AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT (this "Amendment") to the Loan and Security Agreement is
entered into as of the 14th day of May, 1998, by and between Drew Shoe
Corporation (the "Borrower"), and Bank One, National Association (the "Bank").
RECITALS:
A. As of September 19, 1997, the Borrower and the Bank executed a certain
Loan and Security Agreement (the "Loan Agreement"), setting forth the terms of
certain extensions of credit to the Borrower; and
B. As of September 19, 1997, the Borrower executed and delivered to the
Bank, inter alia, a revolving note in the original principal sum of Four
Million Five Hundred Thousand Dollars ($4,500,000.00) (hereinafter the
"Revolving Note"); and
C. As of September 19, 1997, the Borrower executed and delivered to the
Bank, inter alia, a commercial loan note in the original principal sum of One
Million Dollars ($1,000,000.00) (hereinafter the "Term Note") (the Revolving
Note and the Term Note are hereinafter collectively referred to as the "Notes");
and
D. In connection with the Loan Agreement and the Notes, the Borrower
executed and delivered to the Bank certain other loan documents, open-end
mortgages, assignment of rents and security agreements, contents, assignments,
security agreements, agreements, instruments and financing statements in
connection with the indebtedness related to in the Loan Agreement (all of the
foregoing, together with the Notes and the Loan Agreement, are hereinafter
collectively referred to as the "Loan Documents"); and
E. The Borrower is currently in default of Section 7.15, "Debt Service
Coverage Ratio," of the Loan Agreement (the "Identified Default"); and
F. The Borrower has required that the Bank amend and modify certain terms
and covenants in the Loan Agreement and waive the Identified Default, and the
Bank is willing to do so upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto for
themselves and their successors and assign do hereby agree, represent and
warrant as follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings ascribed to such terms in the Loan Agreement.
2. The first paragraph of Section 7.15, "Debt Service Coverage Ratio" of
the Loan
Agreement it hereby amended to recite in as follows:
7.15 Debt Service Coverage Ratio. The Borrower shall maintain at all
times specified below a ratio of (a) EBITDA minus expenditures for
fixed or capital assets (whether financed or unfinanced) and
expenditures, including without limitation, costs, of any
acquisition, which should be capitalized in accordance with GAAP for
such period minus payments for federal, state, local and foreign
income taxes ("Adjusted EBITDA") to (b) Debt Service, of not less
than (i) .70 to 1.00 for the period beginning April 1, 1998, and
ending June 30, 1998, (ii) .85 to 1.00 for the period beginning
April 1, 1998, and ending September 30, 1998, (iii) 1.05 to 1.00 for
the period beginning April 1, 1998, and ending December 31, 1998,
(iv) 1.10 to 1.00 for the period beginning April 1, 1998, and ending
March 31, 1999, and (v) 1.25 to 1.00 at all times thereafter. The
ratio of Adjusted EBITDA to Debt Service shall be determined
quarterly for the periods specified above through March 31, 1999,
and thereafter beginning June 30, 1999, and as of the end of each
calendar quarter for the twelve month period ending on such date.
The remainder of Section 7.15 of the Loan Agreement shall remain as originally
written.
3. The Bank hereby waives the Identified Default for the period through
and including March 31, 1998.
4. Conditions of Effectiveness. This Amendment shall become effective as
of May 14th, 1998, upon satisfaction of all of the following conditions
precedent:
(a) The Bank shall have received two duly executed copies of the Amendment
to Loan Agreement and such other certificates, instruments, documents,
agreements, and opinions of counsel as may be required by the Bank, each of
which shall be in form and substance satisfactory to the Bank and its counsel;
and
(b) The representations contained in paragraph 5 below shall be true and
accurate.
5. Representations. The Borrower represents and warrants that after giving
effect to this Amendment (a) each and every one of the representations and
warranties made by or on behalf of the Borrower in the Loan Agreement or the
Loan Documents is true and correct in all respects on and as of the date hereof,
except to the extent that any of such representations and warranties related, by
the expressed terms thereof, solely to a date prior hereto; (b) the Borrower has
duly and properly performed, complied with and observed each of its covenants,
agreements and obligations contained in the Loan Agreement and Loan Documents;
and (c) except for the Identified Default, no event has occurred or is
continuing, and no condition exists which would constitute an Event of Default
or a Pending Default.
6. Amendment to Loan Agreement. (a) Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to "Loan and Security
Agreement," "Loan Agreement,"
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"Agreement," the prefix "herein," "hereof," or words of similar import, and each
reference in the Loan Documents to the Loan Agreement shall mean and be a
reference to the Loan Agreement as amended hereby. (b) Except as modified
herein, all of the representations, warranties, terms, covenants and conditions
of the Loan Agreement, the Loan Documents and all other agreements executed in
connection therewith shall remain as written originally and in full force and
effect in accordance with their respective terms, and nothing herein shall
affect, modify, limit or impair any of the rights and powers which the Bank may
have thereunder. The amendment set forth herein shall be limited precisely as
provided for herein, and shall not be deemed to be a waiver of, amendment of,
consent to or modification of any of the Bank's rights under or of any other
term or provisions of the Loan Agreement, any Loan Document, or other agreement
executed in connection therewith, or of any term or provision of any other
instrument referred to therein or herein or of any transaction or future action
on the part of the Borrower which would require the consent of the Bank,
including, without limitation, waivers of Events of Default which may exist
after giving effect hereto. The Borrower ratifies and confirms each term,
provision, condition and covenant set forth in the Loan Agreement and the Loan
Documents and acknowledges that the agreement set forth therein continue to be
legal, valid and binding agreements, and enforceable in accordance with their
respective terms.
7. Authority. The Borrower hereby represents and warrants to the Bank that
(a) the Borrower has legal power and authority to execute and deliver the within
Amendment; (b) the officer executing the within Amendment on behalf of the
Borrower has been duly authorized to execute and deliver the same and bind the
Borrower with respect to the provisions provided for herein; (c) the execution
and delivery hereof by the Borrower and the performance and observance by the
Borrower of the provisions hereof not violate or conflict with the articles of
incorporation, regulations or by-laws of the Borrower or any law applicable to
the Borrower or result in the breach of any provision of or constitute a default
under any agreement, instrument or document binding upon or enforceable against
the Borrower; and (d) this Amendment constitutes a valid and legally binding
obligation upon the Borrower in every respect.
8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be an
original, but all of which together shall constitute one and the same document.
Separate counterparts may be executed with the same effect as if all parties had
executed the same counterparts.
9. Cost and Expenses. The Borrower agrees to pay on demand in accordance
with the terms of the Loan Agreement all costs and expenses of the Bank in
connection with the preparation, reproduction, execution and delivery of this
Amendment and all other loan documents entered into in connection herewith,
including the reasonable fees and out-of-pocket expenses of the Bank's counsel
with respect thereto.
10. Governing Law. This Amendment shall be governed by and construed in
accordance with the law of the State of Ohio.
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IN WITNESS WHEREOF, the Borrower and the Bank have hereunto set
their hands as of the date first set forth above.
THE BORROWER:
DREW SHOE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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Its: President
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THE BANK:
BANK ONE, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
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Its: Vice President
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CONSENT OF GUARANTOR
The undersigned, being a guarantor of the Borrowers indebtedness to the
Bank pursuant to certain guaranty agreements with the Bank, hereby consents and
agrees to be bound by the terms, conditions and execution of the above Amendment
and hereby further agrees that its obligations shall be continuing as provided
in said guaranty agreements and said guaranty agreements shall remain as written
originally and continue in full force and effect in all respects.
BCAM INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Its: President
--------------------------
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