THIRD AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), made and entered into as of October 30, 1998 is by and between
SUNRISE LEASING CORPORATION, a Minnesota corporation ("SLC"), SUNRISE
INTERNATIONAL LEASING CORPORATION, a Delaware corporation ("SILC") (SLC and SILC
are collectively referred to as the "Borrower"), and U.S. BANK NATIONAL
ASSOCIATION, f/k/a First Bank National Association, a national banking
association (the "Lender").
RECITALS
A. SLC, SILC, and the Lender are parties to an Amended and Restated
Credit Agreement dated as of April 1, 1996, as amended by a First Amendment to
Amended and Restated Credit Agreement dated as of October 1, 1996, as amended by
a First Amendment to Credit Agreement dated as of September 30, 1997 and as
amended by a Second Amendment to Amended and Restated Credit Agreement dated as
of November 26, 1997 (as so amended, the "Credit Agreement") which provides for
credit accommodations up to a maximum amount of Twenty Five Million and no/100
Dollars ( $25,000,000.00).
B. SLC, SILC, and the Lender are parties to a Joint Amended and
Restated Security Agreement dated as of April 1, 1996 (the "Security
Agreement"), pursuant to which SLC and SILC granted security interests in favor
of the Lender in certain of their assets to secure the indebtedness and
obligations arising under the Credit Agreement.
C. The Borrower and the Lender have agreed to amend the Credit
Agreement upon the terms and conditions herein set forth.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Certain Defined Terms. Unless otherwise defined herein, each
capitalized term used herein shall have the meaning ascribed thereto in the
Credit Agreement.
Section 2. Amendment to Credit Agreement. Subject to Section 3 hereof,
the Credit Agreement is amended as follows:
2.1 Amended Definitions. Section 1 of the Credit Agreement is
amended by deleting the definitions of "Advance," "LLC Component," "SLC
Component," "Tangible Net Worth" and "Termination Date" as they appear
therein and substituting thereof the following definitions in the
appropriate alphabetical order:
"Advance" any portion of the advances made by the
Bank under the Revolving Credit Commitment as to which the
Borrowers elected one of the available interest rate
options and, if applicable, an Interest Period. An Advance may
be maintained as a Eurodollar Rate Advance or a Reference Rate
Advance.
"Net Worth" means, at any date, the sum of the common
stock, preferred stock, additional paid-in capital, and
retained earnings of the Borrower (excluding treasury stock),
calculated on a consolidated basis.
"ILC Component" means the permitted and eligible
borrowing available of the ILC portion of the Borrower's
business.
"SLC Component" means the permitted and eligible
borrowing available to the SLC portion of the Borrower's
business.
"Termination Date" means the earlier of (a) October
31, 1999 or (b) the date upon which the obligation of the Bank
to make Advances is terminated pursuant to Section 8.2.
2.2 Amended Definition of Eligible Lease Section 1 of the
Credit Agreement is further amended by deleting clause (k) thereof and
the proviso clause at the end thereof and substituting in lieu thereof
the following:
(k) is assignable, contains monthly or quarterly payments, and
(i) with respect to Leases in the SLC Component, no payment of rent by
the lessee of such Lease under any Lease with the Borrower (including
such Lease) is more than sixty (60) days past due and (ii) with respect
to Leases in the ILC Component, no payment of rent by the lessee of
such Lease under any Lease with the Borrower (including such Lease) is
more than ninety (90) days past due;
provided, however, unless otherwise approved by the Bank in writing,
with respect to all Leases made by the Borrower to any particular
lessee, the Bank will not advance more than $2,500,000 in the aggregate
upon such Leases to such lessee.
2.3 New Definitions. Section 1 of the Credit Agreement is
further amended by inserting the following new definitions in Section 1
in the appropriate alphabetical order:
"Adjusted Eurodollar Rate": With respect to each
Interest Period applicable to a Eurodollar Rate Advance, the
rate (rounded upward, if necessary, to the next one hundredth
of one percent) determined by dividing the Eurodollar Rate for
such Interest Period by 1.00 minus the Eurodollar Reserve
Percentage.
"Applicable Margin": With respect to:
(a) Reference Rate Advances -- 0.00%.
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(b) Eurodollar Rate Advances -- 2.00%.
"Board": The Board of Governors of the Federal
Reserve System or any successor thereto.
"Eurodollar Business Day": A Business Day which is
also a day for trading by and between banks in United States
dollar deposits in the interbank Eurodollar market and a day
on which banks are open for business in New York City.
"Eurodollar Rate": With respect to each Interest
Period applicable to a Eurodollar Rate Advance, the average
offered rate for deposits in United States dollars (rounded
upward, if necessary, to the nearest 1/16 of 1%) for delivery
of such deposits on the first day of such Interest Period, for
the number of days in such Interest Period, which appears on
the Telerate page 3750 as of 11:00 a.m., London time (or such
other time as of which such rate appears) two Eurodollar
Business Days prior to the first day of such Interest Period,
or the rate for such deposits determined by the Bank at such
time based on such other published service of general
application as shall be selected by the Bank for such purpose
(including without limitation the Reuters Screen LIBO page);
provided, that in lieu of determining the rate in the
foregoing manner, the Bank may determine the rate based on
rates at which United States dollar deposits are offered to
the Bank in the interbank Eurodollar market at such time for
delivery in Immediately Available Funds on the first day of
such Interest Period in an amount approximately equal to the
Advance by the Bank to which such Interest Period is to apply
(rounded upward, if necessary, to the nearest 1/16 of 1%).
"Reuters Screen LIBO page" means the display designated as
page "LIBO" on the Reuters Monitor Money Rate Screen (or such
other page as may replace the LIBO page on such service for
the purpose of displaying London interbank offered rates of
major banks for United States dollar deposits), and "Telerate
page 3750" means the display designated as such on Telerate
system Incorporated (or such other page as may replace page
3750 or that service for the purpose of displaying London
interbank offered rates of major banks for U.S. Dollar
deposits).
"Eurodollar Rate Advance": A portion of the Advances
with respect to which the interest rate is determined by
reference to the Adjusted Eurodollar Rate.
"Eurodollar Reserve Percentage": As of any day, that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board for determining the maximum
reserve requirement (including any basic, supplemental or
emergency reserves) for a member bank of the Federal Reserve
System, with deposits comparable in amount to those held by
the Bank, in respect of "Eurocurrency Liabilities" as such
term is defined in Regulation D of the Board. The rate of
interest applicable to any outstanding Eurodollar Rate Advance
shall be adjusted automatically on and as of the effective
date of any change in the Eurodollar Reserve Percentage.
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"Interest Period": With respect to each Eurodollar
Rate Advance, the period commencing on the date of such
Eurodollar Rate Advance or on the last day of the immediately
preceding Interest Period, if any, applicable to an
outstanding Eurodollar Rate Advance and ending one, two, three
or six months thereafter, as the Borrower may elect in the
applicable notice of borrowing, continuation or conversion;
provided that:
(a) Any Interest Period that would otherwise end on a
day which is not a Eurodollar Business Day shall be extended
to the next succeeding Eurodollar Business Day unless such
Eurodollar Business Day falls in another calendar month, in
which case such Interest Period shall end on the next
preceding Eurodollar Business Day;
(b) Any Interest Period that begins on the last
Eurodollar Business Day of a calendar month (or a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Eurodollar Business Day of a calendar month; and
(c) Any Interest Period that would otherwise end
after the scheduled maturity of the Revolving Credit Note
shall end on the scheduled maturity of the Revolving Credit
Note.
"Reference Rate Advances": A portion of the Advances
with respect to which the interest rate is determined by
reference to the Reference Rate.
2.4 Interest Rates, Etc. Section 2.4 of the Credit Agreement
is amended in its entirety as follows:
Section 2.4 Interest Rates; Interest Payments;
Default Interest. Interest shall accrue and be payable on the
Advances as follows:
(a) Subject to paragraph (iii) below, each Eurodollar
Rate Advance shall bear interest on the unpaid principal
amount thereof during the Interest Period applicable thereto
at a rate per annum equal to the sum of (i) the Adjusted
Eurodollar Rate for such Interest Period, plus (ii) the
Applicable Margin.
(b) Subject to paragraph (iii) below, each Reference
Rate Advance shall bear interest on the unpaid principal
amount thereof at a varying rate per annum equal to the sum of
(i) the Reference Rate, plus (ii) the Applicable Margin.
(c) After an Event of Default, the Advances shall
bear interest until paid in full (i) during the balance of any
Interest Period applicable to any Eurodollar Rate Advance, at
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a rate per annum equal to the sum of the rate applicable to
such Eurodollar Rate Advance plus 3.75%, and (ii) otherwise,
at a rate per annum equal to the sum of (A) the Reference
Rate, plus (B) the Applicable Margin for Reference Rate
Advances, plus (C) 3.75%.
(d) Interest shall be payable (i) with respect to
each Eurodollar Rate Advance having an Interest Period of
three months or less on the last day of the Interest Period
applicable thereto; (ii) with respect to any Eurodollar Rate
Advance having an Interest Period greater than three months on
the last day of the Interest Period applicable thereto and on
each day that would have been the last day of the Interest
Period for such Eurodollar Rate Advance had successive
Interest Periods of three months duration been applicable to
such Eurodollar Rate Advance; (iii) with respect to Reference
Rate Advances, on the first day of each calendar month; (iv)
with respect to the Advances generally, upon any permitted
prepayment (on the amount prepaid); and (v) with respect to
the Advances generally, upon Maturity.
(e) The unpaid principal balance of the Advances from
time to time outstanding shall bear interest computed on the
basis of actual days elapsed in a year of 360 days.
(f) For purposes of determining any interest rate
hereunder or under any other Loan Document which is based on
the Reference Rate, such interest shall change as and when the
Reference Rate shall change.
(g) Whenever any payment to be made hereunder by or
to the Bank or the holder(s) of the Revolving Credit Note
shall otherwise be due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business
Day, and such extension of time shall be included in computing
the fees or interest payable on such next succeeding Business
Day.
(h) No provision of this Credit Agreement or the
Revolving Credit Note shall require the payment or permit the
collection of interest in excess of the rate permitted by
applicable law.
2.5 Borrowing Procedure. Section 2.5 of the Credit Agreement
is deleted in its entirety and the following is substituted in lieu
thereof:
Section 2.5 Manner of Borrowing. In order to obtain
an Advance, the Borrower shall deliver to the Bank a written
request for such Advance. Such request must be given so as to
be received by the Bank not later than 2:30 P.M. (Minneapolis
time) three Eurodollar Business Days prior to the requested
advance date if the Advance is requested as a Eurodollar Rate
Advance and not later than 2:30 P.M. (Minneapolis time) on the
requested advance date if the Advance is requested as a
Reference Rate Advance. Each request for an Advance shall be
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irrevocable and shall be deemed a representation by the
Borrower that on the requested advance date and after giving
effect to the requested Advance the applicable conditions
specified in Section 3 have been and will be satisfied. If the
Bank permits Borrower to request Advances verbally, the Bank
shall be entitled to rely on the authority of the person
claiming to be an authorized representative of the Borrower
without further inquiry. Each request for an Advance hereunder
shall specify (i) the requested advance date, (ii) the amount
of the Advance to be made on such date which shall be in a
minimum amount of $100,000 or, if more, an integral multiple
thereof, (iii) whether such Advance is to be funded as a
Reference Rate Advance or Eurodollar Rate Advance, and (iv) in
the case of a Eurodollar Rate Advance, the duration of the
initial Interest Period applicable thereto. The Borrower shall
not have more than three (3) Eurodollar Rate Advances
outstanding at any time. Unless the Bank determines that any
applicable condition specified in Section 3 has not been
satisfied, the Bank will, on the requested advance date,
deposit in the Borrower's account no. 160233811373 maintained
at the Bank, the amount of the requested Advance.
2.6 Non-Use Fee. Section 2.8 of the Credit Agreement is
deleted in its entirety and the following is substituted in lieu
thereof:
Section 2.8 Non-Use Fee. The Borrower shall pay the
Bank a non-use fee ("Non-Use Fee") calculated at the rate of
three-eighths of one percent (0.375%) per annum on the daily
average unused portion of the Revolving Credit Commitment. The
Non-Use Fee shall be due and payable in arrears on the last
day of each calendar quarter hereafter.
2.7 Additional Provisions. The following new sections are
added immediately following Section 2.9 of the Credit Agreement:
Section 2.10 Optional Prepayments. The Borrower may
prepay Reference Rate Advances, in whole or in part, at any
time, without premium or penalty. Any such prepayment must be
accompanied by accrued and unpaid interest on the amount
prepaid. Each partial prepayment shall be in a minimum amount
of $100,000 or, if more, an integral multiple thereof. Except
upon an acceleration following an Event of Default, the
Borrower may pay Eurodollar Rate Advances only on the last day
of the Interest Period applicable thereto, subject in all
cases to the provisions of Section 2.15. Amounts paid or
prepaid on the Advances may be reborrowed, subject to the
terms and conditions hereof.
Section 2.11 Conversions and Continuations. On the
terms and subject to the limitations hereof, the Borrower
shall have the option at any time and from time to time to
convert all or any portion of the Advances into Reference Rate
Advances or Eurodollar Rate Advances, or to continue a
Eurodollar Rate Advance as such; provided, however, that a
Eurodollar Rate Advance may be converted or continued only on
the last day of the Interest Period applicable thereto and no
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portion of the Advances may be converted or continued as a
Eurodollar Rate Advance if an Event of Default has occurred
and is continuing on the proposed date of continuation or
conversion. Portions of the Advances may be converted to, or
continued as, Eurodollar Rate Advances only in amounts of
$100,000 or an integral multiple thereof, and the Borrower
shall be entitled to have no more than three (3) Eurodollar
Rate Advances outstanding at any time. The Borrower shall give
the Bank written notice of any continuation or conversion of
any portion of the Advances and such notice must be given so
as to be received by the Bank not later than 11:00 A.M.
(Minneapolis time) two Eurodollar Business Days prior to
requested date of conversion or continuation in the case of
the continuation or, or conversion to, a Eurodollar Rate
Advance and not later than 11:00 A.M. (Minneapolis time) on
the date of the requested continuation of a Reference Rate
Advance. Each such notice shall specify (a) the amount to be
continued or converted, (b) the date for the continuation or
conversion (which must be (i) the last day of the preceding
Interest Period for any continuation of Eurodollar Rate
Advances, (ii) a Eurodollar Business Day in the case of
conversions to Eurodollar Rate Advances, and (iii) a Business
Day in the case of continuations as Reference Rate Advances),
and (c) in the case of conversions to or continuations as
Eurodollar Rate Advances, the Interest Period applicable
thereto. Any notice given by the Borrower under this Section
shall be irrevocable. If the Borrower shall fail to notify the
Bank of the continuation of any Eurodollar Rate Advance within
the time required by this Section, such Eurodollar Rate
Advance shall, on the last day of the Interest Period
applicable thereto, automatically be converted into a
Reference Rate Advance of the same principal amount.
Section 2.12 Interest Rate Not Ascertainable, Etc. If, on or
prior to the date for determining the Adjusted Eurodollar Rate in
respect of the Interest Period for any Eurodollar Rate Advance, the
Bank determines (which determination shall be conclusive and binding,
absent error) that:
(a) deposits in dollars (in the applicable amount)
are not being made available to the Bank in the relevant
market for such Interest Period, or
(b) the Adjusted Eurodollar Rate will not adequately
and fairly reflect the cost to the Bank of funding or
maintaining Eurodollar Rate Advances for such Interest Period,
the Bank shall forthwith give notice to the Borrower of such
determination, whereupon the obligation of the Bank to make or
continue, or to convert any portion of the Advances to,
Eurodollar Rate Advances, shall be suspended until the Bank
notifies the Borrower that the circumstances giving rise to
such suspension no longer exist. While any such suspension
continues, all further Advances by the Bank shall be made with
an interest rate option to which such suspension does not
apply. No such suspension shall affect the interest rate then
in effect during the applicable Interest Period for any
Eurodollar Rate Advances outstanding at the time such
suspension is imposed.
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Section 2.13 Increased Cost. If any Regulatory Change:
(a) shall subject the Bank to any tax, duty or other
charge with respect to its Eurodollar Rate Advances, the
Revolving Credit Note, its obligation to make Eurodollar Rate
Advances or shall change the basis of taxation of payment to
the Bank of the principal of or interest on Eurodollar Rate
Advances or any other amounts due under this Agreement in
respect of Eurodollar Rate Advances or its obligation to make
Eurodollar Rate Advances (except for changes in the rate of
tax on the overall net income of the Bank imposed by the
jurisdiction in which the Bank's principal office is located);
or
(b) shall impose, modify or deem applicable any
reserve, special deposit, capital requirement or similar
requirement (including, without limitation, any such
requirement imposed by the Board, but excluding with respect
to any Eurodollar Rate Advance any such requirement to the
extent included in calculating the applicable Adjusted
Eurodollar Rate) against assets of, deposits with or for the
account of, or credit extended by, the Bank or shall impose on
the Bank or on the United States market for certificates of
deposit or the interbank Eurodollar market any other condition
affecting its Eurodollar Rate Advances, the Revolving Credit
Note or its obligation to make Eurodollar Rate Advances;
and the result of any of the foregoing is to increase the cost to the
Bank of making or maintaining any Eurodollar Rate Advance, or to reduce
the amount of any sum received or receivable by the Bank under this
Agreement or under the Revolving Credit Note, then, within 30 days
after demand by the Bank, the Borrower shall pay to the Bank such
additional amount or amounts as will reasonably compensate the Bank for
such increased cost or reduction. The Bank will promptly notify the
Borrower of any event of which it has knowledge, occurring after the
date hereof, which will entitle the Bank to compensation pursuant to
this Section. A certificate of the Bank claiming compensation under
this Section, setting forth the additional amount or amounts to be paid
to it hereunder and stating in reasonable detail the basis for the
charge and the method of computation, shall be conclusive in the
absence of error. In determining such amount, the Bank may use any
reasonable averaging and attribution methods. Failure on the part of
the Bank to demand compensation for any increased costs or reduction in
amounts received or receivable with respect to any Interest Period
shall not constitute a waiver of the Bank's rights to demand
compensation for any increased costs or reduction in amounts received
or receivable in any subsequent Interest Period.
Section 2.14 Illegality. If any Regulatory Change shall make
it unlawful or impossible for the Bank to make, maintain or fund any
Eurodollar Rate Advance, the Bank shall notify the Borrower, whereupon
the obligation of the Bank to make or continue, or to convert any
portion of the Advances to, Eurodollar Rate Advances shall be suspended
until the Bank notifies the Borrower that the circumstances giving rise
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to such suspension no longer exist. If the Bank determines that it may
not lawfully continue to maintain any Eurodollar Rate Advances to the
end of the applicable Interest Periods, all of the Eurodollar Rate
Advances shall be automatically converted to Reference Rate Advances as
of the date of the Bank's notice, and upon such conversion the Borrower
shall indemnify the Bank in accordance with Section 2.15.
Section 2.15 Funding Losses. The Borrower shall compensate the
Bank, upon its written request, for all losses, expenses and
liabilities (including any interest paid by the Bank to lenders of
funds borrowed by it to make or carry Eurodollar Rate Advances to the
extent not recovered by the Bank in connection with the re-employment
of such funds and including loss of anticipated profits) which the Bank
may sustain: (i) if for any reason, other than a default by the Bank, a
funding of a Eurodollar Rate Advance does not occur on the date
specified therefor in the Borrower's request or notice as to such
portion of the Advances, or (ii) if, for whatever reason (including,
but not limited to, acceleration of the maturity of the Advances
following an Event of Default), any repayment of a Eurodollar Rate
Advance, or a conversion pursuant to Section 2.11, occurs on any day
other than the last day of the Interest Period applicable thereto. The
Bank's request for compensation shall set forth the basis for the
amount requested and shall be final, conclusive and binding, absent
error.
Section 2.16 Discretion of Bank as to Manner of Funding. The
Bank shall be entitled to fund and maintain its funding of Eurodollar
Rate Advances in any manner it may elect, it being understood, however,
that for the purposes of this Agreement all determinations hereunder
(but excluding determinations that the Bank may elect to make from the
Telerate System, Inc. screen) shall be made as if the Bank had actually
funded and maintained each Eurodollar Rate Advance during the Interest
Period for such portion of the Advances through the issuance of its
certificates of deposit, or the purchase of deposits, having a maturity
corresponding to the last day of the Interest Period and bearing an
interest rate equal to the Adjusted Eurodollar Rate plus the Applicable
Margin for such Interest Period.
Section 2.8 Minimum Net Worth. Section 6.14 of the Credit Agreement is
deleted in its entirety and the following is substituted in lieu thereof:
Section 6.14. Minimum Net Worth. Maintain at all times on a
consolidated basis a minimum Net Worth of not less than $25,000,000.00
plus 75% of the Borrower's cumulative positive quarterly net income
commencing with the fiscal quarter ended September 30, 1998, with no
deductions for quarterly losses, plus 100% of the net proceeds of any
other increase in the equity of the Borrower.
Section 2.9 Minimum Interest Coverage. Section 6.15 of the Credit
Agreement is deleted in its entirety and the following is substituted in lieu
thereof:
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Section 6.15. Minimum Interest Coverage. Maintain the ratio of
earnings before interest, taxes, amortization and depreciation to
interest expense of not less than 4.75 to 1.00 calculated as of the end
of each fiscal quarter of the Borrower and determined on a rolling four
quarter basis.
Section 2.10 Ratio of Recourse Debt to Net Worth. Section 6.16 of the
Credit Agreement is deleted in its entirety and the following is substituted in
lieu thereof:
Section 6.16 Ratio of Recourse Debt to Net Worth. Maintain at
all times the ratio of the Borrower's senior recourse debt to its Net
Worth of not more than 3.50 to 1.00.
Section 2.11 Amended Borrowing Base Certificate. Exhibit A to the
Credit Agreement is deleted and Exhibit A to this Amendment is substituted in
lieu thereof.
Section 2.12 Amended Compliance Certificate. Exhibit D to the Credit
Agreement is deleted and Exhibit B to this Amendment is substituted in lieu
thereof.
Section 3. Conditions to Effectiveness of this Amendment. This
Amendment shall be effective as of the date first above written, provided that
the following conditions are satisfied:
(a) The Lender shall have received this Amendment, duly
executed by the Borrower.
(b) The Lender shall have received the Amended and Restated
Revolving Credit Note attached hereto as Exhibit C, duly executed by
the Borrower (the "Amended Revolving Credit Note"), which note shall
constitute the Revolving Credit Note all for purposes under the Credit
Agreement.
(c) The Lender shall have received a copy of the resolutions
of the Board of Directors of each Borrower authorizing the execution,
delivery and performance by the Borrower of this Amendment, the Amended
Revolving Credit Note certified by an officer thereof, together with a
certificate of an officer of the Borrower (i) certifying as to the
incumbency and the true signatures of the officers authorized to
execute this Amendment and the Amended Revolving Credit Note on behalf
of such Borrower and (ii) certifying that the articles of incorporation
and bylaws of each Borrower have not been modified since copies of such
documents were previously provided to the Lender.
(d) The Lender shall have received (i) good standing
certificates for each Borrower dated not more than 10 days prior to the
date of this Amendment and issued by the state of incorporation of such
Borrower and (ii) certificates of authority to do business as a foreign
corporation dated not more than 10 days prior to the date of this
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Amendment of each Borrower in each jurisdiction in which the nature of
the Borrower's business in such jurisdiction would require such a
certificate of authority.
(e) such other conditions reasonably required by the Lender
and its counsel.
(f) After giving effect to this Amendment, the representations
and warranties of the Borrower in Sections 4 and 5 of the Credit
Agreement shall be true and correct as though made on the date hereof,
except for changes that are permitted by the terms of such agreement.
(g) No Event of Default or Unmatured Event of Default shall
have occurred and be continuing.
Section 4. Representations, Warranties, Authority, No Adverse Claim.
4.1 Reassertion of Representations and Warranties, No Default.
The Borrower hereby represents that on and as of the date hereof and
after giving effect to this Amendment, (a) all of the representations
and warranties contained in the Credit Agreement are true, correct and
complete in all respects as of the date hereof as though made on and as
of such date, except for changes permitted by the terms of the Credit
Agreement, and (b) there will exist no Unmatured Event of Default or
Event of Default under the Credit Agreement as amended by this
Amendment on such date which has not been waived by the Lender.
4.2 Authority, No Conflict, No Consent Required. The Borrower
represents and warrants that the Borrower has the power and legal right
and authority to enter into this Agreement and the Revolving Credit
Note (collectively, the "Amendment Documents") and has duly authorized
as appropriate the execution and delivery of the Amendment Documents
and other agreements and documents executed and delivered by the
Borrower in connection herewith or therewith by proper corporate
action, and none of the Amendment Documents nor the agreements
contained herein or therein contravene or constitute a default under
any agreement, instrument or indenture to which the Borrower is a party
or a signatory or a provision of the Borrower's Certificate of
Incorporation, Bylaws or any other agreement or requirement of law, or
result in the imposition of any Lien on any of its property under any
agreement binding on or applicable to the Borrower or any of its
property except, if any, in favor of the Lender. The Borrower
represents and warrants that no consent, approval or authorization of
or registration or declaration with any Person, including but not
limited to any governmental authority, is required in connection with
the execution and delivery by the Borrower of the Amendment Documents
or other agreements and documents executed and delivered by the
Borrower in connection therewith or the performance of obligations of
the Borrower therein described, except for those which the Borrower has
obtained or provided and as to which the Borrower has delivered
certified copies of documents evidencing each such action to the
Lender.
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4.3 No Adverse Claim. The Borrower warrants, acknowledges and
agrees that no events have been taken place and no circumstances exist
at the date hereof which would give the Borrower a basis to assert a
defense, offset or counterclaim to any claim of the Lender with respect
to the Borrower's obligations under the Credit Agreement as amended by
this Amendment.
Section 5. Affirmation of Credit Agreement, Further References,
Affirmation of Security Interest. The Lender and the Borrower each acknowledge
and affirm that the Credit Agreement, as hereby amended, is hereby ratified and
confirmed in all respects and all terms, conditions and provisions of the Credit
Agreement, except as amended by this Amendment, shall remain unmodified and in
full force and effect. All references in any document or instrument to the
Credit Agreement are hereby amended and shall refer to the Credit Agreement as
amended by this Amendment. The Borrower confirms to the Lender that the
Borrower's obligations under the Credit Agreement, as amended by this Amendment,
are and continue to be secured by the security interest granted by the Borrower
in favor of the Lender under the Security Agreement and made by the Borrower in
favor of the Lender, and all of the terms, conditions, provisions, agreements,
requirements, promises, obligations, duties, covenants and representations of
the Borrower under such documents and any and all other documents and agreements
entered into with respect to the obligations under the Credit Agreement are
incorporated herein by reference and are hereby ratified and affirmed in all
respects by the Borrower.
Section 6. Merger and Integration, Superseding Effect. This Amendment,
from and after the date hereof, embodies the entire agreement and understanding
between the parties hereto and supersedes and has merged into this Amendment all
prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment, shall control with respect
to the specific subjects hereof and thereof.
Section 7. Severability. Whenever possible, each provision of this
Amendment and the other Amendment Documents and any other statement, instrument
or transaction contemplated hereby or thereby or relating hereto or thereto
shall be interpreted in such manner as to be effective, valid and enforceable
under the applicable law of any jurisdiction, but, if any provision of this
Amendment, the other Amendment Documents or any other statement, instrument or
transaction contemplated hereby or thereby or relating hereto or thereto shall
be held to be prohibited, invalid or unenforceable under the applicable law,
such provision shall be ineffective in such jurisdiction only to the extent of
such prohibition, invalidity or unenforceability, without invalidating or
rendering unenforceable the remainder of such provision or the remaining
provisions of this Amendment, the other Amendment Documents or any other
statement, instrument or transaction contemplated hereby or thereby or relating
hereto or thereto in such jurisdiction, or affecting the effectiveness, validity
or enforceability of such provision in any other jurisdiction.
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Section 8. Successors. The Amendment Documents shall be binding upon
the Borrower and the Lender and their respective successors and assigns, and
shall inure to the benefit of the Borrower and the Lender and the successors and
assigns of the Lender.
Section 90. Legal Expenses. The Borrower agrees to reimburse the
Lender, upon execution of this Amendment, for all reasonable out-of-pocket
expenses (including attorneys' fees and legal expenses of Xxxxxx & Xxxxxxx, LLP,
counsel for the Lender) incurred in connection with the Credit Agreement,
including in connection with the negotiation, preparation and execution of the
Amendment Documents and all other documents negotiated, prepared and executed in
connection with the Amendment Documents, and in enforcing the obligations of the
Borrower under the Amendment Documents, and to pay and save the Lender harmless
from all liability for, any stamp or other taxes which may be payable with
respect to the execution or delivery of the Amendment Documents, which
obligations of the Borrower shall survive any termination of the Credit
Agreement.
Section 10. Headings. The headings of various sections of this
Amendment have been inserted for reference only and shall not be deemed to be a
part of this Amendment.
Section 11. Counterparts. The Amendment Documents may be executed in
several counterparts as deemed necessary or convenient, each of which, when so
executed, shall be deemed an original, provided that all such counterparts shall
be regarded as one and the same document, and either party to the Amendment
Documents may execute any such agreement by executing a counterpart of such
agreement.
Section 12. Governing Law. THE AMENDMENT DOCUMENTS SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT
OF LAW PRINCIPLES THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO
NATIONAL BANKS, THEIR HOLDING COMPANIES AND THEIR AFFILIATES.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date and year first above written.
BORROWER: SUNRISE LEASING CORPORATION
By
Its
SUNRISE INTERNATIONAL LEASING
CORPORATION
By
Its
LENDER: U.S. BANK NATIONAL ASSOCIATION
f/k/a First Bank National Association
By
Its
S-1
