FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED WAREHOUSE REVOLVING CREDIT FACILITY AGREEMENT
Exhibit
10.1
FIFTH AMENDMENT
TO
SECOND AMENDED AND RESTATED
WAREHOUSE REVOLVING CREDIT FACILITY AGREEMENT
THIS FIFTH AMENDMENT TO THE SECOND
AMENDED AND RESTATED WAREHOUSE REVOLVING CREDIT FACILITY AGREEMENT (this
“Amendment”) is
entered into as of September 12, 2008 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 (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, 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. Capitalized terms used herein and not otherwise defined
herein shall have the respective meanings ascribed to them in the Credit
Agreement.
SECTION
2. Credit Agreement
Amendments.
(a) The
definition of “Consolidated Net Income” in Section 1.01 of the Credit Agreement
is hereby amended and restated to read in its entirety as follows:
“Consolidated
Net Income”- the net income (but not loss or deficit) of the Borrower and its
subsidiaries, determined on a consolidated basis in accordance with GAAP; provided, however, that
Consolidated Net Income shall not include the following amounts
added to such net income (or deficit), (determined on a
consolidated basis without duplication as required periodically by
GAAP):
(i) the
write-up of any asset; or
(ii) the
write-up or write-down with respect to a Hedging Asset/Liability;
or
(iii) the
reclassification from accumulated other comprehensive income with respect to a
Hedging Asset/Liability; or
(iv) the
accounting gain (loss) on termination with respect to any Hedging
Asset/Liability.
(b) The
definition of “Consolidated Net Loss” in Section 1.01 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
“Consolidated
Net Loss”- the net loss or deficit of the Borrower and its subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided, however, that
Consolidated Net Loss shall not include the following amounts added to such net
loss or (deficit), (determined on a consolidated basis without duplication as
required periodically by GAAP):
(i) the
write-up of any asset; or
(ii) the
write-up or write-down with respect to a Hedging Asset/Liability;
or
(iii) the
reclassification from accumulated other comprehensive income with respect to a
Hedging Asset/Liability; or
(iv) the
accounting gain (loss) on termination with respect to any Hedging
Asset/Liability.
(c) The
definition of “Hedging Liability” in Section 1.01 of the Credit Agreement is
hereby amended and restated to read in its entirety as follows:
“Hedging
Asset / Liability” – relative to any Person, all assets or liabilities of such
Person under interest rate and currency swap, cap and collar agreements and all
other Writings designed to protect such Person against fluctuations in interest
or currency exchange rates.
SECTION
3. Effectiveness. The
amendments and consents set forth in Section 2 of this Amendment shall be
conditioned upon (a) receipt by the Agent of counterparts of this Amendment
executed by the Borrower and the Lenders and (b) the fulfillment to the
satisfaction of the Agent of each of the following conditions:
(i) 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 (1) that all corporate action by the Borrower necessary to authorize
the execution, delivery and performance of each of the Amendment Documents (as
hereunder defined) to which it is a party and the transactions contemplated
thereby has been taken and that such authorization has not been rescinded,
limited or modified, (2) the incumbency (with specimen signatures) of the
Authorized Officers of the Borrower, and (3) 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.
(ii) 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.
(iii) 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
4. 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"). The Borrower has taken all necessary action
(corporate or otherwise) to authorize the execution, delivery and performance of
the Amendment Documents. 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.
(d) 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.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) 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
5. Outstanding
Indebtedness. Borrower hereby acknowledges unconditionally
that, as of the close of business on September 11, 2008, the outstanding
principal balance of all Revolving Loans is $24,050,000. 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
6. 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
7. 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
8. 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 9. 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 10. 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 11. 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 Amendment to be executed and
delivered by their proper and duly authorized officers as of the date set forth
above.
BORROWER
XXXXXX
LEASING CORPORATION
By: /s/ Xxxxxx X.
Xxxx
Name:
Xxxxxx X. Xxxx
Title:
CEO
LENDERS:
NATIONAL
CITY BANK
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
FIRSTRUST
SAVINGS BANK
By: /s/ Xxxx
Xxxxxxxxxxxxx
Name: Xxxx Xxxxxxxxxxxxx
Title: Senior Vice President
SOVEREIGN
BANK
By:
______________________
Name:
Title:
XXXXXX
X.X., as successor by merger to Xxxxxx Trust and Savings Bank
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
AGENT:
NATIONAL CITY BANK, As
Agent
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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: /s/ Xxxxxx X.
Xxxx
Name: Xxxxxx X. Xxxx
Title: CEO
