Exhibit 10.38
TENTH AMENDMENT TO CREDIT AGREEMENT
THIS TENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
the 18th day of April, 2005, by and between STEEL CITY PRODUCTS, INC., a
Delaware corporation (the "Borrower") and NATIONAL CITY BANK OF PENNSYLVANIA
(the "Bank").
BACKGROUND
A. The Borrower and the Bank entered into a certain Credit Agreement dated
as of July 13, 2001 (as amended, supplemented, replaced or otherwise modified,
the "Agreement") pursuant to which the Bank has made a credit facility or
facilities available to the Borrower.
B. The Borrower has requested the Bank to revise among other things, the
interest rate and the Borrowing Base, and the Bank is willing to do so upon the
terms and conditions set forth in this Amendment.
NOW THEREFORE, intending to be legally bound hereby, the parties hereto
amend the Agreement and agree as follows:
Section 1. Capitalized Terms.
Unless otherwise specified herein, capitalized terms used in this Amendment
(including the BACKGROUND above) without definition shall have the same meaning
as set forth in the Agreement as amended by this Amendment.
Section 2. Amendments.
The Agreement is hereby amended as follows:
2.1 Section 2.02(b) is hereby amended and restated in its entirety as
follows:
"(b) Collateral Monitoring Fee. The Borrower shall pay to the Bank a
monthly fee in the amount of Seven Hundred Fifty Dollars ($750) (the "Collateral
Monitoring Fee") in respect of the Bank's monitoring of the Collateral pursuant
to this Agreement and the other Loan Documents."
2.2 Section 2.04(a) is hereby amended and restated in its entirety as
follows:
"(a) Interest Rate. Subject to the terms and conditions of this
Agreement, the aggregate outstanding principal balance of the Revolving Credit
Loans shall bear interest for each day at a rate per annum equal to the Prime
Rate (the "Interest Rate")."
2.3 Section 2.09(a)(ii) is hereby amended and restated in its entirety as
follows:
"(ii) an amount which is equal to 50% of the Net Value of Eligible
Inventory."
2.4 Section 5.01(g) is amended and restated in its entirety as follows:
"(g) Visitation; Verification. The Borrower agrees that it shall
permit such Persons as the Bank may designate from time to time to visit and
inspect any of the properties of the Borrower, to examine its books and records
and take copies and extracts therefrom and to discuss its affairs with its
directors, officers, employees and independent accountants at such times and as
often as the Bank may request. The Borrower hereby authorizes such officers,
employees and independent accountants to discuss with the Bank the affairs of
the Borrower. The Bank shall have the right to perform a secured credit audit of
the Borrower no less than semiannually, including, without limitation, the right
to examine and verify accounts, inventory and other properties and liabilities
of the Borrower from time to time, and the Borrower shall cooperate with the
Bank in such verification."
Section 3. Covenants, Representations and Warranties.
3.1 The Borrower ratifies, confirms and reaffirms, without condition, all
the terms and conditions of the Agreement and the other Loan Documents and
agrees that it continues to be bound by the terms and conditions thereof as
amended by this Amendment; and, the Borrower further confirms and affirms that
it has no defense, set off or counterclaim against the same. The Agreement and
this Amendment shall be construed as complementing each other and as augmenting
and not restricting the Bank's rights, and, except as specifically amended by
this Amendment, the Agreement shall remain in full force and effect in
accordance with its terms.
3.2 The Borrower ratifies, confirms and reaffirms without condition, all
liens and security interests granted to the Bank pursuant to the Agreement and
the other Loan Documents, if any, and such liens and security interests shall
continue to secure the indebtedness and obligations of the Borrower to the Bank
under the Agreement, the Note and the other Loan Documents, including, but not
limited to, all loans made by the Bank to the Borrower as amended by this
Amendment.
3.3 The Borrower represents and warrants to the Bank that:
(a) This Amendment has been duly executed and delivered by the
Borrower and constitutes the legal, valid and binding obligations of the
Borrower enforceable in accordance with its terms;
(b) The execution and delivery of this Amendment by the Borrower and
the performance and observance by the Borrower of the provisions hereof, do not
violate or conflict with the organizational agreements of the Borrower or any
law applicable to the Borrower or result in a breach of any provision of or
constitute a default under any other agreement, instrument or document binding
upon or enforceable against the Borrower;
(c) The representations and warranties set forth within Article III of
the Agreement continue to be true and correct in all material respects as of the
date of this Amendment except those changes resulting from the passage of time;
and
(d) No material adverse change has occurred in the business,
operations, consolidated financial condition or prospects of the Borrower since
the date of the most recent annual financial statement delivered to the Bank,
and no Event of Default or condition which, with the passage of time, the giving
of notice or both, could become an Event of Default has occurred and is
continuing.
3.4 The Borrower shall execute or cause to be executed and deliver to the
Bank all other documents, instruments and agreements deemed necessary or
appropriate by the Bank in connection herewith.
Section 4. Conditions Precedent.
4.1 This Amendment shall be effective on the date hereof so long as each of
the following conditions has been satisfied:
(a) No Event of Default shall have occurred and be continuing on the
date of this Amendment.
(b) The representations and warranties set forth within Article III of
the Agreement shall continue to be true and correct in all material respects as
of the date of this Amendment except those changes resulting from the passage of
time only.
(c) Contemporaneously with the execution hereof, the Borrower shall
deliver, or cause to be delivered, to the Bank:
(i) A certificate of the corporate secretary or assistant
secretary of the Borrower, dated the date hereof, certifying (A) that the
Articles of Incorporation and By-Laws of the Borrower have not been changed
since they were delivered to the Bank, or if there have been any such changes,
attaching copies thereof as then in effect and (B) as to true copies of all
corporate action taken by the Borrower in authorizing the execution, delivery
and performance of this Amendment, and the transactions contemplated thereby;
and
(ii) Such other documents, instruments and certificates required
by the Bank in connection with the transactions contemplated by this Amendment.
4.2 The Bank shall continue to have a first priority lien on and security
interest in the Collateral, if any, previously granted to the Bank.
4.3 All legal details and proceedings in connection with the transactions
contemplated in this Amendment shall be satisfactory to counsel for the Bank,
and the Bank shall have received all such originals or copies of such documents
as the Bank may request.
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Section 5. Miscellaneous.
5.1 This Amendment shall be construed in accordance with, and governed by
the laws of the Commonwealth of Pennsylvania without giving effect to the
provisions thereof regarding conflicts of law.
5.2 Except as amended hereby, all of the terms and conditions of the
Agreement shall remain in full force and effect. This Amendment amends the
Agreement and is not a novation thereof.
5.3 This Amendment shall inure to the benefit of, and shall be binding
upon, the respective successors and assigns of the Borrower and the Bank. The
Borrower may not assign any of its rights or obligations hereunder without the
prior written consent of the Bank.
5.4 This 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.
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Tenth Amendment to Credit Agreement the day
and year first above written.
ATTEST: STEEL CITY PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxx (SEAL)
------------------------------------ ---------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxxx X. Xxxxx
Title: Controller Title: President, CEO
(SEAL)
NATIONAL CITY BANK OF PENNSYLVANIA
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Assistant Vice President
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