THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.10
THIRD
AMENDMENT TO
This
Third Amendment to the Loan and Security Agreement (this “Amendment”)
is
dated as of this 21 day of April, 2008, by and among I.C.
Xxxxxx & Company, L.P.,
as
borrower (“Borrower”),
I.C. Xxxxxx & Company, Inc. and
Xxxxxx Design, Inc.,
as
guarantors (collectively, the “Guarantors”),
and
Wachovia
Bank, National Association,
as
lender (“Bank”).
BACKGROUND
A. Borrower
and Bank are parties to a certain Loan and Security Agreement dated as of
December 30, 2004 (as amended or otherwise modified from time to time, the
“Loan
Agreement”),
and
the other Loan Documents (as defined in the Loan Agreement). Capitalized terms
used herein and not otherwise defined shall have the respective meanings set
forth in the Loan Agreement.
B. Borrower
has informed Bank that Borrower and certain of its partners are negotiating
(i)
an additional cash capital contribution by such partners to Borrower in an
amount equal to at least $2,000,000, (ii) an additional cash capital
contribution by Borrower’s management in an amount equal to at least $100,000,
(iii) the deferral of four (4) months of royalty payments owing to Latitude
in
an amount equal to at least $1,500,000 through until no earlier than March
31,
2009 (the “Additional
Deferred Royalties”)
and
(iv) the conversion to equity by such partners of at least $2,800,000 of Debt
owed by Borrower to such partners (collectively, the “Capital
Infusion”).
C. The
parties have agreed, subject to the terms and conditions of this Amendment,
to
amend the Loan Agreement.
NOW,
THEREFORE, with the foregoing Background hereinafter deemed incorporated by
this
reference, the parties hereto, intending to be legally bound, promise and agree
as follows:
1. AMENDMENTS
TO LOAN AGREEMENT
1.1 Definitions.
The
following definitions contained in Section 1.1 of the Loan Agreement are amended
and restated as follows:
“Applicable
Margin”
means
(a) prior to January 1, 2009, (i) for any Prime Rate Loan, 0.25% and (ii) for
any LIBOR Loan, 2.50%; and (b) on and all times after January 1, 2009, the
per
annum rate of interest as determined pursuant to Section 2.2.5
hereof.
“Borrowing
Base”
means,
at Borrower’s election, subject to the election limitations contained in this
Agreement as amended, an amount equal to either Borrowing Base Option A,
Borrowing Base Option B, Borrowing Base Option AA or Borrowing Base Option
C.
“Deferred
Royalties”
means
the sum of (a) the aggregate sum not to exceed $2,388,000 payable pursuant
to
the terms of the License Agreements, and representing deferred 2004 royalty
payments owing to Latitude and (b) the Additional Deferred Royalties (as defined
in that certain Third Amendment to Loan and Security Agreement among Borrower,
Guarantors and Bank dated April 21, 2008).
1.2 New
Definitions.
The
following new definitions are hereby added to Section 1.1 of the Loan
Agreement:
“Borrowing
Base Option AA”
means,
on any date of determination thereof, an amount equal to:
(i) up
to 85%
(or such lesser percentage as Bank may determine from time to time in its
reasonable discretion) of the total amount of Eligible Accounts; provided that,
the percentage shall be reduced to the extent Borrower’s Dilution Rate exceeds
five percent (5%), plus
(ii) the
least
of (a) $500,000, and (b) the lesser of (A) up to 45% (or such lesser percentage
as Bank may determine from time to time in its reasonable
discretion) of
the
total amount of Eligible Inventory and (B) up to 80% of the NOLV of Eligible
Inventory, minus
(iii) any
Reserves.
“Borrowing
Base Option C”
means,
on any date of determination thereof, an amount equal to:
(i) up
to 85%
(or such lesser percentage as Bank may determine from time to time in its
reasonable discretion) of the total amount of Eligible Accounts; provided that,
the percentage shall be reduced to the extent Borrower's Dilution Rate exceeds
five percent (5%), plus
(ii) the
least
of (a) $8,000,000, and (b) the sum of (i) the lesser of (A) up to 45% (or such
lesser percentage as Bank may determine from time to time in its reasonable
discretion) of
the
total amount of Eligible Inventory and (B) up to 80% of the NOLV of Eligible
Inventory; plus
(ii) the
lesser of (A) up to 45% (or such lesser percentage as Bank may determine from
time to time in its reasonable discretion) of the total amount of Eligible
LC
Inventory and (B) up to 80% of the NOLV of Eligible LC Inventory, minus
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(iii) any
Reserves.
1.3 Adjustment
of Interest Rate.
Section
2.2.5 of the Loan Agreement is amended and restated as follows:
2.2.5 Adjustment
of Interest Rate.
Commencing on January 1, 2009, and thereafter on the first day of each
succeeding Interest Adjustment Period, the interest rate for all Loans for
each
applicable Interest Adjustment Period shall be determined based upon the prior
calendar quarter’s average Excess Availability (as determined by Bank, in its
reasonable discretion), in accordance with the following matrix:
|
Excess
Availability
|
Applicable
Margin for
Prime Rate Loans
|
Applicable
Margin
for LIBOR Loans
|
|
Equal
to or less than $2,500,000
|
0.25%
|
2.50%
|
|
Greater
than $2,500,000 but equal to or less than $5,000,000
|
0%
|
2.25%
|
|
Greater
than $5,000,000
|
-0.25%
|
2.00%
|
For
purposes of the foregoing (i) no downward rate adjustment shall occur if an
Event of Default has occurred and is continuing on the applicable Interest
Adjustment Date, such adjustment to take effect only upon the cure or waiver
in
writing of such Event of Default and (ii) if Borrower
fails to
timely deliver the applicable compliance certificate and monthly financial
statements to Bank in accordance with this Agreement on the date when due,
then
at Bank’s option, the interest rates above shall be increased on such date to
the highest rate of interest pursuant to the above matrix, which rate of
interest shall continue in effect until such compliance certificate and
financial statements shall have been delivered.
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1.4 Letters
of Credit Sublimit.
Section
2.10.1 of the Loan Agreement is amended and restated as follows:
2.10.1 Issuance
of Letters of Credit.
Bank
shall from time to time issue, upon five (5) Business Days prior written notice,
extend or renew letters of credit for the account of Borrower or its
Subsidiaries; provided that (i) the aggregate face amount of Letters of Credit
issued by Bank which are outstanding at any one time shall not exceed $2,000,000
at all times during which Borrower has elected that the Borrowing Base to be
determined using Borrowing Base Option A, $8,000,000 at all times during which
Borrower has elected that the Borrowing Base to be determined using Borrowing
Base Option B, $2,000,000 at all times during which Borrower has elected that
the Borrowing Base to be determined using Borrowing Base Option AA and
$8,000,000 at all times during which Borrower has elected that the Borrowing
Base to be determined using Borrowing Base Option C (ii) Bank shall have no
obligation to issue any Letter of Credit if, after giving effect thereto, the
principal amount of all Revolver Loans and the Letter of Credit Obligations
would exceed the lesser of the Borrowing Base and the Revolver Commitment,
and
(iii) all other conditions precedent to the issuance of each such Letter or
Credit as set forth herein are satisfied or waived in writing by Bank. All
payments made by Bank under any such Letters of Credit (whether or not Borrower
is the account party) and all fees, commissions, discounts and other amounts
owed or to be owed to Bank in connection therewith, shall be paid on demand,
unless Borrower instructs Bank to make a Revolver Loan to pay such amount,
Bank
agrees to do so, and the necessary amount remains available to be drawn as
a
Revolver Loan hereunder. All Letter of Credit Obligations shall be secured
by
the Collateral. Borrower shall complete and sign such applications and
supplemental agreements and provide such other documentation as Bank may
require. The form and substance of all Letters of Credit, including expiration
dates, shall be subject to Bank’s approval, and Bank shall have no obligation to
issue any Letter of Credit which has a maturity date later than ten (10) days
prior to the Termination Date. Bank may charge certain fees or commissions
for
the issuance, handling, renewal or extension of a Letter of Credit. Borrower
unconditionally guarantees all obligations of any Subsidiary with respect to
Letters of Credit issued by Bank for the account of such Subsidiary. Upon a
Default, Borrower shall, on demand, deliver to Bank good funds equal to 105%
of
Bank’s maximum liability under all outstanding Letters of Credit, to be held as
cash Collateral for Borrower’s reimbursement obligations and other
Obligations.
1.5 Financial
Covenants.
Article
7 of the Loan Agreement is amended and restated as follows:
7. Other
Covenants of Borrower.
Borrower covenants and agrees that from the date hereof and until payment in
full of the Obligations and the termination of this Agreement, Borrower and
each
Subsidiary shall comply with the following additional covenants:
7.1 Excess
Availability.
At all
times during which Borrower has elected that the Borrowing Base be determined
using (a) Borrowing Base Option B, Borrower shall maintain Excess Availability
of at least $2,000,000; provided, however that such amount shall be reduced
to
$1,500,000 for such calendar month at such time as Borrower has maintained
a
Fixed Charge Coverage Ratio of not less than 1.20 to 1.00 as of the end of
a
calendar month determined for the twelve (12) month period then ending and
(b)
Borrowing Base Option C, Borrower shall maintain Excess Availability of at
least
$1,000,000; provided, however that such amount shall be increased to $1,500,000
for such calendar month at such time as Borrower has maintained a Fixed Charge
Coverage Ratio of not less than 1.20 to 1.00 as of the end of a calendar month
determined for the twelve (12) month period then ending (the “Option
C Collateral Block”).
As
used herein, “Fixed
Charge Coverage Ratio”
means
(i) EBITDA, less
the sum
of (A) all unfinanced Capital Expenditures made in the Applicable Fiscal Period,
and (B) any dividends and distributions paid in the Applicable Fiscal Period,
and (C) cash taxes paid in the Applicable Fiscal Period (without benefit of
any
refunds), and (D) cash payments made in the Applicable Fiscal Period with
respect to Capital Stock based incentive compensation, and (E) any repurchases
of Capital Stock made in the Applicable Fiscal Period, divided by (ii) the
sum
of (A) the current portion of scheduled principal amortization on Funded Debt
for the Applicable Fiscal period, plus
(B) cash
principal payments paid on Funded Debt for the Applicable Fiscal Period (C)
cash
interest payments paid in the Applicable Fiscal Period, plus
(D) the
amount of all Deferred Note Payments paid in the Applicable Fiscal Period,
plus
(E) the
amount of all Deferred Royalties paid in the Applicable Fiscal
Period.
As used
herein, (i) “EBITDA”
means
the sum of (A) consolidated net income of Borrower and its Subsidiaries in
the
Applicable Fiscal Period (computed without regard to any extraordinary items
of
gain or loss) plus
(B) to
the extent deducted from revenue in computing consolidated net income for such
period, the sum of (1) interest expense, (2) income tax expense, (3)
depreciation and amortization, and (4) non-cash Capital Stock based incentive
compensation, (ii)
“Capital
Expenditures”
means
for any period the aggregate cost of all capital assets acquired by Borrower
and
its Subsidiaries during such period, as determined in accordance with GAAP;
(iii) “Applicable
Fiscal Period”
means
a
period of twelve (12) consecutive, trailing calendar months ending at the end
of
each prescribed calendar month and (iv) “Funded
Debt”
means
(A) debt for borrowed funds, (B) debt for the deferred payment by one (1) year
or more of any purchase money obligation, and (C) any subordinated
debt.
Borrower
shall calculate its Fixed Charge Coverage Ratio monthly and such calculation
shall be included in each monthly compliance certificate delivered to Bank
pursuant to Section 5.6(d) of the Agreement.
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7.2 Capital
Expenditures.
Borrower shall not expend on gross fixed assets (including gross leases to
be
capitalized under GAAP and leasehold improvements) (i) during the fiscal year
ending December 31, 2008 an amount exceeding $250,000 in the aggregate in such
fiscal year, (ii) during the fiscal year ending December 31, 2009 an amount
exceeding $300,000 in the aggregate in such fiscal year and (iii) during the
fiscal year ending December 31, 2010 and during any fiscal year thereafter,
an
amount exceeding $500,000 in the aggregate.
7.3 Leases.
Borrower shall not incur, create, or assume any direct or indirect liability
for
the payment of rent or otherwise, under any lease or rental arrangement
(excluding capitalized leases) if immediately thereafter the sum of such lease
or rental payments to be made by Borrower during any 12-month period is
increased by $175,000 in the aggregate.
7.4 Fixed
Charge Coverage Ratio.
At all
times during which Borrower has elected that the Borrowing Base be determined
using Borrowing Base Option C, Borrower shall maintain a Fixed Charge Coverage
Ratio (as defined in Section 7.1 of this Agreement) of not less than 1.00 to
1.00 for the fiscal quarters ending March 31, 2009, June 30, 2009 and September
30, 2009 and 1.20 to 1.00 for the fiscal quarter ending December 31, 2009 and
each fiscal quarter thereafter; provided, however, the calculation of Fixed
Charge Coverage Ratio for the fiscal quarter ending March 31, 2009 shall be
for
the one (1) fiscal quarter ending on such date of determination, the calculation
of Fixed Charge Coverage Ratio for the fiscal quarter ending June 30, 2009
shall
be for the two (2) fiscal quarters ending on such date of determination and
the
calculation of Fixed Charge Coverage Ratio for the fiscal quarter ending
September 30, 2009 shall be for the three (3) fiscal quarters ending on such
date of determination.
1.6 Capital
Infusion.
Notwithstanding anything to the contrary contained herein or in the Loan
Agreement:
(a) Borrower
may elect to use Borrowing Base Option AA until the earlier of (i) May 30,
2008,
(ii) the date on which Borrower consummates the Capital Infusion or (iii) the
date Borrower is notified that its partners and/or management will not provide
the Capital Infusion.
(b) Borrower
may elect to use Borrowing Base Option C solely following the consummation
of
the Capital Infusion so long as Borrower consummates the Capital Infusion on
or
before May 30, 2008.
(c) Borrower
shall deliver to Bank any and all documents, instruments and agreements
evidencing and/or relating to the Capital Infusion at least two (2) Business
Days prior to the consummation of the Capital Infusion and the form, substance
and terms thereof shall acceptable to Bank in its sole and absolute
discretion.
(d) Prior
to
the consummation of the Capital Infusion, Borrower and Latitude shall have
executed and delivered to Bank an amended and restated Licensor Agreement,
in
form and substance acceptable to Bank.
1.7 Baltimore
Real Estate.
(a) Contemporaneously
with the disposition of Borrower’s real estate located at 0000 Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 (the “Maryland
Real Property”),
Borrower shall prepay the Loans in an amount equal to 100% of the Net Cash
Proceeds of such disposition (the “Real
Estate Prepayment”).
Borrower and Bank agree and acknowledge that upon such disposition Bank shall
institute an additional Reserve against the Borrowing Base in an amount equal
to
the Real Estate Prepayment (the “Real
Estate Reserve”);
provided, however the Real Estate Reserve shall be permanently reduced to $0
upon Bank’s receipt of the consolidated audited financial statements of Xxxxxx
and its Subsidiaries for the fiscal year ending December 31, 2008 so long as
at
such time (a) no Event of Default or Default has occurred and is continuing,
(b)
Borrower has maintained a monthly Free Cash Flow of at least 85% of the amount
set forth on Schedule
A
attached
hereto as of the end of each calendar month through and including the calendar
month ending December 31, 2008 and (c) on such date the Option C Collateral
Block set forth in Section 7.1 of the Loan Agreement is automatically and
permanently increased to $1,500,000. Borrower shall calculate its Free Cash
Flow
monthly and such calculation shall be included in each monthly compliance
certificate delivered to Bank pursuant to Section 5.6(d) of the
Agreement.
5
(b) For
purposes of Section 1.7(a), “Free
Cash Flow”
shall
mean the positive difference, if any, between (i) EBITDA, less
the sum
of (A) all unfinanced Capital Expenditures made in the Applicable Fiscal Period,
and (B) any dividends and distributions paid in the Applicable Fiscal Period,
and (C) cash taxes paid in the Applicable Fiscal Period (without benefit of
any
refunds), and (D) cash payments made in the Applicable Fiscal Period with
respect to Capital Stock based incentive compensation, and (E) any repurchases
of Capital Stock made in the Applicable Fiscal Period and (ii) the sum of (A)
the current portion of scheduled principal amortization on Funded Debt for
the
Applicable Fiscal period, plus
(B) cash
principal payments paid on Funded Debt for the Applicable Fiscal Period (C)
cash
interest payments paid in the Applicable Fiscal Period, plus
(D) the
amount of all Deferred Note Payments paid in the Applicable Fiscal Period,
plus
(E) the
amount of all Deferred Royalties paid in the Applicable Fiscal Period;
“EBITDA”
has
the
meaning set forth in Section 7.1 of the Loan Agreement (provided for purposes
of
the calculation thereof, “Applicable Fiscal Period” shall have the meaning set
forth below); “Capital
Expenditures”
has
the
meaning set forth in Section 7.1 of the Loan Agreement; “Applicable
Fiscal Period”
means
the calendar month ending on the date of determination; “Funded
Debt”
has
the
meaning set forth in Section 7.1 of the Loan Agreement; and “Net
Cash Proceeds”
shall
mean the aggregate cash proceeds received by Borrower in respect of the
disposition of the Maryland Real Property, net of (a) direct costs (including,
without limitation, legal, accounting and investment banking fees, and sales
commissions), and (b) taxes paid or payable as a result thereof.
1.8 Borrowing
Base Certificate.
An
updated form of Borrowing Base Certificate is attached hereto as Exhibit
A.
Each
Borrowing Base Certificate delivered by Borrower to Bank as required by Section
5.6(a) of the Loan Agreement shall include (a) the calculations of the Borrowing
Base determined using each of the Borrowing Base Option A, the Borrowing Base
Option B, Borrowing Base Option AA and Borrowing Base Option C and (b) notice
of
Borrower’s election to use either Borrowing Base Option A, the Borrowing Base
Option B, Borrowing Base Option AA or Borrowing Base Option C until the delivery
of the next Borrowing Base Certificate.
2. CONFIRMATION
OF INDEBTEDNESS
Borrower
hereby confirms and agrees that, as of April 21, 2008, the total principal
outstanding Loans under the Loan Agreement is $2,401,683.50 and the total face
amount of issued and outstanding Letters of Credit is $38,784.20, and that
Borrower is unconditionally liable to Bank for such amount, together all accrued
and unpaid interest and expenses through the Amendment Effective Date, without
any set-off, deduction, counterclaim or defense.
3. FURTHER
ASSURANCES
Borrower
hereby agrees to take all such actions and to execute and/or deliver to Bank
all
such agreements, instruments, certificates, assignments, financing statements
and other documents, as Bank may reasonably require from time to time, to
effectuate and implement the purposes of this Amendment.
6
4. CONFIRMATION
OF COLLATERAL
Borrower
covenants, confirms and agrees that as security for the repayment of the
Obligations, Bank has, and shall continue to have, and is hereby granted a
continuing lien on and security interest in the Collateral, all whether now
owned or hereafter acquired, created or arising, including all proceeds thereof.
Borrower acknowledges and agrees that nothing herein contained in any way
impairs Bank’s existing rights and priority in the Collateral.
5. REPRESENTATIONS
AND WARRANTIES
Borrower
warrants and represents to Bank that:
(a) By
execution of this Amendment, Borrower reconfirms all warranties and
representations made to Bank under the Loan Documents and restates such
warranties and representations as of the date hereof all of which shall be
deemed continuing until all of the Obligations are paid and satisfied in
full;
(b) The
execution and delivery by Borrower and Guarantors of this Amendment and the
performance of the transactions herein contemplated (i) are and will be within
their powers, (ii) have been authorized by all necessary action, and (iii)
are
not and will not be in contravention of any order of court or other agency
of
government, of law, of any organization document of Borrower or any Guarantor
or
of any indenture, agreement or undertaking to which Borrower or any Guarantor
is
a party or by which the property of Borrower or any Guarantor is bound, or
be in
conflict with, result in a breach of or constitute (with due notice and/or
lapse
of time) a default under any such indenture, agreement or undertaking, or result
in the imposition of any lien, charge or encumbrance of any nature on any of
the
properties of Borrower or any Guarantor;
(c) This
Amendment and any assignment or other instrument, document or agreement executed
and delivered in connection herewith, will constitute the legal, valid and
binding obligations of Borrower and Guarantor, enforceable in accordance with
their respective terms, subject only to bankruptcy and similar laws affecting
creditors’ rights generally;
(d) Upon
the
effectiveness of this Amendment, there are no outstanding Defaults or Events
of
Default under any of the Loan Documents; and
(e) There
has
been no change which could have a Material Adverse Effect on Borrower, any
Subsidiary or any Guarantor since the date of the most recent financial
statements of such Person delivered to Bank from time to time.
6. CONDITIONS
PRECEDENT
This
Amendment shall not be effective until the following conditions have been met
to
the sole satisfaction of Bank (all documents to be in form and substance
satisfactory to Bank):
(a) Borrower
and each Guarantor shall have executed and delivered to Bank this
Amendment;
(b) Borrower
shall have delivered to Bank certified resolutions and written consents
authorizing the execution and delivery and performance of this Amendment and
the
Capital Infusion;
7
(c) Borrower
shall have paid to Bank, in immediately available funds, a non-refundable
amendment fee in an amount equal to $25,000, which fee is fully earned by Bank
as of the Amendment Effective Date; and
(d) Borrower
and each Guarantor shall have executed and delivered, or shall have caused
to be
executed and delivered (as applicable), to Bank all other agreements,
instruments and documents which Bank may reasonably require, each in form and
substance acceptable to Bank in its sole discretion.
This
Amendment shall have effect as of the date all conditions precedent in this
Section 6 shall have been satisfied (the “Amendment
Effective Date”).
7. PAYMENT
OF EXPENSES
Borrower
shall pay or reimburse Bank for all reasonable attorneys’ fees and expenses and
all reasonable out of pocket costs in connection with the preparation,
negotiation and execution of this Amendment and all agreements, instruments
and
documents provided for herein or related hereto.
8. REAFFIRMATION
This
Amendment shall be incorporated into and made part of the Loan Agreement. Except
as expressly modified by the terms hereof, all of the terms and conditions
of
the Loan Agreement, and all other of the Loan Documents are hereby reaffirmed
and shall continue in full force and effect as therein written.
9. GUARANTEES
Execution
of this Amendment by each Guarantor reflects the approval of such Guarantor
to
this Amendment, and the unconditional acknowledgement by such Guarantor that
such Guarantor’s Guaranty Agreement executed in favor of Bank remains in full
force and effect in accordance with its terms.
10. RELEASE
As
further consideration for the agreement of Bank to enter into this Amendment,
Borrower and each Guarantor hereby waives, releases and discharges Bank, all
affiliates of Bank and all of the directors, officers, employees, attorneys
and
agent of Bank and all affiliates of such Persons, from any and all claims,
demands, actions or causes of action whether known or unknown existing as of
the
date hereof, arising out of or in any way relating to this Amendment, the Loan
Agreement, the Loan Documents and/or any documents, agreements, instruments,
dealings or other matters connected with this Amendment, the Loan Agreement,
the
Loan Documents or the administration thereof.
11. MISCELLANEOUS
11.1 Integrated
Agreement.
The
Loan Documents and this Amendment shall be construed as integrated and
complementary of each other, and as augmenting and not restricting Bank’s
rights, remedies and security. If, after applying the foregoing, an
inconsistency still exists, the provisions of this Amendment shall control.
8
11.2 Severability.
Any
provision hereof, the Loan Agreement or any other Loan Document that is
prohibited or unenforceable in any jurisdiction shall be, as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.3 Non-Waiver.
No
omission or delay by Bank in exercising any right or power under this Amendment,
or the Loan Documents or any related agreement will impair such right or power
or be construed to be a waiver of any Default or Event of Default or an
acquiescence therein, and any single or partial exercise of any such right
or
power will not preclude other or further exercise thereof or the exercise of
any
other right, and no waiver will be valid unless in writing and signed by Bank
and then only to the extent specified. Bank’s rights and remedies are cumulative
and concurrent and may be pursued singly, successively or together.
11.4 Headings.
The
headings of any paragraph of this Amendment are for convenience only and shall
not be used to interpret any provision of this Amendment.
11.5 Survival.
All
warranties, representations and covenants made by Borrower herein, or in any
agreement referred to herein or on any certificate, document or other instrument
delivered by it or on its behalf under this Amendment, shall be considered
to
have been relied upon by Bank. All statements in any such certificate or other
instrument shall constitute warranties and representations by Borrower
hereunder. All warranties, representations, and covenants made by Borrower
hereunder or under any other agreement or instrument shall be deemed continuing
until the Obligations are indefeasibly paid and satisfied in full.
11.6 Successors
and Assigns.
This
Amendment shall be binding upon and shall inure to the benefit of Borrower
and
Bank, and their respective successors and assigns; provided, that Borrower
may
not assign any of its rights hereunder without the prior written consent of
Bank, and any such assignment made without such consent will be
void.
11.7 Governing
Law. This
Amendment, the Loan Agreement and the Loan Documents shall be deemed contracts
made under the laws of the State of the Jurisdiction and shall be governed
by
and construed in accordance with the laws of said state (excluding its conflict
of laws provisions if such provisions would require application of the laws
of
another jurisdiction) except insofar as the laws of another jurisdiction may,
by
reason of mandatory provisions of law, govern the perfection, priority and
enforcement of security interests in the Collateral.
11.8 WAIVER
OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF
AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AMENDMENT, THE LOAN
AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED
IN
CONNECTION WITH THIS AMENDMENT OR THE LOAN AGREEMENT OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK
TO
ENTER INTO AND ACCEPT THIS AGREEMENT.
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11.9 Counterparts.
This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which when taken together shall
constitute but one and the same instrument. Any signature delivered by a party
by facsimile transmission shall be deemed to be an original signature
hereto.
[SIGNATURES
ON FOLLOWING PAGE]
10
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their duly authorized officers as of the date first above
written.
|
BORROWER:
|
I. C. XXXXXX & COMPANY, L.P. | |
| By: I.C. Xxxxxx & Company, Inc., general partner | ||
|
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
Xxxxxx
X. Xxxx, Chief Executive Officer
|
||
|
BANK:
|
WACHOVIA BANK, NATIONAL ASSOCIATION | |
|
By:
|
/s/
Xxxxxxxx Xxxxxxxxxx
|
|
|
Xxxxxxxx
Xxxxxxxxxx, Director
|
||
|
GUARANTORS:
|
I. C. XXXXXX & COMPANY, L.P. | |
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Xxxxxx
X. Xxxx, Chief Executive Officer
|
||
| XXXXXX DESIGN, INC. | ||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
|
|
Xxxxxx
X. Xxxx, Chief Executive
Officer
|
||
