AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Amendment to the Loan and Security Agreement ("Amendment") dated
this 4th day of May, 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 (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 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:
AMENDMENTS TO LOAN AND SECURITY AGREEMENT
A. Lender agrees to make an Equipment Loan to Borrower on the date
hereof in the principal amount of $900,000, which shall be repaid in
successive monthly installments in accordance with the terms of the Equipment
Note. The Equipment Loan shall be repaid in full upon the earlier to occur
of the scheduled maturity set forth in the Equipment Note, the end of the
Original Term or any Renewal Term, or the termination of the Agreement. All
obligations of Borrower in connection with the Equipment Loan shall
constitute "Obligations" for all purposes of the Agreement and shall be
secured by all of the Collateral.
B. At Borrower's election interest shall accrue on the outstanding
principal balance of the Equipment Loan outstanding at the end of each day
(i) in the case of Base Rate Loans, at a fluctuating rate per annum equal to
the Base Rate plus the Applicable Interest Rate Margin with respect to Base
Rate Loans and (ii) in the case of LIBOR Rate Loans, at the LIBOR Rate plus
the Applicable Interest Rate Margin with respect to LIBOR Rate Loans. In the
case of Base Rate Loans, the rate of interest shall increase or decrease by
an amount equal to any increase or decrease in the Base Rate, effect as of
the opening of business on the day that any such change in the Base Rate
occurs.
C. Section 3.3 is hereby amended and restated as follows:
3.3 Mandatory Prepayments
"3.3.1 Except for dispositions of Inventory permitted by
Section 8.2.7, if Borrower sells any of the Collateral or if any of the
Collateral is lost or destroyed or taken by condemnation, Borrower shall pay
to Lender, unless otherwise agreed to by Lender, or as otherwise expressly
authorized by this Agreement, as and when received by Borrower and as a
mandatory prepayment of the outstanding Loans, until paid and satisfied in
full, a sum equal to the proceeds (including insurance proceeds) received by
Borrower from such sale, loss or destruction. Any such prepayment shall be
applied first to the Equipment Loan (in the inverse order of maturity) and
then to the Revolving Credit Loans; provided that if such Loan is accruing
interest at the LIBOR Based Rate, such prepayment shall be delivered to
Lender as and when received by Borrower but applied at the end of the
applicable Interest Period."
D. The Equipment Note shall constitute a "Note" and the Equipment Loan
shall constitute a "Loan" for all purposes of the Loan Agreement.
E. Section 4.1 of the Agreement is amended and restate as follows:
"4.1 Term of Agreement. Subject to Lender's right to
cease making Loans to Borrower upon or after the
occurrence of any Default or Event of Default, this
Agreement shall be in effect for the period from the
date hereof through and including July 8, 2002 (the
"Original Term"), and this Agreement shall
automatically renew itself for one (1) year periods
thereafter (the "Renewal Terms"), unless (a) the
party which elects not to renew this Agreement gives
at least one hundred and eighty (180) days written
notice thereof to the other party prior to the
expiration of the Original Term (or the then current
Renewal Term, as the case may be) or (b) this
Agreement shall be sooner terminated as provided in
Section 4.2 hereof."
CONDITIONS PRECEDENT
This 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):
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A. Borrower and TDA Industries, Inc. shall have executed and delivered
to Lender this Amendment;
B. Borrower shall have executed and delivered to Lender an Equipment
Note; and
C. Borrower shall deliver to Lender any other documents, instruments
or agreements required hereunder or requested by Lender.
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 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.
INCORPORATION OF EXISTING FINANCING DOCUMENTS
The parties acknowledge and agree that this 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 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.
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 Amendment and the documents provided for herein or related
hereto.
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 Amendment are for
convenience only and shall not be used to interpret any provision hereof.
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D. Other Instruments. Borrower agrees to execute any other document,
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 modifications 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 Amendment shall be
governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned parties have executed this
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: CEO Title: VP
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Attest:
By: /s/ Illegible
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Secretary
TDA Industries, Inc., in its capacity as surety pursuant to that certain
Guaranty Agreement dated as of December 23, 1994, hereby acknowledges that
the Equipment Loan constitutes an Obligation for all purposes of the Guaranty
Agreement.
TDA INDUSTRIES, INC.
By: /s/ Illegible
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Title: CEO
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Attest:
By: /s/ Illegible
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Secretary
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EQUIPMENT NOTE
$900,000 May 4, 1998
FOR VALUE RECEIVED, and intending to be legally bound, Eagle Supply, Inc.
("Borrower") hereby promises to pay to the order of Fleet Capital
Corporation, a Rhode Island corporation ("Lender"), in such coin or currency
of the United States which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, the maximum principal sum
of Nine Hundred Thousand Dollars ($900,000.00), or such lesser sum which
represents the aggregate unpaid principal balance hereunder, together with
interest from and after the date hereof on the unpaid principal balance
outstanding at the rates per annum set forth in the Loan Agreement (as
defined below). Interest shall be computed in the manner provided in Section
2 of the Loan Agreement.
This Equipment Note (the "Note") is issued pursuant to that certain Loan
and Security Agreement between Borrower and Barclays Business Credit, Inc.
dated as of December 23, 1994, as amended from time to time, (the "Loan
Agreement"), and is entitled to all of the benefits and security of the Loan
Agreement. All of the terms, covenants and conditions of the Loan Agreement
and the Security Documents are hereby made a part of this Note and are deemed
incorporated herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the meanings ascribed
to them in the Loan Agreement.
The principal amount and accrued interest of this Note shall be due and
payable on the dates and in the manner hereinafter set forth:
(i) Interest on the outstanding principal balance shall be due and
payable monthly, in arrears, on the first day of each month, commencing on
June 1, 1998, and continuing until such time as the full principal balance,
together with all other amounts owing hereunder, shall have been paid in
full.
(ii) The principal amount hereunder shall be due and payable in equal
consecutive monthly installments of principal based on an 75 month
amortization schedule, on the first day of each calendar month commencing
on June 1, 1998.
(iii) The entire remaining principal amount then outstanding under this
Note, together with any and all other amounts due hereunder, shall be due
and payable upon the earlier to occur of August 1, 2004 or the end of the
Original Term or any Renewal Term of the Loan Agreement.
Notwithstanding the foregoing, the entire unpaid principal balance and
accrued interest on this Note shall be due and payable immediately upon
acceleration of the Obligations following an Event of Default under the Loan
Agreement or termination of the Loan Agreement pursuant to Section 4 thereof.
Borrower may also terminate the Loan Agreement and, in connection with
such termination, prepay this Note in the manner and subject to the
conditions provided in Section 4 of the Loan Agreement.
Upon the occurrence of an Event of Default, Lender shall have all of the
rights and remedies set forth in Section 10 of the Loan Agreement.
Time is of the essence under this Note. To the fullest extent permitted
by applicable law, Borrower, for itself and its legal representatives,
successors and assigns, expressly waives presentment, demand, protest, notice
of dishonor, notice of non-payment, notice of maturity, notice of protest,
presentment for the purpose of accelerating maturity, diligence in collection,
and the benefit of any exemption or insolvency laws.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or remaining
provisions of this Note. No delay or failure on the part of Lender in the
exercise of any right or remedy hereunder shall operate as a waiver thereof,
nor as an acquiescence in any default, nor shall any single or partial
exercise by Lender of any right or remedy preclude any other right or remedy.
Lender, at its option, may enforce its rights against any Collateral securing
this Note without enforcing its rights against Borrower or any other property
or indebtedness due or to become due to Borrower. Borrower agrees that,
without releasing or impairing Borrower's liability hereunder, Lender may at
any time release, surrender, substitute or exchange any Collateral securing
this Note and may at any time release any party primarily or secondarily
liable for the indebtedness evidenced by this Note.
IN ANY LITIGATION ARISING OUT OF OR RELATING TO ANY OF THE MATTERS
CONTAINED IN THIS NOTE OR ANY OF THE DOCUMENTS DELIVERED IN CONNECTION
HEREWITH IN WHICH THE LENDER AND BORROWER ARE ADVERSE PARTIES, THE LENDER AND
BORROWER WAIVE TRIAL BY JURY.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, each Borrower has caused this Note to be duly
executed and delivered on the date first above written.
ATTEST: EAGLE SUPPLY INC.
/s/ [ILLEGIBLE] By: /s/ [illegible]
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Title: CEO [SEAL]
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