Exhibit 4.9
FIFTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “
Amendment ”), is dated as of November 1, 2008, by and
between WELLS FARGO FOOTHILL, LLC, a Delaware limited liability
company and assignee of Wells Fargo Foothill, Inc., a California
corporation (“ Lender ”), and VELOCITY
INVESTMENTS, L.L.C., a New Jersey limited liability company
(“ Borrower ”).
WITNESSETH :
WHEREAS,
Borrower and Lender’s predecessor-in-interest entered into
that certain Loan and Security Agreement, dated as of January 27,
2005, as amended by that certain First Amendment to Loan and
Security Agreement, dated as of February 27, 2006, that certain
Second Amendment to Loan and Security Agreement, dated as of
December 8, 2006, that certain Third Amendment to Loan and Security
Agreement, dated as of February 23, 2007, and that certain Fourth
Amendment to Loan and Security Agreement, dated as of February 29,
2008 (as amended, restated, supplemented or otherwise modified
through the date hereof, the “ Loan Agreement
”);
WHEREAS,
Borrower has requested that the Lender modify the Loan Sub-Account
Amortization Schedule (as defined in the Loan Agreement), as more
fully set forth herein; and
WHEREAS,
Lender is willing to modify the Loan Sub-Account Amortization
Schedule (as defined in the Loan Agreement), subject to the terms
hereof;
NOW
THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION
1. Defined Terms . Unless otherwise defined herein, all
capitalized terms used herein have the meanings assigned to such
terms in the Loan Agreement, as amended hereby.
SECTION
2. Amendments . Upon the Fifth Amendment Effective Date (as
hereinafter defined), the Loan Agreement shall be amended as
follows:
(a) The
following definitions in Section 1.1 of the Loan Agreement
are hereby deleted in their entirety and replaced with the
following:
“‘
Applicable Margin ’ means four percent (4.0%) per
annum.
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“‘
Base Rate ’ means the greatest of (a) the rate of
interest announced, from time to time, within Wells Fargo at its
principal office in San Francisco as its “prime rate,”
with the understanding that the “prime rate” is one of
Wells Fargo’s base rates (not necessarily the lowest of such
rates) and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto
and is evidenced by the recording thereof after its announcement in
such internal publications as Wells Fargo may designate, (b) the
Federal Funds Rate, as in effect from time to time, plus one-half
of one percent (0.50%), (c) the LIBOR Rate, and (d) four percent
(4%) per annum. Wells Fargo’s “prime rate” is a
reference rate and does not necessarily represent the lowest or
best rate charged to customers. Wells Fargo may make commercial
loans or other loans at rates of interest at, above or below Wells
Fargo’s “prime rate.” Each change in Wells
Fargo’s prime rate shall be effective from and including the
date such change is publicly announced as being
effective.
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“‘
Business Day ’ means any day that is not a Saturday,
Sunday, or other day on which banks are authorized or required to
close in the state of California or the state of New Jersey, except
that, if a determination of a Business Day shall relate to a LIBOR
Rate Loan, the term “Business Day” also shall exclude
any day on which banks are closed for dealings in Dollar deposits
in the London interbank market.
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“‘
Loan Sub-Account Amortization Schedule ’ means, for
each Loan Sub-Account, the maximum principal amount of the Advance
for the associated Portfolio Pool that may be outstanding on the
last day of each three-month period following the month in which
such Advance was made, determined as follows:
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Number of three-month periods
following the month in which the
Advance is made
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Allowable % of Initial
Purchase Advance to be
outstanding
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1
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95%
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2
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90%
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3
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85%
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4
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80%
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5
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75%
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6
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70%
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7
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60%
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8
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50%
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9
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40%
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10
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30%
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11
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20%
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12
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10%
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13
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5%
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14
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0%
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(b) The
following definitions are hereby added to Section 1.1 of the
Loan Agreement to be placed in a manner that maintains alphabetical
order:
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Base LIBOR Rate ’ means, for any Interest Period, the
rate per annum, determined by Lender in accordance with its
customary procedures, and utilizing such electronic or other
quotation sources as it considers appropriate (rounded upwards, if
necessary, to the next 1/100%), to be the rate at which Dollar
deposits (for delivery on the first day of such Interest Period) in
the amount of $1,000,000 are offered to major banks in the London
interbank market on or about 11:00 a.m. (New York time) two (2)
Business Days prior to the commencement of such Interest Period,
for a term of three (3) months, which determination shall be
conclusive in the absence of manifest error.
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“‘
Federal Funds Rate ’ means, for any period, a
fluctuating interest rate per annum equal to, for each day during
such period, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Lender from three Federal Funds brokers of
recognized standing selected by Lender.
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“‘
Interest Period ’ means, with respect to each LIBOR
Rate Loan, a period commencing on the first day of a calendar month
and ending on the last day of such calendar month.
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“‘
LIBOR Rate ’ shall mean, for the then current Interest
Period relating thereto, the rate per annum equal to the quotient
of (a) Base LIBOR Rate, divided by (b) 100% minus the
Reserve Percentage. The LIBOR Rate shall be adjusted on and as of
the effective day of any change in the Reserve
Percentage.
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“‘
LIBOR Rate Loan ’ shall mean an Advance bearing
interest at the LIBOR Rate plus the Applicable
Margin.
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“‘
Reserve Percentage ’ means, on any day, the maximum
percentage prescribed by the Board of Governors of the Federal
Reserve System (or any successor Governmental Authority) for
determining the reserve requirements (including any basic,
supplemental, marginal, or emergency reserves) that are in effect
on such date with respect to eurocurrency funding (currently
referred to as “eurocurrency liabilities”) of Lender,
but so long as Lender is not required or directed under applicable
regulations to maintain such reserves, the Reserve Percentage shall
be zero.”
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(c)
Section 2.5(a) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
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“(a)
Interest Rates . Except as provided in clause (b) below and
Section 2.11(a) hereof, all Obligations (except for Bank
Product Obligations) that have been charged to the Loan Account
pursuant to the terms hereof shall bear interest on the Daily
Balance thereof at a per annum rate equal to the LIBOR Rate plus
the Applicable Margin; provided , that following notice to
Borrower in accordance with Section 2.11(b) hereof, all
Obligations that have been charged to the Loan Account pursuant to
the terms hereof shall bear interest on the Daily Balance thereof
at a per annum rate equal to the Base Rate plus the Applicable
Margin. The foregoing notwithstanding, at no time shall any portion
of the Obligations (other than Bank Product Obligations) bear
interest on the Daily Balance thereof at a per annum rate less than
5.5%. To the extent that interest accrued hereunder at the rate set
forth herein would be less than the foregoing minimum daily rate,
the interest rate chargeable hereunder for such day automatically
shall be deemed increased to such minimum rate.”
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(d) The
following new Section 2.11 is hereby added to the Loan
Agreement:
“Section 2.11 LIBOR Rate Provisions
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(a)
Interest and Interest Payment Dates . Except as otherwise
provided in Section 2.11(b) hereof, interest on the Advances
shall be charged at a rate of interest equal to the LIBOR Rate plus
the Applicable Margin; provided , that at any time that an
Event of Default has occurred and is continuing, Lender shall have
the right to convert the interest rate on all outstandin
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