EXHIBIT 10.32
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
("THIS AMENDMENT") is made and entered into as of the 26th day of June, 1998, by
and among FLEET CAPITAL CORPORATION ("LENDER"), a Rhode Island corporation, and
ADVANCED TECHNICAL PRODUCTS, INC. ("ATP"), a Delaware corporation, ALCORE, INC.
("ALCORE"), a Delaware corporation, TECHNICAL PRODUCTS GROUP, INC. ("TECHNICAL
PRODUCTS"), a Delaware corporation, XXXXXX PROPERTIES, INC. ("XXXXXX"), a
Delaware corporation, DELAND PROPERTIES, INC. ("DELAND"), a Delaware
corporation, and LINCOLN PROPERTIES, INC. ("LINCOLN"), a Delaware corporation
(ATP, Alcore, Technical Products, Xxxxxx, DeLand and Lincoln being referred to
individually, collectively, and joint and severally, as "BORROWER").
RECITALS
A. Borrower and Lender have entered into that certain Amended and Restated
Loan and Security Agreement, dated March 31, 1998 (the "LOAN AGREEMENT").
B. Pursuant to the terms of a Share Purchase Agreement (the "Purchase
AGREEMENT"), dated as of May 30, 1998, by and between Alcore and Xxxxxxx
Trevinal, an individual, Alcore has acquired all of the issued and outstanding
capital stock of Brigentene, Inc. ("BRIGENTENE"), a French corporation (the
"ACQUISITION").
C. Following the consummation of the Acquisition, Brigentene became a
wholly-owned subsidiary of Alcore.
D. Borrower and Lender desire to amend the Loan Agreement and the other
Loan Documents (i) to allow and provide for the Acquisition and (ii) to allow
and provide for certain other matters as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
DEFINITIONS
1.01 Capitalized terms used in this Amendment are defined in the Loan
Agreement, as amended hereby, unless otherwise stated.
ARTICLE II
AMENDMENTS
2.01 AMENDMENT TO APPENDIX A OF THE LOAN AGREEMENT; AMENDMENT OF
DEFINITION OF "BORROWING BASE". Effective as of the date hereof, the definition
of "Borrowing Base" appearing in APPENDIX A of the Loan Agreement is hereby
amended by deleting therefrom the reference to the dollar amount "$10,000,000"
and substituting in lieu thereof the dollar amount of "$11,000,000".
2.02 AMENDMENT TO APPENDIX A OF THE LOAN AGREEMENT; AMENDMENT AND
RESTATEMENT OF DEFINITION OF "EQUIPMENT NOTE". Effective as of the date hereof,
APPENDIX A of the Loan Agreement is hereby amended by deleting the definition of
"Equipment Note" therefrom and inserting the following in lieu thereof:
"EQUIPMENT NOTE- the Second Amended and Restated Equipment
Promissory Note executed by Borrower, in favor of Lender, as provided in
SECTION 1.2.2 of the Agreement which shall be in the form of EXHIBIT A-2
to the Agreement."
2.03 AMENDMENT TO SECTION 1.2.2 OF THE LOAN AGREEMENT. Effective as of the
date hereof, SECTION 1.2.2 of the Loan Agreement is hereby amended by deleting
therefrom the reference to the dollar amount "$3,000,000" and substituting in
lieu thereof the dollar amount of "$5,000,000".
2.04 AMENDMENT TO SECTION 7.1.4 OF THE LOAN AGREEMENT. Effective as of the
date hereof, the fourth sentence of SECTION 7.1.4 of the Loan Agreement is
hereby deleted in its entirety and the following is hereby substituted in lieu
thereof:
"Except as shown on EXHIBIT D, there are no outstanding options to
purchase, or any rights or warrants to subscribe for, or any commitment or
agreements to issue or sell, or any Securities or obligations convertible
into, or any powers of attorney relating to, shares of the capital stock
of any Borrower or any of its Subsidiaries."
2.05 AMENDMENT TO SECTION 8.2.8 OF THE LOAN AGREEMENT. Effective as of the
date hereof, SECTION 8.2.8 of the Loan Agreement is hereby amended by deleting
therefrom the reference to the dollar amount "$5,600,000" and substituting in
lieu thereof the dollar amount of "$10,500,000".
2.06 AMENDMENT TO SECTION 8.2.13 OF THE LOAN AGREEMENT. Effective as of
the date hereof, SECTION 8.2.13 of the Loan Agreement is hereby amended by
deleting therefrom the reference to the dollar amount "$1,000,000" and
substituting in lieu thereof the dollar amount of "$3,000,000".
2.07 AMENDMENT TO SECTION 11.9 TO THE LOAN AGREEMENT. Effective as of the
date hereof, SECTION 11.9 of the Loan Agreement is hereby amended by deleting
therefrom the notice address of Borrower and substituting in lieu thereof the
following address for Borrower:
"If to Borrower: Advanced Technical Products, Inc.
000 Xxxxxxx Xx. Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000"
2.08 EXHIBIT A-2 - FORM OF EQUIPMENT NOTE. Effective as of the date
hereof, all references in the Loan Agreement to EXHIBIT A-2, which is the form
of the Equipment Note, shall be deemed references to EXHIBIT A-2 which is
attached hereto as ANNEX A.
2.09 EXHIBIT B - BUSINESS LOCATIONS. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT B, which is entitled "Business
Locations", shall be deemed references to EXHIBIT B which is attached hereto as
ANNEX B.
2.10 EXHIBIT C - JURISDICTION OF BORROWER AND SUBSIDIARIES. Effective as
of the date hereof, all references in the Loan Agreement to EXHIBIT C, which is
entitled "Jurisdiction of Borrower and Subsidiaries", shall be deemed references
to EXHIBIT C which is attached hereto as ANNEX C.
2.11 EXHIBIT D - CAPITAL STRUCTURE OF BORROWER. Effective as of the date
hereof, all references in the Loan Agreement to EXHIBIT D, which is entitled
"Capital Structure", shall be deemed references to EXHIBIT D which is attached
hereto as ANNEX D.
2.12 EXHIBIT E - CORPORATE NAMES. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT E, which is entitled "Corporate
Names", shall be deemed references to EXHIBIT E which is attached hereto as
ANNEX E.
2.13 EXHIBIT F - TAX IDENTIFICATION NUMBERS OF SUBSIDIARIES. Effective as
of the date hereof, all references in the Loan Agreement to EXHIBIT F, which is
entitled "Tax Identification Numbers of Subsidiaries", shall be deemed
references to EXHIBIT F which is attached hereto as ANNEX F.
2.14 EXHIBIT G - PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES. Effective
as of the date hereof, all references in the Loan Agreement to EXHIBIT G, which
is entitled "Patents, Trademarks, Copyrights and Licenses", shall be deemed
references to EXHIBIT G which is attached hereto as ANNEX G.
2.15 EXHIBIT H - CONTRACTS RESTRICTING LOAN PARTIES' RIGHT TO INCUR DEBT.
Effective as of the date hereof, all references in the Loan Agreement to EXHIBIT
H, which is entitled "Contracts Restricting Loan Parties' Right to Incur Debt",
shall be deemed references to EXHIBIT H which is attached hereto as ANNEX H.
2.16 EXHIBIT J - CAPITALIZED LEASES. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT J, which is entitled "Capitalized
Leases", shall be deemed references to EXHIBIT J which is attached hereto as
ANNEX I.
2.17 EXHIBIT K - OPERATING LEASES. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT K, which is entitled "Operating
Leases", shall be deemed references to EXHIBIT K which is attached hereto as
ANNEX J.
2.18 EXHIBIT L - PENSION PLANS. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT L, which is entitled "Pension
Plans", shall be deemed references to EXHIBIT L which is attached hereto as
ANNEX K.
2.19 EXHIBIT M - LABOR CONTRACTS. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT M, which is entitled "Labor
Contracts", shall be deemed references to EXHIBIT M which is attached hereto as
ANNEX L.
2.20 EXHIBIT O - PERMITTED LIENS. Effective as of the date hereof, all
references in the Loan Agreement to EXHIBIT O, which is entitled "Permitted
Liens", shall be deemed references to EXHIBIT O which is attached hereto as
ANNEX M
2.21 EXHIBIT Q- PERMITTED INDEBTEDNESS. Effective as of the date hereof,
all references in the Loan Agreement to EXHIBIT Q which is entitled "Permitted
Indebtedness", shall be deemed references to EXHIBIT Q Which is attached hereto
as ANNEX N.
ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS TO EFFECTIVENESS. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions precedent, unless
specifically waived in writing by Lender:
(a) Lender shall have received (i) this Amendment, duly executed by
Borrower, (ii) the Equipment Note, duly executed by Borrower, (iii) a
company general certificate (hereinafter referred to as the "COMPANY
GENERAL CERTIFICATE") certified by the Secretary or Assistant Secretary of
each Borrower acknowledging (A) that each Borrower's Board of Directors
has met and has adopted, approved, consented to and ratified resolutions
which authorize the execution, delivery and performance by such Borrower
of this Amendment and all other Loan Documents to which such Borrower is
or is to be a party, and (B) the names of the officers of each Borrower
authorized to sign this Amendment and each of the other Loan Documents to
which such Borrower is or is to be a party hereunder (including the
certificates contemplated herein) together with specimen signatures of
such officers, and (iv) such additional documents, instruments and
information as Lender or its legal counsel may request;
(b) The representations and warranties contained herein and in the
Loan Agreement and the Loan Documents, as each is amended hereby, shall be
true and correct as of the date hereof, as if made on the date hereof;
(c) No Default or Event of Default shall have occurred and be
continuing;
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents, instruments
and other legal matters incident thereto shall be satisfactory to Lender
and its legal counsel; and
ARTICLE IV
NO WAIVER
By execution of this Amendment and subject to the satisfaction conditions
precedent specified in SECTION 3.01 hereof, Lender hereby waives any Default or
Event of Default which has occurred or would otherwise occur under SECTIONS
8.2.1 or 8.2.3 of the Loan Agreement solely as a result of the Acquisition.
Except as specifically provided in the preceding sentence, nothing contained in
this Amendment shall be construed as a waiver by Lender of any covenant or
provision of the Loan Agreement, the other Loan Documents, this Amendment, or of
any other contract or instrument between Borrower and Lender, and the failure of
Lender at any time or times hereafter to require strict performance by Borrower
of any provision thereof shall not waive, affect or diminish any right of Lender
to thereafter demand strict compliance therewith. Lender hereby reserves all
rights granted under the Loan Agreement, the other Loan Documents, this
Amendment and any other contract or instrument between Borrower and Lender.
ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 RATIFICATIONS. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions set forth in
the Loan Agreement and the other Loan Documents, and, except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower and Lender agree that the Loan
Agreement and the other Loan Documents, as amended hereby, shall continue to be
legal, valid, binding and enforceable in accordance with their respective terms.
5.02 REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Lender that (a) the execution, delivery and performance of this
Amendment and any and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate action on
the part of Borrower and will not violate the Articles of Incorporation or
Bylaws of Borrower; (b) the representations and warranties contained in the Loan
Agreement, as amended hereby, and any other Loan Documents are true and correct
on and as of the date hereof and on and as of the date of execution hereof as
though made on and as of each such date; (c) no Default or Event of Default
under the Loan Agreement, as amended hereby, has occurred and is continuing; and
(d) Borrower is in full compliance with all covenants and agreements contained
in the Loan Agreement and the other Loan Documents, as amended hereby.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in the Loan Agreement or any other Loan Documents, including,
without limitation, any document furnished in connection with this Amendment,
shall survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by Lender or any closing shall affect the
representations and warranties or the right of Lender to rely upon them.
6.02 REFERENCE TO LOAN AGREEMENT. Each of the Loan Agreement and the other
Loan Documents, and any and all other Loan Documents, documents or instruments
now or hereafter executed and delivered pursuant to the terms hereof or pursuant
to the terms of the Loan Agreement, as amended hereby, are hereby amended so
that any reference in the Loan Agreement and such other Loan Documents to the
Loan Agreement shall mean a reference to the Loan Agreement as amended hereby.
6.03 EXPENSES OF LENDER. As provided in the Loan Agreement, Borrower
agrees to pay on demand all costs and expenses incurred by Lender in connection
with the preparation, negotiation, and execution of this Amendment and the other
Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation, the costs
and fees of Lender's legal counsel, and all costs and expenses incurred by
Lender in connection with the enforcement or preservation of any rights under
the Loan Agreement, as amended hereby, or any other Loan Documents, including,
without, limitation, the costs and fees of Lender's legal counsel.
6.04 SEVERABILITY. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
6.05 SUCCESSORS AND ASSIGNS. This Amendment is binding upon and shall
inure to the benefit of Lender and Borrower and their respective successors and
assigns, except that Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
6.06 COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
6.07 EFFECT OF WAIVER. No consent or waiver, express or implied, by Lender
to or for any breach of or deviation from any covenant or condition by Borrower
shall be deemed a consent to or waiver of any other breach of the same or any
other covenant, condition or duty.
6.08 HEADINGS. The headings, captions, and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.09 APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE IN AND
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.10 FINAL AGREEMENT. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS,
EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE
LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO
MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS
AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND
LENDER.
6.11 RELEASE. BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE,
COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE
WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF
ANY KIND OR NATURE FROM LENDER. BORROWER HEREBY VOLUNTARILY AND KNOWINGLY
RELEASES AND FOREVER DISCHARGES LENDER, ITS PREDECESSORS, AGENTS, OFFICERS,
DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS,
ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER,
KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART
ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW OR
HEREAFTER HAVE AGAINST LENDER, ITS PREDECESSORS, AGENTS, OFFICERS, DIRECTORS,
EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH
CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER THE LOAN AGREEMENT OR OTHER LOAN DOCUMENTS, AND THE NEGOTIATION
AND EXECUTION OF THIS AMENDMENT.
IN WITNESS WHEREOF, this Amendment has been executed and is effective as
of the date first above-written.
BORROWER:
ADVANCED TECHNICAL PRODUCTS,
INC.
By:/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
ALCORE, INC.
By:/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
TECHNICAL PRODUCTS GROUP, INC.
By:/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
XXXXXX PROPERTIES, INC.
By:/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
DELAND PROPERTIES, INC.
By:/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
LINCOLN PROPERTIES, INC.
By:/s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
LENDER:
FLEET CAPITAL CORPORATION
By:/s/ XXXXX X. XXXXXXXX
Xxxxx X. XxxXxxxx
Senior Vice President
