April , 1995
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Ninth 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, 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.
Borrower has requested an extension of, and certain modifications to, the
Financing Agreements and Congress is willing to agree to such extension 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. Supplemental Loans. Section 2.1 of the Accounts Agreement, as
amended, 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 (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).
Subject to the terms and conditions hereof, you may also, in your
discretion, make loans to us from time to time, in excess of such
lending formula, at our request, of up to $1,000,000 from June 15,
1995 until August 15, 1995 (the "Supplemental Loans"). Notwithstanding
anything to the contrary contained herein, the entire outstanding
balance of all Supplemental Loans shall be repaid in full not later
than August 15, 1995."
2. Interest. Effective June 1, 1995, Section 3.1 of the Accounts
Agreement shall be automatically amended by deleting the reference to "two
and one-half percent (2-1/2%): and replacing it with "one percent (1%)".
3. Unused Line Fee. Effective June 1, 1995, Section 3.5 of the
Accounts Agreement, as amended, shall be automatically further amended by
deleting all references to "$12,500,000" and replacing them with
"$10,000,000".
4. Servicing Fee. Effective June 1, 1995, Section 3.6 of the
Accounts Agreement shall be automatically amended by deleting the reference
to "$2,000" and replacing it with "$1,500".
5. Clearance Days. Effective June 1, 1995, Section 5.1 of the
Accounts Agreement shall be automatically amended by deleting the reference
to "two (2) business days" and replacing it with "one (1) business day".
6. Renewal Date. Section 9.1 of the Accounts Agreement, as
amended, is hereby further amended by deleting the first sentence thereof in
its entirety and substituting the following therefor:
"9.1 This Agreement shall become effective upon acceptance by
you and shall continue in force and effect for a term ending June 16,
1996 (the "Renewal Date") and from year to year thereafter, unless
sooner terminated pursuant to the terms hereof."
7. Early Termination Fee. Section 9.2 of the Accounts Agreement,
as amended, is hereby further amended by deleting the period, and adding the
following, at the end of the first sentence of such Section:
", or (d) one (1%) percent of the Maximum Credit if such
termination occurs after the third anniversary of this Agreement but
prior to the fourth anniversary of this Agreement."
8. Letter of Credit Fee. Effective June 1, 1995, Section 1.5 of
the Trade Financing Agreement Supplement to Accounts Agreement, dated June
16, 1992, by Borrower in favor of Congress, shall be automatically amended by
deleting the reference to ".2083%" and replacing it with ".1667%".
9. 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 as to the subject matter
hereof and may not
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be contradicted by evidence or prior, contemporaneous or subsequent oral
agreements of the parties.
10. 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.
11. 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.
12. 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 & CO. L.P.
By: ISBUYCO, Inc., General Partner
By: /s/ Xxxxxx X. Xxxxx
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Title: Chairman
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Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Title: Asst. Vice President
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ACKNOWLEDGED:
/s/ Xxx Xxxxxxx
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/s/ Xxxxxx X. Xxxxx
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/s/ Xxxxxx X. Xxxx
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/s/ Xxxxxx Xxxxxxxxx
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/s/ Xxxx Xxxxxxxx
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/s/ Xxxxxxx Xxxxxx
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