FIFTH AMENDMENT TO CREDIT AGREEMENT AND AGREEMENT REGARDING DEPARTING LENDERS

Exhibit 10.4

EXECUTION COPY

FIFTH AMENDMENT TO

CREDIT AGREEMENT AND

AGREEMENT REGARDING DEPARTING LENDERS

This FIFTH AMENDMENT TO CREDIT AGREEMENT AND AGREEMENT REGARDING DEPARTING LENDERS (this “Fifth Amendment”) dated as of June 26, 2009 is among INTL COMMODITIES, INC. , a Delaware corporation (the “ Borrower ”), the Lenders from time to time parties to the Credit Agreement (as defined below) (the “Lenders”), FORTIS BANK SA/NV, NEW YORK BRANCH, as an Issuing Bank (an “Issuing Bank”), Lead Arranger, Documentation Agent (the “Documentation Agent”), Syndication Agent (the “Syndication Agent”) and Swing Line Lender and FORTIS CAPITAL CORP. , a Connecticut corporation, as Administrative Agent (the “Administrative Agent”).

W I T N E S S E T H :

WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to a Credit Agreement dated as of April 30, 2007 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used herein having the meanings given to them in the Credit Agreement unless otherwise defined herein); and

WHEREAS, the Borrower has requested certain amendments to the Credit Agreement, and, pursuant to Section 11.01 of the Credit Agreement, the Borrower, the Lenders (other than the Departing Lenders), the Swap Banks (other than any Swap Bank that is a Departing Lender) and the Administrative Agent have agreed to amend the Credit Agreement on the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1. Amendments .

Upon the occurrence of the Effective Date (as defined in Section 2 below), the Credit Agreement is hereby amended as follows:

(a) Section 1.01 is amended as follows:

 

(i)

The definition of “Applicable Margin” is amended and restated in its entirety as follows:

““ Applicable Margin ” means, as to each Loan, the percentage per annum as set forth below:

 

 

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(ii)

The definition of “Base Rate” is amended and restated in its entirety as follows:

““ Base Rate ” means, for any day, a variable rate of interest per annum equal to the higher of (a) the rate of interest from time to time established by Fortis Bank SA/NV, New York Branch as its “prime rate” or “base rate” at its principal office in New York City, or (b) the Federal Funds Rate plus one-half of one percent (.50%). Such prime rate or base rate is merely a reference rate and may not necessarily represent the lowest or best rate actually charged to any customer by Fortis Bank SA/NV, New York Branch, the Administrative Agent or any Lender.”

 

(iii)

The definition of “Borrowing Base Advance Cap” is amended by (i) deleting clause (b)(vii) therein and replacing it with: “(vii) 80% of the value of Eligible Special Inventory; plus ”.

 

(iv)

The definition of “Committed Line” is amended and restated in its entirety as follows:

““ Committed Line ” means the aggregate Committed Line Portions of all of the Lenders as set forth on Schedule 2.01 hereto, which shall be $62,000,000 on the effective date of the Fifth Amendment to Credit Agreement dated as of June 26, 2009 among the Borrower, the Administrative Agent and the Lenders and shall be subject to increase in accordance with Section 2.01(b) hereof and reduction in accordance with Section 2.05A hereof.”

 

(v)

The definition of “Eligible Accounts Receivable” is amended by deleting in clause (a), “or is a JV Eligible Account Receivable”.

 

(vi)

The definition of “Eligible Airway BL Inventory” is amended and restated in its entirety as follows:

““ Eligible Airway BL Inventory ” means inventory of Precious Metals of the Borrower that would constitute Eligible Precious Metals Inventory but for the fact that:

(a) clauses (j) and (k) of the definition of Eligible Inventory may not have been satisfied;

 

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(b) the Administrative Agent and the Lenders have not received the documentation referred to in clause (c) of the definition of Eligible Inventory; and

(c) such inventory is not at a location mentioned in the introductory paragraph of the definition of Eligible Inventory,

provided that (i) such inventory is (w) in the possession and under the control of Brink’s Global Services UK, G4S International UK LTD, DNATA (a Dubai corporation trading as “Transguard”) or any other precious metals carrier acceptable to the Administrative Agent, (x) on or in transit to or from an airplane, and (y) covered by an airway bill of lading, and, in each case upon delivery, it will constitute Eligible Inventory and (ii) the Administrative Agent shall have received a copy of the applicable airway bill of lading. The aggregate amount of Eligible Airway BL Inventory included in the Borrowing Base Advance Cap at any time shall not exceed $10,000,000, before application of the applicable advance rate. Any inventory shall be included in Eligible Airway BL Inventory for a maximum of five (5) days.”

 

(vii)

The definition of “Eligible Inventory” is amended by deleting the third parenthetical and replacing it with the following:

“(except (i) Eligible Mexican Inventory and Eligible Other Metals Inventory shall be valued at the lower of cost or market, and (ii) Eligible Special Inventory which has not been pre-sold in the ordinary course of business shall be valued at the lower of cost or market)”.

 

(viii)

The definition of “Eligible Other Metals Inventory” is amended and restated in its entirety as follows:

““ Eligible Other Metals Inventory ” means Eligible Inventory that does not meet the criteria to be included as Eligible Precious Metals Inventory or Eligible Base Metals Inventory, which (x) is not Exchange Deliverable, (y) has price risk that has not been hedged, and (z) is not subject to a valid forward sales contract, provided , that the aggregate amount of Eligible Other Metals Inventory included in the Borrowing Base Advance Cap at any time shall not exceed $5,000,000 before application of the applicable advance rate, provided , further , that the aggregate amount of Eligible Other Metals Inventory when added to the aggregate amount of Eligible Special Inventory, in each case included in the Borrowing Base Advance Cap at any time, shall not exceed $20,000,000 before application of the applicable advance rates.”

 

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(ix)

The definition of “Eligible Special Inventory” is inserted in its proper alphabetical place as follows:

““ Eligible Special Inventory ” means: (i) Eligible Brink’s Warrantable Inventory; (ii) Eligible Airway BL Inventory; and (iii) other inventory of Product that would constitute Eligible Metals Inventory but for the fact that (a) clause (k) of the definition of Eligible Inventory may not have been satisfied, (b) the Administrative Agent and the Lenders have not received the documentation referred to in clause (c) of the definition of Eligible Inventory, and (c) such inventory is not at a location mentioned in the introductory paragraph of the definition of Eligible Inventory; provided that

(A) (x) such inventory under clause (iii) is in the possession and under the control of a Reputable Bonded Warehouse located in China, St. Petersburg, Chile, Peru or Dubai or another Reputable Bonded Warehouse acceptable to the Lenders, (y) the aggregate amount of such inventory under clause (iii) located at any one location (other than in Dubai) included in the Borrowing Base Advance Cap at any time shall not exceed $10,000,000 before application of the applicable advance rate, and (z) the Administrative Agent shall have received such documentation relating thereto as the Required Lenders shall reasonably request, and

(B) the aggregate amount of Eligible Special Inventory, when added to the aggregate amount of Eligible Other Metals Inventory, in each case included in the Borrowing Base Advance Cap at any time, shall not exceed $20,000,000 before application of the applicable advance rates.”

 

(x)

The definition of “Equity” is amended by deleting the parenthetical in clause (c).

 

(xi)

The definition of “Expiration Date” is amended by deleting “June 26, 2009” and replacing it with “June 25, 2010”.

 

(xii)

The definition of “Interest Period” is amended and restated in its entirety as follows:

““ Interest Period ” means, as to any Eurodollar Rate Loan, the period commencing on the Borrowing Date of such Loan or on the Conversion/Continuation Date on which the Loan is converted into or continued as a Eurodollar Rate Loan, and ending on the date selected by the Borrower in its Notice of Borrowing or Notice of Conversion/Continuation as the ending date thereof, not to exceed a period of one or two weeks or one, two, three, four, five or six months thereafter; provided , however , that:

(a) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

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(b) any Interest Period pertaining to a Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on 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 Business Day of the calendar month at the end of such Interest Period; and

(c) no Interest Period shall extend beyond the scheduled Expiration Date.”

 

(xiii)

The definition of “Issuance Cap” is inserted in its proper alphabetical place as follows:

““ Issuance Cap ” means with respect to the obligation of an Issuing Bank to issue any Letter of Credit under this Agreement, the maximum permitted aggregate outstanding amount of L/C Obligations attributable to Letters of Credit issued by such Issuing Bank, as shall be agreed upon by each Issuing Bank, the Borrower, the Administrative Agent and Fortis Bank SA/NV, New York Branch in writing upon any new Issuing Bank becoming an Issuing Bank. As of June 26, 2009, Fortis Bank SA/NV, New York Branch is the sole Issuing Bank with an Issuance Cap in an amount equal to the Committed Line. The Issuance Cap for Fortis Bank SA/NV, New York Branch shall be reduced, in its sole discretion, by all or any part of the amount of the Issuance Cap of each new Issuing Bank. The Issuance Caps may be modified in accordance with the agreements referred to in and the terms of this definition without regard to Section 11.01 of this Agreement.”

 

(xiv)

The definition of “Issuing Bank” is amended and restated as follows:

““ Issuing Bank ” means Fortis Bank SA/NV, New York Branch, and subject to the agreement of the Borrower, the Administrative Agent, Fortis Bank SA/NV, New York Branch and such Lender, any other Lender.”

 

(xv)

The definition of “JV Eligible Accounts Receivable” is deleted.

 

(xvi)

The definition of “Lender” is amended by deleting “Fortis Capital Corp.”

 

(xvii)

The definition of “Reputable Bonded Warehouse” is inserted in its proper alphabetical place as follows:

““ Reputable Bonded Warehouse ” means any warehouse listed below or approved in writing from time to time by the Required Lenders:

CWT Commodities. Inc

 

1.

NO 257 NAN DA ROAD, SHANGHAI, CHINA

 

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2.

NO. 495 TIE SHAN ROAD, SHANGHAI, CHINA

 

3.

NO. 3501 GONGHEXIN ROAD, SHANGHAI, CHINA

 

4.

No. 68 HEDAN RD. WAI GAO QIAO FREE TRADE ZONE, PUDONG SHANGHAI

 

5.

NO. 2118 XINCUN ROAD, SHANGHAI, CHINA

 

6.

NO. 1328 YIXIAN ROAD, SHANGHAI, CHINA

 

7.

No. 18 Guizhou Rd. Tianjin

 

8.

B 506/507 Land Bridge International, Lianyun District, Lianyunguang City China

 

9.

299 Gangqian Rd, Huangpu Port, Guangzhou

 

10.

333 Jiujiang Rd., Shanghai

C. Steinweg

1. 89 Shenya Road Shanghai Wai Gao Qiao Bonded

Logistics Zone 200137 Shanghai

2. 1603 Hui Rong Plaza Bl No.65 Xianggang Xi Road

266071 Qingdao

3. Av. Paz Soldan 170 San Isidro 27 Lima

APL Logistics Chile SA

1. Av. Laguna Sur 9660

A, SANTIAGO, XIII Chile

ENAP PROGINERIAS SA

2. Av 3 Poniente 800

Camino Melipilla, SANTIAGO, XIII Chile

IMPORTADORA Y COMERCIALIZADORA AMANCILTDA

1. Rivas 690

SANTIAGO, XIII Chile

OAO Petrolesport

l, Gladkiy Island, 198099,

St. Petersburg, Russia

ZAP PKT

1. 17, Road to Turukhtanny Islands, 198035,

St Petersburg, Russia

provided that (a) if requested by the Administrative Agent or the Required Lenders, the Borrowers shall deliver evidence that such warehouse has complied with all applicable licensing and other requirements to lawfully operate a public warehouse facility, and (b) the Administrative Agent or the

 

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Required Lenders shall have the right in their sole discretion to exclude any such warehouse listed above or approved from time to time from “Reputable Bonded Warehouse” upon thirty (30) days’ prior written notice to the Borrower.”

 

(xviii)

The definition of “Swing Line Lender” is amended and restated in its entirety as follows:

““ Swing Line Lender ” means Fortis Bank SA/NV, New York Branch, in its capacity as lender of Swing Line Loans hereunder.”

 

(xix)

The definition of “Working Capital” is amended by deleting “(other than JV Eligible Accounts Receivable in an amount of up to $10,000,000)”.

(b) Section 2.01(b) is amended by deleting “$150,000,000” and replacing it with “$100,000,000”.

(c) Section 2.08(b) is amended by deleting “0.25%” and replacing it with “0.75%”.

(d) Section 2.08(c) is amended and restated in its entirety as follows:

“(c) In connection with any extension under Section 2.14 , the Borrower shall pay to the Administrative Agent for the account of each Extending Lender and each New Lender a fee in cash in an amount equal to such Extending Lender’s or such New Lender’s, as applicable, Committed Line Portion (after giving effect to such extension) multiplied by (i) 0.30% if such Committed Line Portion is less than $20,000,000 and (ii) 0.40% if such Committed Line Portion is greater than or equal to $20,000,000.”

(e) Article III of the Credit Agreement is amended by making the deletions and insertions marked in Annex IV hereto.

(f) New Sections 4.02(c) and 4.02(d) are inserted as follows:

“(c) If prior to the first day of any Interest Period:

(i)     (A) the Administrative Agent shall have determined (which determination shall be conclusive and binding upon the Borrower) that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining the relevant Eurodollar Rate for such Interest Period, or

(B) the Administrative Agent shall have received notice from the Required Lenders that the relevant Eurodollar Rate determined or to be determined for such Interest Period will not adequately and fairly reflect the cost to such Lenders (as conclusively certified by such Lenders) of making or maintaining their affected Loans during such Interest Period, then the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the Lenders, as soon as practicable thereafter.

 

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(ii) If such notice is given with respect to the Eurodollar Rate applicable to Loans, (x) any such Eurodollar Rate Loan requested to be made on the first day of such Interest Period shall be made as a Base Rate Loan, (y) any Base Rate Loans that were to have been converted on the first day of such Interest Period to Eurodollar Rate Loans shall continue as Base Rate Loans and (z) any outstanding Eurodollar Rate Loans shall be converted to Base Rate Loans on the last day of the applicable Interest Period.

(iii) Until such notice has been withdrawn by the Administrative Agent, no further Eurodollar Rate Loans shall be made or continued as such, nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar Rate Loans.

(iv) The Administrative Agent shall withdraw (a) any such notice pursuant to subsection (i)(A) of this Section 4.02(c) if the Administrative Agent determines that the relevant circumstances have ceased to exist and (b) any such notice pursuant to subsection (i)(B) of this Section 4.02(c) upon receipt of notice from the Required Lenders that the relevant circumstances described in such subsection (i)(B) have ceased to exist.

(d) Notwithstanding any other provision herein, if the adoption of or any change in any law or in the interpretation or application thereof shall make it unlawful for any Lender to make or maintain Eurodollar Rate Loans or to issue Letters of Credit as contemplated by this Agreement, (a) the agreement of such Lender hereunder to make Eurodollar Rate Loans or issue Letters of Credit, continue Eurodollar Rate Loans as such and, convert Base Rate Loans to Eurodollar Rate Loans shall forthwith be suspended for so long as such unlawfulness exists and (b) such Lender’s Loans then outstanding as Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current Interest Periods with respect to such Loans or within such earlier period as required by applicable law.”

(g) Section 7.01 is amended by deleting “and” at the end of clause (c), deleting “.” at the end of clause (d) and replacing it with “; and”, and inserting the following new clause (e):

“(e) as soon as available, but not later than July 31, 2009, a Collateral Position audit report dated as of a recent date in form and substance satisfactory to the Required Lenders.”

(h) Section 7.15 is amended as follows:

(i) Clauses (a) and (b) are each amended by deleting “$15,000,000.00” and replacing it with “$20,000,000”.

(ii) Clause (c) is amended by deleting “8.0 : 1.0” and replacing it with “5.0 : 1.0”.

 

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(i) Section 8.11 is amended by deleting “$25,000,000” and replacing it with “$20,000,000”.

(j) Section 8.15 is amended in its entirety to read as follows:

“8.15 Loans and Investments . Borrower shall not purchase or acquire, or make any commitment therefor, any equity interest, or any obligations or other securities of, or any interest in, any Person, or make or commit to make any acquisitions, or make or commit to make any advance, loan, extension of credit (other than pursuant to sales or purchases on open account in the ordinary course of Borrower’s business) or capital contribution to or any other investment in, any Person, except that the Borrower may (a) make the Mexican Loans and permit the Mexican Receivables to exist, so long as the aggregate principal amount of the Net Mexican Obligations shall not at any time exceed $3,000,000 and (b) lease Precious Metals under leasing arrangements (i) with any lessee whose long term senior unsecured rating is A or higher by S&P or A2 or higher by Moody’s (on terms and conditions (including, without limitation, the maintenance of insurance by such lessee) and subject to documentation in form and substance, acceptable to the Administrative Agent), so long as (x) the Borrower’s aggregate cost of Precious Metals leased to any one such lessee shall not exceed $20,000,000 and (y) the Borrower shall have delivered to the Administrative Agent a written summary of the principle lease terms (including, without limitation, the name of the lessee, lease tenor, location of the lessee’s premises and monetary terms) and a fully executed copy of the lease agreement, in each case certified as true and correct by a Responsible Officer, (ii) with any other lessee approved by the Administrative Agent (on terms and conditions (including, without limitation, the maintenance of insurance by the lessee) and subject to documentation in form and substance, acceptable to the Administrative Agent) so long as (x) the Borrower’s cost of Precious Metals leased to any such lessee shall not exceed $2,500,000 in the aggregate and the Borrower’s cost of Precious Metals leased to all such lessees shall not exceed $5,000,000 in the aggregate, (y) the termination date of any such lease is not later than one year from the date such lease is entered into, and (z) the Administrative Agent shall have given the Lenders prior written notice of any such lease, or (iii) as otherwise approved by the Required Lenders.”

(k) Section 8.17 is deleted.

(l) Section 10.08 is amended by deleting “the terms “Issuing Bank” and “Lender” include” and replacing it with “the term “Lender” includes”.

(m) Section 10.13 is amended and restated in its entirety as follows:

“10.13 Documentation Agent . None of the Documentation Agent, Syndication Agent or Lead Arranger, in its capacity as such, shall have any duties or responsibilities under this Agreement or any other Loan Document. None of the Documentation Agent, Syndication Agent or Lead Arranger shall have or be deemed to have any fiduciary relationship with any Lender. Each Lender acknowledges that it has not relied, and will not rely, on any of the Documentation Agent, Syndication Agent or Lead Arranger in deciding to enter into this Agreement or any other Loan Document or in taking or not taking any action hereunder or thereunder.”

 

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(n) Section 11.04 is amended by inserting after the first two references to Administrative Agent the following: “and the Lead Arranger”.

(o) Schedule A is amended by changing the Credit Limit therein for Eaton Corporation from $10,000,000 to $6,000,000.

(p) Schedule 2.01 is amended and restated in its entirety as set forth on Annex II hereto.

(q) Schedule 8.01 is amended by deleting “$25,000,000” and replacing it with “$35,000,000”.

(r) Annex I to Exhibit C is amended by deleting the line item for JV Eligible Accounts Receivable.

(s) Exhibit E is amended and restated in its entirety as set forth on Annex III hereto.

SECTION 2. Effectiveness of Amendment, etc .

This Fifth Amendment shall become effective on the date (the “Effective Date”) on which each of the following shall have been satisfied:

 

(a)

each of the Borrower, the Administrative Agent, the Swap Banks and the Lenders (including, without limitation, the Departing Lenders (as defined in Section 4(a) below) shall have duly executed this Fifth Amendment; and the Parent shall have duly executed and delivered to the Administrative Agent a consent substantially in the form of Annex I hereto;

 

(b)

the Borrower and the Security Agent shall have duly executed a First Amendment to the Security Agreement dated June 27, 2008 between them relating to certain collateral in Canada for the purpose of amending certain schedules thereto, in form and substance satisfactory to the Administrative Agent;

 

(c)

the Borrower shall have executed and delivered a Note for each Lender (other than a Departing Lender) that requests a Note;

 

(d)

the Borrower shall have duly executed and delivered a letter of credit fee letter to each Issuing Bank in form and substance satisfactory to such Issuing Bank;

 

(e)

the Borrower shall have duly executed and delivered an upfront fee letter in form and substance satisfactory to the Administrative Agent and the fees required to be paid thereunder shall have been received by the Lenders in immediately available funds;

 

(f)

the requirements of Section 4(a) below shall have been satisfied (immediately prior to giving effect to this Fifth Amendment); and

 

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(g)

the Administrative Agent shall have received such corporate authorization documents of the Borrower and the Parent and such opinions of counsel, as the Required Lenders shall request.

SECTION 3. Effect of Amendment; Ratification; Representations; etc.

(a) On and after the Effective Date, the provisions of Section 1 and 3(e) of this Fifth Amendment shall be a part of the Credit Agreement, all references to the Credit Agreement in the Credit Agreement and the other Loan Documents shall be deemed to refer to the Credit Agreement as amended by this Fifth Amendment, and the term “this Agreement”, and the words “hereof, “herein”, “hereunder” and words of similar import, as used in the Credit Agreement, shall mean the Credit Agreement as amended hereby.

(b) Except as expressly set forth herein, this Fifth Amendment shall not constitute an amendment, waiver or consent with respect to any provision of the Credit Agreement, as amended hereby, and the Credit Agreement, as amended hereby, is hereby ratified, approved and confirmed in all respects.

(c) In order to induce the Administrative Agent and the Lenders to enter into this Fifth Amendment, the Borrower represents and warrants to the Administrative Agent and the Lenders that before and after giving effect to the execution and delivery of this Fifth Amendment:

 

(i)

the representations and warranties of the Borrower set forth in the Credit Agreement and in the other Loan Documents shall be true and correct in all material respects as if made on and as of the date hereof, except for those representations and warranties that by their terms were made as of a specified date which shall be true and correct on and as of such date, and

 

(ii)

no Default or Event of Default has occurred and is continuing.

(d) From and after the Effective Date, the Borrower, the Administrative Agent, the Swap Banks and the Lenders (including Fortis Bank SA/NV, New York Branch (“FBNY”)) hereby agree that FBNY shall be a party to the Intercreditor Agreement and shall be bound by the terms and provisions thereof (and entitled to the benefits thereof) as a Lender and a Swap Bank.

(e) From and after the Effective Date, all references to the “Documentation Agent” (or BNP Paribas, as Documentation Agent) in any Loan Document shall be deemed to be a reference to Fortis Bank SA/NV, New York Branch in such capacity, all references in any Loan Document to the “Syndication Agent” shall be deemed to be a reference to Fortis Bank SA/NV, New York Branch in such capacity and all references in any Loan Document to the “Lead Arranger” shall be deemed to be a reference to Fortis Bank SA/NV, New York Branch in such capacity.

(f) The Borrower hereby acknowledges and agrees that the Security Agreements and the Liens granted under the Security Agreements shall remain in full force and effect, shall continue without interruption as security for all of the Obligations and shall not be limited or impaired by this Fifth Amendment or the transactions contemplated hereby.

 

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SECTION 4. Departing Lenders; Reallocation of Outstandings; Allocation of Accrued Interest and Fees.

(a) On the Effective Date (immediately prior to giving effect to this Fifth Amendment (and for the avoidance of doubt, each of the parties hereto acknowledges that none of the Departing Lenders shall be deemed to have consented to any of the amendments to the Credit Agreement set forth in Section 1 hereof and none of such amendments shall be effective until the requirements of this Section 4(a) have been satisfied)), the Borrower shall repay in full all outstanding Loans and other Obligations (including, without limitation, any amounts payable under Section 4.04 of the Credit Agreement in connection with such repayment and any Obligations in respect of Swap Contracts) owing to BNP Paribas, The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch and HSH Nordbank AG, New York Branch (the “Departing Lenders”) and upon such repayment, each of the Departing Lenders shall cease to be a Lender, each Departing Lender’s Committed Line Portion shall terminate and each Departing Lender’s rights and obligations under the Loan Documents (and the rights and obligations under the Intercreditor Agreement of each Departing Lender which is a Swap Bank) shall terminate (including, without limitation, any obligations under Section 2.14 or Article III of the Credit Agreement) except for any such rights under Sections 4.01(d), 4.02, 11.04 and 11.05 of the Credit Agreement and other rights that expressly survive such termination.

(b) On the Effective Date (immediately after giving effect to this Fifth Amendment), the Borrower shall repay Loans to Fortis Bank SA/NV, New York Branch in an amount such that after giving effect thereto, outstanding Loans shall be held by each Lender (other than the Departing Lenders) in accordance with its Pro Rata Share (after giving effect to this Fifth Amendment).

(c) All payments made under clauses (a) and (b) above shall be retained solely by the Departing Lender or Lender receiving such payment and shall not be subject to the pro rata sharing provisions set forth in the Loan Documents.

(d) Interest and fees payable to the Lenders (including, without limitation, the Departing Lenders) (i) that accrued prior to the Effective Date shall be allocated in accordance with the Pro Rata Shares before giving effect to this Fifth Amendment and (ii) that accrue from and after the Effective Date shall be allocated in accordance with the Pro Rata Shares after giving effect to this Fifth Amendment.

SECTION 5. Counterparts.

This Fifth Amendment may be executed by one or more of the parties to this Fifth Amendment on any number of separate counterparts (including by facsimile transmission of signature pages hereto), and all of said counterparts taken together shall be deemed to constitute one and the same agreement. A set of the copies of this Fifth Amendment signed by all the parties shall be lodged with the Borrower and the Administrative Agent.

 

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SECTION 6. Severability.

Any provision of this Fifth Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

SECTION 7. GOVERNING LAW.

THIS FIFTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 8. WAIVERS OF JURY TRIAL.

THE BORROWER, THE ADMINISTRATIVE AGENT, THE SWAP BANKS AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS FIFTH AMENDMENT AND FOR ANY COUNTERCLAIM THEREIN.

IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed as of the day and year first above written.

 

 

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