EXHIBIT 10(h)
AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT
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October 31, 1996
The Xxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Gentlemen:
Reference is made to the Loan and Security Agreement (the "Loan
Agreement"), dated as of September 12, 1996, by and among Congress Financial
Corporation (Southern), as agent (the "Agent"), the Lenders parties thereto and
The Xxxx Company ("Borrower"), together with all other agreements, documents and
instruments at any time executed and/or delivered in connection therewith or
related thereto (as the same now exist, are being amended hereby and may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, collectively, the "Financing Agreements"). All capitalized terms used
herein and not herein defined shall have the meanings given to them in the Loan
Agreement.
Borrower has requested that Agent and Lenders agree to amend one of the
affirmative covenants of Borrower contained in the Loan Agreement, and Agent and
the Required Lenders are willing to agree to such amendment, subject to the
terms and conditions set forth herein.
In consideration of the foregoing, the mutual agreements and covenants
contained herein and other good and valuable consideration, the parties hereto
agree as follows:
1. Consultant. Section 9.19(a) of the Loan Agreement is hereby deleted
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in its entirety and replaced with the following, effective as of October 27,
1996:
"(a) On or before November 8, 1996, (i) Borrower shall retain a
consulting firm chosen by Borrower and acceptable to Agent and Required Lenders
(the "Consultant") pursuant to an engagement letter having terms (including
compensation, scope, duration of the engagement and work to be performed)
acceptable to Agent and Required Lenders, and (ii) the Consultant shall have
initiated its field work. Thereafter, Borrower shall continue such retention in
effect, or the retention of a replacement or successor Consultant acceptable to
Agent and Required Lenders under a retention agreement having terms acceptable
to Agent and Required Lenders."
2. No Acceleration. The parties hereto hereby agree and acknowledge
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that, notwithstanding the terms and provisions of
Section 10.2(b) of the Loan Agreement, the Obligations have not been
accelerated, automatically or otherwise, by virtue of the occurrence of an Event
of Default under Section 10.1(a)(ii) of the Loan Agreement by reason of the
default under the provisions of Section 9.19(a) of the Loan Agreement, as such
provisions existed prior to the effectiveness of this Amendment.
3. Condition Precedent. The effectiveness of the amendment contained
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herein shall be subject to the satisfaction of the following condition: the
receipt by Agent of an original of this Amendment, duly authorized, executed and
delivered by Borrower and the Required Lenders.
4. Effect of this Amendment.
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(a) Entire Agreement; Ratification and Confirmation of the Financing
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Agreements. This Amendment contains the entire agreement of the parties with
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respect to the subject matter hereof and supersedes all prior or contemporaneous
term sheets, proposals, discussions, negotiations, correspondence, commitments
and communications between or among the parties concerning the subject matter
hereof. This Amendment may not be modified or any provision waived, except in
writing signed by the party against whom such modification or waiver is sought
to be enforced. Except as specifically amended pursuant hereto, the Financing
Agreements are hereby ratified, restated and confirmed by the parties hereto as
of the effective date hereof. No Events of Default have been or are being
waived hereby. To the extent of conflict between the terms of this Amendment
and the other Financing Agreements, the terms of this Amendment shall control.
(b) Governing Law. This Amendment and the rights and obligations
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hereunder of each of the parties hereto shall be governed by and interpreted and
determined in accordance with the laws of the State of Georgia.
(c) Binding Effect. This Amendment shall be binding upon and inure to
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the benefit of each of the parties hereto and their respective successors and
assigns.
(d) Counterparts. This Amendment may be executed in any number of
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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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By the signatures hereto of their duly authorized officers, each of the
parties hereto covenants and agrees as set forth herein.
Very truly yours,
CONGRESS FINANCIAL CORPORATION
(SOUTHERN), as Agent and Lender
By: /s/ Xxxxxx X. Xxxxxxxx
Title: Vice President
TRANSAMERICA BUSINESS CREDIT
CORPORATION, as Lender
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President
AGREED AND ACCEPTED:
THE XXXX COMPANY
By: /s/ A. Xxxxxxx Xxx
Title: Chief Financial Officer
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