FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is entered into as of
December __, 1997, between BIG XXXXX BRANDS, INC., a Delaware corporation
("Borrower"), and NATIONSCREDIT COMMERCIAL CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING DIVISION ("Lender").
WHEREAS, Borrower has requested that Lender amend the Loan and
Security Agreement dated December __, 1997 (the "Loan Agreement") in various
respects, and Lender has agreed to do so subject to the terms contained herein;
NOW THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. Amendments to Loan Agreement
(a) Section 1(e)(ii) of Schedule A to the Loan Agreement is hereby
amended and restated in its entirety as follows:
"1. Loan Limits for Revolving Loans:
(e) Additional Advance Rates:
(ii) Real Property Advance
Rate: N/A"
3. Other Amendments. This Amendment shall constitute an amendment to
the Loan Agreement and all of the other Loan Documents as appropriate to express
the agreements contained herein. In all other respects, the Loan Agreement and
the other Loan Documents shall remain unchanged and in full force and effect in
accordance with their original terms.
4. Miscellaneous.
(a) Warranties and Absence of Defaults. In order to induce Lender to
enter into this Amendment, Borrower hereby warrants to Lender, as of the date
hereof, that:
(i) The representations and warranties of Borrower contained
in the Loan Agreement are true and correct as of the date hereof as
if made on the date hereof.
(ii) All information, reports and other papers and data
heretofore furnished to Lender by Borrower in connection with this
Amendment, the Loan Agreement and the other Loan Documents are
accurate and correct in all material respects and complete insofar
as may be necessary to give Lender true and accurate knowledge of
the subject matter thereof. Borrower has disclosed to Lender every
fact of which it is aware which might adversely affect the business,
operations or financial condition of Borrower or the ability of
Borrower to perform its obligations under this Amendment, the Loan
Agreement or under any of the other Loan Documents. None of the
information furnished to Lender by or on behalf of Borrower
contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained
herein or therein not materially misleading.
(iii) No Event of Default or Default exists as of the date
hereof.
(b) Expenses. Borrower agrees to pay on demand all costs and
expenses of Lender (including the reasonable fees and expenses of outside
counsel for Lender) in connection with the preparation, negotiation, execution,
delivery and administration of this Amendment and all other instruments or
documents provided for herein or delivered in connection herewith. In addition,
Borrower agrees to pay, and save Lender harmless from all liability for, any
stamp or other taxes which may be payable in connection with the execution or
delivery of this Amendment or the Loan Agreement, as amended hereby, and the
execution and delivery of any instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith. All
obligations provided in this Section 4(b) shall survive any termination of this
Amendment and the Loan Agreement as amended hereby.
(c) Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of New York.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
(e) Reference to Loan Agreement. On and after the effectiveness of
the amendment to the Loan Agreement accomplished hereby, each reference in the
Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of
like import, and each reference to the Loan Agreement in any other Loan
Documents, or other agreements, documents or other instruments executed and
delivered pursuant to the Loan Agreement, shall mean and be a reference to the
Loan Agreement, as amended by this Amendment.
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(f) Successors. This Amendment shall be binding upon Borrower,
Lender and their respective successors and assigns, and shall inure to the
benefit of Borrower, Lender and the successors and assigns of Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized and delivered
as of the date first above written.
BIG XXXXX BRANDS, INC.
By ______________________
Its _____________________
NATIONSCREDIT COMMERCIAL
CORPORATION, THROUGH
ITS NATIONSCREDIT
COMMERCIAL FUNDING DIVISION
By ______________________
Its _____________________
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