EXHIBIT 10(d)
November 9, 2001
Xxxxxx Industries, Inc.
Attention: Xx. Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
P.O. Box 128
Florence, Alabama 35631
Re: Line of Credit (Account #120435-524769); Term Loan (Account
#120435-087445 and #120435-087452); Loan Agreement dated January 7,
1993, as amended April 5, 1994, February 17, 1995, March 15, 1995,
March 28, 1996, August 28, 1997, January 1, 2000, December 29, 2000,
January 31, 2001, March 15, 2001, May 15, 2001, June 15, 2001,
September 1, 2001, October 15, 2001 and October 31, 2001 (collectively
"Loan Agreement") by and among Xxxxxx Industries, Inc. ("Xxxxxx
Industries") and AmSouth Bank ("the Bank"). In this letter capitalized
terms shall be given the meanings indicated in the Loan Agreement
and/or in this letter.
Dear Xx. Xxxxxx:
I am writing this letter to you concerning the indebtednesses ("Indebtednesses")
referenced above of Xxxxxx Industries to the Bank and your recent request that
the Loan Agreement be amended to effect certain amendments to the Loan Agreement
by Xxxxxx Industries with certain of the covenants contained therein. In
response to that request, the Bank hereby amends the Loan Agreement as follows:
A. The term "Borrowing Base" in Section 1.02 is amended as
follows:
BORROWING BASE" shall mean, from September 1, 2001 through November 19,
2001, the sum of (a) 90% of the Net Outstanding Amount of Eligible Accounts
other than Eligible Dating Accounts, plus (b) 80% of the Net Outstanding Amount
of Eligible Dating Accounts, plus (c) 35% of the collateral value of Eligible
Finished Goods Inventory, plus (d) 28% of the collateral value of Eligible Raw
Material Inventory. The foregoing notwithstanding, the Borrower shall be
entitled to overadvance the Line of Credit in the amount of Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00) (the "Overadvance Amount") in excess
of the Borrowing Base until the earlier to occur of (i) November 19, 2001, or
(ii) the consummation of the sale of substantially all of the assets
constituting the Broilmaster gas barbeque grill product line of the Borrower.
From November 20, 2001 until the Line of Credit Termination Date, "Borrowing
Base" shall mean the sum of (a) 80% of the Net Outstanding Amount of Eligible
Accounts, plus (b) 80% of the Net Outstanding Amount of Eligible Dating
Accounts, plus (c) 35% of the collateral value of Eligible Finished Goods
Inventory, plus (d) 28% of the collateral value of Eligible Raw Material
Inventory.
Xx. Xxxxx X. Xxxxxx
November 9, 2001
Page 2
B. The definition of "Maximum Line of Credit" in Section 1.02 is
amended as follows:
MAXIMUM LINE OF CREDIT shall mean (a) from the date
hereof until November 19, 2001, the lesser of (i) the
Borrowing Base then in effect and (ii) $9,500,000,
and (b) from November 20, 2001 until the Line of
Credit Termination Date, the lesser of (i) the
Borrowing Base then in effect and (ii) $7,500,000.
C. Effective November 20, 2001, the figure "$15,000,000" that
appears in the fourth line of Section 3.02, which was previously amended to
"$10,000,000", and then further amended to "$11,000,000", and then further
amended to read "$9,500,000", shall be amended to read "$7,500,000".
D. The forms of Borrowing Based Certification to the Bank, as
included as Exhibit A-1 and Exhibit A-2 to the letter agreement amending the
Loan Agreement and Other Loan Documents dated as of September 1, 2001, are
hereby amended and replaced by the forms of Borrowing Based Certification
included as Exhibit A-1 hereto for the period from September 1, 2001 through
November 19, 2001 and Exhibit A-2 hereto from November 20, 2001 until the Line
of Credit Termination Date.
Effective as of November 9, 2001, all references in the Loan Documents to the
"Loan Agreement" shall mean the Loan Agreement, as heretofore modified and
amended and as further modified and amended hereby.
In all other respects, the Loan Agreement shall remain in full force and effect
in accordance with its terms.
To evidence the acceptance of the foregoing amendment on the terms and
conditions set forth herein, please sign and return to me the enclosed copy of
this letter agreement. By so signing the enclosed copy of this letter agreement,
Xxxxxx Industries acknowledges and agrees to the following terms and conditions
of such amendment:
1. This letter agreement shall not be deemed to be an accord and
satisfaction of the Indebtednesses or any other obligation owed to the
Bank.
2. All collateral that now secures all or any of the Indebtednesses shall
continue to secure same. Nothing in this letter agreement diminishes
any security interest or lien that the Bank has in any assets securing
the Indebtednesses. All of the collateral, rights, security, and
guarantees that the Bank now has to secure any of the Indebtednesses
due from Xxxxxx Industries shall remain in full force and effect and
are hereby ratified and confirmed.
3. The Bank reserves all of its rights and remedies under the Loan
Agreement, the Security Documents, any other Loan Documents, and/or
applicable law, in respect of any Event(s) of
Xx. Xxxxx X. Xxxxxx
November 9, 2001
Page 3
Default. The current non-exercise by the Bank of any rights and
remedies which it may have shall not constitute a release or waiver of
any of its rights and/or remedies or a release or waiver of any
Event(s) of Default under the Loan Agreement, the Security Documents,
or any other Loan Documents, except for the Waiver provided in this
letter agreement. The Bank specifically reserves the right to invoke
any and all rights and remedies at any time in its sole discretion.
4. Xxxxxx Industries hereby releases, satisfies, cancels, waives, acquits,
and forever discharges the Bank, its directors, officers, employees,
agents, attorneys, successors and assigns, of and from any and all
claims, demands, actions, or causes of action of any kind or character,
arising at any time in the past, up to and including the date of this
letter agreement, which relate or pertain in any way to the
Indebtednesses and/or collection of them.
5. The Indebtednesses are owed by Xxxxxx Industries to the Bank for the
amounts (exclusive of outstanding letters of credit, ACH exposures and
the Bank's attorneys fees) herein stated and there are no defenses,
setoffs, or counterclaims with respect to any of them:
Payoff as of
General Description Obligation No. 11/08/01
----------------------- ------------------- --------------------
Term Loan #1 #087452 $1,917,828.60
Line of Credit #524769 $6,951,717.38
6. Xxxxxx Industries agrees to pay the Indebtednesses strictly and
promptly in accordance with the terms of the applicable promissory
notes or other debt instruments, as specifically modified by the Loan
Agreement and this letter agreement.
Xx. Xxxxx X. Xxxxxx
November 9, 2001
Page 4
7. Xxxxxx Industries agrees to pay to the Bank's counsel, Xxxxxx, Xxx &
Xxxx, P.A., on or before November 20, 2001, all of its attorney's fees
incurred in connection with this amendment and/or the collection of the
Indebtednesses.
Very truly yours,
/s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Vice President
cc: Xxxxxx X. Xxxxxxxx XXX, Esq.
X. Xxxxxx Xxxx, Esq.
ACCEPTED AND AGREED TO BY:
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Xxxxx X. Xxxxxx
Its Vice President and Chief Financial Officer
EXHIBIT A-1
XXXXXX INDUSTRIES, INC.
BORROWING BASE CERTIFICATION TO AMSOUTH BANK
(For use from September 1, 2001 through November 19, 2001)
Status as of _______________
Pursuant to Section 3.08 of the Loan Agreement originally dated as of
January 7, 1993, as amended, by and between the respective predecessors in
interest of Xxxxxx Industries, Inc. (the "borrower") and AmSouth Bank (the
"Lender"), as of ___________, the Borrower hereby certifies to the Lender as
follows:
1. Net Outstanding Amount of Eligible Accounts
$
-------------
2. 90% of Net Outstanding Amount of Eligible Accounts
$
-------------
3. Net Outstanding Amount of Eligible Dating Accounts
$
-------------
4. 80% of Net Outstanding Amount of Eligible Dating Accounts
$
-------------
5. Collateral value of Eligible Finished Goods Inventory
$
-------------
6. 35% of collateral value of Eligible Finished Goods Inventory
$
-------------
7. Collateral value of Eligible Raw Material Inventory
$
-------------
8. 28% of collateral value of Eligible Raw Material Inventory
$
-------------
9. TOTAL BORROWING BASE $
-------------
10. Maximum Line of Credit Amount $
-------------
11. Amount Outstanding Under Line of Credit $
-------------
12. AMOUNT AVAILABLE UNDER LINE OF CREDIT $
-------------
Borrower:
XXXXXX INDUSTRIES, INC.
By:
------------------------
Its:
-----------------------
EXHIBIT A-2
XXXXXX INDUSTRIES, INC.
BORROWING BASE CERTIFICATION TO AMSOUTH BANK
(For use from November 20, 2001 until the Line of Credit Termination Date)
Status as of _______________
Pursuant to Section 3.08 of the Loan Agreement originally dated as of
January 7, 1993, as amended, by and between the respective predecessors in
interest of Xxxxxx Industries, Inc. (the "Borrower") and AmSouth Bank (the
"Lender"), as of ___________, the Borrower hereby certifies to the Lender as
follows:
1. Net Outstanding Amount of Eligible Accounts
$
-------------
2. 80% of Net Outstanding Amount of Eligible Accounts
$
------------
3. Net Outstanding Amount of Eligible Dating Accounts
$
-------------
4. 80% of Net Outstanding Amount of Eligible Dating Accounts
$
------------
5. Collateral value of Eligible Finished Goods Inventory
$
-------------
6. 35% of collateral value of Eligible Finished Goods Inventory
$
------------
7. Collateral value of Eligible Raw Material Inventory
$
-------------
8. 28% of collateral value of Eligible Raw Material Inventory
$
------------
9. TOTAL BORROWING BASE $
------------
10. Maximum Line of Credit Amount $
------------
11. Amount Outstanding Under Line of Credit $
------------
12. AMOUNT AVAILABLE UNDER LINE OF CREDIT $
------------
Borrower:
XXXXXX INDUSTRIES, INC.
By:
------------------------
Its:
-----------------------
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