WAIVER AND AMENDMENT NO. 3
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS WAIVER AND AMENDMENT NO. 3 ("Amendment") is entered into as of
August 14, 2001, by and among Wireless Xcessories Group, Inc. formerly known as
Batteries Batteries, Inc. ("BATS"), Xxxxxx Electronics, Inc. ("TEI"), Specific
Energy Corporation ("SEC"), W.S. Battery & Sales Company, Inc. ("WSBS"), Battery
Network, Inc. ("BN"), Battery Acquisition Corp. ("BAC"), (BATS, TEI, SEC, WSBS,
BN and BAC, each a "Borrower" and collectively the "Borrowers"), IBJ Whitehall
Business Credit Corporation (successor to IBJ Xxxxxxxx Business Credit
Corporation) ("IBJS"), each of the other financial institutions named in the
Loan Agreement or which hereafter become parties thereto (IBJS and such
financial institutions, the "Lenders") and IBJS as agent for the Lenders (IBJS
in such capacity, the "Agent").
BACKGROUND
Borrowers, Agent and Lenders are parties to a Revolving Credit, Term
Loan and Security Agreement dated as of January 7, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and Lenders waive certain Events of
Default and amend certain provisions of the Loan Agreement, and Agent and
Lenders are willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by Agent
and Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 4 below, the Loan Agreement is hereby
amended as follows:
2.1. The following definitions in Section 1.2 are amended in
their entirety to provide as follows:
"Maximum Revolving Advance Amount" shall mean $5,000,000."
"Revolving Interest Rate" shall mean an interest rate per
annum equal to (a) the sum of the Alternate Base Rate plus three quarters of one
percent (.75%) with respect to Domestic Rate Loans, or (b) the sum of the
Eurodollar Rate plus two and one half percent (2.50%) with respect to Eurodollar
Rate Loans."
2.2. The defined term "Maximum Loan Amount" in section 1.2 is
deleted.
2.3. Section 6.5 is amended in its entirety to provide as
follows:
"6.5 Net Worth. Maintain at the end of each fiscal quarter set
forth below a Net Worth of least the amount set opposite such
fiscal quarter end below:
Fiscal Quarter Ending Net Worth
--------------------- ---------
September 30, 2001 $6,500,000
December 31, 2001 and each fiscal quarter $6,700,000"
thereafter
2.4. Section 6.7 is amended in its entirety to provide as
follows:
"6.7 Fixed Charge Coverage Ratio. Maintain as of the end of
each fiscal period set forth below a Fixed Charge Coverage
Ratio of not less than the ratio set opposite such fiscal
period below:
Fiscal Period Fixed Charge Coverage Ratio
------------- ---------------------------
July 1, 2001 - September 30, 2001 1.00 to 1.00
July 1, 2001 - December 31, 2001 1.50 to 1.00
July 1, 2001 - March 31, 2002 1.50 to 1.00
July 1, 2001 - June 30, 2002 1.50 to 1.00
October 1, 2001 - September 30, 2002 1.50 to 1.00
January 1, 2002 - December 31, 2002 1.50 to 1.00"
2.5. Section 6.8 is amended in its entirety to provide as
follows:
"6.8 EBITDA. Maintain as of the end of each fiscal quarter set
forth below, EBITDA of at least the amount set opposite such
fiscal quarter end below:
Fiscal Quarter Ending EBITDA
--------------------- ------
September 30, 2001 $ 55,000
December 31, 2001 $322,000
2.6. A new Section 6.14 is added immediately following Section
6.13 to provide as follows:
"6.14 Undrawn Availability. Maintain Undrawn Availability at
all times of at least $800,000."
2.7. Section 7.6 is amended in its entirety to provide as
follows:
"7.6. Capital Expenditures. Contract for, purchase or make any
expenditure or commitments for fixed or capital assets
(including capitalized leases) in any fiscal quarter in an
amount in excess of (a) $50,000 for each of the third or
fourth fiscal quarter in fiscal year 2001 and (b) $75,000 for
any fiscal quarter in fiscal year 2002 provided, however, if
such expenditures or commitments for any such fiscal quarter
total less than the amount allowed herein, the difference may
be applied to the next fiscal quarter only with such
difference being deemed to be the last expenditures made in
such next fiscal quarter."
2
3. Waiver. Subject to satisfaction of the conditions precedent set
forth in Section 4 below, Lender hereby waives the Events of Default that have
occurred for the fiscal quarter ending June 30, 2001 as a result of Borrowers'
non-compliance with (a) Section 6.7 of the Loan Agreement solely as respects the
failure to maintain the Fixed Charge Coverage Ratio required pursuant to Section
6.7 of the Loan Agreement , and (b) Section 6.8 of the Loan Agreement solely as
respects the failure to maintain the EBITDA required pursuant to Section 6.8 of
the Loan Agreement.
4. Conditions of Effectiveness. This Amendment shall become effective,
when and only when (a) Agent shall have received an original copy of this
Amendment duly executed on behalf of each Borrower and (b) Agent shall receive a
fee in the amount of $5,000 which may be charged to Borrowers' loan account on
the effective date of this Amendment.
5. Revised Article 9. Without limiting the scope of Section 9.15 of the
Loan Agreement, each Borrower hereby agrees to promptly execute and deliver to
Agent any and all documents requested by Agent to maintain the continued
perfection and priority of Agent's security interest in any of the Collateral
after giving effect to Revised Article 9 of the Uniform Commercial Code.
6. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby,
constitute legal, valid and binding obligations of each Borrower and are
enforceable against each Borrower in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower
hereby reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agrees that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) No Borrower has any defense, counterclaim or offset with
respect to the Loan Agreement.
7. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
3
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided in Section 3 operate as a
waiver of any right, power or remedy of Agent or any Lender, nor constitute a
waiver of any provision of the Loan Agreement, or any other documents,
instruments or agreements executed and/or delivered under or in connection
therewith.
8. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
9. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
10. Counterparts. This Amendment may be executed by the parties hereto
in one or more counterparts, each of which shall be deemed an original and all
of which taken together shall be deemed to constitute one and the same
agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
WIRELESS XCESSORIES GROUP, INC.
(formerly known as BATTERIES
BATTERIES, INC.)
XXXXXX ELECTRONICS, INC.
SPECIFIC ENERGY CORPORATION
BATTERY NETWORK, INC.
W.S. BATTERY & SALES COMPANY, INC.
BATTERY ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
----------------------------------
The Chief Financial Officer of each of
the foregoing Corporations
IBJ WHITEHALL BUSINESS CREDIT
CORPORATION, as Agent and as Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title: Vice President
---------------------------------
4
