EXHIBIT 10.16
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WAIVER AND AMENDMENT NO. 2
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS WAIVER AND AMENDMENT NO. 2 ("Amendment") is entered into as of
March __, 2001, by and among Wireless Xcessories Group, Inc. formerly known as
Batteries Batteries, Inc. ("BATS"), Xxxxxx Electronics, Inc. ("TEI"), , Specific
Energy Corporation ("SEC"), W.S. Battery & Sales Company, Inc. ("WSBS"), Battery
Network, Inc. ("BN"), Battery Acquisition Corp. ("BAC"), (BATS, TEI, SEC, WSBS,
BN and BAC, each a "Borrower" and collectively the "Borrowers"), IBJ Whitehall
Business Credit Corporation (successor to IBJ Xxxxxxxx Business Credit
Corporation) ("IBJS"), each of the other financial institutions named in the
Loan Agreement or which hereafter become parties thereto (IBJS and such
financial institutions, the "Lenders") and IBJS as agent for the Lenders (IBJS
in such capacity, the "Agent").
BACKGROUND
Borrowers, Agent and Lenders are parties to a Revolving Credit, Term
Loan and Security Agreement dated as of January 7, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and Lenders waive certain Events of
Default and amend certain provisions of the Loan Agreement, and Agent and
Lenders are willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by Agent
and Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
2.1. Section 6.5 is amended in its entirety to provide as follows:
"6.5 Net Worth. Maintain at the end of each fiscal quarter set
forth below a Net Worth of least the amount set opposite such
fiscal quarter end below:
Fiscal Quarter Ending Net Worth
--------------------- ---------
March 31, 2001 $6,500,000
June 30, 2001 $6,600,000
September 30, 2001 $6,700,000
December 31, 2001 $6,700,000
March 31, 2002 $6,750,000
June 30, 2002 $6,850,000
September 30, 2002 $6,950,000
December 31, 2002 $7,050,000
2.2. Section 6.7 is amended in its entirety to provide as follows:
"6.7 Fixed Charge Coverage Ratio. Maintain as of the end of each
rolling four-quarter period set forth below a Fixed Charge
Coverage Ratio of not less than the ratio set opposite such
rolling four-quarter period below:
Rolling Four-quarter Period Fixed Charge Coverage Ratio
--------------------------- ---------------------------
April 1, 2000 - March 31, 2001 0.40 to 1.00
July 1, 2000 - June 30, 2001 0.65 to 1.00
October 1, 2000 - September 30, 2001 1.25 to 1.00
January 1, 2001 - December 31, 2001 1.50 to 1.00
April 1, 2001 - March 31, 2002 1.25 to 1.00
July 1, 2001 - June 30, 2002 1.25 to 1.00
October 1, 2001 - September 30, 2002 1.25 to 1.00
January 1, 2002 - December 31, 2002 1.25 to 1.00"
2.3. Section 6.8 is amended in its entirety to provide as follows:
"6.8 EBITDA. Maintain as of the end of each rolling four-quarter
period set forth below, EBITDA of at least the amount set opposite
such rolling four-quarter period below:
Rolling Four-quarter Period EBITDA
--------------------------- ------
April 1, 2000 - March 31, 2001 $1,600,000
July 1, 2000 - June 30, 2001 $1,615,000
October 1, 2000 - September 30, 2001 $1,615,000
January 1, 2001 - December 31, 2001 $2,000,000
April 1, 2001 - March 31, 2002 $2,000,000
July 1, 2001 - June 30, 2002 $2,000,000
October 1, 2001 - September 30, 2002 $2,000,000
January 1, 2002 - December 31, 2002 $2,000,000"
2.4. Section 13.1 is amended as follows:
(a) The first sentence is amended in its entirety to provide as
follows:
"This Agreement, which shall inure to benefit of and shall be
binding upon the respective successors and permitted assigns of
each Borrower, Agent and each Lender, shall become effective on
the date hereof and shall continue in full force and effect until
January 7, 2003 (the "Term") unless sooner terminated as herein
provided."
(b) The last sentence is amended in its entirety to provide as
follows:
"In the event the Obligations are prepaid in full prior to the
last day of the Term (the date of such prepayment hereinafter
referred to as the "Early Termination Date"), Borrowers shall pay
to Agent for the benefit of Lenders an early termination fee in an
amount equal to $50,000 if the Early Termination Date occurs on or
before January 6, 2003."
3. Waiver. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, Lender hereby waives the Events of Default that have
occurred for the fiscal quarter ending December 31, 2000 as a result of
Borrowers' non-compliance (a) with Section 6.5 of the Loan Agreement solely as
respects the failure to maintain the minimum Net Worth required pursuant to
Section 6.5 of the Loan Agreement, (b) Section 6.7 of the Loan Agreement solely
as respects the failure to maintain the Fixed Charge Coverage Ratio required
pursuant to Section 6.7 of the Loan Agreement , and (c) Section 6.8 of the Loan
Agreement solely as respects the failure to maintain the EBITDA required
pursuant to Section 6.8 of the Loan Agreement.
4. Conditions of Effectiveness. This Amendment shall become effective,
when and only when (a) Agent shall have received an original copy of this
Amendment duly executed on behalf of each Borrower and (b) Agent shall receive a
fee in the amount of $10,000 which may be charged to Borrowers' loan account on
the effective date of this Amendment.
5. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of each Borrower and are
enforceable against each Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing
or would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with
respect to the Loan Agreement.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Loan Agreement as amended
hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided in Section 3 operate as a waiver of any
right, power or remedy of Agent or any Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents, instruments or
agreements executed and/or delivered under or in connection therewith.
7. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
8. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
9. Counterparts. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed an original and all
of which taken together shall be deemed to constitute one and the same
agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
WIRELESS XCESSORIES GROUP, INC.
(formerly known as BATTERIES
BATTERIES, INC.)
XXXXXX ELECTRONICS, INC.
SPECIFIC ENERGY CORPORATION
BATTERY NETWORK, INC.
W.S. BATTERY & SALES COMPANY, INC.
BATTERY ACQUISITION CORP.
By:_______________________________
Name: _____________________________
The ________ of each of the
foregoing Corporations
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as Agent and as Lender
By:_______________________________
Name:_____________________________
Title:____________________________
