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Exhibit 10(s)
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement is made as of this
28th day of May, 1998 by and between
BankBoston Retail Finance Inc. (in such capacity, the
"Agent") as Agent for the Lenders party to a certain Loan
and Security Agreement dated as of November 19, 1997,
The Lenders (so referred to herein) party to the above
referenced Loan and Security Agreement, and
Sun Television and Appliances, Inc., an Ohio corporation with its
principal executive offices at 0000 Xxxx Xxxx, Xxxxxxxxx, Xxxx 00000
in consideration of the mutual covenants herein contained and
benefits to be derived herefrom.
W I T N E S S E T H:
WHEREAS, on November 19, 1997, the Agent, the Lenders and the Borrower
entered in a certain Loan and Security Agreement (as amended and in effect, the
"Agreement"); and
WHEREAS, the Agent, the Lenders and the Borrower desire to modify
certain of the provisions of the Agreement as set forth herein.
NOW, THEREFORE, it is hereby agreed among the Agent, the Lenders and
the Borrowers as follows:
1. Capitalized Terms. All capitalized terms used herein
and not otherwise defined shall have the same meaning
herein as in the Agreement.
2. Amendments to Article 1. The provisions of Article 1 of the
Agreement are hereby amended by deleting the definition of
"EBITDA" in its entirety and substituting the following in its
stead:
"EBITDA": The Borrower's earnings from operations, before
interest, taxes, depreciation and amortization, but excluding
the fiscal year end 1998 audit adjustments totaling
approximately $5,100,000.00, each as determined in accordance
with GAAP.
3. Amendments to Exhibits. The provisions of subparagraph (c) of
Exhibit 5-12(a) to the Agreement are hereby amended by
deleting the "Cumulative EBITDA" for the
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periods from and including June, 1998 appearing therein and
substituting the following in its stead:
CUMULATIVE
MONTH EBITDA
----- ----------
June '98 (8,350,997)
July (8,453,862)
August (7,833,920)
September (6,964,625)
October (6,251,220)
November (3,572,293)
December '98 3,525,859
January '99 3,548,397
February 3,939,471
March 2,695,662
April 2,034,687
May 1,966,783
June 2,031,970
July 2,426,588
August 3,235,653
September 3,559,620
October 3,938,583
November 8,108,490
December '99 17,509,293
January '00 17,072,908
February '00 16,904,177
The "Cumulative EBITDA" requirements for all periods prior to June,
1998 remain unchanged and in full force and effect.
4. Ratification of Loan Documents. Except as provided
herein, all terms and conditions of the Agreement on
the other Loan Documents remain in full force and
effect. The Borrower hereby ratifies, confirms, and
reaffirms (i) all of the representations, warranties
and covenants therein contained (except to the extent
that such representations and warranties expressly
relate to an earlier date), and (ii) that all
Collateral secures all of the Liabilities, as modified
hereby. The Borrower further acknowledges and agrees
that it does not have any offsets, defenses, or
counterclaims against the Agent or the Lenders under
the Loan and Security Agreement or the other Loan
Documents and, to the extent that the Borrower has, or
ever had, any such offsets, defenses, or counterclaims,
the Borrower hereby waives and releases the same.
5. Conditions to Effectiveness. This Second Amendment to
Loan and Security Agreement shall not be effective
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until each of the following conditions precedent have been
fulfilled to the satisfaction of the Agents:
(a) This Second Amendment to Loan and Security Agreement
shall have been duly executed and delivered by the
Borrower, the Agent and the Lenders. The Agent shall
have received a fully executed copy hereof and of
each other document required hereunder.
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(b) The Agent shall have received (i) the Borrower's
audited 1998 fiscal year end financial statements,
bearing the unqualified opinion of the Borrower's
independent certified public accountants, and (ii)
the written statement of the Borrower's President
and Chief Financial Officer certifying that there
has been no material change in the Borrower's
financial condition from that reflected in the
audited 1998 fiscal year end financial statements.
(c) The Borrower shall have paid to the Agent all fees
and expenses then due and owing pursuant to the Loan
and Security Agreement, as modified hereby,
including, without limitation, reasonable attorneys'
fees incurred by the Agent and the
Lenders.
(d) No Suspension Event shall have occurred and be
continuing.
(e) The Borrower shall have provided such additional
instruments and documents to the Agent as the Agent
and its counsel may have reasonably
requested.
6. Miscellaneous.
(a) On or before July 11, 1998, the Borrower shall
furnish the Agent with a true copy of a certificate of the
resolutions adopted by its board of directors authorizing and
ratifying the transactions described herein, certified by the
Borrower's secretary as of a recent date to be true and
complete.
(b) This Second Amendment to Loan and Security
Agreement may be executed in several counterparts and by each
party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which
together shall constitute one instrument.
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(c) This Second Amendment to Loan and Security
Agreement expresses the entire understanding of the parties
with respect to the transactions contemplated hereby. No prior
negotiations or discussions shall limit, modify, or otherwise
affect the provisions hereof.
(d) Any determination that any provision of this
Second Amendment or any application hereof is invalid, illegal
or unenforceable in any respect and in any instance shall not
effect the validity, legality, or enforceability of such
provision in any other instance, or the validity, legality or
enforceability of any other provisions of this Second
Amendment to Loan and Security Agreement.
(e) The Borrower shall pay on demand all costs and
expenses of the Agent and each Lender, including, without
limitation, reasonable attorneys' fees in connection with the
preparation, negotiation, execution and delivery of this
Second Amendment to Loan and Security Agreement.
(f) The Borrower warrants and represents that the
Borrower has consulted with independent legal counsel of the
Borrower's selection in connection with this Second Amendment
and is not relying on any representations or warranties of the
Agent or any Lender or their respective counsel in entering
into this Second Amendment.
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IN WITNESS WHEREOF, the parties have hereunto caused this Second
Amendment to be executed and their seals to be hereto affixed as of the date
first above written.
AGENT
BANKBOSTON RETAIL FINANCE INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
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Title: Director
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LENDERS
BANKBOSTON RETAIL FINANCE INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
--------------------------
Title: Director
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CONGRESS FINANCIAL CORPORATION
(NEW ENGLAND)
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Title: Senior Vice President
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FOOTHILL CAPITAL CORPORATION
By: /s/ XXXX X. XXXXXX
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Name: Xxxx X. Xxxxxx
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Title: Assistant Vice President
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FINOVA CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxxx
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Title: Assistant Vice President
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FREMONT FINANCIAL CORPORATION
By: /s/ XXXXX RITLMAN
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Name: Xxxxx Ritlman
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Title: Vice President
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NATIONAL CITY COMMERCIAL
FINANCE, INC.
By: /s/ XXXXXXXXX X. XXXXX
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Name: Xxxxxxxxx X. Xxxxx
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Title: Vice President
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BORROWER
SUN TELEVISION AND APPLIANCES,
INC.
By: /s/ X. XXXXXX XXXX
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Name: X. Xxxxxx Xxxx
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Title: President and Chief
Executive Officer
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AGREED:
SUN TV AND APPLIANCES, INC.
By: /s/ X. XXXXXX XXXX
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Name: X. Xxxxxx Xxxx
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Title: President and Chief Executive Officer
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