EXHIBIT 10.7(B)
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SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement ("Second Amendment")
dated this 30th day of July, 1998 and effective as of May 26, 1998, by and
among Eagle Supply, Inc., a Florida corporation (the "Borrower"), and Fleet
Capital Corporation, a Rhode Island corporation and successor in interest to
Barclays Business Credit, Inc. ("Lender").
BACKGROUND
A. On December 23, 1994, the Lender and the Borrower entered into a
certain Loan and Security Agreement (as amended by a certain Amendment to
Loan and Security Agreement dated May 4, 1998, the "Agreement") to reflect
certain financing arrangements between the parties thereto (the "Existing
Financing Arrangements").
B. The parties have agreed, subject to the terms and conditions of this
Second Amendment, to modify and amend the Existing Financing Arrangements.
NOW THEREFORE, with the foregoing background hereinafter deemed
incorporated by reference herein and made part hereof, the parties hereto,
intending to be legally bound, promise and agree as follows:
1. AMENDMENTS TO LOAN AND SECURITY AGREEMENT
A. The definition of "Borrowing Base" in Appendix A to the Agreement is
modified to delete clause (i) therefrom and replace the same with the
following new clause (i):
"(i) Ten Million Nine Hundred Thousand Dollars ($10,900,000), or"
B. The definition of "Applicable Inventory Sublimit" in Appendix A to
the Agreement is deleted in its entirety and replaced by the following new
definition:
"APPLICABLE INVENTORY SUBLIMIT - An amount equal to Four Million
Dollars ($4,000,000)."
C. The definition of "Total Credit Facility" in Appendix A to the
Agreement is deleted in its entirety and replaced by the following new
definition:
"TOTAL CREDIT FACILITY - Ten Million Nine Hundred Thousand Dollars
($10,900,000)."
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The parties reconfirm that the aggregate amount of all outstanding
Loans (including without limitation the Revolving Credit Loans and the
Equipment Loan) shall not at any time exceed the amount of the Total Credit
Facility.
2. CONDITIONS PRECEDENT
This Second Amendment shall not be effective until the following
conditions have been met to the sole satisfaction of Lender (all documents to
be in form and substance acceptable to Lender):
A. Borrower and TDA Industries, Inc. shall have executed and delivered
to Lender this Second Amendment; and
B. Borrower shall deliver a Secretary's Certificate of corporate
resolutions approved by Borrower's Board of Directors with respect to this
Second Amendment as well as any other documents, instruments or agreements
required hereunder or requested by Lender.
3. REAFFIRMATION OF AGREEMENT
Except as expressly modified herein, Borrower hereby affirms all
representations and warranties set forth in the Existing Financing
Arrangements as of this date and warrants and represents that all such
representations and warranties are true, accurate and complete in all
respects as of this date and that such warranties and representations are
hereby deemed applicable to this Second Amendment and that no Event of
Default exists under the Existing Financing Arrangements or would exist with
the passage of time, giving of notice or both.
4. INCORPORATION OF EXISTING FINANCING DOCUMENTS
The parties acknowledge and agree that this Second Amendment is
incorporated into and made part of the Existing Financing Agreements, the
terms and provisions of which, unless expressly modified herein, or unless no
longer applicable by their terms, continue unchanged and in full force and
effect. To the extent that any term or provision of this Second Amendment is
or may be deemed expressly inconsistent with any term or provision in the
Existing Financing Agreement, the term and provision hereof shall control.
5. PAYMENT OF EXPENSES
Borrower shall pay or reimburse Lender for its reasonable attorneys' fees
and expenses in connection with the preparation, negotiation and execution of
this Second Amendment and the documents provided for herein or related hereto.
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6. MISCELLANEOUS
A. CAPITALIZED TERMS. All capitalized terms not otherwise defined
herein shall have the meanings as set forth in the Agreement.
B. THIRD PARTY RIGHTS. No rights are intended to be created hereunder
for the benefit of any third party donee, creditor or incidental beneficiary.
C. HEADINGS. The headings of any paragraph of this Second Amendment are
for convenience only and shall not be used to interpret any provision hereof.
D. OTHER INSTRUMENTS. Borrower agrees to execute any other documents,
instruments and writings in form satisfactory to Lender as Lender may
reasonably request to carry out the intentions of the parties hereunder.
E. MODIFICATIONS. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf
of the party against whom enforcement is sought.
F. GOVERNING LAW. The terms and conditions of this Second Amendment
shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned parties have executed this Second
Amendment to Loan and Security Agreement the day and year first above written.
EAGLE SUPPLY, INC. FLEET CAPITAL CORPORATION
("Borrower") ("Lender")
By: /s/ Illegible By: /s/ Illegible
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Title: Treasurer Title: VP
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Attest:
By: /s/ Illegible
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Asst. Secretary
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TDA Industries, Inc., in its capacity as surety pursuant to that certain
Guaranty Agreement dated as of December 23, 1994, hereby approves this Second
Amendment and reconfirms that such Guaranty Agreement remains in full force
and effect and covers all Obligations of Borrower to Lender.
TDA INDUSTRIES, INC.
By: /s/ Illegible
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Title: Treasurer
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Attest:
By: /s/ Illegible
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Asst. Secretary
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