May 1, 1993
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Re: Fourth Amendment to Financing Agreements
Gentlemen:
Reference is made to the Accounts Financing Agreement [Security Agreement]
between Congress Financial Corporation ("Congress") and I.C. Xxxxxx & Co.
L.P. ("Borrower") dated as of June 16, 1992 (the "Accounts Agreement") and
all supplements thereto, and all other agreements, documents and instruments
related thereto and executed in connection therewith including, the Covenant
Supplement to Accounts Financing Agreement [Security Agreement] ("Covenant
Supplement") and the Inventory and Equipment Security Agreement Supplement to
Accounts Financing Agreement [Security Agreement] ("Inventory and Equipment
Security Agreement"), as each is amended by the Amendment to Financing
Agreements dated October 30, 1992, Second Amendment to Financing Agreements
dated as of January 4, 1993 and the Third Amendment to Financing Agreements
dated as of March 10, 1993, as the same now exists or may hereafter be
further amended, modified, supplemented, extended, renewed, restated or
replaced (collectively, the "Financing Agreements"). Capitalized terms used
herein, unless otherwise defined herein shall have the meaning set forth in
the Financing Agreements.
Borrower has requested supplemental loans in an amount up to $2,500,000
under the Financing Agreements and certain modifications to the Financing
Agreements and Congress is willing to agree to such supplemental loans and
modifications, subject to the terms and conditions set forth herein.
In consideration of the foregoing, and the mutual agreements and covenants
contained herein and for other good and valuable consideration, Borrower and
Congress hereby agree as follows:
1. Maximum Credit. All references to Maximum Credit in the Financing
Agreements, including but not limited to Section 1.7 of the Accounts
Agreement, shall be deemed and each such reference is hereby amended by
replacing the figure "$11,000,000" with the figure "$14,000,000".
2. Supplemental Loans. Section 2.1 of the Accounts Agreement, as amended
by the Third Amendment, is hereby deleted in its entirety and replaced with
the following:
"2.1. You shall, in your discretion, make loans to us from time to
time, at our request, of up to eighty percent (80%) of the Net Amount of
Eligible Accounts (or such greater or lesser percentage thereof as you
shall in your sole discretion determine from time to time). Subject to the
terms and conditions hereof, you may also, in your discretion, make loans
to us from time to time, at our request, of up to $2,500,000 in excess of
such lending formula until November 11, 1993, subject to reduction thereof
as hereafter set forth, (the "Supplemental Loans"); provided, however, the
maximum aggregate outstanding amount of such Supplemental Loans shall be
reduced, commencing September 10, 1993, in successive and cumulative
amount of $250,000 each on September 10, 1993 and the last business day of
each week thereafter. Notwithstanding anything to the contrary contained
herein the entire outstanding balance of all Supplemental Loans shall be
repaid in full not later than November 12, 1993."
3. Supplemental Loan and Increased Line Fee. In partial consideration of
the increase in the Maximum Credit and Supplemental Loans as set forth
herein, Borrower agrees to pay Congress a fee in an amount equal to $45,000,
payable simultaneously with the execution hereof, which fee is fully earned
as of the date hereof. At Congress' option, Congress may charge such fee
directly to Borrower's loan account.
4. Unused Line Fee. Section 3.5 of the Accounts Agreement is amended by
replacing the figure "$8,000,000" in two (2) places therein with the figure
"$11,500,000" in such two (2) places.
5. Effect and Entirety of this Amendment. Except as specifically 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 ratified and confirmed by all parties hereto as of the
date hereof. This Amendment represents and incorporates the entire
understanding and agreements of the parties with respect to the matters set
forth herein and the parties hereto agree that there are no representations,
warranties, covenants or understandings of any kind, nature or description
whatsoever made by Congress to Borrower with respect to this Amendment,
except as specifically set forth herein. This Amendment represents the final
agreement between the parties and may not be contradicted by evidence or
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prior, contemporaneous or subsequent oral agreements of the parties.
6. Waiver, Modification, Etc. No provision or term hereof may be
modified, alter, waived, discharged or terminated orally, but only by an
instrument in writing executed by the party against whom such modification,
alteration, waiver, discharge or termination is sought.
7. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary
to effectuate the provisions and purposes of this Amendent.
8. Counterparts. This Amendent may be executed in one or more
counterparts which, taken together, shall constitute the agreement of the
parties.
Very truly yours,
I.C. XXXXXX & CO. L.P.
By: ISBUYCO, INC., General Partner
By: /s/ Xxxxxx X. Xxxx
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Title: CEO
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Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
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Title: Vice President
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ACKNOWLEDGED:
/s/ Xxx Xxxxxxx
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/s/ Xxxxxx Xxxxx
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/s/ Xxxxxx Xxxx
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/s/ Xxxxxx Xxxxxxxxx
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/s/ Xxxx Xxxxxxxx
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