Exhibit 10.12
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AMENDMENT TO LOAN AGREEMENT
THIS AMENDMENT TO LOAN AGREEMENT (the "Amendment"), is made and
entered into this _____ day of May, 2003, by and among XXXXXX INDUSTRIES, INC.
(the "Borrower"), MANUFACTURERS AND TRADERS TRUST COMPANY, successor in interest
to Allfirst Bank, and XXXXXX BANK (each a "Lender" and collectively, the
"Lenders") and MANUFACTURERS AND TRADERS TRUST COMPANY, successor in interest to
Allfirst Bank, 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 June 19,
2002, the parties entered into a Loan Agreement, upon which monies have
been advanced (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 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 1.1 of the Loan Agreement be and hereby is amended by
amending the definition of "Revolving Credit Maturity Date" to read in
its entirety as follows:
"Revolving Credit Maturity Date": January 31, 2005, or such
earlier date on which the Revolving Credit Notes shall become due
and payable, whether by acceleration or otherwise.
3. That the Borrower reaffirms and restates the representations and
warranties set forth in Section 7 of the Loan Agreement, as amended by
this 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 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. Borrower shall update all Schedules
as of the date of this Amendment.
4. 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 Amendment evidenced by writings of the
same or subsequent date not in conflict with the above modifications
under this 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.
5. 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 Allfirst Bank in the Loan Agreement,
the Loan Documents and the other documents and instruments delivered
pursuant to or in connection therewith shall be deemed to have been
made and to refer to Manufacturers and Traders Trust Company, a New
York banking corporation, successor in interest to Allfirst Bank.
6. That the parties hereto shall, at any time, and from time to time
following the execution of this 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 Amendment.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
Borrower, the Lenders and the Agent have caused this Amendment to be executed by
their proper corporate officers thereunto duly authorized as of the day and year
first above written.
ATTEST: XXXXXX INDUSTRIES, INC.,
By:
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Xxxxxxxx X. Xxxxxxxx, Asst Secretary Xxxxx Xxxx, CEO
By:
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Xxxxxxxx X. Xxxxxxxx, Asst Secretary Xxxxxx X. Xxxxxxxx, Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY,
successor in interest to Allfirst Bank,
in its capacities as Agent and Lender
By:
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Title:
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XXXXXX BANK
By:
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Title:
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