EXHIBIT 10.112
[Execution]
AMENDMENT NO. 2 AND WAIVER TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 2 AND WAIVER TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment"), dated as of November 12, 2003, by and between I.C.
Xxxxxx & Company L.P., a Delaware limited partnership ("Borrower"), and Congress
Financial Corporation, a Delaware corporation ("Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower has entered into certain financing arrangements
pursuant to which Lender may make loans and advances and provide other financial
accommodations to Borrower as set forth in the Amended and Restated Loan and
Security Agreement, dated December 20, 2002, by and between Borrower and Lender,
as amended by Amendment No. 1 and Waiver to Amended and Restated Loan and
Security Agreement, dated as of March 31, 2003, by and between Borrower and
Lender (as the same may be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement"), and other agreements,
documents and instruments referred to therein or at any time executed and/or
delivered in connection therewith or related thereto, including this Amendment
(all of the foregoing, together with the Loan Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced, are collectively referred to herein as the "Financing Agreements");
WHEREAS, Borrower has requested that Lender (i) waive certain Events of
Default under the Loan Agreement existing as of the date hereof and (ii) amend
certain provisions of the Loan Agreement;
WHEREAS, Lender, subject to the terms and conditions contained herein,
is willing to agree to effect such waivers and amendments; and
WHEREAS, by this Amendment, Lender and Borrower desire and intend to
evidence such waivers and amendments.
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, and other good and
valuable consideration, the adequacy and sufficiency of which are hereby
acknowledged, the parties hereto agree, covenant and warrant as follows:
1. Definitions.
(a) Amendments to Definitions
(i) Interest Rate. Effective as of November 1, 2003, Section
1.38 of the Loan Agreement is hereby amended by deleting such Section in its
entirety and replacing it with the following:
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"1.38 `Interest Rate' shall mean a rate equal to two and
one-quarter (2 1/4 %) percent per annum in excess of the Prime
Rate; provided, that, notwithstanding anything to the contrary
contained herein, the Interest Rate shall mean the rate of four
and one-quarter (4 1/4 %) percent per annum in excess of the Prime
Rate, at Lender's option, without notice, (i) either (A) for the
period on and after the date of termination or non-renewal hereof
until such time as all Obligations are indefeasibly paid and
satisfied in full in immediately available funds, or (B) for the
period from and after the date of the occurrence of any Event of
Default, and for so long as such Event of Default is continuing as
determined by Lender and (ii) on the Revolving Loans at any time
outstanding in excess of the amounts available to Borrower under
Section 2 (whether or not such excess(es) arise or are made with
or without Lender's knowledge or consent and whether made before
or after an Event of Default)."
(ii) Inventory Loan Limit. Section 1.40 of the Loan Agreement
is hereby amended by deleting such Section in its entirety and replacing it with
the following:
"1.40 `Inventory Loan Limit' shall mean $1,500,000 at all times."
(b) Interpretation. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned to such terms in the Loan
Agreement.
2. Net Worth. Section 9.17 of the Loan Agreement is hereby amended by
deleting such Section in its entirety and replacing it with the following:
"9.17 Net Worth. Borrower shall at all times during each
fiscal month set forth below maintain Net Worth of not less than
the amount set forth below opposite such fiscal month end:
Period Minimum Net Worth
------- ----------------
March 2003 $1,500,000
April 2003 $1,750,000
May 2003 $2,000,000
June 2003 $2,000,000
July 2003 $2,500,000
August 2003 $2,750,000
September 2003 $2,750,000
October 2003 $3,000,000
November 2003 $1,200,000
December 2003 $400,000
January 2004 $400,000
February 2004 $600,000
March 2004 $800,000
April 2004 $900,000
May 2004 $1,000,000
June 2004 $1,400,000
July 2004 $1,700,000
August 2004 $1,900,000
September 2004 $1,800,000
October 2004 $2,100,000
November 2004 $2,300,000
December 2004 and at all times thereafter $2,000,000"
3. Working Capital. Section 9.18 of the Loan Agreement is hereby
amended by deleting such Section in its entirety and replacing it with the
following:
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"9.18 Working Capital. Borrower shall at all times during
each fiscal month set forth below maintain Working Capital of not
less than the amount set forth below opposite such fiscal month
end:
Period Minimum Working Capital
-------- -------------------------
March 2003 $5,000,000
April 2003 $5,000,000
May 2003 $5,000,000
June 2003 $5,000,000
July 2003 $5,000,000
August 2003 $6,000,000
September 2003 $6,000,000
October 2003 $6,000,000
November 2003 $5,500,000
December 2003 $4,400,000
January 2004 $4,400,000
February 2004 $4,700,000
March 2004 $4,700,000
April 2004 $4,700,000
May 2004 $5,100,000
June 2004 $5,100,000
July 2004 $5,100,000
August 2004 $5,200,000
September 2004 $5,100,000
October 2004 $5,200,000
November 2004 $5,500,000
December 2004 and at all times thereafter $4,800,000"
4. Waiver of Events of Default.
(a) Subject to the satisfaction of each of the conditions
precedent set forth in Section 7 hereof, Lender hereby waives the following
Events of Default (collectively, the "Existing Defaults"):
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(i) any Event of Default under Section 10.1(a)(iii) of the
Loan Agreement arising as a result of the failure of Borrower to comply with the
terms of Section 9.17 of the Loan Agreement with respect to the months ending
July 31, 2003, August 31, 2003, September 30, 2003 and October 31, 2003; and
(ii) any Event of Default under Section 10.1(a)(iii) of the
Loan Agreement arising as a result of the failure of Borrower to comply with the
terms of Section 9.18 of the Loan Agreement with respect to the months ending
September 30, 2003 and October 31, 2003.
(b) Lender has not waived, is not by this Amendment waiving, and
has no intention of waiving any Event of Default which may have occurred on or
prior to the date hereof, whether or not continuing on the date hereof, or which
may occur after the date hereof (whether the same or similar to the Events of
Default referred to in Section 4(a) above or otherwise), other than the Existing
Defaults (subject to the terms and conditions set forth in Section 4(a) above).
The foregoing waiver shall not be construed as a bar to or a waiver of any other
or further Event of Default on any future occasion, whether similar in kind or
otherwise and shall not constitute a waiver, express or implied, of any of the
rights and remedies of Lender arising under the terms of the Loan Agreement or
any other Financing Agreements on any future occasion or otherwise.
5. Amendment Fee. In addition to all other fees, charges, interest and
expenses payable by Borrower to Lender, Borrower shall pay to Lender, an
amendment fee in an amount equal to $50,000 (the "Amendment Fee"), which shall
be fully earned and nonrefundable as of the date of this Amendment and shall be
due and payable on the date hereof. Lender may, at its option, charge the
Amendment Fee directly to the loan account of Borrower.
6. Representations, Warranties and Covenants. Borrower represents,
warrants and covenants with and to Lender as follows, which representations,
warranties and covenants are continuing and shall survive the execution and
delivery hereof, 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 to the making or providing of any Loans
or Letter of Credit Accommodations by Lender to Borrower:
(a) Representations in Financing Agreements. Each of the
representations and warranties made by or on behalf of Borrower to Lender in any
of the Financing Agreements was true and correct when made and in all material
respects is true and correct on and as of the date of this Amendment with the
same full force and effect as if each of such representations and warranties had
been made by Borrower on the date hereof and in this Amendment.
(b) No Event of Default. No Event of Default or act, condition or
event which with notice or passage or time or both would constitute an Event of
Default exists on the date of this Amendment or has occurred and is continuing
(after giving effect to the amendments and waivers set forth in this Amendment).
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(c) Binding Effect of Documents. This Amendment and the other
Financing Agreements have been duly authorized, executed and delivered to Lender
by Borrower, and are in full force and effect, as modified hereby and the
agreements and obligations of Borrower contained herein constitute the legal,
valid and binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms.
(d) No Conflict, Etc. Neither the execution and delivery of this
Amendment nor the other Financing Agreements contemplated by this Amendment by
Borrower, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof or thereof are in contravention of any law
or regulation or any order or decree of any court or governmental authority
applicable to Borrower in any respect, or conflicts with or results in the
breach of, or constitutes a default in any respect under any mortgage, deed of
trust, security agreement, agreement, instrument or other contractual obligation
to which Borrower is a party or may be bound, or violates any provision of the
Certificate of Limited Partnership or Limited Partnership Agreement of Borrower
or will result in, or require, the creation or imposition of any lien or
encumbrance on any properties or revenues of Borrower, except in favor of
Lender.
7. Conditions to Effectiveness of this Amendment. The effectiveness of
this Amendment shall be subject to the satisfaction of the following conditions:
(a) Lender shall have received, in form and substance satisfactory
to Lender, an original of this Amendment, duly authorized, executed and
delivered by Borrower;
(b) Lender shall have received the Amendment Fee; and
(c) Lender shall have received any and all such further
instruments and documents as Lender may require to obtain the full benefits of
this Amendment and to protect, preserve and maintain Lender's rights in the
Collateral;
8. Provisions of General Application
(a) Effect of this Amendment. Except as modified pursuant hereto,
no other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Amendment and the other Financing Agreements, the terms of this Amendment shall
control. The Loan Agreement and this Amendment shall be read and construed as
one agreement.
(b) Further Assurances. The parties hereto shall execute and
deliver such additional documents and take such additional action as may be
necessary or desirable to effectuate the provisions and purposes of this
Amendment.
(c) Binding Effect. This Amendment shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
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(d) Survival of Representations and Warranties. All
representations and warranties made in this Amendment or any other document
furnished in connection with this Amendment shall survive the execution and
delivery of this Amendment and the other documents, and no investigation by
Lender or any closing shall affect the representations and warranties or the
right of Lender to rely upon them.
(e) Expenses. Borrower agrees to pay on demand all out of pocket
costs and expenses of Lender in connection with the preparation, execution and
delivery of this Amendment and all other agreements, documents and instruments
executed and/or delivered in connection therewith or related thereto, including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for Lender with respect thereto.
(f) Severability. Any provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
(g) Governing Law. This Amendment shall be governed by, construed
and enforced in accordance with the laws of the State of New York but excluding
any conflicts of law or other rules of law that would cause the application of
the laws of any jurisdiction other than the laws of the State of New York.
(h) Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart hereof signed by each of the
parties hereto. This Amendment may be executed and delivered by telecopier with
the same force and effect as if it were a manually executed and delivered
counterpart.
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IN WITNESS WHEREOF, Lender and Borrower have caused these presents to be duly
executed as of the day and year first above written.
I.C. XXXXXX & COMPANY L.P.
By: I.C. Xxxxxx & Company, Inc., general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Title: EVP
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxx X Xxxxxx
-------------------------
Title: Vice President
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