AMENDMENT NO. 13 TO LOAN AND SECURITY AGREEMENT
X.X. XXXXXXXXXX & CO., INC.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
As of March 1, 2002
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Congress Financial Corporation ("Lender"), X.X. Xxxxxxxxxx & Co., Inc.
("Borrower"), EFP Corporation ("EFP"), Xxxx Group, Inc. ("Xxxx"), Magnetic
Instruments Corp. ("MIC"), Xxxxxx Trailer Mfg. Co. ("Xxxxxx"), Truck Accessories
Group, Inc. ("TAG"), Raider Industries Inc. ("Raider"), KWS Manufacturing
Company, Inc. ("KWS"), Universal Xxxxxxx, Inc. ("Xxxxxxx"), Xxxxxx Trailer
Financial Corporation ("MTFC") and Xxxxxx Trailer Financial Management, L. P.
("MTF Management", and together with EFP, Xxxx, MIC, Xxxxxx, TAG, Raider, KWS,
Xxxxxxx and MTFC, each individually sometimes referred to herein as a
"Guarantor" and, collectively, "Guarantors") have entered into certain financing
arrangements as set forth in the Loan and Security Agreement, dated as of June
28, 1996, by and among Lender, Borrower and Guarantors, as amended by Amendment
No. 1 to Loan and Security Agreement, dated May 13, 1998, Amendment No. 2 to
Loan and Security Agreement, dated as of June 30, 1998, Amendment No. 3 to Loan
and Security Agreement, dated as of June 24, 1999, Amendment No. 4 to Loan and
Security Agreement, dated as of February 25, 2000, Amendment No. 5 to Loan and
Security Agreement, dated as of March 8, 2000 ("Amendment No. 5 to Loan
Agreement"), Amendment No. 6 to Loan and Security Agreement, dated as of March
17, 2000, Amendment No. 7 to Loan and Security Agreement, dated as of September
29, 2000, Amendment No. 8 to Loan and Security Agreement, dated as of October
31, 2000, Amendment No. 9 to Loan and Security Agreement, dated March 27, 2001,
Amendment No. 10 to Loan and Security Agreement, dated as of June 29, 2001,
Amendment No. 11 to Loan and Security Agreement, dated as of August 14, 2001 and
Amendment No. 12 to Loan and Security Agreement, dated as of December 14, 2001
(and as heretofore amended or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement"),
together with all other agreements, documents, supplements and instruments now
or at any time hereafter executed and/or delivered by any other person, with, to
or in favor of Lender in connection therewith (all of the foregoing, together
with this Amendment and the other agreements and instruments delivered
hereunder, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, collectively, the
"Financing Agreements"). For purposes of this letter, unless otherwise defined
herein,
all capitalized terms used herein, shall have the respective meanings ascribed
to them in the Loan Agreement.
Borrower and Guarantors have requested that Lender enter into certain
amendments to the Loan Agreement. Lender is willing to agree to the foregoing,
subject to the terms and conditions contained herein.
In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment, and other good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, Borrower, Guarantors
and Lender agree as follows:
1. Definitions.
(a) Amendment to Definitions.
(i) All references to "Xxxxxxx Maximum Supplemental Revolving Loan
Limit" shall be deemed, and each such reference is hereby amended to mean, as of
March 1, 2002, the sum of $661,111.00, as reduced on the first day of each
calendar month, commencing, April 1, 2002 to the amount set forth next to such
date below:
Reduction Date Xxxxxxx Maximum Supplemental Revolving Limit
-------------- --------------------------------------------
(A) April 1, 2002 $601,010
(B) May 1, 2002 $540,909
(C) June 1, 2002 $480,808
(D) July 1, 2002 $420,707
(E) August 1, 2002 $360,606
(F) September 1, 2002 $300,505
(G) October 1, 2002 $240,404
(H) November 1, 2002 $180,303
(I) December 1, 2002 $120,202
(J) January 1, 2003 $ 60,101
(K) February 1, 2003 $ - 0-
and at all times thereafter
(ii) All references to "Xxxxxxx Supplemental Revolving Termination
Date" shall be deemed, and each such reference is hereby amended to mean,
February 1, 2003.
(b) Interpretation. For purposes of this Amendment, unless otherwise
defined herein, all capitalized terms used herein, shall have the respective
meanings ascribed to them in the Loan Agreement.
2. Waiver. Notwithstanding anything to the contrary contained in Section 5
of the Loan Agreement, subject to the terms and conditions contained herein,
Lender waives the automatic payment in full (i) of the KWS Supplemental
Revolving Loans through the date hereof as a result
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of the occurrence of the KWS Supplemental Revolving Loan Termination Date solely
by reason of the failure of KWS to maintain a Fixed Charge Coverage Ratio of
..60:1.0 as of the fiscal quarter ended December 31, 2001 and (ii) of the Xxxxxxx
Supplemental Revolving Loans through the date hereof as a result of the
occurrence of the Xxxxxxx Supplemental Revolving Loan Termination Date solely by
reason of the failure of Xxxxxxx to maintain a Fixed Charge Coverage Ratio of
..77:1.0 as of the fiscal quarter ended December 31, 2001.
3. Intercompany Loans.
(a) On or about the date hereof, MIC is making a partial repayment of
an intercompany loan to Borrower pursuant to the Intercompany Loan Documents
between them in the amount of $1,000,000. After giving effect to such
intercompany loan repayment, MIC hereby acknowledges that it is Solvent. For
purposes hereof, the term "Solvent" shall mean, at any time with respect to any
Person, that at such time such Person (i) is able to pay its debts as they
mature and has (and has reason to believe it will continue to have) sufficient
capital (and not unreasonably small capital) to carry on its business consistent
with its current practices as of the date hereof, and (ii) the assets and
properties of such Person at a fair valuation and at their present fair salable
value are greater than the Indebtedness of such Person (and with respect to MIC,
such Indebtedness shall be to the extent of the direct Indebtedness owing by MIC
to Lender pursuant to the Financing Agreements), and including subordinated and
contingent liabilities computed at the amount which, to the best of such
Person's knowledge, represents an amount which can reasonably be expected to
become an actual or matured liability.
(b) Notwithstanding anything to the contrary contained in Section
9.10(m)(ii) of the Loan Agreement, as a one-time accommodation, subject to the
terms and conditions contained herein, Lender hereby consents to an intercompany
loan (as contemplated by Section 9.10(m)) to be made not later than one hundred
eighty (180) days following the date hereof by Borrower to KWS or Xxxxxxx,
pursuant to the Intercompany Loan Documents between them and with the proceeds
of the intercompany loan repayment made by MIC to Borrower described above, in
the aggregate amount of up to $1,000,000, notwithstanding that after giving
effect to such loan, the Indebtedness of KWS and/or Xxxxxxx arising from all
such intercompany loans by Borrower to KWS and/or Xxxxxxx outstanding at such
time shall exceed the amount of the Guarantor Availability of KWS and for
Xxxxxxx; provided, that, each of the following conditions have been satisfied:
(i) after giving effect to such loan, no Event of Default shall exist or have
occurred and no event, act or condition shall have occurred or exist which with
notice or passage of time or both would constitute an Event of Default (after
giving effect to the consent contained herein) and (ii) the receipt by Lender of
an original of this Amendment, duly authorized, executed and delivered by
Borrower and Guarantors.
4. Representations, Warranties and Covenants. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower and Guarantors to Lender pursuant to the other Financing
Agreements, Borrower and Guarantors hereby represent, warrant and covenant with
and to Lender as follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof and shall be
incorporated into and made a part of the Financing Agreements):
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(a) This Amendment has been duly authorized, executed and delivered by
Borrower and each Guarantor, and the agreements and obligations of Borrower and
each Guarantor contained herein constitute legal, valid and binding obligations
of Borrower and each Guarantor enforceable against Borrower and each Guarantor
in accordance with their respective terms.
(b) Neither the execution and delivery of this Amendment, nor the
modifications to the Financing Agreements contemplated by this Amendment shall
violate any applicable law or regulation, or any order or decree of any court or
any governmental instrumentality in any respect or does or shall conflict with
or result in the breach of, or constitute a default in any respect under, any
indenture, including, without limitation, the Senior Note Indenture, or any
material mortgage, deed of trust, security agreement, agreement or instrument to
which Borrower and each Guarantor is a party or may be bound, or violate any
provision of the organizational documents of Borrower and each Guarantor.
(c) All of the representations and warranties set forth in the Loan
Agreement as amended hereby, and the other Financing Agreements, are true and
correct in all material respects, except to the extent any such representation
or warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date.
(d) After giving effect to the amendments to the Loan Agreement
provided in this Amendment, no Event of Default shall exist or have occurred and
no event, act or condition shall have occurred or exist which with notice or
passage of time or both would constitute an Event of Default.
5. Conditions Precedent. The effectiveness of the waiver provided for
herein shall only be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Lender:
(a) no Event of Default shall have occurred and be continuing and no
event shall have occurred or condition be existing and continuing which, with
notice or passage of time or both, would constitute an Event of Default, after
giving effect to the waivers and amendments set forth herein; and
(b) Lender shall have received an original of this Amendment duly
authorized, executed and delivered by Borrower and each Guarantor.
6. Effect of this Amendment. Except for the specific waiver and amendments
expressly set forth herein, no other waiver, changes or modifications to the
Financing Agreements, and no waivers of any provisions thereof are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
date hereof. To the extent of conflict between the terms of this Amendment and
the other Financing Agreements, the terms of this Amendment shall control. The
Loan Agreement and this Amendment shall be read and construed as one agreement.
7. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the
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State of New York (without giving effect to principles of conflicts of laws).
8. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
9. Counterparts. This waiver may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this waiver, it shall not be necessary to
produce or account for more than one counterpart thereof signed by each of the
parties thereto.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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Please sign in the space provided below and return a counterpart of this
Amendment, whereupon this Amendment, as so agreed to and accepted by Lender,
shall become a binding agreement among Borrower, Guarantors and Lender.
Very truly yours,
X.X. XXXXXXXXXX & CO., INC.
By:
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Title:
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AGREED AND ACCEPTED:
CONGRESS FINANCIAL CORPORATION
By:
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Title:
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ACKNOWLEDGED AND CONSENTED TO:
EFP CORPORATION
By:
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Title:
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XXXX GROUP, INC.
By:
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Title:
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[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
MAGNETIC INSTRUMENTS CORP.
By:
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Title:
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XXXXXX TRAILER MFG. CO.
By:
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Title:
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TRUCK ACCESSORIES GROUP, INC.
By:
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Title:
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RAIDER INDUSTRIES INC.
By:
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Title:
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[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
KWS MANUFACTURING COMPANY, INC.
By:
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Title:
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UNIVERSAL XXXXXXX, INC.
By:
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Title:
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XXXXXX TRAILER FINANCIAL CORPORATION
By:
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Title:
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XXXXXX TRAILER FINANCIAL MANAGEMENT, L.P.
By: XXXXXX TRAILER MFG. CO., as General Partner
By:
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Title:
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