As of March 10, 1993
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Re: Third Amendment to Financing Agreements
Dear Gentlemen:
Reference is made to the Accounts Financing Agreement [Security Agreement]
between Congress Financial Corporation ("Congress") and I.C. Xxxxxx & Co.
L.P. ("Borrower") dated as of June 16, 1992 (the "Accounts Agreement") and
all supplements thereto, and all other agreements, documents and instruments
related thereto and executed in connection therewith including, the Covenant
Supplement to Accounts Financing Agreement [Security Agreement] ("Covenant
Supplement") and the Inventory and Equipment Security Agreement Supplement to
Accounts Financing Agreement [Security Agreement] ("Inventory and Equipment
Security Agreement"), as each is amended by the Amendment to Financing
Agreements dated October 30, 1992 and Second Amendment to Financing
Agreements dated as of January 4, 1993, as the same now exists or may
hereafter be further amended, modified, supplemented, extended, renewed,
restated or replaced (collectively, the "Financing Agreements"). Capitalized
terms used herein, unless otherwise defined herein shall have the meaning set
forth 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. Supplemental Loans. Section 2.1 of the Accounts Agreement, as amended
by the Second Amendment, 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 percent (80%) 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). Subject to the terms
and conditions hereof, you
may also, in your discretion, make loans to us from time to time, at our
request, of up to $1,000,000 in excess of such lending formula until July
29, 1993, subject to reduction thereof as hereafter set forth, (the
"Supplemental Loans"); provided, however, the maximum aggregate
outstanding amount of such Supplemental Loans shall not exceed the lesser
of (a) $1,000,000 and (b) the sum of (i) fifty percent (50%) of the
aggregate "Value" (as hereinafter defined) of our first quality (A)
imported finished goods Inventory (as such term is defined in the
Inventory and Equipment Security Agreement), (B) imported raw materials
Inventory and (C) imported raw materials Inventory which has been
manufactured in the United States into finished goods Inventory, provided,
however, in each such cash such Inventory is held by us for manufacturing
and/or resale in our current selling season and is acceptable to you in
all respects, plus (ii) up to five percent (5%) of the Net Amount of
Eligible Accounts. "Value" shall mean the lower of (a) cost computed on a
first-in-first-out basis or (b) market price, as determined by you.
Notwithstanding anything to the contrary contained herein the outstanding
balance of Supplemental Loans shall be repaid in full on July 30, 1993."
2. Fee. In partial consideration of the amendments to the Financing
Agreements as set forth herein, Borrower agrees to pay Congress a fee in an
amount equal to $7,500, payable simultaneously with the execution hereof,
which fee is fully earned as of the date hereof. At Congress' option,
Congress may charge such fee directly to Borrower's loan account.
3. Inventory Reports. In addition to any reports or appraisals as to
Inventory which Borrower is currently required to deliver to Congress
pursuant to the Financing Agreements, Borrower shall deliver to Congress, not
less than once a week, a report of its first quality imported raw materials
Inventory, imported finished goods Inventory and imported raw materials
Inventory that has been converted into finished goods Inventory, all in a
form satisfactory to Congress.
4. 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
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Borrower with respect to this Amendment, except as specifically set forth
herein. This Amendment represents the final agreement between the parties and
may not be contradicted by evidence or prior, contemporaneous or subsequent
oral agreements of the parties.
5. 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.
6. 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.
7. 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 & CO. L.P.
By: ISBUYCO, INC., General Partner
By: /s/ Xxxxxx X. Xxxx
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Title: CEO
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Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Title: AVP
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Acknowledged:
/s/ Xxxxxx X. Xxxxx
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/s/ Xxxx Xxxxxxxx
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