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Exhibit 10
THIRD AMENDMENT TO LOAN AGREEMENT
THIS THIRD AMENDMENT TO LOAN AGREEMENT (the "Third Amendment") is made
this 15th day of February, 2000, at Cleveland, Ohio, by and among THE HUNTINGTON
NATIONAL BANK ("Bank"), whose principal office is located at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, XXXXXX INCORPORATED, whose address is 00000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxx 00000 ("Borrower"), and SUPREME ELECTRONICS CORP., whose
address is 00000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000 ("Guarantor").
RECITALS
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A. The Borrower and Bank entered into a Restated Loan Agreement
dated as of February 28, 1977 (the "Loan Agreement") and a
First Amendment to Loan Agreement dated as of February 18,
1998 (the "First Amendment) and a Second Amendment to Loan
Agreement dated as of February 26, 1999 (the "Second
Amendment"), pursuant to which Bank agreed to make available
to the Borrower a loan of up to $5,000,000.00. Capitalized
terms used herein and not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
B. The Borrower has requested certain amendments to the Loan
Agreements.
C. As a material inducement to Bank and to make the amendments to
the loan herein contemplated, Guarantor for good and valuable
consideration is willing to deliver to Bank an acknowledgement
of the continuing Guaranty Unlimited.
D. Bank is willing to make the amendments and modifications to
the loan herein described, upon the terms, covenants and
conditions herein set forth, and in reliance upon the
representations and warranties of Borrower herein contained.
NOW, THEREFORE, in consideration of the foregoing Recitals, the terms,
covenants and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1 AMENDMENTS, The third sentence of Section 2.1 is hereby further modified and
amended to extend the maturity date of the Loan and the Revolving Note to
February 28, 2001.
2 BORROWER'S REPRESENTATIONS, WARRANTIES AND EVENTS OF DEFAULT.
2.1 REPRESENTATIONS AND WARRANTIES
2.1.1. Except as amended hereby, the terms, provisions,
conditions and agreements of the Loan Agreement and
the First and Second Amendments to Loan Agreement are
hereby ratified and confirmed and shall remain in
full force and effect. Borrower expressly
acknowledges that this Third Amendment shall not
constitute a novation or waiver. Each and every
representation and warranty of the Borrower set forth
in the Loan Agreement and the First and Second
Amendments to Loan Agreement is hereby confirmed and
ratified in all material respects and such
representations and warranties shall be deemed to
have been made and undertaken as of the date of this
Third Amendment as well as at the time they were made
and undertaken.
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Exhibit 10
2.1.2. The Borrower further represents and warrants that:
2.1.2.1 No Event of Default now exists or will exist
immediately following the execution hereof or after
giving effect to the transactions contemplated
hereby.
2.1.2.2 All necessary corporate or shareholder actions on the
part of the Borrower to authorize the execution,
delivery and performance of this Third Amendment, the
Third Modification and Amendment to the Revolving
Credit Note and all other documents or instruments
required pursuant hereto or thereto have been taken;
this Third Amendment, the Third Modification and
Amendment to the Revolving Credit Note and each such
other document or instrument have been duly and
validly executed and delivered and are legally
binding and binding upon the parties thereto and
enforceable in accordance with their respective
terms, except to the extent that the enforceability
thereof may be limited by bankruptcy, insolvency or
like laws or by general equitable principals.
2.1.2.3. The execution, delivery and performance of this Third
Amendment, the Third Modification and Amendment to
the Revolving Credit Note and all other documents or
instruments required pursuant hereto or thereto, and
all actions and transactions contemplated hereby and
thereby will not (A) violate, be in conflict with,
result in a breach of or constitute (with due notice
or lapse of time or both) a default under (1) any
provision of the Articles of Incorporation, Code of
Regulations or Bylaws of the Borrower, (2) any
arbitration award or any order of any court or of
any other governmental agency or authority, (3) any
license, permit or authorization granted to the
Borrower or under which the borrower operates, or
(4) any applicable law, rule, order or regulation,
indenture, agreement or other instrument to which
the Borrower is a party or by which the Borrower
or any of its properties is bound and which has not
been waived or consented to, or (B) result in the
creation or imposition of any lien, charge or
encumbrance of any nature whatsoever, except as
expressly permitted in the Loan Agreement, upon any
of the properties of the Borrower.
2.1.2.4. No consent, approval or authorization of, or filing,
registration or qualification with, any governmental
authority or any other person or entity is required
to be obtained by the Borrower in connection with
the execution, delivery or performance of this Third
Amendment, the Third Modification and Amendment to
the Revolving Credit Note or any document or
instrument required in connection herewith or
therewith which as not already been obtained or
completed.
3 AFFIRMATION AND AGREEMENT OF THE BORROWERS AND THE GUARANTOR. The Borrower and
the Guarantor have executed this Third Amendment to consent to the Loan
Agreement made pursuant hereto.
4 FEES AND EXPENSES. As required under the Loan Agreement, the Borrower shall
pay a facility fee of $5,000.00 upon execution hereof, and shall reimburse the
Bank upon demand for all
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Exhibit 10
out-of-pocket costs, charges and expenses of the Bank (including
reasonable fees and disbursements of legal counsel to Bank in
connection with the preparation, negotiation, execution and delivery of
this Third Amendment and the other agreements or documents relating
hereto or required hereby).
5. REFERENCE TO LOAN AGREEMENT. Except as amended by the First and Second
Amendments to Loan Agreement and hereby, the Loan Agreement shall remain
in full force and effect and is hereby ratified and confirmed in all
respects. On and after the effectiveness of the Third 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 Note or other
Loan Document, or other agreement, document or instrument executed and
delivered pursuant to the Loan Agreement, shall be deemed a reference to
the Loan Agreement as previously amended and amended hereby.
6 COUNTERPARTS. This Third Amendment may be executed in as many
counterparts as may be convenient, each of which when so executed shall
be deemed to be an original for all purposes, and shall become binding
when the Borrower, the Guarantor, the Bank have executed at least one
counterpart.
7 FURTHER ACTS. The parties agree to perform any further acts and to
execute and deliver any additional documents which may be reasonably
necessary to carry out the intent and provisions of this Third
Amendment.
8 BINDING EFFECT. This Third Amendment shall be binding upon and shall
inure to the benefit of the Borrower, the Guarantor, Bank and their
respective heirs, personal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties have signed this Third Amendment to Loan
Agreement, intending to be legally bound thereby as of the Effective
Date.
BORROWER
XXXXXX INCORPORATED
/s/ Xxxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
/s/ Xxxxxxxxx Xxxxxx
----------------------------- THE HUNTINGTON NATIONAL BANK
Signed in the presence of:
(as to all signatures) By: Xxxxx Xxxxxxx VP
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/s/ Xxxxxxx Xxxxx
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/s/ Xxxxx X. Xxxxx
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