EXHIBIT 10.81
[11/6/00]
As of November 7, 2000
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: TWENTIETH AMENDMENT TO FINANCING AGREEMENTS (THIS "AMENDMENT")
Ladies and Gentlemen:
Reference is made to the Accounts Financing Agreement [Security
Agreement] between Congress Financial Corporation ("Congress") and I.C. Xxxxxx &
Company L.P. ("Borrower") dated as of June 16, 1992, as amended (the "Accounts
Agreement"), the Covenant Supplement to Accounts Agreement between Congress and
Borrower, dated June 16, 1992, as amended (the "Covenant Supplement"), and all
supplements thereto, and all other agreements, documents and instruments related
thereto and executed in connection therewith (collectively, all of the
foregoing, as the same now exist or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, 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. NET WORTH COVENANT.
(a) Subject to the terms and conditions contained herein,
Congress hereby waives the Event of Default that has occurred arising under
Section 4.12 of the Covenant Supplement as a result of any failure of Borrower
to maintain Net Worth in the amounts required thereunder from June 30, 2000
through and including September 30, 2000.
(b) Congress has not waived and is not by this Amendment
waiving, and has no intention of waiving, any other Event of Default, which may
have occurred prior to the date hereof, or may be continuing on the date hereof
or any Event of Default which may occur after the date hereof, whether the same
or similar to the Events of Default described above or otherwise, other than the
Event of Default described in Section 1(a) hereof. Congress reserved
the right, in its discretion, to exercise any or all of its rights and remedies
arising under the Financing Agreements, applicable law or otherwise as a result
of any other Events of Default that may have occurred before the date hereof, or
are continuing on the date hereof, or any Event of Default that may occur after
the date hereof, whether the same or similar to the Event of Default described
above or otherwise, including any Event of Default pursuant to the failure of
Borrowers to comply with Section 4.13 of Covenant Supplement at any time after
September 30, 2000.
(c) Effective as of September 30, 2000, Section 4.13 of the
Covenant Supplement is hereby deleted in its entirety and replaced with the
following:
"4.13 NET WORTH. Borrower shall at all times maintain Net
Worth of not less than $24,000,000 from September 30, 2000
through and including December 31, 2000 and at all times
thereafter."
2. AMENDMENT FEE. In consideration of the foregoing, Borrower agrees to
pay Congress a fee for entering into this Amendment in the amount of $15,000,
which shall be fully earned on the date hereof and due and payable on the date
of execution hereof. Such fee may be charged by Congress to any loan account of
Borrower maintained by Congress under the Financing Agreements.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. In addition to the
continuing representations, warranties and covenants heretofore or hereafter
made by Borrower to Congress pursuant to the other Financing Agreements,
Borrower hereby 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 shall be incorporated into and
made a part of the Financing Agreements):
(a) This Amendment and each other agreement or instrument to be
executed and delivered by Borrower hereunder have been duly authorized, executed
and delivered by all necessary action on the part of Borrower which is a party
hereto and thereto and, if necessary, the limited partners of Borrower and/or
the stockholders of the General Partner of Borrower, and is in full force and
effect as of the date hereof, and the agreements and obligations of Borrower
contained herein and therein constitute legal, valid and binding obligations of
Borrower enforceable against them in accordance with their terms.
(b) All of the representations and warranties set forth in the
Loan Agreement and the other Financing Agreements, each as amended hereby, are
true and correct in all material respects on and as of the date hereof as if
made on the date hereof, except to the extent any such representation or
warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date.
(c) As of the date hereof, and after giving effect to the
provisions of this Amendment, no Event of Default, and no condition or event
which with notice or passage of time or both would constitute an Event of
Default, exists or has occurred and is continuing.
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4. CONDITIONS PRECEDENT. The effectiveness of the amendments to the
Financing Agreements provided for herein shall only be effective upon the
satisfaction of each of the following conditions precedent in a manner
satisfactory to Congress:
(a) no Event of Default shall have occurred and be continuing
and no event shall have occurred or condition be existing and continuing which,
with notice or passage of time or both, would constitute an Event of Default,
after giving effect to the waivers and amendments set forth herein; and
(b) Congress shall have received, in form and substance
satisfactory to Congress, an original of this Amendment, duly authorized,
executed and delivered by Borrower, Xxxxxx Xxxxx, and Xxxxxx Xxxxxxxxx.
5. EFFECT OF THIS AMENDMENT. Except as expressly provided herein, no
other waivers, consents 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 the 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.
6. FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional actions as may be necessary
to effectuate the provisions and purposes of this Amendment.
7. GOVERNING LAW. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the laws of the State of New York (without giving effect to principles of
conflicts of laws).
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8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
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 thereto.
Very truly yours,
I.C. XXXXXX & COMPANY L.P.
By: I.C. XXXXXX & COMPANY, INC.
By: /S/ Xxxxxx X. Xxxxx
______________________________________
Title: Chairman and CEO
___________________________________
Agreed and Accepted:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxx Xxxxxx
________________________________
Title: First Vice President
__________________________
CONSENTED TO:
/s/ Xxxxxx X. Xxxxx
___________________________________
Xxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxxxx
___________________________________
Xxxxxx Xxxxxxxxx
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