THIRTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS THIRTEENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
(this "Amendment") is made as of March 11, 1998, by and between
TOASTMASTER INC., a Missouri corporation ("Borrower") and FLEET
CAPITAL CORPORATION, a Rhode Island corporation ("Lender").
PRELIMINARY STATEMENTS:
A. Borrower and Lender are parties to that certain Loan
and Security Agreement dated as of November 19, 1993, (as amended
from time to time, the "Loan Agreement"). Capitalized terms used
but not defined herein shall have the meanings given them in the
Loan Agreement.
B. Borrower and Lender now desire to amend certain
provisions of the Loan Agreement on and subject to the terms
hereof.
TERMS OF AGREEMENT
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements hereinafter set forth, the parties
hereto agree as follows:
1. Defined Terms. Section 1.1 of the Loan Agreement
[RELATING TO DEFINED TERMS] is hereby amended by replacing the
definitions of LIBO Rate, LIBO Rate Loan, LIBO Rate-Term Loan,
and Term Loan with the following:
"LIBO Rate" - With respect to the Revolving Credit
Loans (other than Fixed Rate Loans), means a fluctuating
interest rate per annum equal on each day to the sum of:
(i) the rate of interest per annum (adjusted to
reflect reserve, deposit insurance or other similar
requirements to which the Bank may be subject) at which
deposits in United States dollars are offered by the
principal office of the Bank, in London, England, to
prime banks in the London interbank market at or about
11:00 a.m. (London time) on such day (or if such day is
not a Business Day, on the next preceding Business day)
for a thirty (30) day period in an amount approximately
equal to the principal amount of such Revolving Credit
Loans, plus
(ii) one and three-quarters percent (1.75%) per
annum.
As used in this Agreement, the LIBO Rate is a fluctuating
interest rate determined daily by Lender and is not fixed for any
period. The LIBO Rate shall be increased or decreased, as the
case may be, by an amount equal to any increase or decrease in
the rate computed in accordance with clause (i) above, with such
adjustments to be effective as of the opening of business on the
day that any such change in such rate becomes effective. The
LIBO Rate in effect on the date hereof shall be the LIBO Rate
effective as of the opening of business on the date hereof, but
if this Agreement is executed on a day that is not a Business
Day, the LIBO Rate in effect on the date hereof shall be the LIBO
Rate effective as of the opening of business on the last Business
Day immediately preceding the date hereof. If the Bank ceases to
offer deposits in U.S. Dollars in the London interbank market,
then the Lender will determine the LIBO Rate based on the 30-day
LIBO rates quoted by Reuters or in The Wall Street Journal or
other financial newspaper or electronic market information
service of recognized standing.
LIBO Rate-Term Loan - A fluctuating interest rate per annul
equal to the sum of:
(i) the rate of interest per annum (adjusted to
reflect reserve, deposit insurance or other similar
requirements to which the Bank may be subject) at which
deposits in United States dollars are offered to Lender
by prime banks in the London interbank market at or
about 11:00 a.m. (London time) on such day (or if such
day is not a Business Day, on the next preceding
Business Day) for a thirty (30), sixty (60), ninety
(90) or one hundred-eighty (180) day period, as
applicable, in an amount approximately equal to the
principal amount of the LIBO Rate Term Loan Portion,
plus
(ii) two percent (2.00%) per annum.
2. Interest on Equipment Loans. The Loan Agreement is
hereby amended as necessary to provide that, for purposes of
computing interest, the Equipment Loans shall be treated the same
as the Term Loan.
3. Debt Service Coverage. A new Section 9.3(E) of the
Loan Agreement [RELATING TO DEBT SERVICE COVERAGE] is hereby
added as follows:
9.3(E) Debt Service Coverage Maintain, as of
December 31, 1998, for the immediately preceding twelve
months, a ratio of Net Cash Flow to Debt Service of not less
than 0.75 to 1.0, and as of December 31st of each year
thereafter (in each case for the immediately preceding
twelve months), a ratio of Net Cash Flow to Debt Service of
not less than 1.0 to 1.0.
4. Minimum Availability. Section 9.3(BB) of the Loan
Agreement [RELATING TO MINIMUM AVAILABILITY] is hereby deleted.
5. No Claims; Liens Unimpaired. Borrower acknowledges
that, as of the date hereof, it has no actual knowledge of any
existing claims, defenses (personal or otherwise) or rights of
setoff or recoupment whatsoever with respect to the Loan
Agreement or any of the other Loan Documents. Borrower agrees
that this Amendment in no way acts as a release or relinquishment
of any Liens in favor of the Lender securing payment of any of
the Obligations.
6. No Other Amendments or Waivers. Except as expressly
set forth herein, there are no other agreements or
understandings, written or oral, between Borrower and Lender
relating to the Loan Agreement and/or the other Loan Documents
that are not fully and completely set forth or described herein.
Except to the extent specifically amended hereby, all terms and
provisions of the Loan Agreement and the other Loan Documents
shall remain in full force and effect in accordance with their
respective terms, and no provisions thereof have been waived,
except as specifically set forth herein.
7. Further Assurances. Borrower agrees to execute such
other and further documents and instruments as Lender may request
to implement the provisions of this Amendment.
8. Amendments. No provision of this Amendment may be
amended, modified or waived, except by an instrument in writing
signed by the Lender.
9. Counterparts; Faxed Signatures. This Amendment may be
executed in one or more counterparts and by different parties on
different counterparts, each of which shall be deemed an original
instrument and all of which taken together shall constitute one
and the same agreement. A signature of a party delivered by
telecopy or other electronic communication shall constitute an
original signature of such party.
10. Incorporation by Reference; Statement Required by
Section 432.045, Mo. Rev. Stat.
(a) Each of the Notes and the other Loan Documents is
incorporated herein in full by this reference, provided,
however, that if there is any inconsistency between this
Amendment and such other Loan Documents (as amended by this
Amendment), this Amendment shall govern.
(b) ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY,
EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A
DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT
ENFORCEABLE. TO PROTECT YOU (BORROWER(S)) AND US (CREDITOR)
FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE
REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING,
WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed on the date specified at the
beginning hereof.
TOASTMASTER INC.
By:_______________________________
Name:
Title:
FLEET CAPITAL CORPORATION
By:_______________________________
Name:
Title:
