AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
X.X. XXXXXXXXXX & CO, INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
May 13, 1998
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation ("Lender"), 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"), and Raider Industries Inc. ("Raider"; and together with
EFP, Xxxx, MIC, Xxxxxx and TAG, each individually, a "Guarantor" and,
collectively, "Guarantors") have entered into certain financing arrangements as
set forth in the Loan and Security Agreement, dated as of June 28, 1996, by and
among Lender, Borrower and Guarantors (as heretofore amended or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement"), together with all other agreements, documents, supplements
and instruments now or at any time hereafter executed and/or delivered by
Borrower, Guarantors or any other person, with, to or in favor of Lender in
connection therewith (all of the foregoing, together with this Amendment and the
other agreements and instruments delivered hereunder, as the same now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, collectively, the "Financing Agreements").
Borrower and Guarantors have requested that Lender (a) increase the
Maximum Credit from $50,000,000 to $55,000,000 and (b) increase the sublimit on
Revolving Loans in respect of Eligible Inventory from $25,000,000 to
$30,000,000. Lender is willing to do so to the extent and subject to the terms
and conditions set forth herein.
In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment No. 1 to Loan and Security Agreement (this
"Amendment"), and other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged, Borrower, Guarantors and Lender
agree as follows:
1. Definitions.
(a) Amendment to Definition of Maximum Credit.
Section 1.57 of the Loan Agreement is hereby amended by deleting the reference
to the figure "$50,000,000" contained therein and substituting the following
figure therefor: "$55,000,000".
(b) Other Definitions. For purposes of this
Amendment, unless otherwise defined herein, all capitalized terms used herein,
shall have the respective meanings ascribed to them in the Loan Agreement.
2. Inventory Sublimit Increase. Section 2.1(c) of the Loan
Agreement is hereby amended by deleting the reference to the figure
"$25,000,000" contained therein and substituting the following figure therefor:
"$30,000,000."
3. Line Increase Fee. In addition to all other fees, charges,
interest and expenses payable by Borrower to Lender hereunder and under the
other Financing Agreements, Borrower shall pay to Lender a fee in respect of the
increase in the Maximum Credit provided for hereunder. The fee shall be in the
amount of $37,500, which amount is fully earned as of the date hereof and is
payable on June 28, 1998; provided, that the fee shall, at Lender's option,
become immediately due and payable upon or at any time after an Event of Default
or any termination or non-renewal hereof.
4. Representations, Warranties and Covenants. In addition to
the continuing representations, warranties and covenants heretofore or hereafter
made by Borrower or Guarantors to Lender pursuant to the other Financing
Agreements, Borrower and Guarantors hereby represent, warrant and covenant with
and to Lenders 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):
(a) This Amendment has been duly authorized,
executed and delivered by Borrower and Guarantors, 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.
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(b) Neither the execution and delivery of this
Amendment, nor the modifications to the Financing Agreements contemplated by
this Amendment (i) shall violate any applicable law or regulation, or any order
or decree of any court or any governmental instrumentality in any respect or
(ii) does or shall conflict with or result in the breach of, or constitute a
default in any respect under, any indenture, or any material mortgage, deed of
trust, security agreement, agreement or instrument to which Borrower or any
Guarantor is a party or may be bound, or (iii) violate any provision of the
organizational documents of Borrower or Guarantors.
(c) All of the representations and warranties
set forth in the Loan Agreement as amended hereby, and the other Financing
Agreements, are true and correct in all material respects, except to the extent
any such representation or warranty is made as of a specified date, in which
case such representation or warranty shall have been true and correct as of such
date.
(d) No Event of Default exists on the date of
this Amendment (after giving effect to the amendments to the Loan Agreement
provided in this Amendment).
5. Conditions Precedent. The effectiveness of the
amendments set forth herein shall be subject to the receipt by Lender of each of
the following, in form and substance satisfactory to Lender:
(a) an original of this Amendment, duly
authorized, executed and delivered by Borrower and Guarantors;
(b) an original amendment to each Intercompany
Note that increases the maximum principal amount of each Intercompany Note to up
to $55,000,000, duly authorized, executed and delivered by each Guarantor;
(c) a legal opinion of counsel to Borrower and
Guarantors with respect to this Amendment and the other documents to be
delivered hereunder and such other matters as Lender may request;
(d) all requisite corporate action and
proceedings in connection with this Amendment and the documents and instruments
to be delivered hereunder shall be in form and substance satisfactory to Lender,
and Lender shall have received all information and copies of all documents,
including, without limitation, records of requisite corporate action and
proceedings which Lender may have requested in connection therewith, such
documents where requested by Lender or its counsel to be certified by
appropriate corporate officers or governmental authorities; and
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(e) after giving effect to the amendments to the
Loan Agreement provided in this Amendment, no Event of Default shall exist or
have occurred and no event, act or condition shall have occurred or exist which
with notice or passage of time or both would constitute an Event of Default.
6. Effect of this Amendment. This Amendment and the
instruments and agreements delivered pursuant hereto constitute the entire
agreement of the parties with respect to the subject matter hereof and thereof,
and supersede all prior oral or written communications, memoranda, proposals,
negotiations, discussions, term sheets and commitments with respect to the
subject matter hereof and thereof. Except for the specific amendments expressly
set forth herein, no other changes or modifications to the Financing Agreements,
and no waivers of any provisions thereof 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 the date hereof. To the
extent of conflict between the terms of this Amendment and the other Financing
Agreements, the terms of this Amendment shall control. The Loan Agreement and
this Amendment shall be read and construed as one agreement.
7. Further Assurances. Borrower shall execute and deliver such
additional documents and take such additional action as may be reasonably
requested by Lender to effectuate the provisions and purposes of this Amendment.
8. 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 internal laws of the State of New York (without giving
effect to principles of conflicts of law).
9. Binding Effect. This Amendment shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns.
10. Counterparts. This Amendment 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.
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Please sign in the space provided below and return a counterpart of
this Amendment, whereupon this Amendment, as so agreed to and accepted by
Lender, shall become a binding agreement among Borrower, Guarantors and Lender.
Very truly yours,
X.X. XXXXXXXXXX & CO., INC.
By: __________________________
Title: _______________________
AGREED AND ACCEPTED:
CONGRESS FINANCIAL CORPORATION
By: ___________________________
Title: ________________________
ACKNOWLEDGED AND
CONSENTED TO:
EFP CORPORATION
By: __________________________
Title: _______________________
XXXX GROUP, INC.
By: __________________________
Title: _______________________
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
MAGNETIC INSTRUMENTS CORP.
By: __________________________
Title: _______________________
XXXXXX TRAILER MFG. CO.
By: __________________________
Title: _______________________
TRUCK ACCESSORIES GROUP, INC.
By: __________________________
Title: _______________________
RAIDER INDUSTRIES INC.
By: __________________________
Title: _______________________
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