THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of July 31, 2002, is by
and among XXXXXXX INC., a Virginia corporation (the "Borrower"),
the financial institutions party to the Credit Agreement (as
defined below), in their capacities as lenders (each a "Lender"
and, collectively, the "Lenders"), and FLEET CAPITAL CORPORATION
(as assignee of Fleet National Bank, successor to Fleet Bank,
N.A.), as agent (the "Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, Borrower, the Lenders and Agent have entered into
an Amended and Restated Credit Agreement dated as of June 29,
1998 (as heretofore amended by certain amendments dated October
30, 2001 and May 16, 2002 and hereafter amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement") in which the Lenders have provided Loans and other
credit facilities to the Borrower; and
WHEREAS, Borrower has requested that the Agent and Lenders
amend the Credit Agreement in certain respects as set forth
herein and the Agent and Lenders are agreeable to the same,
subject to the terms and conditions 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 hereby agree as follows:
1. Defined Terms. Terms capitalized herein and not
otherwise defined herein are used with the meanings ascribed to
such terms in the Credit Agreement.
2. Amendment to Credit Agreement. Section 10 of the Credit
Agreement is, as of the Effective Date (as defined below), hereby
amended by amending and restating the following definition in its
entirety:
" "Expiry Date" shall mean October 31, 2003."
3. Representations and Warranties. In order to induce the
Agent and the Lenders to enter into this Amendment, the Borrower
hereby represents and warrants to the Agent and the Lenders, in
each case after giving effect to this Amendment, as follows:
(a) The Borrower has the right, power and capacity and
has been duly authorized and empowered by all requisite corporate
and shareholder action to enter into, execute, deliver and
perform this Amendment and all agreements, documents and
instruments executed and delivered pursuant to this Amendment.
(b) This Amendment constitutes the Borrower's legal,
valid and binding obligation, enforceable against the Borrower in
accordance with its terms, except as enforcement thereof may be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors'
rights generally and general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or
at law or otherwise).
(c) The representations and warranties contained in
the Credit Agreement and the other Loan Documents are true and
correct in all material respects at and as of the Effective Date
as though made on and as of the Effective Date (except to the
extent specifically made with regard to a particular date, in
which case such representation and warranty is true and correct
in all material respects as of such earlier date).
(d) The Borrower's execution, delivery and performance
of this Amendment and the transactions contemplated hereby do not
and will not violate its Articles of Incorporation or By-laws,
any material law, rule, regulation, order, writ, judgment, decree
or award applicable to it or any material contractual provision
to which it is a party or to which it or any of its property is
subject.
(e) No authorization or approval or other action by,
and no notice to or filing or registration with, any governmental
authority or regulatory body (other than those which have been
obtained and are in force and effect) is required in connection
with the execution, delivery and performance by the Borrower or
any other Credit Party of this Amendment and all agreements,
documents and instruments executed and delivered pursuant to this
Amendment, as applicable.
(f) No Default or Event of Default exists under the
Credit Agreement as of the date hereof or would exist as of the
Effective Date after giving effect to the amendments and
transactions contemplated by this Amendment.
4. Conditions to Effectiveness of Amendment. This Amendment
shall become effective on the date (the "Effective Date") each of
the following conditions precedent is satisfied:
(a) Execution and Delivery of Amendment. The Borrower, the
Agent, and the Lenders shall have executed and delivered this
Amendment.
(b) Representations and Warranties. The representations
and warranties of the Borrower and the other Credit Parties
contained in this Amendment, the Credit Agreement and the other
Loan Documents, as applicable, shall be true and correct in all
material respects as of the Effective Date, with the same effect
as though made on such date, except to the extent that any such
representation or warranty relates to an earlier date, in which
case such representation or warranty shall be true and correct in
all material respects as of such earlier date.
(c) No Defaults. No Default or Event of Default under the
Credit Agreement shall have occurred and be continuing.
(d) Officer's Certificate. The Borrower shall have duly
executed and delivered to the Agent a certificate of an officer
of the Borrower dated as of the Effective Date in the form of
Exhibit A attached hereto.
(e) Reaffirmation of Guaranty. The Agent shall have
received a Reaffirmation of Guaranty dated as of the Effective
Date in the form of Exhibit B attached hereto duly executed by
each Guarantor.
(f) Other Matters. The Agent shall have received such other
instruments and documents as the Agent or the Required Lenders
may reasonably request in connection with the execution of this
Amendment, and all such instruments and documents shall be
reasonably satisfactory in form and substance to the Agent.
5. Miscellaneous. The parties hereto hereby further agree
as follows:
(a) Costs, Expenses and Taxes. The Borrower hereby
agrees to pay all reasonable fees, costs and expenses of the
Agent incurred in connection with the negotiation, preparation
and execution of this Amendment and the transactions contemplated
hereby, including, without limitation, the reasonable fees and
expenses of Winston & Xxxxxx, counsel to the Agent.
(b) Counterparts. This Amendment may be executed in one
or more counterparts, each of which, when executed and delivered,
shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same document
with the same force and effect as if the signatures of all of the
parties were on a single counterpart, and it shall not be
necessary in making proof of this Amendment to produce more than
one (1) such counterpart.
(c) Headings. Headings used in this Amendment are for
convenience of reference only and shall not affect the
construction of this Amendment.
(d) Integration. This Amendment and the Credit Agreement
(as amended hereby) constitute the entire agreement among the
parties hereto with respect to the subject matter hereof.
(e) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS
AND DECISIONS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO
CONFLICT OF LAWS PRINCIPLES).
(f) Binding Effect. This Amendment shall be binding upon
and inure to the benefit of and be enforceable by the Borrower,
the Agent and the Lenders and their respective successors and
assigns. Except as expressly set forth to the contrary herein,
this Amendment shall not be construed so as to confer any right
or benefit upon any Person other than the Borrower, the Agent and
the Lenders and their respective successors and permitted
assigns.
(g) Amendment; Waiver. The parties hereto agree and
acknowledge that nothing contained in this Amendment in any
manner or respect limits or terminates any of the provisions of
the Credit Agreement or any of the other Loan Documents other
than as expressly set forth herein and further agree and
acknowledge that the Credit Agreement (as amended hereby) and
each of the other Loan Documents remain and continue in full
force and effect and are hereby ratified and confirmed. Except
to the extent expressly set forth herein, the execution, delivery
and effectiveness of this Amendment shall not operate as a waiver
of any rights, power or remedy of the Lenders or the Agent under
the Credit Agreement or any other Loan Document, nor constitute a
waiver of any provision of the Credit Agreement or any other Loan
Document. No delay on the part of any Lender or the Agent in
exercising any of their respective rights, remedies, powers and
privileges under the Credit Agreement or any of the Loan
Documents or partial or single exercise thereof, shall constitute
a waiver thereof. On and after the Effective Date each reference
in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import, and each reference to
the Credit Agreement in the Loan Documents and all other
documents delivered in connection with the Credit Agreement shall
mean and be a reference to the Credit Agreement as amended
hereby. The Borrower acknowledges and agrees that this Amendment
constitutes a "Loan Document" for purposes of the Credit
Agreement, including, without limitation, Section 11.01 of the
Credit Agreement. None of the terms and conditions of this
Amendment may be changed, waived, modified or varied in any
manner, whatsoever, except in accordance with Section 12.12 of
the Credit Agreement.
[signature pages follow]
IN WITNESS WHEREOF, the parties have caused this Amendment
to be duly executed by their respective officers thereunto duly
authorized as of the date first written above.
XXXXXXX INC.
By:___________________________
Name:________________________
Title:_________________________
FLEET CAPITAL CORPORATION,
individually and as Agent
By:___________________________
Name:________________________
Title:_________________________
XXX XXXXXX
PRIME RATE INCOME TRUST
By:___________________________
Name:________________________
Title:_________________________
ING PRIME RATE TRUST
By:___________________________
Name:________________________
Title:_________________________
AMSOUTH BANK
By:___________________________
Name:________________________
Title:_________________________
SUNTRUST BANK, ATLANTA
By:___________________________
Name:________________________
Title:_________________________
UPS CAPITAL CORPORATION
By:___________________________
Name:________________________
Title:_________________________
EXHIBIT A
OFFICER'S CERTIFICATE
The undersigned, E. Xxxxxxxx Xxxx, hereby certifies
that he is the duly elected Senior Vice President-Financial,
Chief Financial Officer, Secretary and Treasurer of Xxxxxxx Inc.,
a Virginia corporation (the "Borrower"), and pursuant to that
certain Third Amendment to Amended and Restated Credit Agreement
dated as of July 31, 2002 (the "Amendment") by and among the
Borrower, Fleet Capital Corporation, as Agent, and the financial
institutions party thereto as lenders (capitalized terms used
herein shall, unless otherwise defined herein, have the meaning
provided in the Amendment), hereby further certifies as follows:
1. No Default or Event of Default under the Credit
Agreement (as amended by the Amendment) has occurred and is
continuing as of the date hereof.
2. After giving effect to the Amendment, the
representations and warranties of the Borrower contained in the
Amendment, the Credit Agreement and the other Loan Documents are
true and correct in all material respects as of the date hereof,
with the same effect as though made on such date, except to the
extent that any such representation or warranty relates to an
earlier date, in which case such representation or warranty is
true and correct in all material respects as of such earlier
date.
3. The conditions of Section 4 of the Amendment have
been fully satisfied.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be duly executed and delivered as of July 31,
2002.
XXXXXXX INC.
By:
E. Xxxxxxxx Xxxx
Senior Vice President-
Financial,
CFO, Secretary and
Treasurer
EXHIBIT B
REAFFIRMATION OF GUARANTY
Each of the undersigned acknowledges receipt of the Third
Amendment to Amended and Restated Credit Agreement (the
"Amendment"; capitalized terms used herein shall, unless
otherwise defined herein, have the meanings provided in the
Amendment) dated as of July 31, 2002, by and among Xxxxxxx Inc.,
Fleet Capital Corporation, as agent, and the financial
institutions party thereto as Lenders, consents to such Amendment
and each of the transactions referenced in the Amendment and
hereby reaffirms its obligations under the Guaranties, as
applicable.
Dated as of July 31, 2002.
PHC RETAIL HOLDING COMPANY XXX X. XXXXXX CO.
By: By:
_______________________________ _______________________________
Name: Name:
_______________________________ _______________________________
Title: Title:
_______________________________ _______________________________
