AMENDMENT NO. 9 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 9 TO LOAN AND SECURITY AGREEMENT
X.X. XXXXXXXXXX & CO., INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
As of March 27, 2001
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. 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, and as further amended by this Amendment No. 9 to the Loan and Security Agreement (this "Amendment"), dated as of the date hereof (and as heretofore amended or 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").
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) Amendment to Definition.
(i) KWS Supplemental Revolving Loan Termination Date. Section 1(a)(xix) of Amendment No. 5 to Loan Agreement is hereby deleted in its entirety and replaced with the following:
"(xix) KWS Supplemental Revolving Loan Termination Date shall mean the earlier to occur of (A) March 1, 2002 or (B) Lender's determination that as of the end of the fiscal quarter of KWS set forth below, the Fixed Charge Coverage Ratio of KWS shall be less than the ratio set forth below next to such fiscal quarter:
Fiscal Quarter Ending Fixed Charge Coverage Ratio
--------------------- ---------------------------
March 31, 2001 ........ .05:1.0
June 30, 2001 ......... .30:1.0
September 30, 2001 .... .78:1.0
December 31, 2001 and . 1.0:1.0
as of the end of all fiscal
quarters thereafter
(b) 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. Waiver.
(a) Notwithstanding anything to the contrary contained in Section 5 of the Loan Agreement, subject to the terms and conditions contained herein, Lender waives the automatic payment in full of the KWS Supplemental Revolving Loans through the date hereof as a result of the occurrence of the KWS Supplemental Revolving Loan Termination Date solely by reason of the failure of KWS to maintain a Fixed Charge Coverage Ratio of .5:1.0 as of the fiscal quarter ended December 31, 2000.
(b) Lender has not waived and is not by this Amendment waiving, and has no intention of waiving, any other failure to comply with the Fixed Charge Coverage Ratio required to be maintained as set forth in the definition of the KWS Supplemental Revolving Loan Termination Date as amended hereby, which may have occurred before the date hereof, or may be continuing on the date hereof or that may occur after the date hereof, other than the failure to maintain a Fixed Charge Coverage Ratio of .5:1.0 as of the fiscal quarter ended December 31, 2000. Lender reserves the right, in its discretion, to exercise any or all of its rights and remedies arising under the Financing Agreements, applicable law or otherwise as a result of any other occurrence of the KWS Supplemental Revolving Loan Termination Date that may have occurred before the date hereof, or is continuing on the date hereof, or that may occur after the date hereof for non-compliance with the Fixed Charge Coverage Ratio or otherwise, other than the failure to maintain a Fixed Charge Coverage Ratio of .5:1.0 as of the fiscal quarter ended December 31, 2000.
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 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. Amendment Fee. In consideration of the foregoing, Borrower agrees to pay Congress a fee for entering into this Amendment in the amount of $5,000, which shall be fully earned on the date hereof and which shall be due and payable on the date of execution hereof. Such fee may be charged by Congress to any loan account of Borrower maintained by Congress under the Financing Agreements.
5. Condition Precedent. The effectiveness of this Amendment and the agreement of Lender to the waiver, modifications and amendments set forth herein are subject to the receipt by Lender of an executed original (or facsimile copy) or executed original (or facsimile copy) counterparts of this Amendment, as the case may be, duly authorized, executed and delivered by Borrower and Guarantors and receipt by Lender of the fee referred to in Section 4 above.
6. 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.
7. 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).
8. 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.
9. 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 account for more than one counterpart thereof signed by each of the parties hereto.
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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:_______________________
Title:______________________
AGREED AND ACCEPTED:
CONGRESS FINANCIAL CORPORATION
By:_________________________
Title:______________________
ACKNOWLEDGED AND CONSENTED TO:
EFP CORPORATION
By:___________________________
Title:________________________
XXXX GROUP, INC.
By:___________________________
Title:________________________
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MAGNETIC INSTRUMENTS CORP.
By:______________________
Title:____________________
XXXXXX TRAILER MFG. CO.
By:_______________________
Title:____________________
TRUCK ACCESSORIES GROUP, INC.
By:_______________________
Title:_____________________
RAIDER INDUSTRIES INC.
By:_______________________
Title:____________________
KWS MANUFACTURING COMPANY, INC.
By:________________________
Title:_____________________
UNIVERSAL XXXXXXX, INC.
By:________________________
Title:_____________________
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XXXXXX TRAILER FINANCIAL CORPORATION
By:______________________
Title:____________________
XXXXXX TRAILER FINANCIAL MANAGEMENT, L.P.
By: XXXXXX TRAILER MFG. CO., as General Partner
By:__________________________________
Title:_________________________________
