1
EXHIBIT 10
FIRST AMENDMENT
TO LOAN AND SECURITY AGREEMENT
BETWEEN TRISTAR CORPORATION
AND FREMONT FINANCIAL CORPORATION
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made as of July 7, 1995 by and between FREMONT FINANCIAL CORPORATION
("Fremont") and TRISTAR CORPORATION ("Borrower"), in light of the following:
WHEREAS, Borrower and Fremont entered into a Loan and Security
Agreement dated October 8, 1993 (as amended from time to time,, the "Loan
Agreement"; Capitalized terms used herein shall have the meanings set forth in
the Loan Agreement unless specifically defined herein); and
WHEREAS, Borrower and Fremont wish to amend the Loan Agreement as set
forth herein.
NOW THEREFORE, in consideration of the mutual promises and agreements
of the parties hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged the
parties hereto agree as follows:
1. Section 2.1 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"2.1 Revolving Advances; Advance Limit. Upon the request
of Borrower, made at any time or from time to time during the term
hereof, and so long as no Event of Default has occurred and is
continuing, Fremont shall, in its sole and absolute discretion, make
advances to Borrower in an amount up to (a) seventy-five percent (75%)
of the aggregate outstanding amount of Eligible Accounts, plus (b) the
lesser of (1) fifty percent (50%) of the aggregate value of the
Eligible Inventory or (2) Five Million and No/100 Dollars
($5,000,000.00); provided, however, that in no event shall the
aggregate amount of the outstanding advances made pursuant to this
Section 2.1 be greater than, at any time, the sum of Ten Million
Dollars ($10,000,000.00) (the Advance Limit)."
2. Section 2.12 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"2.12 Maintenance Fee. Borrower agrees to pay Fremont a
fee (Maintenance Fee) in an amount equal to one-twelfth of one percent
of the outstanding loan balance on or before the first (1st) day of
each calendar month, in respect of Fremont's services for the
preceding calendar month, during the term of this Agreement, including
all renewal terms, or so long as any of the Obligations are
outstanding."
1
2
3. Section 3.1 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"3.1 Renewal Date. This Agreement shall become effective
upon acceptance by Fremont and shall continue in full force and effect
for a term ending on July __, 1997 (the Renewal Date) and from year to
year thereafter, unless sooner terminated pursuant to the terms
hereof; provided that, Borrower hereby agrees that Fremont may, at
Fremont's option, extend the Renewal Date to July 7, 1998 by giving
Borrower notice at least seventy (70) days prior to the Renewal Date.
Either party may terminate this Agreement on the Renewal Date or on
the anniversary of the Renewal Date in any year by giving the other
party at least sixty (60) days prior written notice by registered or
certified mail, return receipt requested and, in addition, Fremont
shall have the right to terminate this Agreement immediately at any
time upon the occurrence of an Event of Default. No termination of
this Agreement, however, shall relieve or discharge Borrower of
Borrower's duties, Obligations and covenants hereunder until all
Obligations have been paid in full, and Fremont's continuing security
interest in the Collateral shall remain in effect until all of
Borrower's Obligations to Fremont have been fully paid and satisfied.
Upon termination of this Agreement, all of the Obligations shall be
immediately due and payable in full."
4. Section 3.2 of the Loan Agreement is deleted in its entirety
and replaced with the following:
"3.2 Early Termination Fee. If this Agreement is
terminated by Fremont upon the occurrence of an Event of Default, or
is terminated at Borrower's request other than pursuant to Section
3.1, in view of the impracticability and extreme difficulty of
ascertaining actual damages and by mutual agreement of the parties as
to a reasonable calculation of Fremont's lost profits as a result
thereof, Borrower shall pay to Fremont upon the effective date of such
termination a fee (Early Termination Fee) in an amount equal to: (a)
two percent (2.0%) of the Advance Limit if such termination occurs on
or prior to July 7, 1996; or (b) one percent (1.0%) of the Advance
Limit if such termination occurs after July 7, 1996 other than on the
Renewal Date or on a subsequent anniversary of the Renewal Date. The
Early Termination Fee shall be presumed to be the amount of damages
sustained by Fremont, as the result of the early termination and
Borrower agrees that it is reasonable under the circumstances
currently existing. The Early Termination Fee provided for in this
Section 3.2 shall be deemed included in the Obligations. Anything
contained herein to the contrary notwithstanding, if and to the extent
the Early Termination Fee constitutes interest under applicable law,
the Early Termination Fee, when added to all other interest contracted
for, charged or received under this Agreement or any other Loan
Documents, shall not exceed, and shall be limited to an amount which
constitutes, interest at the Maximum Rate."
5. Borrower reaffirms, ratifies and confirms its Obligations
under the Loan Agreement, acknowledges that all the terms and conditions in the
Loan Agreement (except as
2
3
amended herein) remain in full force and effect and further acknowledges that
the security interest granted to Fremont in the Collateral is valid and
perfected.
6. Borrower is not aware of any events which now constitute, or
with the passage of time or the giving of notice would constitute, an Event of
Default under the Loan Agreement.
7. This Amendment constitutes the entire agreement of the parties
in connection with the subject matter of this Amendment and cannot be changed
or terminated orally. All prior agreements, understandings, representations,
warranties and negotiations regarding the subject matter hereof, if any, are
merged into this Amendment.
8. This Amendment may be executed in counterparts, each of which
when so executed and delivered shall be deemed an original, and all of such
counterparts together shall constitute but one and the same agreement.
9. This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia.
IN WITNESS WHEREOF, Borrower and Fremont have executed this Amendment
as of the date first written above.
FREMONT FINANCIAL CORPORATION,
a California corporation,
By:
_______________________________________
James M. O'Callahan
Assistant Vice President
TRISTAR CORPORATION,
a Delaware corporation
By:
---------------------------------------
Print Name:
-------------------------------
Title/Capacity:
---------------------------
3