Exhibit 10.8.3
EXECUTION
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SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this "SECOND AMENDMENT") is
entered into as of March 5, 2001, by and between XXXXXXXXX & XXXX, INC., a
Massachusetts corporation (the "BORROWER") and CITIZENS BANK OF MASSACHUSETTS, a
Massachusetts bank (the "LENDER").
All capitalized terms not defined herein but defined in that certain Credit
Agreement, dated as of April 13, 2000, by and between the Borrower and the
Lender, as amended by a certain First Amendment to Credit Agreement, dated as of
December 4, 2000, by and between the Borrower and the Lender (said Credit
Agreement, as so amended, is hereinafter referred to collectively as the "CREDIT
AGREEMENT"), shall have the meanings given to such terms in the Credit
Agreement.
Preliminary Statements:
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A. Pursuant to the Credit Agreement and the other Financing Documents, the
Lender has made or agreed to make certain Loans to the Borrower; and
B. The Borrower has requested that the Lender grant certain financial
accommodations for the benefit of the Borrower with respect to the Loans, all as
more particularly described herein; and
C. The Lender is unwilling to comply with the foregoing request of
the Borrower, unless and until the Borrower has entered into, and agreed to, all
of the terms and conditions of, this Second Amendment;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Waiver of Certain Events of Default. At the request of the Borrower, the
Lender hereby waives, for the Borrower's fiscal quarter ended December 31, 2000
only, any Default or Event of Default which has occurred or may have occurred as
a result of the failure of the Borrower to comply with any of the financial
covenants contained in subsection 6.1 of the Credit Agreement. The foregoing
waiver shall operate solely with respect to the matters and period of time
described herein, and shall not impair any right or power accruing to the Lender
upon the occurrence or continuance of any other Default or Event of Default
under the Credit Agreement and the other Financing Documents, nor shall the
waiver contained herein be construed as a waiver of any such other Default or
Event of Default or as an acquiescence thereto.
2. Amendments to Credit Agreement. The definition of the term "Maximum
Amount" contained in Appendix A of the Credit Agreement is hereby amended,
replaced and superseded in its entirety with the following definition:
"'MAXIMUM AMOUNT': $1,900,000.00, which amount shall automatically and
without notice be reduced by $50,000.00 on the 1st and the 15th of each
calendar month, commencing as of March 15, 2001 and continuing thereafter
until such time as the Lender receives, in accordance with the provisions
of subsection 5.2(b), a Compliance Certificate which indicates that (a) the
Borrower is in compliance with all of the financial covenants contained in
subsection 6.1 of this Agreement, and (b) no Event of Default has occurred
and is continuing hereunder, and there does not now exist any circumstance
or set of facts, which with the passage of time or the giving of notice or
both would constitute or result in any such Event of Default."
3. Representations and Warranties. The Borrower hereby acknowledges and
confirms that all of its representations and warranties contained in the Credit
Agreement and in all of the other Financing Documents are and remain true,
correct and complete as of the date hereof as if made as of the date hereof,
except as the same may expressly relate to an earlier date.
4. No Events of Default. The Borrower hereby represents and warrants to the
Lender that except as otherwise provided in Section 1 of this Second Amendment,
no Event of Default has occurred and is now continuing under the Credit
Agreement or under any of the other Financing Documents, and there does not now
exist any circumstance or set of facts, which with the passage of time or the
giving of notice or both would constitute or result in an Event of Default under
the Credit Agreement or under any of the other Financing Documents.
5. Ratification of Financing Documents. Subject to the amendments expressly
set forth in Section 2 of this Second Amendment, the Borrower hereby ratifies
and reaffirms all of the terms and provisions of the Financing Documents and
hereby expressly acknowledges and confirms that the terms and provisions of each
thereof, as amended hereby, shall and do remain in full force and effect. Any
reference to the Credit Agreement contained in any of the Financing Documents
shall now mean and refer to the Credit Agreement, as amended by this Second
Amendment.
6. Conditions Precedent. The effectiveness of this Second Amendment and the
obligations of the Lender hereunder are subject to the satisfaction of each of
the following conditions precedent, all of which shall be in form, scope and
substance satisfactory to the Lender in all respects:
(a) Second Amendment. The Lender shall have received this Second
Amendment, as executed by a duly authorized officer of the Borrower, with
the signature of such officer duly witnessed and notarized hereon.
(b) Authority Documents. The Lender shall have received a Certificate
of Assistant Clerk of the Borrower, dated of even date herewith,
certifying: (i) the adoption by all of the Board of Directors of the
Borrower of resolutions authorizing and approving
the transactions contemplated by this Second Amendment; (ii) since April
13, 2000, there have been no amendments, modifications or changes to the
Articles of Organization or By-Laws of the Borrower, and that said Articles
of Organization and By-Laws continue to remain in full force and effect;
and (iii) the name and signatures of the officers of the Borrower
authorized to sign, for and on behalf of the Borrower, this Second
Amendment.
(c) Incumbency Certificate. The Lender shall have received a
certificate of the Borrower, dated as of the date hereof, as to the
incumbency and signature of the officers of the Borrower executing this
Second Amendment, in form and substance reasonably satisfactory to the
Lender, as executed by the Assistant Clerk of the Borrower.
(d) Certificate of Corporate Good Standing. The Lender shall have
received a Certificate of Corporate Legal Existence and Good Standing for
the Borrower, as issued by the Massachusetts Secretary of State.
(e) Fees, Costs and Expenses. The Lender shall have received payment
or reimbursement from the Borrower for all of the fees, costs and expenses
(including reasonable legal fees, costs and expenses) incurred by the
Lender in connection with the transactions contemplated by this Second
Amendment.
(f) Other. The Borrower shall have delivered to the Lender such other
documents and instruments as the Lender may reasonably require.
7. Miscellaneous.
7.1 No Other Amendments; No Waiver. Except as expressly set forth
herein, nothing contained herein shall be construed to modify, amend or
otherwise alter any of the terms or provisions of any of the Financing
Documents; nothing contained herein shall constitute a waiver of or bar to
any rights or remedies available to the Lender, or a waiver of any Event of
Default under the Financing Documents on any occasion, other than as
expressly set forth herein; and nothing contained herein shall constitute
an agreement by the Lender or obligate the Lender to take or refrain from
taking any action.
7.2 Execution; Counterparts. This Second Amendment may be executed in
any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears hereon, and all of which shall
together constitute one and the same instrument. This Second Amendment
shall become binding when one or more counterparts hereof, individually or
taken together, shall bear the signatures of all of the parties reflected
hereon as the signatories.
7.3 Successors and Assigns. This Second Amendment shall be binding
upon and inure to the benefit of the parties hereto, and their respective
representatives, successors and assigns.
7.4 Governing Law. This Second Amendment and all questions relating to
its validity, interpretation, performance and enforcement shall be governed
by and construed
in accordance with the laws of The Commonwealth of Massachusetts,
notwithstanding any conflict-of-law provisions to the contrary.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed and delivered under seal by their proper and duly authorized
officers as of the date first above written.
WITNESS: XXXXXXXXX & XXXX, INC.
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx Xxxxxx Xxxxx X. Xxxxxx, President
WITNESS: CITIZENS BANK OF MASSACHUSETTS
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx,
Senior Vice President
COMMONWEALTH OF MASSACHUSETTS
Norfolk County, ss. March 21, 2001
Then personally appeared the above-named Xxxxx X. Xxxxxx, as President of
Xxxxxxxxx & Xxxx, Inc., and acknowledged the foregoing instrument to be his free
act and deed and the free act and deed of Xxxxxxxxx & Xxxx, Inc., before me.
/s/ Xxxxx Xxxxxxxx
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Notary Public
My commission expires: 6/21/07
[AFFIX NOTARIAL SEAL]
COMMONWEALTH OF MASSACHUSETTS
Plymouth County, ss. March 21, 2001
Then personally appeared the above-named Xxxxxxx X. Xxxxxx, as Senior Vice
President of Citizens Bank of Massachusetts, and acknowledged the foregoing
instrument to be his free act and deed and the free act and deed of Citizens
Bank of Massachusetts, before me.
/s/ Xxxxxxxxx Xxxxxxxxx
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Notary Public
My commission expires: Aug. 27, 2004
[AFFIX NOTARIAL SEAL]
