Exhibit 10.29
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (the "Fifth Amendment"), is made and
entered into this __3rd___ day of ___March___, 2006, by and among XXXXXX
INDUSTRIES, INC. (the "Borrower"), MANUFACTURERS AND TRADERS TRUST COMPANY,
successor in interest to Allfirst Bank, and XXXXXX BANK (each a "Lender" and
collectively, the "Lenders") and MANUFACTURERS AND TRADERS TRUST COMPANY,
successor in interest to Allfirst Bank, as agent (in such capacity, the
"Agent").
B A C K G R O U N D
A. Borrower has borrowed from Lenders and desires to continue to borrow
from Lenders in connection with the operation of its business(es). On June 19,
2002, the parties entered into a Loan Agreement, upon which monies have been
advanced, which was amended by an Amendment to Loan Agreement dated May 2, 2003,
a Second Amendment to Loan Agreement dated April 20, 2004, a Third Amendment to
Loan Agreement dated January 28, 2005 and a Fourth Amendment to Loan Agreement
dated June __9th____, 2005 (as amended, the "Loan Agreement"). The Loan
Agreement is incorporated herein by reference and made a part hereof. All
capitalized terms used herein without definition which are defined in the Loan
Agreement shall have the meanings set forth therein.
B. Borrower has requested Lenders to amend certain provisions of the Loan
Agreement.
C. The parties desire to enter into this Amendment to effectuate such
amendments.
D. Borrower has no defense, charge, defalcation, claim, plea, demand or
set-off against the Loan Agreement or any of the Loan Documents.
NOW, THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
covenant and agree as follows:
1. That the above Background is incorporated herein by reference.
2. That Section 1.1 of the Loan Agreement be and hereby is amended by
amending the definition of "Revolving Credit Maturity Date" to read in its
entirety as follows:
"Revolving Credit Maturity Date": March 31, 2008, or such earlier date on
which the Revolving Credit Notes shall become due and payable, whether by
acceleration or otherwise.
3. That the Borrower reaffirms and restates the representations and
warranties set forth in Section 7 of the Loan Agreement, as amended by this
Fifth Amendment, and all such representations and warranties shall be true and
correct on the date hereof with the same force and effect as if made on such
date, except as they may specifically refer to an earlier date(s). The Borrower
represents and warrants (which representations and warranties shall survive the
execution and delivery hereof) to the Agent and the Lenders that (i) this Fifth
Amendment has been duly authorized, executed and delivered and constitute a
legal, valid and binding obligation of the Borrower, and is enforceable in
accordance with its terms; (ii) the Borrower is not in default under the Loan
Agreement or any of the other Loan Documents, and the Borrower is in full
compliance with all of the terms and conditions thereof; (iii) no event exists,
or is likely to exist in the future, which with the passage of time, notice, or
both, will constitute a default under the Loan Agreement or any of the other
Loan Documents; and (iv) there have been no material adverse changes in the
Borrower's financial condition or operations which would cause the Borrower to
be in default under any of the financial covenants contained in the Loan
Documents. Borrower shall update all Schedules as of the date of this Amendment.
4. That the terms and conditions, paragraph sections, collateral and
guaranty requirements, representations and warranties of the Loan Agreement and
Loan Documents, together with all understandings by and between the parties to
this Fifth Amendment evidenced by writings of the same or subsequent date not in
conflict with the above modifications under this Fifth Amendment shall remain in
full force and effect as the agreement of the parties relative to the Loans, and
are hereby ratified, reaffirmed and confirmed. Any past, present or future delay
or failure of the Agent and the Lenders to demand or enforce strict performance
of each term and condition of the Loan Agreement and Loan Documents, and any
past, present or future delay or failure of the Agent or the Lenders to exercise
any right, power or privilege shall not be deemed or construed as a waiver with
respect to the same or any other matter, or preclude the future exercise of such
right, power or privilege, or be construed or deemed to be a waiver of or
acquiescence in any such default.
5. That all references to the Loan Agreement, the Loan Documents and the
other documents and instruments delivered pursuant to or in connection
therewith, as well as in writings of the same or subsequent date, shall mean the
Loan Agreement as amended hereby and as each may in the future be amended,
restated, supplemented or modified from time to time. Further, all references to
Allfirst Bank in the Loan Agreement, the Loan Documents and the other documents
and instruments delivered pursuant to or in connection therewith shall be deemed
to have been made and to refer to Manufacturers and Traders Trust Company, a New
York banking corporation, successor in interest to Allfirst Bank.
6. That the parties hereto shall, at any time, and from time to time
following the execution of this Fifth Amendment, execute and deliver all such
further instruments and take all such further action as may be reasonably
necessary or appropriate in order to carry out the provisions of this Fifth
Amendment.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the Borrower,
the Lenders and the Agent have caused this Fifth Amendment to be executed by
their proper corporate officers thereunto duly authorized as of the day and year
first above written.
ATTEST: XXXXXX INDUSTRIES, INC.,
/S/ Xxxx Xxxxxx By: /S/ Xxxxx Xxxx
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Xxxx Xxxxxx, President Xxxxx Xxxx, CEO
/S/ Xxxx Xxxxxx By: /S/ Xxxxxx X. Xxxxxxxx
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Xxxx Xxxxxx, President Xxxxxx X. Xxxxxxxx, Vice President
MANUFACTURERS AND TRADERS TRUST COMPANY,
successor in interest to Allfirst Bank,
in its capacities as Agent and Lender
By: /S/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Title: Vice President
XXXXXX BANK
By: /S/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
Title: Senior Vice President
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