Exhibit 10(ii)(iii)
AMENDMENT NO. 4 TO LOAN AND SECURITY AGREEMENT
NANTUCKET INDUSTRIES, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
March 18, 1997
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation ("Lender") and Nantucket Industries, Inc.
("Borrower") have entered into certain financing arrangements pursuant to
which Lender may make loans and advances and provide other financial
accommodations to Borrower as set forth in the Loan and Security Agreement,
dated March 21, 1994, between Lender and Borrower, as amended by Amendment
No. 1 to Loan and Security Agreement, dated May 31, 1996, Amendment No. 2 to
Loan and Security Agreement, dated July 31, 1996, and Amendment No. 3 to Loan
and Security Agreement, dated as of August 15, 1996 (as amended hereby and as
the same may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement," and together with all
agreements, documents and instruments at any time executed and/or delivered
in connection therewith or related thereto, collectively, the "Financing
Agreements").
Borrower has requested that Lender consent to Borrower entering into
certain lease financing arrangements with IBM Credit (as hereinafter
defined), pursuant to which IBM Credit will finance the acquisition of
certain equipment by Borrower to upgrade certain existing Equipment of
Borrower and to permit a lien on such equipment to secure such indebtedness.
Lender is willing to agree to the foregoing, subject to the terms and
conditions contained herein.
In consideration of the foregoing, the respective agreements and
covenants contained herein, and other good and valuable consideration, the
adequacy and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions.
(a) Additional Definitions. As used herein, the following terms
shall have the respective meanings given to them below, and the Loan
Agreement shall be deemed and is hereby amended to include, in addition and
not in limitation, the following definitions:
(i) "IBM Credit" shall mean IBM Credit Corporation, a New York
corporation, and its successors and assigns.
(ii) "IBM Capital Lease Agreement" shall mean the General
Business Lease Agreement, dated as of the date hereof, between IBM Credit and
Borrower, pursuant to which IBM Credit has agreed to finance the acquisition
by Borrower of certain Equipment for the purpose of upgrading certain
existing Equipment, as all of the foregoing Equipment is identified on
Schedule A hereto, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.
(b) Interpretations. For purposes of this Amendment, unless
otherwise defined herein, all terms used herein, including, but not limited
to, those terms used and/or defined above, shall have the respective meanings
assigned to such terms in the Loan Agreement.
2. Encumbrances. Section 9.8(e) of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
"(e) (i) purchase money security interests in Equipment (including
capital leases) and purchase money mortgages on real estate not to exceed
$50,000 in the aggregate at any time outstanding so long as (A) such
security interests and mortgages do not apply to any property of Borrower,
other than the Equipment or real estate so acquired, and (B) the
indebtedness secured thereby does not exceed the cost of the Equipment or
real estate so acquired, as the case may be; and
(ii) the security interests and liens of IBM Credit in Equipment
subject to the IBM Capital Lease Agreement (as in effect on the date of the
execution thereof) not to exceed $218,279 less the aggregate amount of all
repayments in respect thereof, plus charges and fees, so long as (A) such
security interests and liens of IBM Credit do not apply to any property of
Borrower, other than the Equipment specifically identified in the IBM
Capital Lease Agreement (as in effect on the date of the execution thereof)
and (B) the indebtedness secured thereby does
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not exceed the cost of the Equipment acquired pursuant to the IBM Capital
Lease Agreement (as in effect on the date of the execution thereof);"
3. Additional Representations and Warranties. Each of Borrower and
Guarantor represents, warrants and covenants with and to Lender as follows,
which representations, warranties and covenants are continuing and shall
survive the execution and delivery hereof, and the truth and accuracy of, or
compliance with each, together with the representations, warranties and
covenants in the other Financing Agreements, being a continuing condition of
the making of Loans by Lender to Borrower:
(a) The failure of Borrower to comply with the covenants, conditions
and agreements contained herein or in any other agreement, document or
instrument at any time executed and/or delivered by Borrower with, to or in
favor of Lender shall constitute an Event of Default under the Financing
Agreements.
(b) No Event of Default or act, condition or event which with notice
or passage of time or both would constitute an Event of Default exists or has
occurred as of the date of this Amendment (after giving effect to the
amendments to the Financing Agreements made by this Amendment).
(c) This Amendment has been duly executed and delivered by Borrower
and Guarantor and is in full force and effect as of the date hereof and the
agreements and obligations of Borrower and Guarantor contained herein
constitute legal, valid and binding obligations of Borrower and Guarantor
enforceable against Borrower and Guarantor in accordance with their
respective terms.
4. Conditions to Effectiveness of Amendment. The effectiveness of the
other provisions of this Amendment shall be subject to the satisfaction of
each of the following additional conditions precedent:
(a) Lender shall have received, in form and substance satisfactory to
Lender, an executed original or executed original counterparts of this
Amendment, as the case may be;
(b) Lender shall have received a true, correct and complete copy of
the IBM Capital Lease Agreement; and
(c) no Event of Default shall exist or have occurred and no event
shall have occurred or exist which with notice or passage of time or both
would constitute an Event of Default.
5. Effect of this Amendment. Except as modified pursuant hereto, no
other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the
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Financing Agreements are hereby specifically ratified, restated and confirmed
by all parties hereto as of the effective 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.
6. Further Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
7. Governing Law. The validity, interpretation and enforcement of this
Amendment and any dispute arising out of the relationship between the parties
hereto in connection with this Amendment, whether in contract, tort, equity
or otherwise, shall be governed by the internal laws of the State of New York
(without giving effect to principles of conflicts of law).
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 Amendment 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 Amendment, it shall not be
necessary to produce or account for more than one counterpart thereof signed
by each of the parties hereto.
Please sign the enclosed counterpart of this Amendment in the space
provided below whereupon this Amendment as so accepted by Lender, shall
become a binding agreement among Borrower, Guarantor and Lender.
Very truly yours,
NANTUCKET INDUSTRIES, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: VP - Finance
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ACKNOWLEDGED:
NANTUCKET XXXXX, INC.
By: /s/ Xxxxxx Xxxxxxx
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Title: VP
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AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Title: Vice President
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