Exhibit 10
AMENDMENT AND MODIFICATION
TO LOAN AGREEMENT
THIS AMENDMENT AND MODIFICATION TO LOAN AGREEMENT (the "Amendment") is made
effective as of August 19, 2002 by and among XXXXXX HOLDINGS, LTD., a
Pennsylvania corporation ("BHL"), XXXXXX FINANCIAL CORP., a Delaware corporation
("BFC"), XXXXXX BROS COMPANY., a Pennsylvania corporation ("BBC"), COPPER CRAFT,
INC., a Texas corporation ("CCI"), XXXXXX METAL PRODUCTS, INC., a Georgia
corporation ("WMPI") (BHL, BFC, BBC, CCI and WMPI being each individually
referred to as a "Borrower" and collectively as the "Borrowers") and WACHOVIA
BANK, NATIONAL ASSOCIATION ("Bank").
BACKGROUND
A. Borrowers and Bank have entered into a certain Loan and Security
Agreement dated June 13, 2002 (as amended and as the same may be amended,
supplemented or restated from time to time, the "Loan Agreement").
B. Borrowers have requested and Bank has agreed to amend the Loan
Agreement, inter alia, to extend to Borrowers the proceeds of Term Loan B (not
initially funded on the Closing Date) in accordance with the terms of the Loan
Agreement and that certain Post-Closing Letter Agreement among Borrowers and
Bank dated June 13, 2002.
C. Capitalized terms not otherwise defined in this Amendment shall have
the meanings set forth therefor in the Loan Agreement.
NOW THEREFORE, the parties hereto, intending to be legally bound, agree as
follows:
1. Term Loan B Maturity Date. The defined term "Term Loan B Maturity
Date" as defined in Section 1.1 of the Loan Agreement shall be and is hereby
amended to read, in its entirety, as follows:
"Term Loan B Maturity Date" means August 1, 2004.
2. Interest Payments on Term Loan B. Section 9.5 of the Loan
Agreement shall be and is hereby amended to read, in its entirety, as follows:
"9.5 Interest Payments on Term Loan B. Borrowers agree to pay to Bank
interest on the principal balance of any LMIR Rate Loan and any LIBOR
Rate Loan under Term Loan B on the first day of each calendar month,
commencing on September 1, 2002, and on the Term Loan B Maturity
Date."
3. Principal Payments on Term Loan B. Section 9.6 of the Loan
Agreement shall be and is hereby amended to read, in its entirety, as follows:
"9.6 Principal Payments on Term Loan B. Borrowers agree to pay to Bank
the principal balance of Term Loan B in twenty-three (23) equal and
consecutive monthly installments of $100,000 each, on the first day of
each calendar month, commencing on September 1, 2002, and in one (1)
final payment of the remaining principal balance of Term Loan B plus
all accrued and unpaid interest thereon on the Term Loan B Maturity
Date."
4. Term Note B. Coincident with the execution of this Amendment,
Borrowers shall execute and deliver to Bank a new promissory note of even date
herewith, evidencing the indebtedness of Borrowers to Bank under Term Loan B in
the original principal amount of $2,400,000. All references to the Term Note B
in the Loan Agreement and the other Loan Documents shall be deemed to be
references to such new Note.
5. Covenants and Representations. Each Borrower hereby:
5.1 ratifies, confirms and agrees that the Loan Agreement, as
amended by this Amendment, and all other Loan Documents are valid binding and in
full force and effect as of the date of this Amendment, and enforceable in
accordance with their terms.
5.2 agrees that it has no defense, set-off, counterclaim or
challenge against the payment of any sums owed or owing under the Loan Documents
or the enforcement of any of the terms of the Loan Documents.
5.3 ratifies, confirms and continues all liens, security
interests, pledges, rights and remedies granted to Bank in the Loan Documents
and agrees that such liens, security interests and pledges shall secure all of
the Obligations under the Loan Documents as amended by this Amendment.
5.4 represents and warrants that all representations and
warranties in the Loan Documents are true and complete as of the date of this
Amendment.
5.5 agrees that its failure to comply with or perform any of its
covenants or agreements in this Amendment will constitute an Event of Default
under the Loan Documents.
5.6 represents and warrants that no condition or event exists
after taking into account the terms of this Amendment which would constitute an
Event of Default (or will, upon the giving of notice or the passage of time, or
both constitute and Event of Default).
5.7 represents and warrants that the execution and delivery of
this Amendment by Borrowers and all documents and agreements to be executed and
delivered pursuant to this Amendment:
(a) have been duly authorized by all requisite corporate
action of each Borrower;
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(b) will not conflict with or result in a breach of, or
constitute a default (or with the passage of time or the giving of notice or
both, will constitute a default) under, any of the terms, conditions, or
provisions of any applicable statute, law, rule, regulation or ordinance or any
Borrower's articles of incorporation, by-laws or any indenture, mortgage, loan
or credit agreement or instrument to which any Borrower is a party or by which
it may be bound or affected, or any judgment or order of any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign; and
(c) will not result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the property or
assets of any Borrower under the terms or provisions of any such agreement or
instrument, except liens in favor of Bank.
6. Conditions. The obligation of Bank to amend the terms of the Loan
Agreement as provided in this Amendment is subject to the fulfillment, to the
satisfaction of Bank, of each of the following conditions. All of such
agreements, documents and other items must be in form, content and all other
respects satisfactory to Bank in its sole discretion. Bank is not waiving a
breach of any warranty or representation made by any Borrower hereunder or any
agreement, document, or instrument delivered to Bank or otherwise referred to
herein, and any claims and rights of the Bank resulting from any breach or
misrepresentation by any Borrower are specifically reserved by the Bank.
6.1 Executed Documents. Bank shall have received each of the
following documents, duly executed and notarized (if applicable):
(a) Term Note B in the face amount of $2,400,000.00
executed by Borrowers;
(b) A Payoff Letter executed by FINOVA Mezzanine Capital,
Inc., in form and content acceptable to Bank; and
(c) such other documents and agreements as Bank may
require.
6.2 Authorizing Resolutions. Bank shall have received a
certificate from each Borrower attesting to the resolutions of the appropriate
governing body, authorizing the execution, delivery, and performance of this
Amendment and the other documents to which Borrowers are a party and authorizing
specific officers of Borrowers to execute the same.
6.3 Representations and Warranties. All representations and
warranties of Borrowers set forth in the Loan Documents shall be true at and as
of the date hereof.
6.4 No Default. No condition or event shall exist or have
occurred which would constitute a default or an Event of Default hereunder.
6.5 Other. All other documents and legal matters in connection
with the transactions contemplated by this Amendment shall have been delivered,
executed or recorded.
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7. Amended Documents and Agreements. All references to any
documents, agreements or other items defined in the Loan Documents shall include
such documents, agreements or other items as they may be amended, modified,
restated or supplemented from time to time and any replacement documents,
agreements or other items.
8. Additional Documents; Further Assurances. Borrowers covenant and
agree to execute and deliver to Bank, or to cause to be executed and delivered
to Bank contemporaneously herewith, at the sole cost and expense of Borrowers,
any and all other documents, agreements, statements, resolutions, certificates,
consents and information as Bank may require in connection with the matters or
actions described herein. Borrowers further covenant and agree to execute and
deliver to Bank, or to cause to be executed and delivered, at the sole cost and
expense of Borrowers, from time to time, any and all other documents,
agreements, statements, certificates and information as Bank shall request to
evidence or effect the terms hereof or to enforce or protect Bank's rights. All
of such documents, agreements, statements, certificates and information shall be
in form and content acceptable to Bank in its sole discretion.
9. Other References. All references in the Loan Agreement and all
the Loan Documents to the term "Loan Documents" shall mean the Loan Documents as
defined therein and all documents executed and delivered by any Borrower
pursuant to and in connection herewith. All references in the Loan Agreement and
all the Loan Documents to the term "Obligations" shall include all obligations
and liability of Borrowers to Bank under the Loan Agreement, as amended hereby,
including without limitation, all obligations and liability of Borrowers to Bank
under Term Note B.
10. Certain Fees, Costs, Expenses and Expenditures. Borrowers agree
to pay all of Bank's costs and expenses in connection with the review,
preparation, negotiation, documentation and closing of this Amendment and the
consummation of the transactions contemplated hereunder, including without
limitation, costs, fees and expenses of counsel retained by Bank and all fees
related to filings, recording of documents and searches, whether or not the
transactions contemplated hereunder are consummated. Nothing contained herein
shall limit in any manner whatsoever Bank's right to reimbursement under any of
the Loan Documents.
11. No Novation. Nothing contained herein and no actions taken
pursuant to the terms hereof are intended to constitute a novation of the Loan
Agreement or any of the Loan Documents and shall not constitute a release,
termination or waiver of any of the liens, security interests, rights or
remedies granted to Bank in the Loan Documents.
12. No Waiver. Except as otherwise provided herein, nothing herein
contained and no actions taken by Bank in connection herewith shall constitute
nor shall they be deemed to be a waiver, release or amendment of or to any
rights, remedies, or privileges afforded to Bank under the Loan Documents.
Nothing herein shall constitute a waiver by Bank of any Borrower's compliance
with the terms of the Loan Documents, nor shall anything contained herein
constitute an agreement by Bank to enter into any further amendments with
Borrowers.
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13. Inconsistencies. To the extent of any inconsistency between the
terms and conditions of this Amendment and the terms and conditions of the other
Loan Documents, the terms and conditions of this Amendment shall prevail. All
terms and conditions of the Loan Documents not inconsistent herewith shall
remain in full force and effect and are hereby ratified and confirmed by
Borrowers.
14. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
15. No Third Party Beneficiaries. The rights and benefits of this
Amendment and the Loan Documents shall not inure to the benefit of any third
party.
16. Time of the Essence. Time is of the essence in the performance by
Borrowers of all their obligations hereunder.
17. Headings. The headings of the Sections of this Amendment are
inserted for convenience only and shall not be deemed to constitute a part of
this Amendment.
18. Severability. The provisions of this Amendment and all other Loan
Documents are deemed to be severable, and the invalidity or unenforceability of
any provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
19. Modifications. No modifications of this Amendment or any of the
Loan Documents shall be binding or enforceable unless in writing and signed by
or on behalf of the party against whom enforcement is sought.
20. Holidays. If the day provided herein for the payment of any
amount or the taking of any action falls on a Saturday, Sunday or public holiday
at the place for payment or action, then the due date for such payment or action
will be the next succeeding business day.
21. Law Governing. This Amendment has been made, executed and
delivered in the Commonwealth of Pennsylvania and will be construed in
accordance with and governed by the laws of such Commonwealth, without regard to
any rules or principles regarding conflicts of law or any rule or canon of
construction which interprets agreements against the draftsman.
22. Counterparts; Facsimile Signatures. This Amendment may be
executed in any number of counterparts, all of which taken together constitute
one and the same instrument, and any of the parties hereto may execute this
Amendment by signing any such counterpart. Any signature delivered via facsimile
shall be deemed an original signature hereto.
23. Waiver of Right to Trial by Jury. BORROWERS AND BANK WAIVE ANY
RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a)
ARISING UNDER THIS AMENDMENT, (b) ARISING UNDER ANY OF THE OTHER LOAN DOCUMENTS
OR (c) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF
BORROWERS, WITH RESPECT TO THIS AMENDMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR
THE TRANSACTIONS RELATED HERETO OR THERETO, IN
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EACH CASE WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. BORROWERS AND BANK
AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AMENDMENT
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF BORROWERS AND BANK TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY. EACH BORROWER ACKNOWLEDGES THAT IT HAS HAD THE
OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING THIS SECTION, THAT IT FULLY
UNDERSTANDS ITS TERMS , CONTENT AND EFFECT, AND THAT IT VOLUNTARILY AND
KNOWINGLY AGREES TO THE TERMS OF THIS SECTION.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
BORROWERS:
XXXXXX HOLDINGS, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx., CFO
XXXXXX FINANCIAL CORP.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx., CFO
XXXXXX BROS COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx., CFO
COPPER CRAFT, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx., CFO
XXXXXX METAL PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
Xxxxxxx X. Xxxxxxx, Xx., CFO
BANK:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx, Senior Vice President
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