AMENDMENT NO. 14 TO LOAN AND SECURITY AGREEMENT
X.X. XXXXXXXXXX & CO., INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
April 22, 2002
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Congress Financial Corporation ("Lender"), X.X. Xxxxxxxxxx & Co., Inc.
("Borrower"), EFP Corporation ("EFP"), Xxxx Group, Inc. ("Xxxx"), Magnetic
Instruments Corp. ("MIC"), Xxxxxx Trailer Mfg. Co. ("Xxxxxx"), Truck Accessories
Group, Inc. ("TAG"), Raider Industries Inc. ("Raider"), KWS Manufacturing
Company, Inc. ("KWS"), Universal Xxxxxxx, Inc. ("Xxxxxxx"), Xxxxxx Trailer
Financial Corporation ("MTFC") and Xxxxxx Trailer Financial Management, L. P.
("MTF Management", and together with EFP, Xxxx, MIC, Xxxxxx, TAG, Raider, KWS,
Xxxxxxx and MTFC, each individually sometimes referred to herein as a
"Guarantor" and, collectively, "Guarantors") have entered into certain financing
arrangements as set forth in the Loan and Security Agreement, dated as of June
28, 1996, by and among Lender, Borrower and Guarantors, as amended by Amendment
No. 1 to Loan and Security Agreement, dated May 13, 1998, Amendment No. 2 to
Loan and Security Agreement, dated as of June 30, 1998, Amendment No. 3 to Loan
and Security Agreement, dated as of June 24, 1999, Amendment No. 4 to Loan and
Security Agreement, dated as of February 25, 2000, Amendment No. 5 to Loan and
Security Agreement, dated as of March 8, 2000 ("Amendment No. 5 to Loan
Agreement"), Amendment No. 6 to Loan and Security Agreement, dated as of March
17, 2000, Amendment No. 7 to Loan and Security Agreement, dated as of September
29, 2000, Amendment No. 8 to Loan and Security Agreement, dated as of October
31, 2000, Amendment No. 9 to Loan and Security Agreement, dated March 27, 2001,
Amendment No. 10 to Loan and Security Agreement, dated as of June 29, 2001,
Amendment No. 11 to Loan and Security Agreement, dated as of August 14, 2001,
Amendment No. 12 to Loan and Security Agreement, dated as of December 13, 2002
and Amendment No. 13 to Loan and Security Agreement, dated as of March 1, 2002
(as the same now exists and may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement"),
together with all other agreements, documents, supplements and instruments now
or at any time hereafter executed and/or delivered by any other person, with, to
or in favor of Lender in connection therewith (all of the foregoing, together
with this Amendment and the other agreements and instruments delivered
hereunder, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, collectively, the
"Financing Agreements"). For purposes of this letter, unless otherwise defined
herein, all capitalized terms used herein, shall have the respective meanings
ascribed to them in the Loan Agreement.
Borrower and Guarantors have requested that Lender enter into certain
amendments to the Loan Agreement. Lender is willing to agree to the foregoing,
subject to the terms and conditions contained herein.
In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment, and other good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, Borrower, Guarantors
and Lender agree as follows:
1. Definitions.
(a) Interpretation. For purposes of this Amendment, unless otherwise
defined herein, all capitalized terms used herein, shall have the respective
meanings ascribed to them in the Loan Agreement.
2. Trademark License. Notwithstanding anything to the contrary contained
in the Loan Agreement and the other Financing Agreements, Lender hereby consents
to the amendment of the current exclusive license agreement between MTF
Management and Xxxxxx with respect to the "273" trademark and the "674"
trademark to provide that with respect to the exclusive license thereunder,
Xxxxxx shall be authorized to license its rights in the "273" trademark and the
"674" trademark under a non-exclusive, non-transferable sublicense to Fleet
Parts and Service, Inc., pursuant to and in accordance with the terms and
conditions of the Settlement and Trademark License Agreement, dated as of May
__, 2001, as in effect on such date, each of which amendment and license shall
be in form and substance satisfactory to Lender.
3. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower and Guarantors to Lender pursuant to the other Financing
Agreements, Borrower and Guarantors hereby represent, warrant and covenant 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) This Amendment has been duly authorized, executed and delivered by
Borrower and each Guarantor, and the agreements and obligations of Borrower and
each Guarantor contained herein constitute legal, valid and binding obligations
of Borrower and each Guarantor enforceable against Borrower and each Guarantor
in accordance with their respective terms.
(b) Neither the execution and delivery of this Amendment, nor the
modifications to the Financing Agreements contemplated by this Amendment shall
violate any applicable law or regulation, or any order or decree of any court or
any governmental instrumentality in any respect or does or shall conflict with
or result in the breach of, or constitute a default in any respect under, any
indenture, including, without limitation, the Senior Note Indenture, or any
material mortgage, deed of trust, security agreement, agreement or instrument to
which Borrower and
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each Guarantor is a party or may be bound, or violate any provision of the
organizational documents of Borrower and each Guarantor.
(c) All of the representations and warranties set forth in the Loan
Agreement as amended hereby, and the other Financing Agreements, are true and
correct in all material respects, except to the extent any such representation
or warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date.
(d) After giving effect to the amendments to the Loan Agreement
provided in this Amendment, no Event of Default shall exist or have occurred and
no event, act or condition shall have occurred or exist which with notice or
passage of time or both would constitute an Event of Default.
4. Conditions Precedent. The effectiveness of the waiver provided for
herein shall only be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Lender:
(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 an Event of Default, after
giving effect to the waivers and amendments set forth herein;
(b) Lender shall have received a true, complete and correct copy of the
amendment to license agreement and the sublicense agreement, referred to in
Section 1 hereof, each of which shall be in form and substance satisfactory to
Lender; and
(c) Lender shall have received an original of this Amendment duly
authorized, executed and delivered by Borrower and Guarantors.
5. Effect of this Amendment. Except for the specific waiver and amendments
expressly set forth herein, no other waiver, changes or modifications to the
Financing Agreements, and no waivers of any provisions thereof are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
date hereof. To the extent of conflict between the terms of this Amendment and
the other Financing Agreements, the terms of this Amendment shall control. The
Loan Agreement and this Amendment shall be read and construed as one agreement.
6. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (without giving effect to
principles of conflicts of laws).
7. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
8. Counterparts. This waiver may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of
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this waiver, it shall not be necessary to produce or account for more than one
counterpart thereof signed by each of the parties thereto.
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Please sign in the space provided below and return a counterpart of this
Amendment, whereupon this Amendment, as so agreed to and accepted by Lender,
shall become a binding agreement among Borrower, Guarantors and Lender.
Very truly yours,
X.X. XXXXXXXXXX & CO., INC.
By:
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Title:
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AGREED AND ACCEPTED:
CONGRESS FINANCIAL CORPORATION
By:
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Title:
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ACKNOWLEDGED AND CONSENTED TO:
EFP CORPORATION
By:
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Title:
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XXXX GROUP, INC.
By:
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Title:
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
MAGNETIC INSTRUMENTS CORP.
By:
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Title:
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XXXXXX TRAILER MFG. CO.
By:
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Title:
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TRUCK ACCESSORIES GROUP, INC.
By:
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Title:
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RAIDER INDUSTRIES INC.
By:
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Title:
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KWS MANUFACTURING COMPANY, INC.
By:
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Title:
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UNIVERSAL XXXXXXX, INC.
By:
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Title:
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[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
XXXXXX TRAILER FINANCIAL CORPORATION
By:
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Title:
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XXXXXX TRAILER FINANCIAL MANAGEMENT, L.P.
By: XXXXXX TRAILER MFG. CO., as General Partner
By:
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Title:
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