AMENDMENT NO.11 TO FINANCING AGREEMENTS
October 4, 1999
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Congress Financial Corporation (together with its successors and assigns,
"Congress") and Worksafe Industries Inc., formerly known as Eastco Industrial
Safety Corp. ("Worksafe") and Eastco Glove Technologies, Inc. ("Eastco Glove",
and together with Worksafe and their respective succcessors and assigns,
individually and collectively, "Borrower") and Puerto Rico Safety Equipment
Corporation ("PR Equipment"), Worksafe Industries of Puerto Rico Inc., formerly
known as Puerto Rico Safety Corporation ("PR Safety"). Disposable Safety Wear
Inc. ("Disposable"), Safety Wear Corp. ("Safety") and Protective Knitting Inc.
("PKI", and together with PR Equipment, PR Safety, Disposable and Safety, each
individually a "Guarantor", and collectively, "Guarantors") have entered into
financing arrangements pursuant to which Congress may make loans and provide
other financial accommodations to Borrower as set forth in the Accounts
Financing Agreement [Security Agreement), dated as of October 1, 1991, by and
among Congress and Borrower, as amended by Amendment to Financing Agreements,
dated June 29, 1993, Amendment No. 2 to Financing Agreements, dated September
30, 1994, Amendment No. 3 to Financing Agreements, dated July 1, 1995, Amendment
No. 4 to Financing Agreements, dated November, 1995, Amendment No. 5 to
Financing Agreements, dated as of February 1, 1996, Amendment No.6 to Financing
Agreements, dated as of February 23, 1996, Amendment No. 7 to Financing
Agreements, dated July 22, 1996, Amendment No. 8 to Financing Agreements, dated
April 17, 1997, Amendment No.9 to Financing Agreements, dated January 11, 1999
and Amendment No. 10 to Financing Agreements, dated June 30, 1999 and as
supplemented, including, without limitation, by the Covenants Supplement to
Accounts Financing Agreement [Security Agreement], dated as of October 1, 1991,
by and among Congress and Borrower, (the "Covenants Supplement") and the letter
re: Inventory Loans, dated as of October 1, 1991, by Borrower in favor of
Congress as the same is amended hereby and as the same may hereafter be further
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement") and other agreements, documents and instruments referred to
therein or at any time executed and/or delivered in connection therewith or
related thereto, including this Amendment (all of the foregoing, together with
the Loan Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein is the "Financing Agreements"). All capitalized terms used
herein shall have the meaning assigned thereto in the Loan Agreement, unless
otherwise defined herein.
Borrower and Guarantors have requested that Congress agree to certain
amendments to the Loan Agreement in connection with Worksafe's purchase of up to
320,000 shares of its
common stock, and Congress is willing to agree to such amendments, subject to
the terms and conditions contained herein. By this Amendment, Congress, Borrower
and Guarantors desire and intend to evidence such amendments.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
1. Definitions.
(a) Additional Definitions. As used herein, the following terms shall have
the respective meanings given to them below and the Loan Agreement shall be
deemed and is hereby amended to include, in addition and not in limitation, each
of the following definitions:
(i) "Excess Availability" shall mean the amount, as determined by Congress,
calculated at any time, equal to: (a) the lesser of: (i) the Revolving
Loans available to Borrower as of such time based on the applicable lending
formulas multiplied by the Net Amount of Eligible Accounts and the Value of
Eligible Inventory, as determined by Congress, and subject to any sublimits
and reserves from time to time established by Congress under the Loan
Agreement and (ii) the Revolving Loan Limit minus (b) the sum of: (i) the
amount of all then outstanding and unpaid Obligations (but not including
for this purpose the then outstanding aggregate principal amount of New
Equipment Term Loans and the Term Loan), plus (ii) the aggregate amount of
all then outstanding and unpaid trade payables and other obligations of
Borrower which are more than sixty (60) days past due as of such time; plus
(iii) the amount of checks issued by Borrower to pay trade payables which
are more than sixty (60) days past due as of such time, but not yet sent.
(ii) "Revolving Loans" shall mean the loans now or hereafter made by
Congress to or for the benefit of Borrower on a revolving basis (involving
advances, repayments and readvances) as set forth in Section 2.1 of the
Loan Agreement and in paragraph 2 of the letter, dated October 1, 1991, re:
Inventory Loans, by Borrower in favor of Congress. Revolving Loans shall
not include Supplemental Loans.
(iii) "Revolving Loan Limit" shall mean, at any time, the Maximum Credit
minus the then outstanding principal amount of New Equipment Term Loans
and the Term Loan.
2. Amendments to Covenants Supplement.
(a) Dividends. Section 2.6 of the Covenants Supplement is hereby deleted in
its entirety and the following substituted therefor:
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"2.6. Dividends. Borrower shall not, and shall not permit any Subsidiary of
Borrower to, directly or indirectly, during any fiscal year, commencing
with the current fiscal year, declare or pay any dividends on account of
any shares of any class of capital stock of Borrower or its Subsidiaries
now or hereafter outstanding, or set aside or otherwise deposit or invest
any sums for such purpose, or redeem, retire, defease, purchase or
otherwise acquire any shares of any class of capital stock (or set aside or
otherwise deposit or invest any sums for such purpose) or apply or set
apart any sums, or make any other distribution (by reduction of capital or
otherwise) in respect of any such shares or agree to do any of the
foregoing, except that (a) any Subsidiary of Borrower may declare and pay
dividends to Borrower on account of any shares of any class of capital
stock of such Subsidiary which such Subsidiary is legally entitled to
declare or pay and (b) Worksafe may purchase from time to time in the open
market or in privately-solicited purchases up to 320,000 shares of its own
common stock; provided, that (i) the aggregate amount paid by Worksafe to
purchase such shares shall not exceed $400,000, (ii) the aggregate amount
paid by Worksafe for each purchase of its common stock shall not exceed
$30,000, (iii) Excess Availability for each of the fourteen (14)
consecutive days immediately preceding the date of any such purchase shall
have exceeded $50,000, (iv) Excess Availability for each of the fourteen
(14) consecutive days immediately succeeding the date of any such purchase
shall exceed $50,000, (v) as of the date of any such purchase and after
giving effect thereto, Excess Availability shall exceed $50,000, (vi) as of
the date of any such purchase and after giving effect thereto, no Event of
Default, or act, condition or event which with notice or passage of time or
both would constitute an Event of Default shall exist or have occurred and
(vii) no such purchases may be made by Worksafe on or after October
4,2001."
(b) Consolidated Tangible Net Worth. Section 2.7 of the Covenants
Supplement is hereby deleted in its entirety and the following substituted
therefor:
"2.7 Consolidated Tangible Net Worth. Borrower and its Subsidiaries shall,
at all times, until all Obligations have been indefeasibly paid in full,
maintain a Consolidated Tangible Net Worth of not less than: (a) $2,400,000
for the period beginning on and including June 30, 1999 and ending on and
including December 31, 1999; (b) $2,450,000 for the period beginning on and
including January 1, 2000 and ending on and including June 30, 2000; and
(c) $2,500,000 beginning on and including July 1, 2000 and at all times
thereafter,"
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3. Additional Representations, Warranties and Covenants. Borrower and
Guarantors hereby jointly and severally represent, warrant and covenant with and
to Congress as follows, which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof, and the truth
and accuracy of, or compliance with each, together with the representations,
warranties and covenants in the other Financing Agreements, being a continuing
condition of the making of loans and providing other financial accommodations by
Congress to Borrower:
(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
Guarantors and is in full force and effect as of the date hereof and the
agreements and obligations of Borrower and Guarantors contained herein
constitute legal, valid and binding obligations of Borrower and Guarantors
enforceable against each of them in accordance with its terms.
4. Conditions Precedent. The effectiveness of the amendments contained in
Sections 1 and 2 hereof is subject to the satisfaction of each of the following
conditions precedent in a manner satisfactory to Congress;
(a) al1 representations and warranties contained herein shall be true and
correct;
(b) as of the date hereof, no Event of Default, or event, act or condition
which with notice or passage of time or both would constitute an Event of
Default, shall exist or have occurred;
(c) Congress shall have received an original of this Amendment, duly
authorized, executed and delivered by Borrower and Guarantors; and
(d) Congress shall have received the amendment fee referred to in Section 5
hereof.
5. Amendment Fee. Borrower shall pay to Congress as an amendment fee the
amount of $2,000 which fee shall be fully earned and payable as of the date
hereof. Congress may, at its option, charge the amount of such fee directly to
Borrower's loan account maintained by Congress.
6. Additional Defaults. The failure of any Borrower or Guarantor to comply
with the representations, warranties, covenants, conditions and agreements
contained herein or in any other agreement, document or instrument at any time
executed and/or delivered by any Borrower or Guarantor with, to or in favor of
Congress shall constitute an Event of Default under the Financing Agreements.
7. Effect of this Amendment. Except as modified pursuant hereto, no other
changes or modifications to the Financing Agreements are intended or implied,
and in all other respects the
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Financing Agreements are hereby specifically ratified, restated and confirmed by
all parties hereto as of the effective date hereof. Any acknowledgment or
consent contained herein shall not be construed to constitute a consent to any
other or further action by any Borrower or Guarantor or to entitle any Borrower
or Guarantor to any other consent. 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.
8. Governing Law. The validity, interpretation and enforcement of this
Amendment and the other Financing Agreements and any dispute arising out of the
relationship between the parties hereto whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of New York
(without giving effect to principles of conflicts of laws).
9. Headings. The headings listed herein are for convenience only and do not
constitute matters to be construed in interpreting this Amendment.
10. 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.
11. Binding Effect. This letter agreement shall be binding upon and inure
to the benefit of each of the parties hereto and their respective successors and
assigns.
The parties hereto have caused this letter agreement to be duly executed
and delivered by their authorized officers as of the day and year first above
written.
Very truly yours,
WORKSAFE INDUSTRIES INC., formerly
known as Eastco Industrial Safety Corp.
By: /s/ XXXXXX X. XXXXXXXXXXXX
----------------------------------
Title: VP
--------------------------------
EASTCO GLOVE TECHNOLOGiES, INC.
By: /s/ XXXXXX X. XXXXXXXXXXXX
----------------------------------
Title: VP
--------------------------------
(SIGNATURES CONTINUE ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE]
AGREED:
PUERTO RICO SAFETY EQUIPMENT
CORPORATION
By: /s/ XXXXXX X. XXXXXXXXXXXX
-------------------------------------
Title: VP
---------------------------------
WORKSAFE INDUSTRIES OF PUERTO
RICO INC., formerly known as Puerto
Rico Safety Corporation
By: /s/ XXXXXX X. XXXXXXXXXXXX
-------------------------------------
Title: VP
---------------------------------
DISPOSABLE SAFETY WEAR INC.
By: /s/ XXXXXX X. XXXXXXXXXXXX
-------------------------------------
Title: VP
---------------------------------
SAFETY WEAR CORP.
By: /s/ XXXXXX X. XXXXXXXXXXXX
-------------------------------------
Title: VP
---------------------------------
PROTECTIVE KNITTING, INC.
By: /s/ XXXXXX X. XXXXXXXXXXXX
-------------------------------------
Title: VP
---------------------------------
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Title: VP
----------------------------------
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