Exhibit 4.9
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
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This Second Amendment to Loan and Security Agreement ("Second
Amendment") is made effective the 28th day of August, 2002, by and among
SOVEREIGN BANK (the "Bank"), a federally-chartered, SAIF-insured savings
institution with offices at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx
00000; X. X. XXXX CO., INC. (f/k/a Moro Acquisition Corp.), a Delaware
corporation ("X.X. Xxxx Co."); XXXXX X. and XXXXXXXXXX X. XXXXXX ("Menards,"
together with X.X. Xxxx Co. sometimes hereinafter referred to as "Borrowers"),
with offices at 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx
00000; and MORO CORPORATION, a Delaware corporation ("Guarantor").
BACKGROUND
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A. Borrowers and the Bank entered into a Loan and Security Agreement
dated March 31, 2000, as amended (the "Agreement").
B. Borrowers have requested the Bank to increase availability under and
extend the Line of Credit Facility and the Bank has agreed to increase the
availability under and extend the Line of Credit Facility, all as more
particularly set forth in this Second Amendment.
C. The Bank and Borrowers desire to enter into this Second Amendment to
increase the availability under and extend the Line of Credit Facility pursuant
to the terms hereof.
D. The Agreement shall remain in full force and effect, without
modification or amendment, except as specifically set forth below. All terms not
otherwise defined herein shall have the meanings set forth in the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the aforementioned Background which is
incorporated herein by reference, and in consideration of the terms and
conditions set forth herein, agree as follows:
1. Confirmation of Existing Loans. Borrowers hereby ratify, confirm and
acknowledge that the statements contained in the foregoing Background are true,
accurate and correct and that the Loan Documents, as that term is defined in the
Agreement, are valid, binding and in full force and effect as of the date
hereof. Borrowers further acknowledge, confirm, represent and warrant that they
have no defenses, set-offs, counterclaims, or challenges to or against the
payment of any sums owing under the Loan Documents, or to the enforceability or
validity of the terms thereof. Borrowers further acknowledge, confirm, represent
and warrant that they have no claims, suits or causes of action against the Bank
and hereby remise, release and forever discharge the Bank, its officers,
directors, shareholders, representatives and their successors and assigns, and
any of them, from any claims, causes of action, suits, or demands whatsoever in
law and equity, which they have or may have from the beginning of the world to
the date of this Second Amendment. Neither this Second Amendment nor any of the
documents executed in connection herewith, is in any way intended to constitute
a novation of or to the Loan Documents.
2. Confirmation of Indebtedness. Borrowers confirm and acknowledge that
the outstanding principal balance of the indebtedness as evidenced by the Loan
Documents was Eight Hundred Seventy Two Thousand Five Hundred and Twenty-Five
Dollars ($872,525) as of August 1, 2002.
3. All references in the Agreement and/or any of the Loan Documents to
"the Agreement" or "this Agreement" shall be understood to refer to the Loan and
Security Agreement, as amended by this Second Amendment, and as the same may
hereafter be amended from time to time. All terms not defined herein shall have
the meanings given to them in the Agreement.
4. Section 2.1 (a) of the Agreement is hereby amended to read in its
entirety as follows:
(a) Subject to, an in accordance with, the terms and
conditions of this Agreement, the Bank agrees to make advances in integral
multiples of $1,000.00 (the "Advances") to X.X. Xxxx Co. upon request at any
time and from time to time during the period commencing on the date hereof and
ending on the earlier of (i) the occurrence of an Event of Default (as defined
in Section 8.1 hereof), or (ii) June 30, 2003 (the "Loan Termination Date")
unless extended in writing by the Bank in its sole discretion, in an amount
which in the aggregate shall not exceed the lesser of (A) the Borrowing Base, or
(B) $2,000,000.00, in all cases less the sum of the then unpaid principal amount
of all previous Advances.
5. Section 2.2 (a) of the Agreement is hereby amended to read in its
entirety as follows:
(a) payable to the order of the Bank in the face amount of
Two Million Dollars ($2,000,000.00);
6. Section 2.2 (c) of the Agreement is hereby amended to read in its
entirety as follows:
(c) payable as to interest monthly in arrears on the first day
of each calendar month commencing September 1, 2002 through and
including the first day which:
(i) the Line of Credit shall have been terminated,
and
(ii) X.X. Xxxx Co. shall have repaid in full the Line
of Credit (its being understood that interest shall again
accrue upon any subsequent borrowing under this Line of
Credit).
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7. Representations and Warranties. Borrowers hereby represent and
warrant that, as of the date hereof:
(a) Borrowers have the authority and have taken all action
necessary to enter into this Second Amendment;
(b) The representations and warranties of Borrowers set forth
in Article 4 of the Agreement are true and correct as of the date of this Second
Amendment as if made on the date hereof; and
(c) As of the date of this Second Amendment there does not
exist any Event of Default under the Agreement nor does there exist any event
which with the passage of time, the giving of notice, or both, would constitute
an Event of Default under the Agreement.
8. Certificate(s) of Insurance. Certificate(s) of insurance evidencing
that Borrowers are in compliance with Section 6.10 of the Agreement as of the
date hereof shall be presented to the Bank prior to or concurrently with the
signing of this Second Amendment.
9. Expenses. Borrowers agrees to reimburse the Bank for its
out-of-pocket expenses, including but not limited to attorney's fees and other
costs of preparation and filing concerning this Second Amendment and other
documents as required by law or deemed necessary by Bank, including, but not
limited to, the cost of all lien searches deemed necessary by the Bank. Such
costs and expenses shall be paid simultaneously with the execution of this
Second Amendment and all such expenses hereafter incurred shall be paid within
fifteen (15) days after notice by the Bank.
10. Additional Events of Default. Without limiting the generality of
the terms and conditions of the Agreement or this Second Amendment, the
occurrence of any one or more of the following events shall constitute
additional Events of Default under the Agreement:
(a) The failure of either Borrower to duly perform or observe
any obligation, covenant or agreement set forth in this Second Amendment;
(b) Any representation or warranty of either Borrower set
forth herein is discovered to be materially untrue as of the date of this Second
Amendment, or any statement, certificate or data furnished by Borrowers to the
Bank heretofore is discovered to be materially untrue as of the date as of which
the facts therein set forth were stated or certified to be true.
11. Inconsistencies and Integration. All of the terms, conditions and
covenants, to the extent not expressly inconsistent with those set forth herein,
of the Agreement or other Loan Documents are incorporated herein by reference
and shall remain in full force and effect unaffected or unaltered by the terms
of this Second Amendment. To the extent there is any inconsistency with the
terms of this Second Amendment and any of the other Loan Documents, the terms of
this Second Amendment shall control.
12. Miscellaneous.
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(a) Further Assurances. From time to time Borrowers shall
execute and deliver to the Bank such additional documents and will provide such
additional information as the Bank may reasonably request to carry out the
intent of this Second Amendment.
(b) Governing Law. This Second Amendment, and the rights and
obligations of the parties under this Second Amendment, shall be governed by,
and construed and interpreted in accordance with, the domestic, internal laws,
but not the law of conflicts of law, of the Commonwealth of Pennsylvania.
(c) Binding Effect and Assignment. This Second Amendment shall
inure to the benefit of, and shall be binding upon, the respective successors,
heirs and assigns of the parties hereto. Neither Borrower shall assign any of
its rights or delegate any of its obligations hereunder without the prior
written consent of the Bank.
(d) Severability. If any provision of this Second Amendment
shall be invalid under applicable laws, such invalidity shall not affect any
other provision of this Second Amendment that can be given effect without the
invalid provision, and to this end, the provisions hereof are severable.
(e) Counterparts and Headings. This Second Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute but one and the same
instrument. Section headings contained herein are for convenience of reference
only and shall in no way affect or be used to construe or interpret this Second
Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment to Loan and Security Agreement as of the day and year first above
written.
BORROWERS:
X. X. XXXX CO. INC.
(f/k/a Moro Acquisition Corp.)
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, individually, on a joint
and several basis with Xxxxxxxxxx X. Xxxxxx
/s/ Xxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxx X. Xxxxxx, individually, on a
joint and several basis with Xxxxx X. Xxxxxx
SOVEREIGN BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President
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The undersigned, Moro Corporation, surety to the Bank with respect to
all obligations of Borrowers to the Bank, has read the above Second Amendment to
Loan and Security Agreement, understands the terms and conditions thereof and
the effect of said Second Amendment on Borrowers and on itself as surety to the
Bank. The undersigned hereby consents to the execution and delivery of the
foregoing Second Amendment to Loan and Security Agreement by Borrowers to the
Bank and further agrees that its guaranty and suretyship of all obligations of
Borrowers to the Bank shall remain in full force and effect undiminished by the
foregoing Second Amendment to Loan and Security Agreement.
The undersigned further acknowledges, agrees, confirms and certifies
that the Surety Agreement to which it is a party remains in full force and
effect, enforceable in accordance with its terms and that it has no defenses,
set-offs or counterclaims to the Bank's full enforcement of the terms of said
agreement.
MORO CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
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