Exhibit (4)(c)(7)
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THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
November 14, 1996, by and between X.X. XXXXXX COMPANY, a North Carolina
corporation (the "Borrower"), and MELLON BANK, N.A., a national banking
association (the "Lender").
RECITALS
A. The Borrower and the Lender are parties to a certain Credit Agreement
dated as of August 15, 1995 (as amended by the "First Amendment" and the
"Second Amendment", each defined below, the "Credit Agreement") pursuant to
which the Lender established certain credit facilities for the Borrower in
order to provide working capital financing and to refinance certain existing
indebtedness. Except as otherwise defined herein, capitalized terms used in
this Amendment shall have the same meaning as in the Credit Agreement.
B. As a result of certain Events of Default, the Borrower and the Lender
entered into the First Amendment to Credit Agreement dated as of April 15,
1996 ("First Amendment"). As a result of further Events of Default, the
Borrower and the Lender entered into the Second Amendment to Credit Agreement
dated as of October 18, 1996 ("Second Amendment").
C. Certain additional Events of Default have occurred, as more fully
described in Exhibit A attached hereto.
D. As a consequence of these Events of Default, the Borrower and the Lender
have agreed to reduce the amount of the Revolving Credit Commitment and to
amend certain other terms and provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained and intending to be legally bound hereby, the parties hereto
agree as follows:
AMENDMENTS
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1. The following definition set forth in Article 1 of the Credit Agreement
shall be deleted and restated in its entirety as follows:
"REVOLVING CREDIT COMMITTED AMOUNT" shall mean Thirteen Million Dollars
($13,000,000).
2. The following additions shall be made to Article 1, DEFINITIONS, in
alphabetical order:
"THIRD AMENDMENT" shall mean the Third Amendment to Credit Agreement,
dated as of November 14, 1996, by and between the Borrower and the
Lender.
"THIRD AMENDMENT CLOSING DATE" shall mean November 14, 1996.
REPRESENTATIONS AND WARRANTIES
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3. Other Representations and Warranties. Each of the representations and
warranties (as amended hereby) made by the Borrower in Article 3 of the
Credit Agreement are true and correct on and as of the Third Amendment
Closing Date and are incorporated herein as though fully set forth.
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CONDITIONS PRECEDENT
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4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. The obligation of the
Lender to enter into this Amendment is subject to the satisfaction,
immediately prior to or concurrently with the execution of the Amendment,
of the following conditions precedent:
(a) CORPORATE PROCEEDINGS. The Lender shall have received certificates
by the Secretary or Assistant Secretary of the Borrower dated as of
the Second Amendment Closing Date as to (i) true copies of the
articles of incorporation and by-laws (or other constituent
documents) of the Borrower in effect on such date (which, in the case
of articles of incorporation or other constituent documents filed or
required to be filed with the Secretary of State or other
Governmental Authority in its jurisdiction of incorporation, shall be
certified to be true, correct and complete by such Secretary of State
or other Governmental Authority not more than thirty (30) days before
the date of this Amendment), (ii) true copies of all corporate action
taken by the Borrower relative to this Amendment and the other
Amendment Documents and (iii) the incumbency and signature of the
respective officers of the Borrower executing this Amendment and the
other Amendment Documents, together with satisfactory evidence of the
incumbency of such Secretary or Assistant Secretary. The Lender
shall have received certificates from the appropriate Secretaries of
State or other applicable Governmental Authorities dated October 4,
1996 showing the good standing of the Borrower in its state of
incorporation and each state in which the Borrower does business, if
applicable in such state.
(b) OFFICERS' CERTIFICATES. The Lender shall have received certificates
from such officers of the Borrower in the form of Exhibit C attached
hereto.
(c) FEES, EXPENSES, ETC. All fees and other compensation (including,
without limitation, attorneys' fees) required to be paid to the
Lender pursuant hereto or pursuant to any other written agreement on
or prior to the Third Amendment Closing Date shall have been paid or
received.
(d) OTHER CONDITIONS PRECEDENT. Each of the conditions precedent set
forth in Section 4.02 of the Credit Agreement shall have been met.
MISCELLANEOUS
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5. REAFFIRMATION; NO WAIVER. Except as expressly modified herein, the terms
of the Credit Agreement, the Security Documents and all of the Loan
Documents executed in connection therewith, remain in full force and
effect in accordance with their respective terms and conditions, are in
no manner impaired hereby and, are hereby reaffirmed by all of the
parties. In the event of any conflict between this Amendment and any
other Loan Document, the provisions of this Amendment shall prevail.
6. FEES, EXPENSES, ETC. Within ten (10) days of receipt of invoice, the
Borrower shall pay all fees and other compensation (including, without
limitation, attorneys' fees, costs of searches, field examination
expenses, filing and recording fees) required to be paid to the Lender
pursuant hereto, pursuant to any Amendment Document or pursuant to any
other written agreement.
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7. SEVERABILITY. The provisions of this Amendment are intended to be
severable. If any provision of this Amendment shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the
validity or enforceability thereof in any other jurisdiction or the
remaining provisions hereof in any jurisdiction.
8. PRIOR UNDERSTANDINGS. This Amendment and the other Amendment Documents
supersede all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto relating to the
transactions provided for herein and therein.
9. COUNTERPARTS. 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.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and inure
to the benefit of the Borrower, the Lender, all future holders of the
Notes, and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights hereunder or
interests herein without the prior written consent of the Lender, and
any purported assignment without such consent shall be void.
11. GOVERNING LAW. THIS AMENDMENT AND ALL OTHER AMENDMENT DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER
AMENDMENT DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA, WITHOUT REGARD TO
CHOICE OF LAW PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Amendment as of the date first
above written.
ATTEST: X.X. XXXXXX COMPANY
By: XXXXXXX X. XXXXXX By: XXXX X. XXXXXXXX
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[Corporate Seal] Xxxx X. Xxxxxxxx, President
MELLON BANK, N.A.
By: XXXXX X. XXXXX
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Xxxxx X. Xxxxx, Vice President
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EXHIBIT A
EVENTS OF DEFAULT
X.X. Xxxxxx Company's violation of each of the following covenants, measured
pursuant to its financial statements dated October 28, 1995, constituted a
separate Event of Default under the Credit Agreement dated August 15, 1995 by
and between X.X. Xxxxxx Company and Mellon Bank, N.A. (the "Credit
Agreement"):
1) Section 6.01(b) of the Credit Agreement -
Consolidated Leverage Ratio;
2) Section 6.01(c) of the Credit Agreement -
Consolidated Tangible Net Worth; and
3) Section 6.01(e) of the Credit Agreement -
Consolidated Net Income.
4) Section 6.01(D) of the Credit Agreement -
Consolidated Working Capital.
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