FIRST AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
EXHIBIT
10.31
FIRST
AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY
AGREEMENT
THIS
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
(this “Agreement”) is made as of the 28th
day of
March, 2008, by and among ARGAN,
INC.,
a
corporation organized and in good standing under the laws of the State of
Delaware, SOUTHERN
MARYLAND CABLE, INC.,
a
corporation organized and in good standing under the laws of the State of
Delaware, VITARICH LABORATORIES, INC., a corporation organized and in good
standing under the laws of the State of Delaware, GEMMA POWER, INC., a
corporation organized and in good standing under the laws of the State of
Connecticut, GEMMA POWER SYSTEMS CALIFORNIA, INC., a corporation organized
and
in good standing under the laws of the State of California, GEMMA POWER SYSTEMS,
LLC, a limited liability company organized and in good standing under the laws
of the state of Connecticut, and GEMMA POWER HARTFORD, LLC, a limited liability
company organized and in good standing under the laws of the State of
Connecticut, jointly and severally (each a “Borrower”; and collectively, the
“Borrowers”) and BANK OF AMERICA, N.A., a national banking association, its
successors and assigns (the “Lender”).
RECITALS
A. Borrowers
and Lender are parties to a Second Amended and Restated Financing and Security
Agreement dated as of December 11, 2006 (the same, as amended, modified,
substituted, extended, and renewed from time to time, the “Financing
Agreement”).
B. The
Financing Agreement provides for some of the agreements between the Borrowers
and the Lender with respect to the Loans.
C. Borrowers
have requested that the Lender amend the Financing Agreement and the Lender
has
agreed to do so, on the condition, among others, that this Agreement be
executed.
AGREEMENTS
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Borrowers and the
Lender agree as follows:
1. Recitals.
Borrowers and Lender agree that the Recitals above are a part of this Agreement.
Unless otherwise expressly defined in this Agreement, terms defined in the
Financing Agreement shall have the same meaning under this
Agreement.
2. Revised
Defined Terms.
The
following definition in Section 1.1 of the Financing Agreement is amended and
restated in its entirety as follows:
“Revolving
Credit Expiration Date”
means
May 31, 2010.
3. Renewal
Fee.
In
consideration of the Lender’s agreement to extend the Revolving Credit Facility
and enter into this Agreement, the Borrowers agree to pay to the Lender at
the
time of the execution and delivery of this Agreement, a loan fee in the amount
of Fifteen Thousand Dollars ($15,000). This fee is considered earned when paid
and is not refundable.
4. Counterparts.
This
Agreement may be executed in any number of duplicate originals or counterparts,
each of such duplicate originals or counterparts shall be deemed to be an
original and all taken together shall constitute but one and the same
instrument. Each Borrower agrees that Lender may rely on a telecopy of any
signature of any Borrower. The Lender agrees that the Borrowers may rely on
a
telecopy of this Agreement executed by the Lender.
5. Representations.
Each
Borrower hereby represents and warrants that:
(a) All
of
the warranties and representations of each Borrower in the Financing Agreement,
as amended hereby, are true and correct on the date of the execution hereof
(except those representations which relate only to a specific date, which are
confirmed as of such date only), and the Borrowers have performed or observed
all of the terms, covenants, conditions and obligations of the Financing
Agreement, which are required to be performed or observed by any or all of
them
on or prior to the date hereof; and
(b) No
Defaults or Event of Default exists under any of the Financing
Documents.
6. Financing
Documents;
Governing Law; Etc.
This
Agreement is one of the Financing Documents defined in the Financing Agreement
and shall be governed and construed in accordance with the laws of the State
of
Maryland. The headings and captions in this Agreement are for the convenience
of
the parties only and are not a part of this Agreement.
7. Acknowledgments.
Each
Borrower hereby confirms to the Lender the enforceability and validity of each
of the Financing Documents. In addition, each Borrower hereby agrees to the
execution and delivery of this Agreement and the terms and provisions, covenants
or agreements contained in this Agreement shall not in any manner release,
impair, lessen, modify, waive or otherwise limit the liability and obligations
of each Borrower under the terms of any of the Financing Documents, except
as
otherwise specifically set forth in this Agreement. Each Borrower issues,
ratifies and confirms the representations, warranties and covenants contained
in
the Financing Documents.
8. Modifications.
This
Agreement may not be supplemented, changed, waived, discharged, terminated,
modified or amended, except by written instrument executed by the
parties.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
IN
WITNESS WHEREOF, each of the parties hereto have executed and delivered this
Agreement under their respective seals as of the day and year first written
above.
|
Borrowers:
WITNESS/ATTEST:
|
ARGAN, INC. | |
| |
|
|
|
/s/
Xxxxxx Xxxxxx
|
By: |
/s/
Xxxxxx Xxxxxxxxxx (Seal)
|
|
|
Name: Xxxxxx Xxxxxxxxxx |
|
| Title: Chairman and CEO | ||
| WITNESS/ATTEST: | SOUTHERN MARYLAND CABLE, INC | |
| |
|
|
| /s/ Xxxxxxx X. Xxxxx | By: | /s/ Xxxxxx Xxxxxx (Seal) |
|
|
Name: Xxxxxx Xxxxxx |
|
| Title: SVP/CFO | ||
| WITNESS/ATTEST | VITARICH LABORATORIES, INC. | |
| |
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
By: |
/s/
Xxxxxx Xxxxxx (Seal)
|
|
|
Name: Xxxxxx Xxxxxx |
|
| Title: CFO | ||
| WITNESS/ATTEST: | GEMMA POWER, INC. | |
| |
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
By: |
/s/
Xxxxxx Xxxxxx (Seal)
|
|
|
Name: Xxxxxx Xxxxxx |
|
| Title: SVP/CFO | ||
|
WITNESS/ATTEST:
CALIFORNIA,
INC.
|
GEMMA POWER SYSTEMS | |
| |
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
By: |
/s/
Xxxxxx Xxxxxx (Seal)
|
|
|
Name: Xxxxxx Xxxxxx |
|
| Title: CFO | ||
| WITNESS/ATTEST: | GEMMA POWER SYSTEMS, LLC | |
| |
|
|
| /s/ Xxxx Xxxxxxxxxx | By: | /s/ Xxxxxxx X. Xxxxxx (Seal) |
|
|
Name: Xxxxxxx X. Xxxxxx |
|
| Title: Manager | ||
| WITNESS/ATTEST: | GEMMA POWER HARTFORD, LLC | |
| |
|
|
|
/s/
Xxxx Xxxxxxxxxx
|
By: |
/s/
Xxxxxxx X. Xxxxxx (Seal)
|
|
|
Name: Xxxxxxx X. Xxxxxx |
|
|
Title:
Manager
|
||
|
Lender:
WITNESS:
|
BANK
OF
AMERICA, N.A.
|
|
| |
|
|
|
/s/
Xxxxxx Xxxxx
|
By: |
/s/
Xxxxxxx X. Xxxxxxxxx (Seal)
|
|
|
|
|
|
Title:
Senior Vice President
|
||
