EXHIBIT 10.15
FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "AMENDMENT"),
dated as of June 10, 1997, is by and among FLEET CAPITAL CORPORATION ("LENDER"),
a Rhode Island corporation and TECHNICAL PRODUCTS GROUP, INC. ("TECHNICAL
PRODUCTS"), a Delaware corporation, XXXXXX PROPERTIES, INC. ("XXXXXX"), a
Delaware corporation, DELAND PROPERTIES, INC. ("DELAND"), a Delaware
corporation, and LINCOLN PROPERTIES, INC. ("LINCOLN"), a Delaware corporation
(Technical Products, Xxxxxx, DeLand and Lincoln being referred to individually,
collectively, and joint and severally, as "BORROWER").
RECITALS
A. Lender and Borrower have entered into that certain Loan and Security
Agreement dated December 27, 1996 (the "AGREEMENT").
B. Lender and Borrower desire to amend the Agreement as herein set
forth.
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
SECTION 1.01. DEFINITIONS. Capitalized terms used in this Amendment, to
the extent not otherwise defined herein, shall have the same meaning as in the
Agreement, as amended hereby.
ARTICLE II
AMENDMENTS
SECTION 2.01. AMENDMENT TO SECTION 8.3.3. Effective as of the effective
date hereof, SECTION 8.3.3 of the Agreement is hereby amended and restated in
its entirety to read as follows:
"8.3.3. ADJUSTED TANGIBLE NET WORTH. TPG shall maintain, as of
the last day of each fiscal quarter indicated below, Consolidated
Adjusted Tangible Net Worth of not less than the amount shown below as
of the date shown below:
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DATE AMOUNT
---- ------
(i) March 31, 1997 (i) $8,500,000
(ii) June 30, 1997 (ii) $6,300,000
(iii)September 30, 1997 (iii)$6,800,000
(iv) December 31, 1997, March 31, (iv) $9,200,000
1998, June 30, 1998 and
September 30, 1998
(v) December 31, 1998, March 31, (v) $11,800,000
1999, June 30, 1999 and
September 30, 1999
(vi) December 31, 1999 (vi) $15,800,000"
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. CONDITIONS. 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 all of the following,
each dated (unless otherwise indicated) as of the date of this
Amendment, in form and substance satisfactory to Lender.
(1) Officer's Certificate. An officer's
certificate (hereinafter referred to as the "OFFICER'S
CERTIFICATE") certified by the Executive Vice President of
each Borrower certifying that such Borrower has complied with,
and presently is in compliance with, all covenants, agreements
and conditions set forth in the Agreement, as amended by this
Amendment. The Officer's Certificate shall conform to the
Officer's Certificate which is attached hereto as EXHIBIT A
and incorporated herein by reference for all purposes;
(2) Company General Certificate. A company
general certificate (hereinafter referred to as the "COMPANY
GENERAL CERTIFICATE") certified by the Secretary of each
Borrower, certifying (i) that such Borrower's Board of
Directors has met and adopted, approved, consented to and
ratified the resolutions attached thereto which authorize the
execution, delivery and performance by such Borrower of this
Amendment and all other loan documents to which such Borrower
is or is to be a party hereunder (hereinafter referred to as
the "LOAN DOCUMENTS"), (ii) the names of the officers of such
Borrower authorized to sign this Amendment and each of the
Loan Documents to which such Borrower is to be a party
hereunder (including the certificates contemplated herein),
(iii) the specimen signatures of such officers, and (iv) that
such Borrower has not amended such Borrower's Bylaws since the
date of the Agreement. Each Company General Certificate shall
conform to the form of
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Company General Certificate which is attached hereto as
EXHIBIT B and incorporated herein by reference for all
purposes.
(3) Additional Information. Such additional
documents, instruments and information as Lender or its legal
counsel may request;
(b) The representations and warranties contained
herein and in all Loan Documents, as amended hereby, shall be true and
correct in all material respects as of the date hereof as if made on
the date hereof.
(c) No Event of Default shall have occurred and be
continuing and no event or conditions shall have occurred that with the
giving of notice or lapse of time or both would be an Event of Default
unless such Event of Default has been or is herein specifically waived
in writing by Lender; and
(d) All corporate proceedings taken in connection
with the transaction contemplated by this Amendment and all documents,
instruments and other legal matters incident thereto shall be
satisfactory to Lender and its legal counsel.
ARTICLE IV
LIMITED WAIVER
SECTION 4.01. LIMITED WAIVER OF CERTAIN FINANCIAL COVENANT DEFAULTS.
Upon satisfaction of the conditions specified in ARTICLE III hereof, Lender
shall, subject to the terms and conditions set forth below, waives the following
Event of Default:
(a) The breach by Borrower of its covenant under SECTION 8.3.3
of the Agreement to maintain Adjusted Tangible Net Worth as of March
31, 1997 of not less than $8,500,000.00.
Except as otherwise specifically provided for in this ARTICLE IV, nothing
contained in this Amendment shall be construed as a waiver by Lender of any
covenant or provision of the Loan Agreement, the other Loan Documents, this
Amendment, or of any other contract or instrument between Borrower and Lender,
and Lender's failure at any time or times hereafter to require strict
performance by Borrower 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 other
Loan Documents, this Amendment and any other contract or instrument between
Borrower and Lender.
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ARTICLE V
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
SECTION 5.01. RATIFICATIONS. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Agreement and except as expressly modified and superseded by this
Amendment, the terms and provisions of the Agreement are ratified and confirmed
and shall continue in full force and effect. Borrower and Lender agree that the
Agreement as amended hereby shall continue to be legal, valid, binding and
enforceable in accordance with its terms, subject to bankruptcy, insolvency and
other similar laws affecting the rights of creditors generally and equitable
principles of general applicability.
SECTION 5.02. REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants to Lender (i) 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 Borrower and will not violate the Certificate of Incorporation or
Bylaws of Borrower; (ii) the representations and warranties contained in the
Agreement, as amended hereby, and any other Loan Document are true and correct
in all material respects on and as of the date hereof as though made on and as
of the date hereof; (iii) no Event or Default under the Agreement has occurred
and is continuing and no event or condition has occurred and is continuing that
with the giving of notice or lapse of time or both would be an Event of Default
unless such Event of Default has been or is herein specifically waived in
writing by Lender; (iv) Borrower is in full compliance in all material respects
with all covenants and agreements contained in the Agreement, as amended hereby,
except to the extent such compliance has been or is herein specifically waived
in writing by Lender; and (v) Borrower has not amended its Bylaws since the date
of the Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made in the Agreement or any other document or
documents relating thereto, including, without limitation, any Loan Document
furnished in connection with this Amendment, shall survive the execution and
delivery of this Amendment and the other Loan Documents, and no investigation by
Lender or any closing shall affect the representations and warranties or the
right of Lender to rely upon them.
SECTION 6.02. REFERENCE TO AGREEMENT. Each of the Loan Documents,
including the Agreement 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 Agreement as amended hereby, are hereby amended
so that any reference in such Loan Documents to the Agreement shall mean a
reference to the Agreement as amended hereby.
SECTION 6.03. EXPENSES OF LENDER. As provided in the 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 and
the other Loan Documents executed pursuant hereto and any
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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 Agreement, as amended hereby, or any other Loan
Document, including, without limitation, the costs and fees of Lender's legal
counsel.
SECTION 6.04. 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.
SECTION 6.05. 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.
SECTION 6.06. RELEASE. BORROWER 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 THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR
DAMAGES OF ANY KIND OR NATURE FROM LENDER. BORROWER HEREBY VOLUNTARILY AND
KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER, ITS PREDECESSORS, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, 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, FIXED, 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 MAY NOW OR HEREAFTER HAVE AGAINST LENDER, ITS PREDECESSORS, OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, 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, TAKING, 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.
SECTION 6.07. SUCCESSORS AND ASSIGNS. This Amendment is binding upon
and shall inure to the benefit of Lender and Borrower and their respective
successors and assigns, except Borrower may not assign or transfer any of its
rights or obligations hereunder without the prior written consent of Lender.
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SECTION 6.08 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.
SECTION 6.09. 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 shall be deemed a consent to or waiver of any other breach
of the same or any other covenant, condition or duty.
SECTION 6.10. 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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IN WITNESS WHEREOF, this Amendment has been duly executed in Dallas,
Texas, on the day and year specified at the beginning of this Amendment.
BORROWER:
TECHNICAL PRODUCTS GROUP, INC.
By:/s/XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
XXXXXX PROPERTIES, INC.
By:/s/XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
DELAND PROPERTIES, INC.
By:/s/XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
LINCOLN PROPERTIES, INC.
By:/s/XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx
Executive Vice President
ACCEPTED IN DALLAS, DALLAS COUNTY, TEXAS:
LENDER:
FLEET CAPITAL CORPORATION
By:/s/XXXXX XXXXXXXX
Xxxxx XxxXxxxx
Vice President
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