FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT (the "Agreement") is dated as of
the 3lst day of January, 2001 and is by and between SUMMIT BANK, a banking
institution of the State of New Jersey having an office at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (the "Bank"); and XXXX GROUP INC., a Delaware
corporation having its principal executive offices located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Borrower").
WHEREAS, the Borrower and the Bank have heretofore entered into that
certain Loan Agreement dated June 24, 1998, as amended by a First Amendment to
Loan Agreement dated as of July 31, 1999, a Second Amendment to Loan Agreement
dated as of November 1, 1999 and a Third Amendment to Loan Agreement dated as of
October 31, 2000 (the "Loan Agreement"); and
WHEREAS, the Borrower has requested the Bank to make certain additional
amendments to the Loan Agreement, and the Bank has agreed to do so upon the
terms and conditions described herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Except as otherwise indicated herein, all words and terms
defined in the Loan Agreement shall have the same meanings when used herein.
2. Amendment to Loan Agreement. The following definition appearing in
Section 1.1 of the Loan Agreement is hereby amended to read in its entirety as
follows:
"Revolving Loan Termination Date" shall mean April 30,2001.
3. Substitute Note. Concurrently herewith, the Borrower is executing and
delivering to the Bank a substitute revolving note in the maximum principal
amount of $4,500,000 (the "Substitute Note") in substitution for, but not in
repayment of, that certain Substitute Revolving Note dated as of October 31,
2000 in the maximum principal amount of $4,500,000 (the "Prior Note") previously
issued by the Borrower to the Bank. The execution and delivery by the Borrower
of the Substitute Note pursuant to the provisions hereof shall not constitute a
refinancing, repayment, accord and satisfaction or novation of the Prior Note or
the indebtedness evidenced thereby.
4. Representations and Warranties. In order to induce the Bank to enter
into this Agreement and amend the Loan Agreement as provided herein, the
Borrower hereby represents and warrants to the Bank that:
(a) All of the representations and warranties of the Borrower set
forth in Article IV of the Loan Agreement are true, complete and correct in all
material respects on and as of the date hereof with the same force and effect as
if made on and as of the date hereof and as if set forth at length herein
(except that representations and warranties which are expressly stated to be as
of a certain date are true, complete and correct in all material respects as of
such certain date).
(b) No Default or Event of Default presently exists and is continuing
on and as of the date hereof.
(c) Since the date of the Borrower's most recent financial statements
delivered to the Bank, no material adverse change has occurred in the business,
assets, liabilities, financial condition or results of operations of the
Borrower, and no event has occurred or failed to occur which is likely to have a
material adverse effect on the business, assets, liabilities, financial
condition or results of operations of the Borrower.
(d) The Borrower has full power and authority to execute, deliver and
perform any action or step which may be necessary to carry out the terms of this
Agreement and all other agreements, documents and instruments executed and
delivered by the Borrower to the Bank concurrently herewith or in connection
herewith (collectively, the "Amendment Documents"); each Amendment Document to
which the Borrower is a party has been duly executed and delivered by the
Borrower and is the legal, valid and binding obligation of the Borrower
enforceable in accordance with its terms, subject to any applicable bankruptcy,
insolvency, general equity principles or other similar laws affecting the
enforcement of creditors' rights generally.
(e) The execution, delivery and performance of the Amendment Documents
will not (i) violate any provision of any existing law, statute, rule,
regulation or ordinance, (ii) conflict with, result in a breach of, or
constitute a default under (A) the certificate of incorporation or by-laws of
the Borrower, (B) any order, judgment, award or decree of any court,
governmental authority, bureau or agency, or (C) any mortgage, indenture, lease,
contract or other agreement or undertaking to which the Borrower is a party or
by which the Borrower or any of its properties or assets may be bound, or (iii)
result in the creation or imposition of any lien or other encumbrance upon or
with respect to any property or asset now owned or hereafter acquired by the
Borrower.
(f) No consent, license, permit, approval or authorization of,
exemption by, notice to, report to, or registration, filing or declaration with
any person is required in connection with the execution, delivery, performance
or validity of the Amendment Documents or the transactions contemplated thereby.
5. No Defenses. The Borrower expressly acknowledges and agrees that (a) as
of January 31, 2001, the outstanding principal amount of (i) the Revolving Loan
is $0, (ii) all Acquisition Advances is $0, and (iii) the Term Loan is
$2,070,380.75, and (b) such amounts, together with accrued interest thereon, are
owed to the Bank without defense, offset or counterclaim of any nature
whatsoever. The Borrower hereby waives and releases all claims against the Bank
with respect to the Obligations and the documents evidencing or securing the
same.
6. Bank Costs. The Borrower shall reimburse the Bank on demand for all
costs, including legal fees and expenses, incurred by the Bank in connection
with this Agreement, the other Amendment Documents and the transactions
referenced herein. If such amounts are not paid within ten days of the Bank's
request therefor, the Borrower hereby authorizes the Bank to charge the
Borrower's account for the amount of such fees and expenses.
7. No Change. Except as expressly set forth herein, all of the terms and
provisions of the Loan Agreement shall continue in full force and effect.
8. Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts and all such counterparts taken together shall constitute
one and the same instrument.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this Agreement
as of the date above written.
SUMMIT BANK
By: /s/ Xxxx Xxxxx
----------------------------
Xxxx Xxxxx
Vice President
XXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
and Chief Financial Officer
STATE OF NEW JERSEY :
:ss.
COUNTY OF BERGEN :
BE IT REMEMBERED, that on this 14th day of February, 2001 before me, the
subscriber, personally appeared XXXX XXXXX, who I am satisfied is the Vice
President of SUMMIT BANK, the corporation named in and subscribing to the within
instrument and she, being by me duly sworn, acknowledged, deposed and said that,
in her capacity as such officer, she executed the foregoing instrument on behalf
of said corporation for the uses and purposes therein expressed.
/s/ Xxxx X. Xxxxxxxx
----------------------------
XXXX X. XXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
STATE OF NEW YORK : My Commission Expires Aug. 5, 2004
ss.
COUNTY OF NEW YORK :
BE IT REMEMBERED, that on this 13th day of February, 2OOl, before me, the
subscriber, personally appeared XXXXXXX X. XXXXXXX, who I am satisfied is the
Executive Vice President and Chief Financial Officer of XXXX GROUP INC., the
corporation named in and subscribing to the foregoing instrument; and he, being
by me duly sworn, acknowledged, deposed and said that such inslmment was made by
such corporation, and that he signed and delivered the same as such officer of
such corporation as its voluntary act and deed for the uses and purposes therein
expressed.
/s/ Xxxxxxx Xxxxxx
-------------------------------------
XXXXXXX XXXXXX
Notary Public, State of New York
No. 02HA5060485
Qualified in New York County
Commission Expires November 12, 2002
SUBSTITUTING REVOLVING NOTE
$4,500,000 As of January 31, 2001
FOR VALUE RECEIVED, the undersigned, XXXX GROUP INC., a Delaware
corporation (the "Borrower"), hereby unconditionally promises to pay on or
before April 30, 2001 (the "Revolving Loan Termination Date"), to the order of
SUMMIT BANK, a banking institution of the State of New Jersey (the "Bank"), at
the office of the Bank located at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, or
at such other location as the Bank shall designate, in lawful money of the
United States of America and in immediately available funds, the principal
amount of the lesser of (i) $4,500,000 or (ii) so much thereof as shall have
been advanced (the "Advances") by the Bank to the Borrower pursuant to that
certain Loan Agreement dated June 24, 1998, as amended, between the Borrower and
the Bank (the "Agreement"). Terms defined in the Agreement shall have the same
meanings when used herein.
The Borrower further agrees to pay interest in like money at such office on
the unpaid principal amount hereof from time to time at a rate or rates per
annum and at such times as are provided in the Agreement.
The Borrower shall pay to the Bank a late charge (the "Late Charge") in an
amount equal to five percent (5%) of any payment which is more than ten (10)
days in arrears to cover the extra expense involved in handling delinquent
payments, but in no event shall any Late Charge be less than $25 or more than
$2,500. The term "payments" shall be construed to include principal, interest,
fees and any other amount due under the terms of this Note or any of the other
Loan Documents. Acceptance by the Bank of payment of a Late Charge shall in no
way be construed to be an election of remedies or waiver by the Bank of any of
its rights at law or under the terms of any of the Loan Documents.
Subject to the provisions of Section 2.25 of the Agreement, this Note may
be prepaid, in whole or in part, at one time or from time to time, without
premium or penalty in accordance with the provisions of the Agreement.
All payments made hereunder shall be applied: first, to any fees or other
charges owing to the Bank hereunder; second, to accrued and unpaid interest; and
third, to the outstanding principal balance hereof. Notwithstanding the
foregoing, upon the occurrence of an Event of Default, the Bank may apply
payments received hereunder in such manner as it shall determine in its sole and
absolute discretion.
This Note is secured by the Collateral described in the Agreement, the
Pledge and Security Agreement and the other Loan Documents, and is guaranteed by
the Guarantors pursuant to the Guaranty Agreement.
This Note is being executed and delivered by the Borrower to the Bank in
substitution for that certain Substitute Revolving Note dated as of October 31,
2000 from the Borrower in favor of the Bank in the maximum principal amount of
$4,500,000 (the "Prior Note").
The execution and delivery of this Note shall not constitute a repayment,
refinancing, accord and satisfaction or novation of the Prior Note or the
indebtedness evidenced thereby.
The Bank may declare this Note to be immediately due and payable if any of
the following events shall have occurred and be continuing:
(1) Failure by the Borrower to make any payment of principal or interest
under this Note on any date when due; or
(2) An Event of Default shall have occurred under the Agreement or any of
the other Loan Documents.
Upon the occurrence of any Event of Default, the Bank may, in addition to
such other and further rights and remedies as provided by law or under the
Agreement or under any of the other Loan Documents, (i) collect interest on such
overdue amount from the date of such maturity until paid at ante per annum equal
to three (3%) percent in excess of Base Rate, (ii) setoff such amount against
any deposit account maintained in the Bank by the Borrower, and such right of
setoff shall be deemed to have been exercised immediately upon such stated or
accelerated maturity even though such setoff is not noted on the records of the
Bank until a later time and (iii) hold as security any property heretofore or
hereafter delivered into the custody, control or possession of the Bank or any
entity acting as agent for the Bank by any person liable for the payment of this
Note.
This Note may not be changed orally, but only by an agreement in writing,
signed by the party against whom enforcement of any waiver, change, modification
or discharge is sought.
Should the indebtedness represented by this Note or any part hereof be
collected at law or in equity, or in bankruptcy, receivership, or any other
court proceeding, or should this Note be placed in the hands of attorneys for
collection upon default, the Borrower agrees to pay, in addition to the
principal and interest due and payable hereon, all reasonable costs of
collecting or attempting to collect this Note, including reasonable attorneys'
fees and expenses.
This Note shall be and remain in full force and effect and in no way
impaired until the actual payment thereof to the Bank, its successors or
assigns.
Anything herein to the contrary notwithstanding, the obligations of the
Borrower under this Note shall be subject to the limitation that payments of
interest shall not be required to the extent that receipt of any such payment by
the Bank would be contrary to provisions of law applicable to the Bank limiting
the maximum rate of interest which may be charged or collected by the Bank.
The Borrower and all endorsers and guarantors of this Note hereby waive
presentment, demand for payment, protest and notice of dishonor of this Note.
This Note is binding upon the Borrower and its successors and assigns and
shall inure to the benefit of the Bank and its successors and assigns.
2
This Note and the rights and obligations of the parties hereto shall be
subject to and governed by the laws of the State of New Jersey.
IN WITNESS WHEREOF, the undersigned has caused this Substitute Revolving
Note to be duly executed by its authorized officer as of the day and year above
written.
XXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
Executive Vice President
& Chief Financial Officer
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STATE OF NEW YORK :
ss.
COUNTY OF NEW YORK :
BE IT REMEMBERED, that on this 13th day of February, 2001, before me, the
subscriber, personally appeared XXXXXXX X. XXXXXXX, who I am satisfied is the
Executive Vice President and Chief Financial Officer of XXXX GROUP INC., the
corporation named in and subscribing to the foregoing instrument; and he, being
by me duly sworn, acknowledged, deposed and said that such instrument was made
by such corporation, and that he signed and delivered the same as such officer
of such corporation as its voluntary act and deed for the uses and purposes
therein expressed.
/s/ Xxxxxxx Xxxxxx
------------------------------------
XXXXXXX XXXXXX
Notary Public, State of New York
No. 02HA5060485
Qualified in New York County
Commission Expires November 12, 2002
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