EXHIBIT (b)(3)
CONFIDENTIAL
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"),
made effective as of the 17th day of March, 2004 (the "Second Amendment
Effective Date"), by and between XXXXXX ASSOCIATED COMPANIES, INC., a
Pennsylvania corporation (the "Borrower") and CITIZENS BANK OF PENNSYLVANIA, a
Pennsylvania state chartered bank (the "Lender").
BACKGROUND
A. The Borrower and the Lender are parties to that certain Credit
Agreement dated as of November 15, 2002, as amended by that certain First
Amendment to Credit Agreement dated as of November 14, 2003 (as amended, the
"Credit Agreement") pursuant to which the Lender has made Revolving Credit Loans
available to the Borrower in an aggregate amount outstanding at any time not to
exceed $15,000,000.
B. The Borrower has requested the Lender to further amend the
Credit Agreement to increase the maximum amount of Revolving Credit Loans
permitted to be outstanding at any time to $25,000,000 and to make certain other
changes to the Credit Agreement, and the Lender is willing to do so upon the
terms and conditions set forth in this Second Amendment.
NOW, THEREFORE, the parties hereto, intending to be legally bound,
covenant and agree as follows:
SECTION 1. USE OF TERMS; RECITALS
1.1 Capitalized terms used herein (including the Background above)
shall have the same meaning ascribed thereto in the Credit Agreement as amended
hereby unless otherwise specified herein.
1.2 The Borrower acknowledges that the recitals set forth above in
the Background ABOVE are true and correct and are incorporated herein by
reference.
SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT
2.1 The following definitions set forth in Section 1.01 of the
Credit Agreement are amended and restated in their entirety to read as follows:
"Revolving Credit Commitment" means the obligation of the
Lender to make Revolving Credit Loans available to the Borrower in the
maximum aggregate principal amount of Twenty Five Million Dollars
($25,000,000.00) MINUS all L/C Obligations.
"Revolving Credit Note" shall mean the Amended and Restated
Revolving Credit Note dated March 17, 2004 in the original principal
amount of Twenty Five Million Dollars ($25,000,000.00) issued by the
Borrower to the Lender, in form and substance satisfactory to the
Lender, together with any and all amendments, restatements, extensions,
renewals, refinancings, or refundings in whole or in part thereof, such
note being an amendment and restatement, AND NOT A NOVATION OR
SATISFACTION, of that certain Revolving Credit Note dated November 15,
2002 issued by the Borrower to the Lender in the original principal
amount of Fifteen Million Dollars ($15,000,000.00).
2.2 The following definitions are added to Section 1.01 of the
Credit Agreement in their appropriate alphabetical order:
"Issue" means, with respect to any Letter of Credit, to issue
or to extend the expiry of, or to renew or increase the amount of, or
otherwise amend such Letter of Credit; and the terms "Issued,"
"Issuing" and "Issuance" have corresponding meanings.
"Issuance Date" shall have the meaning set forth in Section
2.08 of the Agreement.
"L/C Amendment Application" means an application form for
amendment of outstanding standby or commercial documentary letters of
credit as shall at any time be in use at the Lender.
"L/C Application" means an application form for issuances of
standby or commercial documentary letters of credit as shall at any
time be in use at the Lender.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which shall not have been reimbursed
on the date when made nor converted into a borrowing of Revolving
Credit Loans.
"L/C Commitment" means the commitment of the Lender to Issue
Letters of Credit from time to time under the Agreement in an aggregate
outstanding amount at any time not to exceed on any date the lesser of
(i) Ten Million Dollars ($10,000,000.00), and (ii) the Revolving Credit
Commitment minus the aggregate principal amount of Revolving Credit
Loans then outstanding; it being understood that that the L/C
Commitment is a part of the Revolving Credit Commitment, rather than a
separate, independent commitment.
"L/C Obligations" means at any time the sum of, without
duplication, (i) the aggregate undrawn Stated Amount of all Letters of
Credit then outstanding, PLUS (ii) the amount of all unreimbursed
drawings under all Letters of Credit, including all outstanding L/C
Borrowings, PLUS (iii) the aggregate amount of the Borrower's unpaid
obligations in respect to all Letters of Credit (whether or not
outstanding) under this Agreement and the L/C-Related Documents,
including any indebtedness, liability or obligation of any kind
whatsoever, however arising, whether present or future, related or
unrelated, fixed or contingent, or paid, incurred, or arising in
connection with any Letters of Credit (including any drafts or
acceptances thereunder), all amounts charged or chargeable to the
Borrower or by the Lender (or by any correspondent bank which opens,
issues or is involved with such Letter of Credit), including any and
all charges, expenses, fees and commissions, and all duties and taxes
and costs of insurance which may pertain either directly or indirectly
to such Letter of Credit.
"L/C-Related Documents" means the Letters of Credit, the L/C
Applications, the L/C Amendment Applications and any other document
relating to any Letter of Credit, including any standard form documents
used by the Lender for letter of credit issuances.
"Letter of Credit" means any letter of credit (whether a
standby letter of credit or a merchandise letter of credit) Issued by
the Lender.
"Letter of Credit Fees" shall have the meaning set forth in
Section 2.13 of the Agreement.
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"Stated Amount" means the stated or face amount of a Letter of
Credit to the extent available at the time for drawing (subject to
presentment of all required items), as the same may be increased or
decreased from time to time in accordance with the terms of such Letter
of Credit.
2.3 New Sections 2.08, 2.09, 2.10, 2.11, 2.12 and 2.13 are added
reading as follows:
2.08 LETTER OF CREDIT SUBFACILITY. (a) Subject to the
conditions and on the terms hereinafter set forth in this Agreement,
and in reliance upon the representations and warranties of the Borrower
contained in Article III, the Lender agrees (i) from time to time on
any Business Day, during the period from the Closing Date to the day
which is five (5) Business Days prior to the Termination Date, to issue
Letters of Credit for the account of the Borrower in an aggregate
Stated Amount at any one time that, together with the aggregate Stated
Amount of all other outstanding Letters of Credit issued pursuant
hereto, does not exceed the L/C Commitment, and to amend or renew
Letters of Credit previously issued by it, and (ii) to honor drafts
under Letters of Credit; provided, that the Lender shall not be
obligated to Issue any Letter of Credit if as of the date of Issuance
of such Letter of Credit (the "Issuance Date") and after giving effect
to such Issuance (A) the aggregate outstanding Revolving Credit Loans
exceed the Revolving Credit Commitment, or (B) the outstanding L/C
Obligations exceeds the L/C Commitment. If on any date the outstanding
L/C Obligations of L/C Obligations exceeds the L/C Commitment, the
Borrower shall immediately, without further notice or demand by the
Lender, prepay the outstanding principal amount of the Revolving Credit
Loans by an amount equal to the applicable excess. Within the foregoing
limits, and subject to the other terms and conditions hereof, the
Borrower's ability to obtain Letters of Credit shall be fully
revolving, and, accordingly, the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit which
have expired or which have been drawn upon and reimbursed.
(b) The Lender is under no obligation to, and
shall not, Issue any Letter of Credit if:
(i) any order, judgment or decree of
any Official Body or arbitrator shall by its terms purport to
enjoin or restrain the Lender from Issuing such Letter of
Credit, or any requirement of Law applicable to the Lender or
any request or directive (whether or not having the force of
Law) from any Official Body with jurisdiction over the Lender
shall prohibit, or request that the Lender refrain from, the
Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Lender with
respect to such Letter of Credit any restriction, reserve or
capital requirement (for which the Lender is not otherwise
compensated hereunder) not in effect on the Closing Date, or
shall impose upon the Lender any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which
the Lender in good xxxxx xxxxx material to it;
(ii) on or prior to the Business Day
prior to the requested date of Issuance of such Letter of
Credit, one or more of the applicable conditions contained in
Section 4.02 of the Agreement is not then satisfied as though
a Revolving Credit Loan was then to be made;
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(iii) the expiration date of any
requested Letter of Credit is (A) more than one year after the
date of Issuance, unless the Lender has approved such
expiration date in writing, or (B) after the date that is six
(6) months after the Expiration Date, unless the Lender has
approved such expiration date in writing;
(iv) any requested Letter of Credit does
not provide for drafts, or is not otherwise in form and
substance acceptable to the Lender, or the Issuance of a
Letter of Credit shall violate any applicable policies of the
Lender; or
(v) such Letter of Credit is to be
denominated in a currency other than U.S. dollars.
2.09 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) Each Letter of Credit shall be issued upon the written request of
the Borrower received by the Lender at least three (3) Business Days
(or such shorter time as the Lender may agree in a particular instance
in its sole discretion) prior to the proposed date of issuance. Each
such request for issuance of a Letter of Credit shall be by facsimile,
confirmed immediately in an original writing, in the form of an L/C
Application (or such other form as shall be acceptable to the Lender),
and shall specify in form and detail satisfactory to the Lender: (i)
the proposed date of issuance of the Letter of Credit (which shall be a
Business Day); (ii) the face amount of the Letter of Credit; (iii) the
expiration date of the Letter of Credit; (iv) the name and address of
the beneficiary thereof; (v) the documents to be presented by the
beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; and (vii) such other
matters as the Lender may require.
(b) Unless such issuance is not then permitted
under Section 2.08(b) of the Agreement, the Lender shall, subject to
the terms and conditions hereof, issue a Letter of Credit for the
account of the Borrower on the requested Issuance Date in accordance
with the Lender's usual and customary business practices.
(c) From time to time while a Letter of Credit
is outstanding and prior to the Expiration Date, the Lender may, upon
the written request of the Borrower received by the Lender at least
three (3) Business Days (or such shorter time as the Lender may agree
in a particular instance in its sole discretion) prior to the proposed
date of amendment, amend any Letter of Credit issued by it. Each such
request for amendment of a Letter of Credit shall be made by facsimile,
confirmed immediately in an original writing, made in the form of an
L/C Amendment Application and shall specify in form and detail
satisfactory to the Lender: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of the Letter of Credit (which
shall be a Business Day); (iii) the nature of the proposed amendment;
and (iv) such other matters as the Lender may require. The Lender shall
be not amend any Letter of Credit if (x) the Lender would have no
obligation at such time to issue such Letter of Credit in its amended
form under the terms of the Agreement; or (y) the beneficiary of any
such Letter of Credit does not accept the proposed amendment to the
Letter of Credit.
(d) The Lender agrees that, while a Letter of
Credit is outstanding and prior to the Expiration Date, at the option
of the Borrower and upon the written request of the Borrower received
by the Lender at least three (3) Business Days (or such shorter time as
the Lender may agree in a particular instance in its sole discretion)
prior to
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the proposed date of notification of renewal, the Lender shall be
entitled to authorize the automatic renewal of any Letter of Credit
issued by it. Each such request for renewal of a Letter of Credit shall
be made by facsimile, confirmed immediately in an original writing, in
the form of an L/C Amendment Application, and shall specify in form and
detail satisfactory to the Lender: (i) the Letter of Credit to be
renewed; (ii) the proposed date of notification of renewal of the
Letter of Credit (which shall be a Business Day); (iii) the revised
expiration date of the Letter of Credit; and (iv) such other matters as
the Lender may require. The Lender shall be under no obligation so to
renew any Letter of Credit if (x) the Lender would have no obligation
at such time to issue or amend such Letter of Credit in its renewed
form under the terms of the Agreement; or (y) the beneficiary of any
such Letter of Credit does not accept the proposed renewal of the
Letter of Credit. If any outstanding Letter of Credit shall provide
that it shall be automatically renewed unless the beneficiary thereof
receives notice from the Lender that such Letter of Credit shall not be
renewed, and if at the time of renewal the Lender would be entitled to
authorize the automatic renewal of such Letter of Credit in accordance
with this Section upon the request of the Borrower but the Lender shall
not have received any L/C Amendment Application from the Borrower with
respect to such renewal or other written direction by the Borrower with
respect thereto, the Lender shall nonetheless be permitted to allow
such Letter of Credit to renew, and the Borrower and the Lender hereby
authorize such renewal, and, accordingly, the Lender shall be deemed to
have received an L/C Amendment Application from the Borrower requesting
such renewal.
(e) This Agreement shall control in the event of
any irreconcilable conflict with any L/C-Related Document (other than a
Letter of Credit).
2.10 DRAWINGS AND REIMBURSEMENTS. (a) In the event of any
request for a drawing under a Letter of Credit by the beneficiary or
transferee thereof, the Lender will promptly notify the Borrower. The
Borrower shall reimburse the Lender prior to 11:00 a.m. (prevailing
time in Pittsburgh, Pennsylvania), on each date that any amount is paid
by the Lender under any Letter of Credit (each such date being an
"Honor Date"), in the amount so paid by the Lender. In the event the
Borrower fails to reimburse the Lender in the full amount of any
drawing under any Letter of Credit by 11:00 a.m. (prevailing time in
Pittsburgh, Pennsylvania) on the Honor Date, the Borrower shall be
deemed to have requested that a Revolving Credit Loan in an amount
equal to such unreimbursed amount be made by the Lender to be disbursed
on the Honor Date under such Letter of Credit to be applied by the
Lender for such reimbursement, subject to the limitations on Revolving
Credit Loans set forth in Section 2.01(a) and Section 4.02 of the
Agreement.
(b) With respect to any unreimbursed drawing
that is not converted into a Revolving Credit Loan to the Borrower
because of the Borrower's failure to satisfy the conditions set forth
in Section 4.02 of the Agreement or for any other reason, the Borrower
shall be deemed to have incurred from the Lender an L/C Borrowing in
the amount of such drawing, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at
the Default Rate.
2.11 ROLE OF THE LENDER. (a) The Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the Lender
shall not have any responsibility to obtain any document (other than
any sight draft, other documents and certificates expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing
or delivering any such document (other than to determine that the sight
draft, other documents and
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certificates required to be delivered substantially comply on their
face with the requirements of the applicable Letter of Credit).
(b) The Borrower hereby assumes all risks of the
acts or omissions of any beneficiary or transferee with respect to its
use of any Letter of Credit; provided, however, that this assumption is
not intended to, and shall not, preclude the Borrower's pursuing such
rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Lender-Related
Person, nor any of the respective correspondents, participants or
assignees of the Lender, shall be liable or responsible for any of the
matters described in clauses (i) through (vii) of Section 2.12 of the
Agreement; provided, however, anything in such clauses to the contrary
notwithstanding, that the Borrower may have a claim against the Lender,
and the Lender may be liable to the Borrower, to the extent, but only
to the extent, of any direct, as opposed to consequential or exemplary,
damages suffered by the Borrower which the Borrower proves were caused
by the Lender's willful misconduct or gross negligence or the Lender's
willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft, other documents
and certificates strictly complying with the terms and conditions of a
Letter of Credit. In furtherance and not in limitation of the
foregoing: (i) the Lender may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the
Lender shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
2.12 OBLIGATIONS ABSOLUTE. The obligations of the Borrower
under this Agreement and any L/C-Related Document to reimburse the
Lender for a drawing under a Letter of Credit, and to repay any L/C
Borrowing and any drawing under a Letter of Credit converted into
Revolving Credit Loans, shall be unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of the Agreement
and each such other L/C-Related Document under all circumstances,
including the following:
(i) any lack of validity or
enforceability of the Agreement or any L/C-Related Document;
(ii) any change in the time, manner or
place of payment of, or in any other term of, all or any of
the obligations of the Borrower in respect of any Letter of
Credit or any other amendment or waiver of or any consent to
departure from all or any of such obligation;
(iii) the existence of any claim,
set-off, defense or other right that the Borrower may have at
any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary
or any such transferee may be acting), the Lender or any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any draft, demand, certificate or
other document presented under any Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the
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transmission or otherwise of any document required in order to
make a drawing under any Letter of Credit;
(v) any payment by the Lender under any
Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of
any Letter of Credit; or any payment made by the Lender under
any Letter of Credit to any Person who is a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Letter
of Credit, including any arising in connection with any
proceeding with respect to the Borrower described in Section
7.01(m) of the Agreement;
(vi) any exchange, release or
non-perfection of any collateral, or any release or amendment
or waiver of or consent to departure from any other guarantee,
for all or any of the obligations of the Borrower in respect
of any Letter of Credit; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the
Borrower or a guarantor;
provided, however, the foregoing shall not be construed to restrict or
otherwise limit any claim the Borrower may have against the Lender
permitted under Section 2.11(b) of the Agreement.
2.13 LETTER OF CREDIT FEES. (a) The Borrower shall pay to
the Lender a fee (the "Letter of Credit Fee") on the average
outstanding daily Stated Amount of each Letter of Credit Issued by the
Lender equal to (i) for each standby Letter of Credit, the Applicable
Margin, and (ii) for each merchandise Letter of Credit, the Lender's
then standard fee for merchandise letters of credit. Letter of Credit
Fees shall be calculated on the basis of a 360-day year, counting the
actual number of days elapsed in the period during which it accrues,
and shall be due and payable on the same dates as interest payments
under Section 2.03(a) of the Agreement and on the date upon which the
outstanding Letter of Credit shall expire, with final payment to be
made on the Expiration Date.
(b) The Borrower shall pay to the Lender from
time to time on demand the normal issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the
Lender relating to Letters of Credit as from time to time are in
effect.
2.4 Section 5.01(c) of the Credit Agreement is amended and
restated in its entirety to read as follows:
(c) Quarterly Reports. As soon as practicable, and in any
event within 60 days after the close of each fiscal quarter during the
term of the Agreement, the Borrower will furnish to the Lender (i)
statements of income and cash flows for the Borrower for such fiscal
quarter and for the portion of the fiscal year to the end of such
fiscal quarter together with a balance sheet of the Borrower for such
fiscal quarter, all prepared by the Borrower and certified by a
Responsible Officer (or other Person acceptable to the
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Lender) of the Borrower as presenting fairly the financial position of
the Borrower as of the end of such fiscal quarter and the results of
the Borrower's operations for such periods, subject to year end
adjustment, in conformity with GAAP applied in a manner consistent with
that of the most recent reviewed financial statements furnished to the
Lender, and (ii) internally prepared consolidated and consolidating
statements of income and retained earnings for the Borrower and its
Subsidiaries for such fiscal quarter, all in reasonable detail setting
forth in comparative form the corresponding figures for the preceding
fiscal quarter and for the portion of the fiscal year to the end of
such fiscal quarter, all prepared in accordance with GAAP applied in a
basis consistent with that of the preceding fiscal quarter with such
statements and balance sheet to be attested to by a Responsible Officer
(or other Person acceptable to the Lender) of the Borrower to the best
of his or her knowledge and ability.
2.5 Section 5.09 of the Credit Agreement is amended and restated
in its entirety to read as follows:
5.09 Operating Accounts. The Borrower will establish and
maintain, and will cause the Guarantors to establish and maintain,
their primary operating accounts with the Lender.
2.6 A new Section 6.06 is added to the Credit Agreement reading as
follows:
6.06 Intercompany Transactions. The Borrower shall not
directly or indirectly, enter into or assume or become bound by, or
permit any Guarantor to enter into or assume or become bound by, any
agreement (other than this Agreement and the other Loan Documents) or
any provision of any certificate of incorporation, bylaws, partnership
agreement, operating agreement or other organizational or governing
document prohibiting or restricting loans, advances, distributions or
other transfers by and among the Borrower and the Guarantors, PROVIDED
that the foregoing shall not apply to (i) restrictions and conditions
imposed by any Law or by any Loan Document, or (ii) customary
provisions in leases or other agreements restricting assignment
thereof.
2.7 The meaning ascribed to "Loan Documents" in the Credit
Agreement is hereby amended to the extent necessary to expressly incorporate in
such meaning this Second Amendment.
SECTION 3. AMENDED AND RESTATED REVOLVING CREDIT NOTE
3.1 From and after the Second Amendment Effective Date, the
Revolving Credit Loans shall be evidenced by an Amended and Restated Revolving
Credit Note in the principal amount of Twenty Five Million Dollars
($25,000,000.00) (the "Amended Revolving Credit Note"), in form and substance
satisfactory to the Lender, appropriately completed and duly executed by the
Borrower. Upon the Lender's receipt of the appropriately completed and duly
executed Amended Revolving Credit Note, the previously outstanding Revolving
Credit Note dated November 15, 2002 issued by the Borrower to the Lender in the
original principal amount of Fifteen Million Dollars ($15,000,000.00) (the
"Prior Note") shall be marked amended and restated and replaced by the Amended
Revolving Credit Note. The Amended Revolving Credit Note is intended as an
amendment and restatement, AND NOT A NOVATION OR SATISFACTION, of the Prior
Note, and all outstanding principal and unpaid interest and other charges, if
any, accrued and owing on the Prior Note shall be outstanding under the Amended
Revolving Credit Note.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS
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4.1 The Borrower hereby ratifies, confirms and reaffirms, without
condition, all the terms and conditions of the Credit Agreement and the other
Loan Documents to which it is a party and agrees that it continues to be bound
by the terms and conditions thereof as amended by this Second Amendment. Except
as specifically amended by this Second Amendment, the Credit Agreement shall
remain in full force and effect in accordance with its terms. This Second
Amendment is not intended to be, nor shall it be construed to create, a novation
or accord and satisfaction of the Borrower's indebtedness and obligations under
the Credit Agreement, and the Credit Agreement as herein modified shall continue
in full force and effect.
4.2 The Borrower represents and warrants to the Lender that:
(i) this Second Amendment and the Amended Revolving
Credit Note have been duly executed and delivered by the Borrower and
constitute the legal, valid and binding obligations of the Borrower
enforceable in accordance with their terms;
(ii) the representations and warranties set forth within
Article III of the Credit Agreement continue to be true and correct in
all material respects as of the Second Amendment Effective Date except
to the extent that (A) such representations and warranties expressly
relate to an earlier date, or (B) such representations and warranties
have changed, and such changes have been consented to in writing by the
Lender and are reflected on revised schedules to the Credit Agreement
attached to this Second Amendment;
(iii) no Event of Default or Potential Default shall have
occurred and be continuing on the Second Amendment Effective Date; and
(iv) no Material Adverse Change has occurred since the
Closing Date, and no event or events shall have occurred and be
continuing on the Second Amendment Effective Date which, individually
or in the aggregate, could reasonably be expected to result in a
Material Adverse Change.
SECTION 5. CONDITIONS PRECEDENT
5.1 The amendments set forth in this Second Amendment shall become
effective as of the Second Amendment Effective Date provided each of the
following conditions has been satisfied or effectively waived by the Lender:
(a) The representations and warranties set forth in
Section 4 of this Second Amendment shall be true and correct as of the
Second Amendment Effective Date.
(b) Contemporaneously with or prior to the execution
hereof, the Borrower shall deliver, or cause to be delivered, to the
Lender:
(1) The Amended Revolving Credit Note duly
executed by the Borrower;
(2) A First Amendment to Guaranty and Suretyship
Agreement, in form and substance satisfactory to the Lender,
duly executed by each Guarantor pursuant to which the Guaranty
Agreements will be amended to, inter alia, extend to and
encompass the indebtedness and obligations of the Borrower
under the Amended Revolving Credit Note;
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(3) A certificate of the secretary or assistant
secretary of the Borrower dated the Second Amendment Effective
Date and certifying as to (i) true copies of its Articles of
Incorporation and Bylaws, and all amendments thereto, as in
effect on the Second Amendment Effective Date, (ii) true
copies of all action taken by its Board of Directors in
authorizing the execution, delivery and performance of this
Second Amendment, the Amended Revolving Credit Note and the
transactions contemplated thereby, and (iii) the names and
true signatures of its officers authorized to execute and
deliver this Second Amendment and the Amended Revolving Credit
Note; and
(4) Such other documents required by the Lender
and its counsel in connection with the transactions
contemplated by this Second Amendment.
(c) All legal details and proceedings in connection with
the transactions contemplated by this Second Amendment shall be
satisfactory to counsel for the Lender, and the Lender shall have
received all such originals or copies of such documents as the Lender
may request.
SECTION 6. MISCELLANEOUS
6.1 This Second Amendment shall be construed in accordance with,
and governed by the internal laws of the Commonwealth of Pennsylvania without
giving effect to its conflict of laws principles.
6.2 All notices, communications, agreements, certificates,
documents or other instruments executed and delivered after the execution and
delivery of this Second Amendment may refer to the Credit Agreement and the
other Loan Documents without making specific reference to this Second Amendment,
but nevertheless all such references shall be deemed a reference to the Credit
Agreement and the other Loan Documents as respectively amended by this Second
Amendment unless the context requires otherwise. All references to the Credit
Agreement and the other Loan Documents in any document, instrument or agreement
executed in connection with the Credit Agreement and the other Loan Documents
shall be deemed to refer to the Credit Agreement and the other Loan Documents as
respectively amended by this Second Amendment unless the context requires
otherwise.
6.3 This Second Amendment shall inure to the benefit of, and shall
be binding upon, the respective successors and assigns of the Borrower and the
Lender. The Borrower may not assign any of its rights or obligations hereunder
without the prior written consent of the Lender.
6.4 This Second 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. Delivery by
telecopier of an executed counterpart of a signature page to this Second
Amendment or any notice, communication, agreement, certificate, document or
other instrument in connection with the Credit Agreement and the other Loan
Documents shall be effective as delivery of an executed original counterpart
thereof.
6.5 The provisions contained in Section 8.18 of the Credit
Agreement are incorporated herein by reference to the same extent as if
reproduced herein in their entirety, except with reference to this Second
Amendment rather than the Credit Agreement.
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******SIGNATURES APPEAR ON THE FOLLOWING PAGE******
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused their duly authorized officers to execute and deliver this
Second Amendment to Credit Agreement the day and year first above written.
ATTEST: XXXXXX ASSOCIATED COMPANIES,
INC.
______________________________ By: _____________________________
Secretary Title: __________________________
(CORP. SEAL)
CITIZENS BANK OF PENNSYLVANIA
Xxxxx X. Xxxxxx
Vice President
