Exhibit 11
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is entered into as of July 16,
1997, between FIXCOR INDUSTRIES, a Delaware corporation ("Borrower"), and
NATIONSCREDIT COMMERCIAL CORPORATION, THROUGH ITS NATIONSCREDIT COMMERCIAL
FUNDING DIVISION ("Lender").
WHEREAS, Borrower has requested that Lender consent to the formation of
Palletech Inc. by Fix-Corp International, Inc. and certain financial
arrangements among Borrower, Fix-Corp International, Inc., Palletech Inc and
Xxxxxx Xxxxxxxx Capital Corporation, and Lender has agreed to do so on the
condition, among others, that Borrower agree to amend the Loan Agreement dated
May 14,1997 (the "Loan Agreement") as provided 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. AMENDMENT TO LOAN AGREEMENT. The definition of "Eligible Account"
contained in Schedule B of the Loan Agreement is amended by (a) deleting the
word "and" immediately following clause (xvi) thereof and (b) inserting the
following immediately following clause (xvii) thereof, but prior to the period:
"; and (xviii) the Account Debtor for such Account is not also an Account Debtor
of Palletech Inc."
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
agreement 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, 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.
(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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered at
New York, New York as of the date first above written.
FIXCOR INDUSTRIES, INC.
By /s/ Xxxx Xxxxxx
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Its CEO
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NATIONSCREDIT COMMERCIAL
CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING
DIVISION
By /s/ Xxxxxx Xxxx
--------------------------------------
Its Authorized Signatory
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The undersigned gurantors hereby acknowledge the foregoing amendment and
ratify and reaffirm their respective guarantees of the obligations of FIXCOR
Industries, Inc.
FIX-CORP INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxx
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Its: Pres
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PALLETECH INC.
By: /s/ Xxxx Xxxxxx
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Its: CEO
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