1
Exhibit 10.13
FOURTH AMENDMENT AND WAIVER
THIS FOURTH AMENDMENT AND WAIVER dated as of November 15, 1999 (this
"Amendment") amends the Credit Agreement dated as of June 5, 1998 (as previously
amended, the "Credit Agreement") between XXX X. XXXXXX, INC. (the "Company") and
BANK OF AMERICA, N.A. (formerly known as Bank of America National Trust and
Savings Association) (the "Bank"). Terms defined in the Credit Agreement are,
unless otherwise defined herein or the context otherwise requires, used herein
as defined therein.
WHEREAS, the Company and the Bank have entered into the Credit
Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects and to waive certain provisions of the Credit Agreement as more
fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
I. SECTION Amendments. The Credit Agreement is amended as
follows:
A. Amendment to Section 2.1.1. Section 2.1.1 is amended by
deleting the reference to "$8,000,000" contained in that Section and replacing
it with "$10,000,000; provided further, that the aggregate principal amount of
all outstanding Eurodollar Loans shall not at any time exceed $8,000,000".
A. Amendment to Section 4.1. Clause (a) of Section 4.1 is
amended by adding the following before the semicolon at the end of that clause:
"provided that, if at any time the aggregate principal amount of all outstanding
Loans exceeds $8,000,000, then Floating Rate Loans in an amount equal to such
excess shall bear interest at a rate per annum equal to the Base Rate plus
2.0%".
A. Addition of Section 5.4. A new Section 5.4 is added to
the Credit Agreement as follows:
5.4 Usage Fee. The Company agrees to pay to the Bank a
one-time usage fee in the amount of $50,000 on the date on which the
aggregate principal amount of all outstanding Loans exceeds $8,000,000.
A. Amendment to Section 10.9. Clause (ii) of the proviso to
Section 10.9 is restated in its entirety to read as follows: "(ii) so long as no
Event of Default or Unmatured Event of Default exists or would result therefrom,
the Company may make regularly scheduled payments of principal of Subordinated
Debentures."
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Exhibit 10.13
A. Amendment to Section 10.10. Section 10.10 is amended by
(a) deleting the word "and" at the end of clause (f); (b) relettering the
existing clause (g) as clause (h); and (c) inserting the following new clause
(g) in appropriate sequence: "(g) cash Investments in Weskem LLC in an aggregate
amount not to exceed $700,000; and".
I. SECTION Waiver. Effective on the date of this Amendment, the Bank
hereby waives the Company's non-compliance with Section 10.6.2 of the Credit
Agreement for the period of four fiscal quarters ending on September 30, 1999 so
long as the ratio described in such Section is not less than 1.5 to 1 for such
period.
I. SECTION Representations and Warranties. The Company represents and
warrants to the Bank that (a) each warranty set forth in Section 9 of the Credit
Agreement is true and correct as of the date of the execution and delivery of
this Amendment by the Company, with the same effect as if made on such date
(except to the extent such representations and warranties expressly refer to an
earlier date, in which case they were true and correct as of such earlier date),
(b) the execution and delivery by the Company of this Amendment and the
performance by the Company of its obligations under the Credit Agreement, as
amended hereby (as so amended, the "Amended Credit Agreement"), (i) are within
the corporate powers of the Company, (ii) have been duly authorized by all
necessary corporate action on the part of the Company, (iii) have received all
necessary governmental approval and (iv) do not and will not contravene or
conflict with any provision of law or of the charter, by-laws or other
organizational documents of the Company or any Subsidiary or of any agreement,
indenture, instrument or other document, or any judgment, order or decree, which
is binding on the Company or any Subsidiary and (c) the Amended Credit Agreement
is the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles of
equity limiting the availability of equitable remedies.
I. SECTION Effectiveness. The amendments set forth in Section 1 above
and the waiver set forth in Section 2 above shall become effective as of the
date of this Amendment when the Bank shall have received (a) a counterpart of
this Amendment signed by Company, (b) a confirmation in the form of Exhibit A
signed by the Company and each Guarantor and (c) an amendment fee in the amount
of $20,000.
I. SECTION Miscellaneous.
A. Continuing Effectiveness, etc. As herein amended, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. All references in the Credit Agreement and the
other Loan Documents to "Credit Agreement" or similar terms shall refer to the
Amended Credit Agreement.
A. Counterparts. This Amendment may be executed in any
number of counterparts and by the parties hereto on separate counterparts, and
each such counterpart
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Exhibit 10.13
shall be deemed to be an original but all such counterparts shall together
constitute one and the same Amendment.
A. Governing Law. This Amendment shall be a contract
made under and governed by the laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State.
A. Successors and Assigns. This Amendment shall be
binding upon the Company and the Bank and their respective successors and
assigns and shall inure to the benefit of the Company and the Bank and the
respective successors and assigns of the Bank.
A. Blocked Account Agreements. If the Credit Agreement
has not terminated on or prior to January 31, 2000, the Company shall provide to
the Bank on such date copies of blocked account agreements in substantially the
form set forth in Exhibit B hereto covering all accounts of the Company or any
of its Subsidiaries maintained at Allfirst, and at any other financial
institution other than the Bank to the extent that funds in the accounts
described on Exhibit C hereto exceed $100,000 in the aggregate at any time.
A. Further Assurances. (a) If the Credit Agreement has
not terminated on or prior to January 31, 2000, the Company shall promptly
execute a mortgage in favor of the Bank, in form and substance reasonably
satisfactory to the Bank, on the property of the Company and its Subsidiaries
located in West Chester, Pennsylvania (the "Property").
(b) The Company further agrees to promptly (and, in any event, no later
than February 29, 2000) provide the following documents in connection with the
mortgage referred to above: (i) an ALTA Loan Title Insurance Policy, issued by
an insurer acceptable to the Bank, insuring the Bank's Lien on the Property and
containing such endorsements as the Bank may reasonably require; (ii) copies of
all documents of record concerning the Property as shown on the commitment for
the ALTA Loan Title Insurance Policy; (iii) original or certified copies of all
insurance policies required to be maintained with respect to the Property by the
Credit Agreement, the mortgage or any other Loan Document; and (iv) a flood
insurance policy concerning the Property, reasonably satisfactory to the Bank,
if required by the Flood Disaster Protection Act of 1973.
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Exhibit 10.13
Delivered at Chicago, Illinois, as of the day and year first above
written.
XXX X. XXXXXX, INC.
By: s/Xxxxxxx X. Xxxxxxxxx
--------------------------------
Title:
--------------------------------
BANK OF AMERICA, N.A.
By: s/Xxxxxx Xxxxxx
--------------------------------
Title:
--------------------------------
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Exhibit 10.13
EXHIBIT A
CONFIRMATION
Dated as of November 15, 1999
To: Bank of America, N.A.
Please refer to (a) the Credit Agreement dated as of June 5, 1998 (as
amended, the "Credit Agreement") among Xxx X. Xxxxxx, Inc. (the "Company") and
Bank of America, N.A. (formerly known as Bank of America National Trust and
Savings Association), (b) the Fourth Amendment and Waiver dated as of the date
hereof to the Credit Agreement (the "Fourth Amendment"); (c) the Guaranty (the
"Guaranty") dated as of June 5, 1998 issued by each of the undersigned (other
than the Company) in favor of the Bank; (d) the Security Agreement (the
"Security Agreement") dated as of June 5, 1998 among each of the undersigned and
the Bank; and (e) the other Loan Documents (as defined in the Credit Agreement).
Each of the undersigned hereby confirms to the Bank
that, after giving effect to the Fourth Amendment and the transactions
contemplated thereby, each Loan Document (including the Guaranty and the
Security Agreement) to which such undersigned is a party continues in full force
and effect and is the legal, valid and binding obligation of such undersigned,
enforceable against such undersigned in accordance with its terms.
XXX X. XXXXXX, INC.
By:
Title:
XXX X. XXXXXX (DELAWARE), INC.
By:
Title:
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Exhibit 10.13
XXX X. XXXXXX (IPR), INC.
By:
Title:
MOORSTEIN, INC.
By:
Title:
XXX X. XXXXXX OF NEW YORK, INC.
By:
Title:
WESTON INTERNATIONAL HOLDINGS, INC.
By:
Title:
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Exhibit 10.13
EXHIBIT B
FORM OF BLOCKED ACCOUNT AGREEMENT
[Date]
[Bank]
[Address]
Re: [Weston or applicable Subsidiary]
Ladies and Gentlemen:
We hereby notify you that we have transferred exclusive ownership,
dominion and control of our deposit account (the "Deposit Account") listed on
Schedule I hereto to Bank of America, N.A. ("BofA") pursuant to a Security
Agreement dated as of June 5, 1998 among us, various other parties and BofA (as
amended or otherwise modified from time to time, the "Security Agreement"). We
also have granted to BofA a security interest in all cash, checks, drafts and
other similar writings for the payment of money from time to time held in the
Deposit Account.
We hereby irrevocably instruct you to make all payments to be made by
you out of or in connection with the Deposit Account in accordance with the
instructions of BofA. In this regard, we wish to note that BofA in the
accompanying Acknowledgement and Instructions has authorized you to continue to
accept instructions from us unless BofA has given you written notice (which has
not been rescinded) of the existence of a Default under and as defined in the
Security Agreement.
We also hereby notify you that BofA, subject to the immediately
preceding paragraph, shall be irrevocably entitled to exercise any and all
rights in respect of or in connection with the Deposit Account, including,
without limitation, the right to specify when payments are to be made out of or
in connection with the Deposit Account.
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Exhibit 10.13
Funds deposited into the Deposit Account will not be subject to
deduction, set-off, banker's lien or any other right in favor of any person or
entity other than BofA, except (i) that you may set off against the Deposit
Account the face amount of any check deposited in and credited to the Deposit
Account which is subsequently returned for any reason and (ii) for your
statutory security interest in items and their proceeds to the extent of deposit
credits posted therefor. Your compensation for providing the services
contemplated herein shall be as mutually agreed between you and us from time to
time and we will continue to pay such compensation, and you agree not to
terminate the Deposit Account without giving BofA at least 30 days' prior
written notice.
By signing below, you agree that this letter and the accompanying
Acknowledgement and Instructions constitute notice in writing of the security
interest of BofA in the Deposit Account and all cash, checks, drafts and similar
writings for the payment of money from time to time therein, and you hereby
consent to such notice. This Agreement may not be changed except pursuant to a
writing signed by us and BofA.
Please agree to the terms of, and acknowledge receipt of, this letter
by signing in the space provided below on two of the enclosed copies and
returning them to BofA at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention Xxxxxxxx Xxxxxx.
Very truly yours,
[WESTON ENTITY]
By: ___________________________
Print Name:_____________________
Title:__________________________
Acknowledged and agreed to
as of November __, 1999 by:
[NAME OF INSTITUTION]
By: ___________________________
Print Name: ____________________
Title: _________________________
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Exhibit 10.13
ACKNOWLEDGEMENT AND INSTRUCTIONS
Bank of America, N.A. ("BofA") hereby acknowledges the transfer to BofA
of exclusive ownership, dominion and control of the "Deposit Account" (as
defined in the foregoing letter (the "Letter Agreement")) executed by [Weston
entity]. Pursuant to the second paragraph of the Letter Agreement, the Bank (as
defined in the Letter Agreement) may continue to accept instructions from
[Weston entity] in connection with the Deposit Account unless the Bank has
received written notice (which has not been rescinded) from BofA of the
existence of a Default under and as defined in the Security Agreement (as
defined in the Letter Agreement). Any such written notice shall be effective on
the business day received by the Bank if received before 12:00 noon (local time
at the office of the Bank where the Deposit Account is maintained) and, if not
received by such time, on the next succeeding business day. This Acknowledgement
and Instructions may not be changed except pursuant to a writing signed by BofA
and [Weston entity].
BANK OF AMERICA, N.A.
By: _______________________________
Print Name: ________________________
Title: ______________________________
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Exhibit 10.13
Schedule I
Deposit Account
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Exhibit 10.13
EXHIBIT C
ACCOUNTS
Account Number Financial Institution
