Exhibit 10.46
SIXTH AMENDMENT TO
AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT AND
MODIFICATION OF AMENDED AND
RESTATED REVOLVING CREDIT NOTE
This Sixth Amendment to Amended and
Restated Loan and Security Agreement and Modification of Amended
and Restated Revolving Credit Note (the “Sixth
Amendment”), dated as of the 10 th day of December, 2006 is made by and among
IWT TESORO CORPORATION, a Nevada corporation with its chief
executive office and principal place of business at Suite 10, 191
Post Road West, Westport, Connecticut 06880, INTERNATIONAL
WHOLESALE TILE, INC., a Florida corporation with its chief
executive office and principal place of business at 3500 S.W.
42 nd Avenue, Palm City, Florida 34990; THE TILE
CLUB, INC., a Delaware corporation with its chief executive office
and principal place of business at Suite 10, 191 Post Road West,
Westport, Connecticut 06880 (“The Tile Club”), and
TESORO DIRECT, INC. f/k/a IMPORT FLOORING GROUP, INC., a Delaware
corporation with its chief executive office and principal place of
business at Suite 10, 191 Post Road West, Westport, Connecticut
06880 (“Tesoro”) (jointly and severally and together
with their successors and assigns, collectively, the
“Borrower”) and BANK OF AMERICA, N.A., with an office
at 200 Glastonbury Boulevard, Glastonbury, Connecticut 06033 (the
“Lender”).
W I T N E S S E T H:
WHEREAS, Borrower and the Lender are
parties to a certain Amended and Restated Loan and Security
Agreement dated as of December 31, 2004, as amended by that certain
First Amendment to Amended and Restated Loan and Security Agreement
dated April 25, 2005, that certain Second Amendment to Amended and
Restated Loan and Security Agreement dated June 30, 2005, that
certain Third Amendment to Amended and Restated Loan and Security
Agreement dated November 17, 2005, that certain Fourth Amendment to
Amended and Restated Loan and Security Agreement dated March 31,
2006 and that certain Fifth Amendment to Amended and Restated Loan
and Security Agreement dated September 5, 2006 (collectively, the
“Loan Agreement”), pursuant to which the Lender agreed
to extend to Borrower a revolving loan in the principal amount of
up to $26,500,000 (“Loan”); and
WHEREAS, the Loan is evidenced by
that certain Second Amended and Restated Revolving Credit Note
dated as of September 5, 2006 in the original principal amount of
Twenty-Six Million Five Hundred Thousand and 00/100 Dollars
($26,500,000.00) (the “Note”); and
WHEREAS, Borrower and Lender desire
to amend the Loan Agreement and the Note in certain respects;
and
WHEREAS, Section 11.3 of the Loan
Agreement provides, in part, that no modification or amendment of
the Loan Agreement shall be effective unless the same shall be in
writing and signed by the parties thereto;
NOW, THEREFORE, in consideration of
the premises and of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1.
Defined Terms . Capitalized terms used in this Sixth
Amendment which are defined in the Loan Agreement shall have the
same meanings as defined therein, unless otherwise defined
herein.
4
2.
Amendment of Loan Agreement .
(a)
Section 4.1 of the Loan Agreement, entitled “ Term of the
Agreement ”, is hereby deleted in its entirety and
replaced with the following:
4.1
Term of Agreement . Subject to Lender’s right to
cease making Loans to Borrower upon or after the occurrence of any
Default or Event of Default, this Agreement shall be in effect for
a period, through and including March 10, 2007 (the
“Term”).
(b)
Appendix A of the Loan Agreement, entitled “ General
Definitions ”, is hereby deleted in its entirety and
replaced with the Following:
Guarantors
— means individually and
collectively IWT Tesoro International, Ltd, a Bermuda exempt
company with a chief executive office located at Suite 10, 191
Pos
