Exhibit 10(viii)
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Loan and Security Agreement is made this 26th
day of February, 2002 by and between CONGRESS FINANCIAL CORPORATION, a Delaware
corporation ("Lender") and BONTEX, INC., a Virginia corporation ("Borrower").
RECITALS
Borrower and Lender entered into a certain Loan and Security Agreement
dated January 26, 2000 (together with all amendments, modifications, addenda and
supplements, the "Loan Agreement") and related documents, evidencing certain
financing arrangements between Lender and Borrower as more particularly
described therein.
Borrower and Lender entered into an Amendment to Loan and Security
Agreement on November 13, 2000, a Second Amendment to Loan and Security
Agreement on September 12, 2001 and a Third Amendment to Loan and Security
Agreement on January 22, 2002.
Borrower has requested an extension of the Maturity Date under the Loan
Agreement. Lender is willing to make the said modifications and to extend the
Maturity Date, subject to the terms and conditions of this Amendment
("Amendment").
NOW, THEREFORE, in consideration of the mutual conditions and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree, as of the date hereof (unless an earlier date is specified
herein), that the Loan Agreement is amended, as follows:
1. TERM. Section 11.1(a) of the Loan Agreement is hereby
amended to read as follows:
"(a) This Agreement and the other Financing
Agreements shall become effective as of the date
set forth on the first page hereof and shall continue
in full force and effect for a term ending on March
11, 2002 ("Maturity Date"), provided, that, this
Agreement and all other Financing Agreements must be
terminated simultaneously. Upon the Maturity Date,
Borrower shall pay to Lender, in full, all
outstanding and unpaid Obligations and shall furnish
cash collateral to Lender in such amounts as Lender
determines are reasonably necessary to secure Lender
from loss, cost, damage or expense, including
attorneys' fees and legal expenses, in connection
with any contingent Obligations, including checks or
other payments provisionally credited to the
Obligations and/or as to which Lender has not yet
received final and indefeasible payment. Such
payments in respect of the Obligations and cash
collateral shall be remitted by wire transfer in
Federal funds to such bank account of Lender, as
Lender may, in its discretion, designate in writing
to Borrower for such purpose. Interest shall be due
until and including the next business day, if
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the amounts so paid by Borrower to the bank account
designated by Lender are received in such bank
account later than 12:00 noon (Eastern Time)."
2. FEE. This Amendment is conditioned on the payment by
Borrower to Lender of an extension fee of Two Thousand Dollars ($2,000), which
shall be fully earned as of the date hereof. Borrower authorizes Lender to
advance such fee as a Revolving Loan under the Loan Agreement.
3. CONFIRMATION OF INDEBTEDNESS. Borrower confirms and acknowledges
that as of the close of business on January 31, 2002, it is indebted to Lender
under the Loan Documents without any deduction, defense, setoff, claim or
counterclaim, of any nature, in the aggregate principal amount of $1,482,910.86
comprised of: (a) $882,910.74 outstanding with respect to the Revolving Loans,
and (b) $600,000.12 outstanding with respect to the Term Loan, plus any accrued
and unpaid interest and all fees, costs and expenses (including attorneys' fees)
incurred to date in connection with the Loan Documents.
4. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to,
and covenants with, Lender as follows, which representations, warranties and
covenants are continuing and shall survive the execution and delivery hereof,
and the truth and accuracy of, or compliance with each, together with the
representations, warranties and covenants in the other Financing Agreements,
being a continuing condition of the making of Loans by Lender to Borrower:
(a) This Amendment has been duly executed and delivered
by Borrower and is in full force and effect as of the date hereof and the
agreements and obligations of Borrower contained herein constitute legal, valid
and binding obligations of Borrower enforceable against Borrower in accordance
with their respective terms;
(b) Borrower has taken all necessary corporate action to authorize
the execution, delivery and performance of this Amendment;
(c) This Amendment is, or when executed by Borrower and
delivered to Lender, will be, duly executed and constitute a valid and legally
binding obligation of Borrower, enforceable against Borrower in accordance with
its terms; and
(d) The execution by Borrower and delivery to Lender of this
Amendment is not and will not be in contravention of any order of any court or
other agency of government, law or any other indenture or agreement to which
wither Borrower is bound or the Articles of Incorporation or bylaws of Borrower
to be in conflict with, or result in a breach of, or constitute (with due notice
and/or passage of time) a default under any such indenture, agreement or
undertaking or result in the imposition of any lien, charge, encumbrance of any
nature on any property of Borrower.
5. REAFFIRMATION: Except as expressly amended herein, all of
the terms, provisions and conditions of the Loan Agreement, as previously
amended, are hereby reaffirmed and
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ratified in all respects, and remain in full force and effect. Borrower
reaffirms each of the representations and warranties under the Loan Agreement
made by it, as if said representations and warranties were made and given on and
as of the date hereof.
6. NO WAIVER BY LENDER: This Amendment does not and shall not be deemed
to constitute a waiver by Lender of any breach or violation of any
representation, warranty or covenant made or agreed to by any Borrower under the
Loan Agreement as amended hereby, and all of Lender's claims and rights
resulting from any such breach or misrepresentation by either Borrower, are
expressly reserved by Lender. This Amendment does not obligate Lender to agree
to any further extension or any other modification of the Loan Agreement nor
does it constitute a waiver of any other rights or remedies of Lender.
7. INCORPORATION: This Amendment (including, without limitation, any
covenants contained herein) shall amend, and is incorporated into and made part
of, the Loan Agreement. All references contained in the Loan Agreement or other
Loan Documents to the Loan Agreement shall be deemed, for all purposes, to mean
the Loan Agreement as amended hereby. To the extent that any term or provision
of this Amendment is or may be deemed expressly inconsistent with any term or
provision in the Loan Agreement, the terms and provisions hereof shall control.
8. NO MODIFICATION: No modification of this Amendment or of any
agreement referred to herein shall be binding or enforceable unless in writing
and signed on behalf of the party against whom enforcement is sought.
9. HEADINGS: The headings of any paragraph of this Amendment
are for convenience only and shall not be used to interpret any provision of
this Amendment.
10. SUCCESSOR AND ASSIGNS: This Amendment will be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and permitted assigns.
11. GOVERNING LAW: This Amendment shall be governed by, and
construed and enforced in accordance with the laws of the State of New York,
excluding its conflict of laws rule.
12. SEVERABILITY: The provisions of this Amendment are to be
deemed 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.
13. COUNTERPARTS: This Amendment may be executed in any number of
counterparts and by different parties on separate counterparts (including by
facsimile transmission of executed signature pages hereto), each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same agreement. This Amendment shall become effective upon the execution and
delivery of a counterpart hereof by each of the parties hereof.
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IN WITNESS WHEREOF, Lender and Borrower have caused these presents to
be duly executed on and as of the date and year first above written.
LENDER BORROWER
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CONGRESS FINANCIAL BONTEX, INC.
CORPORATION
By:Xxxxx X. Xxxxxxx By: s/ Xxxxx X. Xxxxxxxx
Title: Vice President Title: C.E.O.
Address: Address:
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1133 Avenue of the Americas Xxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000 Xxxxx Xxxxx, Xxxxxxxx 00000
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