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EXECUTION COPY
SIXTH AMENDMENT, dated as of November 29, 1995 (this
"Amendment"), to the Loan and Security Agreement, dated as of
December 15, 1993 (as heretofore amended, supplemented or otherwise
modified, the "Loan Agreement"), between BankAmerica Business
Credit, Inc. (the "Lender") and Xxxxxxxx'x Inc. (the "Borrower").
W I T N E S S E T H :
WHEREAS, the Lender and the Borrower are parties to the Loan
Agreement;
WHEREAS, the Borrower has requested that the Lender amend
the Loan Agreement to permit additional time for the Borrower to
demonstrate to the Lender that the Borrower has the ability to
repay upon scheduled maturity the Borrower's 14% debentures
maturing January 1, 1996; and
WHEREAS, the Lender is willing to make such amendment but
only on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein have the respective meanings
ascribed thereto in the Loan Agreement.
2. Amendment of Section 11.1 (Events of Default). Section
11.1 of the Loan Agreement is hereby amended by deleting
paragraph (q) thereof in its entirety and substituting therefor
the following:
"(q) (i) the Borrower shall have failed to demonstrate
to the Lender's satisfaction on or prior to December 15,
1995 that the Borrower shall have the ability (other than
through the Borrower's operations after December 15, 1995)
to repay upon scheduled maturity the Borrower's 14%
debentures maturing January 1, 1996, or (ii) the Borrower
shall have failed to provide the Lender on or prior to
December 15, 1995 with projections of monthly financial and
business performance (including balance sheets, statements
of operations, Availability projections and cash flows) for
the period from December 1, 1995 through April 30, 1996 in
form satisfactory to the Lender which confirm to the
Lender's satisfaction that the Borrower will (A) maintain
projected Availability satisfactory to the Lender and (B)
pay all Debt as it matures."
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3. Representations and Warranties. To induce the Lender
to enter into this Amendment, the Borrower hereby represents and
warrants to the Lender as follows, with the same effect as if
such representations and warranties were set forth in the Loan
Agreement:
(a) The Borrower has the corporate power and authority
to enter into this Amendment and has taken or will take all
corporate action required to authorize or ratify its
execution and delivery of this Amendment and its performance
of the Loan Agreement, as amended hereby (as so amended, the
"Amended Agreement"). This Amendment has been duly executed
and delivered by the Borrower and the Amended Agreement
constitutes the valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance
with its terms. The execution, delivery, and performance of
this Amendment and the Amended Agreement by the Borrower
will not violate its certificate of incorporation or by-laws
or any agreement or legal requirement binding on the
Borrower.
(b) On the date hereof and after giving effect to the
terms of this Amendment, (i) the Loan Agreement and the
other Loan Documents are in full force and effect and
constitute the Borrower's binding obligations, enforceable
against the Borrower in accordance with their respective
terms; (ii) no Event or Event of Default has occurred and is
continuing; and (iii) the Borrower does not have any defense
to or setoff, counterclaim or claim against payment of the
Obligations and enforcement of the Loan Documents based upon
a fact or circumstance existing or occurring on or prior to
the date hereof.
4. Effectiveness. This Amendment shall be effective as of
the date first written above upon receipt by the Lender of a
counterpart hereof duly executed by the Borrower.
5. Limited Effect. This Amendment shall be limited solely
to the matters expressly set forth herein and shall not (a)
constitute an amendment of any other term or condition of the
Loan Agreement or of any instrument or agreement referred to
therein or (b) prejudice any right or rights which the Lender may
now have or may have in the future under or in connection with
the Loan Agreement or any instrument or agreement referred to
therein. Except as expressly amended hereby, all of the covenants
and provisions of the Loan Agreement are and shall continue to be
in full force and effect.
6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
7. Counterparts. This Amendment may be executed by the
parties hereto in any number of separate counterparts, each of
which shall be an original, and all of which taken together shall
be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective
proper and duly authorized officers as of the day and year first
above written.
BANKAMERICA BUSINESS CREDIT, INC.
By:
Name:
Title:
XXXXXXXX'X INC.
By:
Name:
Title:
