Exhibit 10.10
AMENDMENT NO. 9 TO LOAN AND SECURITY AGREEMENT
XXXXXXXX SCOTSMAN, INC.
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
January 31, 1997
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
Congress Financial Corporation, a California corporation (together
with its successors and assigns, "Lender") and Xxxxxxxx Scotsman, Inc., a
Maryland corporation (together with its successors and assigns, "Borrower") have
entered into certain financing arrangements pursuant to the Loan and Security
Agreement, dated as of December 16, 1993, between Lender and Borrower, as
amended pursuant to Amendment No. 1 to Loan and Security Agreement, dated June
15, 1994, Amendment No. 2 to Loan and Security Agreement, dated as of September
14, 1994, Amendment No. 3 to Loan and Security Agreement, dated March 24, 1995,
Amendment No. 4 to Loan and Security Agreement, dated as of March 28, 1995, and
Amendment No. 5 to Loan and Security Agreement, dated as of August 1, 1995,
Amendment No. 6 to Loan and Security Agreement, dated as of October 13, 1995,
Amendment No. 7 to Loan and Security Agreement, dated as of January 30, 1996 and
Amendment No. 8 to Loan and Security Agreement, dated September 30, 1996 (as
amended hereby and as the same may be further amended, modified, supplemented,
extended, renewed, restated or replaced, the "Loan Agreement", and together with
all agreements, documents and instruments at any time executed and/or delivered
in connection therewith or related thereto, collectively, the "Financing
Agreements").
Borrower has requested that the line of credit provided by Lender to
Borrower be increased and various other amendments to the Loan Agreement, and
Lender is willing to agree to such increase and other amendments, subject to the
terms and conditions contained herein. By this Amendment, Lender and Borrower
desire and intend to evidence such amendment.
In consideration of the foregoing and the agreements and covenants
contained herein, the parties hereto agree as follows:
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1. Definitions.
1.1. Additional Definition. "Amendment No. 9" shall mean this
Amendment No. 9 to Loan and Security Agreement by and between Borrower and
Lender.
1.2. Amendments to Definition.
(a) All references to the term "Acquisition Loan Limit" in
the Loan Agreement or any of the other Financing Agreements shall be deemed, and
each such reference is hereby amended to mean the amount equal to $110,000,000
or such lesser amount then in effect with respect thereto pursuant to the terms
of Sections 2.6 or 2.7 of the Loan Agreement.
(b) All references to the term "Maximum Credit" in the Loan
Agreement or any of the other Financing Agreements shall be deemed, and each
such reference is hereby amended to mean the amount equal to $140,000,000 or
such lesser amount then in effect with respect thereto pursuant to the terms of
Sections 2.6 or 2.7 of the Loan Agreement.
1.3. Interpretation. All capitalized terms used in this
Amendment, unless otherwise defined herein, shall have the respective meanings
assigned thereto in the Loan Agreement.
2. Sublimits. Sections 2.6(d)(ii) and 2.6(d)(iii) of the Loan
Agreement are hereby deleted in their entirety and the following substituted
therefor:
"(ii) in no event shall the Working Capital Loan Limit, the
Acquisition Loan Limit or the Swing Loan Limit exceed $20,000,000,
$110,000,000 or $10,000,000, respectively, and
(iii) in the event of an increase in the Maximum Credit, the
corresponding increases in the Working Capital Loan Limit, Acquisition
Loan Limit and the Swing Loan Limit shall be in such amounts so as to
maintain the same proportion of each such limit to the Maximum Credit
as in effect on the date of Amendment No. 9."
3. Name Change. Borrower hereby confirms to Lender that Borrower has
changed its name from "The Scotsman Group, Inc." to "Xxxxxxxx Scotsman, Inc.,"
effective as of January 1, 1997 and all references to Borrower in the Loan
Agreement and the other Financing Agreements shall refer to Xxxxxxxx Scotsman,
Inc., a Maryland corporation, formerly known as The Scotsman Group, Inc., and
its successors and assigns.
4. Line Increase Fee. In consideration of the amendments set forth
herein, Borrower shall pay to Lender a line increase fee in the amount of
$25,000, which fee shall be fully earned and payable as of the date hereof.
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5. Conditions Precedent for Amendment. The effectiveness of the
amendments contained herein shall be subject to the satisfaction of each of the
following, in a manner satisfactory to Lender and its counsel:
5.1. Lender shall have received, in form and substance
satisfactory to Lender, evidence that Borrower and Mobile have obtained all
required consents or approvals of any persons other than Lender to the terms and
conditions provided for herein;
5.2. Lender shall have received this Amendment No. 9 to Loan and
Security Agreement duly authorized, executed and delivered by the parties
hereto; and
5.3. no Event of Default, or event, act or condition which with
notice or passage of time or both would constitute an Event of Default, shall
exist or have occurred.
6. Effect of this Amendment. Except as modified pursuant hereto, no
other changes 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 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. The Loan Agreement and this Amendment shall be read and construed as
one agreement.
7. Further Assurances. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Amendment.
8. 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 internal laws (as opposed to the conflicts of law provisions) of the
State of New York.
9. Binding Effect. This Amendment shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
10. Headings. The headings listed herein are for convenience only and
do not constitute matters to be construed in interpreting this Letter Agreement.
11. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
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to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
Please sign the enclosed counterpart of this Amendment in the space
provided below, whereupon this Amendment, as so accepted by Lender, shall become
a binding agreement between Borrow and Lender.
Very truly yours,
XXXXXXXX SCOTSMAN, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx
Title: Vice President Fleet & Finance
AGREED:
CONGRESS FINANCIAL CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
Title: Vice President
ACKNOWLEDGED AND AGREED:
MOBILE FIELD OFFICE COMPANY
By: /s/ Xxxx X. Xxxx
------------------------------
Xxxx X. Xxxx
Title: Secretary
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