto and their respective permitted successors and assigns.
[BALANCE
OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment to the
Second Amended And Restated Warehouse Revolving Credit Facility Agreement to be
executed and delivered by their proper and duly authorized officers as of the
date set forth above.
XXXXXX LEASING CORPORATION,
asBorrower
By:
_____________________________ Name:
Title:
NATIONAL CITY BANK, as Agent
and as a Lender
By:_____________________________
Name:
Title:
FIRSTRUST SAVINGS BANK, as a
Lender
By:_____________________________
Name:
Title:
SOVEREIGN BANK, as a
Lender
By:_____________________________
Name:
Title:
XXXXXX X.X., as successor by
merger to Xxxxxx Trust and Savings Bank
By:_____________________________
Name:
Title:
ACKNOWLEDGED
AND ACCEPTED BY:
XXXXXX BUSINESS SERVICES
CORP., as guarantor under the Guaranty dated November 3, 2003 made for
the benefit of National City Bank, as Agent, and the Lenders.
By:
_____________________________ Name:
Title:
SCHEDULE
1.01
COMMITMENT
PERCENTAGES AND LOAN COMMITMENTS
|
Lender
Name
|
Loan
Commitment
|
Commitment
Percentage
|
|
National
City Bank
|
$1,852,500
|
37.50%
|
|
Sovereign
Bank
|
$1,235,000
|
25.00%
|
|
Firstrust
Savings Bank
Xxxxxx X.X
|
$ 926,250
$ 926,250
|
18.75%
18.75%
|
|
Total
|
$4,940,000
|
100%
|
