EXHIBIT 10(KK)
November 19, 2001
Xxxxxx Industries, Inc.
Attention: Xx. Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Re: Line of Credit (Account #120435-524769); Term Loan (Account
#120435-087445 and #120435-087452); Loan Agreement dated January 7,
1993, as amended April 5, 1994, February 17, 1995, March 15, 1995,
March 28, 1996, August 28, 1997, January 1, 2000, December 29, 2000,
January 31, 2001, March 15, 2001, May 15, 2001, June 15, 2001,
September 1, 2001, October 15, 2001, October 31, 2001 and November 9,
2001 (collectively "Loan Agreement") by and among Xxxxxx Industries,
Inc. ("Xxxxxx Industries") and AmSouth Bank ("the Bank"). In this
letter capitalized terms shall be given the meanings indicated in the
Loan Agreement and/or in this letter.
Dear Xx. Xxxxxx:
I am writing this letter to you concerning the indebtednesses ("Indebtednesses")
referenced above of Xxxxxx Industries to the Bank and your recent request that
the Loan Agreement be amended to effect certain amendments to the Loan Agreement
by Xxxxxx Industries with certain of the covenants contained therein. In
response to that request, the Bank hereby amends the Loan Agreement as follows:
A. The term "Borrowing Base" in Section 1.02 is amended as follows:
"BORROWING BASE" shall mean, from September 1, 2001 through November
26, 2001, the sum of (a) 90% of the Net Outstanding Amount of Eligible Accounts
other than Eligible Dating Accounts, plus (b) 80% of the Net Outstanding Amount
of Eligible Dating Accounts, plus (c) 35% of the collateral value of Eligible
Finished Goods Inventory, plus (d) 28% of the collateral value of Eligible Raw
Material Inventory. The foregoing notwithstanding, the Borrower shall be
entitled to overadvance the Line of Credit in the amount of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) (the "Overadvance Amount") in excess
of the Borrowing Base until the earlier to occur of (i) November 26, 2001, or
(ii) the consummation of the sale of substantially all of the assets
constituting the Broilmaster gas barbeque grill product line of the Borrower.
From November 27, 2001 until the Line of Credit Termination Date, "Borrowing
Base" shall mean the sum of (a) 80% of the Net Outstanding Amount of Eligible
Accounts, plus (b) 80% of the Net Outstanding Amount of Eligible Dating
Accounts, plus (c) 35% of the collateral value of Eligible Finished Goods
Inventory, plus (d) 28% of the collateral value of Eligible Raw Material
Inventory.
B. The definition of "Maximum Line of Credit" in Section 1.02 is
amended as follows:
MAXIMUM LINE OF CREDIT shall mean (a) from the date
hereof until November 26, 2001, the lesser of (i) the
Borrowing Base then in effect and (ii) $9,500,000,
and (b) from November 27, 2001 until the Line of
Credit Termination Date, the lesser of (i) the
Borrowing Base then in effect and (ii) $7,500,000.
C. Forms of Borrowing Based Certification to the Bank, as included as
Exhibit A-1 and Exhibit A-2 to the letter agreement amending the Loan Agreement
and Other Loan Documents dated as of September 1, 2001, are hereby amended and
replaced by the forms of Borrowing Based Certification included as Exhibit A-1
hereto for the period from September 1, 2001 through November 26, 2001 and
Exhibit A-2 hereto from November 26, 2001 until the Line of Credit Termination
Date.
Effective as of November 19, 2001, all references in the Loan Documents to the
"Loan Agreement" shall mean the Loan Agreement, as heretofore modified and
amended and as further modified and amended hereby.
In all other respects, the Loan Agreement shall remain in full force and effect
in accordance with its terms.
To evidence the acceptance of the foregoing amendment on the terms and
conditions set forth herein, please sign and return to me the enclosed copy of
this letter agreement. By so signing the enclosed copy of this letter agreement,
Xxxxxx Industries acknowledges and agrees to the following terms and conditions
of such amendment:
1. This letter agreement shall not be deemed to be an accord and
satisfaction of the Indebtednesses or any other obligation owed to the Bank.
2. All collateral that now secures all or any of the Indebtednesses
shall continue to secure same. Nothing in this letter agreement diminishes any
security interest or lien that the Bank has in any assets securing the
Indebtednesses. All of the collateral, rights, security, and guarantees that the
Bank now has to secure any of the Indebtednesses due from Xxxxxx Industries
shall remain in full force and effect and are hereby ratified and confirmed.
3. The Bank reserves all of its rights and remedies under the Loan
Agreement, the Security Documents, any other Loan Documents, and/or applicable
law, in respect of any Event(s) of Default. The current non-exercise by the Bank
of any rights and remedies which it may have shall not constitute a release or
waiver of any of its rights and/or remedies or a release or waiver of any
Event(s) of Default under the Loan Agreement, the Security Documents, or any
other Loan Documents, except for the Waiver provided in this letter agreement.
The Bank specifically reserves the right to invoke any and all rights and
remedies at any time in its sole discretion.
4. Xxxxxx Industries hereby releases, satisfies, cancels, waives,
acquits, and forever discharges the Bank, its directors, officers, employees,
agents, attorneys, successors and assigns, of and from any and all claims,
demands, actions, or causes of action of any kind or character, arising at any
time in the past, up to and including the date of this letter agreement, which
relate or pertain in any way to the Indebtednesses and/or collection of them.
5. The Indebtednesses are owed by Xxxxxx Industries to the Bank for the
amounts (exclusive of outstanding letters of credit, ACH exposures and the
Bank's attorneys fees) herein stated and there are no defenses, setoffs, or
counterclaims with respect to any of them:
Payoff as of
General Description Obligation No. 11/18/01
------------------------------------- --------------------------- --------------------------
Term Loan #1 #087452 $1,917,828.60
Line of Credit #524769 $6,295,262.76
6. Xxxxxx Industries agrees to pay the Indebtednesses strictly and
promptly in accordance with the terms of the applicable promissory notes or
other debt instruments, as specifically modified by the Loan Agreement and this
letter agreement.
7. Xxxxxx Industries agrees to pay to the Bank's counsel, Xxxxxx, Xxx &
Xxxx, P.A., on or before November 27 2001, all of its attorney's fees incurred
in connection with this amendment and/or the collection of the Indebtednesses.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx
Vice President
cc: Xxxxxx X. Xxxxxxxx III, Esq.
S. Dagnal Xxxx, Esq.
ACCEPTED AND AGREED TO BY:
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------------
Xxxxx X. Xxxxxx
Its Vice President and Chief Financial Officer
EXHIBIT A-1
XXXXXX INDUSTRIES, INC.
BORROWING BASE CERTIFICATION TO AMSOUTH BANK
(For use from September 1, 2001 through November 26, 2001)
Status as of _______________
Pursuant to Section 3.08 of the Loan Agreement originally dated as of
January 7, 1993, as amended, by and between the respective predecessors in
interest of Xxxxxx Industries, Inc. (the "Borrower") and AmSouth Bank (the
"Lender"), as of ___________, the Borrower hereby certifies to the Lender as
follows:
1. Net Outstanding Amount of Eligible Accounts
$
-------------
2. 90% of Net Outstanding Amount of Eligible Accounts
$
------------
3. Net Outstanding Amount of Eligible Dating Accounts
$
-------------
4. 80% of Net Outstanding Amount of Eligible Dating Accounts
$
------------
5. Collateral value of Eligible Finished Goods Inventory
$
-------------
6. 35% of collateral value of Eligible Finished Goods Inventory
$
------------
7. Collateral value of Eligible Raw Material Inventory
$
-------------
8. 28% of collateral value of Eligible Raw Material Inventory
$
------------
9. TOTAL BORROWING BASE $
------------
10. Maximum Line of Credit Amount $
------------
11. Amount Outstanding Under Line of Credit $
------------
12. AMOUNT AVAILABLE UNDER LINE OF CREDIT $
------------
Borrower:
XXXXXX INDUSTRIES, INC.
By:
------------------------------
Its:
-----------------------------
EXHIBIT A-2
XXXXXX INDUSTRIES, INC.
BORROWING BASE CERTIFICATION TO AMSOUTH BANK
(For use from November 27, 2001 until the Line of Credit Termination Date)
Status as of _______________
Pursuant to Section 3.08 of the Loan Agreement originally dated as of
January 7, 1993, as amended, by and between the respective predecessors in
interest of Xxxxxx Industries, Inc. (the "Borrower") and AmSouth Bank (the
"Lender"), as of ___________, the Borrower hereby certifies to the Lender as
follows:
1. Net Outstanding Amount of Eligible Accounts
$
-------------
2. 80% of Net Outstanding Amount of Eligible Accounts
$
------------
3. Net Outstanding Amount of Eligible Dating Accounts
$
-------------
4. 80% of Net Outstanding Amount of Eligible Dating Accounts
$
------------
5. Collateral value of Eligible Finished Goods Inventory
$
-------------
6. 35% of collateral value of Eligible Finished Goods Inventory
$
------------
7. Collateral value of Eligible Raw Material Inventory
$
-------------
8. 28% of collateral value of Eligible Raw Material Inventory
$
------------
9. TOTAL BORROWING BASE $
------------
10. Maximum Line of Credit Amount $
------------
11. Amount Outstanding Under Line of Credit $
------------
12. AMOUNT AVAILABLE UNDER LINE OF CREDIT $
------------
Borrower:
XXXXXX INDUSTRIES, INC.
By:
-----------------------------
Its:
----------------------------
