AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT
J.B. POINDEXTER & CO, INC.
1100 Louisiana Street
Suite 5400
Houston, Texas 77002
As of June 30, 1998
Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036
Gentlemen:
Congress Financial Corporation ("Lender"), J.B. Poindexter & Co., Inc.
("Borrower"), EFP Corporation ("EFP"), Lowy Group, Inc. ("Lowy"), Magnetic
Instruments Corp. ("MIC"), Morgan Trailer Mfg. Co. ("Morgan"), Truck Accessories
Group, Inc. ("TAG"), and Raider Industries Inc. ("Raider"; and together with
EFP, Lowy, MIC, Morgan and TAG, each individually, a "Guarantor" and,
collectively, "Guarantors") have entered into certain financing arrangements as
set forth in the Loan and Security Agreement, dated as of June 28, 1996, by and
among Lender, Borrower and Guarantors (as heretofore amended or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced, the
"Loan Agreement"), together with all other agreements, documents, supplements
and instruments now or at any time hereafter executed and/or delivered by
Borrower, Guarantors or any other person, with, to or in favor of Lender in
connection therewith (all of the foregoing, together with this Amendment and the
other agreements and instruments delivered hereunder, as the same now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, collectively, the "Financing Agreements"). For purposes of this
Amendment, unless otherwise defined herein, all capitalized terms used herein,
shall have the respective meanings ascribed to them in the Loan Agreement.
Borrower and Guarantors have requested that Lender increase the amount
of Indebtedness of Borrower or any Obligor permitted to be oustanding from
$2,000,000 to $3,000,000 in respect of the financing of insurance premiums
payable on certain insurance policies maintained by Borrower or Obligors. Lender
is willing to do so to the extent and subject to the terms and conditions set
forth herein.
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In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment No. 2 to Loan and Security Agreement (this
"Amendment"), and other good and valuable consideration, the adequacy and
sufficiency of which are hereby acknowledged, Borrower, Guarantors and Lender
agree as follows:
1. Indebtedness. Section 9.9(k) of the Loan Agreement is hereby amended by
deleting the reference to the ------------ figure "$2,000,000" contained therein
and replacing it with the following figure: "$3,000,000".
1. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrower or Guarantors to Lender pursuant to the other Financing Agreements,
Borrower and Guarantors hereby represent, warrant and covenant with and to
Lenders as follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof and shall be
incorporated into and made a part of the Financing Agreements):
2.
(a) This Amendment has been duly authorized, executed and delivered by
Borrower and Guarantors, and the agreements and obligations of Borrower and
Guarantors contained herein constitute legal, valid and binding obligations of
Borrower and Guarantors enforceable against Borrower and Guarantors in
accordance with their respective terms.
(b)
(i) Neither the execution and delivery of this Amendment, nor the
modifications to the Financing Agreements contemplated by this Amendment shall
violate any applicable law or regulation, or any order or decree of any court or
any governmental instrumentality in any respect or does or shall conflict with
or result in the breach of, or constitute a default in any respect under, any
indenture, or any material mortgage, deed of trust, security agreement,
agreement or instrument to which Borrower or any Guarantor is a party or may be
bound, or violate any provision of the organizational documents of Borrower or
Guarantors.
(ii)
(c) All of the representations and warranties set forth in the Loan
Agreement as amended hereby, and the other Financing Agreements, are true and
correct in all material respects, except to the extent any such representation
or warranty is made as of a specified date, in which case such representation or
warranty shall have been true and correct as of such date.
(d)
(e) No Event of Default exists on the date of this Amendment (after giving
effect to the amendments to the Loan Agreement provided in this Amendment).
(f)
3. Conditions Precedent. The effectiveness of the amendments set forth
herein shall be subject to the receipt by Lender of each of the following, in
form and substance satisfactory to Lender:
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4.
(a) an original of this Amendment, duly authorized, executed and delivered
by Borrower and Guarantors;
(b)
(c) after giving effect to the amendments to the Loan Agreement provided in
this Amendment, no Event of Default shall exist or have occurred and no event,
act or condition shall have occurred or exist which with notice or passage of
time or both would constitute an Event of Default.
(d)
(e)
5. Effect of this Amendment. This Amendment and the instruments and
agreements delivered pursuant hereto constitute the entire agreement of the
parties with respect to the subject matter hereof and thereof, and supersede all
prior oral or written communications, memoranda, proposals, negotiations,
discussions, term sheets and commitments with respect to the subject matter
hereof and thereof. Except for the specific amendments expressly set forth
herein, no other changes or modifications to the Financing Agreements, and no
waivers of any provisions thereof are intended or implied, and in all other
respects the Financing Agreements are hereby specifically ratified, restated and
confirmed by all parties hereto as of the date hereof. To the extent of conflict
between the terms of this Amendment and the other Financing Agreements, the
terms of this Amendment shall control. The Loan Agreement and this Amendment
shall be read and construed as one agreement.
6.
7. Further Assurances. Borrower shall execute and deliver such additional
documents and take such additional action as may be reasonably requested by
Lender to effectuate the provisions and purposes of this Amendment.
8.
9. Governing Law. The rights and obligations hereunder of each of the
parties hereto shall be governed by and interpreted and determined in accordance
with the internal laws of the State of New York (without giving effect to
principles of conflicts of law).
1. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
2.
3. Counterparts. This Amendment may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making proof of this Amendment, it shall not be necessary
to produce or account for more than one counterpart thereof signed by each of
the parties hereto.
4.
5. Please sign in the space provided below and return a counterpart of this
Amendment, whereupon this Amendment, as so agreed to and accepted by Lender,
shall become a binding agreement among Borrower, Guarantors and Lender.
6.
7. Very truly yours,
8.
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9. J.B. POINDEXTER & CO., INC.
10.
11. By: __________________________
12.
13. Title: _______________________
14.
15.
16. AGREED AND ACCEPTED:
17.
18. CONGRESS FINANCIAL CORPORATION
19.
20. By: ___________________________
21.
22. Title: ________________________
23.
24.
25. ACKNOWLEDGED AND
26. CONSENTED TO:
27.
28. EFP CORPORATION
29.
30. By: __________________________
31.
32. Title: _______________________
33.
34.
35. LOWY GROUP, INC.
36.
37. By: __________________________
38.
39. Title: _______________________
40.
41.
42.
43.
44.
45.
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
MAGNETIC INSTRUMENTS CORP.
By: __________________________
Title: _______________________
MORGAN TRAILER MFG. CO.
By: __________________________
Title: _______________________
TRUCK ACCESSORIES GROUP, INC.
By: __________________________
Title: _______________________
RAIDER INDUSTRIES INC.
By: __________________________
Title: _______________________
