AMENDMENT NO. 7 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 7 TO AMENDED AND RESTATED
Amendment
No. 7 to Amended and Restated Loan and Security Agreement dated as of
_______________, 2007, by and between ZONES, INC. (“Borrower”)
and GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION (formerly
known as Transamerica Commercial Finance Corporation) (“Lender”).
PREAMBLE:
Pursuant
to that certain Amended and Restated Loan and Security Agreement dated as of
April 11, 2003 by and among Lender, Borrower, and The Mac Zone, Inc. (“Borrower
3”) (Borrower and Borrower 3 are sometimes hereinafter individually referred
to
as an “Original Borrower” and collectively as the “Original Borrowers”) as
amended from time to time (collectively, the “Loan Agreement”), Lender made
certain financing available to Original Borrowers. Borrower and
Borrower 3 have merged with the surviving entity being Borrower (the
“Borrower/Borrower 3 Merger”). Borrower has requested Lender to
modify certain terms and provisions of the Documents. Lender has
agreed to do so, upon the terms and conditions of this Amendment.
NOW,
THEREFORE, in consideration of the premises which are incorporated herein by
this reference and constitute an integral part of this Amendment, the execution
and delivery of this Amendment and the mutual covenants and agreements hereafter
set forth, the parties hereto agree as follows:
1. The
parties
acknowledge and agree that as a result of the Borrower/Borrower 3 Merger, (A)
Borrower 3 shall no longer be deemed to be a “Borrower” under the Loan Agreement
and Documents; and (B) all references to “any Borrower” or “Borrowers” in the
Loan Agreement or the Documents (as defined in the Loan Agreement) shall only
include, without limitation, the Borrower; and (C) all references to Borrower
3
in the Loan Agreement or the Documents are deleted in their
entirety.
2. The
definition of “Maximum Credit Amount” located in Section 1.1 of the Loan
Agreement is hereby deleted in its entirety and replaced with the
following:
“‘Maximum
Credit Amount’ shall mean $50,000,000.00.”
3. Section
5.1(W) of the Loan Agreement entitled “Unsubordinated Debt to Tangible Net Worth
Ratio” is hereby deleted in its entirety and replaced with the
following:
“(W) Unsubordinated
Debt to Tangible Net Worth Ratio. Commencing on September 30,
2007, and at all times thereafter, it shall not cause, suffer or permit the
ratio of (i) Borrower’s total liabilities minus subordinated debt to (ii)
Borrower’s Tangible Net Worth to be greater than 3.75 to 1.00, as measured at
the end of each fiscal quarter.”
4. Section
5.1(X) of the Loan Agreement entitled “Tangible Net Worth” is hereby deleted in
its entirety and replaced with the following:
“(X) Tangible
Net Worth. Commencing on September 30, 2007, and at all times
thereafter, it shall not cause, suffer or permit Borrower’s Tangible Net Worth
to be less than $30,000,000.00, as measured at the end of each fiscal
quarter.”
5. Section
5.1(Y) of the Loan Agreement entitled “Fixed Charge Coverage” is hereby deleted
in its entirety.
6. Section
5.1(Z) of the Loan Agreement entitled “Current Ratio” is hereby deleted in its
entirety.
7. All
representations and warranties made to the Lender in the Documents are hereby
restated to the Lender and all of such representations and warranties remain
true and correct as of the date of this Amendment.
8. All
of the
pledges, assignments, transfers, conveyances, mortgages and grants of security
interest of any property given to Lender by Borrower pursuant to the Documents,
including, but not limited to, pursuant to Article 3 of the Loan Agreement,
have
constituted and shall and hereinafter do continue to constitute pledges,
assignments, transfers, conveyances, mortgages and grants of security interests
of property to secure the Liabilities.
9. Lender’s
obligation to enter into this Amendment is subject to the fulfillment of each
and every one of the following conditions prior to, or contemporaneously with
the execution and delivery of this Amendment.
A. All
of the conditions precedent set forth in the Loan Agreement shall have been
met;
and
B. Lender
shall have received such instruments, agreements and documents in form and
manner satisfactory to Lender and its counsel as Lender may reasonably request
and where applicable, duly executed and recorded.
10. All
references to the Loan Agreement in any of the Documents shall mean the Loan
Agreement, as amended by this Amendment and as may be further amended and/or
restated from time to time.
11. The
Loan
Agreement (as amended by this Amendment), together with the Documents, contain
the entire agreement between the parties hereto with respect to the transactions
contemplated herein and supercede all prior representations, agreements,
covenants and understandings, whether oral or written, related to the subject
matter of the Loan Agreement. Except as specifically set forth in the
Agreement, Lender makes no covenants to Borrower, including, but not limited
to,
any other commitments to provide any additional financing to
Borrower.
12. This
Amendment may be executed in any number of counterparts, each of which
counterpart, once they are executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall constitute but
one
in the same amendment.
13. Except
as
specifically amended and modified by this Amendment, (A) the Loan Agreement
shall remain in full force and effect and is hereby restated and incorporated
herein by this reference; and (B) all terms defined in the Loan Agreement shall
have the same meanings herein as therein.
[THE
BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK;
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the date first above written.
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BORROWER:
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ZONES,
INC.
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By:
/s/ XXXXXX XXXXXXXX
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Title:
SVP & CFO
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LENDER:
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GE
COMMERCIAL DISTRIBUTION
FINANCECORPORATION
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By:
/s/ XXXXX XXXXX
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Title:
VP - Operations
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