EXHIBIT 10(d)
AMENDMENT NO. 1
TO
CREDIT AND SECURITY AGREEMENT
AMENDMENT NO. 1 to CREDIT AND SECURITY AGREEMENT, dated as of August
31, 1998, by and between ASTREX, INC. ("Borrower") T.F. CUSHING, INC ("TFCI")
and FLEET NATIONAL BANK (the "Lender" or "Bank").
WITNESSETH:
WHEREAS, the Borrower, TFCI and the Bank executed and delivered a
certain Credit and Security Agreement, dated as of July 9, 1997 (the "Credit
Agreement"); and
WHEREAS, the Credit Agreement provides for, among other things, a
$2,500,000 revolving credit facility; and
WHEREAS, the Borrower and if TFCI have requested that the Lender
increase the amount of such revolving credit facility from $2.5 million to $3.5
million; and
WHEREAS, the Borrower has also requested that (i) the pricing on the
LIBOR Revolving Credit Portions under the Credit Agreement be decreased from the
LIBOR Rate plus two percent per annum to the LIBOR Rate plus one and one-half
percent per annum and (ii) the Revolving Credit Maturity Date and Revolving
Credit Loan Termination Date be extended from July 9, 1999 to July 7, 2000; and
WHEREAS, the Lender has agreed to such request provided that, among
other conditions precedent, (a) (i) the Borrower and TFCI execute and deliver
(i) this Amendment No. 1, and (ii) the Borrower executes and delivers a
$3,500,000 Amended and Restated Revolving Credit Promissory Note in the form of
Exhibit A attached hereto and hereby made a part hereof (the "1998 Note") and
(b) TFCI and Avest (as defined in the Credit Agreement) execute and deliver a
Guaranty Confirmation Agreement.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and the Lender hereby agree as follows:
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PART I. AMENDMENTS TO THE CREDIT AGREEMENT
Section 1. Section 1.3 of the Credit Agreement is hereby amended by
deleting the phrase "revolving credit promissory note" and inserting in lieu
thereof the phrase "amended and restated revolving credit promissory note".
Section 2. Section 1.4 of the Credit Agreement is hereby amended by
deleting the phrase "(ii) two percent (2%) (i.e., 200 basis points)" and
inserting in lieu thereof the phrase "(ii) one and one-half percent (1 1/2%)
(i.e., 150 basis points)".
Section 3. Sections 2.3 and 2.4 of the Credit Agreement are hereby
amended by deleting the date "March 31, 1997" and inserting in lieu thereof the
date "March 31, 1998".
Section 4. (a) Section 3.2(a) of the Credit Agreement is hereby
clarified by adding a closed parenthesis at the end of the first sentence
thereof.
(b) Section 8.5(a) of the Credit Agreement is hereby clarified by
deleting the word "not" in the fourth line thereof.
Section 5. Section 8.6 of the Credit Agreement is hereby amended by
deleting the phrase "Attention: Irene Marcic" and inserting in lieu thereof the
phrase "Attention: Michael McGuire".
Section 6. The definition of the term Borrowing Base contained in
Appendix A to the Credit Agreement is hereby amended by deleting the phrase
"Exhibit C" and inserting in lieu thereof the phrase "Exhibit B".
Section 7. The definition of the term "Financial Statements" in such
Appendix A is hereby amended and restated to read in its entirety as follows:
"Financial Statements": the consolidated balance sheet of the
Borrower and its Subsidiaries as at March 31, 1997 and the related
statements of operations, stockholder's equity and cash flows of the
Borrower and such Subsidiaries for the fiscal year then ended, and the
accompanying footnotes together with the report thereon, dated the date
thereof, by KPMG Peat Marwick LLP, independent public accountants, and
the consolidated balance sheet of the Borrower and its Subsidiaries as
at March 31, 1998 and the related statements of operations,
stockholder's equity and cash flows of the Borrower and such
Subsidiaries for the fiscal year then ended, and the accompanying
footnotes together with the report thereon, dated the date thereof, by
KPMG Peat Marwick LLP, independent public accountants.
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Section 8. The definition of the term "Liabilities" contained in such
Appendix A is hereby and restated to read in its entirety as follows:
"Liabilities": as of any date, shall mean, without
duplication, (i) all indebtedness, obligations and liabilities of the
Borrower and/or its Subsidiaries which would be reflected as
liabilities on a balance sheet, as of such date, of the Borrower and/or
any of its Subsidiaries and prepared in accordance with GAAP, or would
be noted or presented in any footnote thereto, and including without
limitation any Indebtedness of the Borrower or any of its Subsidiaries
and (ii) all obligations, indebtedness and other liabilities of any
other Person secured by any Lien on any assets or other properties of
the Borrower and/or any of its Subsidiaries.
Section 9. The definition of the term "Receivables" in such Appendix A
is hereby clarified by deleting the word "Borrower" each time it appears and
inserting in lieu thereof (in each such instance) the phrase "Borrower or TFCI,
as the case may be"
Section 10. The definition of the term "Revolving Credit Loan" and
"Revolving Credit Loans" in such Appendix A is hereby clarified by deleting the
phrase "Libor Loans and Prime Rate Loans made pursuant to the Credit Agreement"
and inserting in lieu thereof "any and all Loans consisting of part of the Prime
Rate Revolving Credit Portion or part of the LIBOR Revolving Credit Portion".
Section 11. The definition of the term "Revolving Credit Loan
Termination Date" is hereby amended by deleting the date "July 9, 1999" and
inserting in lieu thereof the date "July 7, 2000".
Section 12. The definition of the term "Revolving Credit Maturity Date"
is hereby amended by deleting the date "July 9, 1999" and inserting in lieu
thereof the date "July 7, 2000".
Section 13. The definition of the term Revolving Credit Maximum Amount
in such Appendix A is hereby amended by deleting the phrase "(i) Two Million
Five Hundred Thousand Dollars ($2,500,000) or" and inserting in lieu thereof the
phrase "(i) Three Million Five Hundred Thousand Dollars ($3,500,000) or".
Section 14. Exhibit A to the Credit Agreement is hereby amended and
restated to read in its entirety as set forth in Exhibit A attached hereto and
made a part hereof and Exhibit A attached hereto shall be and become, for all
purposes, Exhibit A to the Credit Agreement.
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PART II. CONDITIONS PRECEDENT
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Section 15. The Lender's agreement to enter into the amendments set
forth in this Amendment is contingent upon the following conditions precedent
being satisfied by the Borrower:
(a) The Borrower and TFCI shall execute and deliver this
Amendment the Borrower shall execute and deliver the 1998 Note
and the Borrower and TFCI shall execute and deliver such other
documents as the Bank may reasonably require.
(b) TFCI and Avest shall execute and deliver a Guaranty
Confirmation Agreement in form and substance reasonably
satisfactory to the Lender.
(c) Each of the Borrower and TFCI shall cause the delivery of
a certificate of its corporate secretary or assistant
secretary (i) certifying (and attaching) resolutions adopted
by its Board of Directors authorizing the execution, delivery
and performance of this Amendment, the 1998 Note (in the case
of the Borrower) and all related documentation, (ii)
certifying that no amendments have been made to the Borrower's
or TFCI, as the case may be, certificate of incorporation or
by-laws (or, if such changes have been made, attaching copies
of the relevant amendment documents), and (iii) certifying as
to the incumbency (and signature) of any officer of the
Borrower or TFCI's, as the case may be, which executes and
delivers this Amendment or (in the case of the Borrower) the
1998 Note.
(e) UCC search reports are delivered to the Bank with respect
to filings made against the Borrower or TFCI and good standing
certificates with respect to the Borrower and TFCI are
delivered to the Bank.
(f) The Borrower shall pay the fees and disbursements of the
Lender's legal counsel incurred in connection with this
Amendment and any related documents and matters.
PART III. MISCELLANEOUS
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Section 16. Pursuant to Section 1.3 of the Credit Agreement and the
amendments set forth above, any reference to the term "Note" in the Credit
Agreement shall mean the 1998 Note as it may be extended or otherwise amended,
supplemented, or modified from time to time and also any notes (if any) given in
extension, renewal, or substitution of the 1998 Note.
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Section 17. Except as amended hereby, the Credit Agreement as
originally constituted shall remain in full force and effect.
Section 18. Each of the Borrower and TFCI hereby represents and
warrants and covenants to the Lender that:
(i) The execution, delivery and performance by the Borrower and TFCI of
this Amendment, the 1998 Note (in the case of the Borrower) and any
related documents have been duly authorized by all necessary corporate
action on the part of the Borrower or TFCI, as the case may be, and do
not violate, conflict with, or result in a breach of the certificate of
incorporation or by-laws of Borrower or TFCI, as the case may be, or
any agreement or instrument or court order or judgment to which
Borrower or TFCI, as the case may be, is a party or which is binding
upon Borrower or TFCI, as the case may be, or any of their properties.
This Amendment, the 1998 Note and any related documents to which the
Borrower or TFCI is a party are the respective legal, valid and binding
obligations of the Borrower, or TFCI, as the case may be, enforceable
in accordance with their respective terms.
(ii) The Credit Agreement as amended hereby and all other Financing
Documents (as defined in the Credit Agreement) to which the Borrower or
TFCI, as the case may be, is a party are the respective legal, valid
and binding obligations of the Borrower or TFCI, as the case may be,
enforceable in accordance with their respective terms.
(iii) The security interests granted by the Borrower and TFCI, pursuant
to the Credit Agreement, in the Collateral (as defined in the Credit
Agreement) remain in full force and effect and secure the payment and
performance of all Secured Obligations (as defined in the Credit
Agreement).
(iv) Neither the Borrower nor TFCI, as of the date hereof, has any
claim, defense, counterclaim, or right of offset against the Lender,
whether relating to the Credit Agreement or otherwise.
(v) All representations and warranties of the Borrower or TFCI, as the
case may be, under the Credit Agreement and the other Financing
Documents to which it is a party are true and correct as of the date
hereof.
Section 19. This Amendment (i) may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
together shall be considered one instrument and (ii) shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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Section 20. This Amendment shall be construed in accordance with and
governed by the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
ASTREX INC.
By: /s/ Michael McGuire
--------------------------------
Name: Michael McGuire
Title: President
T.F. CUSHING, INC.
By: /s/ Michael McGuire
--------------------------------
Name: Michael McGuire
Title: President
FLEET NATIONAL BANK
By: /s/Anthony McKiernan
--------------------------------
Name: Anthony McKiernan
Title: Vice-President
Amendment no.1 to Credit And Security Agreement
EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE
$3,500,000.00 Stamford, Connecticut
August 13, 1998
FOR VALUE RECEIVED, ASTREX, INC., a Delaware corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of Fleet
National Bank (the "Lender" or "Bank"), at the office of the Lender located at
One Landmark Square, Stamford, Connecticut, or such other office as the holder
hereof may designate, in lawful money of the United States and in immediately
available funds, the principal sum of Three Million Five Hundred Thousand
Dollars ($3,500,000.00) or, if less, the aggregate unpaid amount of all
Revolving Credit Loans (as defined in the Credit and Security Agreement referred
to below) made by the Lender to the Borrower pursuant to the Credit and Security
Agreement, together with interest thereon as provided for below. All capitalized
terms unless defined herein shall have the meanings assigned to them in the
Credit and Security Agreement.
1. Payment of Principal. Borrower shall pay the outstanding principal balance of
each Revolving Credit Loan in full on the Revolving Credit Maturity Date.
2. Interest Rate; Payment of Interest. Borrower shall pay interest on the
aggregate unpaid principal balance of the Revolving Credit Loans outstanding
from time to time at the applicable rate or rates set forth in Credit and
Security Agreement, dated July 9, 1997 between the Borrower, T.F. Cushing, Inc.
and the Lender, as amended, supplemented or otherwise modified from time to time
(the "Credit and Security Agreement"). Interest shall be payable, in arrears,
and on each Revolving Credit Interest Payment Date and shall also be payable on
the Revolving Credit Maturity Date. Anything contained in this Note to the
contrary notwithstanding, during any period in which an Event of Default is
continuing, the interest rate hereunder shall, at the option of the Lender, be
increased to the Revolving Credit Default Rate, and all interest accruing at
such rate shall be payable upon demand by the Lender.
Interest shall commence to accrue on the date hereof and shall continue
to accrue until all principal hereof is paid in full (whether before or after
maturity or judgment). Interest under this Note shall be computed on the basis
of a year of three hundred sixty (360) days and the actual number of days
elapsed.
3. Optional and Mandatory Prepayments. Optional and mandatory prepayments of the
Revolving Credit Loans shall be made in accordance with Section 1.7 of the
Credit and Security Agreement.
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4. Expenses. Borrower shall pay or reimburse the Lender, on demand, for all
costs and expenses, including, but not limited to, the reasonable fees and
disbursements of legal counsel, appraisers, accountants and other experts
employed by the Lender, incurred in the administration, preservation, defense,
protection, or collection or other enforcement of this Note or in foreclosing or
otherwise enforcing any security interest securing the payment of this Note or
in sustaining or protecting the lien or priority of any such security interest,
or in attempting to do any of the foregoing.
5. Credit and Security Agreement; Lender's Records. This Note evidences
Revolving Credit Loans under, and has been executed and delivered by the
Borrower in accordance with, the terms and conditions of the Credit and Security
Agreement, which Credit and Security Agreement, among other things, contains
provisions with respect to prepayment (optional and mandatory), and the
acceleration of the unpaid principal of, and accrued and unpaid interest on the
Revolving Credit Loans upon the occurrence and at any time during the
continuance of any Event of Default. The Lender is entitled to the benefits of
the Credit and Security Agreement and the other Financing Documents and may
enforce the covenants and other agreements of the Borrower contained therein,
and the Lender may exercise the respective rights, remedies and powers provided
for thereby or otherwise available in respect thereof, all in accordance with
the respective terms thereof.
The records of the Lender shall be prima facie evidence of the
Revolving Credit Loans, any accrued interest thereon and all principal and
interest payments made in respect thereof; provided, that no failure of the
Lender to timely record any transaction, or any error therein, shall in any way
affect or impair any liability or other obligation of the Borrower to the
Lender.
6. Certain Waivers. Borrower and any indorser hereof or any other party hereto
or any guarantor hereof (collectively, the "Obligors") and each of them (i)
waive(s) presentment, diligence, protest, demand, notice of demand, notice of
acceptance or reliance, notice of non-payment, notice of dishonor, notice of
protest and all other notices to parties in connection with the delivery,
acceptance, performance, default or enforcement of this Note, any indorsement or
guaranty of this Note, or any collateral or other security; (ii) consent(s) to
any and all delays, extensions, renewals or other modifications of this Note,
any other Financing Document or the debt(s) or collateral evidenced hereby or
thereby or any waivers of any term hereof or thereof, any release, surrender,
taking of additional, substitution, exchange, failure to perfect or record any
interest in, failure to preserve or realize upon, failure to lawfully dispose
of, or any other impairment of, any collateral or other security, or any other
failure to act by the Lender or any other forbearance or indulgence shown by the
Lender, from time to time and in one or more instances (without notice to or
assent from any of the Obligors) and agree(s) that none of the foregoing shall
release, discharge or otherwise impair any of their liabilities; (iii) agree(s)
that the full or partial release or discharge of any Obligor(s) shall not
release, discharge or otherwise impair the liabilities of any other Obligor(s);
and (iv) waive(s) any defenses based on suretyship or impairment of collateral.
7 Commercial Transaction; Jury Waiver. (a) THE BORROWER ACKNOWLEDGES THAT THE
TRANSACTION OF WHICH THIS NOTE IS A PART IS A "COMMERCIAL TRANSACTION" WITHIN
THE MEANING OF CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, AND
THAT ANY MONIES, PROPERTY OR SERVICES WHICH ARE THE SUBJECT OF SUCH TRANSACTION
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES. THE BORROWER HEREBY WAIVES
ANY RIGHT WHICH BORROWER MIGHT HAVE TO A NOTICE AND A HEARING, UNDER SECTIONS
52-278a-52-278g, INCLUSIVE, OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR
OTHER APPLICABLE FEDERAL OR STATE LAW, IN THE EVENT THE LENDER (OR ITS
SUCCESSORS OR ASSIGNS) SEEKS ANY PREJUDGMENT REMEDY IN CONNECTION WITH THIS
NOTE, THE CREDIT AND SECURITY AGREEMENT OR ANY OTHER FINANCING DOCUMENT.
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(b) THE BORROWER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY
AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR
OUT OF, OR OTHERWISE RELATED TO OR OTHERWISE CONNECTED WITH THIS NOTE OR ANY
OTHER FINANCING DOCUMENT.
8. Binding Nature. This Note shall bind the Borrower and Borrower's successors
and assigns and shall inure to the benefit of the Lender and its successors and
assigns. The term "Lender" as used herein shall include, in addition to the
Lender, any successors, indorsees, or other assignees of Lender and shall also
include any other holder of this Note. Any transferee of this Note shall have
the rights of a holder in due course under Article 3 of the Connecticut Uniform
Commercial Code if the transferee took rights under this Note in good faith for
value and without notice of a claim or defense.
9. Governing Law. This Note shall be governed by, and construed and interpreted
in accordance with the laws the State of Connecticut, without regard to its
rules pertaining to conflicts of laws thereunder.
10. Amended and Restated Note. This Note (i) amends and restates the Revolving
Credit Promissory Note, dated July 9, 1997, from the Borrower to the Lender (the
"Existing Note"), (ii) evidences, in addition to any Revolving Credit Loans made
by the Lender on or after the date hereof, any Revolving Credit Loans
outstanding as of the date hereof and previously evidenced by the Existing Note
and (iii) and is a modification with respect to, and does not constitute a
novation of, any such outstanding Revolving Credit Loans.
Anything contained herein to the contrary notwithstanding, and in
addition to, and not in limitation of, any other obligations of the Borrower
hereunder, the Borrower shall pay to the Lender in accordance with the Credit
and Security Agreement any unpaid interest which has accrued under the Existing
Note, as of the date hereof, on any outstanding Revolving Credit Loans.
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IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
as of the day and year first written above.
WITNESS: ASTREX, INC.
/s/ Lori A. Sarnataro By: /s/ Michael McGuire
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Name: Lori A. Sarnataro Name: Michael McGuire
Title: President