AMENDMENT NO. 1 AND JOINDER AGREEMENT
THIS AMENDMENT NO. 1 AND JOINDER AGREEMENT ("Agreement") is entered
into as of May 13, 1997, by and among Batteries Batteries, Inc. ("BATS"),
Xxxxxx Electronics, Inc. ("TEI"), Advanced Fox Antenna, Inc. ("AFA"), Specific
Energy Corporation ("SEC"), W.S. Battery & Sales Company, Inc. ("WSBS"),
Battery Network, Inc. ("BN"), Battery Acquisition Corp. ("BAC"), Cliffco of
Tampa Bay, Inc. (formerly known as Cellular Florida Acquisition, Inc.) ("CTB")
(BATS, TEI, AFA, SEC, WSBS, BN, BAC and CTB, each a "Borrower" and, jointly and
severally, the "Borrowers") and IBJ Xxxxxxxx Bank and Trust Company, as Lender
and Agent (as such terms are hereinafter defined).
BACKGROUND
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BATS, TEI, AFA, SEC, WSBS, BN and BAC, IBJ Xxxxxxxx Bank and Trust
Company ("IBJS"), each of the other financial institutions named in the Loan
Agreement (as hereinafter defined) or which hereafter become parties thereto
(IBJS and such financial institutions, the "Lenders") and IBJS as agent for the
Lenders (IBJS in such capacity, the "Agent") are parties to a Revolving Credit,
Term Loan and Security Agreement dated as of January 7, 1997 (as amended,
supplemented, modified or restated from time to time, the "Loan Agreement")
pursuant to which Lenders and Agent provided Borrowers (other than CTB) with
certain financial accommodations.
Pursuant to an Asset Purchase Agreement dated April 27, 1997 by and
among BATS, Cellular Florida Acquisition, Inc., a wholly owned subsidiary of
BATS ("Sub"), Cliffco of Tampa Bay, Inc. (now known as Xxxxxxxx Communications
and Accessories, Inc.) ("Seller") and Xxxxx Xxxxxxxx, the stockholder of Seller
(the "Purchase Agreement"), Seller sold to Sub and Sub purchased from Seller
certain assets of Seller. Following such acquisition, Sub changed its name to
Cliffco of Tampa Bay, Inc.
BATS, TEI, AFA, SEC, WSBS, BN and BAC have requested that Agent and
Lenders permit CTB to become a Borrower and provide financial accommodations to
CTB under the Loan Agreement and Agent and Lenders are willing to do so on the
terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by Agent
or Lenders and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Joinder.
(a) CTB is hereby added as an additional Borrower under the Loan
Agreement, and all references to "Borrower" or "Borrowers" thereunder shall
henceforth be deemed to include CTB.
(b) CTB hereby adopts the Loan Agreement and each of the Other
Documents and assumes in full, and acknowledges that it is jointly and
severally liable for, the payment, discharge, satisfaction and performance of
all Obligations under the Loan Agreement and the Other Documents. Without
limiting the generality of the foregoing, in order to secure the prompt payment
and performance of the Obligations, CTB hereby assigns, pledges and grants to
Agent for the benefit of Lenders a continuing security interest in and to all
of its Collateral, whether now owned or existing or hereafter acquired or
arising and wheresoever located.
3. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
(a) Section 1.2 is hereby amended by
(i) adding the following defined terms in their appropriate
alphabetical order:
"Amendment No. 1" shall mean Amendment No. 1 and Joinder
Agreement dated as of May __, 1997 among Borrowers,
Lenders and Agent.
"Amendment No. 1 Effective Date" shall mean May __,
1997.
"Amendment No. 1 Projections" shall have the meaning set
forth in Section 5.5(c) hereof.
"CTB" shall mean Cliffco of Tampa Bay, Inc. (formerly
known as Cellular Acquisition, Inc.), a Florida
corporation.
"CTB Acquisition Agreement" shall mean the Asset
Purchase Agreement dated as of April __, 1997 among
BATS, Cellular Florida Acquisition, Inc. (now known as
Cliffco of Tampa Bay, Inc.), Old Cliffco, as seller and
Xxxxx Xxxxxxxx, as Stockholder.
"Old Cliffco" shall mean Cliffco of Tampa Bay, Inc., a
Florida corporation, now known as Xxxxxxxx
Communications and Accessories, Inc.
(ii) amending the following defined term in its entirety to
provide as follows:
"Acquisition Agreement" shall mean collectively, the BN
Acquisition Agreement, the WSBS Acquisition Agreement,
the BAC Acquisition Agreement and the CTB Acquisition
Agreement.
(b) Section 5.5 is amended by adding the following subsection (c)
after the end of subsection (b):
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"(c) The twelve-month cash flow projections of BATS on a
consolidated basis and their projected balance sheets as
of the Amendment No. 1 Effective Date, copies of which
are attached as Exhibit 5.5(c) to Amendment No. 1 (the
"Amendment No. 1 Projections") were prepared by
Borrowing Agent, reflect the consummation of the
transaction contemplated by Amendment No. 1 and the CTB
Acquisition Agreement, are based on underlying
assumptions which provide a reasonable basis for the
projections contained therein."
(c) Section 5.8 is amended by adding after the end of Section
5.8(e) a new Section 5.8(f) which provides as follows:
"(e) After giving effect to the transactions
contemplated by Amendment No. 1 and the Cliffco
Acquisition Agreement, each Borrower will be solvent,
able to pay its debts as they mature, have capital
sufficient to carry on its business and all businesses
in which it is about to engage, and (i) as of the
Amendment No. 1 Effective Date, the fair present
saleable value of its assets, calculated on a going
concern basis, is in excess of the amount of its
liabilities and (ii) subsequent to the Amendment No. 1
Effective Date, the fair saleable value of its assets
(calculated on a going concern basis) will be in excess
of the amount of its liabilities."
(d) Section 5.24 is added after the end of Section 5.23 and
provides as follows:
"5.24. Delivery of CTB Acquisition Agreement. Agent has
received complete copies of the CTB Acquisition
Agreement, including all exhibits, schedules and
disclosure letters referred to therein or delivered
pursuant thereto and all amendments thereto, waivers
relating thereto and other side letters or agreements
affecting the terms thereof. None of such documents and
agreements has been amended or supplemented, nor have
any of the provisions thereof been waived, except
pursuant to a written agreement or instrument which has
heretofore been delivered to Agent."
(e) Section 7.1(a) is amended in its entirety to provide as
follows:
"(a) Enter into any merger, consolidation or other
reorganization with or into any other Person other than
a Borrower or acquire all or a substantial portion of
the assets or stock of any Person other than a Borrower
and other than the assets of Old Cliffco in accordance
with the CTB Acquisition Agreement or permit any other
Person to consolidate with or merge with it other than a
Borrower."
(f) Section 7.12(a) is amended in its entirety to provide as
follows:
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"(a) Form any Subsidiary, except that BATS may form
CTB."
(g) Section 16.3(b) is hereby amended by adding the following
parenthetical immediately after "any Transferee" on the tenth line thereof:
"(other than to a Transferee that is an affiliate or
subsidiary of IBJS)"
(h) Section 16.3(c is amended by adding the following sentence at
the end thereof:
"Without in any manner limiting the foregoing, the
Borrowers specifically consent to the sale, assignment
and/or transfer by IBJS to IBJ Xxxxxxxx Business Credit
Corporation of all or any part of its rights and
obligations under this Agreement and the Other Documents
in its capacity as Agent and as Lender."
(i) Exhibit 2.1(a) is amended in its entirety to provide as set
forth on Exhibit A attached to this Agreement.
(j) Exhibit 2.4 is amended in its entirety to provide as set forth
on Exhibit B attached to this Agreement.
(k) Schedule 4.5 (Equipment and Inventory Locations) is amended by
adding the following at the end thereof:
"(o) 00000 Xxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000 (until 6/30/97)
(p) 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (commencing
7/1/97)"
(l) Schedule 4.15(c) (Location of Executive Offices) is amended by
adding the following at the end thereof:
"(h) Cliffco of Tampa Bay, Inc.
(i) 00000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
(until June 30, 1997)
(ii) 000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
(commencing July 1, 1997)"
(m) Schedule 5.2(a) (States of Qualification/Good Standing) is
amended by adding the following at the end thereof:
"Cliffco of Tampa Bay, Inc. - Florida"
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(n) Schedule 5.2(b) (Subsidiaries) is amended by adding the
following at the end of the first section thereof:
"(e) Cliffco of Tampa Bay, Inc."
(o) Schedule 5.4(b) (Federal Tax Identification Numbers) is amended
by adding the following at the end of the first section thereof:
"(h) Cliffco of Tampa Bay, Inc. -- 00-0000000
(p) Schedule 5.6 (Prior Names) is amended by adding the following
at the end thereof:
"(f) Cliffco of Tampa Bay, Inc. was previously "Cellular
Florida Acquisition, Inc." The amendment to the
Certificate of Incorporation was filed on the Amendment
No. 1 Effective Date. Cliffco of Tampa Bay, Inc. uses the
tradename "Cliffco"."
(q) Schedule 5.9 (Intellectual Property, Source Code, Escrow
Agreements) is amended by adding the following at the end thereof:
""Accessory Solutions for a Wireless World" trademark
registration application file no: 3-11-96, filed: 75/069,921
"Your Phone" trademark registration application, file no:
75/203,707, filed: 11-25-96
"Starter Kit" trademark registration application, file no:
75/227,177, filed: 1-16-97
"Starter Kit 2" trademark registration application, 75/227,178,
filed: 1-16-97
4. Conditions of Effectiveness. This Agreement shall become
effective upon satisfaction of the following conditions precedent:
(i) Agent shall have received in form and substance
satisfactory to Lender four (4) copies of this Agreement duly
executed by each Borrower;
(ii) Agent shall have received in form and substance
satisfactory to Agent an executed Purchase Agreement and all
exhibits and schedules thereto and all other documents and
agreements executed in connection therewith;
(iii) BATS and/or CTB shall have obtained all necessary
consents with respect to each contract, lease, and agreement being
assigned to CTB pursuant to the Purchase Agreement. BATS and CTB
hereby covenant that no conditions to
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effectiveness of the Purchase Agreement shall be waived by BATS or
CTB without Agent's prior written consent;
(iv) Agent shall have received an executed Amended and Restated
Term Note in the form attached hereto as Exhibit A and (b) Amended
and Restated Revolving Credit Note in the form attached hereto as
Exhibit B;
(v) Agent shall have received in form and substance
satisfactory to Agent a Collateral Assignment executed by BATS with
respect to its rights under the Purchase Agreement;
(vi) Each document (including, without limitation, any Uniform
Commercial Code financing statement) required by this Agreement or
under law or reasonably requested by Agent to be filed, registered
or recorded in order to create, in favor of Agent for the ratable
benefit of the Lenders, a perfected security interest in or lien
upon the Collateral owned by CTB shall have been properly filed,
registered or recorded in each jurisdiction in which the filing,
registration or recordation thereof is so required or requested,
and Agent shall have received an acknowledgment copy, or other
evidence satisfactory to it, of each such filing, registration or
recordation and satisfactory evidence of the payment of any
necessary fee, tax or expense relating thereto;
(vii) Agent shall have received a copy of the resolutions in
form and substance reasonably satisfactory to Agent, of the Board
of Directors of (x) CTB authorizing (1) the execution, delivery and
performance of this Agreement and (2) the granting by CTB of the
Liens upon the Collateral, certified by the Secretary or an
Assistant Secretary of CTB as of the date of this Agreement; and
(y) of BATS, TEI, AFA, SEC, WSBS, BN and BAC authorizing (1) the
execution, delivery and performance of this Agreement and (2) the
addition of CTB as a "Borrower" under the Loan Agreement; and, such
certificates shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded as of the
date of such certificate;
(viii) Agent shall have received a copy of the Articles or
Certificate of Incorporation of CTB, and all amendments thereto,
certified by the Secretary of State or other appropriate official
of its jurisdiction of incorporation together with copies of the
By-Laws of CTB certified as accurate and complete by the Secretary
or an Assistant Secretary of CTB;
(ix) Agent shall have received good standing certificates for
CTB dated not more than thirty (30) days prior to the date of this
Agreement, issued by the Secretary of State or other appropriate
official of CTB's jurisdiction of incorporation and each
jurisdiction where the conduct of CTB's business activities or the
ownership of its properties necessitates qualification;
(x) Agent shall have received the executed legal opinions of
Xxxxx,
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Fensterstock, Silverstein, XxXxxxxxx & Xxxx, LLC in form and
substance satisfactory to Agent regarding the due authorization,
enforceability and validity of (i) this Agreement and (ii) the
Purchase Agreement, and the transactions contemplated herein
and therein;
(xi) Agent shall have received in form and substance
satisfactory to Agent, certified copies of CTB's casualty insurance
policies, together with loss payable endorsements on Lender's
standard form of loss payee endorsement naming Agent as loss payee,
and certified copies of CTB's liability insurance policies,
together with endorsements naming Agent as a co-insured;
(xii) Agent shall have received in form and substance
satisfactory to Agent all landlord, mortgagee or warehousemen
agreements for CTB's existing premises at 00000 Xxxxxx Xxxxxx,
Xxxxx, Xxxxxxx and future premises at 000 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx;
(xiii) Agent shall have received the stock certificate issued
by CTB in favor of BATS, along with an executive stock power which
shall be pledged to Agent under and pursuant to the Pledge
Agreement dated January 7, 1997 by and between Agent and BATS;
(xiv) (A) No litigation, investigation or proceeding before or
by any arbitrator or Governmental Body shall be continuing or
threatened against any Borrower or against the officers or
directors of any Borrower (x) in connection with this Agreement or
any of the Transactions contemplated by the CTB Acquisition
Agreement and which, in the reasonable opinion of Agent, is deemed
material or (y) which if adversely determined, would, in the
reasonable opinion of Agent, have a Material Adverse Effect on
Borrowers taken as a whole; and (B) no injunction, writ,
restraining order or other order of any nature materially adverse
to any Borrower, or the conduct of the business of any Borrower, or
inconsistent with the due consummation of this Agreement or the CTB
Acquisition Agreement shall have been issued by any Governmental
Body;
(xv) Agent shall have received an executed Financial Condition
Certificate satisfactory in form and substance to it, certifying
the solvency of Borrowers on a consolidated basis after giving
effect to the transactions contemplated by this Agreement and the
CTB Acquisition Agreement and as to Borrowers' financial resources
and their ability to meet their obligations and liabilities as they
become due;
(xvi) Agent shall have completed Collateral examinations, the
results of which shall be satisfactory in form and substance to
Agent, of the Receivables, Inventory and General Intangibles of CTB
and all books and records in connection therewith;
(xvii) Agent shall have received a copy of the Amendment No. 1
Projections which shall be satisfactory in all respects to Agent;
(xviii) Agent shall have received duly executed agreement(s)
establishing the
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Blocked Account(s) with financial institutions reasonably
acceptable to Agent for the collection or servicing of the
Receivables and proceeds of the Collateral of CTB;
(xix) Agent shall have received any and all Consents necessary
to permit the effectuation of the transactions contemplated by this
Agreement; and, Agent shall have received such Consents and waivers
of such third parties as might assert claims with respect to the
Collateral, as Agent and its counsel shall deem necessary;
(xx) (A) Since January 7, 1997 there shall not have occurred
(x) any material adverse change in the financial condition,
operations, properties or prospects of Borrowers taken as a whole
and Old Cliffco, (y) any material damage or destruction to any of
the Collateral nor any material depreciation in the value thereof
and (z) any event, condition or state of facts which would
reasonably be expected to have a Material Adverse Effect on
Borrowers taken as a whole and Old Cliffco and (B) no
representations made or information supplied to Agent shall have
been proven to be inaccurate or misleading in any material respect;
(xxi) Agent shall have received a closing certificate signed by
the Chief Financial Officer of each Borrower dated as of the date
hereof, stating that (A) all representations and warranties set
forth in the Loan Agreement and the Other Documents are true and
correct in all material respects on and as of such date, (B)
Borrowers are on such date in compliance with all the terms and
provisions set forth in the Loan Agreement and the Other Documents
and (C) on such date no Default or Event of Default has occurred or
is continuing;
(xxii) Agent shall have received a duly executed collateral
assignment of the rights of each of BATS and CTB under the CTB
Acquisition Agreement, in form and substance satisfactory to
Lender;
(xxiii) Agent shall have reviewed all material contracts of CTB
including, without limitation, leases, union contracts, labor
contracts, vendor supply contracts, license agreements and
distributorship agreements and such contracts and agreements shall
be satisfactory in all respects to Agent; and
(xxiv) Agent shall have received such other certificates,
instruments, documents and agreements as may reasonably be required
by Agent or its counsel, each of which shall be in form and
substance satisfactory to Agent and its counsel.
5. Representations and Warranties. Each Borrower hereby
represents and warrants as follows:
(a) This Agreement and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of Borrowers and
are enforceable against Borrowers in accordance with their
respective terms.
(b) Upon the effectiveness of this Agreement, such Borrower
(other than
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CTB) hereby reaffirms and CTB affirms all covenants,
representations and warranties made in the Loan Agreement to the
extent the same are not amended hereby and agrees that all such
covenants, representations and warranties shall be deemed to have
been remade as of the effective date of this Agreement.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Agreement.
(d) Such Borrower has no defense, counterclaim or offset with
respect to the Loan Agreement.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in
the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, and
all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement
shall not operate as a waiver of any right, power or remedy of Lender, nor
constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
7. Governing Law. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns and shall be governed by and construed in accordance with the laws of
the State of New York.
8. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.
9. Counterparts; Telecopied Signatures. This Agreement may be
executed in any number of and by different parties hereto, on separate
counterparts, all of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same agreement. Any
signature delivered by a party by facsimile transmission shall be deemed to be
an original signature hereto.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year first written above.
BATTERIES BATTERIES, INC., as Borrower and
Borrowing Agent
By:
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Title:
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XXXXXX ELECTRONICS, INC., as Borrower
By:
--------------------------------
Title:
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ADVANCED FOX ANTENNA, INC., as Borrower
By:
--------------------------------
Title:
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SPECIFIC ENERGY CORPORATION, as
Borrower
By:
--------------------------------
Title:
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BATTERY NETWORK, INC., as Borrower
By:
--------------------------------
Title:
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W.S. BATTERY & SALES COMPANY, INC., as
Borrower
By:
--------------------------------
Title:
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BATTERY ACQUISITION CORP., as Borrower
By:
--------------------------------
Title:
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CLIFFCO OF TAMPA BAY, INC., as Borrower
(f/k/a Cellular Florida Acquisition, Inc.)
By:
--------------------------------
Title:
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IBJ XXXXXXXX BANK & TRUST COMPANY,
as Agent and Lender
By:
--------------------------------
Title:
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