AMENDMENT NO. ONE TO THE
LOAN AND SECURITY AGREEMENT
ACTION INDUSTRIES, INC.
This Amendment No. One To The Loan And Security Agreement (the
"Amendment") is entered into as of the 27th day of May, 1994, by and
between ACTION INDUSTRIES, INC., a Pennsylvania corporation
("Borrower"), whose chief executive office is located at 000 Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 and FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), with a place of
business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, in light of the following facts:
FACTS
FACT ONE: Foothill and Borrower have previously entered into
that certain Loan And Security Agreement, dated January 20, 1994
(the "Agreement").
FACT TWO: Foothill and Borrower desires to amend the Agreement
as provided herein. Terms defined in the Agreement which are used
herein shall have the same meanings as set forth in the Agreement,
unless otherwise specified.
NOW, THEREFORE, Foothill and Borrower hereby modify and amend
the Agreement as follows:
1. Paragraph (g) under the Definition of "Eligible Accounts"
shall be amended in its entirety to read as follows: "(g) Accounts
with respect to an Account Debtor whose total obligations owing to
Borrower exceed the higher of:
(a) ten percent (10%) (or in the case of Walmart, twenty
percent (20%) and in the case of each of American Drug Stores,
Consolidated Stores, Family Dollar, Lucky Stores, Phar-Mor, Revco
Drug Stores and Supermarket Services (A&P), fifteen percent (15%))
of all Eligible Accounts, to the extent of the obligations owing by
such account Debtor in excess of such percentage or
(b) a dollar amount equal to the level of credit
insurance acceptable to Foothill obtained by Borrower for a Debtor,
to the extent that said Debtors (I) maintain a D&B rating of 3A2 or
better, where such ratings are available, (ii) concentration be
limited to policy limit of credit insurance, less any deductible,
(iii) no single Debtor exceed 45% of Eligible Accounts, and (iv) no
grouping of six Debtors can comprise more than 90% of total
Eligible Accounts;"
2. Borrower shall pay to Foothill a facility fee in the
amount of $5,000.00 as of May 20, 1994. This facility fee has been
earned at the time of payment and shall be non-refundable.
3. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the
Agreement, the terms and provisions of this Amendment shall govern.
In all other respects, the Agreement, as supplemented, amended and
modified, shall remain in full force and effect.
IN WITNESS WHEREOF, Borrower and Foothill have executed this
Amendment as of the day and year first written above.
FOOTHILL CAPITAL CORPORATION ACTION INDUSTRIES, INC.
By: XXXX X. XXXXXXXX By: XXXXXXX X. XXXXXXXX
Its: Assistant Vice President Its: Senior Vice President
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By its acceptance below this ___ day of May, 1994, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated January
20, 1994 and consents to the above-stated terms.
ACTION INVESTMENT COMPANY,
a Delaware corporation
By: XXXXXXX X. XXXXXXXX
Its: Treasurer
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By its acceptance below this ___ day of May, 1994, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated January
20, 1994 and consents to the above-stated terms.
KENSINGTON LAMP COMPANY,
a Pennsylvania corporation
By: XXXXXXX X. XXXXXXXX
Its: Treasurer
_________________________________________________________________
AMENDMENT NO. TWO TO THE
LOAN AND SECURITY AGREEMENT
ACTION INDUSTRIES, INC.
This Amendment Number Two to Loan and Security Agreement
("Amendment") is entered into as of November 11, 1994, between
FOOTHILL CAPITAL CORPORATION ("Foothill") and ACTION INDUSTRIES,
INC. ("Borrower").
FACT ONE: Foothill and Borrower entered into that certain Loan
and Security Agreement as of January 20, 1994, as amended on May
27, 1994 (the "Agreement").
FACT TWO: Borrower and Foothill desire to further amend the
Agreement as provided herein.
NOW, THEREFORE, Foothill and Borrower hereby amend the
Agreement as follows:
1. Section 1.1 of the Agreement is amended to add the
following definitions:
"Agency Business" means transactions in which Borrower
serves as an agent for certain of its customers in the
purchasing of merchandise for which Borrower will only be
paid a commission.
2. Section 2.1 of the Agreement is hereby amended by adding
the following subsection (e):
(e) In addition to revolving advances pursuant to
Section 2.1(a) and the issuance of L/Cs or L/C
Guarantees pursuant to Section 2.2, Foothill agrees
to issue additional commercial L/Cs for the account
of Borrower or L/C Guarantees arising out of
Borrower's Agency Business in an aggregate amount
outstanding at any one time of not more than Five
Million Dollars ($5,000,000). Such L/Cs shall be
issued to suppliers of merchandise for customers of
Borrower's Agency Business. Foothill will only
issue such L/Cs or L/C Guarantees to the extent
that Borrower has a firm purchase order from an
Agency Business customer for merchandise which
purchase order is secured by a commercial letter of
credit in form and substance satisfactory to
Foothill, issued by a financial institution
satisfactory to Foothill, and payable to Foothill
or an account controlled by Foothill. Foothill's
L/C or L/C Guaranty shall not exceed ninety five
percent (95%) of the amount of each customer order
for the Agency Business.
3. As to Agency Business, the fees set forth in Section
2.2(d) of the Agreement shall be three and one-half per
cent (3.5%) per annum times the average daily balance of
undrawn L/Cs and L/C Guarantees arising out of the Agency
Business that were outstanding during the immediately
preceding month.
4. Commencing as of November 1, 1994, the servicing fee
provided in Section 2.8(e) of the Agreement shall be
increased to $3,500 per month. In addition, Borrower is
concurrently herewith paying to Foothill a loan
modification fee in the amount of $5,000.
5. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provision
of the Agreement, the terms and provisions of this
Amendment shall govern. In all other respects, the
Agreement shall remain in full force and effect.
6. All initially capitalized terms used in this Agreement
shall have the meanings given to them in the Agreement
unless specifically defined herein.
IN WITNESS WHEREOF, Borrower and Foothill have executed this
Amendment as of the date first set forth above.
FOOTHILL CAPITAL CORPORATION
By: XXXXX XXXX
Title: Assistant Vice President
ACTION INDUSTRIES, INC.
By: XXXXXXX X. XXXXXXXX
Title: Senior Vice President
Each of the undersigned has executed a Continuing Guaranty in
favor of Foothill Capital Corporation ("Foothill") respecting the
obligations of Action Industries, Inc. ("Borrower") owing to
Foothill. Each of the undersigned acknowledges the terms of the
above Amendment and reaffirms and agrees that: its Continuing
Guaranty remains in full force and effect; nothing in such
Continuing Guaranty obligates Foothill to notify the undersigned of
any changes in the financial accommodations made available to
Borrower or to seek reaffirmations of the Continuing Guaranty; and
no requirement to so notify the undersigned or to seek
reaffirmations in the future shall be implied by the execution of
this reaffirmation.
ACTION INVESTMENT COMPANY
By: XXXXXXX X. XXXXXXXX
Title: Treasurer
KENSINGTON LAMP COMPANY
By: XXXXXXX X. XXXXXXXX
Title: Treasurer
__________________________________________________________________
AMENDMENT NO. THREE TO THE
LOAN AND SECURITY AGREEMENT
ACTION INDUSTRIES, INC.
This Amendment No. Three To The Loan and Security Agreement
("Amendment") is entered into as of the 9th day of December, 1994,
by and between ACTION INDUSTRIES, INC., a Pennsylvania corporation
("Borrower"), whose chief executive office is located at 000 Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 and FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), with a place of
business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, in light of the following facts:
FACTS
FACT ONE: Foothill and Borrower have previously entered into
that certain Loan and Security Agreement, dated January 20, 1994,
(as amended and supplemented, the "Agreement").
FACT TWO: Foothill and Borrower desires to amend the Agreement
as provided herein. Terms defined in the Agreement which are used
herein shall have the same meanings as set forth in the Agreement,
unless otherwise specified.
NOW, THEREFORE, Foothill and Borrower hereby modify and amend
the Agreement as follows:
1. Section 2.1(a)(ii) of the Agreement is hereby amended in
its entirety to read as follows: "(ii) an amount equal to the
lowest of : (x) fifty-five percent (55%) of the amount of Eligible
Inventory, (y) two hundred percent (200%) of credit availability
created by Section 2.1(a)(I) above, if the Borrowing Base is being
determined from October through December and June through August,
or one hundred fifty percent (150%) of such amount, if the
determination is made at any other time, and (z) Ten Million
Dollars."
2. Borrower shall pay to Foothill a fee of $5,000. Said fee
shall be fully-earned, non-refundable, and due and payable on the
date of signing and delivery of this Amendment by Borrower to
Foothill.
3. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the
Agreement, the terms and provisions of this Amendment shall govern.
In all other respects, the Agreement, as supplemented, amended and
modified, shall remain in full force and effect.
IN WITNESS WHEREOF, Borrower and Foothill have executed this
Amendment as of the day and year first written above.
FOOTHILL CAPITAL CORPORATION ACTION INDUSTRIES, INC.
By: XXXX X. XXXXXXXX By: XXXXXXX X. XXXXXXXX
Its: Assistant Vice President Its: Senior Vice President
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By its acceptance below this ___ day of December, 1994, the
undersigned guarantor hereby reaffirms its Continuing Guaranty
dated January 20, 1994 and consents to the above-stated terms.
ACTION INVESTMENT COMPANY,
a Delaware corporation
By: XXXXXXX X. XXXXXXXX
Its: Treasurer
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By its acceptance below this ___ day of December, 1994, the
undersigned guarantor hereby reaffirms its Continuing Guaranty
dated January 20, 1994 and consents to the above-stated terms.
KENSINGTON LAMP COMPANY,
a Pennsylvania corporation
By: XXXXXXX X. XXXXXXXX
Its: Treasurer
_________________________________________________________________
AMENDMENT NO. FOUR TO THE
LOAN AND SECURITY AGREEMENT
ACTION INDUSTRIES, INC.
This Amendment No. Four To The Loan and Security Agreement
("Amendment") is entered into as of the 11th day of May, 1995, by
and between ACTION INDUSTRIES, INC., a Pennsylvania corporation
("Borrower"), whose chief executive office is located at 000 Xxxxx
Xxxx, Xxxxxxxx, Xxxxxxxxxxxx 00000 and FOOTHILL CAPITAL
CORPORATION, a California corporation ("Foothill"), with a place of
business located at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000-0000, in light of the following facts:
FACTS
FACT ONE: Foothill and Borrower have previously entered into
that certain Loan and Security Agreement, dated January 20, 1994,
(as amended and supplemented, the "Agreement").
FACT TWO: Foothill and Borrower desires to amend the Agreement
as provided herein. Terms defined in the Agreement which are used
herein shall have the same meanings as set forth in the Agreement,
unless otherwise specified.
NOW, THEREFORE, Foothill and Borrower hereby modify and amend
the Agreement as follows:
1. Section 2.1(a)(ii) of the Agreement is hereby amended in
its entirety to read as follows: "(ii) an amount equal to the
lowest of: (x) fifty-five percent (55%) of the amount of Eligible
Inventory, (y) three hundred percent (300%) of the amount of credit
availability created by Section 2.1(a)(i) above, and an additional
$1,700,000, if the Borrowing Base is being determined from April
26, 1995 through July 31, 1995; two hundred percent (200%) of such
amounts if the Borrowing Base is being determined from August 1,
1995 through December 31, 1995; on January 1, 1996, the
availability shall revert to two hundred percent (200%), if the
Borrowing Base is being determined from October through December
and June through August, or one hundred fifty percent (150%) of
such amount, if the determination is made at any other time, and
(z) Ten Million Dollars."
2. Section 2.5(a) of the Agreement is hereby amended in its
entirety to read as follows: "Interest Rate. All obligations,
except for undrawn L/Cs and L/C Guarantees, shall bear interest, on
the average Daily Balance, at a rate per annum equal to three and
one half (3.5) percentage points above the Reference Rate.
3. In the event of a conflict between the terms and
provisions of this Amendment and the terms and provisions of the
Agreement, the terms and provisions of this Amendment shall govern.
In all other respects, the Agreement, as supplemented, amended and
modified, shall remain in full force and effect.
IN WITNESS WHEREOF, Borrower and Foothill have executed this
Amendment as of the day and year first written above.
FOOTHILL CAPITAL CORPORATION ACTION INDUSTRIES, INC.
By: XXXXXX XXXX By: XXXXXXX X. XXXXXXXX
Its: Vice President Its: Senior Vice President
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By its acceptance below this ___ day of May, 1995, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated January
20, 1994 and consents to the above-stated terms.
ACTION INVESTMENT COMPANY,
a Delaware corporation
By: XXXXXXX X. XXXXXXXX
Its: Treasurer
-----------------------------------------------------------------
By its acceptance below this ___ day of May, 1995, the undersigned
guarantor hereby reaffirms its Continuing Guaranty dated January
20, 1994 and consents to the above-stated terms.
KENSINGTON LAMP COMPANY,
a Pennsylvania corporation
By: XXXXXXX X. XXXXXXXX
Its: Treasurer
