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EXHIBIT 10.41
FIRST AMENDMENT
TO LOAN AND SECURITY AGREEMENT
BETWEEN STAR TOBACCO AND PHARMACRUTICALS, INC.
AND FINOVA CAPITAL CORPORATION, BUSINESS CREDIT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is made as of April 12, 2000 by and between FINOVA CAPTIAL
CORPORATION, BUSINESS CREDIT ("FINOVA") and STAR TOBACCO AND PHARMACEUTICALS,
INC., ("BORROWER"), in light of the following:
WHEREAS, Borrower and FINOVA entered into a Loan and Security
Agreement dated January 20, 2000 (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 FINOVA wish to amend the Loan Agreement 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. Upon the request of Borrower,
made at any time during the term hereof, and so long as no Event
of Default exists, FINOVA shall, in its sole discretion, make
advances (the Revolving Advances) to Borrower in an amount equal
to eighty percent (80%) of the aggregate outstanding amount of
Eligible Accounts; PROVIDED, HOWEVER, that in no event shall the
aggregate amount of the outstanding Revolving Advances be greater
than, at any time, the sum of Seven Million Five Hundred Thousand
Dollars ($7,500,000) (the Revolving Advance Limit). FINOVA may
reduce its advance rates on Eligible Accounts, reduce the
Revolving Advance Limit or establish reserves with respect to
borrowing availability if FINOVA determines, in its sole
discretion, that there has occurred, or is likely to occur, an
impairment of the prospect of repayment of all or any portion of
the Obligations, the value of the Collateral or the validity or
priority of FINOVA's security interests in the Collateral.
2. Borrower affirms, ratifies and confirms its Obligations
under the Loan Agreement, acknowledges that all of the terms and conditions in
the Loan Agreement (except as amended herein) remain in full force and effect
and further
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acknowledges that the security interest granted to FINOVA in the Collateral is
valid and perfected.
3. 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.
4. 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.
5. 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.
6. In consideration of the increase to the Revolving Advance
Limit granted hereby, Borrower shall pay FINOVA a fee of Twenty Two Thousand
Five Hundred Dollars ($22,500), which shall be fully earned and due and payable
on the date hereof.
7. This Amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of Arizona.
IN WITNESS WHEREOF, Borrower and FINOVA have executed this
Amendment as of the date first written above.
FINOVA CAPITAL CORPORATION,
BUSINESS CREDIT, a Delaware
Corporation
By:
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Print Name:
Title/Capacity:
STAR TOBACCO AND
PHARMACEUTICALS, INC., a Virginia
Corporation
By:
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Print Name:
Title/Capacity
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OFFICER'S CERTIFICATE
The undersigned, a duly authorized officer of STAR TOBACCO & PHARMACEUTICALS,
INC. ("Borrower"), certifies to FINOVA CAPITAL CORPORATION ("FINOVA") as
follows:
1. Borrower has requested that FINOVA amend the Loan and Security Agreement
dated January 20, 2000 (as amended, the "Loan Agreement") as provided in the
First Amendment to Loan and Security Agreement dated the date hereof (the
"Amendment").
2. No further corporate approvals or authorizations are necessary for
Borrower to execute the Amendment.
3. As of the date set forth below, (a) all of the representations and
warranties in the Loan Agreement are true and accurate, and (b) no "Event of
Default" (as defined in the Loan Agreement) has occurred and is continuing.
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