AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT
X.X. XXXXXXXXXX & CO., INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
As of March 8, 2000
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and 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 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 and Amendment No. 4 to Loan and Security
Agreement, dated as of February 25, 2000 (and as amended hereby and 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"). 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.
Borrower has formed, solely for the purpose of purchasing the assets or
Capital Stock of another Person, an indirect wholly-owned subsidiary, KWS
Acquisition Corp., a Texas corporation (the "Acquisition"), which is one hundred
(100%) percent owned by MIC. Acquisition desires to merge with and into KWS
Manufacturing Company, Inc., formerly known as KWS Holding Company, Inc. (the
surviving corporation of a merger by and between KWS Manufacturing Company, Inc.
and KWS Holding Company, Inc.), so that KWS Manufacturing Company, Inc. will be
the surviving corporation. Upon the effectiveness of the KWS Merger, KWS
Manufacturing Company, Inc., a Texas corporation ("KWS") will be a wholly-owned
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indirect subsidiary of Borrower. As part of the KWS Merger (as such term is
defined below), Xxxxx X. Xxxxxxx, holder of all the issued and outstanding
shares of Capital Stock of KWS Manufacturing Company, Inc. (immediately prior to
the effective time of the KWS Merger) shall receive as consideration for
surrendering his shares, consideration in a maximum principal amount not to
exceed $7,812,591 in accordance with the terms of the KWS Merger Agreements.
(a) Borrower and Guarantors have requested that Lender consent to the formation
of and MIC's investment in Acquisition, a new directly wholly-owned subsidiary
of MIC and an indirectly wholly-owned subsidiary of Borrower, add Acquisition as
a Guarantor party to the Loan Agreement, consent to the KWS Merger, and upon the
effectiveness of the KWS Merger, make certain supplemental loans to Borrower.
Lender is willing to make such loans and agree to such amendments to the extent
set forth herein.
(b)
(c) In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment No. 5 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:
(d)
2. Definitions.
3.
(a) 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:
(b)
(i) "Acquisition" shall mean KWS Acquisition Corp., a Texas corporation, and its
successors and assigns.
(ii)
(iii)"Capital Expenditures" shall mean, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets which
are not, in accordance with GAAP, treated as expense items for such Person in
the year made or incurred or as a prepaid expense applicable to a future year or
years.
(iv)
(v) "EBITDA" shall mean, as to any Person, with respect to any period, an
amount equal to: (A) the Net Income of such Person and its Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP, plus (B)
depreciation, amortization and other non-cash charges (including, but not
limited to, imputed interest and deferred compensation) for such period (to the
extent deducted in the computation of Net Income), all in accordance with GAAP,
plus (C) Interest Expense for such period (to the extent deducted in the
computation of Net Income), plus (D) charges for Federal, State, local and
foreign income taxes for such period (to the extent deducted in the computation
of Net Income), minus (E) all income (and plus all charges, up to the amount of
such income) attributable to any Subsidiary of such Person, if and to the extent
such income was not distributed to such Person in cash.
(vi)
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(vii) "Fixed Charge Coverage Ratio" shall mean, for any period of determination,
the ratio of (A) EBITDA of such Person and its Subsidiaries to (B) the Fixed
Charges of such Person and its Subsidiaries for such period.
(viii)
(ix) "Fixed Charges" shall mean for any Person and its Subsidiaries, on a
consolidated basis, for any period, the sum of, without duplication, (A) all
Interest Expense, (B) all Capital Expenditures (exclusive of purchases of assets
secured by purchase money security interests), and (C) all regularly scheduled
(as determined at the beginning of the respective period) principal payments of
Indebtedness for borrowed money, Indebtedness secured by purchase money security
interests in real or personal property, and Indebtedness with respect to Capital
Leases (and without duplicating in items (A) and (C) of this definition, the
interest component with respect to Indebtedness under Capital Leases).
(x)
(xi) "Interest Expense" shall mean, for any period, as to any Person, all of the
following as determined in accordance with GAAP: total interest expense, whether
paid or accrued during such period (including the interest component of Capital
Leases for such period), including, without limitation, all bank fees,
commissions, discounts and other fees and charges owed with respect to letters
of credit (but excluding amortization of discount and amortization of deferred
financing fees paid in cash in connection with the transactions contemplated
hereby, interest paid in property other than cash and any other interest expense
not payable in cash).
(xii)
(xiii) "KWS" shall mean KWS Manufacturing Company, Inc., the survivor
corporation of the merger between KWS Acquisition Corp., wholly-owned subsidiary
of MIC and KWS Manufacturing Company, Inc., and its successors and assigns.
(xiv)
(A) "KWS Amendment Agreements" shall mean, individually and collectively, this
Amendment No. 5 to Loan and Security Agreement by and among Lender, Borrower and
Guarantors, the Guarantee by Acquisition in favor of Lender, the Information
Certificate of Acquisition, the Patent Collateral Assignment and Security
Agreement, between Acquisition and Lender, the Collateral Assignment of Notes by
Borrower in favor of Lender, the Acknowledgment of Assignment and Waiver of
Defense by Acquisition in favor of Lender, the Collateral Assignment of
Acquisition Agreements made by Acquisition in favor of Lender, UCC-1 Financing
Statements between Acquisition, as debtor and Lender, as secured party, the
Ratification and Assumption Agreement made by KWS in favor of Lender, the
Information Certificate of KWS, UCC-1 Financing Statements between KWS, as
debtor and Lender, as secured party, each of the foregoing agreements dated as
of the date hereof, and all other agreements, documents and instruments by
Borrower, Acquisition, KWS and such other Persons with, to or in favor of Lender
executed in connection with any of the foregoing, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
(B)
(xv) "KWS Existing Lenders" shall mean the existing lenders to KWS listed
on Schedule A annexed hereto and made a part hereof.
(xvi)
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(xvii) "KWS Maximum Supplemental Revolving Loan Limit" shall mean, on the date
of the KWS Amendment Agreements, the sum of $1,450,000, as reduced on the first
day of each calendar month, commencing, April 1, 2000 to the amount set forth
next to such date below:
(xviii)
Reduction Date KWS Maximum Supplemental Revolving Limit
(A) April 1, 2000 $1,389,583.00
(B) May 1, 2000 $1,329,166.00
(C) June 1, 2000 $1,269,349.00
(D) July 1, 2000 $1,208,332.00
(E) August 1, 2000 $1,147,915.00
(F) September 1, 2000 $1,087,498.00
(G) October 1, 2000 $1,027,081.00
(H) November 1, 2000 $ 966,664.00
(I) December 1, 2000 $ 906,247.00
(J) January 1, 2001 $ 845,830.00
(K) February 1, 2001 $ 785,413.00
(L) March 1, 2001 $ 724,996.00
(M) April 1, 2001 $ 664,579.00
(N) May 1, 2001 $ 604,162.00
(O) June 1, 2001 $ 543,745.00
(P) July 1, 2001 $ 483,328.00
(Q) August 1, 2001 $ 422,911.00
(R) September 1, 2001 $ 362,494.00
(S) October 1, 2001 $ 302,077.00
(T) November 1, 2001 $ 241,660.00
(U) December 1, 2001 $ 181,243.00
(V) January 1, 2002 $ 120,826.00
(W) February 1, 2002 $ 60,417.00
(X) March 1, 2002 $ - 0-
(Y) and at all times thereafter
(i) "KWS Merger" shall mean the merger of KWS Acquisition Corp., a Texas
corporation, with and into KWS Manufacturing Company, Inc., with KWS
Manufacturing Company, Inc. as the surviving corporation pursuant to the terms
of the KWS Merger Agreements.
(ii)
(iii) "KWS Merger Agreements" shall mean, individually and collectively,
the Agreement and Plan of Merger by and among KWS Acquisition Corp., KWS
Manufacturing Company, Inc. and Xxxxx X. Xxxxxxx and all related agreements,
documents and instruments, as the same now exist or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.
(iv)
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(v) "KWS Supplemental Revolving Loan Limit" shall mean, at any time, the lesser
of (A) the amount equal to (1) one hundred (100%) percent of the sum of the
value of the Net Amount of Eligible Accounts of Borrower and Guarantors and the
value of Eligible Inventory of Borrower and Guarantors (for purposes of this
Section the term "value" means: with respect to Eligible Accounts, their book
value and with respect to Eligible Inventory, the lower of its cost and its book
value (on a first-in-first out basis), in each case, determined in accordance
with GAAP) minus (2) the amount of Loans outstanding as of such time based on
the applicable lending formula set forth in Section 2.1(a) hereof or (B) the KWS
Maximum Supplemental Revolving Loan Limit then in effect.
(vi)
(vii) "KWS Term Loan" shall mean the term loan made by Lender to Acquisition, on
the date hereof, in the original principal amount not to exceed $2,140,000, on
the terms and conditions set forth in the KWS Term Loan Documents.
(viii)
(A) "KWS Term Loan Documents" shall mean the Term Promissory Note in the
principal amount of $2,140,000, dated the date hereof, made by Acquisition in
favor of Lender, the Term Loan and Security Agreement dated the date hereof, by
and between Lender and Acquisition, the Deed of Trust and Security Agreement,
dated the date hereof, made by KWS in favor of Lender with respect to the real
property and related assets of KWS located in Xxxxxx, Texas, and all other
agreements, documents and instruments by KWS and other Persons, with, to or in
favor of Lender executed in connection with any of the foregoing, as the same
now exist or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
(B)
(ix) "KWS Term Loan Collateral" shall mean "Collateral" as such term is
defined in the KWS Term Loan Documents.
(x)
(xi) "Net Income" shall mean, with respect to any Person, for any period, the
aggregate of the net income (loss) of such Person and its Subsidiaries, on a
consolidated basis, for such period (excluding to the extent included therein
any extraordinary, one-time or non-recurring gains) after deducting all charges
which should be deducted before arriving at the net income (loss) for such
period and after deducting the Provision for Taxes for such period, all as
determined in accordance with GAAP; provided, that, (a) the net income of any
Person that is not a wholly-owned Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid or payable to such Person or a wholly-owned
Subsidiary of such Person; (b) the effect of any change in accounting principles
adopted by such Person or its Subsidiaries after the date hereof shall be
excluded; and (c) the net income (if positive) of any wholly-owned Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by such wholly-owned Subsidiary to such Person or to any other wholly-owned
subsidiary of such Person is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation applicable to such wholly-owned Subsidiary shall
be excluded. For the purpose of this definition, net income excludes any gain
(but not loss) together with any related Provision for Taxes for such gain (but
not loss) realized upon the sale or other disposition of any assets that are not
sold in the ordinary course of business (including, without limitation,
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dispositions pursuant to sale and leaseback transactions) or of any Capital
Stock of such Person or a Subsidiary of such Person and any net income realized
as a result of changes in accounting principles or the application thereof to
such Person.
(xii)
(xiii) "KWS Supplemental Revolving Loans" shall mean the loans hereafter
made by Lender to or for the benefit of Borrower on a revolving basis (involving
advances, repayments and readvances) as set forth in Section 5 hereof.
(xiv)
(xv) "KWS Supplemental Revolving Loan Termination Date" shall mean the earlier
to occur of (A) Lender's determination that, as of the end of any fiscal quarter
of KWS, the Fixed Charge Coverage Ratio of KWS for such fiscal quarter is less
than 1.0 to 1.00 or (B) March 1, 2002.
(xvi)
(xvii) "Revolving Loan Limit" shall mean $55,000,000.
(xviii)
2. Amendments to Definitions.
3.
(a) All references to the term "Guarantor" and "Guarantors" 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,
Acquisition, and upon the effectiveness of the KWS Merger, all references in the
Loan Agreement (i) to the term "Guarantor" and "Guarantors" shall be deemed and
each such reference is hereby amended to include, in addition and not in
limitation, KWS, as the surviving corporation of the KWS Merger, and (ii) to the
term "Acquisition" shall be deemed references to KWS, as the surviving
corporation of the KWS Merger.
(b)
(c) All references to the term "Financing Agreements" in the Loan Agreement
shall be deemed and each such reference is hereby amended to include, in
addition and not in limitation, this Amendment No. 5, and all other agreements,
documents and instruments at any time executed and/or delivered by Borrower or
any other person in connection with any of the foregoing, as the same now exist
or may hereafter be amended, modified, supplemented, extended, renewed,
restated, or replaced.
(d)
(e) All references to the term "Loans" in any of the Financing Agreements shall
be deemed and each such reference is hereby amended to include, in addition and
not in limitation, the KWS Supplemental Revolving Loans, except, that, the term
"Loans" as used in Sections 1.4, 1.31, 1.50, 1.69, 2.1(a),(c) and (e), 2.2 (a),
(c) and (e) and 3.1(a) and 3.4 shall only mean those the loans now or hereafter
made by Lender to or for the benefit of Borrower on a revolving basis (involving
advances, repayments and readvances) as set forth in Section 2.1 hereof.
(f)
(g) All references to the term "Obligations" in any of the Financing Agreements
shall be deemed and each such reference is hereby amended to include, in
addition and not in limitation, the obligations of Borrower to Lender arising
pursuant to or in connection with the KWS Supplemental Revolving Loans,
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including principal, interest, fees, costs, expenses and other charges in
respect thereof.
(h)
(i) The references in Sections 1.33(a)(ii) and Section
2.2(c) to the "Maximum Credit" is hereby deleted in its entirety and the term
"Revolving Loan Limit" substituted therefor.
(j)
(k) Section 1.41 of the Loan Agreement is hereby deleted in its entirety
and the following substituted therefor:
(l)
" 1.41 "Guarantor Availability" shall mean, as to any
Guarantor, at any time, the amount equal to: (a) the
applicable percentage for such Guarantor set forth in Section
2.1(a) multiplied by the Net Amount of Eligible Accounts of
such Guarantor, plus (b) the applicable percentage for such
Guarantor set forth in Section 2.1(a) multiplied by the Value
of the Eligible Inventory of such Guarantor, minus (c) the
Availability Reserves allocated by Lender to such Guarantor,
except, that, in the case of Acquisition, "Guarantor
Availability" shall include, in addition to and not in
limitation of clauses (a) through (c) above, the amount of the
KWS Supplemental Revolving Loan Limit then in effect."
(a) Section 1.47 of the Loan Agreement is hereby amended to include the
following additional clause (g) thereto:
(b)
"and (g) the promissory note dated March __, 2000 issued by
Acquisition and payable to Borrower."
1. Consent to KWS Merger. Subject to the terms and conditions contained herein,
Lender hereby confirms and agrees that it consents to the KWS Merger pursuant to
the terms of the KWS Merger Agreements (as in effect on the date hereof).
2.
(a) Loans. Sections 2.1(a)(viii) and (ix) of the Loan Agreement are hereby
deleted and replaced in their entirety as follows:
(b)
"(viii) forty (40%) percent of the Value of the Eligible
Inventory of the Leer Retail Division of TAG, provided,
that, Lender may at any time after the date hereof upon
written notice to Borrower increase such percentage to sixty
(60%) percent of the Value of such Eligible Inventory, plus
(ix) eighty-five (85%) percent of the Net Amount of Eligible
Accounts of Acquisition, plus"
(a) Section 2.1 (a) of the Loan Agreement is hereby amended to include the
following additional sections (x) and (xi) as follows:
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(b)
"(x) sixty (60%) percent of the Value of the Eligible
Inventory of Acquisition, minus
(xi) any Availability Reserves."
(a) Section 2.1 (c) is hereby amended by adding the following sentence at
the end of the Section:
(b)
" Notwithstanding anything to the contrary herein, the
aggregate amount of the Loans based on Eligible Inventory of
Acquisition outstanding at any time shall not exceed
$1,000,000."
(a) Section 2.1(d) of the Loan Agreement is hereby deleted in its entirety
and replaced as follows:
(b)
"(d) Except in Lender's discretion, (i) the aggregate amount
of the Loans made pursuant to Section 2.1(a) hereof and the
Letter of Credit Accommodations outstanding at any time
shall not exceed the Revolving Loan Limit, and (ii) the
aggregate amount of Loans and Letter of Credit
Accommodations outstanding at any time shall not exceed the
Maximum Credit. In the event that the outstanding amount of
any component of the Loans, or the aggregate amount of the
outstanding Loans and Letter of Credit Accommodations,
exceed the amounts available under the lending formulas, the
sublimits for Letter of Credit Accommodations set forth in
Section 2.2(d) or the Maximum Credit, as applicable, such
event shall not limit, waive or otherwise affect any rights
of Lender in that circumstance or on any future occasions.
Borrower shall, upon demand by Lender, which may be made at
any time or from time to time, immediately repay to Lender
the entire amount of any such excess(es) for which payment
is demanded."
(a) The phrase "in each case pursuant to and in accordance with the Intercompany
Loan Documents as in effect on the date hereof" set forth in Section 2.4 and
elsewhere in the Loan Agreement and the other Financing Agreements of the Loan
Agreement is hereby deemed to include the Intercompany Loan Documents by and
between Borrower, as lender and Acquisition, as borrower, each dated March 8,
2000.
(b)
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2. KWS Supplemental Revolving Loans.
3.
(a) In addition to the loans, advances and Letter of Credit Accommodations which
may be made by Lender to Borrower pursuant to the Loan Agreement and the other
Financing Agreements, subject to and upon the terms and conditions contained
herein, and in the other Financing Agreements, Lender agrees to make the KWS
Supplemental Revolving Loans to Borrower from time to time in amounts requested
by Borrower, up to the amount at any time outstanding equal to the KWS
Supplemental Revolving Loan Limit as then in effect.
(a) Except in Lender's discretion, Borrower shall not have any right to request,
and Lender shall not make, any KWS Supplemental Revolving Loans in excess of the
KWS Supplemental Revolving Loan Limit or after the KWS Supplemental Revolving
Loan Termination Date and the amount of outstanding KWS Supplemental Revolving
Loans shall not, at any time, exceed the KWS Supplemental Revolving Loan Limit.
The KWS Supplemental Revolving Loans shall be secured by all the Collateral.
(b)
(c) Notwithstanding anything to the contrary contained herein or in the other
Financing Agreements, (i) on each date when any reduction to the KWS
Supplemental Revolving Loan Limit becomes effective, Borrower agrees absolutely
and unconditionally to automatically and without notice or demand make a payment
in respect of the KWS Supplemental Revolving Loans in an amount equal to the
excess, if any, of the aggregate unpaid principal amount of the KWS Supplemental
Revolving Loans over the KWS Supplemental Revolving Loan Limit as so reduced in
immediately available funds and (ii) unless sooner demanded by Lender in
accordance with terms of the Financing Agreements, Borrower further agrees that
all outstanding and unpaid Obligations arising pursuant to the KWS Supplemental
Revolving Loans (including, but not limited to, principal, interest, fees,
costs, expenses and other charges in respect thereof payable by Borrower to
Lender) shall automatically, without notice or demand, be absolutely and
unconditionally due and payable, and Borrower shall pay to Lender in cash or
other immediately available funds all such Obligations, on the KWS Supplemental
Revolving Loan Termination Date. Interest shall accrue at the Interest Rate set
forth in Section 5(d) below and be due, until and including the next Business
Day, if the amount so paid by Borrower to the bank account designated by Lender
for such purpose is received in such bank account after 12:00 p.m. New York City
time.
(d)
(i) The term "Interest Rate" shall mean with respect to KWS Supplemental
Revolving Loans, a rate of one (1%) percent per annum in excess of the Prime
Rate. Notwithstanding the foregoing, "Interest Rate" shall mean the rate equal
to two (2%) percent per annum in excess of the interest rate otherwise then
payable by Borrower on KWS Supplemental Revolving Loans, at Lender's option,
without notice, for the period on and after the date of termination or
non-renewal of the Loan Agreement, or the date of the occurrence of any Event of
Default and for so long as such Event of Default is continuing as determined by
Lender and at any time and to the extent the outstanding principal amount of the
KWS Supplemental Revolving Loans in excess of the KWS Supplemental Revolving
Loan Limit then in effect.
(ii)
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(iii) Acknowledgment. Acquisition hereby expressly agrees to perform, comply
with and be bound by all terms, conditions and covenants of the Loan Agreement
and the other Financing Agreements applicable to all Guarantors and as applied
to Acquisition, as a Guarantor, with the same force and effect as if Acquisition
had originally executed and been an original Guarantor signatory to the Loan
Agreement and the other Financing Agreements, and agrees that Lender shall have
all rights, remedies and interests, including, without limitation, security
interests in and to the Collateral granted pursuant to Section 7 below, the Loan
Agreement and the other Financing Agreements, with respect to Acquisition and
its properties and assets with the same force and effect as Lender has with
respect to the other Guarantors and their assets and properties as if
Acquisition had originally executed and had been an original Guarantor signatory
to the Loan Agreement and the other Financing Agreements.
(iv)
2. Collateral.
3.
(a) Without limiting the provisions of Section 6 hereof, Section 5 of the Loan
Agreement and the other Financing Agreements, as collateral security for the
payment and performance of all Obligations, Acquisition hereby grants to Lender
a continuing security interest and lien upon, and a right of set-off against,
and hereby assigns to Lender, as security, all of the following property and
interests in property, whether now owned or hereafter acquired:
(i) Receivables;
(ii)
(iii) all present and future contract rights and other general intangibles,
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;
(iv)
(1) all present and future chattel paper, documents and instruments which
evidence or relate to Receivables or Inventory and including all documents of
title or which evidence or relate to indebtedness arising pursuant to
Receivables or any of the other Collateral (including, without limitation, the
Intercompany Notes or any promissory notes or instruments which at any time
evidence indebtedness of any Affiliate of Acquisition arising from loans,
advances or other financial accommodations made or provided by Acquisition to or
for the benefit of such Affiliate with proceeds of the Loans or in connection
with the Letter of Credit Accommodations and promissory notes or other
instruments which evidence indebtedness of any account debtor or other obligor
in respect of any Receivables);
(2)
(B) all present and future monies, securities, credit balances, deposits,
deposit accounts, documents, instruments and other property of Acquisition now
or hereafter held or received by or in transit to Lender or its affiliates,
whether for safekeeping, pledge, custody, transmission, collection or otherwise,
all present and future monies, securities, credit balances and deposits at any
bank or other financial institution constituting proceeds of Receivables or any
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of the other Collateral or constituting proceeds of loans, advances or other
financial accommodations made or provided by Lender or its Affiliates to or for
the benefit of Acquisition or its Affiliates or constituting proceeds of loans,
advances or other financial accommodations made or provided by Acquisition to or
for the benefit of any Affiliate with proceeds of the Loans or in connection
with the Letter of Credit Accommodations or 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 or
Letter of Credit Accommodations made or provided by Lender or its Affiliates to
or for the benefit of Acquisition or its Affiliates, or proceeds of loans,
advances or other financial accommodations made or provided by Acquisition to or
for the benefit of any Affiliate with proceeds of the Loans or in connection
with the Letter of Credit Accommodations, and all right, title and interest of
Acquisition 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 Acquisition or its Affiliates, or proceeds of loans,
advances or other financial accommodations made or provided by Acquisition to or
for the benefit of any Affiliate with proceeds of the Loans or in connection
with the Letter of Credit Accommodations;
(C)
(D) 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, rights and remedies under or relating
to guaranties, contracts of suretyship, letters of credit and credit and other
insurance related to the Receivables or any of the other Collateral, rights of
stoppage in transit, replevin, repossession, reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, 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, deposits by and property of account debtors or other persons
securing the obligations of account debtors, and security interests granted by
Affiliates of Acquisition to Acquisition to secure Indebtedness arising from
loans, advances or other financial accommodations made or provided by
Acquisition to or for the benefit of such Affiliate or otherwise;
(E)
(v) Inventory;
(vi)
(vii) all leases and rental agreements for personal property between
Acquisition, 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
Acquisition therein;
(viii)
(ix) Records; and
11
(x)
(xi) all products and proceeds of the foregoing, in any form, including, without
limitation, insurance proceeds and all claims against third parties for loss or
damage to or destruction of any or all of the foregoing.
(xii)
(b) Notwithstanding anything to the contrary contained in Section 7(a)above, the
types or items of Collateral shall not include any rights or interests in any
contract, lease, permit, license, charter or license agreement covering personal
property, as such, if under the terms of such contract, lease, permit, license,
charter or license agreement, or applicable law with respect thereto, the valid
grant of a security interest or lien therein to Lender is prohibited and such
prohibition has not been or is not waived or the consent of the other party to
such contract, lease, permit, license, charter or license agreement has not been
or is not otherwise obtained or under applicable law such prohibition cannot be
waived; provided, that, the foregoing exclusion shall in no way be construed (i)
to apply if such prohibition is unenforceable under Section 9-318 of the UCC or
other applicable law or (ii) so as to limit, impair or otherwise affect Lender's
unconditional continuing security interests in and liens upon any rights or
interests of Acquisition in or to monies due or to become due under any such
contract, lease, permit, license, charter or license agreement (including,
without limitation, any Accounts or other Receivables).
(c)
(d) Without limiting the foregoing, or the other Collateral pursuant to the
Loan Agreement or any of the other Financing Agreements, in order to induce
Lender to make loans and advances and provide other financial accommodations to
Borrower under the Loan Agreement, and as additional collateral for the payment
and performance when due of all Obligations of Borrower and Acquisition, as the
case may be, Acquisition hereby pledges and assigns to Lender and grants to
Lender a security interest in, all of its now existing and hereafter arising (i)
rights, remedies, claims for monies, indemnification claims and claims for
damages or other relief pursuant to or in respect of the KWS Merger Agreements,
(ii) rights, remedies, claims for monies, indemnification claims and claims for
damages or other relief under or in respect of the documents and instruments
referred to in the KWS Merger Agreements, and (iii) all proceeds, collections,
recoveries and rights with respect to the foregoing. Nothing set forth herein,
and no act taken by Lender pursuant to the pledges, assignments and grants of
security interests set forth herein shall constitute an assumption by Lender of
any obligation or liability of Acquisition pursuant to or in connection with the
KWS Merger Agreements or otherwise.
(e)
2. Payments. Notwithstanding anything to the contrary set forth in Section 6.4
of the Loan Agreement, Lender shall apply payments received or collected from
Borrower or Guarantors or for the account of Borrower or Guarantors (including,
without limitation, the monetary proceeds of collections or of realization upon
any Collateral or any other property which is security for the Obligations),
first, to all Obligations (other than the outstanding principal amount of the
KWS Supplemental Revolving Loans) which are then due and payable, second, to all
Obligations (other than the outstanding principal amount of the KWS Supplemental
Revolving Loans) which are not then due and payable, and third, to the
outstanding principal amount of the KWS Supplemental Revolving Loans, except,
that, (i) on the first day of each calendar month, (ii) upon the occurrence of
an Event of Default or act, condition or event which with notice, lapse of time
12
or both would constitute an Event of Default, shall exist or have occurred and
be continuing, (iii) during the period on and after the date of termination or
non-renewal of the Loan Agreement, and (iv) to the extent that the aggregate
principal amount of the KWS Supplemental Revolving Loans at any time outstanding
is in excess of the KWS Supplemental Revolving Loan Limit then in effect, Lender
may apply payments received or collected from Borrower or Guarantors or for the
account of Borrower or Guarantors (including, without limitation, the monetary
proceeds of collections or of realization upon any Collateral or any other
property which is security for the Obligations), first, to such Obligations that
are then due and payable and then in such order or manner as Lender determines.
3.
4. References in Section 9 of the Loan Agreement. The phrase ",Revolving Loan
Limit" is hereby inserted after the term "sublimits" each time the term
sublimits appears in Sections 9.7(b)(ii), 9.9(g)(vii), 9.9(h)(vi), and
9.9(m)(vii) of the Loan Agreement.
5.
6. Priority of Liens. The first sentence of Section 8.4 of the Loan Agreement
is hereby deleted and the following substituted therefor:
7.
"The security interests and liens granted to Lender under this
Agreement and the other Financing Agreements constitute valid
and perfected first priority liens and security interests in
and upon the Collateral except with respect to any assets and
properties of Acquisition which are included within the KWS
Term Loan Collateral."
1. Sales of Assets.
2.
(a) Section 9.7(b)(ii) is hereby amended to include the following at the end of
the Section:
(b)
"; provided, that, in the case of Acquisition, Acquisition may
only dispose of Equipment and Real Property constituting KWS
Term Loan Collateral in accordance with the terms of the KWS
Term Loan Documents, except, that, as at any time the
outstanding Loans exceed the amount of the Loans available to
Borrower based on the lending formulas set forth in Section
2.1 hereof, subject to any then applicable Availability
Reserves, sublimits and the Maximum Credit, or the
intercompany loans by Borrower to KWS pursuant to the
Intercompany Loan Documents exceeds the Guarantor Availability
of KWS (less the KWS Supplemental Revolving Loan Limit then in
effect), the Net Available Proceeds from such disposition
equal to such Loans which exceed the amounts available to
Borrower or KWS shall be paid directly to Lender for
application to the Obligations in such order and manner as
Lender shall determine;"
13
(a) The first parenthetical in Section 9.7(b)(vii) is hereby amended to include
the phrase "and Acquisition, so long as the KWS Term Loan has not been
indefeasibly paid in full, except with respect sales of KWS Term Loan Collateral
in accordance with the KWS Term Loan Documents" after the term "Xxxxxx" appears.
(b)
(c) Section 9.7(b)(viii) is hereby amended to include the following at the end
of such Section:
(d)
"provided, further, that, in the case of Acquisition, so long
as the KWS Term Loan has not been indefeasibly paid in full,
Acquisition may only sell less than all or substantially all
of its assets (other than Capital Stock) constituting KWS Term
Loan Collateral in accordance with the KWS Term Loan
Documents;"
1. Encumbrances. Section 9.8(e) is hereby amended to include the following at
the end of such Section:
2.
"except, that, so long as the KWS Term Loan has not been
indefeasibly paid in full, Acquisition may not grant any such
purchase money security interests or purchase money mortgages
unless such liens are permitted pursuant to the KWS Term Loan
Documents;"
1. Indebtedness.
2.
(a) Section 9.9(a) is hereby amended to include the following at the end of
such Section:
(b)
"and the Indebtedness owing by Acquisition to Lender in
respect of the KWS Term Loan and KWS Term Loan Documents;"
(a) The definition of "Refunding Indebtedness" in Section 9.9(q) is hereby
amended to include the indebtedness and "Obligations" (as such term is defined
in the KWS Term Loan Documents) of KWS to Lender under and pursuant to the KWS
Term Loan Documents.
(b)
2. Events of Default. Section 10.1(i) is hereby amended to include the following
at the end of the Section:
3.
"or Event of Default under the KWS Term Loan Documents;"
1. Amendments to Schedules and Exhibits. Schedules 1.20, 1.35, 1.48, 6.3, 8.1,
8.4, 8.8, 8.9, 9.9 and 9.10 to the Loan Agreement are hereby supplemented to
include the information with respect to Acquisition and KWS as set forth as
14
indicated on Schedule B annexed hereto and the Information Certificates
delivered by Acquisition and KWS in accordance with Section 20(b) hereof shall
constitute its Information Certificate for purposes of Section 1.45 of the Loan
Agreement.
2.
3. KWS Term Loan. Notwithstanding anything to the contrary set forth in the Loan
Agreement, Lender hereby consents to the making of the KWS Term Loan on the
terms and conditions set forth in the KWS Term Loan Documents.
4.
5. 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
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):
6.
(i) The KWS Merger is valid and effective in accordance with the KWS Merger
Agreements, and the corporation statutes of the state of Texas and KWS
Manufacturing Company, Inc. shall be the surviving corporation pursuant to the
KWS Merger.
(ii)
(iii) All actions and proceedings required by the KWS Merger Agreements,
applicable law and regulation (including, but not limited to, compliance with
Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvement Act of 1976 as amended) have been taken
and the transactions required thereunder have been duly and validly taken an
consummated.
(iv)
(v) No court of competent jurisdiction has issued any injunction, restraining
order or other order which prohibits consummation of the transactions described
in the KWS Merger Agreements and no government action or proceeding has been
threatened or commenced seeking any injunction, restraining order or other order
which seeks to void or otherwise modify the transactions described in the KWS
Merger Agreements.
(vi)
(vii) Contemporaneously with the KWS Merger, KWS, as survivor pursuant to the
KWS Merger, shall continue to be and shall be directly and primarily liable in
all respects for all of the Obligations and the Obligations are unconditionally
owing to Lender, without offset, defense or counterclaim of any kind, nature or
description whatsoever. The security interests in and liens upon the assets and
properties of Acquisition in favor of Lender shall continue upon such assets and
properties to which KWS shall succeed pursuant to the KWS Merger, and such
security interests and liens and their perfection and priority shall continue in
all respects in full force and effect. Without limiting the generality of the
foregoing, the KWS Merger shall in no way limit, impair or adversely affect the
Obligations, howsoever arising, or any security interests or liens securing the
same.
(viii)
(ix) The loans and the investments of Borrower and MIC in Acquisition and the
other arrangements of Borrower and the other Guarantors with Acquisition,
contemplated herein do not violate any law or regulation or any order or decree
of any court or governmental instrumentality in any respect and do not and will
15
not conflict with or result in the breach of, or constitute a default in any
respect under, any agreement, document or instrument to which Borrower,
Acquisition or any other Guarantor is a party or may be bound, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the
property of Borrower, Acquisition or any other Guarantor or violate any
provision of the Certificate of Incorporation or By-Laws of Borrower,
Acquisition or any other Guarantor.
(x)
(xi) Borrower and Acquisition have delivered, or caused to be delivered, to
Lender, true, correct and complete copies of the KWS Merger Agreements.
(xii)
(b) After giving effect to the KWS Merger, all of the issued and outstanding
shares of Capital Stock of KWS shall be directly and beneficially owned and held
by MIC and all of such shares have been duly authorized and are fully paid and
non-assessable, free and clear of all claims, liens, security interests, pledges
and encumbrances of any kind, except as permitted in the Loan Agreement.
(c)
(d) 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.
(e)
(f) Neither the execution and delivery of this Amendment, nor the modifications
to the Financing Agreements contemplated by this Amendment shall violate any
applicable law or regulation, or any order or decree of any court or any
governmental instrumentality in any respect or does or shall conflict with or
result in the breach of, or constitute a default in any respect under, any
indenture, including, without limitation, the Senior 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 violate any provision
of the organizational documents of Borrower or Guarantors.
(g)
(h) 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.
(i)
(j) 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).
(k)
(l) KWS has become a Restricted Subsidiary and Subsidiary Guarantor under and in
accordance with the terms of the Senior Note Indenture.
(m)
(n) Each of Acquisition, and KWS Manufacturing Company, Inc. (immediately prior
to the KWS Merger) is solvent, and KWS, after giving effect to the KWS Merger,
will continue to be solvent after the assumption of the Obligations, the
creation of the security interests of Lender and the consummation of the other
16
transactions contemplated hereunder, is able to pay its debts as they mature and
has (and has reason to believe it will continue to have) sufficient capital (and
not unreasonably small capital) to carry on its business and all businesses in
which it is about to engage. The assets and properties of KWS at a fair
valuation and at their present fair salable value are, and will be, greater than
the Indebtedness of KWS, and including subordinated and contingent liabilities
computed at the amount which, to the best of KWS's and the other Borrowers'
knowledge and to the best of Guarantors' knowledge, represents an amount which
can reasonably be expected to become an actual or matured liability.
(o)
(p) Borrower and KWS shall deliver, or cause to be delivered, to Lender, within
ninety (90) days from the date hereof, an opening balance sheet of KWS after
giving effect to the transactions contemplated by this Agreement and the KWS
Merger Agreements, together with a certificate, dated on such date, signed by
the Chief Financial Officer of KWS certifying that such opening balance sheet
has been prepared in accordance with GAAP and presents fairly the financial
condition of KWS as of that date.
(q)
(i) Loans. Subject to the terms and conditions contained herein and the Loan
Agreement, Lender hereby consents to the intercompany loan by Borrower to
Acquisition as of the date hereof with the proceeds of the KWS Supplemental
Revolving Loans as described in Section 5 hereof and the intercompany loans by
Borrower to Acquisition on and after the date hereof from time to time with the
proceeds of the Loans as described in Section 2.4 of the Loan Agreement;
provided, that, the intercompany loans by Borrower to Acquisition as of the date
hereof are and shall be evidenced by the promissory note dated the date hereof,
issued by Acquisition in favor of Borrower, the original of which shall be
endorsed, assigned and delivered to Lender to hold as part of the Collateral,
each of the intercompany loans by Borrower to Acquisition after the date hereof
shall be evidenced by the Intercompany Note, and in no event, except in Lender's
discretion, shall the total amount of the Indebtedness of KWS to Borrower
evidenced by or arising under the Intercompany Note at any time outstanding
exceed the Guarantor Availability with respect to KWS.
(ii)
7. Amendment Fee. In consideration of this Amendment, Borrower shall pay to
Lender or Lender, at its option, may charge the account of Borrower maintained
by Lender an amendment fee in the aggregate amount of $35,000, which fee is
fully earned as of the date hereof and may, at Lender's option, be charged
directly to Borrower's loan account maintained by Lender.
8.
9. Conditions Precedent. The making of the KWS Supplemental Revolving Loans and
the effectiveness of the consents and amendments set forth herein, shall be
subject to the receipt by Lender of each of the following, in form and substance
satisfactory to Lender:
10.
(a) an original of this Amendment, duly authorized, executed and delivered by
Borrower and Guarantors;
(b)
17
(c) Lender shall have received, in form and substance satisfactory to Lender,
the other KWS Amendment Agreements, each duly authorized, executed and delivered
by the parties thereto;
(d)
(e) Lender shall have received, in form and substance satisfactory to Lender,
evidence that the KWS Merger Agreements have been duly executed and delivered by
and to the appropriate parties thereto and the transactions contemplated under
the terms of the KWS Merger Agreements have been consummated prior to or
contemporaneously with the execution of this Amendment;
(f)
(g) Lender shall have received, in form and substance satisfactory to Lender,
all releases, terminations and such other documents as Lender may request to
evidence and effectuate the termination by the KWS Existing Lenders of their
respective financing arrangements with KWS and the termination and release by
each of them of any interest in and to any assets and properties of KWS, duly
authorized, executed and delivered by each of them, including, but not limited
to, UCC termination statements for all UCC financing statements previously filed
by each of them, as secured party and KWS, as debtor;
(h)
(i) Lender shall have received, in form and substance satisfactory to Lender,
evidence that all required consents or approvals of any persons other than
Lender to the KWS Merger, and the loans and investments by Borrower and MIC in
Acquisition and the other arrangements of Borrower and the Guarantors with
Acquisition and KWS contemplated herein have been obtained;
(j)
(k) Lender shall have received, in form and substance satisfactory to Lender,
evidence that (i) the Articles of Merger with respect to the merger of KWS
Holding Company, Inc., and KWS Manufacturing Co., Inc. has been filed with the
Secretary of State of Texas and such merger is valid and effective in accordance
with the terms and provisions of the applicable corporate statutes of the State
of Texas, and (ii) the Articles of Merger with respect to the KWS Merger has
been filed with the Secretary of State of Texas and the KWS Merger is valid and
effective in accordance with the terms and provisions of the applicable
corporate statutes of the State of Texas;
(l)
(m) Lender shall have received the originals of the Intercompany Note made by
Acquisition, as duly authorized, executed and delivered by Acquisition and as
duly endorsed and assigned by Borrower to Lender;
(n)
(o) Lender shall have received, in form and substance satisfactory to Lender, a
fully executed copy of the Third Supplemental Indenture, dated on or about the
date hereof, to the Senior Note Indenture pursuant to which Acquisition has
become a Subsidiary Guarantor and Restricted Subsidiary (as each such term is
defined in the Senior Note Indenture);
(p)
(i) Lender has received evidence, in form and substance satisfactory to Lender,
that, on or before the date hereof, MIC has made a cash equity contribution to
18
Acquisition, in immediately available funds in an amount not less than $750,000,
and JBPCO has made a loan, in the principal amount of $810,000 to Acquisition,
each of which has been used to pay a portion of the cash consideration due to
Xx. Xxxxx X. Xxxxxxx and/or repay the existing debt of KWS prior to the KWS
Merger in accordance with the terms of the KWS Merger Agreements;
(ii)
(q) Lender shall have received, in form and substance satisfactory to Lender,
the KWS Term Loan Documents, duly authorized, executed and delivered by KWS and
the other Persons or parties thereto;
(r)
(s) all representations and warranties contained herein and in the Loan
Agreement shall be true and correct in all material respects;
(t)
(u) Lender shall have received evidence, in form and substance satisfactory to
Lender, that Lender has valid perfected and first priority security interests in
and liens upon the Collateral of KWS and Acquisition and any other property
which is intended to be security for the Obligations, subject only to the
Permitted Liens;
(v)
(w) Lender shall have completed a field review of the Records and such other
information with respect to the Collateral of Acquisition as Lender may require
to determine the amount of Loans available to Borrower, the results of which
shall be satisfactory to Lender, not more than three (3) Business Days prior to
the date hereof;
(x)
(y) Lender shall have received, in form and substance satisfactory to Lender,
the collateral assignment by Borrower to Lender of all right, title and interest
of Borrower under or pursuant to the Intercompany Loan Documents relating to
Acquisition and granting Lender such other rights with respect thereto as Lender
may require, duly authorized, executed and delivered by Borrower and
acknowledged and agreed to by Acquisition (including any waiver of defenses by
Acquisition as against Lender as assignee of Borrower);
(z)
(aa) Lender shall have received evidence of insurance and loss payee
endorsements with respect to the Collateral of Acquisition required under the
Financing Agreements, in form and substance reasonably satisfactory to Lender,
and certificates of insurance policies and/or endorsements naming Lender as loss
payee with respect to such Collateral; and
(bb)
(cc) Lender shall have received, in form and substance satisfactory to Lender,
the opinion letter of counsel to Borrower, Acquisition and KWS (as the surviving
corporation of the KWS Merger) with respect to the KWS Merger Agreements, the
KWS Merger, the KWS Amendment Agreements, Senior Note Indenture, and the
security interest and liens of Lender with respect to the Collateral and such
other matters as Lender may request;
(dd)
(ee) Lender shall have received the fee referred to in Section 19 hereof; and
(ff)
(gg) 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
19
time or both would constitute an Event of Default.
(hh)
11. Additional Events of Default. The parties hereto acknowledge, confirm and
agree that the failure of Borrower or any Guarantor to comply with the
covenants, conditions and agreements contained herein shall constitute an Event
of Default under the Financing Agreements (subject to the applicable cure
period, if any, with respect thereto provided for in the Loan Agreement as in
effect on the date hereof).
12.
13. Notices. For purposes of Section 12.2 of the Loan Agreement, notices shall
be sent to Acquisition at its offices located at 0000 Xxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000, and upon the effective date of the KWS Merger
notices to Acquisition shall be sent to KWS at 0000 Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxx 00000.
14.
15. Effect of this Amendment. Except for the specific amendment 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.
16.
17. 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 laws).
18.
19. 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.
20.
21. 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.
22.
23.
24.
25.
26.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20
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:
MAGNETIC INSTRUMENTS CORP.
By:
Title:
21
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
XXXXXX TRAILER MFG. CO.
By:
Title:
TRUCK ACCESSORIES GROUP, INC.
By:
Title:
RAIDER INDUSTRIES INC.
By:
Title:
KWS ACQUISITION CORP.
By:
Title:
