EXHIBIT 10.13
AMENDMENT NO. 2
TO LOAN AND SECURITY AGREEMENT
BETWEEN UTILX CORPORATION AND
FINOVA CAPITAL CORPORATION
This AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made as of March 1, 2000, by and between FINOVA CAPITAL CORPORATION
("FINOVA") and UTILX CORPORATION ("Borrower"), in light of the following:
WHEREAS, Borrower and FINOVA entered into a Loan and Security Agreement
dated April 20, 1999 (as amended from time to time, the "Loan Agreement";
Capitalized terms used herein shall have the meanings set forth in the Loan
Agreement unless specifically defined herein); and
WHEREAS, Borrower and FINOVA wish to amend the Loan Agreement as set
forth herein.
NOW THEREFORE, in consideration of the mutual promises and agreements
of the parties hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Subsection (i) in Section 9.1(b) of the Loan Agreement is
deleted in its entirety and replaced with the following:
(i) on a monthly basis, with FINOVA's standard form collateral
and loan report and, upon FINOVA's request, copies of sales journals,
cash receipt journals, and deposit slips;
2. The INTEREST AND FEES section on pages 2 and 3 of the Schedule is
deleted in its entirety and replaced with the following:
REVOLVING INTEREST RATE. Borrower shall pay FINOVA interest on
the daily outstanding balance of Borrower's Revolving Credit Loans at a
per annum rate of .5% in excess of the rate of interest announced
publicly by Citibank, N.A., (or any successor thereto), from time to
time as its "prime rate" (the "PRIME RATE") which may not be such
institution's lowest rate. The interest rate chargeable hereunder in
respect of the Revolving Credit Loans (herein, the "REVOLVING INTEREST
RATE") shall be increased or decreased, as the case may be, without
notice or demand of any kind, upon the announcement of any change in
the Prime Rate. Each change in the Prime Rate shall be effective
hereunder on the first day following the announcement of such change.
Interest charges and all other fees and charges herein shall be
computed on the basis of a year of 360 days and actual days elapsed and
shall be payable to FINOVA in arrears on the first day of each month.
3. The TERM section on page 8 of the Schedule is deleted in its
entirety and replaced with the following:
The term of this Agreement shall be from the date hereof until April
20, 2002, and shall be automatically renewed for successive periods of
one (1) year each (each, a "RENEWAL
TERM"), unless earlier terminated as provided in Sections 7 or 9.2
above or elsewhere in this Agreement.
4. The TERMINATION FEE section on page 8 of the Schedule is deleted in
it entirety and replaced with the following:
(A) REVOLVING CREDIT LOAN FACILITY. The Termination Fee applicable to
the Revolving Credit Loans facility provided for in Section 9.2(d)
shall be an amount equal to the following percentage of the Revolving
Credit Limit:
(i) three percent (3%), if such early termination occurs on or
prior to April 20, 2000;
(i) two percent (2%), if such early termination occurs after
April 20, 2000.
No Termination Fee shall be due if, after January 20, 2001, Borrower
pays all of the Obligations in full from the proceeds of a conventional
loan from a federally insured U.S. Commercial Bank.
5. Borrower reaffirms, ratifies and confirms its Obligations under the
Loan Agreement, acknowledges that all the terms and conditions in the Loan
Agreement (except as amended herein) remain in full force and effect and further
acknowledges that the security interest granted to FINOVA in the Collateral is
valid and perfected.
6. Other than those Events of Default or potential Events of Default
waived by this Amendment, Borrower is not aware of any events which now
constitute, or with the passage of time or the giving of notice would
constitute, an Event of Default under the Loan Agreement.
7. This Amendment constitutes the entire agreement of the parties in
connection with the subject matter of this Amendment and cannot be changed or
terminated orally. All prior agreements, understandings, representations,
warranties and negotiations regarding the subject matter hereof, if any, are
merged into this Amendment.
8. This Amendment may be executed in counterparts, each of which when
so executed and delivered shall be deemed an original, and all of such
counterparts together shall constitute but one and the same agreement.
9. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF
ARIZONA.
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By: /s/ Xxx Xxxxx
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Print Name: Xxx Xxxxx
Title/Capacity: Vice President
UTILX CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Print Name: Xxxxxxx X. Xxxxxxxxx
Title/Capacity: President & Chief Executive Officer
REAFFIRMATION OF VALIDITY GUARANTIES AND LOAN DOCUMENTS
The undersigned (the "Validity Guarantors") hereby acknowledge and agree to the
amendment of the Loan Agreement contained in this Amendment, acknowledge and
reaffirm their obligations owing to FINOVA under the Validity Support Agreements
and any other Loan Documents to which they are parties, and agree that such
Validity Support Agreements and Loan Documents are and shall remain in full
force and effect. Although the Validity Guarantors have been informed of the
matters set forth herein and have acknowledged and agreed to same, the Validity
Guarantors understand that FINOVA has no obligation to inform the Validity
Guarantors of such matters in the future or to seek the Validity Guarantors'
acknowledgment or agreement to future amendments or waivers, and nothing herein
shall create such a duty.
/s/ Xxxxx Xxxxx Xxxxxx
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XXXXX XXXXXX
Senior Vice President &
Chief Financial Officer
/S/ Xxxxxxx X. Xxxxxxxxx
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XXXXXXX XXXXXXXXX
President &
Chief Executive Officer
