SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
Exhibit
10.3
SECOND
AMENDMENT TO
This
Second Amendment to the Loan and Security Agreement (this
“Amendment”) is dated
as of this __13_ day of November, 2007, by and among I.C. Xxxxxx &
Company, L.P., as borrower
(“Borrower”),
I.C. Xxxxxx & Company, Inc. and Xxxxxx Design,
Inc., as guarantors (collectively, the
“Guarantors”), and Wachovia Bank, National
Association, as lender
(“Bank”).
BACKGROUND
A. Borrower
and Bank are parties to a certain Loan and Security Agreement dated as of
December 30, 2004 (as amended or otherwise modified from time to time, the
“Loan Agreement”), and
the other Loan Documents (as defined in the Loan
Agreement). Capitalized terms used herein and not otherwise defined
shall have the respective meanings set forth in the Loan Agreement.
B. The
parties have agreed, subject to the terms and conditions of this Amendment,
to
amend the Loan Agreement.
NOW,
THEREFORE, with the foregoing Background hereinafter deemed incorporated by
this
reference, the parties hereto, intending to be legally bound, promise and agree
as follows:
1. AMENDMENTS
TO LOAN AGREEMENT
1.1 Definitions. The
following definitions contained in Section 1.1 of the Loan Agreement are amended
and restated as follows:
“Applicable
Margin” means (a) prior to December 31, 2007, (i) for any Prime Rate Loan,
0.0% and (ii) for any LIBOR Loan, 2.25%; and (b) on and all times after December
31, 2007, the per annum rate of interest as determined pursuant to Section
2.2.5
hereof.
“Borrowing
Base” means, at Borrower’s election, an amount equal to either Borrowing
Base Option A or Borrowing Base Option B.
“Revolver
Commitment” means the commitment of Bank, subject to the terms and
conditions herein, to make Revolver Loans and issue Letters of Credit in
accordance with the provisions of Section 2 hereof in an aggregate amount not
to
exceed $15,000,000 at any one time.
“Termination
Date” means the earliest of (i) December 31, 2010, (ii) the date on which
Borrower terminates this Agreement and the credit facilities provided hereunder
pursuant to Section 2.14 hereof, and (iii) the date on which Bank
terminates its obligation to make Loans and other extensions of credit to
Borrower pursuant to Section 8.2(a) hereof.
1.2 New
Definitions. The following new definitions are hereby added to
Section 1.1 of the Loan Agreement:
“Borrowing
Base Option A” means, on any date of determination thereof, an amount equal
to:
(i) up
to 85% (or such lesser percentage as Bank may determine from time to time in
its
reasonable discretion) of the total amount of Eligible Accounts; provided that,
the percentage shall be reduced to the extent Borrower’s Dilution Rate exceeds
five percent (5%), minus
(ii) any
Reserves.
“Borrowing
Base Option B” means, on any date of determination thereof, an amount equal
to:
(i) up
to 85% (or such lesser percentage as Bank may determine from time to time in
its
reasonable discretion) of the total amount of Eligible Accounts; provided that,
the percentage shall be reduced to the extent Borrower's Dilution Rate exceeds
five percent (5%), plus
(ii) the
least of (a) $8,000,000, and (b) the sum of (i) the lesser of (A) up to 45%
(or
such lesser percentage as Bank may determine from time to time in its reasonable
discretion) of the total amount of Eligible Inventory and (B) up
to 80% of the NOLV of Eligible Inventory; plus (ii) the lesser of (A) up
to 45% (or such lesser percentage as Bank may determine from time to time in
its
reasonable discretion) of the total amount of Eligible LC Inventory and (B)
up
to 80% of the NOLV of Eligible LC Inventory, minus
(iii) any
Reserves.
1.3 Application
of Payments. Section 2.2.3 of the Loan Agreement is amended and
restated as follows:
2.2.3 Application
of Payments. Payment items received shall be deposited into the
Collections Account, subject to chargebacks for uncollected payment items,
and
if no Revolver Loans are then outstanding or have been repaid, Bank shall pay
over such of the proceeds of such payments to a Deposit Account maintained
by
Borrower at Bank and designated in writing by Borrower. All funds
deposited into the Collections Account on any Business Day shall be deemed
to
have been applied by Bank, for interest calculation purposes, two (2) Business
Days following deposit of such funds, to reduce the then outstanding balance
of
the Revolver Loans and to pay accrued interest thereon and to pay any other
outstanding Obligations which are then due and payable hereunder; provided
that
for the purpose of determining the availability of Revolver Loans hereunder,
such funds deposited into the Collections Account shall be deemed to have
reduced the outstanding Revolver Loans as of the first Business Day after the
date on which such funds were deposited into Collections Account. All
amounts received directly by Borrower from any Account Debtor, in addition
to
all other cash received from any other source including but not limited to
proceeds from any realization on any Collateral (but excluding the proceeds
of
any Revolver Loans made hereunder) shall be held by Borrower pursuant to an
express trust (which is hereby created) for the benefit of Bank, shall be held
by Borrower separate and segregated from all other funds of Borrower and shall
be deposited into the Collection Account within one (1) Business Day of receipt
thereof by Borrower. No payment item received by Bank shall
constitute payment to Bank until such item is actually collected by Bank and
credited to the Collections Account; provided, however, that Bank shall have
the
right to charge back to the Collections Account (or any other account of
Borrower maintained at Bank) an item which is returned for inability to collect,
plus accrued interest during the period of Bank’s provisional credit for such
item prior to receiving notice of dishonor.
1.4 Adjustment
of Interest Rate. Section 2.2.5 of the Loan Agreement is amended and
restated as follows:
2.2.5 Adjustment
of Interest Rate. Commencing on December 31, 2007, and thereafter
on the first day of each succeeding Interest Adjustment Period, the interest
rate for all Loans for each applicable Interest Adjustment Period shall be
determined based upon the prior calendar quarter’s average Excess Availability
(as determined by Bank, in its reasonable discretion), in accordance with the
following matrix:
|
Excess
Availability
|
Applicable
Margin for Prime Rate Loans
|
Applicable
Margin for LIBOR Loans
|
|
Equal
to or less than $2,500,000
|
0.25%
|
2.50%
|
|
Greater
than $2,500,000 but equal to or less than $5,000,000
|
0%
|
2.25%
|
|
Greater
than $5,000,000
|
-0.25%
|
2.00%
|
For
purposes of the foregoing (i) no downward rate adjustment shall occur if an
Event of Default has occurred and is continuing on the applicable Interest
Adjustment Date, such adjustment to take effect only upon the cure or waiver
in
writing of such Event of Default and (ii) if Borrower fails to timely deliver
the applicable compliance certificate and monthly financial statements to Bank
in accordance with this Agreement on the date when due, then at Bank’s option,
the interest rates above shall be increased on such date to the highest rate
of
interest pursuant to the above matrix, which rate of interest shall continue
in
effect until such compliance certificate and financial statements shall have
been delivered.
1.5 Letters
of Credit Sublimit. Section 2.10.1 of the Loan Agreement is
amended and restated as follows:
2.10.1 Issuance
of Letters of Credit. Bank shall from time to time issue, upon
five (5) Business Days prior written notice, extend or renew letters
of credit for the account of Borrower or its Subsidiaries; provided that (i)
the
aggregate face amount of Letters of Credit issued by Bank which are outstanding
at any one time shall not exceed $2,000,000 at all times during which Borrower
has elected that the Borrowing Base to be determined using Borrowing Base Option
A and $8,000,000 at all times during which Borrower has elected that the
Borrowing Base to be determined using Borrowing Base Option B, (ii) Bank shall
have no obligation to issue any Letter of Credit if, after giving effect
thereto, the principal amount of all Revolver Loans and the Letter of Credit
Obligations would exceed the lesser of the Borrowing Base and the Revolver
Commitment, and (iii) all other conditions precedent to the issuance of each
such Letter or Credit as set forth herein are satisfied or waived in writing
by
Bank. All payments made by Bank under any such Letters of
Credit (whether or not Borrower is the account party) and all fees, commissions,
discounts and other amounts owed or to be owed to Bank in connection therewith,
shall be paid on demand, unless Borrower instructs Bank to make a Revolver
Loan
to pay such amount, Bank agrees to do so, and the necessary amount remains
available to be drawn as a Revolver Loan hereunder. All Letter of
Credit Obligations shall be secured by the Collateral. Borrower shall
complete and sign such applications and supplemental agreements and provide
such
other documentation as Bank may require. The form and substance of
all Letters of Credit, including expiration dates, shall be subject to Bank’s
approval, and Bank shall have no obligation to issue any Letter of Credit which
has a maturity date later than ten (10) days prior to the Termination
Date. Bank may charge certain fees or commissions for the
issuance, handling, renewal or extension of a Letter of
Credit. Borrower unconditionally guarantees all obligations of any
Subsidiary with respect to Letters of Credit issued by Bank for the account
of
such Subsidiary. Upon a Default, Borrower shall, on demand, deliver
to Bank good funds equal to 105% of Bank’s maximum liability under all
outstanding Letters of Credit, to be held as cash Collateral for Borrower’s
reimbursement obligations and other Obligations.
1.6 Books
and Records. Section 5.5 of the Loan Agreement is amended and
restated as follows:
5.5 Books
and Records. Shall, after receipt of reasonable notice prior to
the occurrence of an Event of Default or Default, permit inspections of the
Collateral and the records of such Person pertaining thereto and verification
of
the Accounts, at such times during normal business hours and in such manner
as
may be reasonably required by Bank and shall further permit, during normal
business hours and upon reasonable notice prior to the occurrence of an Event
of
Default or Default, such inspections, collateral appraisals, reviews and field
examinations of its other books and records and properties (with such frequency
and at such times as Bank may desire) by Bank as Bank may deem necessary or
desirable from time to time. The cost of such field examinations,
reviews, verifications and inspections shall be borne by Borrower provided
that
the cost of field examinations shall not exceed Bank’s standard fee per examiner
per day as announced from time to time, which is currently $850 per person
per
day plus Bank’s reasonable out-of-pocket expenses. Bank anticipates
conducting Inventory appraisals (at Borrower’s sole cost and expenses) on a
semi-annual basis or on a more frequent basis as Bank may determine in its
reasonable discretion.
1.7 Financial
Covenants. Article 7 of the Loan Agreement is amended and
restated as follows:
7. Other
Covenants of Borrower. Borrower covenants and agrees that
from the date hereof and until payment in full of the Obligations and the
termination of this Agreement, Borrower and each Subsidiary shall comply with
the following additional covenants:
7.1 Excess
Availability. At all times during which Borrower has elected that
the Borrowing Base be determined using Borrowing Base Option B, Borrower shall
maintain Excess Availability of at least $2,000,000; provided, however that
such
amount shall be reduced to $1,500,000 for such calendar month at such time
as
Borrower has maintained a Fixed Charge Coverage Ratio of not less than 1.20
to
1.00 as of the end of a calendar month determined for the twelve (12) month
period then ending. As used herein, “Fixed Charge
Coverage Ratio” means (i) EBITDA, less the sum of (A) all unfinanced
Capital Expenditures made in the Applicable Fiscal Period, and (B) any dividends
and distributions paid in the Applicable Fiscal Period, and (C) cash taxes
paid
in the Applicable Fiscal Period (without benefit of any refunds), and (D) cash
payments made in the Applicable Fiscal Period with respect to Capital Stock
based incentive compensation, and (E) any repurchases of Capital Stock made
in
the Applicable Fiscal Period, divided by (ii) the sum of (A) the current portion
of scheduled principal amortization on Funded Debt for the Applicable Fiscal
period, plus (B) cash principal payments paid on Funded Debt for the
Applicable Fiscal Period (C) cash interest payments paid in the Applicable
Fiscal Period, plus (D) the amount of all Deferred Note Payments paid in
the Applicable Fiscal Period, plus (E) the amount of all Deferred
Royalties paid in the Applicable Fiscal Period. As used herein, (i) “EBITDA” means the sum
of
(A) consolidated net income of Borrower and its Subsidiaries in the
Applicable Fiscal Period (computed without regard to any extraordinary items
of
gain or loss) plus (B) to the extent deducted from revenue in computing
consolidated net income for such period, the sum of (1) interest expense, (2)
income tax expense, (3) depreciation and amortization, and (4) non-cash Capital
Stock based incentive compensation, (ii) “Capital Expenditures” means for
any period the aggregate cost of all capital assets acquired by Borrower and
its
Subsidiaries during such period, as determined in accordance with GAAP; (iii)
“Applicable Fiscal Period” means a period of twelve (12) consecutive,
trailing calendar months ending at the end of each prescribed calendar month
and
(iv) “Funded Debt” means (A) debt for borrowed funds, (B) debt for the
deferred payment by one (1) year or more of any purchase money obligation,
and
(C) any subordinated debt. Borrower shall calculate its Fixed Charge
Coverage Ratio monthly and such calculation shall be included in each monthly
compliance certificate delivered to Bank pursuant to Section 5.6(d) of the
Agreement.
7.2 Capital
Expenditures. Borrower shall not expend on gross fixed assets
(including gross leases to be capitalized under GAAP and leasehold improvements)
(i) during each of the fiscal year ending December 31, 2007 and December 31,
2008 an amount exceeding $350,000 in the aggregate in each such fiscal year
and
(ii) during the fiscal year ending December 31, 2009 and during any fiscal
year
thereafter, an amount exceeding $2,000,000 in the aggregate.
7.3 Leases. Borrower
shall not incur, create, or assume any direct or indirect liability for the
payment of rent or otherwise, under any lease or rental arrangement (excluding
capitalized leases) if immediately thereafter the sum of such lease or rental
payments to be made by Borrower during any 12-month period is increased by
$200,000 in the aggregate.
1.8 Borrowing
Base Certificate. An updated form of Borrowing Base Certificate
is attached hereto as Exhibit A. Each Borrowing Base
Certificate delivered by Borrower to Bank as required by Section 5.6(a) of
the
Loan Agreement shall include (a) the calculations of the Borrowing Base
determined using both the Borrowing Base Option A and the Borrowing Base Option
B and (b) notice of Borrower’s election to use either Borrowing Base Option A or
the Borrowing Base Option B until the delivery of the next Borrowing Base
Certificate.
1.9 Inventory
Appraisals. Notwithstanding anything to the contrary contained
herein or the Loan Agreement, at no time shall Borrower be entitled to elect
that the calculation of the Borrowing Base be determined using Borrowing Base
Option B unless Bank has received an Inventory appraisal within the prior six
(6) month period.
1.10 Termination
Fee. If Borrower elects to terminate the Loan Agreement in full
and prepay all Obligations under the Loan Documents prior to the date listed
in
clause (i) of the definition of Termination Date or if Bank terminates the
Loan
Agreement following the occurrence of an Event of Default Borrower shall, on
the
date of such termination, pay to Bank the Early Termination Fee, which Early
Termination Fee shall be deemed liquidated damages to compensate Bank for its
loss of the benefits of the Loan Agreement and shall not be deemed a
penalty. For purposes hereof, the “Early Termination
Fee” shall mean an amount equal to (a) 1.5% of the Revolver
Commitment if the termination occurs on or before November 13, 2008, and (b)
0.75% of the Revolver Commitment if the termination occurs
after November 13, 2008 but on or before November 13,
2009.
2. WAIVER
OF EXISTING DEFAULTS
Borrower
has failed to comply with the
requirements of the Loan Agreement and the following Events of Default has
occurred (such Events of Default for the period so referenced is referred to
as
the “Existing Defaults”): (a) Borrower’s
noncompliance with Section 7.1 of the Loan Agreement for the calendar months
ending March 31, 2007, April 30, 2007, May 31, 2007, June 30, 2007, July 31,
2007, August 31, 2007 and September 30, 2007 and (b) the Event of Defaults
under
Section 8.1(f)(i) as a result of Borrower’s failure to make required payments
under the Subordinated Note. Borrower has requested that Bank waive
the Existing Defaults. Upon the effectiveness of this Amendment, Bank
hereby waives the Existing Defaults. The waiver of the Existing
Defaults shall not constitute a waiver of any other Default or Events of
Default. Nothing contained herein shall obligate Bank to grant any
future waiver of any other Default or Events of Default or be deemed to
constitute a course of conduct.
3. CONFIRMATION
OF INDEBTEDNESS
Borrower
hereby confirms and agrees that, as of October 11, 2007, the total principal
outstanding Loans under the Loan Agreement is $260,031.08 and the total face
amount of issued and outstanding Letters of Credit is $87,752.14, and that
Borrower is unconditionally liable to Bank for such amount, together all accrued
and unpaid interest and expenses through the Amendment Effective Date, without
any set-off, deduction, counterclaim or defense.
4. FURTHER
ASSURANCES
Borrower
hereby agrees to take all such actions and to execute and/or deliver to Bank
all
such agreements, instruments, certificates, assignments, financing statements
and other documents, as Bank may reasonably require from time to time, to
effectuate and implement the purposes of this Amendment.
5. CONFIRMATION
OF COLLATERAL
Borrower
covenants, confirms and agrees that as security for the repayment of the
Obligations, Bank has, and shall continue to have, and is hereby granted a
continuing lien on and security interest in the Collateral, all whether now
owned or hereafter acquired, created or arising, including all proceeds
thereof. Borrower acknowledges and agrees that nothing herein
contained in any way impairs Bank’s existing rights and priority in the
Collateral.
6. REPRESENTATIONS
AND WARRANTIES
Borrower
warrants and represents to Bank that:
(a) By
execution of this Amendment, Borrower reconfirms all warranties and
representations made to Bank under the Loan Documents and restates such
warranties and representations as of the date hereof all of which shall be
deemed continuing until all of the Obligations are paid and satisfied in
full;
(b) The
execution and delivery by Borrower and Guarantors of this Amendment and the
performance of the transactions herein contemplated (i) are and will be within
their powers, (ii) have been authorized by all necessary action, and (iii)
are
not and will not be in contravention of any order of court or other agency
of
government, of law, of any organization document of Borrower or any Guarantor
or
of any indenture, agreement or undertaking to which Borrower or any Guarantor
is
a party or by which the property of Borrower or any Guarantor is bound, or
be in
conflict with, result in a breach of or constitute (with due notice and/or
lapse
of time) a default under any such indenture, agreement or undertaking, or result
in the imposition of any lien, charge or encumbrance of any nature on any of
the
properties of Borrower or any Guarantor;
(c) This
Amendment and any assignment or other instrument, document or agreement executed
and delivered in connection herewith, will constitute the legal, valid and
binding obligations of Borrower and Guarantor, enforceable in accordance with
their respective terms, subject only to bankruptcy and similar laws affecting
creditors’ rights generally;
(d) Upon
the
effectiveness of this Amendment, there are no outstanding Defaults or Events
of
Default under any of the Loan Documents; and
(e) There
has
been no change which could have a Material Adverse Effect on Borrower, any
Subsidiary or any Guarantor since the date of the most recent financial
statements of such Person delivered to Bank from time to time.
7. CONDITIONS
PRECEDENT
This
Amendment shall not be effective until the following conditions have been met
to
the sole satisfaction of Bank (all documents to be in form and substance
satisfactory to Bank):
(a) Borrower
and each Guarantor shall have executed and delivered to Bank this
Amendment;
(b) Borrower
and Textile Investments shall have executed and delivered to Bank an amendment
to the Subordination Agreement;
(c) Borrower
shall have delivered to Bank a fully executed amendment to the Subordinated
Note;
(d) Borrower
shall have paid to Bank, in immediately available funds, a non-refundable
amendment fee in an amount equal to $37,500, which fee is fully earned by Bank
as of the Amendment Effective Date; and
(e) Borrower
and each Guarantor shall have executed and delivered, or shall have caused
to be
executed and delivered (as applicable), to Bank all other agreements,
instruments and documents which Bank may reasonably require, each in form and
substance acceptable to Bank in its sole discretion.
This
Amendment shall have effect as of the date all conditions precedent in this
Section 6 shall have been satisfied (the “Amendment Effective
Date”).
8. PAYMENT
OF EXPENSES
Borrower
shall pay or reimburse Bank for all reasonable attorneys’ fees and expenses and
all reasonable out of pocket costs in connection with the preparation,
negotiation and execution of this Amendment and all agreements, instruments
and
documents provided for herein or related hereto.
9. REAFFIRMATION
This
Amendment shall be incorporated into and made part of the Loan
Agreement. Except as expressly modified by the terms hereof, all of
the terms and conditions of the Loan Agreement, and all other of the Loan
Documents are hereby reaffirmed and shall continue in full force and effect
as
therein written.
10. GUARANTEES
Execution
of this Amendment by each Guarantor reflects the approval of such Guarantor
to
this Amendment, and the unconditional acknowledgement by such Guarantor that
such Guarantor’s Guaranty Agreement executed in favor of Bank remains in full
force and effect in accordance with its terms.
11. RELEASE
As
further consideration for the
agreement of Bank to enter into this Amendment, Borrower and each Guarantor
hereby waives, releases and discharges Bank, all affiliates of Bank and all
of
the directors, officers, employees, attorneys and agent of Bank and all
affiliates of such Persons, from any and all claims, demands, actions or causes
of action whether known or unknown existing as of the date hereof, arising
out
of or in any way relating to this Amendment, the Loan Agreement, the Loan
Documents and/or any documents, agreements, instruments, dealings or other
matters connected with this Amendment, the Loan Agreement, the Loan Documents
or
the administration thereof.
12. MISCELLANEOUS
12.1 Integrated
Agreement. The Loan Documents and this Amendment shall be construed as
integrated and complementary of each other, and as augmenting and not
restricting Bank’s rights, remedies and security. If, after applying
the foregoing, an inconsistency still exists, the provisions of this Amendment
shall control.
12.2 Severability. Any
provision hereof, the Loan Agreement or any other Loan Document that is
prohibited or unenforceable in any jurisdiction shall be, as to such
jurisdiction, ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
12.3 Non-Waiver. No
omission or delay by Bank in exercising any right or power under this Amendment,
or the Loan Documents or any related agreement will impair such right or power
or be construed to be a waiver of any Default or Event of Default or an
acquiescence therein, and any single or partial exercise of any such right
or
power will not preclude other or further exercise thereof or the exercise of
any
other right, and no waiver will be valid unless in writing and signed by Bank
and then only to the extent specified. Bank’s rights and remedies are
cumulative and concurrent and may be pursued singly, successively or
together.
12.4 Headings. The
headings of any paragraph of this Amendment are for convenience only and shall
not be used to interpret any provision of this Amendment.
12.5 Survival. All
warranties, representations and covenants made by Borrower herein, or in any
agreement referred to herein or on any certificate, document or other instrument
delivered by it or on its behalf under this Amendment, shall be considered
to
have been relied upon by Bank. All statements in any such certificate
or other instrument shall constitute warranties and representations by Borrower
hereunder. All warranties, representations, and covenants made by
Borrower hereunder or under any other agreement or instrument shall be deemed
continuing until the Obligations are indefeasibly paid and satisfied in
full.
12.6 Successors
and Assigns. This Amendment shall be binding upon and shall inure
to the benefit of Borrower and Bank, and their respective successors and
assigns; provided, that Borrower may not assign any of its rights hereunder
without the prior written consent of Bank, and any such assignment made without
such consent will be void.
12.7 Governing
Law. This Amendment, the Loan Agreement and the Loan
Documents shall be deemed contracts made under the laws of the State of the
Jurisdiction and shall be governed by and construed in accordance with the
laws
of said state (excluding its conflict of laws provisions if such provisions
would require application of the laws of another jurisdiction) except insofar
as
the laws of another jurisdiction may, by reason of mandatory provisions of
law,
govern the perfection, priority and enforcement of security interests in the
Collateral.
12.8 WAIVER
OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF
BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY
JURY
IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AMENDMENT, THE LOAN AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS AMENDMENT OR THE LOAN
AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ENTER INTO AND ACCEPT THIS
AGREEMENT.
12.9 Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which when taken together shall
constitute but one and the same instrument. Any signature delivered
by a party by facsimile transmission shall be deemed to be an original signature
hereto.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed and
delivered by their duly authorized officers as of the date first above
written.
|
BORROWER:
|
I.
C. XXXXXX & COMPANY, L.P.
By: I.C.
Xxxxxx & Company, Inc., general partner
By: /s/
XXXXXX X. STEC_____________
Xxxxxx
X. Xxxx, Chief Executive
Officer
|
|
BANK:
|
WACHOVIA
BANK, NATIONAL ASSOCIATION
By: /s/
GEORGIOS KYVERNITIS______
Xxxxxxxx
Xxxxxxxxxx,
Director
|
|
GUARANTORS:
|
I.
C. XXXXXX & COMPANY, L.P.
By: /s/
XXXXXX X. STEC_____________
Xxxxxx
X. Xxxx, Chief Executive
Officer
|
|
XXXXXX
DESIGN, INC.
By: /s/
XXXXXX X. STEC_____________
Xxxxxx
X. Xxxx, Chief Executive
Officer
|
