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EXHIBIT 10.33
February 24, 1995
Mr. Geoffrey A. Whynot
Treasurer
Kerr Group, Inc.
1840 Century Park East
Los Angeles, CA 90067
Re: Amendment of certain provisions of the Receivables Purchase
Agreement dated as of January 19, 1995, by and between Kerr
Group, Inc. and PNC Bank, National Association.
Dear Mr. Whynot:
Reference is hereby made to that certain Receivables Purchase
Agreement dated as of January 19, 1995 (the "Purchase Agreement") by and
between Kerr Group, Inc. (the "Seller") and PNC Bank, National Association (the
"Purchaser"). All capitalized terms used herein but not defined herein shall
have the meanings ascribed thereto in the Purchase Agreement.
The Seller has requested that Purchaser agree to amend certain
provisions of the Purchase Agreement to, among other things, modify the
conditions precedent to the initial purchase thereunder, as more particularly
set forth below. Subject to the terms and conditions of this letter agreement
(the "Letter Agreement"), the Purchaser is willing to amend the Purchase
Agreement as set forth below.
I. Amendment. Subject to the conditions set forth herein, the
Purchase Agreement is hereby amended as follows:
A. Section 1.1 of the Purchase Agreement is hereby
amended to amend and restate the definition of the term "Maximum Purchaser's
Net Investment" to read as follows:
"Maximum Purchaser's Net Investment" means: (i) for the period
from January 19, 1995 up to and including April
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Mr. Geoffrey A. Whynot
Treasurer
February 24, 1995
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30, 1995, Five Million Dollars ($5,000,000); and (ii)
thereafter, Ten Million Dollars ($10,000,000).
B. Section 3.1 of the Purchase Agreement is hereby
amended to delete clause (p) thereof and to substitute therefore the following:
(p) A letter from Seller to Purchaser, and acknowledged and
accepted in writing by Purchaser, permanently reducing the
line of credit under the PNC Note, together with (i) a
repayment by Seller of the principal amount of the PNC Note
such that the principal balance outstanding under PNC Note is
equal to or less than $5,000,000, or (ii) irrevocable
directions from Seller to Purchaser to pay the PNC Note in an
amount necessary to reduce the outstanding amounts thereunder
to Five Million Dollars ($5,000,000), out of the proceeds of
the sale of Tendered Receivables on the Initial Purchase Date,
or (iii) a combination of the events set forth in clauses (i)
or (ii) above so long as the principal balance outstanding
under the PNC Note is reduced to an amount equal to or less
than $5,000,000;
C. Section 8.1 of the Purchase Agreement is hereby
amended to add a new clause (n) thereto which reads as follows:
(n) The Purchaser shall not have received on or before May 1,
1995, each of the following: (i) a payoff letter from the
Purchaser to Seller, and acknowledged and accepted in writing
by Seller, with respect to the payment in full of the PNC Note
and termination of the related line of credit, and (ii)
evidence of the payment in full of the PNC Note.
II. Miscellaneous.
The amendments and modifications to the Purchase Agreement set
forth in this Letter Agreement above do not and shall not, now or in the
future, either implicitly or explicitly (a) alter, waive or amend, except as
expressly provided in this Letter Agreement, any provision of the Purchase
Agreement, or (b) impair any right or remedy of the Purchaser under the
Purchase
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Mr. Geoffrey A. Whynot
Treasurer
February 24, 1995
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Agreement with respect to any violation of any provision of the Purchase
Agreement. The provisions hereof do not waive, now or in the future,
compliance with any covenant, term or condition to be performed or complied
with nor do they impair any rights or remedies of the Purchaser under the
Purchase Agreement, as amended hereby, with respect to any such violation.
As an inducement to the Purchaser to enter into this Letter
Agreement, the Seller hereby incorporates herein by reference and repeat herein
for the benefit of the Purchaser, each of the representations and warranties
made by the Seller in Article IV of the Purchase Agreement, except that for
purposes hereof such representations and warranties shall be deemed to extend
to and cover this Letter Agreement.
This Letter Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania, without regard or giving effect to principles of
conflict of laws. This Letter Agreement may be executed in any number of
counterparts which, when taken together, shall be one and the same instrument.
The delivery of an executed counterpart signature page to this Letter Agreement
by telecopier shall be as effective as a delivery of an executed original
counterpart hereto.
This Letter Agreement shall be construed in connection with
and as part of the Purchase Agreement, and the Purchase Agreement is hereby
amended, modified and supplemented to include this Letter Agreement. Except as
expressly amended hereby, the Purchase Agreement and each and every
representation, warranty, agreement, covenant, term and condition contained
therein or in any other Receivables Document is specifically ratified and
confirmed. The Seller hereby ratifies and confirms in all respects any grant
of a security interest in property of the Seller pursuant to the Receivables
Documents, and further acknowledges that any such grant of a security interest
shall secure the obligations of the Seller under the Purchase Agreement, as
amended hereby. Nothing in this Letter Agreement shall be deemed or construed
to be a waiver or release of, or a limitation upon, Purchaser's exercise of any
of its rights and remedies under the Purchase Agreement and the other
Receivables Documents, whether arising as a consequence of any Termination
Event which may now exist or otherwise, and all such rights and remedies are
hereby expressly reserved.
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Mr. Geoffrey A. Whynot
Treasurer
February 24, 1995
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All notices, communications, agreements, certificates,
documents or other instruments executed and delivered after the execution and
delivery of this Letter Agreement may refer to the Purchase Agreement without
making specific reference to this Letter Agreement, but nevertheless all such
references shall include this Letter Agreement unless the context requires
otherwise.
From and after the execution of this Letter Agreement by the
Purchaser, all references in the Purchase Agreement and each of the other
Receivables Documents to the Purchase Agreement shall be deemed to be
references to the Purchase Agreement as amended hereby.
This Letter Agreement shall be binding upon the Seller and the
Purchaser and their respective successors and assigns, and shall inure to the
benefit of the Seller and the Purchaser and their respective successors and
assigns (except that Seller shall have no right to assign, voluntarily or by
operation of law, any of their rights hereunder without the prior written
consent, of the Purchaser and provided further that nothing herein is intended
by any party hereto to confer any rights upon any third party as a beneficiary
hereof).
Seller shall pay any costs and expenses of Purchaser incurred
in connection with this Letter Agreement and any other documents or agreements
executed in connection therewith, including attorney's fees and costs.
This Letter Agreement shall become effective on the date on
which (i) the Seller and Purchaser have each executed and delivered to the
other party hereto a counterpart of this letter agreement; and (ii) Purchaser
shall have received the following: (a) a certification from the Seller that its
articles or certificates of incorporation, as certified by the Secretary of
State of the State of Delaware, its by-laws, and its corporate resolutions
relative to the Purchase Agreement, the Other Receivables Documents and the
transactions contemplated thereby, delivered to the Purchaser on or about
January 19, 1995, continue to remain complete and correct and in full force and
effect and have not been amended, supplemented or otherwise modified rescinded
on or after such date, (b) certificates of the
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Mr. Geoffrey A. Whynot
Treasurer
February 24, 1995
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secretaries or assistant secretaries of the Seller certifying the names of the
Persons authorized to sign this Letter Agreement and all other documents,
instruments and certificates delivered hereunder, together with the true
signatures of such Persons; and (c) such other instruments and documents as the
Lender shall reasonably require, all of which shall be satisfactory in form and
content to the Lender and its counsel, Tucker Arensberg, P.C., and (iii) The
following statements are true and correct and the Purchaser shall have received
certificates signed by an authorized officer of the Seller, dated the date
hereof, stating that: (a) no petition by or against the Seller or any
Subsidiary has been filed under the United States Bankruptcy Code or under any
similar act; (b) no material adverse change in the properties, business,
operations, financial condition or prospects of the Seller has occurred which
has not been disclosed to the Purchaser; (c) the Seller has in all material
respects performed all agreements, covenants and conditions required to be
performed on or prior to the date hereof under the Purchaser Agreement and the
other Receivables Documents; and (d) no Potential Termination Event or
Termination Event has occurred and is continuing or exists under the terms of
the Purchase Agreement.
If you agree to the terms and conditions set forth herein, please sign
each of the enclosed letters and return one original to PNC Bank, National
Association, c/o Anthony Trunzo, Vice President, 55 South Lake Avenue, Suite
650, Pasadena, CA 91101.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Anthony L. Trunzo
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Name: Anthony Trunzo
Title: Vice President
Agreed to and accepted this
24th day of February, 1995,
with the intent to be
legally bound hereby.
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Mr. Geoffrey A. Whynot
Treasurer
February 24, 1995
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KERR GROUP, INC.
By: /s/ Geoffrey A. Whynot
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Name: Geoffrey Whynot
Title: Treasurer