August , 1996
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Thirteenth Amendment to Financing Agreements
Gentlemen:
Reference is made to the Accounts Financing Agreement [Security Agreement]
between Congress Financial Corporation ("Congress") and I.C. Xxxxxx & Company
L.P. ("Borrower") dated as of June 16, 1992, as amended (the "Accounts
Agreement") and all supplements thereto, and all other agreements, documents
and instruments related thereto and executed in connection therewith
(collectively, all of the foregoing, as the same now exist or may hereafter
be further amended, modified, supplemented, extended, renewed, restated or
replaced, the "Financing Agreements"). Capitalized terms used herein, unless
otherwise defined herein, shall have the meaning set in the Financing
Agreements.
Borrower has requested certain modifications to the Financing Agreements
and Congress is willing to agree to such modifications, subject to the terms
and conditions set forth herein.
In consideration of the foregoing, and the mutual agreements and
covenants contained herein and for other good and valuable consideration,
Borrower and Congress hereby agree as follows:
1. Definitions. For purposes of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used and/or defined in the recitals hereto, shall have the
respective meanings assigned to such terms in the other Financing Agreements.
2. Accounts Advances. Section 2.1 of the Accounts Agreement, as
amended, is hereby deleted in its entirety and replaced with the following:
"2.1 You shall, in your discretion, make loans to us from time
to time, at our request, of up to eighty (80%) percent of the Net Amount of
Eligible Accounts (or such greater or lesser percentage thereof as you shall
in your sole discretion determine from time to time); provided, that, for the
period May 1, 1996 through August 31, 1996, you shall, in your discretion,
make loans to us from time to time, at our request, of
up to eighty-five (85%) percent of the Net Amount of
Eligible Accounts (or such greater or lesser percentage
thereof as you shall in your sole discretion as
determined from time to time)."
3. Supplemental Loans.
(a) In addition to the loans and advances which
may be made by Congress to Borrower pursuant to the lending
formulas set forth in the Financing Agreements, upon the request
of Borrower made at any time and from time to time during the
period April 1, 1996 to August 31, 1996, Congress shall, subject
to the terms and conditions contained in the Financing
Agreements, make supplemental loans to Borrower in such amounts
from time to time as Congress shall in good faith determine, in
its discretion, of up to $1,000,000 in excess of the amounts
otherwise available to Borrower under the lending formulas set
forth in the Financing Agreements, as calculated by Congress (the
"Supplemental Loans").
(b) The Supplemental Loans shall be secured by
all Collateral and shall be payable ON DEMAND. In any event,
unless sooner demanded by Congress, all outstanding and unpaid
obligations arising pursuant to the Supplemental Loans
(including, but not limited to, principal, interest, fees, costs
and expenses) shall automatically, without notice or demand, be
absolutely and unconditionally due and payable in cash or other
immediately available funds on August 31, 1996.
4. Inventory Loans. During the period from May 1,
1996 through August 31, 1996, and only for such period, Section 2
of the letter re: Inventory Loans, dated December 31, 1994, by
Borrower in favor of Congress (the "Inventory Loan Letter") is
hereby amended by replacing the reference to "fifty (50%)
percent" with "sixty (60%) percent".
5. Conditions Precedent. The effectiveness of the
amendments to the Financing Agreements provided for herein shall
only be effective upon the satisfaction of each of the following
conditions precedent in a manner satisfactory to Congress:
(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; and
(b) Congress shall have received, in form and
substance satisfactory to Congress, an original of this
Amendment, duly authorized, executed and delivered by Borrower,
Xxx Xxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxx Xxxxxxxxx, Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxx.
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6. Effect and Entirety of this Amendment. Except as specifically
modified pursuant hereto, no other changes or modifications to the Financing
Agreements are intended or implied and, in all other respects, the Financing
Agreements are hereby ratified and confirmed by all parties hereto as of the
date hereof. This Amendment represents and incorporates the entire
understanding and agreements of the parties with respect to the matters set
forth herein and the parties hereto agree that there are no representations,
warranties, covenants or understandings of any kind, nature or description
whatsoever made by Congress to Borrower with respect to this Amendment, except
as specifically set forth herein. This Amendment represents the final
agreement between the parties as to the subject matter hereof and may not be
contradicted by evidence or prior, contemporaneous or subsequent oral
agreements of the parties.
7. Waiver, Modification, Etc. No provision or term hereof may
be modified, altered, waived, discharged or terminated orally, but only by an
instrument in writing executed by the party against whom such modification,
alteration, waiver, discharge or termination is sought.
8. Further Assurances. The parties hereto shall execute and
deliver such additional documents and take such additional action as may be
necessary to effectuate the provisions and purposes of this Amendment.
9. Counterparts. This Amendment may be executed in one or more
counterparts which, taken together, shall constitute the agreement of the
parties.
Very truly yours,
I.C. XXXXXX & COMPANY L.P.
By: I.G. DESIGN, INC.,
formerly known as Isbuyco, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxx
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Title: President
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Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: Xxxx X. Xxxxxx
------------------------
Title: Asst. Vice President
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ACKNOWLEDGED:
/s/ Xxx Xxxxxxx by Xxxx Xxxxxxx as Attorney-in-Fact
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