January 1, 1994
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Re: Fifth Amendment to Financing Agreements
Gentlemen:
Reference is made to the Accounts Financing Agreement [Security Agreement]
between Congress Financial Corporation ("Congress") and I.C. Xxxxxx & Co.
L.P. ("Borrower") dated as of June 16, 1992 (the "Accounts Agreement") and
all supplements thereto, and all other agreements, documents and instruments
related thereto and executed in connection therewith including, the Covenant
Supplement to Accounts Financing Agreement [Security Agreement] ("Covenant
Supplement"), the Inventory and Equipment Security Agreement Supplement to
Accounts Financing Agreement [Security Agreement] ("Inventory and Equipment
Security Agreement") and the Trade Financing Agreement Supplement to Accounts
Financing Agreement [Security Agreement] (the "Trade Financing Agreement"),
as each is amended by the Amendment to Financing Agreements dated October 30,
1992, Second Amendment to Financing Agreements dated as of January 4, 1993,
Third Amendment to Financing Agreements dated as of March 10, 1993 and Fourth
Amendment to Financing Agreements dated May 1, 1993, as the same now exist or
may hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced (collectively, the "Financing Agreements"). Capitalized
terms used herein, unless otherwise defined herein, shall have the meaning
set forth in the Financing Agreements.
Borrower has requested an extension of, and certain modifications to, the
Financing Agreements and Congress is willing to agree to such extension and
modifications, subject to the terms and conditions set forth herein.
In consideration of the foregoing, and the mutual agreements and covenants
contained herein and for other good and valuable consideration, Borrower and
Congress hereby agree as follows:
1. Supplemental Loans. Section 2.1 of the Accounts Agreement, as amended
by the Fourth Amendment, is hereby deleted in its entirety and replaced with
the following:
"2.1. You shall, in your discretion, make loans to us from time to
time, at our request, of up to eighty percent (80%) of the Net Amount of
Eligible Accounts (or such greater or lesser percentage thereof as you shall
in your sole discretion determine from time to time). Subject to the terms
and conditions hereof, you may also, in your discretion, make loans to us from
time to time, in excess of such lending formula, at our request, of up to (a)
$2,000,000 from the date hereof until February 28, 1994, and (b) $1,500,000
from March 1, 1994 until August 31, 1994,
subject to further reduction thereof as hereafter set forth (collectively,
the "Supplemental Loans"); provided, however, the maximum aggregate
outstanding amount of such Supplemental Loans shall be further reduced,
commencing August 12, 1994, in successive and cumulative amounts of
$375,000 each on August 12, 1994, August 19, 1994, August 26, 1994 and
August 31, 1994. Notwithstanding anything to the contrary contained
herein, the outstanding balance of any Supplemental Loans in excess of
$1,500,000 shall be repaid not later than March 1, 1994 and the entire
outstanding balance of all Supplemental Loans shall be repaid in full not
later than August 31, 1994."
2. Renewal Date. Section 9.1 of the Accounts Agreement is hereby amended
by deleting the first sentences thereof in it entirety and substituting the
following therefor:
"9.1. This Agreement shall become effective upon acceptance by you and
shall continue in full force and effect for a term ending June 16, 1995
(the "Renewal Date") and from year to year thereafter, unless sooner
terminated pursuant to the terms hereof."
3. Early Termination Fee. Section 9.2 of the Accounts Agreement is hereby
amended by adding the following sentence at the end of Section 9.2 set forth
on the Rider to the Accounts Agreement:
", or (c) one-half of one (1/2 of 1%) percent of the Maximum Credit if
such termination occurs after the second anniversary of this Agreement
but prior to the third anniversary of this Agreement."
4. Letter of Credit Sublimit. Section 1.5 of the Trade Financing Agreement
is hereby amended by deleting the reference to "$1,500,000" and replacing it
with "$2,000,000".
5. Supplemental Loan and Extension Fee. In partial consideration of the
extension of the term of the Financing Agreements, the Supplemental Loans and
the other modifications to the Financing Agreements as set forth herein,
Borrower agrees to pay Congress a fee in an amount equal to $35,000, payable
simultaneously with the execution hereof, which fee is fully earned as of the
date hereof. At Congress' option, Congress may charge such fee directly to
Borrower's loan account.
6. Effect and Entirety of this Amendment. Except as specifically modified
pursuant hereto, no other changes or modifications to the Financing
Agreements are intended or implied and, in all other respects, the Financing
Agreements are hereby ratified and confirmed by all parties hereto as of the
date hereof. This Amendment represents and incorporates the entire
understanding and agreements of the parties with respect to the matters set
forth herein and the parties hereto agree that there are no representations,
warranties, covenants or understandings of any kind, nature or description
whatsoever made by Congress to Borrower with respect to this Amendment,
except as specifically set forth herein. This Amendment represents the final
agreement between the parties and may not be contradicted by evidence or
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prior, contemporaneous or subsequent oral agreements of the parties.
7. Waiver, Modification, Etc. No provision or term hereof may be modified,
altered, waived, discharged or terminated orally, but only by an instrument
in writing executed by the party against whom such modification, alteration,
waiver, discharge or termination is sought.
8. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary to
effectuate the provisions and purposes of this Amendment.
9. Counterparts. This Amendment may be executed in one or more counterparts
which, taken together, shall constitute the agreement of the parties.
Very truly yours,
I.C. XXXXXX & CO. L.P.
By: ISBUYCO, INC., General Partner
By: /s/ Xxxxxx X. Xxxxx
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Title: Chairman
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Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx XxXxxxxx
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Title: Vice President
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ACKNOWLEDGED:
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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