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EXHIBIT 10.36
THIRD AMENDMENT
TO CONSOLIDATED AND RESTATED
LOAN AND SECURITY AGREEMENT
This FOURTH AMENDMENT TO CONSOLIDATED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made as of June 25, 1997, by and between
FREMONT FINANCIAL CORPORATION ("Fremont") and TRISTAR CORPORATION ("Borrower"),
in light of the following:
WHEREAS, Borrower and Fremont entered into a Consolidated and Restated Loan
and Security Agreement dated effective January 1, 1996, as amended by (i) that
certain First Amendment to Consolidated and Restated Loan and Security
agreement dated as of March 11, 1996 and (ii) that certain Second Amendment to
Consolidated and Restated Loan and Security Agreement effective as of October
1, 1996, and (iii) that certain Third Amendment to Consolidated and Restated
Loan and Security Agreement, dated as of February 27, 1997 (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 and extend
the termination date thereunder 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. AMENDMENT TO SECTION 2.1 OF THE LOAN AGREEMENT. Section 2.1 of the
Loan Agreement is hereby amended by deleting such Section in its
entirety and replacing such Section with the following language:
"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 other than Foreign Accounts, PLUS (b) the
lesser of (1) Sixty percent (60%) of the aggregate outstanding amount of
Eligible Accounts consisting of Foreign Accounts or (2) ONE MILLION DOLLARS
($1,000,000), PLUS (c) the lesser of (1) One hundred percent (100%) of the
aggregate outstanding amount of Eligible Affiliate Accounts or (2) ONE
MILLION DOLLARS ($1,000,000), PLUS (d) the lesser of (1) Forty percent
(40%) of the aggregate of the Eligible Inventory consisting of raw
materials Inventory or (2) TWO MILLION FIVE HUNDRED THOUSAND DOLLARS
($2,500,000), PLUS (e) the lesser of (1) Fifty percent (50%) of the
aggregate value of the Eligible Inventory consisting of finished goods
Inventory or (2) FIVE MILLION DOLLARS ($5,000,000); PROVIDED, HOWEVER,
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that in no event shall the aggregate amount of the outstanding advances
made pursuant to subsections (d) and (e) under this Section 2.1 be greater
than (I) SIX MILLION DOLLARS ($6,000,000) at any time during the period
commencing July 7, 1997 through and including August 6, 1997, or (II) FIVE
MILLION FIVE HUNDRED THOUSAND DOLLARS ($5,500,000) at any time during the
period commencing august 7, 1997 through the remainder of the term of this
Agreement; PROVIDED FURTHER, 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 FIFTEEN MILLION FIVE HUNDRED THOUSAND
DOLLARS ($15,500,000) (the Advance Limit). Notwithstanding the foregoing
formula and the definitions of Eligible Accounts, Eligible Affiliate
Accounts and Eligible Inventory, Fremont may reduce its advance rates on
Eligible Accounts, Eligible Affiliate Accounts or Eligible Inventory or
establish reserves with respect to borrowing availability if it 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 or an impairment of the value or priority of Fremont's security
interests in the Collateral."
2. AMENDMENT TO SECTION 3.1 OF THE LOAN AGREEMENT. Section 3.1 of the
Loan Agreement is hereby amended by deleting the language "July 7, 1997" in the
first sentence thereof and replacing such language with "September 7, 1997."
3. AMENDMENT FEE. Borrower shall pay to Fremont an amendment fee in the
aggregate amount of Twenty Thousand Dollars ($20,000). Such amendment fee
shall be payable in two (2) installment of Ten Thousand Dollars ($10,000), the
first such installment shall be due and payable on July 7, 1997, and the
remaining installment shall be due and payable on August 7, 1997; PROVIDED,
HOWEVER, if Borrower indefeasibly pays in full all of the Obligations of
Borrower to Fremont before August 7, 1997, Borrower shall not be required to
pay the second installment of the amendment fee.
4. REAFFIRMATION OF OBLIGATIONS. Borrower reaffirms, ratifies and
confirms its Obligations under the Loan Agreement, acknowledges that all the
terms and conditions in the Loan Agreement (except as 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.
5. NO EVENT OF DEFAULT. 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.
6. ENTIRE AGREEMENT. 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.
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7. COUNTERPARTS. 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.
8. GOVERNING LAW. 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: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Vice President
TRISTAR CORPORATION,
a Delaware corporation
By: /s/Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Vice President and Chief Financial Officer
