EXHIBIT 10(MM)
December 19, 2001
Xxxxxx Industries, Inc.
Attention: Xx. Xxxxx X. Xxxxxx
Vice President and Chief Financial Officer
X.X. Xxx 000
Xxxxxxxx, Xxxxxxx 00000
Re: Line of Credit (Account #120435-524769); Loan Agreement dated January
7, 1993, as amended April 5, 1994, February 17, 1995, March 15, 1995,
March 28, 1996, August 28, 1997, January 1, 2000, December 29, 2000,
January 31, 2001, March 15, 2001, May 15, 2001, June 15, 2001,
September 1, 2001, October 15, 2001, October 31, 2001, November 9,
2001, November 19, 2001 and November 26, 2001 (collectively "Loan
Agreement") by and among Xxxxxx Industries, Inc. ("Xxxxxx Industries")
and AmSouth Bank ("the Bank"). In this letter capitalized terms shall
be given the meanings indicated in the Loan Agreement and/or in this
letter.
Dear Xx. Xxxxxx:
I am writing this letter to you concerning the indebtedness ("Indebtedness")
referenced above of Xxxxxx Industries to the Bank and your recent request that
the Loan Agreement be amended to effect an increase in the Borrowing Base and an
extension of the Line of Credit Termination Date. You have also requested a
waiver of certain covenants included in the Loan Agreement.
I. In response to your requests, the Bank hereby amends the Loan Agreement as
follows:
A. The term "Borrowing Base" in Section 1.02 is amended as follows:
"BORROWING BASE" shall mean the amount of Five Hundred Thousand and
No/100 Dollars ($500,000) plus the sum of (a) 80% of the Net Outstanding Amount
of Eligible Accounts, plus (b) 80% of the Net Outstanding Amount of Eligible
Dating Accounts, plus (c) 35% of the collateral value of Eligible Finished Goods
Inventory, plus (d) 28% of the collateral value of Eligible Raw Material
Inventory.
B. The definition of "Line of Credit Termination Date" in Section 1.02
is amended as follows:
LINE OF CREDIT TERMINATION DATE shall mean the
earlier to occur of (a) the date on which an Event of
Default occurs or (b) April 1, 2002 (or such later
termination date as the Borrower and the Lender
hereafter agree on in a written extension agreement
pursuant to Section 3).
Effective as of December 19, 2001, all references in the Loan Documents to the
"Loan Agreement" shall mean the Loan Agreement, as heretofore modified and
amended and as further modified and amended hereby.
In all other respects, the Loan Agreement shall remain in full force and effect
in accordance with its terms.
II. The Bank and Xxxxxx Industries hereby amend the Security Agreement dated
March 22, 2000 by Xxxxxx Industries in favor of the Bank (the "Security
Agreement"), as follows:
A. Section 1.02 is amended by adding the definition of "Equipment" as
follows:
Equipment shall have the meaning assigned to that
term under the Code.
B. Section 2.01 is amended by adding a new clause (g) as follows:
(g) all Equipment of the Borrower.
C. Exhibit D, which sets forth the Permitted Encumbrances affecting the
Property is amended by adding to said exhibit the items listed on Exhibit D-1
attached to this letter agreement.
In all other respects, the Security Agreement shall remain in full force and
effect in accordance with its terms.
In addition to the foregoing, the Bank waives (i) with respect to the fiscal
period ended November 24, 2001, any default or Event of Default arising out of
the Borrower's failure to comply with Sections 8.09, 8.11, 8.12, 8.13 and
8.20(b) of the Loan Agreement and (ii) with respect to the monthly periods ended
October 27, 2001, and November 24, 2001, any default or Event of Default arising
out of Borrower's failure to comply with Section 8.20(a) of the Loan Agreement.
The Bank also hereby releases and terminates any security interest of the Bank
in the one (1) share of Class A Stock in Appliance Manufactures Assurance
Company Risk Retention Group ("AMAC") represented by stock certificate number 11
and the seventy-one thousand forty (71,040) shares of Class B Stock in AMAC
represented by stock certificate number 20 (35,520 shares) and number 23 (35,520
shares), and the Bank shall claim no further lien, security interest or right
therein. The Bank further agrees to deliver the Xxxxxx Industries the said stock
certificates number 11, 20 and 23 hereinabove referenced.
To evidence the acceptance of the foregoing amendments and agreements on the
terms and conditions set forth herein, please sign and return to me the enclosed
copy of this letter agreement. By so signing the enclosed copy of this letter
agreement, Xxxxxx Industries acknowledges and agrees to the following terms and
conditions of such amendments and agreements:
1. This letter agreement shall not be deemed to be an accord and
satisfaction of the Indebtedness or any other obligation owed to the Bank.
2. All collateral that now secures all or any of the Indebtedness shall
continue to secure same. Nothing in this letter agreement diminishes any
security interest or lien that the Bank has in any assets securing the
Indebtedness. All of the collateral, rights, security, and guarantees that the
Bank now has to secure any of the Indebtedness due from Xxxxxx Industries shall
remain in full force and effect and are hereby ratified and confirmed.
3. The Bank reserves all of its rights and remedies under the Loan
Agreement, the Security Documents, any other Loan Documents, and/or applicable
law, in respect of any Event(s) of Default. The current non-exercise by the Bank
of any rights and remedies which it may have shall not constitute a release or
waiver of any of its rights and/or remedies or a release or waiver of any
Event(s) of Default under the Loan Agreement, the Security Documents, or any
other Loan Documents, except for the Waiver provided in this letter agreement.
The Bank specifically reserves the right to invoke any and all rights and
remedies at any time in its sole discretion.
4. Xxxxxx Industries hereby releases, satisfies, cancels, waives,
acquits, and forever discharges the Bank, its directors, officers, employees,
agents, attorneys, successors and assigns, of and from any and all claims,
demands, actions, or causes of action of any kind or character, arising at any
time in the past, up to and including the date of this letter agreement, which
relate or pertain in any way to the Indebtedness and/or collection of them.
5. The Indebtedness is owed by Xxxxxx Industries to the Bank for the
amount (exclusive of outstanding letters of credit, ACH exposures and the Bank's
attorneys fees) herein stated and there are no defenses, setoffs, or
counterclaims with respect thereto:
Payoff as of
General Description Obligation No. 12/19/01
------------------------------------- --------------------------- --------------------------
Line of Credit #524769 $ 5,743,851.39
6. Xxxxxx Industries agrees to pay the Indebtedness strictly and
promptly in accordance with the terms of the applicable promissory notes or
other debt instruments, as specifically modified by the Loan Agreement and this
letter agreement.
7. Xxxxxx Industries shall pay to the Bank a fee in the amount of Five
Thousand and No/100 Dollars ($5,000.00) upon the execution of this letter
agreement.
8. Xxxxxx Industries agrees to pay to the Bank's counsel, Xxxxxx, Xxx &
Xxxx, P.A., on or before January 31, 2002, all of its attorney's fees incurred
in connection with this amendment and/or the collection of the Indebtedness.
Very truly yours,
---------------------------------------
/s/ XXXXXXX XXXXXXXX
Xxxxxxx Xxxxxxxx
Vice President
cc: Xxxxxx X. Xxxxxxxx III, Esq.
S. Dagnal Xxxx, Esq.
ACCEPTED AND AGREED TO BY:
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXX
-------------------------------------------------
Xxxxx X. Xxxxxx
Its Vice President and Chief Financial Officer
EXHIBIT D-1
XXXXXX INDUSTRIES, INC.
ADDITIONAL PERMITTED ENCUMBRANCES
[UCC filings attached.]
