EXHIBIT 10.(Y)
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "AMENDMENT") is made
and entered into as of the 17th day of January, 2000, by and among XXXXXX
AUTOMOTIVE GROUP, INC., a Louisiana corporation ("BORROWER"), with its principal
place of business at 0000 Xxxxx XxxXxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, the
financial institution(s) listed on the signature pages hereof or which may
become parties hereto and their respective successors and assigns (each
individually a "LENDER" and collectively "LENDERS") and XXXXXX FINANCIAL, INC.,
a Delaware corporation (in its individual capacity, "XXXXXX", and as Agent for
itself and the Lenders, the "AGENT"), with offices at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000, for itself as a Lender and as Agent.
RECITALS
A. Borrower, Agent and Lenders have entered into that certain Loan and
Security Agreement (the "ORIGINAL AGREEMENT"), dated as of March 10, 1999, as
amended by that First Amendment to Loan and Security Agreement (the "FIRST
AMENDMENT", together with the Original Agreement, the "LOAN AGREEMENT"), dated
as of April 27, 1999.
B. Borrower, Agent and Lenders, desire to amend the Loan Agreement, as
hereinafter set forth, subject to the terms and conditions set forth herein
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENT
AMENDMENT TO SECTION 2.2(A). Effective as of January 14, 2000, SECTION
2.2(A) shall be deleted in its entirety and replaced with the following:
(A) Rate of Interest. The Loans and all other Obligations shall bear
interest from the date such Loans are made or such other Obligations
become due to the date paid at a rate per annum equal to (i) in the case
of Base Rate Loans and Obligations for which no other interest rate is
specified, the Base Rate plus (a) 0.75% with respect to the Revolving Loan
and other Obligations for which no other interest rate is specified, (b)
1.25% with respect to Term Loan A-1 and A-2 and (c) 1.5% with respect to
Term Loan B, and (ii) in the case of LIBOR Loans, LIBOR plus (a) 3.00%
with respect to the Revolving Loan, (b) 3.5% with respect to Term Loan A-1
and A-2 and (c) 3.75% with respect to Term Loan B (collectively the
"Interest Rate"). Subject to the provisions of subsection 2.1(D), Borrower
shall designate to Agent whether a Loan shall be
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a Base Rate or LIBOR Rate Loan at the time a Notice of Borrowing is given
pursuant to subsection 2.1(D). Such designation by Borrower may be changed
from time to time pursuant to subsection 2.2(F). If on any day a Loan or a
portion of any Loan is outstanding with respect to which notice has not
been delivered to Agent in accordance with the terms of this Agreement
specifying the basis for determining the rate of interest or if LIBOR has
been specified and no LIBOR quote is available, then for that day that
Loan or portion thereof shall bear interest determined by reference to the
Base Rate.
After the occurrence and during the continuance of an Event of
Default (i) the Loans and all other Obligations shall, at the option
of Requisite Lenders, bear interest at a rate per annum equal to 2%
plus the applicable Interest Rate (the "Default Rate"), (ii) each
LIBOR Loan shall automatically convert to a Base Rate Loan at the
end of any applicable Interest Period and (iii) no Loans may be
converted to LIBOR Loans.
ARTICLE III
CONDITIONS PRECEDENT
The effectiveness of this Amendment is subject to the satisfaction of the
following conditions precedent, unless specifically waived in writing by Agent
and each Lender:
(a) Agent and each Lender shall have received the following, in form
and substance satisfactory to Agent and each Lender (unless waived or the
satisfaction delayed by Agent in writing):
(i) this Amendment, duly executed by Borrower;
(ii) company general certificate certified by the Secretary or
Assistant Secretary of Borrower acknowledging (A) that Borrower's
Board of Directors met prior to or on the date hereof and at that
time adopted, approved, consented to and ratified resolutions which
authorize the execution and delivery by such Borrower of this
Amendment, and (B) the names of the officers of Borrower authorized
to sign this Amendment together with specimen signatures of such
officers;
(iii) a copy of the resolutions of Borrower authorizing (A)
the execution, delivery and performance of this Amendment, and (B)
the consummation of the transactions contemplated by this Amendment,
all certified by the Secretary or Assistant Secretary of such
Borrower; and
(iv) such additional documents, instruments and information as
Agent or any Lender or their respective legal counsel may request.
(b) The representations and warranties contained herein, in the Loan
Agreement, as amended hereby, and in the other Loan Documents, shall be
true and correct as of the date hereof, as if made on the date hereof.
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(c) No Default or Event of Default shall have occurred and be
continuing which Agent shall not have waived in writing.
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments
and other legal matters incident thereto shall be satisfactory to Agent,
each Lender, and their respective legal counsel.
ARTICLE IV
NO WAIVER
Nothing contained in this Amendment shall be construed as a waiver by
Agent or any Lender of any covenant or provision of the Loan Agreement, the Loan
Documents, this Amendment, or of any other contract or instrument between
Borrower and Agent or any Lender, and the failure of Agent or any Lender at any
time or times hereafter to require strict performance by Borrower of any
provision thereof shall not waive, affect or diminish any right of Agent or any
Lender to thereafter demand strict compliance therewith. Agent and Lenders
hereby reserve all rights granted under the Loan Agreement, the Loan Documents,
this Amendment and any other contract or instrument between Borrower and Agent
or any Lender.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower and Agent and each Lender agree that
the Loan Agreement and the other Loan Documents, as amended hereby, shall
continue to be legal, valid, binding and enforceable in accordance with their
respective terms.
5.02 REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Borrower hereby
represents and warrants to Agent and each Lender that (a) the execution,
delivery and performance of this Amendment and any and all other Loan Documents
executed and/or delivered in connection herewith have been authorized by all
requisite corporate action on the part of Borrower and will not violate the
Articles of Incorporation or Bylaws of Borrower; (b) the representations and
warranties contained in the Loan Agreement, as amended hereby, and any other
Loan Documents, as amended hereby (including this Amendment), are true and
correct on and as of the date hereof and on and as of the date of execution
hereof as though made on and as of each such date; (c) no Default or Event of
Default under the Loan Agreement, as amended hereby, has occurred and is
continuing unless waived in writing by Agent and Lenders; and (d) Borrower is in
full compliance with all covenants and agreements contained in the Loan
Agreement and the other Loan Documents, as amended hereby.
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ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in the Loan Agreement or any other Loan Documents, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Agent or any Lender or any closing shall
affect the representations and warranties or the right of Agent or any Lender to
rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and the other
Loan Documents (including this Amendment), and any and all other agreements,
documents or instruments now or hereafter executed and delivered pursuant to the
terms hereof or pursuant to the terms of the Loan Agreement, as amended hereby,
are hereby amended (unless the context clearly requires otherwise) so that any
reference in the Loan Agreement and such other Loan Documents to the Loan
Agreement shall mean a reference to the Loan Agreement as amended hereby.
6.03 EXPENSES OF AGENT AND LENDERS. As provided in the Loan Agreement,
Borrower agrees to pay on demand; and hereby authorizes and confirms Agent's
right to make a Loan under the Loan Agreement to pay when due, all costs and
expenses incurred by Agent or any Lender in connection with the preparation,
negotiation and execution of this Amendment executed pursuant hereto and any and
all amendments, modifications, and supplements thereto, including, without
limitation, the costs and fees of Agent's and any Lender's legal counsel, and
all costs and expenses incurred by Agent and each Lender in connection with the
enforcement or preservation of any rights under the Loan Agreement, as amended
hereby, or any other Loan Documents, including, without, limitation, the costs
and fees of Agent's and each Lender's legal counsel.
6.04 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of Agent and each Lender and Borrower and their respective
successors and assigns, except that Borrower may not assign or transfer any of
their rights or obligations hereunder without the prior written consent of Agent
and Lenders.
6.06 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by Agent
or any Lender to or for any breach of or deviation from any covenant or
condition by Borrower shall be deemed a consent to or waiver of any other breach
of the same or any other covenant, condition or duty.
6.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
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6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT, AS AMENDED HEREBY, AND THE OTHER
LOAN DOCUMENTS REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. NEITHER THE
LOAN AGREEMENT AS AMENDED HEREBY NOR THE OTHER LOAN DOCUMENTS, MAY BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND
AGENT AND EACH LENDER.
6.11 RELEASE. BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "INDEBTEDNESS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES
OF ANY KIND OR NATURE FROM AGENT OR ANY LENDER. BORROWER HEREBY VOLUNTARILY AND
KNOWINGLY RELEASES AND FOREVER DISCHARGES AGENT AND EACH LENDER, THEIR
RESPECTIVE PREDECESSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, FROM ALL CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,
EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW, OR REASONABLY EXPECT
HEREAFTER TO, HAVE AGAINST AGENT AND EACH LENDER, THEIR RESPECTIVE PREDECESSORS,
OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND
IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING,
WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING
OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN
DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
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IN WITNESS WHEREOF, this Amendment has been executed and is effective as
of the date first above-written.
BORROWER: LENDERS:
XXXXXX AUTOMOTIVE GROUP, INC. XXXXXX FINANCIAL, INC.
By: /S/ XXXXXXX X. XXXXXX By: /S/ XXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXX Name: XXXXX X. XXXXXXX
Title: CEO, CHAIRMAN Title: ASSISTANT VICE PRESIDENT
FEIN: 00-0000000
FINOVA CAPITAL CORPORATION
By:
Name:
Title:
BANK ONE, TEXAS, N.A.
By: /S/ XXXXX X. XXXXXX
Name: XXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT
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