SECOND AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.8
SECOND AMENDMENT
TO
This Second Amendment to Credit Agreement (this “Amendment”), dated as of September 4, 2002, is entered into by and between WR ACQUISITION, INC. (“Borrower”) and NATIONAL CITY BANK (“Bank”).
WITNESSETH:
WHEREAS, the parties have entered into a Credit Agreement dated July 28, 2002 [as amended by a certain First Amendment to Credit Agreement dated as of March 22, 2001 (the “First Amendment”)] (as amended, the “Credit Agreement”; all terms used in the Credit Agreement being used herein with the same meaning); and
WHEREAS, the parties desire to amend certain provisions of the Credit Agreement to increase the amount of the Revolving Commitment from one million five hundred thousand and 00/100ths dollars ($1,500,000) to two million and 00/100ths dollars ($2,000,000); and
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
SECTION I - Amendments to Credit Agreement
A. Subsection 2C.01 of the Credit Agreement is hereby amended in its entirety to read as follows:
2C.01 AMOUNT — The amount of the Revolving Commitment is two million dollars ($2,000,000), but that amount may be reduced from time to time pursuant to subsection 2C.03 and the Revolving Commitment may be terminated pursuant to section 5B.
B. Subsection 2C.02 of the Credit Agreement is hereby amended in its entirety to read as follows:
2C.02 TERM — The Revolving Commitment shall become effective as of the date of this Agreement and shall remain in effect on a revolving basis until August 1, 2004 (the “Expiration Date”) EXCEPT that a later Expiration Date may be established from time to time pursuant to subsection 2C.06 and EXCEPT that the Revolving Commitment shall end in any event upon any earlier reduction thereof to zero pursuant to subsection 2C.03 or any earlier termination pursuant to section 5B.
SECTION II - Conditions Precedent
It is a condition precedent to the effectiveness of this Amendment that, prior to or on the date hereof, the following items shall have been delivered to Bank (in form and substance acceptable to Bank):
(A) an Amended and Restated Note (“Amended Note”) in favor of Bank, in the form of Exhibit A to this Amendment, with all blanks appropriately completed, duly executed by Borrower;
(B) a Certificate, dated as of the date hereof, of the secretary of Borrower certifying (1) that Borrower’s Articles of Incorporation and Code of Regulations have not been amended since the execution of the Credit Agreement (or certifying that true, correct and complete copies of any amendments are attached), (2) that copies of resolutions of the Board of Directors of Borrower are attached with respect to the approval of this Amendment and of the matters contemplated hereby and authorizing the execution, delivery and performance by Borrower of this Amendment and each other document to be delivered pursuant hereto and (3) as to the incumbency and signatures of the officers of Borrower signing this Amendment and each other document to be delivered pursuant hereto;
(C) an Acknowledgment of Receipt of a copy of, and Consent and Agreement to the terms of, this Amendment and the Amended Note by Hillstreet Fund, L.P. with respect to a certain Unconditional and Continuing Subordination executed and delivered to Bank by such entity and dated July 28, 2000; and
(D) such other documents as Bank may request to implement this Amendment and the transactions contemplated hereby.
If Bank shall consummate the transaction contemplated hereby prior to the fulfillment of any of the conditions precedent set forth above, the consummation of such transaction shall constitute only an extension of time for the fulfillment of such conditions and not a waiver thereof. Upon receipt of the properly completed and executed Amended Note, Bank agrees to return to Borrower the previously executed note respecting the Revolving Commitment and the same shall be marked “Replaced” or “Substituted” or with words of like meaning.
SECTION III - Representations and Warranties
Borrower hereby represents and warrants to Bank that:
(A) none of the representations and warranties made in subsections 4B.01 through 4B.09 of the Credit Agreement has ceased to be true and complete in any material respect as of the date hereof, and
(B) as of the date hereof no “Default Under This Agreement” has occurred that is continuing.
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SECTION IV - Acknowledgments Concerning Outstanding Loans
Borrower acknowledges and agrees that, as of the date hereof, all of Borrower’s outstanding loan obligations to Bank are owed without any offset, defense, claim or counterclaim of any nature whatsoever. Borrower authorizes Bank to share all credit and financial information relating to Borrower with Bank’s parent company and with any subsidiary or affiliate company of Bank or of Bank’s parent company.
SECTION V - References
On and after the effective date of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, or words of like import referring to the Credit Agreement, and each reference in the Subject Notes or other Related Writings to the “Credit Agreement”, “thereof”, or words of like import referring to the Credit Agreement shall mean and refer to the Credit Agreement as amended hereby. The Credit Agreement, as amended by this Amendment, is and shall continue to be in full force and effect and is hereby ratified and confirmed in all respects. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Bank under the Credit Agreement or constitute a waiver of any provision of the Credit Agreement except as specifically set forth herein. From and after the date of this Amendment references in the Credit Agreement to Exhibit D shall be deemed to be references to the form of the Amended Note attached hereto as Exhibit A.
SECTION VI - Governing Law
This Amendment, and the respective rights and obligations of the parties hereto, shall be construed in accordance with and governed by Ohio law.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this Amendment to be executed by their authorized officers as of the date and year first above written.
| NATIONAL CITY BANK | WR ACQUISITION, INC. | |||||||
| By: |
/s/ Xxxxxx Xxxxx |
By: |
/s/ Xxxxxx X. Xxxxxx | |||||
| Printed Name: Xxxxxx Xxxxx |
Printed Name: Xxxxxx X. Xxxxxx | |||||||
| Title: Vice President |
Title: President, CEO | |||||||
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