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EXHIBIT 10.35
EIGHTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment"), dated as of October 27, 2000, is entered into among FINOVA CAPITAL
CORPORATION, a Delaware corporation ("FINOVA"), and Oakhurst Company, Inc., a
Delaware corporation ("Oakhurst"), Steel City Products, Inc., a Delaware
corporation ("SCPI"), Dowling's Fleet Service Co., Inc., a New York corporation
("DFS"), Oakhurst Management Corporation, a Texas corporation ("OMC"), Oakhurst
Holdings, Inc., a Delaware corporation ("OH"), and G & O Sales Company, a
Pennsylvania corporation ("G&O"), jointly and severally (individually, a
"Borrower" and collectively "Borrowers").
RECITALS
A. Borrowers and FINOVA have previously entered into that certain Loan
and Security Agreement dated as of March 28, 1996, as amended by that certain
First Amendment to Loan and Security Agreement dated as of June, 1996, that
certain Second Amendment to Loan and Security Agreement effective as of June 1,
1997, that certain Third Amendment to Loan and Security Agreement effective as
of October 31, 1997, that certain Fourth Amendment to Loan and Security
Agreement effective as of December 29, 1998, that certain Fifth Amendment to
Loan and Security Agreement effective as of March 29, 1999, that certain Sixth
Amendment to Loan and Security Agreement effective as of June 30, 2000 (the
"Sixth Amendment"), and that certain Seventh Amendment to the Loan and Security
Agreement effective as of October __, 2000 (collectively, the "Loan Agreement"),
pursuant to which FINOVA has made certain loans and financial accommodations
available to Borrowers. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Loan Agreement.
B. Borrowers are now requesting FINOVA to amend and modify the Sixth
Amendment to extend the payment date of the DFS Obligations from October 28,
2000 to November 30, 2000.
C. FINOVA is willing to accommodate the foregoing requests upon the
terms and conditions set forth below.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment to Section 1.
Section 1 of the Sixth Amendment is hereby amended and restated in its
entirety as follows:
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"Consent to the Acquisition Agreement. Finova hereby consents to the
Acquisition Agreement and agrees to release DFS and G&O from their Obligations
to FINOVA and to terminate its security interests in the property of DFS and
G&O; provided that the Acquisition Agreement shall have closed, and all
Obligations owing to FINOVA on account of its Revolving Loans to DFS, including
the outstanding principal balance thereof and all accrued but unpaid interest,
fees and other charges thereon (collectively, the "DFS Obligations"), shall have
been fully and finally paid and satisfied, all on or before November 30, 2000."
2. Amendment to Section 3.
Section 3 of the Sixth Amendment is hereby amended and restated in
its entirety as follows:
"Forbearance. So long as no Event of Default other than the Existing
Default has occurred or hereafter occurs under the Loan Agreement or other Loan
Documents, and provided that Borrowers fully and strictly perform and comply
with all of the terms and provisions thereof, FINOVA shall forbear from
exercising its default rights and remedies arising on account of the Existing
Default until the earlier of (a) the date on which the Acquisition Agreement
closes, (b) the date on which the Acquisition Agreement is terminated, or (c)
November 30, 2000 (the earlier of such dates shall be referred to herein as the
"DFS Maturity Date"). Except as expressly set forth in this Amendment, nothing
contained herein shall be deemed a suspension or waiver of the Existing Default
or any other Event of Default."
2. Effectiveness of this Amendment. The effectiveness of this
Amendment, the consents and agreements provided herein and any extension of
credit by FINOVA to Borrowers as provided by this Amendment, is subject to the
fulfillment of each of the following conditions:
(a) Amendment. FINOVA shall have received this Amendment, fully
executed in a sufficient number of counterparts for distribution to
FINOVA and Borrowers.
(b) Authorizations. FINOVA shall have received evidence that the
execution, delivery and performance by each Borrower of this Amendment
and any instrument or agreement required under this Amendment have been
duly authorized.
(c) Representations and Warranties. The Representations and
Warranties set forth in the Loan Agreement must be true and correct.
(d) Other Required Documentation. All documents and legal matters in
connection with the transactions contemplated by this Amendment shall
have been delivered or executed or recorded and shall be in form and
substance satisfactory to FINOVA.
3. Fees and Expenses. Each Borrower hereby confirms that pursuant to
Section 13.1 of the Loan Agreement, Borrowers shall reimburse FINOVA for all
costs, fees and expenses incurred by FINOVA in connection with the negotiation,
preparation, execution, delivery, administration and enforcement of this
Amendment, including, but not limited to, attorneys' fees.
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4. Representations and Warranties. The Borrowers, jointly and
severally, represent and warrant as follows:
(a) Authority. Each Borrower has the requisite corporate power and
authority to execute and deliver this Amendment, and to perform its
obligations hereunder and under the Loan Documents (as amended or
modified hereby) to which it is a party. The execution, delivery and
performance by each Borrower of this Amendment, and the performance by
each Borrower of each Loan Document (as amended or modified hereby) to
which it is a party have been duly approved by all necessary corporate
action of such Borrower and no other corporate proceedings on the part
of such Borrower are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
delivered by each Borrower. This Amendment and each Loan Document (as
amended or modified hereby) is the legal, valid and binding obligation
of each Borrower hereto or thereto, enforceable against such Borrower
in accordance with its terms, and is in full force and effect.
(c) Representations and Warranties. The representations and
warranties contained in each Loan Document (other than any such
representations or warranties that, by their terms, are specifically
made as of a date other than the date hereof) are correct on and as of
the date hereof as though made on and as of the date hereof.
(d) No Default. No event has occurred and is continuing that
constitutes an Event of Default, other than the Existing Default (as
defined in the Sixth Amendment to Loan and Security Agreement).
5. CHOICE OF LAW. THIS AMENDMENT SHALL BE INTERPRETED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE CONFLICT OF LAWS RULES) OF THE STATE OF
ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH
BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF MARICOPA, THE STATE OF ARIZONA OR, AT THE
SOLE OPTION OF FINOVA, IN ANY OTHER COURT IN WHICH FINOVA SHALL INITIATE LEGAL
OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE
MATTER IN CONTROVERSY. EACH BORROWER WAIVES ANY OBJECTION OF FORUM NON
CONVENIENS AND VENUE. EACH BORROWER WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS UPON THEM, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE IN THE
MANNER SET FORTH IN SECTION 19.13 OF THE LOAN AGREEMENT FOR THE GIVING OF
NOTICE. EACH BORROWERS FURTHER WAIVES ANY RIGHT THEY MAY OTHERWISE HAVE TO
COLLATERALLY ATTACK ANY JUDGMENT ENTERED AGAINST THEM.
6. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this
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Amendment or by telefacsimile shall be effective as delivery of a manually
executed counterpart of this Amendment.
7. Reference to and Effect on the Loan Documents.
(a) Upon and after the effectiveness of this Amendment, each
reference in the Loan Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Loan Agreement, and
each reference in the other Loan Documents to "the Loan Agreement",
"thereof" or words of like import referring to the Loan Agreement,
shall mean and be a reference to the Loan Agreement as modified and
amended hereby.
(b) Except as specifically amended above, the Loan Agreement and all
other Loan Documents, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed and shall
constitute the legal, valid, binding and enforceable obligations of
each Borrower to FINOVA.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any FINOVA under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
(d) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or
conditions of the Loan Agreement, after giving effect to this
Amendment, such terms and conditions in the Loan Documents are hereby
deemed modified or amended accordingly to reflect the terms and
conditions of the Loan Agreement as modified or amended hereby.
8. Ratification. Each Borrower hereby restates, ratifies and reaffirms
each and every term and condition set forth in the Loan Agreement, as amended
hereby, and the Loan Documents effective as of the date hereof.
9. Estoppel. To induce FINOVA to enter into this Amendment and to
continue to make advances to Borrowers under the Loan Agreement, each Borrower
hereby acknowledges and agrees that, after giving effect to this Amendment, as
of the date hereof, there exists no Event of Default other than the Existing
Default (as defined in the Sixth Amendment to Loan and Security Agreement), and
no right of offset, defense, counterclaim or objection in favor of any Borrower
as against FINOVA with respect to the Obligations.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
FINOVA CAPITAL CORPORATION
By: /s/ FRANK MONZO
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Name: Frank Monzo
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Title: Vice President
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OAKHURST COMPANY, INC.
By: /s/ MAARTEN HEMSLEY
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Name: Maarten Hemsley
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Title: President
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STEEL CITY PRODUCTS, INC.
By: /s/ MAARTEN HEMSLEY
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Name: Maarten Hemsley
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Title: Chief Financial Officer
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DOWLING'S FLEET SERVICE CO.
By: /s/ MAARTEN HEMSLEY
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Name: Maarten Hemsley
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Title: Director
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OAKHURST MANAGEMENT CORPORATION
By: /s/ MAARTEN HEMSLEY
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Name: Maarten Hemsley
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Title: Director
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OAKHURST HOLDINGS, INC.
By: /s/ MAARTEN HEMSLEY
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Name: Maarten Hemsley
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Title: Director
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G & O SALES COMPANY
By: /s/ MAARTEN HEMSLEY
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Name: Maarten Hemsley
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Title: Director
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