July 31, 1997
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Fourteenth Amendment to Financing Agreements
Gentlemen:
Reference is made to the Accounts Financing Agreement
[Security Agreement] between Congress Financial Corporation ("Congress") and
I.C. Xxxxxx & Company L.P. ("Borrower") dated as of June 16, 1992, as amended
(the "Accounts Agreement") and all supplements thereto, and all other
agreements, documents and instruments related thereto and executed in
connection therewith (collectively, all of the foregoing, as the same now
exist or may hereafter be further amended, modified, supplemented, extended
renewed, restated or replaced, the "Financing Agreements"). Capitalized terms
used herein, unless otherwise defined herein, shall have the meaning set
forth in the Financing Agreements.
Xxxxxxxx has requested certain modifications to the Financing
Agreements and Congress is willing to agree to such 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. Definitions. For purposes of this Amendment, unless
otherwise defined herein, all terms used herein, including, but not limited
to, those terms used and/or defined in the recitals hereto, shall have the
respective meanings assigned to such terms in the other Financing Agreements.
2. Maximum Credit. Effective as of May 19, 1997, all
references to the term "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 to mean "$30,000,000,"
and the reference to the amount "$25,000,000" in such Section 1.7 is hereby
deleted and replaced with the amount "$30,000,000."
3. Letter of Credit Sublimit. Effective May 19, 1997, Section
1.5 of the Trade Financing Agreement Supplement to Accounts Agreement, dated
June 16, 1992, by Xxxxxxxx in favor of Congress is hereby further amended by
deleting the reference
therein to the amount "$8,000,000" and replacing the same with the amount
"$10,000,000."
4. Accounts Advances. Effective as of May 19, 1997, Section
2.1 of the Accounts Agreement, as previously amended, is hereby deleted in
its entirety and replaced with the following:
"2.1 You shall, in you discretion, make loans to us from
time to time, at our request, of up to eighty (80%) percent 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); provided, that, for the periods
from and including June 1, 1997 through and including August
30, 1997 and from and including December 10, 1997 through and
including January 3, 1998, you shall, in your discretion, make
loans to us from time to time, at our request, of up to
eighty-five (85%) percent of the Net Amount of Eligible
Accounts (or such greater or lesser percentage thereof as you
shall in your sole discretion as determined from time to
time)."
5. Credit Line Increase Fee. In partial consideration of the
increase in the Maximum Credit, the increase in the letter of credit sublimit
and the seasonal credit uplift provided for herein, Xxxxxxxx agrees to pay to
Congress a credit line increase fee in the amount of $35,000, payable as of
May 19, 1997, which fee is as of such date fully earned. At Congress' option,
Congress may, on or after May 19, 1997, charge such fee directly to
Xxxxxxxx's account.
6. Conditions Precedent. The amendments to the Financing
Agreements provided for herein shall only be effective upon the satisfaction
of each of the following conditions precedent in a manner satisfactory to
Congress:
(a) no Event of Default shall have occurred and be continuing
and no event shall have occurred or condition be existing and continuing
which, with notice or passage of time or both, would constitute and Event of
Default; and
(b) Congress shall have received, in form and substance
satisfactory to Congress, an original of this Amendment, duly authorized,
executed and delivered by Xxxxxxxx, Xxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxx,
Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxx and Xxxxxxx Xxxxxx.
7. 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
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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 as to the subject matter hereof and may not be
contradicted by evidence or prior, contemporaneous or subsequent oral
agreements of the parties.
8. Waiver, Modification, Etc. No provision or term hereof may
be modified, altered, 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.
9. 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 Amendment.
10. Counterparts. This Amendment may be executed in one or more
counterparts which, taken together, shall constitute the agreement of the
parties.
Very truly yours,
I.C. XXXXXX & COMPANY L.P.
By: I.G. DESIGN, INC.,
formerly known as Isbuyco, Inc.,
General Partner
By: /s/Xxxxxx X. Xxxxx
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Title: Chairman & Co-CEO
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Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: /s/E.S.M.
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Title: Vice President
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ACKNOWLEDGED:
/s/Xxx Xxxxxxx
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XXX XXXXXXX,
by Xxxx Xxxxxxx, pursuant to
the attached Power-of-Attorney
/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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