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Exhibit 10.01
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This First Amendment to that certain Loan and Security Agreement
("Amendment") is made and entered into as of December 11, 1998 by and between
HMI Industries, Inc. ("Borrower") and Xxxxxx Financial, Inc. ("Lender").
WHEREAS, Lender and Borrower are parties to a certain Loan and Security
Agreement, dated April 23,1998 and all amendments thereto (the "Agreement"); and
WHEREAS, an Event of Default is in existence under the Agreement as a
result of Borrower's breach of the covenant contained in subsection 6.1, Book
Net Worth (the "Existing Event of Default"), and Borrower has requested Lender
waive the Existing Event of Default; and
WHEREAS, the parties desire to amend the Agreement as hereinafter set
forth;
NOW THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meaning ascribed to such term in
the Agreement.
2. AMENDMENT. Subject to the conditions set forth the below,
the Agreement is amended as follows:
(a) Subsection 6.1, Book Net Worth is amended by deleting SUBSECTION
6.1. BOOK NET WORTH in its entirety and inserting the following in lieu thereof:
"6.1, BOOK NET WORTH. Permit Borrower's book net worth, at any
time, to be less than 13,500,000."
3. WAIVER. Lender hereby waives the Existing Event of Default.
This is a limited waiver and shall not be deemed to constitute a waiver of any
other Event of Default or any future breach of the Agreement or any of the other
Loan Documents.
4. CONDITIONS. The effectiveness of this Amendment is subject
to the following conditions precedent (unless specifically waived in writing by
Lender):
(a) There shall have occurred no material adverse change in the
business, operations, financial condition, profits or prospects of Borrower, or
in the Collateral;
(b) Borrower shall have executed and delivered such other documents and
instruments as Lender may require;
(c) All corporate proceedings taken in connection with the transactions
contemplated by this Amendment and all documents, instruments and other legal
matters incident thereto shall be satisfactory to Lender and its legal counsel;
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(d) No Default or Event of Default other than the Existing Event of
Default shall have occurred and be continuing.
5. CORPORATE ACTION. The execution, delivery, and performance of this
Amendment has been duly authorized by all requisite corporate action on the part
of Borrower and this Amendment has been duly executed and delivered by Borrower.
6. REPRESENTATIONS AND WARRANTIES. To induce the Lender to enter into
this Amendment, the Borrowers hereby warrant, represent and covenant to the
Lender that each representation or warranty of the Borrowers set forth in
Section 4 of the Credit Agreement is hereby restated and reaffirmed as true and
correct on and as of the date hereof as if such representation or warranty were
made on and as of the date hereof (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period).
7. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
8. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
9. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument.
10. RATIFICATION. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions of the
Agreement and, except as expressly modified and superseded by this Amendment,
the terms and provisions of the Agreement are ratified and confirmed and shall
continue in full force and effect.
11. REFERENCES.
(a) Any reference to the Agreement contained in any Loan Document, or
any other notice, request, certificate, or other document executed concurrently
with or after the execution and delivery of this Amendment shall be deemed to
include this Amendment, unless the context shall otherwise require.
(b) Except as specifically amended above, the Agreement, the Note, 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. The Borrowers have no
knowledge of any challenge to the Lender's claims arising under the Loan
Documents or the effectiveness of the Loan Documents;
(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 the Lender under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents. This Amendment shall not
constitute a modification of the Agreement or a
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course of dealing with the Lender at variance with the Agreement such as to
require further notice by the Lender to require strict compliance with the terms
of the Agreement and the other Loan Documents in the future, except as expressly
set forth herein
(d) The Borrowers confirm and agree that to the extent that any such
Loan Document purports to assign or pledge to the Lender, or to grant a security
interest or lien on, any Collateral as security for the Obligations of the
Borrowers from time to time existing in respect of the Agreement and the Loan
Documents, such pledge, assignment and/or grant of the security interest is
hereby ratified and confirmed in all respects, except as expressly provided for
herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxxxx X. XxXxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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ATTEST: HMI INDUSTRIES, INC.
By: /s/ X.X. Xxxxxxxx, Xx.
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Secretary Name: X.X. Xxxxxxxx, Xx.
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Title: Exec VP, CFO & Treasurer
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