EXHIBIT 10.6
SECOND AMENDMENT TO REVOLVING CREDIT,
TERM LOAN AND SECURITY AGREEMENT
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THIS SECOND AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY
AGREEMENT (this "Amendment") is made as of October ___, 1999, among RICHTON
INTERNATIONAL CORPORATION, a Delaware corporation ("Richton"), CENTURY SUPPLY
CORP., a Michigan corporation ("Century"), and CBE TECHNOLOGIES, INC., a
Delaware corporation ("CBE") (collectively, the "Borrowers" and individually a
"Borrower"), Required Lenders (as defined in the Credit Agreement described
below) and PNC BANK, NATIONAL ASSOCIATION, a national banking association
("PNC"), as a Lender (as defined below) and as agent for the Lenders (in such
capacity, the "Agent").
W I T N E S S E T H:
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A. Pursuant to the Revolving Credit, Term Loan and Security Agreement
dated as of May 17, 1999, as amended by the Amendment to Revolving Credit, Term
Loan and Security Agreement dated as of July 9, 1999 (as further amended,
supplemented or modified from time to time, the "Credit Agreement"), by and
among Borrowers, the financial institutions which are now or which hereafter
become a party thereto (collectively, the "Lenders" and individually a "Lender")
and Agent, as agent for the Lenders, the Lenders agreed to make revolving credit
and term loans to Borrowers upon the terms and conditions set forth therein.
B. CBE desires to acquire substantially all of the assets of Corporate
Access, Inc. in a Permitted Acquisition (as defined in the Credit Agreement),
and has requested that Required Lenders permit such acquisition even though the
purchase price thereof exceeds the maximum amount for a single Permitted
Acquisition as set forth in the Credit Agreement.
C. Borrowers have requested that a $2,000,000 letter of credit subfacility
(the "LC Subfacility") be established as part of the existing revolving credit
facility pursuant to which Agent will issue or cause to be issued standby
letters of credit for their benefit.
D. CBE has requested that it be permitted to establish a $1,500,000
wholesale financing facility (the "Deutsche Facility") with Deutsche Financial
Services Corporation, secured only by a stand-by letter of credit, to finance
its acquisition of Inventory (as defined in the Credit Agreement) acquired from
certain vendors approved by Deutsche Financial Services Corporation.
E. Agent and Required Lenders have agreed to permit (1) the acquisition of
substantially all of the assets of Corporate Access, Inc. by CBE even though the
purchase price thereof exceeds the maximum amount for a single Permitted
Acquisition as set forth in the Credit Agreement, provided that such acquisition
otherwise meets the requirements for a Permitted Acquisition, (2) the
establishment of the LC Subfacility as part of the existing revolving credit
facility, and (3) the establishment of the Deutsche Facility, all upon the terms
and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrowers, Agent and Required Lenders agree as follows:
1. Capitalized terms used in this Amendment shall have the same meanings
given them in the Credit Agreement, unless otherwise defined herein.
2. The following definitions in Section 1.2 of the Credit Agreement are
hereby amended to read as follows:
"'Advances' shall mean and include the Revolving Advances, the Term
Loan and Letters of Credit."
"'CBE Formula Amount' shall mean, at any time, an amount equal to
the sum of (i) the Receivables Advance Rate at such time times the
Eligible Receivables of CBE at such time, plus (ii) the lesser of (A) the
Inventory Advance Rate at such time times the value of the Eligible
Inventory of CBE at such time, or (B) one million dollars ($1,000,000),
minus (iii) the aggregate amount of outstanding Letters of Credit issued
for the account of CBE at such time, minus (iv) such reserves with respect
to CBE as Agent may reasonably and in good xxxxx xxxx proper and necessary
from time to time."
"'Century Formula Amount' shall mean, at any time, an amount equal
to the sum of (i) the Receivables Advance Rate at such time times the
aggregate Eligible Receivables of Century at such time, plus (ii) the
lesser of (A) the Inventory Advance Rate at such time times the aggregate
value of the Eligible Inventory of Century at such time, or (B) the
difference between (1) twenty million dollars ($20,000,000) and (2) the
applicable amount at such time under clause (ii) of the definition of "CBE
Formula Amount" in this Section 1.2 (up to a maximum of one million
dollars ($1,000,000)), plus (iii) solely during the Seasonal Advance
Period, an additional amount equal to the Maximum Seasonal Advance Amount,
minus (iv) the aggregate amount of outstanding Letters of Credit issued
for the account of Century at such time, minus (v) such reserves with
respect to Century as Agent may reasonably and in good xxxxx xxxx proper
and necessary from time to time."
"'Earnings Before Interest and Taxes' shall mean for any period the
sum of (i) the net income (or loss) of Richton and its Subsidiaries on a
consolidated basis for such period, plus (ii) the interest expense of, and
Letter of Credit Fees paid by, Richton and its Subsidiaries on a
consolidated basis for such period, plus (iii) the charges against income
of Richton and its Subsidiaries on a consolidated basis for such period
for federal, state and local taxes actually paid and/or accrued."
"'Leverage Ratio' shall mean and include, as of the end of each
fiscal quarter of Borrowers, the ratio of (a) the average outstanding
principal amount of all Advances (excluding the undrawn face amount of
outstanding Letters of Credit) during the fiscal quarter of Borrowers then
ended, to (b) EBITDA for the period of four (4) consecutive fiscal
quarters of Borrowers then ended."
"'Obligations' shall mean and include any and all of Borrowers'
obligations and/or liabilities to Agent or Lenders of every kind, nature
and description, direct or indirect, secured or unsecured, joint, several,
joint and several, absolute or contingent, due or to become due, now
existing or hereafter arising, contractual or tortious, liquidated or
unliquidated, whether direct or indirect (including, without limitation,
any interest accruing thereon after maturity, or after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding relating to any Borrower, whether or not
a claim for post-petition or post-filing interest is allowed in such
proceeding), whether arising out of Letters of Credit, out of overdrafts
on deposit or other accounts or electronic funds transfers (whether
through automated clearinghouses or otherwise) or out of Agent's or any
Lender's non-receipt
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of or inability to collect funds or otherwise not being made whole in
connection with depository transfer check or other similar arrangements,
in any case arising under this Agreement or any Other Document, including,
without limitation, those arising under the Interest Rate Protection
Agreement or any other present or future interest, currency or equity
swap, future, option or other similar agreement or arrangement."
"'Other Documents' shall mean the Notes, the Subordination
Agreement, the Guaranty, the Guarantor Security Agreement, the Letters of
Credit, the Letter of Credit Applications, the Interest Rate Protection
Agreement, any other present or future interest, currency or equity swap,
future, option or other similar agreement or arrangement, any lock-box,
blocked account or similar agreement relating to the Blocked Accounts, and
any and all other agreements, instruments and documents, including,
without limitation, guaranties, pledges, powers of attorney, consents, and
all other documents or agreements heretofore, now or hereafter executed by
any Borrower or Guarantor and/or delivered to Agent or any Lender in
respect of the Transactions."
"'Revolving Advances' shall mean Advances made other than the Term
Loan and Letters of Credit."
3. Section 1.2 of the Credit Agreement is hereby amended to add the
following new definitions:
"'CAI Agreement' shall mean the Asset Purchase Agreement dated
October ___, 1999, among Corporate Access, Inc., Condor Technology
Solutions, Inc., Richton and CBE."
"'Deutsche Agreement' shall mean the Agreement for Wholesale
Financing dated as of October ___, 1999, between Deutsche Financial
Services Corporation and CBE."
"'Issuer' shall mean any Person who issues a Letter of Credit
pursuant to the terms hereof."
"'Letter of Credit Application' shall have the meaning set forth in
Section 2.15 hereof."
"'Letter of Credit Fees' shall have the meaning set forth in Section
3.11 hereof."
"'Letters of Credit' shall have the meaning set forth in Section
2.14 hereof."
4. Section 2.1(a) of the Credit Agreement is hereby amended to read in its
entirety as follows:
2.1 (a) Revolving Advances. Subject to the terms and conditions set
forth in this Agreement, each Lender, severally and not jointly, will make
Revolving Advances to Borrowers in aggregate amounts outstanding at any
time equal to such Lender's Commitment Percentage of the lesser of (x) the
Maximum Revolving Advance Amount less the aggregate amount of outstanding
Letters of Credit and all unreimbursed payments or disbursements made by
Issuer under all Letters of Credit, or (y) an amount equal to the sum of:
(i) up to eighty-five percent (85%), subject to the provisions
of Section 2.1(b) hereof ("Receivables Advance Rate"), of Eligible
Receivables of all Borrowers at such time, plus
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(ii) up to the lesser of (A) sixty percent (60%), subject to
the provisions of Section 2.1(b) hereof ("Inventory Advance Rate"),
of the value of the Eligible Inventory of all Borrowers at such time
or (B) twenty million dollars ($20,000,000) in the aggregate at any
one time, plus
(iii) solely during the Seasonal Advance Period, an additional
amount equal to the Maximum Seasonal Advance Amount (provided that
the amount referred to in this Section 2.1(a)(y)(iii) (A) may only
be advanced to Century and (B) may not be advanced at the beginning
of any Seasonal Advance Period prior to receipt by Agent of the
preliminary monthly unaudited financial statements for December of
the prior fiscal year of Borrowers to enable Agent to preliminarily
determine compliance with Sections 6.10 and 6.11 hereof), minus
(iv) the aggregate amount of outstanding Letters of Credit,
minus
(v) such reserves as Agent may reasonably and in good xxxxx
xxxx proper and necessary from time to time.
The amount derived from the sum of (x) Sections 2.1(a)(y)(i), (ii) and
(iii) hereof, minus (y) Sections 2.1(a)(y)(iv) and (v) hereof at any time and
from time to time shall be referred to as the "Aggregate Formula Amount". The
Revolving Advances shall be evidenced by the promissory note ("Revolving Credit
Note") substantially in the form attached hereto as Exhibit 2.1(a).
Notwithstanding the foregoing, in no event shall the aggregate balance of
outstanding Revolving Advances to any Borrower exceed the amount set forth in
Section 2.4 hereof.
5. Section 2.10(a) of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(a) In the event that the aggregate balance of Revolving Advances
outstanding at any time exceeds the lesser of (a) the Aggregate Formula
Amount at such time, or (b) the Maximum Revolving Advance Amount, less the
aggregate amount of outstanding Letters of Credit and all unreimbursed
payments or disbursements made by Issuer under all Letters of Credit at
such time, the excess amount of Revolving Advances shall be immediately
due and payable as a mandatory prepayment without the necessity of any
demand, at the Payment Office, whether or not a Default or Event of
Default has occurred. In the Event that the aggregate balance of Revolving
Advances outstanding to (i) Century at any time exceeds the Century
Formula Amount at such time, or (ii) CBE at any time exceeds the CBE
Formula Amount at such time, the excess amount of Revolving Advances shall
be immediately due and payable by the appropriate Borrower(s) as a
mandatory prepayment without the necessity of any demand, at the Payment
Office, whether or not a Default or Event of Default has occurred. In the
event there is an excess amount as described above, any Borrower required
to make a prepayment may, to the extent there are outstanding Letters of
Credit issued for its account at such time, reduce such excess by (1)
replacing such outstanding Letters of Credit, and/or (2) depositing cash
in a cash collateral account with Agent on terms and conditions
satisfactory to Agent as cash collateral for the liability of Issuer and
Lenders (whether direct or contingent) under such outstanding Letters of
Credit."
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6. New Sections 2.14, 2.15 and 2.16 are hereby added to the Credit
Agreement to read in their entireties as follows:
"2.14 Letters of Credit. Subject to the terms and conditions hereof,
Agent shall issue or cause the issuance, for the account of a Borrower, of
irrevocable standby letters of credit denominated in Dollars issued to
support obligations of such Borrower in the ordinary course of its
business (the "Letters of Credit"); provided, however, that Agent will not
be required to issue or cause to be issued any Letter of Credit to the
extent that the issuance of such Letter of Credit would result in a breach
of Section 2.4 hereof or a requirement for a mandatory prepayment under
Section 2.10(a) hereof. The maximum amount of all outstanding Letters of
Credit shall not exceed two million dollars ($2,000,000) in the aggregate
at any time. All disbursements or payments related to Letters of Credit
shall be deemed to be Domestic Rate Loans consisting of Revolving Advances
and shall bear interest at the Revolving Interest Rate for Domestic Rate
Loans. Letters of Credit that have not been drawn upon shall not bear
interest (although they will be subject to the fees set forth in Section
3.11 hereof)."
"2.15 Issuance of Letters of Credit.
(a) Borrowing Agent, on behalf of a Borrower, may request Agent to
issue or cause the issuance of a Letter of Credit for the account of such
Borrower by delivering to Agent at the Payment Office, Issuer's form of
Letter of Credit Application (the "Letter of Credit Application")
completed to the satisfaction of Issuer, and such other certificates,
documents and other papers and information as Agent may reasonably
request.
(b) Each Letter of Credit shall, among other things, (i) be in a
form customarily used by Issuer or in such other form as has been approved
by Issuer, and (ii) have an expiry date not later than one (1) year after
such Letter of Credit's date of issuance and in no event later than one
(1) month prior to the last day of the Term. Each Letter of Credit shall
be subject to the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500,
and any amendments or revision thereof adhered to by Issuer and, to the
extent not inconsistent therewith, the laws of the State of New York.
(c) Agent shall use its reasonable efforts to notify Lenders of the
request by Borrowing Agent for a Letter of Credit hereunder."
"2.16 Requirements For Issuance of Letters of Credit.
(a) In connection with the issuance of any Letter of Credit,
Borrowers shall jointly and severally indemnify, save and hold Agent and
each Lender and each Issuer harmless from any loss, cost, expense or
liability, including, without limitation, payments made by Agent or any
Lender, and expenses and reasonable attorneys' fees incurred by Agent or
any Lender arising out of, or in connection with, any Letter of Credit to
be issued for a Borrower, except to the extent due to Agent's, a Lenders
or an Issuer's gross negligence or willful misconduct. Borrowers shall be
bound by Agent's or any Issuer's policies and good faith interpretations
of any Letter of Credit issued for the account of a Borrower, although
this interpretation may be different from their own; and, neither Agent,
nor any Lender, nor any Issuer nor any of their correspondents shall be
liable for any error, negligence, or mistakes, whether of omission or
commission, in following a Borrower's instructions or those contained in
any Letter of Credit
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or of any modifications, amendments or supplements thereto or in issuing
or paying any Letter of Credit, except for Agent's, any Lender's, any
Issuer's or such correspondents' gross negligence or willful misconduct.
(b) Borrowing Agent, on behalf of a Borrower, shall authorize and
direct any Issuer to name Century or CBE, as the case may be, as the
"Applicant" or "Account Party" of each Letter of Credit. If Agent is not
the Issuer of any Letter of Credit, Borrowing Agent, on behalf of a
Borrower, shall authorize and direct Issuer to deliver to Agent all
instruments, documents, and other writings and property received by Issuer
pursuant to the Letter of Credit and to accept and rely upon Agent's
instructions and agreements with respect to all matters arising in
connection with the Letter of Credit, the application therefor or any
acceptance thereof.
(c) In connection with all Letters of Credit issued or caused to be
issued by Agent under this Agreement, each Borrower hereby appoints Agent,
or its designee, as its attorney, with full power and authority if an
Event of Default shall have occurred and be continuing, (i) to sign and/or
endorse such Borrower's name upon any warehouse or other receipts, letter
of credit applications and acceptances; (ii) to sign such Borrower's name
on bills of lading; (iii) to clear Inventory through the United States of
America Customs Department ("Customs") in the name of such Borrower or
Agent or Agent's designee, and to sign and deliver to Customs officials
powers of attorney in the name of such Borrower for such purpose; and (iv)
to complete in such Borrower's name or Agent's, or in the name of Agent's
designee, any order, sale or transaction, obtain the necessary documents
in connection therewith, and collect the proceeds thereof. Neither Agent
nor its attorneys will be liable for any acts or omissions nor for any
error of judgment or mistakes of fact or law, except for Agent's or its
attorney's gross negligence or willful misconduct. This power, being
coupled with an interest, is irrevocable as long as any Letters of Credit
remain outstanding.
(d) Without limiting the generality of Section 2.16(a) hereof,
Borrowers jointly and severally agree to reimburse Issuer as provided in
this Section 2.16(d), through Agent, in Dollars and in immediately
available funds, for the amount disbursed or paid by Issuer in connection
with any drawing under any Letter of Credit and any costs and expenses
relating to such disbursement or payment. Agent shall have the right to
effectuate payment of any such amount by charging Borrowers' Account or by
making Revolving Advances as provided in Section 2.2 hereof. Issuer shall
promptly notify Agent and Borrowing Agent in the event of any request for
drawing under any Letter of Credit; provided, that Issuer's failure to
give such notice shall not impair or diminish Borrowers' obligations under
this Section 2.16(d). Each Lender shall to the extent of the percentage
amount equal to the product of such Lender's Commitment Percentage times
the aggregate amount of all unreimbursed reimbursement obligations arising
from disbursements made or obligations incurred with respect to the
Letters of Credit be deemed to have irrevocably purchased an undivided
participation in each such unreimbursed reimbursement obligation. In the
event that any disbursement is made by Issuer under a Letter of Credit and
not reimbursed (whether directly, by charging Borrowers' Account or by
making Revolving Advances as provided in Section 2.2 hereof) within two
(2) Business Days, Agent shall promptly notify each Lender and upon
Agent's demand each Lender shall pay to Agent such Lender's proportionate
share of such unreimbursed disbursement together with such Lender's
proportionate share of Agent's unreimbursed costs and expenses relating to
such unreimbursed disbursement. Upon receipt by Agent of a repayment from
a Borrower of any amount disbursed by Agent for which Agent had already
been reimbursed by Lenders,
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Agent shall deliver to each Lender that Lender's pro rata share of such
repayment. Each Lender's participation commitment shall continue until the
last to occur of any of the following events: (A) Agent ceases to be
obligated to issue or cause to be issued Letters of Credit hereunder; (B)
no Letter of Credit issued hereunder remains outstanding and unconcealed
or (C) all Persons (other than Borrowers) have been fully reimbursed for
all payments made under or relating to Letters of Credit.
(e) To the extent that any provision of any Letter of Credit
Application is inconsistent with the provisions of this Agreement,
including, without limitation, the provisions of Sections 2.14 or 2.15
hereof, or of this Section 2.16, the provisions of this Agreement shall
control."
7. Section 2.13(e) of the Credit Agreement is hereby amended to read in
its entirety as follows:
(i) "In the event and for so long as a Defaulting Lender fails to
cure to the reasonable satisfaction of Borrowing Agent the breach which
caused such Lender to become a Defaulting Lender, upon the request of
Borrowing Agent, Agent shall use its reasonable good faith efforts to
locate a Purchasing Lender reasonably acceptable to Agent to acquire all
of such Defaulting Lender's rights and interests under this Agreement
(including, without limitation, all of such Defaulting Lender's
outstanding Advances, commitments to make additional Advances and
participating interests in Letters of Credit) upon the terms set forth in
Section 15.3(c) hereof; provided that such Defaulting Lender shall be
obligated to pay the fee set forth in Section 15.3(d) hereof."
8. A new Section 3.11 is hereby added to the Credit Agreement to read in
its entirety as follows:
"3.11 Letter of Credit Fees. Borrowers shall pay (a) to Agent, for
the benefit of Lenders, fees for each outstanding Letter of Credit for the
period from and excluding the date of issuance of same to and including
the date of expiration or termination, equal to the average daily face
amount of such Letter of Credit multiplied by one and three-quarters
percent (1-3/4%) per annum, and (b) to Issuer, any and all fees and
expenses as agreed upon by Issuer and Borrowing Agent in connection with
any Letter of Credit, including, without limitation, in connection with
the opening, amendment or renewal of any such Letter of Credit and shall
reimburse Agent for any and all fees and expenses, if any, paid by Agent
to Issuer (all of the foregoing fees, the "Letter of Credit Fees"). All
Letter of Credit Fees payable hereunder shall be deemed earned in full on
the date when the same are due and payable hereunder and shall not be
subject to rebate or proration upon the termination of this Agreement for
any reason."
9. Section 7.1(a) of the Credit Agreement is hereby amended to read in its
entirety as follows:
"(a) Enter into any merger, consolidation or other reorganization
with or into any other Person or permit any other Person to consolidate
with or merge with it (in each case other than a merger of one Borrower or
of Guarantor with and into another Borrower) or acquire all or a
substantial portion of the assets of any Person, except that Century and
CBE may make Permitted Acquisitions provided that (i) the aggregate
Consideration for each such Permitted Acquisition shall not exceed one
million dollars ($1,000,000) or, in the case of the acquisition described
in the CAI Agreement (as delivered to Agent prior to the date hereof),
provided that such acquisition otherwise qualifies as a Permitted
Acquisition, the aggregate Consideration for such acquisition shall not
exceed the amount set forth in the CAI Agreement, and (ii) the
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aggregate Consideration for all such Permitted Acquisitions (including,
without limitation, the acquisition described in the CAI Agreement (as
delivered to Agent prior to the date hereof), provided that such
acquisition otherwise qualifies as a Permitted Acquisition) shall not
exceed two million dollars ($2,000,000) during any fiscal year of
Borrowers."
10. Section 7.3 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"7.3 Guarantees. Become liable upon the obligations of any Person by
assumption, endorsement or guaranty thereof or otherwise (other than to
Lenders) except (a) as disclosed on Schedule 7.3, (b) the endorsement of
checks in the ordinary course of business, and (c) that Richton may
support the indemnification obligations of CBE under the CAI Agreement (as
delivered to Agent prior to the date hereof)."
11. Section 7.8 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"7.8 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness for borrowed money (exclusive of trade debt) except in
respect of (a) Indebtedness to Lenders, (b) Indebtedness incurred for
capital expenditures permitted under Section 7.6 hereof, (c) Indebtedness
for borrowed money to the extent permitted under Section 7.5 hereof, (d)
existing Indebtedness set forth on Schedule 7.8, and (e) Indebtedness of
CBE for borrowed money under the Deutsche Agreement in an aggregate
principal amount not to exceed one million five hundred thousand dollars
($1,500,000) at any time outstanding."
12. Section 11.1 of the Credit Agreement is hereby amended to add the
following after the first sentence thereof:
"Upon the occurrence and during the continuance of any Event of Default,
Agent shall, at the request of the Required Lenders, or may, with the
consent of the Required Lenders, (i) direct Borrowers to pay (and
Borrowers agree to pay upon the receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 10.7 hereof,
Borrowers agree to pay without receipt of any notice) to Agent such
additional amount of cash equal to the maximum aggregate amount available
to be drawn under all Letters of Credit then outstanding, which amount
shall be held as security for Borrowers' reimbursement obligations in
respect of Letters of Credit then outstanding."
13. Section 15.7 of the Credit Agreement is hereby amended to read in its
entirety as follows:
"15.7 Survival. The obligations under Sections 2.6(d), 2.16(a),
3.2(e), 3.8, 3.9, 3.10, 4.19(g), 14.7, 15.5, 15.9 and 15.17 hereof shall
survive termination of this Agreement and the Other Documents and payment
in full of the Obligations."
14. In order to induce Required Lenders and Agent to enter into this
Amendment, Borrowers hereby represent, warrant and covenant that:
(a) no Default or Event of Default has occurred and is continuing or
will occur after giving effect to the transactions contemplated by this
Amendment, the CAI Agreement or the Deutsche Agreement;
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(b) this Amendment has been duly authorized, executed and delivered
by each Borrower and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms;
(c) the Credit Agreement and each of the Other Documents, after
giving effect to this Amendment and the transactions contemplated hereby,
continue to be in full force and effect and to constitute the legal, valid
and binding obligations of each Borrower that is a party thereto,
enforceable against each such Borrower in accordance with their respective
terms;
(d) the representations and warranties made by each Borrower or
Guarantor in or pursuant to the Credit Agreement or any Other Document, or
which are contained in any certificate, document or financial or other
statement furnished at any time under or in connection herewith or
therewith, are each true and correct in all material respects on and as of
the date hereof, as though made on and as of such date;
(e) the acquisition described in the CAI Agreement constitutes a
Permitted Acquisition;
(f) CBE will not conduct business under the name Corporate Access,
Inc., or any similar name unless it has given Agent thirty (30) days prior
written notice thereof and has taken all actions reasonably requested by
Agent (including, without limitation, executing additional UCC-1 financing
statements) to maintain the perfection and priority of the liens granted
to Agent, for the ratable benefit of Lenders, under the Credit Agreement;
(g) CBE will not (i) finance more than $1,500,000 of Inventory at
any one time pursuant to the Deutsche Agreement, (ii) secure its
obligations under the Deutsche Agreement, other than by a Letter of Credit
in the face amount of up to $1,500,000, or (iii) amend the Deutsche
Agreement in any material respect without the prior written consent of the
Required Lenders; and
(h) prior to the date hereof, CBE has delivered to Agent true and
correct copies of (i) the CAI Agreement (including the schedules thereto),
all UCC and other searches conducted with respect to Corporate Access,
Inc. in connection therewith, and all other documents relating thereto as
have been requested by Agent, and (ii) the Deutsche Agreement, and all
other documents relating thereto as have been requested by Agent.
15. Borrowers acknowledge that no Inventory of CBE financed pursuant to
the Deutsche Agreement shall constitute Eligible Inventory.
16. This Amendment shall become effective as of the date above upon
receipt by Agent of (a) six (6) copies of this Amendment executed by Borrower
and one copy of this Amendment executed by the Required Lenders, (b) six (6)
copies of the Consent of Guarantor, in the form attached hereto as Exhibit A,
executed by Guarantor, (c) one (1) copy of the fully executed CAI Agreement, and
all other documents relating thereto as have been requested by Agent, (d) one
(1) copy of the fully executed Deutsche Agreement, and all other documents
relating thereto as have been requested by Agent, (e) all documents and
instruments (including, without limitation, UCC-1 financing statements and the
other items described in the definition of "Permitted Acquisition" contained in
Section 1.2 of the Credit Agreement) necessary or desired by Agent to confirm
that the acquisition described in the CAI Agreement qualifies as a Permitted
Acquisition, (f) such other documents, instruments and certificates as Agent may
reasonably request, in form and substance reasonably satisfactory to Agent, and
(g) payment by Borrowers of all costs, expenses and disbursements incurred by
Agent in connection herewith as required under Section 15.9 of the Credit
Agreement.
17. Borrowers hereby confirm that all liens granted on the Collateral and
the Guarantor Collateral shall continue unimpaired and in full force and effect.
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18. This Amendment may be executed in several counterparts, each of which,
when executed and delivered, shall be deemed an original, and all of which
together shall constitute one agreement. Any signature delivered by a party by
facsimile transmission shall be deemed to be an original signature hereto.
19. This Amendment shall be governed by and construed in accordance with
the laws of the State of New York applied to contracts to be performed wholly
within the State of New York, without giving effect to the principles of
conflicts of law. This Amendment shall be binding upon and inure to the benefit
of Borrowers, Lenders, Issuer and Agent, and their respective successors and
permitted assigns.
20. From and after the effectiveness hereof, all references to the Credit
Agreement in the Other Documents shall mean the Credit Agreement as amended and
modified by this Amendment.
21. Except as amended and otherwise modified by this Amendment, the Credit
Agreement and the Other Documents shall remain in full force and effect in
accordance with their respective terms. Except as expressly provided herein,
this Amendment shall not constitute an amendment, waiver, consent or release
with respect to any provision of the Credit Agreement or any Other Document, a
waiver of any Default or Event of Default thereunder, or a waiver or release of
any of Agent's or any Lender's rights or remedies (all of which are hereby
reserved). Borrowers expressly ratify and confirm the waiver of jury trial and
other provisions of Section 12.3 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ATTEST: RICHTON INTERNATIONAL CORPORATION
By:
-------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxxxx, Secretary Name: Xxxxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
ATTEST: CENTURY SUPPLY CORP.
By:
-------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxxxx, Secretary Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
ATTEST: CBE TECHNOLOGIES, INC.
By:
-------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxxxxx, Secretary Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
10
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By:
-------------------------------
Name: Xxxx Peak
Title: Vice President
FLEET CAPITAL CORPORATION,
as Lender
By:
-------------------------------
Name:
Title:
FIRSTAR BANK, N.A.,
as Lender
By:
-------------------------------
Name:
Title:
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as Lender
By:
-------------------------------
Name:
Title:
