EXHIBIT 10.3
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment"), dated as of May 16, 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 and a First Amendment and Consent to Amended
and Restated Credit Agreement dated as of October 30, 2001
(as heretofore 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 July 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 AMERICAN
CAPITAL PRIME RATE INCOME TRUST
By:___________________________
Name:________________________
Title:_________________________
PILGRIM AMERICA
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 Second Amendment to Amended and
Restated Credit Agreement dated as of May __, 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 May
__, 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
Second 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 May __, 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 May __, 2002.
PHC RETAIL HOLDING COMPANY XXX X. XXXXXX CO.
By: By:
_____________________________ _____________________________
_____ _____
Name: Name:
_____________________________ _____________________________
___ ___
Title: Title:
_____________________________ _____________________________
____ ____
