As of April 22, 2003 Exhibit 10.5
Premix-Marbletite Manufacturing Co.,
Acrocrete, Inc. and Just-Rite Supply,
RE: AMENDMENT #3 (THE "AMENDMENT") TO THE CONSOLIDATING, AMENDED AND RESTATED
FINANCING AGREEMENT AND SECURITY AGREEMENT, DATED JANUARY 28, 2000 AMONG
CONGRESS FINANCIAL CORPORATION (FLORIDA)("LENDER") AND PREMIX-MARBLETITE
MANUFACTURING CO., ACROCRETE, INC. AND JUST-RITE SUPPLY, INC. (AS CO-BORROWERS,
COLLECTIVELY REFERRED TO HEREIN AS "BORROWER" OR "BORROWERS").
Gentlemen:
Reference is made to that certain Consolidating, Amended and Restated Financing
Agreement and Security Agreement, dated January 28, 2000 (as the same has been
or may hereafter be amended, modified or joined from time to time, the "Loan
Agreement") among Congress Financial Corporation (Florida)("Lender") and
Premix-Marbletite Manufacturing Co., Acrocrete, Inc. and Just-Rite Supply, Inc.
(as co-borrowers, collectively referred to herein as "Borrower" or "Borrowers").
As used herein, all capitalized terms not defined herein shall have the
respective meanings set forth in the Loan Agreement.
WHEREAS, Borrowers have requested that Lender modify certain terms of the
financing arrangements with Borrowers which are evidenced by the loan agreement;
and
WHEREAS, Lender is willing to so modify the terms applicable to such loans and
financial accommodations on the terms and conditions set forth herein;
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 is hereby acknowledged, the parties hereto agree as
follows:
1. By mutual agreement, sections 1.13, 2.1(a)(ii), and 9.10(g) of the
Loan Agreement, is hereby amended and restated in its entirety as set
forth below. No other parts, subsections, or sections of the Loan
Agreement are being modified or deleted.
SECTION 1.13 "Maximum Credit" shall mean the amount of $7,000,000.
SECTION 2.1(a)(ii) the lesser of: (A) from now until May 31, 2003, the
sum of fifty-two percent (52%) of the Value of Eligible Inventory;
from June 1, 2003 through June 30, 2003, the sum of fifty-one percent
(51%) of the Value of Eligible Inventory; and from July 1, 2003
thereafter, fifty percent (50%) of the Value of Eligible Inventory; or
(B) $2,100,000.
SECTION 9.10(g) all out-of-pocket expenses and costs heretofore and
from time to time hereafter incurred by Lender during the course of
periodic field examinations of the Collateral and Borrower's
operations, plus a per diem charge at the rate of $750 per person per
day for Lender's examiners in the field and office;
2. Conditions Precedent.
Each of the following is a condition precedent to any obligation of
Lender to extend Loans in excess of the amounts permitted under the
Loan Agreement prior to this Amendment:
A. All requisite corporate action and proceedings in connection
with this Amendment and the other Financing Agreements shall be
satisfactory in form and substance to the Lender, and Lender shall
have received all information, and copies of all documents, including
records of requisite corporate actions and proceedings, which Lender
may have requested in connection therewith, in form and substance
satisfactory to Lender and its counsel;
B. This Amendment and all other Financing Agreements contemplated
to be delivered in connection herewith shall have been duly executed
and delivered to Lender, in form and substance satisfactory to Lender.
3. Borrowers shall pay to Lender at closing of this Amendment a closing
fee in the amount of $20,000, which fee shall be due and payable, and
deemed to have been fully earned, on the date of this Amendment,
irrespective of any actual funding under the Loan Agreement.
4. Each Borrower certifies to Lender that (a) (after giving effect to
this Amendment) all representations and warranties of such Borrower
contained in the Loan Agreement are true and correct as of the date of
this Amendment, except to the extent such representations and
warranties relate solely to an earlier date; (b) no Event of Default
under the Loan Agreement, or event which with the passage of time or
the giving of notice, or both, would constitute an Event of Default
under the Loan Agreement, has occurred and is continuing; and (c) no
changes have been made to its organizational documents, including its
articles or certificate of incorporation or organization and its
bylaws since the date of its delivery to Lender thereof in connection
with the Loan Agreement prior to the date of this Amendment. The
Borrowers acknowledge and agree that Inventory at locations as to
which all actions required to be taken pursuant to Section 9.2 have
not been taken shall constitute Collateral, but, at the option of
Lender, shall not be deemed to be Eligible Inventory unless and until
such requirements are satisfied, which requirements shall include
UCC-11 searches, opinions of counsel and the filing of appropriate
Form UCC-1 Financing Statements.
5. In no way in limitation of the provisions of Section 9.10 of the Loan
Agreement, Borrower will pay all out-of-pocket expenses incurred by
Lender in connection with the preparation of this Amendment and of the
other Financing Agreements, including, all amendments, supplements or
modifications hereafter made to any of the foregoing after the date of
this Amendment, and the closing of the transactions contemplated
herein and therein, including, but not limited to, the reasonable fees
and expenses of counsel for Lender. In addition, Borrower agrees to
pay, and hereby indemnifies Lender for and holds Lender harmless from
and against, all costs, interest, penalties, and other amounts arising
out of or in connection with all documentary stamp taxes, intangible
taxes, filing or recording fees required in connection with the
transactions hereunder. This provision shall survive payment of the
Obligations and termination of the Financing Agreements.
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6. EACH BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT, THE LOAN
AGREEMENT, ALL DOCUMENTS AT ANY TIME MADE IN CONNECTION WITH THIS
AMENDMENT, THE LOAN AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREIN
OR THEREIN. FURTHER, EACH BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF THE LENDER NOR THE LENDER'S COUNSEL HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION. FINALLY, EACH BORROWER ACKNOWLEDGES THAT THE LENDER
HAS BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, INTER ALIA, THE
PROVISIONS OF THIS PARAGRAPH.
7. Each Borrower agrees that it has no off-sets, defenses or
counterclaims to the payment of the Obligations or the performance by
it under the Loan Agreement or the other Financing Agreements.
Further, each Borrower agrees that it has no claims of any nature
whatsoever against the Lender, its parent, subsidiaries, affiliates,
divisions, officers, directors, employees, agents, stockholders,
successors, or assigns arising out of or related to the Obligations,
the Financing Agreements, or otherwise.
8. Borrowers each acknowledge and confirm that all Collateral furnished
in connection with the Loan Agreement continues to secure the
Obligations, as hereby modified. Each of the Borrowers hereby grants
and regrants, as applicable, the Lender all liens, security interests,
assignments, and rights of setoff in and to the Collateral to secure
all Obligations.
9. Any breach of the terms of this Amendment shall, at the option of
Lender, constitute an Event of Default, entitling Lender to exercise
its rights and remedies under the Financing Agreements.
10. Except as amended by this Amendment, the Loan Agreement (as in effect
immediately prior to the effectiveness of this Amendment) and all
other Financing Agreements shall remain in full force and effect.
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11. All covenants, agreements, representations and warranties contained
herein shall be binding upon and inure to the benefit of the parties
hereto, their respective successors and assigns, except that Borrowers
shall not have the right to assign their rights hereunder or any
interest herein without the prior written consent of Lender.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
(FLORIDA)
By: /s/ Xxxx Xxxxx
--------------------
Name: Xxxx Xxxxx
Title: First Vice President
AGREED AND ACCEPTED:
Each of the undersigned Borrowers acknowledges and agrees to the foregoing
Amendment and shall continue to be bound under the Loan Agreement and the other
Financing Agreements, as hereby amended, jointly and severally.
PREMIX-MARBLETITE MANUFACTURING CO.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Title: President
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ACROCRETE, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Title: President
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JUST-RITE SUPPLY
By: /s/ Xxxx X. Xxxxxxx
-----------------------------
Title: President
--------------------------
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JOINDER
The undersigned: (1) acknowledges and confirms that Lender's loans,
advances and credit to Borrowers have been, are and will continue to be of
direct economic benefit to the undersigned, (2) consents to all terms and
provisions of the foregoing Amendment which are applicable to it, and agrees to
be bound by and comply with such terms and provisions, and (3) acknowledges and
confirms that its guarantee and waiver agreements in favor of Lender executed
pursuant to the terms of the Loan Agreement are each valid and binding and
remain in full force and effect in accordance with their respective terms
(without defense, setoff or counterclaim against enforcement thereof), which
include, without limitation, its guarantees in connection with the Loan
Agreement, as modified by the foregoing Amendment.
GUARANTOR:
Imperial Industries, Inc.
By: /s/ Xxxxxx X. Xxxxx, Xx.
--------------------------
As: Chief Operating Officer
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