MODIFICATION AGREEMENT
MODIFICATION made this 13th day of November, 1992 between XXXX CARGO
SYSTEMS, INC. ("Borrower") and BANK LEUMI LE-ISRAEL B.M. ("Bank").
BACKGROUND
A. Pursuant to a Loan and Security Agreement between Borrower and Bank
dated August 8, 1989 (together with the Consolidating Amendment referred to in
Paragraph B below, the "Loan Agreement"), Bank extended to Borrower (i) a
$1,000,000 line of credit ("Cash Line"), (ii) a $1,500,000 time loan ("Time
Loan") and (iii) a $1,000,000 term loan ("Term Loan").
B. Pursuant to a Consolidating Amendment to Loan and Security Agreements
dated December 20, 1989 between Borrower and Bank, Bank (i) extended a
$3,500,000 term loan secured by certain real estate in Gloucester City, New
Jersey ("Real Estate Loan"), (ii) issued a $500,000 standby letter of credit to
Chemical Bank, N.A. to back up Chemical Bank, N.A.'s letter of credit previously
issued for the benefit of National Union Fire Insurance Company with regard to
payment of insurance premiums ("Back up Letter of Credit") and (iii) increased
the maximum amount available under the Cash Line to $2,000,000.
C. Pursuant to an Application and Agreement for Irrevocable Standby Letter
of Credit dated January 22, 1990, Bank issued its $500,000 standby letter of
credit for the account of Xxxx Hauling and Warehousing System, Inc. ("Xxxx
Hauling") and for the benefit of National Union Fire Insurance Company)
("Initial Letter of Credit") which Initial Letter of Credit replaced the Back up
Letter of Credit.
D. Pursuant to an Application and Agreement for Irrevocable Standby Letter
of Credit dated June 10, 1991, Bank issued an additional $500,000 letter of
credit for the account of Xxxx Hauling and for the benefit of National Union
Fire Insurance Company ("Second Letter of Credit").
E. Borrower has now requested that (i) Bank increase the maximum amount
available under the Cash Line to $3,500,000 and in connection therewith retire
the Time Loan and (ii) modify certain of the covenants and conditions contained
in the Loan Agreement, all of which Bank has agreed to do, all as more fully set
forth herein.
F. All capitalized terms used but not defined herein shall have the
remaining given to such terms in the Loan Agreement.
AGREEMENTS
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follow:
1. Amendments to Loan Agreement. Effective as of the date of this
Modification:
(a) The definition of the following terms contained in Article I of
the Loan Agreement shall be amended and restated as follows:
"'Cash Note' means BORROWER'S promissory note in favor of BANK
evidencing BORROWER'S payment obligations under this Agreement with
respect to the Cash Line, together with all amendments, substitutions
and replacements thereof."
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"'Corporate Guarantors' means Broadway Equipment Leasing Corp.,
Refrigerated Distribution Center, Inc. Oregon Avenue Enterprises,
Inc., Xxxxxxxx Avenue Warehousing Corp., Xxxx Hauling and Warehousing
System, Inc., Xxxxxx Xxxxx Ice, Inc., Xxxx Cargo Systems of
California, The Riverfront Development Corporation, 000 Xxxxxxxx
Xxxxxx, Xxx., Xxxx Warehousing Company, Marine Information Technology,
Inc., X.X. Xxxxxxxx & Co., Inc. T&L Leasing Corp., CRT, Inc.,
Refrigerated Enterprises, Inc. and Dockside International Fish Co.,
Inc."
"'Guaranty' means the Surety Agreements of the Guarantors (including
without limitation all guaranties and surety agreements executed by
Broadway Equipment Leasing Corp. pursuant to the Princeton Agreement)
and all amendments, replacements and substitutions of the same."
"'Indebtedness' means all amounts due from BORROWER to BANK pursuant
to Article II hereof and all amounts due from Xxxx Hauling to Bank in
connection with the Initial Letter of Credit and/or the Second Letter
of Credit and otherwise, in all cases, arising out of or in connection
with this Agreement, the Applications or any other Loan Document."
"'Loan' means the aggregate of the Cash Line, the Term Loan, the
Initial Letter of Credit, the Real Estate Loan and the Second Letter
of Credit."
"'Maximum Cash Line' means the maximum aggregate principal amount
which BANK shall make available to BORROWER at any time from the
Closing Date until the Termination Date, which amount shall not exceed
$3,500,000."
"'Termination Date' means May 31, 1993 or such later date to which the
same may be extended from time to time in the exercise of BANK'S
discretion."
(b) The following definitions shall be added to Article I of the Loan
Agreement:
"'Applications' means those certain Applications and Agreements for
Irrevocable Standby Letter of Credit dated January 22, 1990 and June
10, 1991
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from Xxxx Hauling to Bank relating to the Initial Letter of Credit and
the Second Letter of Credit."
"'Combined' means the combination of the accounts of BORROWER and
Corporate Guarantors in accordance with generally accepted accounting
principles consistently applied, including principles of combination,
applied in a manner consistent with the application of such principles
in the preparation of the audited financial statements mentioned in
Section 5.1.4 hereof."
"'Xxxx Hauling' means Xxxx Hauling and Warehousing System, Inc."
"'Initial Letter of Credit' means BANK'S $500,000 Letter of Credit No.
S-736 dated January 22, 1990 issued for the benefit of National Union
Insurance Company."
"'Second Letter of Credit' means BANK'S $500,000 Letter of Credit No.
S-754 dated June 10, 1991 issued for the benefit of National Union
Insurance Company."
(c) All definitions of and references to the "Time Loan" and the "Time
Note" contained in the Loan Agreement are deleted in their entirety. All
definitions of and references to the "Backup Letter of Credit" or "Letter of
Credit" contained in the Loan Agreement shall be deemed to be references to the
"Initial Letter of Credit."
(d) Sections 3.1.1 and 3.1.2 of the Loan Agreement are hereby restated
in their entirety as follows:
"3.1.1 Security Interest in Financed Equipment. As security for
the payment of the Term Note and as conditional security for (A) the
payment of the Cash Note, (B) the payment of all obligations of Xxxx
Hauling to BANK in connection with the Initial Letter of Credit and
the Second Letter of Credit pursuant to the Applications, in
connection with BORROWER'S surety thereof, or otherwise, and (C) the
payment and discharge of all of the Indebtedness, BORROWER hereby
grants to BANK (and confirms the prior grant to BANK of) a
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security interest in and to all of BORROWER'S Financed Equipment."
"3.1.2. Cross Default Upon Event of Default. An Event of Default
under the Cash Line, Term Loan, Real Estate Loan or under Xxxx
Hauling's obligations to BANK in connection with the Initial Letter of
Credit or the Second Letter of Credit shall be deemed an Event of
Default under the Loan and entitle BANK to the remedies set forth in
Article VIII herein."
(e) Section 6.1.12 of the Loan Agreement is deleted in its entirety
and the following substituted in its place:
"6.1.12. On a Combined basis and as determined in accordance with
generally accepted accounting principles consistently applied:
"6.1.12.1. Maintain a ratio of Debt to Tangible Net Worth of not
more than the following amounts at the following times:
June 30, 1992 and as of each fiscal quarter thereafter including
September 30, 1993 ......................................... 3.0 to 1.
December 31, 1993 and as of each fiscal year thereafter.....2.75 to 1.
6.1.12.2. Maintain Tangible Net Worth of not less than the
following amounts at the following times:
June 30, 1992 and as of each fiscal quarter thereafter
including September 30, 1992.............................. $33,500,000
December 31, 1992 and as of each fiscal quarter thereafter
including September 30, 1993.............................. $37,500,000
December 31, 1993 and as of each fiscal quarter thereafter $39,500,000
"6.1.12.3. Maintain a ratio of net income before interest and
taxes to interest charges for the then current and three prior fiscal
quarters of not less than the following amount at the following times:
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June 30, 1992 and as of each fiscal quarter thereafter including
September 30, 1992.......................................... 1.35 to 1
December 31, 1992 and as of each fiscal quarter thereafter including
September 30, 1993........................................... 1.4 to 1
December 31, 1993 and as of each fiscal quarter thereafter... 1.5 to 1
"6.1.12.4. Maintain a ratio of current assets to current
liabilities of not less than 1.0 to 1 at December 31, 1992 and as of
each fiscal quarter thereafter.
"6.1.12.5. Maintain a ratio of (A) net income after taxes plus
depreciation to (B) current maturities of long term debt (excluding
the outstanding principal balance of amounts due to Meridian Bank
under that certain Revolving Credit Agreement dated June 16, 1992
between BORROWER and Meridian Bank) for the immediately prior fiscal
year plus current maturities of Capital Lease obligations for the
immediately prior fiscal year, plus capital expenditures for the
fiscal year, less, in each case, balloon payments classified as
current liabilities, of not less than .90 to 1 at December 31, 1992
and as of each December 31 thereafter."
(f) A new Section 6.1.16 is added to the Loan Agreement and shall read
as follows:
"6.1.16. Notify BANK immediately upon the creation and/or
acquisition of any new affiliate of BORROWER or any Corporate
Guarantor."
(g) Section 8.2 of the Loan Agreement is deleted in its entirety and
the following substituted in its place:
"8.2. Cross Default. Any Event of Default hereunder whether under
the Cash Line, Term Loan, Real Estate Loan or arising under Xxxx
Hauling's obligations to BANK in connection with the Initial Letter of
Credit or the Second Letter of Credit, shall entitle BANK to the
remedies provided in this Article VIII."
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2. Conditions Precedent. The obligation of Bank to effect the modifications
contained in this Modification is subject to the conditions precedent that Bank
shall have received all of the following documents, each of which shall be in
form and substance satisfactory to Bank:
(a) Copies of resolutions of the boards of directors of Borrower and
Corporate Guarantors authorizing the execution, delivery and performance of this
Modification and all other documents and instruments required hereby (including
without limitation as to Borrower, the Replacement Note (as defined below) and,
as to Borrower and Corporate Guarantors, the Surety Agreements referred to in
paragraph 2(c) below), certified by the secretary or an assistant secretary of
Borrower and Corporate Guarantors (as the case may be).
(b) A written certificate of the secretary or an assistant secretary of
Borrower and Corporate Guarantors as to the names and true signatures of the
officers of Borrower and Corporate Guarantors, as the case may be, authorized to
sign this Modification and all other documents and instruments required hereby.
(c) Agreements (i) by which Xxxxxxxx Avenue Warehousing Corp., Xxxxxx
Xxxxx Ice, Inc. 000 Xxxxxxxx Xxxxxx, Xxx., Refrigerated Enterprises, Inc., and
Dockside International Fish Co, Inc., ("New Guarantors") become surety for all
liabilities of Borrower to Bank, (ii) from the remaining Corporate Guarantors,
which replacement Surety Agreements shall
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supercede and replace (but not extinguish such Corporate Guarantors' liability
under or act as a novation of) the existing Surety Agreements, as amended, all
of which shall be the Surety Agreements referred to in the Loan Agreement for
all purposes, and (iii) by which Borrower and Guarantors become surety for all
liabilities of Xxxx Hauling to Bank in connection with the Initial Letter of
Credit and Second Letter of Credit.
(d) Certified copies of the Articles of Incorporation and By-laws of New
Guarantors together with evidence that the Articles of Incorporation and By-laws
of Borrower and the remaining Corporate Guarantors have not been modified or
amended (or if so, the nature and extent thereof) since August 8, 1989 and are
in full force and effect.
(e) Good standing certificates (dated not more than 15 days prior to the
date hereof) for Borrower and Corporate Guarantors.
(f) A favorable opinion of counsel to Borrower and Corporate Guarantors
as to the matters mentioned in Paragraphs 4(a), (b) and (c) herein.
(g) Promissory Note from Borrower to Bank dated the date of this
Modification, in the principal amount of $3,500,000 ("Replacement Note"), which
Replacement Note shall supercede and replace (but not extinguish Borrower's
liability under or act as a novation of) Borrower's August 8, 1989 Cash Note, as
amended and shall be the "Cash Note" referred to in the Loan Agreement for all
purposes.
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(h) Agreements pursuant to which the 1984 Mortgage and the 1989 Mortgage
are modified so as to secure, inter alia, all of Borrower's obligations to Bank
in connection with the Replacement Note, the Real Estate Note and all of
Borrower's obligations to Bank in connection with the Initial Letter of Credit
and the Second Letter of Credit.
(i) Bringdown and endorsement (to be issued at Borrower's sole cost and
expense) to Mortgagee Title Policy No. 31-0041-02-006389 issued by Chicago Title
Insurance Company insuring the Mortgages, as modified, free and clear of all
liens and encumbrances except as may appear in the original policy and as may
otherwise be expressly agreed to by Bank in writing.
(j) Updated Appraisal of the property covered by the 1984 Mortgage and
the 1989 Mortgage prepared by an appraiser and on terms satisfactory to Bank
showing an appraised value in an amount satisfactory to Bank.
(k) Such other documents or instruments as Bank may have requested under
the terms of this Modification or otherwise.
3. Representations and Warranties. In order to induce Bank to enter into
this Modification, Borrower represents and warrants to Bank as follows:
(a) The execution, delivery and performance by Borrower and Corporate
Guarantors of this Modification and any other documents and instruments required
by Bank for the implementation of this Modification (including without
limitation the Replacement Note and Surety Agreements) have been duly
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authorized by all necessary corporate action and do not and will not violate any
provision of law or of the charter or by-laws of Borrower or any Corporate
Guarantor or any agreement, trust or other indenture or instrument to which
Borrower or any Guarantor is a party, or by which any of their properties may be
bound or affected.
(b) This Modification constitutes and the other documents and
instruments required hereby when executed and delivered will constitute the
legal, valid and binding obligations of Borrower and Guarantors, enforceable in
accordance with their terms.
(c) No authorization, consent, approval, license, exemption or any other
action by and no registration, qualification or filing with any governmental
agency or authority is or will be necessary in connection with the execution,
delivery and performance of this Modification or the other documents and
instruments required hereby by Borrower or Guarantors.
(d) The Combined balance sheet and profit and loss and surplus
statements of Borrower and Corporate Guarantors as of December 31, 1991,
certified by Xxxxxxxx & Company, copies of which have been furnished to Bank,
are complete and correct, show all material liabilities, direct and contingent,
and present fairly the financial position, the results of operations and charges
in Combined financial position of Borrower and Corporate Guarantors at such date
and for the period ended on such date,
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all in accordance with generally accepted accounting principals consistently
applied. Since December 31, 1991, there has been no material adverse change in
such financial position or such results of operations.
(e) On and as of the date of this Modification, there has occurred no
Event of Default and no event which with notice or lapse of time or both would,
if unremedied, be an Event of Default.
(f) The representations and warranties made by Borrower to Bank in the
Loan Agreement are true and correct as though made on and as of the date of this
Modification.
(g) The Loan Agreement is in full force and effect and Borrower has no
defense, set-off or counterclaim to its performance thereunder.
4. Miscellaneous.
(a) This Modification shall be deemed, to the extent inconsistent
therewith, a modification of the Loan Agreement and all other instruments and
documents executed by Borrower in connection with the Loan Agreement (the
"Collateral Documents"). Subject to the foregoing, the terms and conditions of
the Loan Agreement and the Collateral Documents are ratified and confirmed,
shall remain in full force and effect and Borrower acknowledges and agrees that
the same shall secure all of Borrower's liabilities to Bank under the Loan
Agreement.
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(b) This Modification shall be governed by and construed in accordance
with the law of the Commonwealth of Pennsylvania.
(c) Borrower shall pay on demand all costs and expenses of Bank in
connection with the preparation, execution, delivery, administration and
enforcement of this Modification and the other documents and instruments
required hereby (including the fees and out of pocket costs of counsel with
respect thereto). The agreement set forth in this paragraph 4(c) shall survive
the repayment of the Indebtedness and the cancellation or expiration of the
Initial Letter of Credit and Second Letter of Credit.
(d) Paragraph headings used in this Modification are for convenience
only and shall not affect the construction of this Modification.
IN WITNESS WHEREOF, the parties hereto have executed this Modification as
of the date written above.
Attest: XXXX CARGO SYSTEMS, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- -------------------------------
(Seal) Vice President
BANK LEUMI LE-ISRAEL B.M.
By: /s/ Illegible
-------------------------------
Vice President
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CONSENT AND JOINDER
Each of the undersigned, surety for all obligations of Borrower to Bank
pursuant to its Surety Agreement dated of even date herewith and August 8, 1989
as amended and replaced of even date herewith (as the case may be), hereby
consents to the foregoing Modification and the other documents and instruments
referred to therein and ratifies, affirms and agrees that its Surety Agreement
shall continue in full force and effect. Each of the Corporate Guarantors agrees
that the "Debtor Liabilities" referred to in its Surety Agreement shall mean and
include without limitation Borrower's obligations to Bank in connection with the
Indebtedness as modified by the foregoing Modification. Xxxxxx X. Xxxx agrees
that the "Debtor Liabilities" referred to in his Surety Agreement shall mean and
include (i) the principal amounts advanced under the Cash Line, as modified by
the foregoing Modification, and (ii) accrued interest payable thereon by
Borrower; provided, however, Bank shall be limited in recourse against him for
Debtor Liabilities to $4,000,000.
In addition to the foregoing, in order to induce Bank to enter into the
foregoing Modification, New Guarantors agree, represent and warrant, each as
applicable to it, with the intent to be legally bound:
1. All of the representations and warranties in the Loan Agreement
applicable to it as a Corporate Guarantor are true and correct as if made by it.
2. It shall comply fully with all covenants contained in the Loan
Agreement applicable to it as a Corporate Guarantor as if it were a party to the
Loan Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Consent and Joinder
this 13th day of November, 1992
Witness:
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
----------------------------- --------------------------------------
Xxxxxx X. Xxxx
Attest: BROADWAY EQUIPMENT LEASING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
(signatures continued on next page)
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(signatures continued from previous page)
REFRIGERATED DISTRIBUTION CENTER, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
OREGON AVENUE ENTERPRISES, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
XXXX HAULING AND WAREHOUSING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
XXXXXXXX AVENUE WAREHOUSING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
XXXXXX XXXXX ICE, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
XXXX CARGO SYSTEMS OF CALIFORNIA
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
THE RIVERFRONT DEVELOPMENT CORPORATION
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
000 XXXXXXXX XXXXXX, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
(signatures continued on next page)
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(signatures continued from previous page)
XXXX WAREHOUSING COMPANY
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
MARINE INFORMATION TECHNOLOGY, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
X.X. XXXXXXXX & C0., INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
T. & L. LEASING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
CRT, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
REFRIGERATED ENTERPRISES, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
DOCKSIDE INTERNATIONAL FISH CO., INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Xxxx X. Xxxxx Vice President
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STATE OF NEW JERSEY :
: SS
COUNTY OF CAMDEN :
On this 13th day of November, 1992, before me, a Notary Public, personally
appeared Xxxxxx X. Xxxx, who acknowledged himself to be the person who executed
the foregoing Consent and Joinder dated November 13th, 1992, for the purposes
therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Notary Public
XXXXXXX X. XXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires May 31, 1995
SECOND MODIFICATION OF LOAN AND SECURTTY AGREEMENT
Modification made as of December 31, 1992 between XXXX CARGO SYSTEMS, INC.
("Xxxx Cargo"), ("Borrower") and BANK LEUMI LE-ISRAEL, B.M. ("Bank").
BACKGROUND
A. Borrower and Bank are party to a Loan and Security Agreement dated as of
August 8, 1989 (as amended December 20, 1989 and November 13, 1992, the "Loan
Agreement") pursuant to which Bank, inter alia, (i) extended a line of credit
in favor of Borrower in the maximum amount of $3,500,000, (ii) issued letters of
credit for the account of Borrower and Xxxx Hauling and Warehousing System, Inc.
("Xxxx Hauling"), and (iii) extended a term loan in the original principal
amount of $3,500,000.
B. Borrower and Bank now wish to further modify the Loan Agreement to amend
certain covenants and conditions set forth in the Loan Agreement, all of which
Bank has agreed to do on the terms and conditions set forth in this
Modification.
C. All capitalized terms used but not defined in this Modification shall
have the meaning given to such terms in the Loan Agreement.
AGREEMENTS
Borrower and Bank, intending to be legally bound, agree as follows:
1. Amendment to Loan Agreement. Effective as of the date of this
Modification, for the purposes of measuring the covenants and ratios contained
in Sections 6.1.12.1, 6.1.12.2, 6.1.12.3, 6.1.12.4 and 6.1.12.5 of the Loan
Agreement at the end of each fiscal quarter through and including March 31,
1993, all funds expended by Borrower and/or Xxxx Hauling in connection with its
or their construction of a new refrigerated warehouse at the Gloucester Marine
Terminal, Gloucester City, New Jersey, shall be excluded, as applicable.
2. Conditions Precedent. The obligation of Bank to effect the modification
contained in this Modification is subject to the condition precedent that Bank
shall have received all of the following documents, each of which shall be in
form and substance satisfactory to Bank:
(a) Copy of October 27, 1992 Bond Resolution of the South Jersey Port
Corporation relating to the issuance of bonds, a portion of the proceeds of
which will be disbursed to Borrower and/or Xxxx Hauling in connection with its
or their construction of a new refrigerated warehouse at the Gloucester Marine
Terminal, Gloucester City, NJ.
(b) Copies of resolutions of the boards of directors of Borrower and
Xxxx Hauling authorizing the execution and delivery of this Modification and all
other documents and instruments required hereby, certified by the secretary or
an assistant secretary of Borrower or Xxxx Hauling, as the case may be.
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(c) A written certificate of the secretary or an assistant secretary of
Borrower and Xxxx Hauling as to the names and true signatures of the officers of
Borrower and Xxxx Hauling, as the case may be, authorized to sign this
Modification and all other documents and instruments required hereby.
(d) A favorable opinion of counsel to Borrower and Affiliates as to the
matters mentioned in Paragraphs 3(a), (b) and (c) herein.
(e) Such other documents or instruments as Bank may have requested under
the terms of this Modification or otherwise.
3. Representations and Warranties. In order to induce Bank to enter into
this Modification, Borrower represents and warrants to Bank as follows:
(a) The execution, delivery and performance by Borrower and Corporate
Guarantors of this Modification and any other documents and instruments required
by Bank for the implementation of this Modification have been duly authorized by
all necessary corporate action and do not and will not violate any provision of
law or of the charter or by-laws of Borrower or any Corporate Guarantor or any
agreement, trust or other indenture or instrument to which Borrower or any
Guarantor is a party, or by which any of its or their properties may be bound or
affected; provided, however, that this representation does not apply to Broadway
Equipment Leasing Corporation, Xxxx Cargo
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Systems of California, Inc., Xxxx Warehousing Company, Marine Information
Technology, Inc. or T&L Leasing Corp.
(b) This Modification constitutes and the other documents and
instruments required hereby when executed and delivered will constitute the
legal, valid and binding obligations of Borrower and Guarantors, enforceable in
accordance with their terms; provided, however, that this representation does
not apply to Broadway Equipment Leasing Corporation, Xxxx Cargo Systems of
California, Inc., Xxxx Warehousing Company, Marine Information Technology, Inc.
or T&L Leasing Corp.
(c) No authorization, consent, approval, license, exemption or any other
action by and no registration, qualification or filing with any governmental
agency or authority is or will be necessary in connection with the execution,
delivery and performance of this Modification or the other documents and
instruments required hereby.
(d) The Combined balance sheet and profit and loss and surplus
statements of Borrower and Corporate Guarantors as of December 31, 1991,
certified by Xxxxxxxx & Company, and the Combined balance sheet and profit and
loss and surplus statements of Borrower and Corporate Guarantors as of September
30, 1992, prepared by Borrower, copies of all of which have been furnished to
Bank, are complete and correct, show all material liabilities, direct and
contingent, and present fairly the financial position, the results of operations
and charges in Combined financial position of Borrower and Corporate Guarantors
at such dates and
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for the period ended on such dates, all in accordance with generally accepted
accounting principals consistently applied. Since September 30, 1992, there has
been no material adverse change in such financial position or such results of
operations.
(e) On and as of the date of this Modification, there has occurred no
Event of Default and no event which with notice or lapse of time or both would,
if unremedied, be an Event of Default.
(f) Except with respect to the good standing of Broadway Equipment
Leasing Corporation, Xxxx Cargo Systems of California, Inc., Xxxx Warehousing
Company, Marine Information Technology, Inc., and T & L Leasing Corp., the
representations and warranties made by Borrower to Bank in the Loan Agreement
are true and correct as though made on and as of the date of this Modification.
(g) The Loan Agreement is in full force and effect and Borrower has no
defense, set-off or counterclaim to its performance thereunder.
4. Miscellaneous.
(a) This Modification shall be deemed, to the extent inconsistent
therewith, a modification of the Loan Agreement and all other instruments and
documents executed by Borrower in connection with the Loan Agreement (the
"Collateral Documents"). Subject to the foregoing, the terms and conditions of
the Loan Agreement and the Collateral Documents are ratified and confirmed,
shall remain in full force and effect and Borrower
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acknowledges and agrees that the same shall secure all of Borrower's liabilities
to Bank under the Loan Agreement.
(b) This Modification shall be governed by and construed in accordance
with the law of the Commonwealth of Pennsylvania.
(c) Borrower shall pay on demand all costs and expenses of Bank in
connection with the preparation, execution, delivery, administration and
enforcement of this Modification and the other documents and instruments
required hereby (including the fees and out of pocket costs of counsel with
respect thereto). The agreement set forth in this paragraph 4(c) shall survive
the repayment of the Loans and the cancellation or expiration of the Initial
Letter of Credit and the Second Letter of Credit.
(d) Paragraph headings used in this Modification are for convenience
only and shall not affect the construction of this Modification.
IN WITNESS WHEREOF, the parties hereto have executed this Modification as
of the date written above.
Attest: XXXX CARGO SYSTEMS, INC.
/s/ Illegible By: /s/ Xxxxxxx Xxxxxx
----------------------------- ----------------------------------
Vice President
BANK LEUM1 LE-ISRAEL B.M.
By: /s/ Illegible
-----------------------------
Vice President
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CONSENT
Each of the undersigned, surety for all obligations of Borrower to Bank
pursuant to its Surety Agreement dated August 8, 1989 and November 13, 1992
hereby consents to the foregoing Modification and the other documents and
instruments referred to therein and ratifies, affirms and agrees that its Surety
Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Consent as of
December 31, 1992.
Witness:
/s/ Xxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
----------------------------- ---------------------------------------
Xxxxxx X. Xxxx
Attest:
XXXX HAULING AND WAREHOUSING
SYSTEM, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Title
BROADWAY EQUIPMENT LEASING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
REFRIGERATED DISTRIBUTION CENTER, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
(signatures continued on next page)
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(signatures continued from previous page)
OREGON AVENUE ENTERPRISES, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
XXXXXXXX AVENUE WAREHOUSING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
XXXXXX XXXXX ICE, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
XXXX CARGO SYSTEMS OF CALIFORNIA
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
RIVERFRONT DEVELOPMENT CORPORATION
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
000 XXXXXXXX XXXXXX, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
XXXX WAREHOUSING COMPANY
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
MARINE INFORMATION TECHNOLOGY, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
X.X. XXXXXXXX & CO., INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
(signatures continued on next page)
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(signatures continued from previous page)
T. & L. LEASING CORP.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
CRT, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
REFRIGERATED ENTERPRISES, INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
DOCKSIDE INTERNATIONAL FISH CO., INC.
/s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
----------------------------- --------------------------------------
Vice President
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STATE OF NEW JERSEY :
: SS
COUNTY OF CAMDEN :
On this 27 day of April, 1993, before me, a Notary Public, personally
appeared Xxxxxx X. Xxxx, who acknowledged himself to be the person who executed
the foregoing Consent dated as of December 31, 1992, for the purposes therein
contained.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Notary Public
XXXXXXX X. XXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires May 31, 0000
- 00 -
XXXXX XX XXX XXXXXX :
: SS
COUNTY OF CAMDEN :
On this 27th day of April, 1993, before me, a Notary Public, personally
appeared Xxxxxxx Xxxxxx, who acknowledged himself to be the vice president of
Xxxx Cargo Systems, Inc., Xxxx Hauling and Warehousing System, Inc., Broadway
Equipment Leasing Corp., Refrigerated Distribution Center, Inc., Oregon Avenue
Enterprises, Inc., Xxxxxxxx Avenue Warehousing Corp., Xxxxxx Xxxxx Ice, Inc.,
Xxxx Cargo Systems of California, Riverfront Development Corporation, 000
Xxxxxxxx Xxxxxx, Xxx., Xxxx Warehousing Company, Marine Information Technology,
Inc., X.X. Xxxxxxxx & Co., Inc., T. & L. Leasing Corp., CRT, Inc., Refrigerated
Enterprises, Inc. and Dockside International Fish Co., Inc. corporations, and
that he as such officer being authorized to do so, executed the foregoing
document dated as of December 31, 1992 for the purposes therein contained by
signing the name of the corporations by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Notary Public
XXXXXXX X. XXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires May 31, 1995
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