EXHIBIT (b)(2)
CONFIDENTIAL
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment"), made
effective as of the _____ day of November, 2003 (the "First Amendment Effective
Date"), by and between CITIZENS BANK OF PENNSYLVANIA, a Pennsylvania state
chartered bank (the "Lender") and XXXXXX ASSOCIATED COMPANIES, INC., a
Pennsylvania corporation (the "Borrower").
BACKGROUND
A. The Borrower and the Lender are parties to that certain Credit
Agreement dated as of November 15, 2002 (the "Credit Agreement") pursuant to
which the Lender has made a revolving credit loan facility available to the
Borrower.
B. The Borrower and the Lender desire to amend the Credit
Agreement upon the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
covenant and agree as follows:
SECTION 1. USE OF TERMS
Capitalized terms used herein (including the Background above) shall
have the same meaning ascribed thereto in the Credit Agreement as amended hereby
unless otherwise specified herein.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT
The Credit Agreement is amended as follows:
(a) The definition of "Expiration Date" as set forth in Section
1.01 of the Credit Agreement is amended and restated in its entirety to read as
follows:
"Expiration Date" means November 13, 2004, provided, by
written request to the Lender given at least ninety (90) days prior to
the then current Expiration Date, the Borrower may request the
Expiration Date be extended to the date that is 364 days from the
Expiration Date then in effect, in which case, the Lender shall, in its
sole discretion, approve or reject the Borrower's extension request
within thirty (30) days after receipt of the Borrower's written request
for such extension. Upon the approval by the Lender of an extension
request, but effective on the day immediately following the Expiration
Date then in effect, the Expiration Date shall be the date 364 days
from the Expiration Date then in effect, subject to the execution and
delivery by the Borrower of any documentation required by the Lender in
connection with such extension. The failure of the Lender to respond to
the extension request within such thirty (30) day period shall be
deemed to be a rejection of the extension request.
(b) Section 2.07(a) of the Credit Agreement is amended and
restated in its entirety to read as follows:
(a) The Revolving Credit Commitment is terminable by the
Lender at its discretion upon the occurrence of an Event of Default
under this Agreement. The Revolving Credit Commitment will terminate on
the Expiration Date.
SECTION 3. REPRESENTATIONS AND COVENANTS
3.1 The Borrower hereby ratifies, confirms and reaffirms, without
condition, all the terms and conditions of the Credit Agreement and the other
Loan Documents to which it is a party and agrees that it continues to be bound
by the terms and conditions thereof as amended by this First Amendment. Except
as specifically amended by this First Amendment, the Credit Agreement shall
remain in full force and effect in accordance with its terms. This First
Amendment is not intended to be, nor shall it be construed to create, a novation
or accord and satisfaction, and the Credit Agreement as herein modified shall
continue in full force and effect.
3.2 The Borrower represents and warrants to the Lender that:
(i) this First Amendment has been duly executed and
delivered by the Borrower and constitutes the legal, valid and binding
obligation of the Borrower enforceable in accordance with their terms;
(ii) the representations and warranties set forth within
Article III of the Credit Agreement continue to be true and correct in
all material respects as of the First Amendment Effective Date except
to the extent that (A) such representations and warranties expressly
relate to an earlier date, or (B) such representations and warranties
have changed, and such changes have been consented to in writing by the
Lender and are reflected on revised schedules to the Credit Agreement
attached to this First Amendment;
(iii) no Event of Default or Potential Default shall have
occurred and be continuing on the First Amendment Effective Date; and
(iv) no Material Adverse Change has occurred since the
Closing Date, and no event or events shall have occurred and be
continuing on the First Amendment Effective Date which, individually or
in the aggregate, could reasonably be expected to result in a Material
Adverse Change.
SECTION 4. CONDITIONS PRECEDENT
The amendments set forth in this First Amendment shall become effective
as of the First Amendment Effective Date provided each of the following
conditions has been satisfied or effectively waived by the Lender:
(a) No Event of Default or Potential Default shall have occurred
and be continuing on the First Amendment Effective Date.
(b) The representations and warranties set forth within Article
III of the Credit Agreement shall continue to be true and correct in all
material respects as of the First Amendment Effective Date except to the extent
that (i) such representations and warranties expressly relate to an earlier
date, or (ii) such representations and warranties have changed, and such changes
have been consented to in writing by the Lender and are reflected on revised
schedules to the Credit Agreement attached to this First Amendment.
(c) No Material Adverse Change has occurred since the Closing
Date, and no event or events shall have occurred and be continuing on the First
Amendment Effective Date which, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Change.
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(d) Contemporaneously with or prior to the execution hereof, the
Borrower shall deliver, or cause to be delivered, to the Lender:
(1) A certificate of the secretary or assistant secretary
of the Borrower dated the First Amendment Effective Date and certifying
as to (i) true copies of its Articles of Incorporation and Bylaws, and
all amendments thereto, as in effect on the First Amendment Effective
Date, (ii) true copies of all action taken by its Board of Directors in
authorizing the execution, delivery and performance of this First
Amendment and the transactions contemplated hereby, and (iii) the names
and true signatures of its officers authorized to execute and deliver
this First Amendment;
(2) A certificate of the President of the Borrower to the
effect that: (i) the representations and warranties set forth within
Article V of the Credit Agreement continue to be true and correct in
all material respects as of the date of this First Amendment except to
the extent that (A) such representations and warranties expressly
relate to an earlier date, or (B) such representations and warranties
have changed, and such changes have been consented to by the Lender and
are reflected on revised schedules to the Credit Agreement attached to
this First Amendment, and (ii) no Event of Default or Potential Default
has occurred and is continuing as of the First Amendment Effective
Date; and
(3) Such other documents required by the Lender and its
counsel in connection with the transactions contemplated by this First
Amendment.
(e) All legal details and proceedings in connection with the
transactions contemplated by this First Amendment shall be satisfactory to
counsel for the Lender, and the Lender shall have received all such originals or
copies of such documents as the Lender may request.
SECTION 5. JOINDER
5.1 Each Guarantor joins herein to (i) consent to the execution of
this First Amendment by the Borrower, and (ii) ratify, confirm and reaffirm,
without condition, all of the terms and conditions of the Guaranty Agreement to
which it is a party. Each Guarantor specifically confirms that it continues to
be bound by the terms and conditions of the Guaranty Agreement to which it is a
party and its liability thereunder continues in full force and effect and
encompasses the obligations and indebtedness of the Borrower to the Lender
arising or incurred under the Credit Agreement, as the term thereof is extended
by the amendments to the Credit Agreement effected pursuant to this First
Amendment. EACH GUARANTOR REAFFIRMS AND HEREBY RESTATES THE PROVISIONS OF
PARAGRAPH 24 OF THE GUARANTY AGREEMENT WHEREBY THE GUARANTOR WAIVES THE RIGHT TO
A TRIAL BY JURY AND PARAGRAPH 25 OF THE GUARANTY AGREEMENT WHEREBY THE GUARANTOR
GRANTS THE LENDER THE POWER TO CONFESS JUDGMENT AGAINST THE GUARANTOR.
5.2 Each Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this First
Amendment, the Guarantors are not required by the terms of the Credit Agreement,
the Guaranty Agreement to which it is a party or any other Loan Document to
consent to the amendments to the Credit Agreement effected pursuant to this
First Amendment, and (ii) nothing in the Credit Agreement, the Guaranty
Agreement to which it is a party or any other Loan Document shall be deemed to
require the consent of the Guarantors to any future amendments to the Credit
Agreement.
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SECTION 6. MISCELLANEOUS
6.1 This First Amendment shall be construed in accordance with,
and governed by the internal laws of the Commonwealth of Pennsylvania without
giving effect to its conflict of laws principles.
6.2 All notices, communications, agreements, certificates,
documents or other instruments executed and delivered after the execution and
delivery of this First Amendment may refer to the Credit Agreement and the other
Loan Documents without making specific reference to this First Amendment, but
nevertheless all such references shall be deemed a reference to the Credit
Agreement and the other Loan Documents as respectively amended by this First
Amendment unless the context requires otherwise. All references to the Credit
Agreement and the other Loan Documents in any document, instrument or agreement
executed in connection with the Credit Agreement and the other Loan Documents
shall be deemed to refer to the Credit Agreement and the other Loan Documents as
respectively amended by this First Amendment unless the context requires
otherwise.
6.3 This First Amendment shall inure to the benefit of, and shall
be binding upon, the respective successors and assigns of the Borrower and the
Lender. The Borrower may not assign any of its rights or obligations hereunder
without the prior written consent of the Lender.
6.4 This First Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. Delivery by
telecopier of an executed counterpart of a signature page to this First
Amendment or any notice, communication, agreement, certificate, document or
other instrument in connection with the Credit Agreement and the other Loan
Documents shall be effective as delivery of an executed original counterpart
thereof.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused their duly authorized officers to execute and deliver this
First Amendment to Credit Agreement the day and year first above written.
BORROWER:
ATTEST: XXXXXX ASSOCIATED COMPANIES,
INC.
______________________________ By: _____________________________
Secretary Title: __________________________
(CORP. SEAL)
******SIGNATURES CONTINUE ON THE FOLLOWING PAGE******
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GUARANTORS:
ATTEST: ALLEGHENY MINERAL CORPORATION
______________________________ By: _____________________________
Secretary Title: __________________________
(CORP. SEAL)
ATTEST: XXXXXXXXX CEMENT & SUPPLY
CORPORATION
______________________________ By: _____________________________
Secretary Title: __________________________
(CORP. SEAL)
ATTEST: GLACIAL SAND & GRAVEL COMPANY
______________________________ By: _____________________________
Secretary Title: __________________________
(CORP. SEAL)
LENDER:
CITIZENS BANK OF PENNSYLVANIA
By: _____________________________
Title: __________________________
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