Exhibit 4.6
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement ("Third Amendment")
is made effective the 21st day of October, 2002, by and among SOVEREIGN BANK
(the "Bank"), a federally-chartered, SAIF-insured savings institution with
offices at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000; X. X. XXXX
CO., INC. (f/k/a Moro Acquisition Corp.), a Delaware corporation ("X.X. Xxxx
Co."); XXXXX X. and XXXXXXXXXX X. XXXXXX ("Menards," together with X.X. Xxxx Co.
sometimes hereinafter referred to as "Borrowers"), with offices at 000
Xxxxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000; and MORO
CORPORATION, a Delaware corporation ("Guarantor").
BACKGROUND
A. Borrowers and the Bank entered into a Loan and Security Agreement
dated March 31, 2000, as amended (the "Agreement").
B. Borrowers have requested the Bank to change the interest rate on the
Term Loan and the Acquisition Term Loan and the Bank has agreed to change the
interest rate on the Term Loan and the Acquisition Term Loan, all as more
particularly set forth in this Third Amendment.
C. The Bank and Borrowers desire to enter into this Third Amendment to
change the interest rate on the Term Loan and Acquisition Term Loan pursuant to
the terms hereof.
D. The Agreement shall remain in full force and effect, without
modification or amendment, except as specifically set forth below. All terms not
otherwise defined herein shall have the meanings set forth in the Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the aforementioned Background which is
incorporated herein by reference, and in consideration of the terms and
conditions set forth herein, agree as follows:
1. Confirmation of Existing Loans. Borrowers hereby ratify, confirm and
acknowledge that the statements contained in the foregoing Background are true,
accurate and correct and that the Loan Documents, as that term is defined in the
Agreement, are valid, binding and in full force and effect as of the date
hereof. Borrowers further acknowledge, confirm, represent and warrant that they
have no defenses, set-offs, counterclaims, or challenges to or against the
payment of any sums owing under the Loan Documents, or to the enforceability or
validity of the terms thereof. Borrowers further acknowledge, confirm, represent
and warrant that they have no claims, suits or causes of action against the Bank
and hereby remise, release and forever discharge the Bank, its officers,
directors, shareholders, representatives and their successors and assigns, and
any of them, from any claims, causes of action, suits, or demands whatsoever in
law and equity, which they have or may have from the beginning of the world to
the date of this Third Amendment. Neither this Third Amendment nor any of the
documents executed in connection herewith, is in any way intended to constitute
a novation of or to the Loan Documents.
2. Confirmation of Indebtedness. Borrowers confirm and acknowledge that
the outstanding principal balance of the indebtedness as evidenced by the Loan
Documents was One Million One Hundred Seventy-Three Thousand Six Hundred
Ninety-One and 76/100 Dollars ($1,173,691.76) as of August 30, 2002.
3. All references in the Agreement and/or any of the Loan Documents to
"the Agreement" or "this Agreement" shall be understood to refer to the Loan and
Security Agreement, as amended by this Third Amendment, and as the same may
hereafter be amended from time to time. All terms not defined herein shall have
the meanings given to them in the Agreement.
4. Section 2.4 (b) of the Agreement is hereby amended to read in its
entirety as follows:
(b) bearing interest on the unpaid principal amount at an
annual rate equal to the Prime Rate plus one-half percent (.50%);
5. Section 2.6 (b) of the Agreement is hereby amended to read in its
entirety as follows:
(b) bearing interest on the unpaid principal amount at an
annual rate equal to the Prime Rate plus one-half percent (.50%);
6. Representations and Warranties. Borrowers hereby represent and
warrant that, as of the date hereof:
(a) Borrowers have the authority and have taken all action
necessary to enter into this Third Amendment;
(b) The representations and warranties of Borrowers set forth
in Article 4 of the Agreement are true and correct as of the date of this Third
Amendment as if made on the date hereof; and
(c) As of the date of this Third Amendment there does not
exist any Event of Default under the Agreement nor does there exist any event
which with the passage of time, the giving of notice, or both, would constitute
an Event of Default under the Agreement.
7. Certificate(s) of Insurance. Certificate(s) of insurance evidencing
that Borrowers are in compliance with Section 6.10 of the Agreement as of the
date hereof shall be presented to the Bank prior to or concurrently with the
signing of this Third Amendment.
8. Expenses. Borrowers agrees to reimburse the Bank for its
out-of-pocket expenses, including but not limited to attorney's fees and other
costs of preparation and filing concerning this Third Amendment and other
documents as required by law or deemed necessary by Bank, including, but not
limited to, the cost of all lien searches deemed necessary by the Bank. Such
costs and expenses shall be paid simultaneously with the execution of this Third
Amendment and all such expenses hereafter incurred shall be paid within fifteen
(15) days after notice by the Bank.
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9. Additional Events of Default. Without limiting the generality of the
terms and conditions of the Agreement or this Third Amendment, the occurrence of
any one or more of the following events shall constitute additional Events of
Default under the Agreement:
(a) The failure of either Borrower to duly perform or observe
any obligation, covenant or agreement set forth in this Third Amendment;
(b) Any representation or warranty of either Borrower set
forth herein is discovered to be materially untrue as of the date of this Third
Amendment, or any statement, certificate or data furnished by Borrowers to the
Bank heretofore is discovered to be materially untrue as of the date as of which
the facts therein set forth were stated or certified to be true.
10. Inconsistencies and Integration. All of the terms, conditions and
covenants, to the extent not expressly inconsistent with those set forth herein,
of the Agreement or other Loan Documents are incorporated herein by reference
and shall remain in full force and effect unaffected or unaltered by the terms
of this Third Amendment. To the extent there is any inconsistency with the terms
of this Third Amendment and any of the other Loan Documents, the terms of this
Third Amendment shall control.
11. Miscellaneous.
(a) Further Assurances. From time to time Borrowers shall
execute and deliver to the Bank such additional documents and will provide such
additional information as the Bank may reasonably request to carry out the
intent of this Third Amendment.
(b) Governing Law. This Third Amendment, and the rights and
obligations of the parties under this Third Amendment, shall be governed by, and
construed and interpreted in accordance with, the domestic, internal laws, but
not the law of conflicts of law, of the Commonwealth of Pennsylvania.
(c) Binding Effect and Assignment. This Third Amendment shall
inure to the benefit of, and shall be binding upon, the respective successors,
heirs and assigns of the parties hereto. Neither Borrower shall assign any of
its rights or delegate any of its obligations hereunder without the prior
written consent of the Bank.
(d) Severability. If any provision of this Third Amendment
shall be invalid under applicable laws, such invalidity shall not affect any
other provision of this Third Amendment that can be given effect without the
invalid provision, and to this end, the provisions hereof are severable.
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(e) Counterparts and Headings. This Third Amendment may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute but one and the same
instrument. Section headings contained herein are for convenience of reference
only and shall in no way affect or be used to construe or interpret this Third
Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Third
Amendment to Loan and Security Agreement as of the day and year first above
written.
BORROWERS:
X. X. XXXX CO. INC. (f/k/a Moro
Acquisition Corp.)
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, individually, on a joint and
several basis with Xxxxxxxxxx X. Xxxxxx
/s/ Xxxxxxxxxx X. Xxxxxx
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Xxxxxxxxxx X. Xxxxxx, individually, on a
joint and several basis with Xxxxx X. Xxxxxx
SOVEREIGN BANK
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President
The undersigned, Moro Corporation, surety to the Bank with respect to
all obligations of Borrowers to the Bank, has read the above Third Amendment to
Loan and Security Agreement, understands the terms and conditions thereof and
the effect of said Third Amendment on Borrowers and on itself as surety to the
Bank. The undersigned hereby consents to the execution and delivery of the
foregoing Third Amendment to Loan and Security Agreement by Borrowers to the
Bank and further agrees that its guaranty and suretyship of all obligations of
Borrowers to the Bank shall remain in full force and effect undiminished by the
foregoing Third Amendment to Loan and Security Agreement.
The undersigned further acknowledges, agrees, confirms and certifies
that the Surety Agreement to which it is a party remains in full force and
effect, enforceable in accordance with its terms and that it has no defenses,
set-offs or counterclaims to the Bank's full enforcement of the terms of said
agreement.
MORO CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
