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EXHIBIT 10.18
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment"),
effective as of June 1, 1997, is entered into between FINOVA CAPITAL CORPORATION
("FINOVA"), with a place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx, and Oakhurst Company, Inc. ("Oakhurst"), Steel City Products, Inc.
("SCPI"), Puma Products, Inc. ("Puma"), H & H Distributors, Inc. ("H & H"),
Xxxxxxx'x Fleet Service Co., Inc. ("DFS"), Oakhurst Management Corporation
("OMC"), Oakhurst Holdings, Inc. ("OH"), and G & O Sales Company ("G&O"),
jointly and severally (individually "Borrower" and collectively "Borrowers"),
with the chief executive office of each Borrower located as follows: Oakhurst,
0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxx 00000; SCPI, 000 Xxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000; Puma, 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxx
00000; H & H, 0000 Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000; DFS, 000 Xxxx
Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000; OMC, 0000 Xxxxxxxx Xxxxx, Xxxxx
Xxxxxxx, Xxxxx 00000; OH, 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx
00000; and G & O, 0000-00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
RECITALS
A. Borrowers and FINOVA have previously entered into that certain Loan
and Security Agreement dated as of March 28, 1996, as amended by that certain
First Amendment to Loan and Security Agreement dated as of June, 1996
(collectively, the "Loan Agreement"), pursuant to which FINOVA has made certain
loans and financial accommodations available to Borrowers. Terms used herein
without definition shall have the meanings ascribed to them in the Loan
Agreement.
B. As of the date hereof, Oakhurst has consummated the sale of (i) all
of its legal and beneficial ownership interest in the capital stock of Puma to
Xxxxxxx X. Puma (the "Puma Sale") and (ii) all of its legal and beneficial
ownership interest in the capital stock of H&H to Xxxxx Xxxxx (the "H&H Sale").
FINOVA consented to the Puma Sale and the H&H Sale pursuant to the terms of that
certain letter agreement dated as of June 12, 1997 (the "Consent Letter").
C. Pursuant to the terms of the Consent Letter, FINOVA has agreed, upon
the consummation of the H&H Sale, to enter into an amendment to the Loan
Agreement, in form and substance satisfactory to FINOVA, pursuant to the terms
of which (a) Puma and H & H shall cease to be Borrowers under the Loan Agreement
on a prospective, going forward basis, (b) the Tangible Net Worth Covenants for
Puma, H & H and all Borrowers on a consolidated basis, as set forth in Section
13.14 of the Schedule to the Loan Agreement, shall be deleted on a prospective,
going-forward basis, (c) the definition of "Current Liabilities" shall be
amended to exclude all principal amounts outstanding and accrued interest
thereon under the Revolving Loans and the Fixed Asset Loan and (d) the terms of
the Borrowers' credit line with FINOVA, as
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set forth in Sections 1.1 and 1.2 of the Schedule to the Loan Agreement, shall
be restructured to decrease from Nine Million Five Hundred Thousand Dollars
($9,500,000) to Eight Million Five Hundred Thousand Dollars ($8,500,000) the
amount of the Total Facility for all Loans, decrease from Eight Million Dollars
($8,000,000) to Seven Million Dollars ($7,000,000) the amount of the Total
Facility for Revolving Loans, decrease from Four Million Dollars ($4,000,000) to
Three Million Five Hundred Thousand Dollars ($3,500,000) the maximum aggregate
outstanding principal amount of Inventory Loans to the Borrowers, increase from
Three Million Eight Hundred Thousand Dollars ($3,800,000) to Four Million Two
Hundred Fifty Thousand Dollars ($4,250,000) the maximum amount of Receivables
Loans which may be advanced against Eligible Accounts of SCPI, increase from Two
Million Seven Hundred Thousand Dollars ($2,700,000) to Two Million Seven Hundred
Fifty Thousand Dollars ($2,750,000) the maximum amount of Inventory Loans which
may be advanced against Eligible Inventory of SCPI, increase from Two Million
Five Hundred Thousand Dollars ($2,500,000) to Two Million Seven Hundred Fifty
Thousand Dollars ($2,750,000) the maximum amount of Receivables Loans which may
be advanced against Eligible Accounts of DFS, and increase from One Million Four
Hundred Thousand Dollars ($1,400,000) to One Million Seven Hundred Fifty
Thousand Dollars ($1,750,000) the maximum amount of Inventory Loans which may be
advanced against Eligible Inventory of DFS. D. Borrowersand FINOVA wish to amend
the Loan Agreement to effectuate the aforedescribed changes. NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Amendment of Definition of "Borrowers" to Delete Puma and H&H. The
introductory paragraph of the Loan Agreement is hereby amended to delete Puma
and H&H as "Borrowers", effective as of the date hereof.
2. Amendment of Section 1.1. (Total Facility). Section 1.1 of the
Schedule to Loan and Security Agreement (entitled "Total Facility") is hereby
amended and restated to read in its entirety as follows:
"The Total Facility for all Loans is Eight Million Five
Hundred Thousand Dollars ($8,500,000). The Total Facility for
Revolving Loans is Seven Million Dollars ($7,000,000)."
3. Amendment of Section 1.2.A. (Revolving Loans). Paragraph A. of
Section 1.2 of the Schedule to Loan and Security Agreement (entitled "Revolving
Loans") is hereby amended and restated to read in its entirety as follows:
"A. REVOLVING LOANS: a revolving line of credit to the
Borrowers consisting of loans against the Eligible Receivables
of each Borrower ("Receivable Loans") and against the Eligible
Inventory of each Borrower ("Inventory Loans" and, together
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with the Receivable Loans, the "Revolving Loans") in an
aggregate outstanding principal amount at any time for all
Borrowers which shall not exceed the lesser of:
(a) an amount of the Total Facility for Revolving
Loans; or
(b) the sum of
(i) the aggregate Receivable Loans
to the Borrowers, each in an amount
equal to eighty percent (80%) of the
net amount of each Borrower's
Eligible Receivables, but not to
exceed with respect to each
Borrower, the amounts set forth
below:
Maximum Advance Against
Borrower Eligible Accounts
-------- -----------------
Oakhurst $0
SCPI $4,250,000
DFS $2,750,000
OMC $0
OH $0
G&O $0;
less a Dilution reserve equal to five percent (5%) of each
Borrower's total Eligible Receivables from time to time, which
Dilution reserve may be adjusted periodically by FINOVA, in
its reasonable credit judgment, upward or downward by the
percentage which Dilution varies from a prior period's total
Dilution by more than two and one-half percent (2.5%); plus
(ii) the aggregate Inventory Loans
to the Borrowers, each in an amount
equal to forty-five percent (45%) of
the value of each Borrower's
Eligible Inventory, calculated at
the lower of cost or market valued
and determined on a first-in,
first-out basis, but not to exceed
with respect to each Borrower, the
amounts set forth below:
Maximum Advance Against
Borrower Eligible Inventory
-------- ------------------
Oakhurst $0
SCPI $2,750,000
DFS $1,750,000
OMC $0
OH $0
G&O $0;
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provided, however, that FINOVA shall advance Inventory Loans
to the Borrowers, subject to the foregoing subline limits, in
an amount equal to twenty-five percent (25%) of the value of
that portion of each Borrower's Inventory, which would
otherwise be deemed ineligible because such Inventory had been
held by a Borrower in excess of 180 days and therefore
considered slow moving, consisting of out-of-season Inventory
purchased under special purchase arrangements and held in
anticipation of being sold at the next seasonal market; and
provided further, however, that the aggregate outstanding
principal amount of Inventory Loans to the Borrowers shall not
exceed at any time Three Million Five Hundred Thousand
($3,500,000); and provided further, however, that the
aggregate outstanding principal amount of Inventory Loans and
Receivable Loans to the Borrowers shall not exceed at any time
the Total Facility for Revolving Loans of Seven Million
Dollars ($7,000,000)."
4. Amendment of Section 12.18. Paragraph (a) of Section 12.18 of the Loan
Agreement (entitled "Capitalization") is hereby amended and restated to read in
its entirety as follows, effective as of the date hereof:
"(a) All of the issued and outstanding shares of the capital stock
of DFS and OMC, and approximately ninety percent (90%) of the
issued and outstanding shares of the capital stock of SCPI, are
directly and beneficially owned and held by Oakhurst, all of the
issued and outstanding shares of the capital stock of G&O are
directly and beneficially owned and held by DFS, and all of the
issued and outstanding shares of the capital stock of OH are
directly and beneficially held by certain subsidiaries of Oakhurst
in the percentages set forth in the definition of "OH" below, and
all of such shares have been duly authorized and are fully paid
and non-assessable, free and clear of all claims, liens, pledges
and encumbrances of any kind, except as disclosed in writing to
FINOVA;"
5. Tangible Net Worth. The "Tangible Net Worth" section of Section 13.14 of
the Loan Agreement, as set forth on the Schedule, is hereby amended to read in
its entirety as follows, effective as of the date hereof:
"Tangible Net Worth: Each of the Borrowers listed below shall
maintain at all times a Tangible Net Worth of not less than the
amounts set forth opposite their names below:
Borrower Tangible Net Worth
-------- ------------------
SCPI $3,500,000
DFS $ 900,000
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For the purpose of determining the Tangible Net Worth of each
Borrower listed above, the Fixed Asset Loan shall be allocated in
full to SCPI, and only direct Revolving Loan advances shall be
allocated to each Borrower."
6. Definitions. (a) The definition of "Current Liabilities" set forth in
Section 18 of the Loan Agreement is hereby amended to read in its entirety as
follows, effective as of the date hereof:
"Current Liabilities' at any date means the amount at which the
current assets of the Borrowers would be shown on a consolidated
balance sheet of the Borrowers as at such date, prepared in
accordance with GAAP, provided that amounts due from Affiliates
and investments in Affiliates shall be excluded therefrom, and
provided, further, that there shall also be excluded therefrom all
principal amounts outstanding and accrued interest thereon under
the Revolving Loans and the Fixed Asset Loan."
(b) Clause (vi) of the definition of "Eligible Receivables" set
forth in Section 18 of the Loan Agreement is hereby amended to read in its
entirety as follows, effective as of the date hereof:
"(viii) the account debtor's total obligations to the Borrowers
exceed fifteen percent (15%) of all Eligible Receivables on a
consolidated basis to the extent of such excess;"
(c) The definition of "H&H" set forth in Section 18 of the Loan
Agreement is hereby amended to read in its entirety as follows, effective
as of the date hereof:
"H&H'" means H&H Distributors, Inc., a Pennsylvania corporation."
(d) The definition of "OH" set forth in Section 18 of the Loan
Agreement is hereby amended to read in its entirety as follows, effective
as of the date hereof:
"OH' means Oakhurst Holdings, Inc., a Delaware corporation, a
co-borrower hereunder, with respect to which all of the issued and
outstanding capital stock is owned of record and beneficially by
the following subsidiaries of Oakhurst in the percentages stated:
SCPI-83.6%; and; DFS-16.4%".
(e) The definition of "Oakhurst" set forth in Section 18 of the
Loan Agreement is hereby amended to read in its entirety as follows,
effective as of the date hereof:
"Oakhurst' means Oakhurst Company, Inc., a Delaware corporation, a
co-borrower hereunder, and the direct parent of SCPI, DFS and
OMC."
(f) The definition of "Puma" set forth in Section 18 of the Loan
Agreement is hereby amended to read in its entirety as follows, effective
as of the date hereof:
"Puma' means Puma Products, Inc., a Texas corporation."
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7. Effectiveness of this Amendment. FINOVA must have received the following
items, in form and content acceptable to FINOVA, before this Amendment is
effective and before FINOVA is required to extend any credit to Borrowers as
provided for by this Amendment. The date on which all of the following
conditions have been satisfied is the "Closing Date".
(a) Amendment. This Amendment fully executed in a sufficient
number of counterparts for distribution to FINOVA and Borrowers.
(b) Authorizations. Evidence that the execution, delivery and
performance by each Borrower and each guarantor or subordinating creditor
of this Amendment and any instrument or agreement required under this
Amendment have been duly authorized.
(c) Representations and Warranties. The Representations and
Warranties set forth in the Loan Agreement must be true and correct.
(d) Other Required Documentation. All other documents and legal
matters in connection with the transactions contemplated by this Agreement
shall have been delivered or executed or recorded and shall be in form and
substance satisfactory to FINOVA.
8. Fees and Expenses. Borrowers hereby confirm that pursuant to Section
13.1 of the Loan Agreement, Borrowers shall reimburse FINOVA for all costs, fees
and expenses incurred by FINOVA in connection with the negotiation, preparation,
execution, delivery, administration and enforcement of this Amendment,
including, but not limited to, attorneys' fees.
9. Representations and Warranties. The Borrowers, jointly and severally,
represent and warrant as follows:
(a) Authority. Each Borrower has the requisite corporate power and
authority to execute and deliver this Amendment, and to perform its
obligations hereunder and under the Loan Documents (as amended or modified
hereby) to which it is a party. The execution, delivery and performance by
each Borrower of this Amendment, and the performance by each Borrower of
each Loan Document (as amended or modified hereby) to which it is a party
have been duly approved by all necessary corporate action of such Borrower
and no other corporate proceedings on the part of such Borrower are
necessary to consummate such transactions;
(b) Enforceability. This Amendment has been duly executed and
delivered by each Borrower. This Amendment and each Loan Document (as
amended or modified hereby) is the legal, valid and binding obligation of
each Borrower hereto or thereto, enforceable against such Borrower in
accordance with its terms, and is in full force and effect;
(c) Representations and Warranties. The representations and
warranties contained
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in each Loan Document (other than any such representations or warranties
that, by their terms, are specifically made as of a date other than the
date hereof) are correct on and as of the date hereof as though made on and
as of the date hereof;
(d) No Default. No event has occurred and is continuing that
constitutes an Event of Default; and
(e) Consummation of Puma Sale and H&H Sale. The Puma Sale and the
H&H Sale have been consummated on such terms and conditions as previously
disclosed to FINOVA.
10. Choice of Law. THIS AMENDMENT SHALL BE INTERPRETED IN ACCORDANCE WITH
THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF ARIZONA
GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. THE BORROWERS
HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF MARICOPA, THE STATE OF ARIZONA OR, AT THE SOLE
OPTION OF FINOVA, IN ANY OTHER COURT IN WHICH FINOVA SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER
IN CONTROVERSY. THE BORROWERS WAIVE ANY OBJECTION OF FORUM NON CONVENIENS AND
VENUE. THE BORROWERS WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON THEM,
AND CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE IN THE MANNER SET FORTH IN
SECTION 19.13 OF THE LOAN AGREEMENT FOR THE GIVING OF NOTICE. THE BORROWERS
FURTHER WAIVE ANY RIGHT THEY MAY OTHERWISE HAVE TO COLLATERALLY ATTACK ANY
JUDGMENT ENTERED AGAINST THEM.
11. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment or the Consent by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Amendment or such Consent.
12. Due Execution. The execution, delivery and performance of this
Amendment are within the power of Borrower, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval,
if any, and do not contravene any law or any contractual restrictions binding on
any Borrower.
13. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the Loan Agreement, and each reference
in the other Loan Documents to "the Loan Agreement", "thereof" or words of
like import referring to the Loan Agreement, shall
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mean and be a reference to the Loan Agreement as modified and amended
hereby.
(b) Except as specifically amended above, the Loan Agreement and
all other Loan Documents, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of
Borrower to FINOVA.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any FINOVA or the Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
(d) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or conditions
of the Loan Agreement, after giving effect to this Amendment, such terms
and conditions are hereby deemed modified or amended accordingly to reflect
the terms and conditions of the Loan Agreement as modified or amended
hereby.
14. Ratification. Borrowers hereby restate, ratify and reaffirm each and
every term and condition set forth in the Loan Agreement, as amended hereby, and
the Loan Documents effective as of the date hereof.
15. Estoppel. To induce FINOVA to enter into this Amendment and to continue
to make advances to Borrowers under the Loan Agreement, Borrowers hereby
acknowledge and agree that, after giving effect to this Amendment, as of the
date hereof, there exists no Event of Default and no right of offset, defense,
counterclaim or objection in favor of Borrower as against FINOVA with respect to
the Obligations.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------
Title: Vice President
------------------------
OAKHURST COMPANY, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
-------------------------
Title: Chairman
------------------------
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STEEL CITY PRODUCTS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
------------------------
PUMA PRODUCTS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
H & H DISTRIBUTORS, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
XXXXXXX'X FLEET SERVICE CO.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
------------------------
OAKHURST MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
------------------------
OAKHURST HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
------------------------
G & O SALES COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------
Title: Vice President
------------------------
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THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "Amendment"),
effective as of October 31, 1997, is entered into between FINOVA CAPITAL
CORPORATION ("FINOVA"), with a place of business at 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx, and Oakhurst Company, Inc. ("Oakhurst"), Steel City
Products, Inc. ("SCPI"), Xxxxxxx'x Fleet Service Co., Inc. ("DFS"), Oakhurst
Management Corporation ("OMC"), Oakhurst Holdings, Inc. ("OH"), and G & O Sales
Company ("G&O"), jointly and severally (individually "Borrower" and collectively
"Borrowers"), with the chief executive office of each Borrower located as
follows: Oakhurst, 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxx 00000; SCPI, 000
Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000; DFS, 000 Xxxx Xxxxx Xxxxxx, Xxxxx
Xxxxxx, Xxx Xxxx 00000; OMC, 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxx 00000;
OH, 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000; and G & O,
0000-00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000.
RECITALS
A. Borrowers and FINOVA have previously entered into that certain Loan
and Security Agreement dated as of March 28, 1996, as amended by that certain
First Amendment to Loan and Security Agreement dated as of June, 1996 and that
certain Second Amendment to Loan and Security Agreement effective as of June 1,
1997 (collectively, the "Loan Agreement"), pursuant to which FINOVA has made
certain loans and financial accommodations available to Borrowers. Terms used
herein without definition shall have the meanings ascribed to them in the Loan
Agreement.
B. Borrowers have requested FINOVA to renew the term of the Loan
Agreement for a period of one year after the expiration of the Initial Term
(said Renewal Term to expire on March 28, 1999).
C. Subject to the terms and conditions set forth herein, FINOVA has
agreed to such renewal.
D. Borrowers and FINOVA wish to amend the Loan Agreement to effectuate
the aforedescribed changes.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Renewal of Term of Loan Agreement. FINOVA hereby confirms to
Borrowers that the term of the Loan Agreement shall be renewed for a period of
one year after the expiration of the Initial Term. Said Renewal Term shall
expire on March 28, 1999.
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2. Amendment of Section 16.4 of the Schedule to the Loan Agreement
(entitled "Termination Fee"). Section 16.4 of the Schedule to the Loan Agreement
(entitled "Termination Fee") is hereby amended, effective as of the date hereof,
to read in its entirety as follows:
"The Termination Fee provided in Section 16.4 shall be an
amount equal to the following:
(i) if the Borrowers terminate this Agreement prior
to the second anniversary of this Agreement or the end of any
Renewal Term, one percent (1%) of the Total Facility for
Revolving Loans."
3. Payment of Renewal Fee. In consideration of FINOVA's renewal of the
term of the Loan Agreement and the extension of the term of the Fixed Asset
Note, Borrowers hereby confirm to FINOVA that they shall pay to FINOVA, in
accordance with the provisions of Section 3.1 of the Loan Agreement, a renewal
fee ("Renewal Fee") equal to $35,000 (representing one half of one percent
(0.5%) of the Total Facility for Revolving Loans). Said Renewal Fee shall be
fully earned as of the date hereof and shall be paid by Borrowers to FINOVA as
follows: (A) $17,500 simultaneously with the execution hereof and (B) $17,500 on
November 26, 1997.
4. Effectiveness of this Amendment. FINOVA must have received the
following items, in form and content acceptable to FINOVA, before this Amendment
is effective and before FINOVA is required to extend any credit to Borrowers as
provided for by this Amendment. The date on which all of the following
conditions have been satisfied is the "Closing Date".
(a) Amendment. This Amendment fully executed in a sufficient
number of counterparts for distribution to FINOVA and Borrowers.
(b) Authorizations. Evidence that the execution, delivery and
performance by each Borrower and each guarantor or subordinating
creditor of this Amendment and any instrument or agreement required
under this Amendment have been duly authorized.
(c) Representations and Warranties. The Representations and
Warranties set forth in the Loan Agreement must be true and correct.
(d) Payment of Fees. Payment by Borrowers of the fees
described in Section 5 of this Amendment.
(e) Other Required Documentation. All other documents and
legal matters in connection with the transactions contemplated by this
Agreement shall have been delivered or executed or recorded and shall
be in form and substance satisfactory to FINOVA, including, without
limitation, a certificate of the secretary of each Borrower as to board
resolutions and the incumbency of officers.
5. Fees and Expenses. Borrowers hereby confirm that pursuant to Section
13.1 of
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the Loan Agreement, Borrowers shall reimburse FINOVA for all costs, fees and
expenses incurred by FINOVA in connection with the negotiation, preparation,
execution, delivery, administration and enforcement of this Amendment,
including, but not limited to, attorneys' fees.
6. Representations and Warranties. The Borrowers, jointly and
severally, represent and warrant as follows:
(a) Authority. Each Borrower has the requisite corporate power
and authority to execute and deliver this Amendment,and to perform its
obligations hereunder and under the Loan Documents (as amended or
modified hereby) to which it is a party. The execution, delivery and
performance by each Borrower of this Amendment, and the performance by
each Borrower of each Loan Document (as amended or modified hereby) to
which it is a party have been duly approved by all necessary corporate
action of such Borrower and no other corporate proceedings on the part
of such Borrower are necessary to consummate such transactions;
(b) Enforceability. This Amendment has been duly executed and
delivered by each Borrower. This Amendment and each Loan Document (as
amended or modified hereby) is the legal, valid and binding obligation
of each Borrower hereto or thereto, enforceable against such Borrower
in accordance with its terms, and is in full force and effect;
(c) Representations and Warranties. The representations and
warranties contained in each Loan Document (other than any such
representations or warranties that, by their terms, are specifically
made as of a date other than the date hereof) are correct on and as of
the date hereof as though made on and as of the date hereof; and
(d) No Default. No event has occurred and is continuing that
constitutes an Event of Default.
7. Choice of Law. THIS AMENDMENT SHALL BE INTERPRETED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF
ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. THE
BORROWERS HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF MARICOPA, THE STATE OF ARIZONA OR, AT THE
SOLE OPTION OF FINOVA, IN ANY OTHER COURT IN WHICH FINOVA SHALL INITIATE LEGAL
OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE
MATTER IN CONTROVERSY. THE BORROWERS WAIVE ANY OBJECTION OF FORUM NON CONVENIENS
AND VENUE. THE BORROWERS WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
THEM, AND CONSENT THAT ALL SUCH SERVICE OF PROCESS BE MADE IN THE MANNER SET
FORTH IN SECTION 19.13 OF THE LOAN AGREEMENT FOR THE GIVING OF NOTICE. THE
BORROWERS FURTHER WAIVE ANY RIGHT THEY MAY OTHERWISE HAVE TO
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COLLATERALLY ATTACK ANY JUDGMENT ENTERED AGAINST THEM.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment or the Consent by
telefacsimile shall be effective as delivery of a manually executed counterpart
of this Amendment or such Consent.
9. Due Execution. The execution, delivery and performance of this
Amendment are within the power of Borrower, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval,
if any, and do not contravene any law or any contractual restrictions binding on
any Borrower.
10. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Loan Agreement, and
each reference in the other Loan Documents to "the Loan Agreement",
"thereof" or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as modified and
amended hereby.
(b) Except as specifically amended above, the Loan Agreement
and all other Loan Documents, are and shall continue to be in full
force and effect and are hereby in all respects ratified and confirmed
and shall constitute the legal, valid, binding and enforceable
obligations of Borrower to FINOVA.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any FINOVA or the Agent under
any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
(d) To the extent that any terms and conditions in any of the
Loan Documents shall contradict or be in conflict with any terms or
conditions of the Loan Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or
amended accordingly to reflect the terms and conditions of the Loan
Agreement as modified or amended hereby.
11. Ratification. Borrowers hereby restate, ratify and reaffirm each
and every term and condition set forth in the Loan Agreement, as amended hereby,
and the Loan Documents effective as of the date hereof.
12. Estoppel. To induce FINOVA to enter into this Amendment and to
continue to make advances to Borrowers under the Loan Agreement, Borrowers
hereby acknowledge and agree that, after giving effect to this Amendment, as of
the date hereof, there exists no Event of
4
14
Default and no right of offset, defense, counterclaim or objection in favor of
Borrower as against FINOVA with respect to the Obligations.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
------------------------
Title: Vice President
-----------------------
OAKHURST COMPANY, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
------------------------
Title: Chairman
-----------------------
STEEL CITY PRODUCTS, INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
------------------------
Title: Vice President
-----------------------
XXXXXXX'X FLEET SERVICE CO.
By: /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
------------------------
Title: Vice President
-----------------------
OAKHURST MANAGEMENT
CORPORATION
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
-------------------------
Title: Vice President
------------------------
OAKHURST HOLDINGS, INC.
By: /s/ Xxxxxx Xxxxxx
---------------------------
Name: Xxxxxx Xxxxxx
-------------------------
Title: Vice President
------------------------
G & O SALES COMPANY
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
--------------------------
Title: Vice President
-------------------------
5
