Exhibit 10.20
FIRST AMENDMENT TO
LOAN DOCUMENTS
THIS FIRST AMENDMENT TO LOAN DOCUMENTS (this "Amendment") is
entered into and effective as of the 29th day of September, 1994 by
and among TEMTEX INDUSTRIES, INC., a Delaware corporation, with its
principal office at 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 ("Borrower"), TEMCO FIREPLACE PRODUCTS, INC., a Texas
corporation (formerly known as Temtex Products, Inc.) with its
principal office at 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 ("Guarantor") and NATIONSBANK OF TEXAS, N.A., a national
banking association, with offices at 000 Xxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx, Xxxxx 00000 ("Lender").
RECITALS
A. Borrower and Lender entered into that certain Loan
Agreement, dated as of May 3, 1994 (as heretofore amended, the
"Loan Agreement"), pursuant to which Lender agreed to make loans
and advances to Borrower in accordance with the terms thereof. The
loans and advances to Borrower under the Loan Agreement are
guaranteed by Guarantor pursuant to the terms of that certain
Continuing and Unconditional Guaranty, dated May 3, 1994, by and
between Guarantor and Bank (as heretofore amended, the "Guaranty").
B. Borrower and Guarantor have requested Lender to make
certain amendments to the Loan Agreement and Guaranty, and Lender
at the request of Borrower and Guarantor, for good and valuable
consideration, is willing to enter into this Amendment upon the
terms and conditions as hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, agree as follows:
ARTICLE I
Definitions
1.01 Capitalized terms used in this Amendment are defined in
the Loan Agreement, as amended hereby, unless otherwise stated.
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ARTICLE II
Amendments to Loan Agreement
2.01 Amendment to Section 2(A). Section 2(A) of the Loan
Agreement is hereby amended by deleting such Section in its
entirety and inserting the following in lieu thereof:
"A. Loan. Bank hereby agrees to make loans to
Borrower in the aggregate principal amount of $3,512,000.
The obligation to repay the loans is evidenced by (i) a
promissory note dated May 3, 1994 in the principal amount
of $3,000,000 (the "Revolving Note"), having a maturity
date, repayment terms and interest rates as set forth
therein, and (ii) a promissory note dated September 29,
1994 in the principal amount of $512,000 (the "Term
Note"), having a maturity date, repayment terms and
interest rates as set forth therein (the Revolving Note
and the Term Note, together with any. other promissory
notes heretofore or hereafter executed pursuant to this
Agreement by Borrower in favor of Bank and any and all
renewals, extensions or rearrangements thereof being
hereafter collectively referred to as the "Note")."
ARTICLE III
Amendments to Guaranty
3.01 Amendments to Guaranty. The Guaranty is hereby amended by
deleting all references to the name "Temtex Products, Inc."
therefrom in their entirety and inserting the name "Temco Fireplace
Products, Inc." in lieu thereof.
ARTICLE IV
Conditions Precedent
4.01 Conditions Precedent. The effectiveness of this Amendment
is subject to the satisfaction of the following conditions
precedent, unless specifically waived in writing by Lender:
(a) Lender shall have received (i) this Amendment, duly
executed by Borrower and Guarantor, (ii) the Term Note, duly
executed by Borrower, (iii) such additional documents, instruments
and information as Lender or its legal counsel may request, and
(iv) a closing fee for the Term Loan equal to 0.5% ($2,560) in
immediately available funds;
(b) The representations and warranties contained herein
and in the Loan Agreement, as amended hereby, and the other Loan
Documents, shall be true and correct as of the date hereof, as if
made on the date hereof;
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(c) No default or event of default under the Loan
Agreement or other Loan Documents shall have occurred and be
continuing, unless such default or event of default has been
specifically waived in writing by Lender; and
(d) All corporate proceedings taken in connection with
the transactions contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Lender and its legal counsel.
ARTICLE V
No Waiver
5.01 Nothing contained herein shall be construed as a waiver
by Lender of any covenant or provision of the Loan Agreement, the
Guaranty or any other Loan Document, this Amendment, or of any
other contract or instrument between Borrower and/or Guarantor and
Lender, and Lender's failure at any time or times hereafter to
require strict performance by Borrower or Guarantor of any
provision thereof shall not waive, affect or diminish any right of
Lender to thereafter demand strict compliance therewith. Lender
hereby reserves all rights granted under the Loan Agreement, the
Guaranty, the other Loan Documents, this Amendment and any other
contract or instrument between Borrower and/or Guarantor and
Lender.
ARTICLE VI
Ratifications, Representations and Warranties
6.01 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Loan Agreement, the Guaranty and the
other Loan Documents, and, except as expressly modified and
superseded by this Amendment, the terms and provisions of the Loan
Agreement, the Guaranty and the other Loan Documents are ratified
and confirmed and shall continue in full force and effect.
Borrower, Guarantor and Lender agree that the Loan Agreement, the
Guaranty, as each is amended hereby, and the other Loan Documents
shall continue to be legal, valid, binding and enforceable in
accordance with their respective terms. Guarantor hereby ratifies
and confirms that the indebtedness and obligations evidenced by the
Term Note are "Liabilities" as defined in the GuarantY.
6.02 Representations and Warranties of Borrower. Borrower
hereby represents and warrants to Lender that (a) the execution,
delivery and performance of this Amendment, the Term Note and any
and all other Loan Documents executed and/or delivered in
connection herewith have been authorized by all requisite corporate
action on the part of Borrower and will not violate the Certificate
of Incorporation or Bylaws of Borrower; (b) attached hereto as
Exhibit A is a true, correct
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and complete copy of presently effective resolutions of Borrower's
board of directors authorizing the execution, delivery and
performance of this Amendment, the Term Note and any and all other
Loan Documents executed and/or delivered by Borrower in connection
herewith, certified by the Secretary of Borrower; (c) the
representations and warranties contained in the Loan Agreement, as
amended hereby, and any other Loan Documents are true and correct
on and as of the date hereof and on and as of the date of execution
hereof as though made on and as of each such date; (d) no default
or event of default under the Loan Agreement, as amended hereby, or
any other Loan Document has occurred and is continuing, unless such
default or event of default has been specifically waived in writing
by Lender; (e) Borrower is in full compliance with all covenants
and agreements contained in the Loan Agreement and the other Loan
Documents; and (f) Borrower has not amended its Certificate of
Incorporation or its Bylaws since May 3, 1994, except for such
amendments, if any, which are attached hereto as Exhibit B.
6.03 Representations and Warranties of Guarantor. Guarantor
hereby represents and warrants to Lender that (a) the execution,
delivery and performance of this Amendment and any and all other
Loan Documents executed and/or delivered in connection herewith
have been authorized by all requisite corporate action on the part
of Guarantor and will not violate the Articles of Incorporation or
Bylaws of Guarantor; (b) attached hereto as Exhibit C is a true,
correct and complete copy of presently effective resolutions of
Guarantor's board of directors authorizing the execution, delivery
and performance of this Amendment and any and all other Loan
Documents executed and/or delivered by Guarantor in connection
herewith, certified by the Secretary of Guarantor; (c) Guarantor is
in full compliance with all covenants and agreements contained in
the Guaranty and the other Loan Documents to which it is a party;
and (d) Guarantor has not amended its Articles of Incorporation or
its Bylaws since May 3, 1994, except for such amendments which are
attached hereto as Exhibit D.
ARTICLE VII
Miscellaneous Provisions
7.01 Survival of Representations and Warranties. All
representations and warranties made in the Loan Agreement or any
other Loan Document, including, without limitation, any document
furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the Term Note, and no
investigation by Lender or any closing shall affect the
representations and warranties or the right of Lender to rely upon
them.
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7.02 References. Each of the Loan Agreement, the Guaranty and
the other Loan Documents, and any and all other agreements,
documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Loan
Agreement, as amended hereby, are hereby amended so that (a) any
reference in the Loan Agreement, the Guaranty and such other Loan
Documents to the Loan Agreement shall mean a reference to the Loan
Agreement as amended hereby, and (b) any reference in the Loan
Agreement, the Guaranty and such other Loan Documents to the
Guaranty shall mean a reference to the Guaranty as amended hereby.
7.03 Expenses of Lender. As provided in Section 9 of the Loan
Agreement, Borrower agrees to pay on demand all costs and expenses
incurred by Lender in connection with the preparation, negotiation
and execution of this Amendment, the Term Note and the other Loan
Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without
limitation, the costs and fees of Lender's legal counsel, and all
costs and expenses incurred by Lender in connection with the
enforcement or preservation of any rights under the Loan Agreement,
as amended hereby, or any other Loan Documents, including, without
limitation, the costs and fees of Lender's legal counsel.
7.04 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment and
the effect thereof shall be confined to the provision so held to be
invalid or unenforceable.
7.05 Successors and Assigns. This Amendment is binding upon
and shall inure to the benefit of Lender, Borrower, Guarantor and
their respective successors and assigns, except neither Borrower
nor Guarantor may assign or transfer any of its rights or
obligations hereunder without the prior written consent of Lender.
7.06 Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed
to be an original, but all of which when taken together shall
constitute one and the same instrument.
7.07 Effect of Waiver. No consent or waiver, express or
implied, by Lender to or for any breach of or deviation from any
covenant or condition by Borrower or Guarantor shall be deemed a
consent to or waiver of any other breach of the same or any other
covenant, condition or duty.
7.08 Headings. The headings, captions, and arrangements used
in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
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7.09 Applicable Law. This Amendment and all other Loan
Documents executed pursuant hereto shall be deemed to have been
made and to be performable in and shall be governed by and
construed in accordance with the laws of the State of Texas.
7.10 Final Agreement. THE LOAN AGREEMENT, THE GUARANTY, EACH
AS AMENDED HEREBY, AND THE OTHER LOAN DOCUMENTS REPRESENT THE
ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER
HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE LOAN AGREEMENT,
THE GUARANTY, AS AMENDED HEREBY, AND THE OTHER LOAN DOCUMENTS MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION,
WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT
SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER,
GUARANTOR AND LENDER.
7.11 Release. EACH OF BORROWER AND GUARANTOR HEREBY
ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER
THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS
LIABILITY TO REPAY ANY AMOUNTS DUE AND OWING UNDER THE LOAN
DOCUMENTS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR
NATURE FROM LENDER. EACH OF BORROWER AND GUARANTOR HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER,
ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM
ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES,
COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FILED,
CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN
WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS EXECUTED,
WHICH THE BORROWER AND/OR GUARANTOR MAY NOW OR HEREAFTER HAVE
AGAINST LENDER, ITS PREDECESSORS, AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE
OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY LOANS, INCLUDING, WITHOUT
LIMITATION, ANY CONTRACTING FOR, CHARGING, TAXING, RESERVING,
COLLECTING OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL
RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE
LOAN AGREEMENT OR OTHER AGREEMENTS, AND NEGOTIATION FOR AND
EXECUTION OF THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment to Loan Documents on the date first written above.
BORROWER:
TEMTEX INDUSTRIES, INC.
By: _______________________________
Name: X. X. Xxxxxxx
Title: Vice President
GUARANTOR:
TEMCO FIREPLACE PRODUCTS, INC.
By: _______________________________
Name: X. X. Xxxxxxx
Title: Vice President
LENDER:
NATIONSBANK OF TEXAS, N.A.
By: _______________________________
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
EXHIBITS:
A - Certified Resolutions of Borrower's Board of Directors
B - Amendments to Certificate of Incorporation and/or Bylaws of
Borrower
C - Certified Resolutions of Guarantor's Board of Directors
D - Amendments to Articles of Incorporation and/or Bylaws of
Guarantor
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EXHIBIT "A"
Certified Resolutions
of
Temtex Industries. Inc.'s Board of Directors
RESOLVED: That any officer of Temtex Industries, Inc., a
Delaware corporation (the "Corporation"), acting alone, by his
signature be, and the same hereby is, authorized and directed, in
the name of and on behalf of the Corporation (a) to amend the
Corporation's existing Loan Agreement with NationsBank of Texas,
N.A. ("Lender"), (b) to execute and deliver to Lender, with such
changes in the terms and provisions thereof as the officer
executing same shall, in his sole discretion, deem advisable, (i)
a certain proposed First Amendment to Loan Documents, a draft of
which has been reviewed and discussed by the Board of Directors of
the Corporation, (ii) a certain proposed promissory note in the
amount of $512,000 in favor of Lender, a draft of which has been
reviewed and discussed by the Board of Directors of the Corporation
and (iii) such other agreements, instruments, statements and
writings as the officer or officers executing the same may deem
desirable or necessary in connection therewith, and (c) to perform
such other acts as the officer or officers performing such acts on
behalf of the Corporation may deem desirable or necessary in
connection therewith; and be it
FURTHER RESOLVED: That said agreements will benefit the
Corporation, both directly and indirectly, and are in the best
interests of the Corporation; and be it
FURTHER RESOLVED: That said agreements and other statements in
writing executed in the name and on behalf of the Corporation by
any officer of the Corporation shall be presumed conclusively to be
the instruments, the execution of which is authorized by these
resolutions; and be it
FURTHER RESOLVED: That the officers of the Corporation be, and
the same hereby are, authorized and directed to execute, in the
name of and on behalf of the Corporation, promissory notes,
security agreements, financing statements, assignments, collateral
reports, loan statements, confirmations of delivery, lien
statements, pledge certificates, release certificates, removal
reports, guaranties, cross-collateralization agreements and such
other writings and to take such other actions as are necessary in
their dealings with Lender, and any such papers executed and any
such actions taken by any of them prior to this time are approved,
ratified and confirmed; and be it
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FURTHER RESOLVED: That the Secretary of the Corporation, by
his signature, is, and hereby is, authorized and directed to attest
the execution by the Corporation of the papers signed pursuant to
these resolutions, to affix the seal of the Corporation thereto, if
required by Lender, and to certify to Lender the adoption of these
resolutions.
CERTIFICATION
The undersigned hereby certifies that the within and foregoing
resolutions are in effect as of the date hereof, without
modification, and that the person signing the within and foregoing
amendment and Promissory Note on behalf of the Corporation is the
duly elected officer stated below his name, that he is authorized
to sign such amendment and Promissory Note, and that his signature
thereon is genuine.
DATED: September 29, 1994.
___________________________________
X. X. Xxxxxxx,
Secretary of the Corporation
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EXHIBIT "B"
Amendments to Certificate of
Incorporation and/or Bylaws
If "none", so state
See Articles of Amendment to the Articles of Incorporation of
Temtex Products, Inc. dated May 3, 1994 changing name to Temco
Fireplace Products, Inc.
EXHIBIT "C"
CERTIFIED RESOLUTIONS
OF THE
BOARD OF DIRECTORS
OF
TEMCO FIREPLACE PRODUCTS, INC.
"RESOLVED, that this Corporation guarantee the payment and
performance of the indebtedness, obligations and liabilities of
Temtex Industries, Inc., a Delaware corporation ("the Borrower"),
to NationsBank of Texas, N.A., a national banking association (the
"Bank"), including, without limitation, the obligations evidenced
by that certain Term Note in the principal amount of $512,000,
dated as of September 29, 1994, bearing interest before and after
maturity as therein specified, and containing certain accelerating,
maturity, attorney's fees and costs of collection clauses, as
specified therein and all renewals, extensions and rearrangements
of such indebtedness;
"FURTHER RESOLVED, that the President or any Vice President of
this Corporation, is hereby authorized and empowered to agree upon
with the Bank the terms and provisions of and execute and deliver
for and on behalf of this corporation an instrument of guaranty,
which guaranty may be absolute and primary and extend to principal
and interest on such indebtedness, obligations and liabilities and
with such agreement to the terms and provisions of such instrument
of guaranty to be conclusively evidenced by any of said officers
execution and delivery of such instrument of guaranty;
"FURTHER RESOLVED, that the guaranty of this corporation
authorized by these resolutions may reasonably be expected to
benefit, directly or indirectly, this Corporation;
"FURTHER RESOLVED, that any of said officers are authorized
and empowered to do or cause to be done all such acts or things and
to sign and deliver, or cause to be signed and delivered, all such
documents, instruments and certificates (including without
limitation any and all notices and certificates required or
permitted to be given or made to the Bank under the terms of any of
the instruments executed on behalf of this Corporation in
connection with the guaranty of this Corporation as authorized by
these resolutions), in the name and on behalf of this Corporation
or otherwise, as any of such officers, in their discretion, may
deem necessary, advisable or appropriate to effectuate or carry out
the purposes and intent of the foregoing resolutions and to perform
the obligations of this Corporation under all instruments and
agreements executed on behalf of this Corporation in connection
with the guaranty of this Corporation as authorized by these
resolutions.
"FURTHER RESOLVED, that the execution by any of said officers
of any document authorized by the foregoing resolution, or any
document executed
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in the accomplishment of any action or actions so authorized, is
(or shall become upon delivery) the enforceable and binding act and
obligation of this Corporation, without the necessity of the
signature or attestation of any other officer of this Corporation
or the affixing of the corporate seal;
"FURTHER RESOLVED, that all acts, transactions, or agreements
undertaken prior to the adoption of these resolutions by any of the
officers or representatives of this Corporation in its name and for
its account with the Bank in connection with the foregoing matters
are hereby ratified, confirmed and adopted by this Corporation;
"FURTHER RESOLVED, that the Secretary or Assistant Secretary
of this Corporation is hereby authorized and directed to certify
these resolutions to the Bank: and
"FURTHER RESOLVED, that the Bank be promptly notified in
writing by the Secretary or any other officer of this Corporation
of any change in these resolutions, and until it has actually
received such notice in writing, the Bank is authorized to act in
pursuance of these resolutions.
CERTIFICATION
The undersigned hereby certifies that the within and foregoing
resolutions are in effect as of the date hereof, without
modification, and that the person signing the within and foregoing
guaranty on behalf of the Corporation is the duly elected officer
stated below his name, that he is authorized to sign such guaranty,
and that his signature thereon is genuine.
Dated: September 29, 1994.
___________________________________
X. X. Xxxxxxx, Secretary of
Temco Fireplace Products, Inc.
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EXHIBIT "D"
Amendments to Articles of
Incorporation and/or Bylaws
