Exhibit 10.11.2
AMENDMENT NO. 4 TO AMENDED AND
RESTATED LOAN AND SECURITY AGREEMENT
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XXXXX INDUSTRIES, INC.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
January 19, 1999
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation ("Lender") and Xxxxx Industries, Inc.
("Borrower") have entered into certain financing arrangements pursuant to the
Loan and Security Agreement, dated as of August 4, 1993, between Lender and
Borrower, as amended pursuant to Amendment No. 1 to Loan and Security
Agreement, dated January 31, 1996, Amendment No. 2 to Loan and Security
Agreement, dated July 3, 1996 and Amendment No. 3 to Loan and Security
Agreement, dated August 28, 1997 (as further amended hereby and as the same
may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced, the "Loan Agreement", and together with all agreements,
documents and instruments at any time executed and/or delivered in connection
therewith or related thereto, collectively, the "Financing Agreements").
Borrower has requested an extension to the term of the Financing
Agreements and certain additional amendments to the Loan Agreement and Lender
is willing to agree to such an extension and to such amendments, subject to
the terms and conditions contained herein. By this Amendment, Lender and
Borrower desire and intend to evidence such extension and amendments. All
capitalized terms used herein shall have the meaning assigned thereto in the
other Financing Agreements, unless otherwise defined herein.
In consideration of the foregoing, and the respective agreements and
covenants contained herein, the parties hereto agree as follows:
1. RENEWAL DATE. The reference contained in Section 9.1(a) of the
Loan Agreement to "six (6) years from the date hereof (the "Renewal Date")"
is hereby deleted and the following substituted therefor: "nine (9) years
from the date hereof (the "Renewal Date")".
2. INTEREST RATE. All references in Section 1.23 of the Loan
Agreement to "one (1%) percent per annum" and "three (3%) percent per annum"
are hereby deleted and the following substituted therefor: "three-quarters of
one (3/4%) percent per annum" and "two and three-quarters of one (2-3/4%)
percent per annum", respectively.
3. EARLY TERMINATION FEE. Notwithstanding anything to the contrary
contained in Section 9.1(e) of the Loan Agreement or any of the other
Financing Agreements, if Lender terminates the Loan Agreement or the other
Financing Agreements upon the occurrence of an Event of Default or at the
request of Borrower prior to the Renewal Date (as amended herein), Borrower
hereby agrees to pay to Lender for the account of Lender, upon the effective
date of such termination, an early termination fee in an amount equal to:
(i) $140,000, if such termination is effective prior to the
seventh anniversary of the Loan Agreement; or
(ii) $70,000, if such termination is effective after the seventh
anniversary of the Loan Agreement but prior to the Renewal
Date or the anniversary of the Renewal Date in any subsequent
year thereafter.
4. CONDITIONS PRECEDENT. The effectiveness of the other terms and
provisions contained herein shall be subject to the receipt by Lender of an
original of this Amendment, duly authorized, executed and delivered by
Borrower.
5. EFFECT OF THIS AGREEMENT. Except as modified pursuant hereto, no
other changes or modifications in the Loan Agreement or the other Financing
Agreements are intended or implied and the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
affective 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.
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 laws of the State of New York.
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 Amendment 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 this Amendment, it shall not be
necessary to produce or
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account for more than one counterpart thereof signed by each of the parties
hereto.
9. FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary
or desirable to effectuate the provisions and purposes of this Agreement.
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Lender, shall
become a binding agreement between Borrower and Lender.
Very truly yours,
XXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxx
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Title: Vice President
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AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx X. Last
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Title: First Vice President
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