This Security Agreement involves
Title: THIRD AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT
Governing Law: Maryland Date: 6/8/2010
Industry: Misc. Capital Goods Sector: Capital Goods
THIRD AMENDMENT TO SECOND
AMENDED AND RESTATED FINANCING AND
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT (this “Agreement”) is made as of the 26th day of April, 2010, by and among ARGAN, INC., a corporation organized and in good standing under the laws of the State of Delaware (“Argan”), SOUTHERN MARYLAND CABLE, INC., a corporation organized and in good standing under the laws of the State of Delaware, VITARICH LABORATORIES, INC., a corporation organized and in good standing under the laws of the State of Delaware, GEMMA POWER, INC., a corporation organized and in good standing under the laws of the State of Connecticut, GEMMA POWER SYSTEMS CALIFORNIA, INC., a corporation organized and in good standing under the laws of the State of California, GEMMA POWER SYSTEMS, LLC, a limited liability company organized and in good standing under the laws of the state of Connecticut (“Gemma”), and GEMMA POWER HARTFORD, LLC, a limited liability company organized and in good standing under the laws of the State of Connecticut, jointly and severally (each a “Borrower”; and collectively, the “Borrowers”), and BANK OF AMERICA, N.A., a national banking association, its successors and assigns (the “Lender”).
A. Borrowers and Lender are parties to a Second Amended and Restated Financing and Security Agreement dated as of December 11, 2006 (the same, as amended, modified, substituted, extended, and renewed from time to time, the “Financing Agreement”).
B. The Financing Agreement provides for some of the agreements between the Borrowers and the Lender with respect to the Loans.
C. Borrowers have requested that the Lender extend the Revolving Credit Expiration Date and amend the Financing Agreement and Lender has agreed to do so, on the condition, among others, that this Agreement be executed.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, receipt of which is hereby acknowledged, the Borrowers and the Lender agree as follows:
1. Recitals . Borrowers and Lender agree that the Recitals above are a part of this Agreement. Unless otherwise expressly defined in this Agreement, terms defined in the Financing Agreement shall have the same meaning under this Agreement.
2. Revised Definition . The definitions of the following terms set forth in Section 1.1 of the Financing Agreement are amended and restated in their entirety as follows:
“ Financing Documents ” means at any time collectively this Agreement, the Notes, the Security Documents, the Letter of Credit Documents, the Guaranty and any other instrument, agreement or document previously, simultaneously or hereafter executed and delivered by any Borrower, any Guarantor, and/or any other Person, singly or jointly with another Person or Persons, evidencing, securing, guarantying or in connection with this Agreement, any Note, any of the Security Documents, any of the Facilities, any Guaranty, and/or any of the Obligations.
“ Permitted Uses ” means with respect to the (a) Revolving Loan, the payment of expenses incurred in the ordinary course of any Borrower’s business and for general working capital purposes, including loans or advances to the Guarantor, (b) Acquisition Loan, to finance a portion of the Acquisition and (c) Letter of Credit to support issuance of bonding to Travelers.
“ Revolving Credit Expiration Date ” means May 31, 2011.
3. Additional Definitions . Section 1.1 of the Financing Agreement is hereby amended by adding the following definitions:
“ Guarantor ” means Gemma Renewable Power, LLC and its successors and assigns.
“ Guaranty ” means that certain Guaranty of Payment Agreement for the benefit of the Lender dated April 26, 2010 from Guarantor, as the same may from time to time be amended, restated, supplemented or otherwise modified.
“ Security Agreement ” means that certain Security Agreement by Guarantor in favor of Lender dated April 26, 2010, as the same may from time to time be amended, restated, supplemented or otherwise modified.
4. Revolving Credit Unused Line Fee . Section 2.1.7 of the Financing Agreement is hereby amended and restated in its entirety as follows:
“2.1.7 Revolving Credit Unused Line Fee .
The Borrowers shall pay to the Lender a revolving credit facility fee (collectively, the “ Revolving Credit Unused Line Fees ” and individually, a “ Revolving Credit Unused Line Fee ”) in an amount equal to one half of one percent (.50%) per annum of the average daily unused and undisbursed portion of the Revolving Credit Committed Amount in effect from time to time accruing during each month. The accrued and unpaid portion of the Revolving Credit Unused Line Fee shall be paid by the Borrowers to the Lender monthly in arrears on the last day of each month, commencing on June 30, 2010 and on the Revolving Credit Termination Date.”
5. Consent . The Lender hereby consents to Argan’s guaranty of certain obligations of the Guarantor pursuant to that Certain Contractor Parent Guaranty by Argan, to and for the benefit of Vantage Wind Energy LLC, dated January 22, 2010 (the “Contractor Parent Guaranty”). In addition, notwithstanding anything contained in any of the Financing Documents to the contrary, the Lender agrees that the proceeds of the Revolving Loan may be loaned and advanced by the Borrowers to the Guarantor for general working capital purposes of the Guarantor. The Lender’s consent to the Contractor Parent Guaranty shall not be deemed to be a consent to any amendment, waiver or modification of any other term or condition of any Financing Document.
6. Counterparts . This Agreement may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original and all taken together shall constitute but one and the same instrument. Each Borrower agrees that Lender may rely on a telecopy of any signature of any Borrower. The Lender agrees that the Borrowers may rely on a telecopy of this Agreement executed by the Lender.
7. Representations . Each Borrower hereby represents and warrants that:
(a) Borrowers have the power and authority to execute and deliver this Agreement and perform their respective obligations hereunder and have taken all necessary and appropriate action to authorize the execution, delivery and performance of this Agreement.
(b) The Financing Agreement, as heretofore amended and as amended by this Agreement, and each of the other Financing Documents remains in full force and effect, and each constitutes the valid and legally binding obligation of each Borrower, enforceable in accordance with its terms;
(c) Except for those representations and warranties which rela