AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT
AMENDMENT NO. 5 TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as
of October 21, 2005, by and among Xxxxxx International Corp., a Delaware
corporation ("Borrower"), HAPL Leasing Co., Inc. ("HAPL"), Xxxxxx Business
Concepts, LLC ("HBC"), Sedeco, Inc. ("Sedeco") and HTTG, LLC, formerly known as
Hometown Threads, LLC ("HTTG", and together with HAPL, HBC and Sedeco,
individually, each a "Guarantor" and collectively, "Guarantors") and Wachovia
Bank, National Association, successor by merger to Congress Financial
Corporation, a national banking association ("Lender").
W I T N E S S E T H :
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WHEREAS, Lender and Borrower have entered into financing arrangements
pursuant to which Lender has made and may make loans and advances and provide
other financial accommodations to Borrower as set forth in the Loan and Security
Agreement, dated as of November 26, 2002, by and among Lender, Borrower and
Guarantors, as amended by Amendment No. 1 to Loan and Security Agreement dated
as of April 28, 2003, Amendment No. 2 to Loan and Security Agreement dated as of
July 16, 2003, Amendment No. 3 to Loan and Security Agreement dated as of April
30, 2004 and Amendment No. 4 to Loan and Security Agreement dated as of August
25, 2004 (as amended hereby and as the same may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced, the "Loan
Agreement"), and the agreements, documents and instruments at any time executed
and/or delivered in connection therewith or related thereto (collectively,
together with the Loan Agreement, the "Financing Agreements");
WHEREAS, Borrower and Guarantors have requested that Lender amend certain
provisions of the Loan Agreement;
WHEREAS, Lender is willing to agree to such amendments, subject to the
terms and conditions set forth herein; and
WHEREAS, by this Amendment, Lender, Borrower and Guarantors desire and
intend to evidence such amendments;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
and covenants contained herein, the parties hereto agree as follows:
1. Definitions.
(a) Amendments to Definitions. All references to the term "Maturity Date"
in the Loan Agreement and the other Financing Agreements shall be deemed and
each such reference is hereby amended to mean February 28, 2006.
(b) Interpretation. For purposes of this Amendment, unless otherwise
defined herein, all terms used herein, including, but not limited to, those
terms used and/or defined in the recitals above, shall have the respective
meanings assigned to such terms in the Loan Agreement.
2. Early Termination Fee. Section 12.1(c) of the Loan Agreement is hereby
amended by deleting the chart contained in such Section and replacing it with
the following:
"Amount Period
------ ------
(i) Two (2%) percent of the From the date hereof to and including
Maximum Credit the first anniversary of the date
hereof
(ii) One (1%) percent of the From and after the first
anniversary Maximum Credit of the date hereof to and
including January 31, 2006."
3. Additional Representations, Warranties and Covenants. Borrower and each
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
or Letter of Credit Accommodations by Lender to Borrower:
(a) After giving effect to the provisions of this Amendment, no Event of
Default exists or has occurred as of the date of this Amendment.
(b) This Amendment has been duly executed and delivered by Borrower and
each Guarantor and is in full force and effect as of the date hereof and the
agreements and obligations of Borrower and each Guarantor contained herein
constitute legal, valid and binding obligations of Borrower and each Guarantor
enforceable against each of them in accordance with their respective terms.
4. Conditions Precedent. The effectiveness of the amendments contained
herein shall be subject to the receipt by Lender of this Amendment duly
authorized, executed and delivered by the parties hereto.
5. Amendment Fee. In addition to all other fees, charges, interest and
expenses payable by Borrower to Lender under the Loan Agreement and the other
Financing Agreements, Borrower shall pay to Lender, contemporaneously with the
effectiveness of this Amendment, an amendment fee in the amount of $10,000,
which fee shall be fully earned and nonrefundable as of the date hereof and may
be charged to any loan account of Borrower.
6. Effect of this Amendment. Except as expressly set forth herein, no other
amendments, consents, changes or modifications to the Financing Agreements are
intended or implied, and in all other respects the Financing Agreements are
hereby specifically ratified, restated and confirmed by all parties hereto as of
the effective date hereof and Borrower and Guarantors shall not be entitled to
any other or further amendment or consent by virtue of the provisions of this
Amendment or with respect to the subject matter of this Amendment. 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.
7. Governing Law. The validity, interpretation and enforcement of this
Amendment and the other Financing Agreements and any dispute arising out of the
relationship between the parties hereto whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of New York but
excluding any principles of conflicts of law or other rule of law that would
cause the application of the law of any jurisdiction other than the laws of the
State of New York.
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. Headings. The headings listed herein are for convenience only and do not
constitute matters to be construed in interpreting this Amendment.
10. 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. Delivery of an executed counterpart of this Amendment by
telefacsimile shall have the same force and effect as delivery of an original
executed counterpart of this Amendment. Any party delivering an executed
counterpart of this Amendment by telefacsimile also shall deliver an original
executed counterpart of this Amendment, but the failure to deliver an original
executed counterpart shall not affect the validity, enforceability, and binding
effect of this Amendment as to such party or any other party.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their authorized officers as of the day and year
first above written.
WACHOVIA BANK, NATIONAL
ASSOCIATION, successor by
merger to Congress
Financial Corporation
By: Xxxxxx Xxxx
Title: Vice President
XXXXXX INTERNATIONAL CORP.
By: Xxxxxxx Xxxxxx
Title: EVP, CFO
HAPL LEASING CO., INC.
By: Xxxxxxx Xxxxxx
Title: EVP, CFO
SEDECO, INC.
By: Xxxxxxx Xxxxxx
Title: EVP, CFO
XXXXXX BUSINESS CONCEPTS, LLC
By: Xxxxxxx Xxxxxx
Title: EVP, CFO
HTTG, LLC, formerly known as Hometown
Threads, LLC
By: Xxxxxxx Xxxxxx
Title: EVP, CFO
