EXECUTION
AMENDMENT NO. 17 TO
LOAN AND SECURITY AGREEMENT
---------------------------
AMENDMENT NO. 17 TO LOAN AND SECURITY AGREEMENT ("Amendment
No. 17"), dated June 10, 2003, by and among X.X. Xxxxxxxxxx & Co., Inc.
("Borrower"), EFP Corporation ("EFP"), Xxxx Group, Inc. ("Xxxx"), Magnetic
Instruments Corp. ("MIC"), Xxxxxx Trailer Mfg. Co. ("Xxxxxx"), Truck Accessories
Group, Inc. ("TAG"), Raider Industries Inc. ("Raider"), SWK Holdings, Inc.,
formerly known as KWS Manufacturing Company, Inc. ("KWS"), Universal Xxxxxxx,
Inc. ("Xxxxxxx"), Xxxxxx Trailer Financial Corporation ("MTFC") and Xxxxxx
Trailer Financial Management, L. P. ("MTF Management", and together with EFP,
Xxxx, MIC, Xxxxxx, TAG, Raider, KWS, Xxxxxxx and MTFC, each individually
sometimes referred to herein as a "Guarantor" and, collectively, "Guarantors")
and Congress Financial Corporation, a Delaware corporation, as Lender
("Lender").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Lender, Borrower and Guarantors have entered into financing
arrangements pursuant to which Lender has made and may make loans and advances
and provide other financial accommodations to Borrower as set forth in the Loan
and Security Agreement, the Loan and Security Agreement, dated as of June 28,
1996, by and among Lender, Borrower and Guarantors, as amended by Amendment No.
1 to Loan and Security Agreement, dated May 13, 1998, Amendment No. 2 to Loan
and Security Agreement, dated as of June 30, 1998, Amendment No. 3 to Loan and
Security Agreement, dated as of June 24, 1999, Amendment No. 4 to Loan and
Security Agreement, dated as of February 25, 2000, Amendment No. 5 to Loan and
Security Agreement, dated as of March 8, 2000 , Amendment No. 6 to Loan and
Security Agreement, dated as of March 17, 2000, Amendment No. 7 to Loan and
Security Agreement, dated as of September 29, 2000, Amendment No. 8 to Loan and
Security Agreement, dated as of October 31, 2000, Amendment No. 9 to Loan and
Security Agreement, dated March 27, 2001, Amendment No. 10 to Loan and Security
Agreement, dated as of June 29, 2001, Amendment No. 11 to Loan and Security
Agreement, dated as of August 14, 2001, Amendment No. 12 to Loan and Security
Agreement, dated as of December 14, 2001, Amendment No. 13 to Loan and Security
Agreement, dated as of March 1, 2002, Amendment No. 14 to Loan and Security
Agreement, dated April 22, 2002, Amendment No. 15 to Loan and Security
Agreement, dated May 30, 2002, and Amendment No. 16 to Loan and Security
Agreement, dated March 26, 2003 (and as heretofore amended or may hereafter be
further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Loan Agreement") and the agreements, documents and instruments at
any time executed and/or delivered in connection therewith or related thereto
(collectively, together with the Loan Agreement, the "Financing Agreements");
(a) WHEREAS, in connection with the offer to exchange the New Notes (as
hereinafter defined) for the New Notes, Borrower and Guarantors have requested
that Lender consent to the New Note Offering (as hereinafter defined), consent
to the merger of Beltrami Door Company (an existing Subsidiary of Borrower which
is not an Obligor) with and into Xxxxxx, and make certain amendments to the Loan
Agreement; and
(b)
(c) WHEREAS, Lender is willing to provide such consents and to make such
amendments to the extent and subject to terms and conditions set forth herein.
(d)
(e) NOW, THEREFORE, in consideration of the mutual conditions and agreements
and covenants set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
(f) (a)
2. Section Definitions.
3.
3.1 Additional Definitions. As used herein, the following terms shall have
the respective meanings given to them below and the Loan Agreement shall be
deemed and is hereby amended to include, in addition and not in
limitation of, each of the following definitions:
3.2
(a) "Amendment No. 17" shall mean this Amendment No. 17 to Loan and Security
Agreement by and among Lender, Borrower and Guarantors, as the same now exists
and may hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced.
(b)
(c) "Collateral Access Agreement" shall mean the Access and Use Agreement,
dated on or about the date of Amendment No.17, made by the New Note Trustee in
favor of Lender, in form and substance satisfactory to Lender.
(d)
(e) "Consummation Date" shall mean the date on which the Senior Notes shall
be exchanged for New Notes pursuant to and in accordance with the New Note
Agreements.
(f)
(i) "Exchange Offer Documents" shall mean, individually and collectively,
each and all of the following (as the same now exist or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced): the
Offering Memorandum/Consent Solicitation Statement with respect to the Offer to
Exchange 12.50% Senior Secured Notes due May 2007 of X.X. Xxxxxxxxxx & Co., Inc.
or Xxxxxxxxxx Holdings, Inc. for all the Outstanding 12.50% Senior Notes due May
2004 of X.X. Xxxxxxxxxx & Co., Inc. and Solicitation of Consents for Amendments
to the Related Indentures and all other agreements, documents and instruments
related thereto.
(ii)
(iii) "New Note Agreements" shall mean: the Exchange Offer Documents, the New
Notes the New Note Indenture, the Security Documents (as such term is defined in
the New Note Indenture) and all other agreements, documents and instruments now
or at any time hereafter executed and/or delivered by Borrower, any Guarantor or
any other person in connection with the New Note Offering, as the same now exist
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced.
(iv)
(g) "New Note Indenture" shall mean the Indenture, dated on or about the
Consummation Date, among Borrower, as issuer, certain Guarantors, parties
thereto, and New Note Trustee, with respect to the New Notes, as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced.
(h)
(i) "New Note Offering" shall mean the offer of Borrower to exchange the
Senior Notes for New Notes pursuant to the Exchange Offer Documents.
(j)
(k) "New Notes" shall mean, collectively, the 12.50% Senior Secured Notes
due May 2007 containing such terms as are contemplated by the Exchange Offer
Documents as in effect on the date hereof, to be issued by Borrower pursuant to
the New Note Indenture in the aggregate initial principal amount equal to the
Senior Notes exchanged pursuant to the New Note Offering (as the same shall
exist on the Consummation Date or may thereafter be amended, modified,
supplemented, extended, renewed, restated or replaced).
(l)
(m) "New Note Trustee" shall mean Wilmington Trust Company, and its
successors and assigns, and any replacement trustee permitted pursuant to the
terms and conditions of the New Note Indenture.
(n)
(o) "Securities Laws" shall mean the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and all rules, regulations and
interpretations issued pursuant thereto or in connection therewith, and all
state and local statutes, rules and regulations issued in connection therewith
or related thereto, as the same now exist or may hereafter be amended, modified,
interpreted, recodified or supplemented.
(p)
3.3 Amendment to Definitions.
3.4
(a) All references to the term "Financing Agreements" in the Loan Agreement
and the other Financing Agreements shall be deemed and each such reference is
hereby amended to include, in addition and not in limitation, this Amendment No.
17, and all other agreements documents and instruments at any time executed
and/or delivered
by any Obligor or any other person in connection with any of the foregoing.
1.1 Interpretation. For purposes of this Amendment No. 17, all terms used
herein, including those terms used or defined in the recitals hereto, shall have
the respective meanings assigned thereto in the Loan Agreement.
1. Section Consents. Notwithstanding anything to the contrary set forth
in the Loan Agreement or any of the other Financing Agreements and subject to
the terms and conditions contained herein, Lender hereby consents to: 2.
(a) the New Note Offering pursuant to and in accordance with the
terms of the Exchange Offer Documents and New Note Agreements as in effect on
the Consummation Date; and
(b) the merger of Beltrami Door Company into Xxxxxx.
(c)
3. Section Confirmation of Security Interests.
4.
4.1 Borrower and each Guarantor (to the extent it is a party to the Congress
Guarantee described below), hereby expressly and specifically ratifies, restates
and confirms the terms and conditions of the Guarantee, dated June 28, 1996 (the
"Congress Guarantee"), made by each Guarantor in favor of Lender (as the same
has been amended, modified, ratified, and confirmed, the "Lender Guarantor"),
and its liability for all of the Obligations, and other obligations,
liabilities, agreements and covenants thereunder.
4.2
4.3 Section 5 of the Loan Agreement is hereby deleted and replaced as
follows:
4.4
"5.1 Grant of Security Interest. To secure payment and performance of
all Obligations, Borrower" and each Guarantor hereby grants to Lender,
and confirms, reaffirms and restates its prior grant to Lender of, a
continuing security interest in, a lien upon, and a right of set off
against, and hereby assigns to Lender, as security, the following
property and interests in property of Borrower and each Guarantor,
whether now owned or hereafter acquired or existing, and wherever
located (collectively, the "Collateral"), including:
(a) all Receivables, including but not limited to
"Accounts" as defined in Article 9 of the Uniform Commercial Code;
(b) all present and future contract rights and other
general intangibles (excluding general and partnership interests in
Xxxxxx Trailer Financial Management, L.P. owned by Xxxxxx Trailer
Mfg. Co. or any other Subsidiary of Borrower), including, but not
limited to, tax and duty refunds, registered and unregistered
patents, trademarks, service marks, copyrights, trade names,
applications for the foregoing, trade secrets, goodwill, processes,
drawings, blueprints, customer lists, licenses, whether as licensor
or licensee, and also including, but not limited to, choses in
action and other claims in connection with or related to the
Receivables or any of the other Collateral;
(c) all present and future chattel paper (including all
tangible and electronic chattel paper), documents and instruments
(i) which evidence or relate to Receivables or Inventory and
including all documents of title or (ii) which evidence or relate to
indebtedness arising pursuant to Receivables or any of the other
Collateral (including, without limitation, (A) the intercompany
Notes or any promissory notes or instruments which at any time
evidence indebtedness of any Affiliate or Borrower arising from
loans, advances or other financial accommodations made or provided
by Borrower to or for the benefit of such Affiliate with proceeds of
the Loans or in connection with the Letter of Credit Accommodations
and (B) promissory notes or other instruments which evidence
indebtedness of any account debtor or other obligor in respect of
any Receivables);
(d) (i) all present and future monies, securities,
credit balances, deposits, deposit
accounts, documents, instruments and other property of Borrower and
Guarantors now or hereafter held or received by or in transit to
Lender or its affiliates, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, (ii) all present and future
monies, securities, credit balances and deposits at any bank or
other financial institution (A) constituting proceeds of Receivables
or any of the other Collateral or (B) constituting proceeds of
loans, advances or other financial accommodations made or provided
by Lender or its Affiliates to or for the benefit of Borrower or its
Affiliates or (C) constituting proceeds of loans, advances or other
financial accommodations made or provided by Borrower to or for the
benefit of any Affiliate with proceeds of the Loans or in connection
with the Letter of Credit Accommodations or (D) held or deposited in
or delivered to any deposit account or other account used in
connection with the collection of Receivables or any of the other
Collateral, or containing proceeds of the Receivables or any of the
other Collateral, or containing proceeds of Loans of Letter of
Credit Accommodations made or provided by Lender or its Affiliates
to or for the benefit of Borrower or its Affiliates, or proceeds of
loans, advances or other financial accommodations made or provided
by Borrower to or for the benefit of any Affiliate with proceeds of
the Loans or in connection with the Letter of Credit Accommodations,
and (iii) all right, title and interest of Borrower and Guarantors
in or to any deposit account or other account maintained at any bank
or other financial institution used in connection with the
collection of the Receivables or any of the other Collateral, or
containing proceeds of the Receivables or any of the other
Collateral, or containing proceeds of Loans or Letter of Credit
Accommodations made or provided by Lender or its Affiliates to or
for the benefit of Borrower or its Affiliates, or proceeds of loans,
advances or other financial accommodations made or provided by
Borrower to or for the benefit of any Affiliate with proceeds of the
Loans or in connection with the Letter of Credit Accommodations;
(e) all present and future liens, security interests,
rights, remedies, title and interest in, to and in respect of
Receivables or any of the other Collateral, including, without
limitation, (i) rights and remedies under or relating to guaranties,
contracts or suretyship, letters of credit, letter-of-credit rights,
supporting obligations and credit and other insurance related to the
Receivables or any of the other Collateral, (ii) rights of stoppage
in transit, replevin, repossession, reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, (iii) goods
described in invoices, documents, contracts or instruments, credit
card sales drafts, credit card sales slips or charge slips or
receipts and other forms of daily store receipts with respect to, or
otherwise representing or evidencing Receivables or other
Collateral, including, without limitation, returned, repossessed and
reclaimed goods, (iv) deposits by the property of account debtors or
other persons securing the obligations of account debtors, and (v)
security interests granted by Affiliates of Borrower to Borrower to
secure Indebtedness arising from loans, advances or other financial
accommodations made or provided by Borrower to or for the benefit of
such Affiliate or otherwise, including, without limitation, security
interests granted to Borrower pursuant to the Intercompany Loan
Document;
(f) all Inventory;
(g) all leases and rental agreements for personal
property between Borrower or any Guarantor as lessor (whether by
origination or derivation) and any and all persons or parties as
lessee(s), and all rentals, purchase option amounts, and other sums
due thereunder; and all inventory, goods and property subject to
such leases and rental agreements and all accessions, parts and
tools attached thereto or used therewith and all of the residual or
reversionary rights of Borrower or any Guarantor therein;
(h) all commercial tort claims;
(i) all present and future books of account of every
kind or nature, purchase and sale agreements, invoices, ledger
cards, bills of lading and other shipping evidence, statements,
correspondence, memoranda, credit files and other data relating to
the Collateral or any account debtor, together with the tapes,
disks, diskettes and other data and software storage media and
devices, file cabinets and containers in or on which the foregoing
are stored (including any rights of Borrower or any Guarantor with
respect to the foregoing maintained with or by any other person)
(the "Records"); and
(j) all products and proceeds of the foregoing, in any
form, including insurance proceeds and all claims against third
parties for loss or damage to or destruction of any or all of the
other Collateral.
Section 5.2 Perfection of Security Interests.
(a) Borrower and each Guarantor irrevocably and
unconditionally authorizes Lender (or its agent) to file at any time
and from time to time such financing statements with respect to the
Collateral naming Lender or its designee as the secured party and
Borrower or any Guarantor, as the case may be, as Lender may
require, and including any other information with respect to
Borrower or any Guarantor or otherwise required by part 5 of Article
9 of the Uniform Commercial Code of such jurisdiction as Lender may
determine, together with any amendment and continuations with
respect thereto, which authorization shall apply to all financing
statements filed on, prior to or after the date hereof. Borrower and
each Guarantor hereby ratifies and approves all financing statements
naming Lender or its designee as secured party and Borrower or any
Guarantor, as the case may be, as debtor with respect to the
Collateral (and any amendments with respect to such financing
statements) filed by or on behalf of Lender prior to the date hereof
and ratifies and confirms the authorization of Lender to file such
financing statements (and amendments, if any). Borrower and each
Guarantor hereby authorizes Lender to adopt on behalf of Borrower or
any such Guarantor, as the case may be, any symbol required for
authenticating any electronic filing. In the event that the
description of the Collateral in any financing statement naming
Lender as the secured party and Borrower and any Guarantor, as the
case may be, as debtor includes assets and properties of Borrower
that do not at any time constitute Collateral, whether hereunder,
under any of the other Financing Agreements or otherwise, the filing
of such financing statement shall nonetheless be deemed authorized
by such Borrower to the extent of the Collateral included in such
description and it shall not render the financing statement
ineffective as to any of the Collateral or otherwise affect the
financing statement as it applies to any of the Collateral. In no
event shall Borrower or any Guarantor at any time file, or permit or
cause to be filed, any correction statement or termination statement
with respect to any financing statement (or amendment or
continuation with respect thereto) naming Lender or its designee as
secured party and Borrower or any Guarantor, as debtor.
(b) Neither Borrower nor any Guarantor has any chattel
paper (whether tangible or electronic) or instruments constituting
Collateral as of the date of Amendment No. 17, except with respect
to loans to employees permitted under Section 9.10(p) hereof. In the
event that Borrower or any Guarantor shall be entitled to or shall
receive any chattel paper or instrument after the date hereof
constituting Collateral, Borrower or such Guarantor shall promptly
notify Lender thereof in writing. Promptly upon the receipt thereof
by or on behalf of Borrower or any Guarantor (including by any agent
or representative), Borrower or such Guarantor shall deliver, or
cause to be delivered to Lender, all tangible chattel paper and
instruments constituting Collateral that Borrower or such Guarantor
may at any time acquire, accompanied by such instruments of transfer
or assignment duly executed in blank as Lender may from time to time
specify, in each case except as Lender may otherwise agree. At
Lender's option, Borrower and each Guarantor shall, or Lender may at
any time on behalf of
Borrower or any Guarantor, as the case may be, cause the original of
any such instrument or chattel paper to be conspicuously marked in a
form and manner acceptable to Lender with the following legend
referring to chattel paper or instruments as applicable: "This
[chattel paper][instrument] is subject to the security interest of
Congress Financial Corporation , as Lender and any sale, transfer,
assignment or encumbrance of this [chattel paper][instrument]
violates the rights of such secured party."
(c) In the event that Borrower or any Guarantor shall at
any time hold or acquire an interest in any electronic chattel paper
or any "transferable record" (as such term is defined in Section 201
of the Federal Electronic Signatures in Global and National Commerce
Act or in Section 16 of the Uniform Electronic Transactions Act as
in effect in any relevant jurisdiction) constituting Collateral,
Borrower or such Guarantor, as the case may be, shall promptly
notify Lender thereof in writing. Promptly upon Lender's request,
Borrower or such Guarantor shall take, or cause to be taken, such
actions as Lender may reasonably request to give Lender control of
such electronic chattel paper under the UCC and control of such
transferable record under Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or, as the case may
be, Section 16 of the Uniform Electronic Transactions Act, as in
effect in such jurisdiction.
(d) Neither Borrower nor any Guarantor has any deposit
accounts as of the date of Amendment No. 17, except as set forth in
Schedule 6.3 to Amendment No.17. Borrower nor any Guarantor shall,
directly or indirectly, after the date hereof open, establish or
maintain any deposit account into which (i) proceeds of Receivables
or any of the other Collateral or (ii) proceeds of loans, advances
or other financial accommodations made or provided by Lender or its
Affiliates to or for the benefit of Borrower or its Affiliates or
(iii) proceeds of loans, advances or other financial accommodations
made or provided by Borrower to or for the benefit of any Affiliate
with proceeds of the Loans or in connection with the Letter of
Credit Accommodations, will be deposited, unless each of the
following conditions is satisfied: (i) Lender shall have received
not less than five (5) Business Days prior written notice of the
intention of such Borrower to open or establish such account which
notice shall specify in reasonable detail and specificity acceptable
to Lender the name of the account, the owner of the account, the
name and address of the bank at which such account is to be opened
or established, the individual at such bank with whom such Borrower
is dealing and the purpose of the account, (ii) the bank where such
account is opened or maintained shall be acceptable to Lender, and
(iii) on or before the opening of such deposit account, such
Borrower shall, as Lender may specify, either (A) deliver to Lender
a deposit account control agreement with respect to such deposit
account duly authorized, executed and delivered by Borrower or such
Guarantor and the bank at which such deposit account is opened and
maintained or (B) arrange for Lender to become the customer of the
bank with respect to the deposit account on terms and conditions
acceptable to Lender. The terms of this subsection (d) shall not
apply to deposit accounts specifically and exclusively used for
payroll, payroll taxes and other employee wage and benefit payments
to or for the benefit of any Borrower's salaried employees.
(e) Neither Borrower nor any Guarantor owns or holds,
directly or indirectly, beneficially or as record owner or both, any
investment property, as of the date of Amendment No.17, or have any
investment account, securities account, commodity account or other
similar account with any bank or other financial institution or
other securities intermediary or commodity intermediary as of the
date of Amendment No.17.
(f) Neither Borrower nor any Guarantor is the
beneficiary or otherwise entitled to any right to payment under any
letter of credit, banker's acceptance or similar instrument as of
the date of Amendment No.17. In the event that Borrower or any
Guarantor shall be entitled to
or shall receive any right to payment under any letter of credit,
banker's acceptance or any similar instrument, whether as
beneficiary thereof or otherwise after the date hereof, Borrower or
such Guarantor shall promptly notify Lender thereof in writing.
Borrower or such Guarantor shall immediately, as Lender may specify,
either (i) deliver, or cause to be delivered to Lender, with respect
to any such letter of credit, banker's acceptance or similar
instrument, the written agreement of the issuer and any other
nominated person obligated to make any payment in respect thereof
(including any confirming or negotiating bank), in form and
substance satisfactory to Lender, consenting to the assignment of
the proceeds of the letter of credit to Lender by Borrower or such
Guarantor and agreeing to make all payments thereon directly to
Lender or as Lender may otherwise direct or (ii) cause Lender to
become, at Borrower's expense, the transferee beneficiary of the
letter of credit, banker's acceptance or similar instrument (as the
case may be).
(g) Neither Borrower nor any Guarantor has any
commercial tort claims in excess of $10,000 as of the date of
Amendment No. 17. In the event that Borrower or any Guarantor shall
at any time after the date of Amendment No. 17 have any commercial
tort claims (for which the amount of the claim of Borrower or
Guarantor has a value in excess of $10,000), such Borrower shall
promptly notify Lender thereof in writing, which notice shall (i)
set forth in reasonable detail the basis for and nature of such
commercial tort claim and (ii) include the express grant by Borrower
or such Guarantor to Lender of a security interest, in such
commercial tort claim (and the proceeds thereof). In the event that
such notice does not include such grant of a security interest, the
sending thereof by Borrower or such Guarantor to Lender shall be
deemed to constitute such grant to Lender. Upon the sending of such
notice, any commercial tort claim described therein shall constitute
part of the Collateral and shall be deemed included therein. Without
limiting the authorization of Lender provided in Section 5.2(a)
hereof or otherwise arising by the execution by Borrower or
Guarantor of this Agreement or any of the other Financing
Agreements, Lender is hereby irrevocably authorized from time to
time and at any time to file such financing statements naming Lender
or its designee as secured party and Borrower and each Guarantor, as
debtor, or any amendments to any financing statements, covering any
such commercial tort claim as Collateral. In addition, Borrower and
each Guarantor shall promptly upon Lender's request, execute and
deliver, or cause to be executed and delivered, to Lender such other
agreements, documents and instruments as Lender may require in
connection with such commercial tort claim.
(h) Neither Borrower nor any Guarantor has any goods,
documents of title constituting Collateral or other Collateral in
the custody, control or possession of a third party as of the date
of Amendment No.17 except for goods in transit to a location of
Borrower or any Guarantor permitted herein in the ordinary course of
business of Borrower and Guarantors in the possession of the carrier
transporting such goods. In the event that any goods, documents of
title constituting Collateral or other Collateral are at any time
after the date hereof in the custody, control or possession of any
other person, Borrower shall promptly notify Lender thereof in
writing. Promptly upon Lender's request, Borrower and each Guarantor
shall deliver to Lender a Collateral Access Agreement duly
authorized, executed and delivered by such person and Borrower or
such Guarantor.
(i) Borrower and Guarantors shall take any other actions
reasonably requested by Lender from time to time to cause the
attachment, perfection and first priority of, and the ability of
Lender to enforce, the security interest of Lender in any and all of
the Collateral, including, without limitation, (i) executing,
delivering and, where
appropriate, filing financing statements and amendments relating
thereto under the UCC or other applicable law, to the extent, if
any, that Borrower's or such Guarantor's signature thereon is
required therefor, (ii) causing Lender's name to be noted as secured
party on any certificate of title for a titled good constituting
Collateral if such notation is a condition to attachment, perfection
or priority of, or ability of Lender to enforce, the security
interest of Lender in such Collateral, (iii) complying with any
provision of any statute, regulation or treaty of the United States
as to any Collateral if compliance with such provision is a
condition to attachment, perfection or priority of, or ability of
Lender to enforce, the security interest of Lender in such
Collateral, (iv) obtaining the consents and approvals of any
governmental authority or third party, including, without
limitation, any consent of any licensor, lessor or other person
obligated on Collateral, and taking all actions required by any
earlier versions of the UCC or by other law, as applicable in any
relevant jurisdiction."
1. Section Encumbrances. Section 9.8 of the Loan Agreement is hereby
amended by adding the following new subsection (s) at the end thereof:
2.
"(s) the liens on the assets of Borrower and any Guarantor other
than the Collateral granted in favor of the New Note Trustee to
secure Indebtedness arising under the New Notes, as provided in
Section 9.9(r) hereof."
1. Section Indebtedness.
2.
(a) Section 9.9(i) of the Loan Agreement is hereby amended by
deleting the reference to "$100,000,000" and replacing it with $140,000.00."
(b)
(c) Section 9.9 of the Loan Agreement is hereby amended by adding
the following new subsection (r) at the end thereof:
(d)
"(r) Indebtedness of Borrower evidenced by the New Notes as in
effect on the Consummation Date or as permitted to be amended
pursuant to the terms hereof, provided, that:
(i) the aggregate amount of such Indebtedness shall not
exceed $85,000,000, less the aggregate amount of all repayments or
redemptions, whether optional or mandatory, in respect thereof, plus
interest (and capitalized interest) thereon at the rate provided for
in the New Note Agreements as in effect on the Consummation Date,
(i) the financing arrangements evidenced by the Financing
Agreements are and shall at all times continue to be the "Revolving
Credit Agreement" as such term is defined in the New Note Indenture
as in effect on Consummation Date and is and shall be entitled to
all of the rights and benefits thereof, if any, under the New Note
Indenture as in effect on the Consummation Date,
(i) Borrower and Guarantors shall not, directly or
indirectly, make any payments in respect of such Indebtedness,
except that they may make (A) regularly scheduled payments of
interest in respect of such Indebtedness when due in accordance with
the terms of the New Notes and the New Note Indenture, in each case
in accordance with the terms of the Exchange Offer Documents and
reasonable administrative fees and expenses required to be paid in
accordance with the terms of
the New Note Agreements (as in effect on the Consummation Date) and
any reasonable and customary fees required to be paid to holders of
the New Notes in connection with a consent solicitation, it being
understood and agreed that in no event shall the provisions of the
New Notes and the New Note Indenture with respect thereto, vary from
the provisions of the Exchange Offer Documents; provided, that, in
the event that Borrower has not exercised all of its PIK Options (as
such term is defined in the New Note Indenture in effect on the
Consummation Date) and either (1) Excess Availability on the date of
such regularly scheduled interest payment and after giving effect to
such interest payment, shall be less than $4,000,000, or (2) an act,
condition or event exists which with notice or passage of time or
both would constitute an Event of Default or an Event of Default has
occurred and is continuing, then Borrower will exercise its PIK
Option with respect to such regularly scheduled interest payment and
pay only one-half of the required interest payment then due in cash,
(B) mandatory payments of principal as required under the New Note
Indenture (1) from Net Available Proceeds (as such term is defined
in the New Note Indenture, as in effect on the Consummation Date),
from Asset Dispositions (as such term is defined in the New Note
Indenture, as in effect on the Consummation Date) and (2) in the
event of any Change of Control (as such term is defined in the New
Note Indenture, as in effect on the Consummation Date) and (C)
payments of principal in respect of such Indebtedness as permitted
under Section 9.9(r)(v)(B);
(i) Borrower and Guarantors shall not, directly or
indirectly, amend, modify, alter or change, in each case, in any
material respect any terms of such Indebtedness or any of the New
Notes, the New Note Indenture or any related agreements, documents
and instruments, except that Borrower and Guarantors may, after
prior written notice to Lender, amend, modify, alter or change the
terms thereof so as to extend the maturity thereof or defer the
timing of any payments in respect thereof, or to forgive or cancel
any portion of such Indebtedness other than pursuant to payments
thereof, or to reduce the interest rate or any fees in connection
therewith, or to eliminate any covenants contained therein, or make
any such covenants less restrictive or otherwise more favorable to
any Borrower or Guarantor or to release any Guarantor or to release
any collateral securing the New Notes, and
(i)
Borrower and Guarantors shall not, directly or
indirectly, redeem, retire, defease, purchase or otherwise acquire
all or any part of such Indebtedness other than at maturity (as set
forth in the New Note Indenture as in effect on the Consummation
Date or as extended after such date), or set aside or otherwise
deposit or invest any sums for such purpose, except that
(A) Borrower or Guarantors may redeem, retire, defease,
purchase or otherwise acquire all or any part of such Indebtedness
with Refinancing Indebtedness with respect thereto to the extent
permitted under Section 9.9(q) hereof, and
(A) Borrower or Guarantors may redeem, retire, defease,
purchase or otherwise acquire all or part of such Indebtedness
(other than at maturity) with the proceeds of Revolving Loans,
provided, that, immediately prior to and after giving effect to any
such purchases or payments, Excess Availability shall be not less
than the sum of (1) $6,000,000, plus (2) the amount of any PIK Notes
(as such term is defined in the New Note Indenture as in effect on
the Consummation Date) representing interest (but not including any
premium) paid in PIK Notes, minus the sum of (aa) the amount of any
New Notes repurchased or redeemed, with respect to the period prior
to May 15, 2005; (bb) the amount of any New Notes repurchased or
redeemed in excess of $7.5 million, with respect to the period from
May 16, 2005 through May 15, 2006; and (cc) the
amount of any New Notes repurchased or redeemed in excess of $15
million, with respect to the period beginning on May 16, 2006
(provided, that, for purposes of determining compliance with the
Excess Availability requirement set forth in Section 9.9(r)(v)(B)
hereof, the result of the calculation set forth in this clause (2),
shall in no event be less than zero), plus (3) the aggregate amount
of interest payable on the next interest payment date on the New
Notes then outstanding;
(a) Section 9.9(q) of the Loan Agreement is hereby amended by adding
the clause "and Section 9.9(r)" after the reference therein to
"Section 9.9 (m) and 9.9(p)".
(b)
2. Section Representations, Warranties and Covenants. In addition
to the continuing representations, warranties and covenants heretofore or
hereafter made by Borrower and Guarantors to Lender pursuant to the other
Financing Agreements, each of Borrower and Guarantors, jointly and severally,
hereby 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 and shall be incorporated into and made a part of
the Financing Agreements):
3.
3.1 This Amendment No.17 has been duly executed and delivered by all
necessary action on the part of Borrower and Guarantors and, if necessary, their
respective stockholders, and is in full force and effect as of the date hereof
and the agreements and obligations of Borrower and Guarantors contained herein
constitute legal, valid and binding obligations of Borrower and Guarantors
enforceable against Borrower and Guarantors in accordance with their respective
terms.
3.2
3.3 No Default or Event of Default exists or has occurred and is
continuing.
3.4
3.5 No action of, or filing with, or consent of any governmental
authority, and no approval or consent of any other party, is required to
authorize, or is otherwise required in connection with, the execution, delivery
and performance of this Amendment No. 17, except those which have already been
obtained.
3.6 All of the representations and warranties set forth in the Loan
Agreement and the other Financing Agreements, each as amended hereby, are true
and correct in all material respects on and as of the date hereof .
3.7
3.8 Neither the execution or delivery of the New Notes or any of the
other New Note Agreements, nor the consummation of the transactions contemplated
by the New Note Agreements, nor compliance with the provisions thereof, shall
result in the creation nor imposition of any lien, charge or encumbrance upon
any of the Collateral as amended hereby.
3.9
3.10 On or prior to the Consummation Date, the New Notes shall have been
duly authorized, issued and delivered by Borrower pursuant to the Note Indenture
and the other New Note Agreements, and the transactions contemplated thereunder
shall have been performed or waived in accordance with their terms by the
respective parties thereto in all respects, including the fulfillment or waiver
of all conditions precedent set forth therein.
3.11
3.12 On or prior to the Consummation Date, all actions and proceedings
required for the authorization, issuance and delivery of the New Notes and
pursuant to the other New Note Agreements, applicable law or regulations,
including, without limitation, all Securities Laws, shall have been taken, and
the transactions required thereunder shall have been (or will be when required
to under the New Note Agreements or applicable law) duly and validly taken and
consummated.
3.13
3.14 On or prior to the Consummation Date, all of the conditions set
forth in clauses (B), (C), (D), (E), (F), (H), (I), (J), (L), and (O) of Section
9.7(a)(iii) of the Loan Agreement with respect to the proposed merger of
Beltrami Door Company into Xxxxxx, with Xxxxxx being the survivor of such Merger
(the "Merger") have been satisfied.
3.15
3.16 Neither the execution and delivery of the New Notes or any of the
other New Note Agreements nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof (a) has violated or
will violate any of the Securities Laws or any other law or regulation or any
order or decree of any court or governmental instrumentality in any respect, or
(b) after giving effect to the consents hereunder, does or shall conflict with
or result in the breach of, or constitute a default in any respect under, any
indenture, mortgage, deed of trust, security agreement, agreement or instrument
to which Borrower or any Guarantor is a party or by which it or any of its
assets may be bound, or (c) violate any provision of the Certificate of
Incorporation, By-Laws, Articles of Formation or Operating Agreement of Borrower
or any Guarantor.
3.17
3.18 Borrower has delivered to Lender true, complete and correct copies
of each of the Exchange Offer Documents.
3.19
4. Section Conditions. The effectiveness of the consents, terms and
conditions contained herein shall be subject to the satisfaction of each of the
following conditions, in form and substance satisfactory to Lender:
5.
5.1 Lender shall have received a true, complete and correct copy of
each of the Exchange Offer Documents;
5.2
5.3 Lender shall have received and original of this Amendment No. 17,
duly authorized, executed and delivered by Borrower and Guarantors;
5.4
5.5 Lender shall have received a Collateral Access Agreement duly
executed and delivered by the New Note Trustee;
5.6
5.7 Lender shall have received, in form and substance satisfactory to
Lender, evidence that the certificates of mergers with respect to the Merger
have been filed with the Secretary of State of the State of Delaware;
5.8
5.9 the Consummation Date shall be not later than June 10, 2003;
5.10
5.11 as of the Consummation Date, holders of not less than ninety-five
(95%) percent of the Senior Notes shall have tendered such Senior Notes in
exchange for New Notes pursuant to the New Note Offering in accordance with the
Exchange Offer Documents as in effect on the date hereof, and not withdrawn such
tender; and
5.12
5.13 Lender shall have received true, complete and correct copies of the
New Note Agreements not delivered on or prior to the date hereof.
5.14
5.15 Lender shall have received the amendment fee referred to in Section
8 hereof.
5.16
6. Section Amendment Fee. In consideration of the amendments set forth
herein, Borrower shall pay to Lender, and Lender may, at its option, charge the
account of Borrower maintained by Lender, a fee in the amount of $100,000, which
fee shall constitute part of the Obligations and is fully earned as of the date
hereof.
7.
8. Section Miscellaneous.
9.
9.1 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
effective date hereof. The Loan Agreement and this Amendment No. 17 shall be
read and construed as one agreement. To the extent of conflict between the terms
of this Amendment and the other Financing Agreements, the terms of this
Amendment No. 17 shall control.
9.2
9.3 Further Assurances. The parties hereto shall execute and deliver
such additional documents and
take such additional actions as may be necessary to effectuate the provisions
and purposes of this Amendment No. 17.
9.4
9.5 Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York without regard to principals of conflicts
of law or other rule of law that would result in the application of the law of
any jurisdiction other than the laws of the State of New York.
9.6
9.7 Binding Effect. This Amendment No. 17 shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
9.8
9.9 Counterparts. This Amendment No. 17 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 No. 17, it shall not be
necessary to produce or account for more than one counterpart thereof signed by
each of the parties thereto. This Amendment No. 17 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 thereof signed by
each of the parties hereto. Delivery of an executed counterpart of this
Amendment No. 17 by telefacsimile shall have the same force and effect as
delivery of an original executed counterpart of this Amendment No. 17. Any party
delivering an executed counterpart of this Amendment No. 17 by telefacsimile
also shall deliver an original executed counterpart of this Amendment No. 17,
but the failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this Amendment No. 17 as to such
party or any other party.
9.10
9.11
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
17 to be duly executed and delivered by their authorized officers as of the date
and year first above written.
CONGRESS FINANCIAL CORPORATION,
as Lender
By:
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Title:
--------------------------------
X.X. XXXXXXXXXX & CO., INC.
By:
----------------------------------
Title:
--------------------------------
EFP CORPORATION
By:
----------------------------------
Title:
--------------------------------
XXXX GROUP, INC.
By:
----------------------------------
Title:
--------------------------------
MAGNETIC INSTRUMENTS CORP.
By:
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Title:
--------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRIOR PAGE]
XXXXXX TRAILER MFG CO.
By:
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Title:
--------------------------------
TRUCK ACCESSORIES GROUP, INC.
By:
----------------------------------
Title:
--------------------------------
RAIDER INDUSTRIES INC.
By:
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Title:
--------------------------------
SWK HOLDINGS, INC.
By:
----------------------------------
Title:
--------------------------------
UNIVERSAL XXXXXXX, INC.
By:
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Title:
--------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PRIOR PAGE]
XXXXXX TRAILER FINANCIAL CORPORATION
By:
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Title:
--------------------------------
XXXXXX TRAILER FINANCIAL MANAGEMENT, L.P.
By:
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