FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment"), dated as January 1, 1996, by
and among X.X. XXXXXX COMPANY, a Delaware Corporation (the
"Borrower"), and MELLON BANK, N.A., NBD BANK and CORESTATES BANK,
N.A. (separately called a "Bank" and collectively the "Banks")
and MELLON BANK, N.A., as agent for the Banks (in such capacity, the
"Agent").
RECITALS:
WHEREAS the Borrower, the Banks and the Agent entered into an
Amended and Restated Loan Agreement, dated as of November 1,
1995 (the "Restated Agreement"), pursuant to which the Banks
have extended credit to the Borrower;
WHEREAS, the Borrower and the Banks desire to amend the Restated
Agreement; and
WHEREAS, capitalized terms not otherwise defined herein shall
have the meanings assigned thereto in the Restated Agreement.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and
intending to be legally bound hereby agree as follows:
Section 1. Amendments to Restated Agreement. Section 2.02(c) of
the Restated Agreement is hereby deleted and replaced with the
following:
(c) Letter of Credit Fees. In lieu of any letter of credit
fronting fees provided for in the Applications or otherwise, the
Borrower agrees to pay to the Agent upon the issuance of each
Standby Letter of Credit a fee equal to 1/10 of 10-. of the face
amount of such Standby Letter of Credit, and the Borrower
further agrees to pay to the Agent from time to time any
issuance, amendment, payment, telex, postage and courier fees,
at the Agent's standard rates (a schedule of which has been
provided to the Borrower), in respect of Letters of Credit. The
Borrower agrees that upon and following the issuance of a
Standby Letter of Credit, the Agent shall be paid a fee per
annum based upon the amount of the Standby Letter of Credit
issued, which fee shall be calculated at a rate per annum for
each day equal to the Applicable Margin with respect to the
Euro-Rate in effect pursuant to Section 2.05(h) hereof for such
day. Such letter of credit commission shall be payable on the
last Business Day of each calendar quarter, and on the last date
on which any Standby Letter of Credit issued hereunder expires,
in each case for the preceding period for which such fee has not
been paid. The Borrower agrees that upon the issuance of a
Documentary Letter of Credit, the Agent shall be paid a fee
equal to 1/2 of 1% of the face amount of the Documentary Letter
of Credit issued; provided, however, that in the case of the
acceptance by the Agent of any time draft with respect to a
Documentary Letter of Credit issued hereunder, the Borrower
agrees to pay to the Agent an acceptance fee per annum based
upon the amount of the Documentary Letter of Credit issued,
which acceptance fee shall be calculated at a rate per annum for
each day during the period from the acceptance of such draft
through its maturity equal to the Applicable Margin with respect
to the Euro-Rate in effect pursuant to Section 2.05(h) hereof at
the time of the acceptance of any such time draft.
Section 2. Representations and Warranties of Borrower. The
Borrower hereby represents and warrants to each Bank and the
Agent that this Amendment has been duly and validly executed and
delivered by the Borrower and constitutes the legal, valid and
binding obligation of the Borrower enforceable in accordance
with the terms hereof, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors, rights or by
general principles of equity limiting the availability of
equitable remedies.
Section 3. Miscellaneous. (a) This Amendment shall become
effective as of the date hereof, upon execution and delivery
hereof by the Banks, the Borrower and the Agent. The execution
below by the Banks shall constitute a direction to the Agent to
execute this Amendment.
(b) The Restated Agreement, as amended by this Amendment, is in
all respects ratified, approved and confirmed and shall, as so
amended, remain in full force and effect. From and after the
date hereof, all references to the "Agreement" in the Restated
Agreement and in the other Loan Documents shall be deemed to be
references to the Restated Agreement as amended by this
Amendment.
(c) This Amendment, and the rights and obligations of the
parties hereto, shall be governed by and construed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania,
excluding its rules relating to the conflict of laws.
(d) 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.
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this
Agreement as of the date first above written.
X. X. XXXXXX COMPANY
By: /s/Xxxxx X. Xxxxx
Title: Sr. VP Finance Admin CFO
Mellon BANK, N. A., individually and as Agent
By:
Title:
NBD BANK
By:
Title:
CORESTATES BANK, N.A.
By:
Title:
