Exhibit 10.12(a)
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to the Loan and Security Agreement ("First
Amendment") dated this 4th day of May, 1998 by and among JEH/Eagle Supply,
Inc., formerly JEH Acquisition Corp., a Delaware corporation (the "Borrower")
and Fleet Capital Corporation, a Rhode Island corporation ("Lender").
BACKGROUND
A. On July 8, 1997, the Lender and the Borrower entered into a certain
Loan and Security Agreement (the "Agreement") to reflect certain financing
arrangements between the parties thereto (the "Existing Financing
Arrangements").
B. The parties have agreed, subject to the terms and conditions of this
First Amendment, to modify and amend the Existing Financing Arrangements.
NOW THEREFORE, with the foregoing background hereinafter deemed
incorporated by reference herein and made part hereof, the parties hereto,
intending to be legally bound, promise and agrees as follows:
1. AMENDMENTS TO LOAN AND SECURITY AGREEMENT
A. Section 1.3 of the Loan and Security Agreement is hereby amended as
follows:
Lender hereby increases the Equipment Loan to Borrower from the
original principal amount of $1,725,000 to $2,475,000. The Equipment
Loan, as so increased, shall be paid as set forth in the Amended and
Restated Equipment Note to be executed concurrently herewith.
B. Appendix A - General Definitions
The definition of Equipment Note contained in the General Definitions
section of Appendix A to the Agreement is hereby amended and restated in its
entirety as follows:
Equipment Note - the secured promissory note, as may be amended and
restated, to be executed by Borrower in favor of Lender to evidence
Borrower's obligations to repay the Equipment Loan as provided in Section 1.3
of the Agreement.
2. CONDITIONS PRECEDENT. This First Amendment shall not be effective
until the following conditions have been met to the sole satisfaction of
Lender:
(a) Borrower and TDA Industries, Inc. shall have executed and delivered
to Lender this First Amendment;
(b) Borrower shall have executed and delivered to Lender that certain
Amended and Restated Equipment Note; and
(c) Borrower shall deliver to Lender any other documents, instruments
or agreements required hereunder or requested by Lender.
3. REAFFIRMATION OF AGREEMENT. Except as expressly modified herein,
Borrower hereby affirms all representations and warranties set forth in the
Existing Financing Arrangements as of this date and warrants and represents
that all such representations and warranties are true, accurate and complete
in all respects as of this date and that such warranties and representations
are hereby deemed applicable to this First Amendment and that no Event of
Default exists under the Existing Financing Arrangements or would exist with
the passage of time, giving of notice or both.
4. INCORPORATION OF EXISTING FINANCING DOCUMENTS
The parties acknowledge and agree that this First Amendment is
incorporated into and made part of the Existing Financing Agreements, the
terms and provisions of which, unless expressly modified herein, or unless no
longer applicable by their terms, continue unchanged and in full force and
effect. To the extent that any term or provision of this First Amendment is
or may be deemed expressly inconsistent with any term or provision in the
Existing Financing Agreement, the term and provision hereof shall control.
5. PAYMENT OF EXPENSES
Borrower shall pay or reimburse Lender for its reasonable attorneys'
fees and expenses in connection with the preparation, negotiation and
execution of this First Amendment and the documents provided for herein or
related hereto.
6. MISCELLANEOUS.
(a) CAPITALIZED TERMS. All capitalized terms not otherwise defined
herein shall have the meanings as set forth in the Loan Documents.
(b) THIRD PARTY RIGHTS. No rights are intended to be created hereunder
for the benefit of any third party donee, creditor, or incidental beneficiary.
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(c) HEADINGS. The headings of any paragraph of this First Amendment
are for convenience only and shall not be used to interpret any provision
hereof.
(d) OTHER INSTRUMENTS. Borrower agrees to execute any other document,
instruments and writings in form satisfactory to Lender, as Lender may
reasonably request to carry out the intentions of the parties hereunder.
(e) MODIFICATIONS. No modifications hereof or any agreement referred
to herein shall be binding or enforceable unless in writing and signed on
behalf of the party against whom enforcement is sought.
(f) GOVERNING LAW. The terms and conditions of this First Amendment
shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned parties have executed this First
Amendment to Loan and Security Agreement the day and year first above written.
JEH/EAGLE SUPPLY, INC., formerly FLEET CAPITAL CORPORATION
JEH ACQUISITION CORP.
("Borrower") ("Lender")
BY: /s/ illegible BY: /s/ illegible
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Title: CEO Title: VP
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Attest:
BY: /s/ illegible
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Secretary
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TDA Industries, Inc., in its capacity as surety pursuant to that certain
Surety Agreement dated as of July 8, 1997 ("Surety Agreement") hereby
acknowledges that the Equipment Loan, as increased herein, constitutes an
Obligation for all purposes of the Surety Agreement.
TDA INDUSTRIES, INC.
BY: /s/ illegible
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Title: CEO
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Attest:
By:
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Secretary
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AMENDED AND RESTATED EQUIPMENT NOTE
$2,475,000 May 4, 1998
FOR VALUE RECEIVED, and intending to be legally bound, JEH/Eagle Supply,
Inc., formerly JEH Aquisition Corp. ("Borrower"), hereby promises to pay to
the order of Fleet Capital Corporation, a Rhode Island corporation
("Lender"), in such coin or currency of the United States which shall be
legal tender in payment of all debts and dues, public and private, at the
time of payment, the maximum principal sum of Two Million, Four Hundred and
Seventy-Five Thousand Dollars ($1,725,000.00), or such lesser sum which
represents the aggregate unpaid principal balance hereunder, together with
interest from and after the date hereof on the unpaid principal balance
outstanding at the rates per annum set forth in the Loan Agreement (as
defined below). Interest shall be computed in the manner provided in Section
2 of the Loan Agreement.
This Amended and Restated Equipment Note (the "Note") amends and
restates (but does not extinguish the indebtedness evidenced by) that certain
Equipment Note dated July 8, 1997 in the original face amount of $1,725,000.
The Note is that Equipment Note referred to in, and is issued pursuant
to, that certain Loan and Security Agreement between Borrower and Lender
dated July 8, 1997 (hereinafter, as amended from time to time the "Loan
Agreement"), and is entitled to all of the benefits and security of the Loan
Agreement. All of the terms, covenants and conditions of the Loan Agreement
and the Security Documents are hereby made a part of this Note and are deemed
incorporated herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the meanings ascribed
to them in the Loan Agreement.
The principal amount and accrued interest of this Note shall be due and
payable on the dates and in the manner hereinafter set forth:
(i) Interest on the outstanding principal balance shall be due and
payable monthly, in arrears, on the first day of each month, commencing
on May 1, 1998, and continuing until such time as the full principal
balance, together with all other amounts owing hereunder, shall have
been paid in full.
(ii) The principal amount hereunder shall be due and payable
in equal consecutive monthly installments of principal based on an 76
month amortization schedule, on the first day of each calendar month
commencing on May 1, 1998.
(iii) The entire remaining principal amount then outstanding under
this Note, together with any and all other amounts due hereunder, shall
be due and payable on the earlier to occur of August 1, 2004 or the end
of the Original Term or any Renewal Term of the Loan Agreement.
Notwithstanding the foregoing, the entire unpaid principal balance and
accrued interest on this Note shall be due and payable immediately upon
acceleration of the Obligations following an Event of Default under the Loan
Agreement or termination of the Loan Agreement pursuant to Section 4 thereof.
This Note shall be subject to mandatory prepayment (and prepayment
premium, if applicable) in accordance with the provisions of Sections 3.2 and
3.3 of the Loan Agreement. Borrower may also terminate the Loan Agreement
and, in connection with such termination, prepay this Note in the manner and
subject to the conditions provided in Section 4 of the Loan Agreement.
Upon the occurrence of an Event of Default, Lender shall have all of the
rights and remedies set forth in Section 10 of the Loan Agreement.
Time is of the essence under this Note. To the fullest extent permitted
by applicable law, Borrower, for itself and its legal representatives,
successors and assigns, expressly waives presentment, demand, protest, notice
of dishonor, notice of non-payment, notice of maturity, notice of protest,
presentment for the purpose of accelerating maturity, diligence in
collection, and the benefit of any exemption or insolvency laws.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or remaining
provisions of this Note. No delay or failure on the part of Lender in the
exercise of any right or remedy hereunder shall operate as a waiver thereof,
nor as an acquiescence in any default, nor shall any single or partial
exercise by Lender of any right or remedy preclude any other right or remedy.
Lender, at its option, may enforce its rights against any Collateral securing
this Note without enforcing its rights against Borrower or any other property
or indebtedness due or to become due to Borrower. Borrower agrees that,
without releasing or impairing Borrower's liability hereunder, Lender may at
any time release, surrender, substitute or exchange any Collateral securing
this Note and may at any time release any party primarily or secondarily
liable for the indebtedness evidenced by this Note.
IN ANY LITIGATION ARISING OUT OF OR RELATING TO ANY OF THE MATTERS
CONTAINED IN THIS NOTE OR ANY OF THE DOCUMENTS DELIVERED IN CONNECTION
HEREWITH IN WHICH THE LENDER AND BORROWER ARE ADVERSE PARTIES, THE LENDER AND
BORROWER WAIVE TRIAL BY JURY.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York.
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IN WITNESS WHEREOF, each Borrower has caused this Note to be duly
executed and delivered on the date first above written.
ATTEST: JEH/EAGLE SUPPLY, INC., formerly
JEH ACQUISITION CORP.
/S/ Illegible By: /s/ Illegible
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Title: CEO [SEAL]
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