AMENDMENT NO. 1 AND JOINDER AGREEMENT
THIS AMENDMENT NO. 1 AND JOINDER AGREEMENT ("Agreement") is entered
into as of May 9th, 1997, by and among Batteries Batteries, Inc. ("BATS"),
Xxxxxx Electronics, Inc. ("TEI"), Advanced Fox Antenna, Inc. ("AFA"), Specific
Energy Corporation ("SEC"), W.S. Battery & Sales Company, Inc. ("WSBS"),
Battery Network, Inc. ("BN"), Battery Acquisition Corp. ("BAC"), Cliffco of
Tampa Bay, Inc. (formerly known as Cellular Florida Acquisition, Inc.) ("CTB")
(BATS, TEI, AFA, SEC, WSBS, BN, BAC and CTB, each a "Borrower" and, jointly
and severally, the "Borrowers") and IBJ Xxxxxxxx Bank and Trust Company, as
Lender and Agent (as such terms are hereinafter defined).
BACKGROUND
BATS, TEI, AFA, SEC, WSBS, BN and BAC, IBJ Xxxxxxxx Bank and Trust
Company ("IBJS"), each of the other financial institutions named in the Loan
Agreement (as hereinafter defined) 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") are parties to a Revolving
Credit, Term Loan and Security Agreement dated as of January 7, 1997 (as
amended, supplemented, modified or restated from time to time, the "Loan
Agreement") pursuant to which Lenders and Agent provided Borrowers (other than
CTB) with certain financial accommodations.
Pursuant to an Asset Purchase Agreement dated April 27, 1997 by and
among BATS, Cellular Florida Acquisition, Inc., a wholly owned subsidiary of
BATS ("Sub"), Cliffco of Tampa Bay, Inc. (now known as Xxxxxxxx Communications
and Accessories, Inc.) ("Seller") and Xxxxx Xxxxxxxx, the stockholder of
Seller (the "Purchase Agreement"), Seller sold to Sub and Sub purchased from
Seller certain assets of Seller. Following such acquisition, Sub changed its
name to Cliffco of Tampa Bay, Inc.
BATS, TEI, AFA, SEC, WSBS, BN and BAC have requested that Agent and
Lenders permit CTB to become a Borrower and provide financial accommodations
to CTB under 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 or 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. Joinder.
(a) CTB is hereby added as an additional Borrower under the
Loan
Agreement, and all references to "Borrower" or "Borrowers" thereunder shall
henceforth be deemed to include CTB.
(b) CTB hereby adopts the Loan Agreement and each of the
Other Documents and assumes in full, and acknowledges that it is jointly and
severally liable for, the payment, discharge, satisfaction and performance of
all Obligations under the Loan Agreement and the Other Documents. Without
limiting the generality of the foregoing, in order to secure the prompt
payment and performance of the Obligations, CTB hereby assigns, pledges and
grants to Agent for the benefit of Lenders a continuing security interest in
and to all of its Collateral, whether now owned or existing or hereafter
acquired or arising and wheresoever located.
3. 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:
(a) Section 1.2 is hereby amended by
(i) adding the following defined terms in their appropriate
alphabetical order:
"Amendment No. 1" shall mean Amendment No. 1 and
Joinder Agreement dated as of May 9th, 1997 among
Borrowers, Lenders and Agent.
"Amendment No. 1 Effective Date" shall mean May
9th, 1997.
"Amendment No. 1 Projections" shall have the
meaning set forth in Section 5.5(c) hereof.
"CTB" shall mean Cliffco of Tampa Bay, Inc.
(formerly known as Cellular Acquisition, Inc.), a
Florida corporation.
"CTB Acquisition Agreement" shall mean the Asset
Purchase Agreement dated as of April 27th, 1997
among BATS, Cellular Florida Acquisition, Inc. (now
known as Cliffco of Tampa Bay, Inc.), Old Cliffco,
as seller and Xxxxx Xxxxxxxx, as Stockholder.
"Old Cliffco" shall mean Cliffco of Tampa Bay,
Inc., a Florida corporation, now known as Xxxxxxxx
Communications and Accessories, Inc.
(ii) amending the following defined term in its entirety
to provide as follows:
"Acquisition Agreement" shall mean collectively,
the BN Acquisition Agreement, the WSBS Acquisition
Agreement, the BAC Acquisition Agreement and the
CTB Acquisition Agreement.
(b) Section 5.5 is amended by adding the following subsection (c)
after the end of subsection (b):
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"(c) The twelve-month cash flow projections of BATS
on a consolidated basis and their projected balance
sheets as of the Amendment No. 1 Effective Date,
copies of which are attached as Exhibit 5.5(c) to
Amendment No. 1 (the "Amendment No. 1 Projections")
were prepared by Borrowing Agent, reflect the
consummation of the transaction contemplated by
Amendment No. 1 and the CTB Acquisition Agreement,
are based on underlying assumptions which provide a
reasonable basis for the projections contained
therein."
(c) Section 5.8 is amended by adding after the end of Section 5.8(e)
a new Section 5.8(f) which provides as follows:
"(e) After giving effect to the transactions
contemplated by Amendment No. 1 and the Cliffco
Acquisition Agreement, each Borrower will be
solvent, able to pay its debts as they mature, have
capital sufficient to carry on its business and all
businesses in which it is about to engage, and (i)
as of the Amendment No. 1 Effective Date, the fair
present saleable value of its assets, calculated on
a going concern basis, is in excess of the amount
of its liabilities and (ii) subsequent to the
Amendment No. 1 Effective Date, the fair saleable
value of its assets (calculated on a going concern
basis) will be in excess of the amount of its
liabilities."
(d) Section 5.24 is added after the end of Section 5.23 and provides
as follows:
"5.24. Delivery of CTB Acquisition Agreement. Agent
has received complete copies of the CTB Acquisition
Agreement, including all exhibits, schedules and
disclosure letters referred to therein or delivered
pursuant thereto and all amendments thereto,
waivers relating thereto and other side letters or
agreements affecting the terms thereof. None of
such documents and agreements has been amended or
supplemented, nor have any of the provisions
thereof been waived, except pursuant to a written
agreement or instrument which has heretofore been
delivered to Agent."
(e) Section 7.1(a) is amended in its entirety to provide as follows:
"(a) Enter into any merger, consolidation or other
reorganization with or into any other Person other
than a Borrower or acquire all or a substantial
portion of the assets or stock of any Person other
than a Borrower and other than the assets of Old
Cliffco in accordance with the CTB Acquisition
Agreement or permit any other Person to consolidate
with or merge with it other than a Borrower."
(f) Section 7.12(a) is amended in its entirety to provide as follows:
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"(a) Form any Subsidiary, except that BATS may
form CTB."
(g) Section 16.3(b) is hereby amended by adding the following
parenthetical immediately after "any Transferee" on the
tenth line thereof:
"(other than to a Transferee that is an affiliate
or subsidiary of IBJS)"
(h) Section 16.3(c is amended by adding the following sentence
at the end thereof:
"Without in any manner limiting the foregoing, the
Borrowers specifically consent to the sale,
assignment and/or transfer by IBJS to IBJ Xxxxxxxx
Business Credit Corporation of all or any part of
its rights and obligations under this Agreement and
the Other Documents in its capacity as Agent and as
Lender."
(i) Exhibit 2.1(a) is amended in its entirety to provide as set forth
on Exhibit A attached to this Agreement.
(j) Exhibit 2.4 is amended in its entirety to provide as set forth on
Exhibit B attached to this Agreement.
(k) Schedule 4.5 (Equipment and Inventory Locations) is amended by
adding the following at the end thereof:
"(o) 00000 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (until
6/30/97)
(p) 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (commencing
7/1/97)"
(l) Schedule 4.15(c) (Location of Executive Offices) is amended by
adding the following at the end thereof:
"(h) Cliffco of Tampa Bay, Inc.
(i) 00000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
(until June 30, 1997)
(ii) 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
(commencing July 1, 1997)"
(m) Schedule 5.2(a) (States of Qualification/Good Standing) is
amended by adding the following at the end thereof:
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"Cliffco of Tampa Bay, Inc. - Florida"
(n) Schedule 5.2(b) (Subsidiaries) is amended by adding the following
at the end of the first section thereof:
"(e) Cliffco of Tampa Bay, Inc."
(o) Schedule 5.4(b) (Federal Tax Identification Numbers) is amended
by adding the following at the end of the first section thereof:
"(h) Cliffco of Tampa Bay, Inc. -- 00-0000000
(p) Schedule 5.6 (Prior Names) is amended by adding the following at
the end thereof:
"(f) Cliffco of Tampa Bay, Inc. was previously "Cellular
Florida Acquisition, Inc." The amendment to the
Certificate of Incorporation was filed on the
Amendment No. 1 Effective Date. Cliffco of Tampa
Bay, Inc. uses the tradename "Cliffco"."
(q) Schedule 5.9 (Intellectual Property, Source Code, Escrow
Agreements) is amended by adding the following at the end thereof:
""Accessory Solutions for a Wireless World" trademark
registration application file no: 3-11-96, filed: 75/069,921
"Your Phone" trademark registration application, file no:
75/203,707, filed: 11-25-96
"Starter Kit" trademark registration application, file no:
75/227,177, filed: 1-16-97
"Starter Kit 2" trademark registration application,
75/227,178, filed: 1-16-97
4. Conditions of Effectiveness. This Agreement shall become effective
upon satisfaction of the following conditions precedent:
(i) Agent shall have received in form and substance
satisfactory to Lender four (4) copies of this Agreement duly
executed by each Borrower;
(ii) Agent shall have received in form and substance
satisfactory to Agent an executed Purchase Agreement and all exhibits
and schedules thereto and all other documents and agreements executed
in connection therewith;
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(iii) BATS and/or CTB shall have obtained all necessary
consents with respect to each contract, lease, and agreement being
assigned to CTB pursuant to the Purchase Agreement. BATS and CTB
hereby covenant that no conditions to effectiveness of the Purchase
Agreement shall be waived by BATS or CTB without Agent's prior
written consent;
(iv) Agent shall have received an executed Amended and
Restated Term Note in the form attached hereto as Exhibit A and (b)
Amended and Restated Revolving Credit Note in the form attached
hereto as Exhibit B;
(v) Agent shall have received in form and substance
satisfactory to Agent a Collateral Assignment executed by BATS with
respect to its rights under the Purchase Agreement;
(vi) Each document (including, without limitation, any
Uniform Commercial Code financing statement) required by this
Agreement or under law or reasonably requested by Agent to be filed,
registered or recorded in order to create, in favor of Agent for the
ratable benefit of the Lenders, a perfected security interest in or
lien upon the Collateral owned by CTB shall have been properly filed,
registered or recorded in each jurisdiction in which the filing,
registration or recordation thereof is so required or requested, and
Agent shall have received an acknowledgment copy, or other evidence
satisfactory to it, of each such filing, registration or recordation
and satisfactory evidence of the payment of any necessary fee, tax or
expense relating thereto;
(vii) Agent shall have received a copy of the resolutions in
form and substance reasonably satisfactory to Agent, of the Board of
Directors of (x) CTB authorizing (1) the execution, delivery and
performance of this Agreement and (2) the granting by CTB of the
Liens upon the Collateral, certified by the Secretary or an Assistant
Secretary of CTB as of the date of this Agreement; and (y) of BATS,
TEI, AFA, SEC, WSBS, BN and BAC authorizing (1) the execution,
delivery and performance of this Agreement and (2) the addition of
CTB as a "Borrower" under the Loan Agreement; and, such certificates
shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded as of the date of such
certificate;
(viii) Agent shall have received a copy of the Articles or
Certificate of Incorporation of CTB, and all amendments thereto,
certified by the Secretary of State or other appropriate official of
its jurisdiction of incorporation together with copies of the By-Laws
of CTB certified as accurate and complete by the Secretary or an
Assistant Secretary of CTB;
(ix) Agent shall have received good standing certificates
for CTB dated not more than thirty (30) days prior to the date of
this Agreement, issued by the Secretary of State or other appropriate
official of CTB's jurisdiction of incorporation and each jurisdiction
where the conduct of CTB's business activities or the ownership of
its
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properties necessitates qualification;
(x) Agent shall have received the executed legal opinions of
Brock, Fensterstock, Xxxxxxxxxxx, XxXxxxxxx & Xxxx, LLC in form and
substance satisfactory to Agent regarding the due authorization,
enforceability and validity of (i) this Agreement and (ii) the
Purchase Agreement, and the transactions contemplated herein and
therein;
(xi) Agent shall have received in form and substance
satisfactory to Agent, certified copies of CTB's casualty insurance
policies, together with loss payable endorsements on Lender's
standard form of loss payee endorsement naming Agent as loss payee,
and certified copies of CTB's liability insurance policies, together
with endorsements naming Agent as a co-insured;
(xii) Agent shall have received in form and substance
satisfactory to Agent all landlord, mortgagee or warehousemen
agreements for CTB's existing premises at 00000 Xxxxxx Xxxxxx, Xxxxx,
Xxxxxxx and future premises at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx;
(xiii) Agent shall have received the stock certificate issued
by CTB in favor of BATS, along with an executive stock power which
shall be pledged to Agent under and pursuant to the Pledge Agreement
dated January 7, 1997 by and between Agent and BATS;
(xiv) (A) No litigation, investigation or proceeding before
or by any arbitrator or Governmental Body shall be continuing or
threatened against any Borrower or against the officers or directors
of any Borrower (x) in connection with this Agreement or any of the
Transactions contemplated by the CTB Acquisition Agreement and which,
in the reasonable opinion of Agent, is deemed material or (y) which
if adversely determined, would, in the reasonable opinion of Agent,
have a Material Adverse Effect on Borrowers taken as a whole; and (B)
no injunction, writ, restraining order or other order of any nature
materially adverse to any Borrower, or the conduct of the business of
any Borrower, or inconsistent with the due consummation of this
Agreement or the CTB Acquisition Agreement shall have been issued by
any Governmental Body;
(xv) Agent shall have received an executed Financial
Condition Certificate satisfactory in form and substance to it,
certifying the solvency of Borrowers on a consolidated basis after
giving effect to the transactions contemplated by this Agreement and
the CTB Acquisition Agreement and as to Borrowers' financial
resources and their ability to meet their obligations and liabilities
as they become due;
(xvi) Agent shall have completed Collateral examinations,
the results of which shall be satisfactory in form and substance to
Agent, of the Receivables, Inventory and General Intangibles of CTB
and all books and records in connection therewith;
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(xvii) Agent shall have received a copy of the Amendment No.
1 Projections which shall be satisfactory in all respects to Agent;
(xviii) Agent shall have received duly executed agreement(s)
establishing the Blocked Account(s) with financial institutions
reasonably acceptable to Agent for the collection or servicing of the
Receivables and proceeds of the Collateral of CTB;
(xix) Agent shall have received any and all Consents
necessary to permit the effectuation of the transactions contemplated
by this Agreement; and, Agent shall have received such Consents and
waivers of such third parties as might assert claims with respect to
the Collateral, as Agent and its counsel shall deem necessary;
(xx) (A) Since January 7, 1997 there shall not have occurred
(x) any material adverse change in the financial condition,
operations, properties or prospects of Borrowers taken as a whole and
Old Cliffco, (y) any material damage or destruction to any of the
Collateral nor any material depreciation in the value thereof and (z)
any event, condition or state of facts which would reasonably be
expected to have a Material Adverse Effect on Borrowers taken as a
whole and Old Cliffco and (B) no representations made or information
supplied to Agent shall have been proven to be inaccurate or
misleading in any material respect;
(xxi) Agent shall have received a closing certificate signed
by the Chief Financial Officer of each Borrower dated as of the date
hereof, stating that (A) all representations and warranties set forth
in the Loan Agreement and the Other Documents are true and correct in
all material respects on and as of such date, (B) Borrowers are on
such date in compliance with all the terms and provisions set forth
in the Loan Agreement and the Other Documents and (C) on such date no
Default or Event of Default has occurred or is continuing;
(xxii) Agent shall have received a duly executed collateral
assignment of the rights of each of BATS and CTB under the CTB
Acquisition Agreement, in form and substance satisfactory to Lender;
(xxiii) Agent shall have reviewed all material contracts of
CTB including, without limitation, leases, union contracts, labor
contracts, vendor supply contracts, license agreements and
distributorship agreements and such contracts and agreements shall be
satisfactory in all respects to Agent; and
(xxiv) Agent shall have received such other certificates,
instruments, documents and agreements as may reasonably be required
by Agent or its counsel, each of which shall be in form and substance
satisfactory to Agent and its counsel.
5. Representations and Warranties. Each Borrower hereby represents
and warrants as follows:
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(a) This Agreement and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of Borrowers
and are enforceable against Borrowers in accordance with their
respective terms.
(b) Upon the effectiveness of this Agreement, such Borrower
(other than CTB) hereby reaffirms and CTB affirms 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 Agreement.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Agreement.
(d) Such Borrower has no 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
Agreement shall not operate as a waiver of any right, power or remedy
of 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 Agreement 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 Agreement are included herein
for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
9. Counterparts; Telecopied Signatures. This Agreement may be
executed in any number of and by different parties hereto, on
separate counterparts, all of which when so executed shall be deemed
an original, but all such counterparts shall constitute one and the
same agreement. Any signature delivered by a party by facsimile
transmission shall be deemed to be an original signature hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first written above.
BATTERIES BATTERIES, INC., as Borrower and
Borrowing Agent
By:
---------------------------------
Title:
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XXXXXX ELECTRONICS, INC., as Borrower
By:
---------------------------------
Title:
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ADVANCED FOX ANTENNA, INC., as Borrower
By:
---------------------------------
Title:
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SPECIFIC ENERGY CORPORATION, as
Borrower
By:
---------------------------------
Title:
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BATTERY NETWORK, INC., as Borrower
By:
---------------------------------
Title:
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W.S. BATTERY & SALES COMPANY, INC., as
Borrower
By:
---------------------------------
Title:
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BATTERY ACQUISITION CORP., as Borrower
By:
---------------------------------
Title:
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CLIFFCO OF TAMPA BAY, INC., as Borrower
(f/k/a Cellular Florida Acquisition, Inc.)
By:
---------------------------------
Title:
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IBJ XXXXXXXX BANK & TRUST COMPANY,
as Agent and Lender
By:
---------------------------------
Title:
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