EXHIBIT 10.53
March 26, 1999
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Sixteenth 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 June 16, 1992 (as amended, the "Accounts Agreement"),
the Covenant Supplement to Accounts Financing Agreement between Congress and
Borrower, dated June 16, 1992 (as amended, the "Covenant Supplement"), the
letter re Inventory Loans between Congress and Borrower, dated December 31,
1994 (as amended, the "Inventory Loan Letter"), the Trade Financing Agreement
Supplement to the Accounts Agreement between Congress and Borrower, dated
June 16, 1992 (as amended, the "Trade Financing Agreement Supplement"), and
all other agreements supplements, instruments and documents 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 meanings ascribed thereto in the Financing Agreements.
Borrower has requested certain modifications and amendments 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, the mutual agreements and covenants
contained herein and for other good and valuable consideration, Borrower and
Congress hereby agree as follows:
1. AMENDMENT TO DEFINITIONS. All references to the term "Maximum
Credit" in the Financing Agreements, including, but not limited to, Section
1.7 of the Accounts Agreement, effective as of July 1, 1999, shall be deemed
and each such reference is hereby amended to mean "$25,000,000", and the
reference to the amount "$30,000,000" in such Section 1.7 is hereby deleted
and replaced with the amount "$25,000,000".
2. AMENDMENTS TO FINANCING AGREEMENTS.
(a) ACCOUNTS ADVANCES. Effective as of July 1, 1999, Section 2.1 of
the Accounts Agreement shall be amended by deleting the reference to
"eighty-five (85%) percent" therein and inserting "eighty (80%) percent" in
its stead;
(b) INTEREST. Effective as of July 1, 1999, the first sentence of
Section 3.1 of the Accounts Agreement shall be deleted and the following
shall be inserted in its stead:
"Interest shall be payable by us to you on the first day of
each month upon the closing daily balances in our loan account
for each day during the immediately preceding month at a rate
equal to one percent (1.00%) per annum in excess of the rate
from time to time publicly announced by First Union National
Bank, or its successors, as its prime rate, whether or not
such announced rate is the best rate available at such bank."
(c) RENEWAL DATE. The term "Renewal Date" as defined in Section 9.1
of the Accounts Agreement is hereby amended, effective as of the date hereof,
to mean, December 31, 2000;
(d) INVENTORY LOAN SUBLIMIT. Effective as of July 1, 1999, Section 3
of the Inventory Loan Letter shall be amended by deleting the figure of
"$6,000,000" therein and inserting the figure of "$5,000,000" in its stead.
(e) LETTER OF CREDIT SUBLIMIT. Effective as of July 1, 1999, Section
1.5 of the Trade Financing Agreement Supplement shall be amended, by deleting
the figure of "$12,000,000" therein and inserting the figure of "$8,000,000"
in its stead.
(f) NET WORK. Effective as of July 1, 1999, Section 4.13 of the
Covenant Supplement is hereby deleted in its entirety and the following
substituted therefor:
"4.13 NET WORTH. Borrower will, until all Obligations have
been indefeasibly paid in full, maintain a Net Worth of not
less than (a) $30,000,000 at all times prior to September 30,
2000 and (b) $35,000,000 on September 30, 2000 and at all
times thereafter."
(g) WORKING CAPITAL. Effective as of July 1, 1999, Section 4.14 of
the Covenant Supplement is hereby amended by deleting the reference to
"$5,000,000" therein and inserting $20,000,000" in its stead.
3. EXTENSION AND AMENDMENT FEE. In consideration of the amendments set
forth herein, Borrower shall pay to Congress a fee in the amount of $125,000,
which fee (a) shall be fully earned as of the date hereof, (b) may be charged
by lender to Borrower's loan account with Lender and (c) shall be payable as
follows: (i) $62,500 on the date hereof and (ii) $62,500 on June 30, 2000;
PROVIDED, THAT, the entire amount of such fee shall become immediately due
and payable, without notice or demand, at Congress' option upon the occurrence
of an Event of Default.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to lender pursuant to the Financing Agreements, Borrower
hereby represents, warrants and covenants 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);
(a) No Event of Default or act, condition or event which with notice
or passage of time or both would constitute an Event of Default exists or has
occurred as of the date of this Amendment (after giving effect to the
amendments to the Financing Agreements made by this Amendment).
(b) This Amendment has been duly executed and delivered by Borrower
and is in full force and effect as of the date hereof, and the agreements and
obligations of Borrower contained herein constitute legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
5. CONDITIONS PRECEDENT. This Amendment shall be effective upon the
execution thereof by both Borrower and Congress.
6. EFFECT 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 be contradicted by
evidence or prior, contemporaneous or subsequent oral agreements of the
parties.
7. 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.
8. 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.
9. 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.C. XXXXXX & COMPANY,
INC.,
formerly known as
Isbuyco, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Title: Vice President
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Agreed and Accepted
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Title: Assistant Vice President
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