Exhibit 10(p)
SECOND AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This Second Amendment to Amended and Restated Loan and Security
Agreement (this "AMENDMENT") is made this 2oth day of December, 1999 by and
among Xxxxxx Financial Corp. ("BFC"), a Delaware corporation, Xxxxxx Bros
Company ("BBC"), a Pennsylvania corporation and Xxxxxx Holdings, Ltd. ("BHL"), a
Pennsylvania corporation, each with its chief executive office at 000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, and Summit Bank
("BANK"), a New Jersey bank having offices at 0000 Xxxxx 00, Xxxxxxxxxx, Xxx
Xxxxxx 00000- 4792. BFC and BBC are hereinafter collectively referred to and
obligated as "BORROWER." Borrower and BHL are hereinafter collectively referred
to and obligated as "OBLIGORS."
BACKGROUND
A. Pursuant to the terms and subject to the conditions set forth in
that certain Amended and Restated Loan and Security Agreement dated January 2,
1998 between Borrower and Bank, as amended pursuant to the terms and subject to
the conditions set forth in that certain Amendment to Amended and Restated Loan
and Security Agreement dated December 7, 1998 between Borrower and Bank (as
amended, the "LOAN AGREEMENT") and related instruments, agreements and documents
(collectively, along with the Loan Agreement, the "FINANCING AGREEMENTS"),
Borrower is currently indebted to Bank for repayment of (i) various loans,
advances and extensions of credit made pursuant to a revolving credit facility
made available by Bank to Borrower in a principal sum of up to Nine Million Five
Hundred Thousand ($9,500,000.00) Dollars (the "REVOLVING CREDIT"), which
indebtedness is further evidenced by that certain Revolving Credit Note dated
January 2, 1998 in the principal sum of Nine Million Five Hundred Thousand
($9,500,000.00) Dollars executed and delivered by Borrower to Bank (the
"REVOLVING CREDIT NOTE"); and (ii) a term loan made by Bank to Borrower in the
principal sum of Two Million Four Hundred Thousand ($2,400,000.00) Dollars (the
"TERM LOAN"), which indebtedness is further evidenced by that certain
Replacement Term Loan Note dated December 7, 1998 in the principal sum of Two
Million Four Hundred Thousand ($2,400,000.00) Dollars executed and delivered by
Borrower to Bank (the "TERM LOAN NOTE"). The Revolving Credit Note and the Term
Loan Note are hereinafter collectively referred to as the "EXISTING NOTES."
B. To induce Bank to enter into the Financing Agreements, pursuant to
the terms and subject to the conditions set forth in certain Amended and
Restated Surety Agreement dated January 2, 1998 executed and delivered by BHL to
Bank (the "SURETY AGREEMENT"), BHL guaranteed, as a surety, all existing and
future debts, liabilities and obligations of Borrower to Bank including, without
limitation, the debts, liabilities and obligations evidenced by the Existing
Notes. To secure BHL's indebtedness to Bank as a surety for the debts,
liabilities and obligations of Borrower to Bank, pursuant to a certain Security
Agreement dated August 21, 1997 between BHL and Bank, BHL granted Bank
continuing liens on and security interests in
and to all of BHL's existing and future accounts, chattel paper, contracts,
documents, equipment, fixtures, general intangibles, goods, instruments,
inventory, investment property and the cash and non-cash proceeds thereof, all
as more fully described in such Security Agreement.
C. All capitalized terms not otherwise defined in this Amendment shall
have the meanings ascribed to such terms in the Loan Agreement.
D. Borrower has requested that Bank, among other things, (i) extend the
Expiration Date of the Revolving Credit and the Term Loan to January 2, 2003,
(ii) increase the Maximum Line Amount to Seventeen Million Five Hundred Thousand
($17,500,000.00) Dollars and, within such increased Revolving Credit, establish
a credit facility (the "ACQUISITION LINE FACILITY") for the making of
acquisitions by Borrower in companies which will vertically integrate with
Borrower or otherwise provide services to the core business of Borrower and are
reasonably related to the core business of Borrower (each such company being
hereinafter referred to as a "Related Company") or assets of Related Companies,
(iii) reduce the Variable Revolving Credit Rate and the Variable Term Loan Rate,
and (iv) commit to the making of an additional term loan (the "SUPPLEMENTAL TERM
LOAN") in the principal sum of Two Million Five Hundred Thousand ($2,500,000.00)
Dollars, the proceeds of which shall be used by Borrower to pay certain
Subordinated Indebtedness, and Bank is willing to accommodate Borrower in
accordance with such requests for modifications to the Financing Agreements in
accordance with the terms and subject to the conditions set forth in this
Amendment and in the instruments, agreements and documents referred to in this
Amendment. For the purposes hereof, the "core business of Borrower" is the
manufacture and distribution of roof drainage and related products.
NOW, THEREFORE, with the foregoing background deemed incorporated
hereinafter by this reference and hereby made a part hereof, the parties hereto,
intending to be legally bound hereby, further covenant and agree as follows:
1. CONFIRMATION OF EXISTING INDEBTEDNESS. Obligors hereby
unconditionally acknowledge and confirm that: (a) the unpaid principal
indebtedness of Borrower to Bank evidenced by the Revolving Credit Note is, as
of December 3, 1999, Six Million Five Hundred Eighteen Thousand Eight Hundred
One and 48/100 ($6,518,801.48) Dollars; (b) interest on the outstanding
principal balance of the Revolving Credit has been paid through November 30,
1999; (c) the unpaid principal indebtedness of Borrower to Bank evidenced by the
Term Loan Note is, as of the date hereof, One Million Eight Hundred Sixty-Eight
Thousand Four ($1,868,004.00) Dollars; (d) interest on the outstanding principal
balance of the Term Loan has been paid through November 30, 1999; and (e) the
foregoing sums, together with continually accruing interest and any related
costs, fees and expenses are, as of the date hereof, owing without claim,
counterclaim, right of recoupment, defense or set off of any kind or of any
nature whatsoever.
2. RATIFICATION OF FINANCING AGREEMENTS. Obligors hereby ratify,
confirm and reaffirm in all respects and without condition, all of the terms,
covenants and conditions set forth in the Financing Agreements, and hereby agree
that each of them remain unconditionally liable
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to Bank in accordance with the respective terms, covenants and conditions of
such instruments, agreements and documents, and that all Collateral, liens,
security interests and pledges created pursuant thereto and/or referred to
therein continue unimpaired and in full force and effect, and secure and shall
continue to secure all of the Obligations.
3. WARRANTIES AND REPRESENTATIONS.
(a) All warranties and representations set forth in the Loan
Agreement and the Surety Agreement are hereby respectively reasserted and
restated by Borrower and BHL (as applicable) as of the date hereof as if the
same were set forth at length herein. Obligors acknowledge that such warranties
and representations (and the warranties and representations set forth herein)
are being specifically relied upon by Bank as a material inducement to Bank to
enter into this Amendment, increase and extend the Revolving Credit, establish
the Acquisition Line Facility within the Revolving Credit, extend the maturity
of the Term Loan and make the Supplemental Term Loan.
(b) As a further inducement to Bank to enter into this
Amendment, Obligors further represent and warrant to Bank that:
(i) Each Obligor has the power, authority and
capacity to enter into and perform this Amendment and all related instruments,
agreements and documents, and to incur the Obligations herein and therein
provided for, and such Obligor has taken all proper and necessary corporate
action to authorize the execution, delivery and performance of this Amendment
and related instruments, agreements and documents;
(ii) This Amendment is, and the Second Replacement
Revolving Credit Note, the Second Replacement Term Loan Note and the
Supplemental Term Loan Note (each as hereinafter defined) and the other
Financing Agreements, when executed and delivered by Borrower will be, valid,
binding and enforceable against each Obligor in accordance with their respective
terms;
(iii) No consent, approval or authorization of, or
filing, registration or qualification with, any Person (including any holder of
Subordinated Indebtedness or of liens on Collateral) is required to be obtained
by any Obligor in connection with the execution and delivery of this Amendment
and the instruments, agreements and documents referred to in this Amendment; and
(iv) No Event of Default or Potential Default has
occurred under the Financing Agreements.
4. AMENDMENTS TO LOAN AGREEMENT. Under the terms and subject to
the conditions set forth in this Amendment, the Loan Agreement and the other
Financing Agreements are hereby amended as follows:
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(a) Paragraph 1.5 of the Loan Agreement is hereby amended
and restated to read in its entirety as follows:
1.5 "BORROWING BASE" means, at any time, an amount
shown on the most current Borrowing Base Certificate
executed and delivered by Borrower to Bank equal to
the lesser of:
1.5.1 Seventeen Million Five Hundred
Thousand ($17,500,000.00) Dollars ("MAXIMUM LINE
AMOUNT"); or
1.5.2 An amount up to the sum of (a)
eighty-five (85%) percent of the net outstanding
amount of Eligible Accounts, after deducting
therefrom all payments, adjustments and credits
applicable thereto, and (b) the lesser of (i) fifty
(50%) percent of the value (determined on the basis
of the lower of cost or market value) of Eligible
Inventory and (ii) Four Million Five Hundred Thousand
($4,500,000.00) Dollars. The foregoing percentage
advance rates are subject to periodic examination and
analysis by Bank and, as a result thereof, and in
Bank's discretion exercised reasonably and in good
faith, are subject to change.
(b) Paragraph 1.26 of the Loan Agreement is hereby
amended to include within the definition of "Loans" all loans, advances and
extensions of credit made by Bank to or for the benefit of Borrower including,
without limitation, loans, advances and extensions of credit made under the
Revolving Credit (including the Acquisition Line Facility thereunder), the Term
Loan and the Supplemental Term Loan.
(c) Paragraph 1.29 of the Loan Agreement is hereby
amended to include within the definition of "Notes" any Instruments evidencing
Obligations including, without limitation, the Second Replacement Revolving
Credit Note, the Second Replacement Term Loan Note, the Supplemental Term Loan
Note and any instruments, agreements and documents executed and/or delivered in
replacement or substitution or modification thereof.
(d) Paragraph 2.6.1 of the Loan Agreement, and the term
"Expiration Date", are hereby amended to provide that the term of the Revolving
Credit and the maturity date of the Term Loan are hereby amended to be January
2, 2003, unless such credit facilities are sooner terminated in accordance with
their respective terms.
(e) Paragraph 2.6.2 of the Loan Agreement is hereby
amended to provide that if at any time the Revolving Credit shall terminate,
Bank shall have the option to terminate and accelerate all Obligations
including, without limitation, the Obligations with respect to the Term Loan,
the Supplemental Term Loan and amortizing Loans under the Acquisition Line
Facility. Notwithstanding the foregoing, if Borrower requests Bank to make
available a Loan under the Acquisition Line Facility, and Borrower satisfies all
conditions precedent to a Loan under the Acquisition Line Facility, and Bank
refuses or is unable to provide such Loan and, within one hundred eighty (180)
days following Bank's refusal or inability to provide such Loan, a financial
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institution agrees, in a written loan commitment, to make available to or for
the benefit of Borrower financing at a level sufficient to refinance all Loans
and provide to Borrower the acquisition financing on terms similar to the terms
upon which Bank was requested (and refused or was unable) to provide acquisition
financing, the Termination Premium shall not be applicable and shall be waived
concurrently if and when the refinancing of all Obligations by such financial
institution is completed.
(f) Paragraph 2.9.1 of the Loan Agreement is hereby
amended to reduce the "Variable Revolving Credit Rate" to the per annum rate
equal to the Base Rate in effect from time to time minus one-half (1/2%)
percent.
(g) Paragraph 2.9.2 of the Loan Agreement is hereby
amended to reduce the "Variable Term Loan Rate" to the per annum rate equal to
the Base Rate in effect from time to time minus one-half (1/2%) percent.
(h) Paragraph 2.11.2 of the Loan Agreement is hereby
amended to reduce the Collateral Management Fee from Six Thousand ($6,000.00)
Dollars per annum to Four Thousand ($4,000.00) Dollars per annum.
(i) Paragraph 2.12 of the Loan Agreement is hereby
amended to provide that if termination of the Revolving Credit occurs at any
time from the date of this Amendment through and including January 2, 2002,
Borrower shall, simultaneously with such termination, pay to Bank the
Termination Premium in an amount equal to the greater of One Hundred Ninety-
Three Thousand Six Hundred Eighty and 04/100 ($193,680.04) Dollars or, if Bank
has made the Supplemental Term Loan or otherwise increased the aggregate credit
facility, one (1%) percent of the then outstanding principal balance of the
Supplemental Term Loan and/or such increased aggregate credit facility. If
termination occurs at any time after January 2, 2002, no Termination Premium
shall be payable.
(j) Paragraph 3.2 of the Loan Agreement is hereby amended
to provide that Borrowing Base Certificates shall be delivered monthly, on or
before the first Business Day of each month, irrespective of whether a request
for an advance on any such date is then outstanding; provided, however, that
during the existence of any Potential Default or Event of Default, Bank shall
have the right, at its option, to require Borrowing Base Certificates
concurrently with each request for an advance under the Revolving Credit.
(k) Each reference in the Loan Agreement and in each of
the other Financing Agreements (including the Collateral Documents) to "Notes,"
the "Revolving Credit Note," the "Term Loan Note" and any replacement or
substitution of any such Instrument shall be deemed references to the Notes (as
herein defined) and respectively, the Second Replacement Revolving Credit Note
and the Second Replacement Term Loan Note.
(l) The terms "REVOLVING CREDIT" and "TERM LOAN" as used
in the Loan Agreement shall hereafter refer to the Revolving Credit and the Term
Loan, respectively, as
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increased, extended and/or otherwise modified pursuant to the terms and subject
to the conditions of this Amendment.
(m) Paragraph 6.3.1 of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
6.3.1 Borrower and Surety and, if a separate Person,
any Target acquired by Borrower, shall at all times
maintain on a consolidated basis a ratio of Senior
Liabilities (defined to be all Liabilities minus the
long-term portion of Subordinated Indebtedness) to
Tangible Capital Funds (defined to be Tangible Net
Worth plus the long-term portion of Subordinated
Indebtedness) of not more than 3.00 to 1.00 from
November 15, 1999 through March 31, 2000, and at all
times after March 31, 2000, a ratio of Senior
Liabilities to Tangible Capital Funds of not more
than 2.75 to 1.00;
5. ACQUISITION LINE FACILITY.
(a) Within the Revolving Credit and, except as expressly
set forth below, subject to all conditions applicable to the making of Loans
under the Revolving Credit, absent the existence of any Event of Default or
Potential Default, the Acquisition Line Facility shall include all sums advanced
by Bank hereunder to or for the benefit of Borrower from the date of this
Amendment through the Expiration Date up to the aggregate sum of Eight Million
($8,000,000.00) Dollars (the "ACQUISITION LINE LIMIT"). The proceeds of any Loan
made by Bank under the Acquisition Line Facility shall be used exclusively by
Borrower for Permitted Acquisitions. For the purposes of the Loan Agreement and
the other Financing Agreements, the term "Permitted Acquisitions" shall mean
acquisitions by Borrower which satisfy each of the following conditions (all
instruments, agreements and documents to be in form and substance satisfactory
to Bank and its counsel):
(i) The acquisition target (the "TARGET") must
be a Related Company;
(ii) The purchase price for the Target must be no
more than five (5) times such Target's trailing, historical earnings before
interest, taxes, depreciation and amortization expense (determined in accordance
with GAAP);
(iii) Bank shall receive annual pro forma
consolidated and consolidating financial statements and projections for two (2)
years following the acquisition of the Target for Obligors and the Target
showing that immediately following the acquisition by Borrower of the Target and
for a two (2) year period thereafter, Obligors and the Target shall be in
compliance with the following financial covenants:
(1) Their ratio of consolidated funded
Indebtedness (exclusive of Subordinated Indebtedness) to earnings before
interest, taxes, depreciation and amortization shall be less than 3.25 to 1.00;
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(2) Their ratio of consolidated total
Liabilities to earnings before interest, taxes, depreciation and amortization
shall be less than 5.00 to 1.00;
(3) Their ratio of consolidated Senior
Liabilities (defined to be all Liabilities minus the long-term portion of
Subordinated Indebtedness) to Tangible Net Worth shall be less than 3.00 to 1.00
at all times through March 31, 2000, and less than 2.75 to 1.00 at all times
thereafter; and
(4) They shall have a consolidated debt
service coverage ratio of not less than 1.10 to 1.00 (the term "debt service
coverage ratio" having the meaning ascribed to such term in Paragraph 6.3 of the
Loan Agreement);
(iv) No more than eighty (80%) percent of the
purchase price for the acquisition of the Target may be paid in cash;
(v) A business appraisal and analysis of the
Target and/or the assets of Target, which may be prepared by Borrower or
obtained from an independent Person, shall have been submitted to Bank and
approved by Bank in its reasonable discretion which approval shall not be
unreasonably withheld or delayed;
(vi) Bank shall be reasonably satisfied that no
Liabilities (contingent or otherwise) are being assumed in connection with the
acquisition of the Target except for ordinary course Liabilities in connection
with any operating lease for equipment, trade payables incurred in the ordinary
course of business of the Target and employment agreements in a reasonable
amount determined by Bank, and other ordinary course Liabilities in amount and
nature reasonably satisfactory to Bank;
(vii) Immediately following the acquisition of the
Target, Borrower shall be able to affirm and reaffirm all representations and
warranties set forth in the Loan Agreement with respect to the Target and Assets
acquired of the Target; and
(viii) Such other instruments, agreements and
documents as Bank may reasonably require in order to review the proposed
acquisition of the Target and to determine that such acquisition is a Permitted
Acquisition.
6. PERMITTED ACQUISITION LINE OVERADVANCES. Notwithstanding
anything to the contrary set forth in Paragraphs 2.3 and 2.4 of the Loan
Agreement, absent the existence of any Event of Default or any Potential
Default, upon written request of Borrower to be furnished concurrently with any
request for a Loan under the Acquisition Line Facility, Loans under the
Acquisition Line Facility which are in excess of the Borrowing Base (but subject
to the Maximum Line Amount and the Acquisition Line Limit) may be made in
amounts up to the lesser of Two Million ($2,000,000.00) Dollars or twenty-five
(25%) percent of the cash consideration for a Permitted Acquisition (such Loans
being hereinafter referred to as "Acquisition Line Overadvances"). Acquisition
Line Overadvances shall be payable as follows: Interest only shall accrue on the
outstanding principal balance of Acquisition Line Overadvances
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for the first six (6) months that they are outstanding; thereafter, Acquisition
Line Overadvances shall be paid in eighteen (18) equal and consecutive monthly
installments each in an amount sufficient to fully amortize such Acquisition
Line Overadvances over such eighteen (18) month term.
7. AMORTIZATION OF OBLIGATIONS ARISING UNDER ACQUISITION LINE
FACILITY.
(a) Within the Acquisition Line Limit and, except as
expressly set forth below, subject to all conditions applicable to the making of
Loans under the Acquisition Line Limit, absent the existence of any Event of
Default or Potential Default, upon written request of Borrower to be furnished
concurrently with any request for a Loan under the Acquisition Line Facility,
Loans under the Acquisition Line Facility which are in excess of the Borrowing
Base (but subject to the Maximum Line Amount and the Acquisition Line Limit) may
be made in amounts up to eighty (80%) percent of the orderly, liquidation value
of machinery and equipment acquired in connection with an acquisition, which
Loans shall be payable in sixty (60) equal and consecutive monthly installments,
each in an amount sufficient to fully amortize such Loans. An amount equal to
the Obligations outstanding under the Acquisition Line Facility which are being
repaid on a term basis in accordance with this Paragraph shall reduce the
Maximum Line Amount and the Acquisition Line Facility.
(b) As a condition precedent to the making of Loans
pursuant to this Paragraph 7, Borrower shall execute and deliver to Bank a term
promissory note in the principal sum of the Obligations which are to be repaid
on a term basis in accordance with this Paragraph, which promissory note, when
executed and delivered, will be valid, binding and enforceable in accordance
with its terms, will be deemed one of the "Notes" under the Loan Agreement and
shall be secured by all Collateral.
8. MANDATORY PREPAYMENT. On or before April 15 of each year
Borrower shall make a mandatory prepayment to the Obligations first, in
connection with the Supplemental Term Loan, then, in connection with the Term
Loan and finally, any amortizing Loans under the Acquisition Line Facility, in
each instance to installments payable thereunder in the inverse order of their
maturity, in an amount equal to twenty-five (25%) percent of Borrower's Excess
Cash Flow for Borrower's immediately preceding fiscal year. For the purposes of
the Financing Agreements, the terms "Excess Cash Flow" shall mean an amount
equal to Obligors' consolidated net income plus depreciation expense, less
unfinanced Capital Expenditures, payments of long-term Indebtedness and
dividends paid. This determination shall be made on the basis of Borrower's
Financial Statements for such preceding fiscal year.
9. SUPPLEMENTAL TERM LOAN. Absent the existence of any Event of
Default or Potential Default, upon written request of Borrower furnished to Bank
on or before February 15, 2000, Bank shall, on or before February 22, 2000,
under the terms and subject to the conditions set forth in the Financing
Agreements, make the Supplemental Term Loan to or for the benefit of Borrower.
Borrower acknowledges and agrees that in the event Borrower fails to request the
Supplemental Term Loan on or before February 15, 2000, or fails to satisfy any
conditions applicable to the making of the Supplemental Term Loan on or before
February 22, 2000, so that
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funding of such Supplemental Term Loan occurs on or before February 22, 2000,
the Supplemental Term Loan shall not be available to or for the benefit of
Borrower. As one of the conditions precedent to the making of the Supplemental
Term Loan, Borrower shall pay a facility fee in the amount of Eighteen Thousand
Seven Hundred Fifty ($18,750.00) Dollars.
10. SUPPLEMENTAL TERM LOAN NOTE. Concurrently with, and as a
condition precedent to, the making of the Supplemental Term Loan, Borrower shall
execute and deliver to Bank its term promissory note in the principal sum of Two
Million Five Hundred Thousand ($2,500,000.00) Dollars (the "SUPPLEMENTAL TERM
LOAN NOTE") to evidence Borrower's Obligations to repay Bank, with interest at
the Variable Term Loan Rate (as such term is amended in accordance with this
Amendment) in thirty-two (32) equal and consecutive monthly installments of
principal in the amount of Seventy-Five Thousand Seven Hundred Fifty-Seven
($75,757.00) Dollars each, plus interest as set forth therein, payable monthly,
in arrears, commencing on April 1, 2000 and continuing on the first day of each
month thereafter, followed by a final, consecutive thirty-third (33rd)
installment of all principal, interest and other sums owing in connection with
the Supplemental Term Loan, which final installment shall be due and payable on
the Expiration Date, unless the Supplemental Term Loan is sooner accelerated in
accordance with the provisions of the Loan Agreement, all as more fully
described in the Supplemental Term Loan Note, the terms, covenants and
conditions of which are hereby deemed incorporated herein by this reference and
made a part hereof.
11. SECOND REPLACEMENT REVOLVING CREDIT NOTE. Contemporaneously
herewith, Borrower shall execute and deliver to Bank its Replacement Revolving
Credit Note in the principal sum of Seventeen Million Five Hundred Thousand
($17,500,000.00) Dollars (the "SECOND REPLACEMENT REVOLVING CREDIT NOTE") to
evidence the Obligations with respect to the loans and advances made or to be
made by Bank to or for the benefit of Borrower under the Revolving Credit (as
extended hereby), all as more fully described in the Replacement Revolving
Credit Note, the terms, covenants and conditions of which are hereby deemed
incorporated herein by this reference and made a part hereof. The Replacement
Revolving Credit Note replaces and supersedes, but does not extinguish any
unpaid Obligations evidenced by or constitute a novation of, the Replacement
Revolving Credit Note.
12. SECOND REPLACEMENT TERM LOAN NOTE. Contemporaneously herewith,
Borrower shall execute and deliver to Bank its Second Replacement Term Loan Note
in the principal sum of One Million Eight Hundred Sixty-Eight Thousand Four
($1,868,004.00) Dollars (the "SECOND REPLACEMENT TERM LOAN NOTE") to evidence
the Obligations with respect to the loans and advances made or to be made by
Bank to or for the benefit of Borrower under the Term Loan (as extended hereby),
all as more fully described in the Second Replacement Term Loan Note, the terms,
covenants and conditions of which are hereby deemed incorporated herein by this
reference and made a part hereof. The Second Replacement Term Loan Note replaces
and supersedes, but does not extinguish any unpaid Obligations evidenced by or
constitute a novation of, the Replacement Term Loan Note.
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13. CONDITIONS PRECEDENT. Bank's obligations under this Amendment
are subject to the following conditions precedent (all instruments, agreements
and documents to be in form and substance satisfactory to Bank and its counsel):
(a) Borrower shall duly execute and/or deliver, or cause
to be duly executed and/or delivered, to Bank the following:
(i) This Amendment;
(ii) The Second Replacement Revolving Credit
Note;
(iii) The Second Replacement Term Loan Note;
(iv) A certified (as of the date of this
Amendment) copy of resolutions of each Obligor's board of directors authorizing
the execution, delivery and performance of this Amendment.
(v) A certificate (as of the date of this
Amendment) of each Obligor's corporate secretary as to the incumbency and
signatures of the officers of such Obligor executing this Amendment;
(vi) Copies of all documents evidencing the terms
and conditions of Borrower's Subordinated Indebtedness, together with a schedule
of all Subordinated Indebtedness (reflecting payment of the proceeds of the
Supplemental Term Loan to certain holders of Subordinated Indebtedness, which
schedule shall replace Exhibit 1.40 attached to the Loan Agreement.
(vii) The written opinion of Borrower's and BHL's
counsel, dated the date hereof and addressed to Bank; and
(viii) Such other instruments, agreements and
documents as Bank may reasonably require.
(b) No Event of Default or Potential Default shall have
occurred and be continuing.
(c) In addition to satisfaction of the condition
precedent set forth in Subparagraph 13(b) above, the delivery to Bank of the
instruments, agreements and documents referred to at Subparagraph 5(a)(viii)
above, which instruments, agreements and documents shall be furnished to Bank
concurrently with any request for a Loan under the Acquisition Line Facility,
the following shall be conditions precedent to the making of any Loan under the
Acquisition Line Facility (all instruments, agreements and documents to be in
form and substance satisfactory to Bank and its counsel):
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(i) Borrower shall furnish to Bank a written
request for a Loan under the Acquisition Line Facility, which request shall
specify the date on which Borrower is acquiring the Target for which proceeds of
the Loan are being requested;
(ii) Bank's receipt of copies of all
instruments, agreements and documents executed or to be executed and/or
delivered and exchanged in connection with the acquisition of the Target;
(iii) UCC, judgment, federal and state tax liens
against the Assets of the Target;
(iv) Bank shall be expressly entitled to rely on
any opinion furnished to Borrower in connection with its acquisition of the
Target;
(v) In connection with any request by Borrower
that Bank make amortizing Loans under the Acquisition Line Facility pursuant to
Paragraph 7 of this Amendment, an orderly liquidation appraisal of any machinery
and equipment being acquired by Borrower conducted by a reputable appraiser
selected by Borrower and reasonably acceptable to Bank;
(vi) Evidence of the consummation of the
acquisition of the Target in accordance with all applicable Law and in
accordance with all representations and warranties made to Bank by or on behalf
of Borrower in connection with Borrower's request for a Loan under the
Acquisition Line Facility; and
(vii) Such other instruments, agreements and
documents as Bank may reasonably require in connection with or to evaluate
Borrower's request for a Loan under the Acquisition Line Facility.
Borrower acknowledges and agrees that Bank shall have not less than ten (10)
Business Days from the date of Bank's receipt of all information, instruments,
agreements and documents required to be furnished to Bank as part of the
conditions precedent to the making of a Loan under the Acquisition Line Facility
(including, without limitation, evidence that the proceeds of any such loan will
be used in connection with the making by Borrower of a Permitted Acquisition) to
evaluate Borrower's request for any such Loan and, if Bank deems all conditions
precedent thereto satisfied, to make any such Loan. .
14. NO WAIVER OF DEFAULTS. This Amendment is not and shall not be
deemed to be a waiver of any defaults or Events of Default or Potential Defaults
which may now exist or hereafter occur under the Financing Agreements.
15. NO OBLIGATION TO EXTEND. Borrower acknowledges and agrees
that, notwithstanding anything to the contrary set forth in this Amendment, Bank
has no obligation to further amend the Financing Agreements or otherwise
restructure the indebtedness described in this Amendment, and that neither Bank
nor its representatives have made any agreements with,
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or commitments or representations or warranties to, Borrower (either in writing
or orally) other than as expressly stated in this Amendment. Nothing contained
in this Amendment, or any compliance with the terms of this Amendment or any of
the instruments, agreements or documents referred to in this Amendment, shall
impose any obligation on the part of Bank to consummate a further restructure of
the indebtedness described in this Amendment or provide any further financial or
other accommodation.
16. INTEGRATED AGREEMENT. This Amendment and all of the
instruments, agreements and documents executed and/or delivered or to be
executed and/or delivered in conjunction with this Amendment shall be effective
upon the date of execution hereof and thereof by all parties hereto and thereto,
and shall be deemed incorporated into and made a part of the Financing
Agreements. All such instruments, agreements and documents, and this Amendment,
shall be construed as integrated and complementary of each other, and as
augmenting and not restricting Bank's rights, remedies, benefits and security.
If, after applying the foregoing, an inconsistency still exists, the provisions
of this Amendment shall constitute an amendment thereto and shall govern and
control.
17. EXPENSES OF BANK; FACILITY FEE. Borrower shall pay all
expenses (including the reasonable fees and expenses of legal counsel to Bank)
relating to preparation, negotiation, administration and enforcement of this
Amendment and the Financing Agreements. As part of the consideration for the
increase in the Revolving Credit, and the other accommodations for the benefit
of Obligors as set forth in this Amendment, Borrower agrees to pay to Bank, on
demand, a facility fee in the amount of Sixty Thousand ($60,000.00) Dollars. The
facility fee is part of the Obligations secured by the Collateral.
18. GOVERNING LAW. This Amendment shall be governed by and
construed and interpreted in accordance with the laws of the Commonwealth of
Pennsylvania.
19. SEAL. This Amendment is intended to take effect as an
instrument under seal.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Loan and Security Agreement to be duly executed and delivered the day and year
first above written.
Attest: XXXXXX FINANCIAL CORP.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXXXX, XX. By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------ ------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxxxxxxx,
Title: Chief Financial Officer President
[Corporate Seal]
Attest: XXXXXX BROS COMPANY,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXX, XX. By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------- ------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxxxxxxx,
Title: Chief Financial Officer President
[Corporate Seal]
Attest: XXXXXX HOLDINGS, LTD.,
a Pennsylvania corporation
By: /s/ XXXXXXX X. XXXXXXX, XX. By: /s/ XXXXXX X. XXXXXXXXX
------------------------------------ ------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxxxxxxx,
Title: Chief Financial Officer President
[Corporate Seal] SUMMIT BANK
By: /s/ XXXXX X. BLOOD
-------------------
Xxxxx X. Blood,
Vice President
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