THIRD AMENDMENT TO LOAN AGREEMENT
This THIRD AMENDMENT TO LOAN AGREEMENT (the "Agreement") is dated as of the
31st day of October, 2000 and is by and between SUMMIT BANK, a banking
institution of the State of New Jersey having an office at 000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Bank"); and XXXX GROUP iNC., a Delaware
corporation having its principal executive offices located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Borrower").
WITNESSETH:
WHEREAS, the Borrower and the Bank have heretofore entered into that
certain Loan Agreement dated June 24, 1998, as amended by a First Amendment to
Loan Agreement dated as of July 31, 1999 and as further amended by a Second
Amendment to Loan Agreement dated as of November 1, 1999 (the "Loan Agreement");
and
WHEREAS, the Borrower has requested the Bank to make certain additional
amendments to the Loan Agreement and the Bank has agreed to do so upon the terms
and conditions described herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Except as otherwise indicated herein, all words and terms
defined in the Loan Agreement shall have the same meanings when used herein.
2. Amendment to Loan Agreement. The following definition appearing in
Section 1.1 of the Loan Agreement is hereby amended to read in its entirety as
follows:
"Revolving Loan Termination Date" shall mean January 31, 2001.
3. Substitute Note. Concurrently herewith, the Borrower is executing and
delivering to the Bank a substitute revolving note in the maximum principal
amount of $4,500,000 (the "Substitute Note") in substitution for, but not in
repayment of, that certain Substitute Revolving Note dated as of November 1,
1999 in the maximum principal amount of $4,500,000 (the "Prior Note") previously
issued by the Borrower to the Bank. The execution and delivery by the Borrower
of the Substitute Note pursuant to the provisions hereof shall not constitute a
refinancing, repayment, accord and satisfaction or novation of the Prior Note or
the indebtedness evidenced thereby.
4. Representations and Warranties. In order to induce the Bank to enter
into this Agreement and amend the Loan Agreement as provided herein, the
Borrower hereby represents and warrants to the Bank that:
(a) All of the representations and warranties of the Borrower set
forth in Article IV of the Loan Agreement are true, complete and correct in all
material respects on and as of the date hereof with the same force and effect as
if made on and as of the date hereof and as if set forth at length herein
(except that representations and warranties which are expressly stated to be as
of a certain date are true, complete and correct in all material respects as of
such certain date).
(b) No Default or Event of Default presently exists and is continuing
on and as of the date hereof.
(c) Since the date of the Borrower's most recent financial statements
delivered to the Bank, no material adverse change has occurred in the business,
assets, liabilities, financial condition or results of operations of the
Borrower, and no event has occurred or failed to occur which is likely to have a
material adverse effect on the business, assets, liabilities, financial
condition or results of operations of the Borrower.
(d) The Borrower has full power and authority to execute, deliver and
perform any action or step which may be necessary to carry out the terms of this
Agreement and all other agreements; documents and instruments executed and
delivered by the Borrower to the Bank concurrently herewith or in connection
herewith (collectively, the "Amendment Documents"); each Amendment Document to
which the Borrower is a party has been duly executed and delivered by the
Borrower and is the legal, valid and binding obligation of the Borrower
enforceable in accordance with its terms, subject to any applicable bankruptcy,
insolvency, general equity principles or other similar laws affecting the
enforcement of creditors' rights generally.
(e) The execution, delivery and performance of the Amendment Documents
will not (i) violate any provision of any existing law, statute, rule,
regulation or ordinance, (ii) conflict with, result in a breach of, or
constitute a default under (A) the certificate of incorporation or by-laws of
the Borrower, (B) any order, judgment, award or decree of any court,
governmental authority, bureau or agency, or (C) any mortgage, indenture, lease,
contract or other agreement or undertaking to which the Borrower is a party or
by which the Borrower or any of its properties or assets may be bound, or (iii)
result in the creation or imposition of any lien or other encumbrance upon or
with respect to any property or asset now owned or hereafter acquired by the
Borrower.
(f) No consent, license, permit, approval or authorization of,
exemption by, notice to, report to, or registration, filing or declaration with
any person is required in connection with the execution, delivery, performance
or validity of the Amendment Documents or the transactions contemplated thereby.
5. No Defenses. The Borrower expressly acknowledges and agrees that (a) as
of October 31, 2000, the outstanding principal amount of (i) the Revolving Loan
is $0, (ii) all Acquisition Advances is $0, and (iii) the Term Loan is
$2,390,050.60, and (b) such amounts, together with accrued interest thereon, are
owed to the Bank without defense, offset or counterclaim of any nature
whatsoever. The Borrower hereby waives and releases all claims against the Bank
with respect to the Obligations and the documents evidencing or securing the
same.
6. Bank Costs. The Borrower shall reimburse the Bank on demand for all
costs, including legal fees and expenses, incurred by the Bank in connection
with this Agreement, the other Amendment Documents and the transactions
referenced herein. If such amounts are not paid within ten days of the Bank's
request therefor, the Borrower hereby authorizes the Bank to charge the
Borrower's account for the amount of such fees and expenses.
7. No Change. Except as expressly set forth herein, all or the terms and
provisions of the Loan Agreement shall continue in full force and effect.
8. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts and all such counterparts taken together shall constitute
one and the same instrument.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this Agreement
as of the date above written.
SUMMIT BANK
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Vice President
XXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Senior Vice President
and Chief Financial Officer
