AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is dated as of September 30, 1998 and is entered into by and among BankAmerica
Business Credit, Inc. (the "Lender"), The Great Train Store Partners, L.P. (the
"Borrower"), and The Great Train Store Company, GTS Partner, Inc. and GTS
Limited Partner, Inc. as members of the GTS Consolidated Group. All capitalized
terms used herein but not otherwise defined shall have the meanings ascribed to
them in the Agreement (as hereinafter defined).
WITNESSETH:
WHEREAS, the Borrower, the members of the GTS Consolidated Group and
the Lender have entered into that certain Amended and Restated Loan and Security
Agreement dated as of January 27, 1998, as amended and supplemented (the
"Agreement"); and
WHEREAS, the Borrower and the members of the GTS Consolidated Group
have requested the Lender to amend the Agreement in certain respects, and the
Lender is willing to do so, subject to the terms and conditions stated herein;
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Borrower, the members of the GTS Consolidated Group and
the Lender hereby agree as follows:
Section 1. Amendment to the Agreement. The Lender, the Borrower and the
members of the GTS Consolidated Group agree that the Agreement shall be amended
as follows:
(a) The definition of "Applicable Inventory Advance Rate"
contained in Section 1 of the Agreement is hereby amended by the
addition of a new sentence at the end of said definition, which new
sentence shall read in its entirety as follows:
"Notwithstanding anything to the contrary contained
herein, the Applicable Inventory Advance Rate with respect to
Eligible Inventory covered by trade Letters of Credit shall
not exceed (a) fifty percent (50%) during the period beginning
the last day of each Fiscal Year through and including January
31 of each year; and (b) sixty percent (60%) during the period
beginning on February 1 through and including the day
preceding the last day of each Fiscal Year."
(b) The definition of "Eligible Inventory" contained in
Section 1 of the Agreement is hereby amended by the addition of a new
sentence at the end of said definition, which new sentence shall read
in its entirety as follows:
"Notwithstanding anything to the contrary contained
herein, Inventory that is ineligible solely because such
Inventory is not located at Premises owned or leased (with the
appropriate landlord waiver) by the Borrower or on Premises
otherwise reasonably acceptable to the Lender but that meets
all other criteria for eligibility shall be Eligible Inventory
if (i) such Inventory is in-transit to the Borrower's
facilities, (ii) such Inventory will be paid for upon a
presentation of a trade Letter of Credit, (iii) the Lender is
named as a consignee on the applicable ▇▇▇▇ of lading or other
document of title; (iv) the Lender has possession of that ▇▇▇▇
of lading or other document of title and has a first priority
perfected security interest in the Inventory in-transit, and
(v) such Inventory is covered by insurance acceptable to the
Lender."
(c) The amount "$500,000" appearing in clause (i) of Section
2.3(a) of the Agreement is hereby deleted and in lieu thereof the
amount "$3,500,000" is hereby inserted.
(d) Section 10.20 of the Agreement is hereby amended and
restated to read in its entirety as follows:
"10.20 Fixed Charge Coverage Ratio. The GTS
Consolidated Group will not permit the ratio of (a) EBITDA to
(b) Fixed Charges to be less than the following ratios as of
the last day of each of the following fiscal quarters with
each calculation based on a trailing 12-month basis:
Period Ratio
------ -----
Third fiscal quarter of 1998 Not Applicable
Fourth fiscal quarter of 1998 1.5 to 1.0
First fiscal quarter of 1999 1.0 to 1.0
Second fiscal quarter of 1999 1.0 to 1.0
Third fiscal quarter of 1999 1.0 to 1.0
Fourth fiscal quarter of 1999, and
each fiscal quarter ending thereafter 1.2 to 1.0"
Section 2. Consents and Reaffirmations. The members of the GTS
Consolidated Group hereby consent to the terms and conditions of this Amendment
and reaffirm their obligations under the Parent Guaranty and the Affiliate
Guaranties dated as of January 27, 1998 made by such members in favor of the
Lender, and acknowledge and agree that the Parent Guaranty and the Affiliate
Guaranties remain in full force and effect.
Section 3. Conditions. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent:
(a) Amendment. Fully executed copies of this Amendment signed
by the Borrower and the members of the GTS Consolidated Group shall be
delivered to the Lender.
(b) Other Documents. The Borrower and the members of the GTS
Consolidated Group shall have executed and delivered to the Lender such
other documents and instruments as the Lender may require.
Section 4. Miscellaneous.
(a) Survival of Representations and Warranties. All
representations and warranties made in the Agreement or any other
document or documents relating thereto, including, without limitation,
any Loan Document furnished in connection with this Amendment, shall
survive the execution and delivery of this Amendment and the other Loan
Documents, and no investigation by the Lender or any closing shall
affect the representations and warranties or the right of the Lender to
rely thereon.
(b) Reference to Agreement. The Agreement, each of the Loan
Documents, and any and all other agreements, documents or instruments
now or hereafter executed and delivered pursuant to the terms hereof,
or pursuant to the terms of the Agreement as amended hereby, are hereby
amended so that any reference therein to the Agreement shall mean a
reference to the Agreement as amended hereby.
(c) Agreement Remains in Effect. The Agreement and the Loan
Documents remain in full force and effect, and each of the Borrower and
the members of the GTS Consolidated Group ratifies and confirms its
agreements and covenants contained therein. The Borrower hereby
confirms that, after giving effect to this Amendment, no Event of
Default or Event exists as of such date.
(d) 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.
(e) APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE
AND TO BE PERFORMABLE IN THE STATE OF MISSOURI AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MISSOURI.
(f) Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that the Borrower and the
members of the GTS Consolidated Group may not assign or transfer any of
their respective rights or obligations hereunder without the prior
written consent of the Lender.
(g) Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall be deemed to be
an original, but all of which when taken together shall constitute one
and the same instrument.
(h) Headings. The headings, captions and arrangements used in
this Amendment are for convenience only and shall not affect the
interpretation of this Amendment.
(i) Expenses of the Lender. The Borrower agrees to pay on
demand (i) all costs and expenses reasonably incurred by the Lender in
connection with the preparation, negotiation and execution of this
Amendment and the other Loan Documents executed pursuant hereto and any
and all subsequent amendments, modifications, and supplements hereto or
thereto, including, without limitation, the costs and fees of the
Lender's legal counsel and the allocated cost of the Lender's in-house
counsel, and (ii) all costs and expenses reasonably incurred by the
Lender in connection with the enforcement or preservation of any rights
under the Agreement, this Amendment and/or the other Loan Documents,
including, without limitation, the costs and fees of the Lender's legal
counsel and the allocated cost of the Lender's in-house counsel.
(j) NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE
OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AND ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the date first written above.
THE GREAT TRAIN STORE PARTNERS, L.P.
By: GTS PARTNER, INC., its General Partner
By:
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Name:
Title:
THE GREAT TRAIN STORE COMPANY
By:
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Name:
Title:
GTS PARTNER, INC.
By:
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Name:
Title:
GTS LIMITED PARTNER, INC.
By:
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Name:
Title:
BANKAMERICA BUSINESS CREDIT, INC.
By:
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Name:
Title:
