EXHIBIT 10.18
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (the "Fifth Amendment"), is made and
entered into this 13th day of October, 2009, by and among ▇▇▇▇▇▇ 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,
a Second Amendment to Loan Agreement dated September 11, 2008, a Third Amendment
to Loan Agreement dated May 4, 2009 and a Fourth Amendment to Loan Agreement
dated July 30, 2009 (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 Fifth 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 Section 2.5(a) of the Loan Agreement be and hereby is amended to
substitute "25 basis points (0.25%) per annum" for "20 basis points (0.20%) per
annum" appearing therein as and for the Unused Facility Fee and to add a
requirement that the Borrower agrees to pay to the Agent for the ratable benefit
of the Lenders a "Used Facility Fee" equal to 25 basis points (0.25%) per annum
(calculated on the basis of a 360 day year for the actual days elapsed) of the
used portion of the Aggregate Revolving Credit Commitments during any period(s)
that the Tangible Net Worth of the Borrower, on a consolidated basis, is less
than $90,000,000.00. For purposes of calculating the used portion of the
Aggregate Revolving Credit Commitments, Letters of Credit made under the Loan
shall be deemed to be unused portions of the Aggregate Revolving Credit
Commitments. The Used Facility Fee shall be paid in immediately available funds
and shall be calculated on the basis of the average daily used portion of the
Aggregate Revolving Credit Commitments and shall be payable quarterly in
arrears. When received, the Agent will promptly remit to each Lender its pro
rata share of the Used Facility Fee based upon such Lender's Revolving Credit
Percentage.
3. That Section 2.5(b) of the Loan Agreement be and hereby is amended to
substitute "one and one-half percent (1.50%)" for "one and one-quarter percent
(1.25%)" appearing therein as and for the amount of the annual letter of credit
fee that is now due and payable by the Borrower on the aggregate amount of new
letters of credit and annual renewals on the anniversary dates of existing
letters of credit pursuant to Section 2.4(b).
4. That Section 6.9 of the Loan Agreement be and hereby is amended to
provide that the Borrower shall not permit the Tangible Net Worth of the
Borrower, on a consolidated basis, to be less than $80,000,000.00 through the
second quarter of fiscal year 2010 or less than $85,000,000.00 for the third
quarter of fiscal year 2010 or less than $90,000,000.00 for the period ending
fiscal year end 2010 and thereafter, to be tested quarterly. The Lenders waive
non-compliance by the Borrower with the Tangible Net Worth covenant for the
period ending fiscal year end August 2, 2009.
5. That the Borrower shall pay to the Agent for the ratable benefit of the
Lenders a waiver and modification fee in the amount of $40,000.00 upon execution
of this Fifth Amendment.
6. That the Borrower reaffirms and restates the representations and
warranties set forth in Section 7 of the Loan Agreement, as amended by this
Fifth 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 Fifth
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.
7. 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 Fifth Amendment evidenced by writings of the same or subsequent date not in
conflict with the above modifications under this Fifth 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
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.
8. 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
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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.
9. That the parties hereto shall, at any time, and from time to time
following the execution of this Fifth 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 Fifth
Amendment.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the Borrower,
the Lenders and the Agent have caused this Fifth Amendment to be executed by
their proper corporate officers thereunto duly authorized as of the day and year
first above written.
ATTEST/WITNESS: ▇▇▇▇▇▇ INDUSTRIES, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: VP Human Resources Title: Chief Financial Officer
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MANUFACTURERS AND TRADERS
TRUST COMPANY, in its capacities as
Agent and Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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