Exhibit 10.40
FIFTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is dated as of the 31st day of December, 2000 by
and among CMC HEARTLAND PARTNERS, a Delaware general partnership ("CMC"),
HEARTLAND PARTNERS, L.P., a Delaware limited partnership ("Heartland"), and
CMC HEARTLAND PARTNERS IV, LLC, a Delaware limited liability company
("Partners"), jointly and severally (CMC, Heartland and Partners are
referred to herein from time to time individually as a "Borrower" and
collectively as "Borrowers"); and LASALLE BANK NATIONAL ASSOCIATION, a
national banking association ("Bank").
W I T N E S S E T H:
WHEREAS, Bank and Borrowers entered into that certain Amended and
Restated Loan and Security Agreement dated as of June 30, 1998, as amended by
that certain Amendment to Amended and Restated Loan and Security Agreement
dated as of October 23, 1998, that certain Second Amendment to Amended and
Restated Loan and Security Agreement dated as of April 29, 1999, that certain
Third Amendment to Amended and Restated Loan and Security Agreement dated as
of November 18, 1999, that certain side letter to Amended and Restated Loan
and Security Agreement dated as of October 15, 2000 and that certain Fourth
Amendment to Amended and Restated Loan and Security Agreement dated as of
March 20, 2000 (the "Agreement"), and now desire to amend the Agreement to,
among other things, (i)extend the Revolving Credit Maturity Date (as defined
in the Agreement), (ii) reduce the Revolving Credit Commitment as a result of
the Borrowers' sale of certain Collateral and (iii) clarify certain covenants
contained in the Agreement, as further set forth in this Amendment.
NOW, THEREFORE, for and in consideration of the premises and mutual
agreements herein contained and for the purposes of setting forth the terms
and conditions of this Amendment, the parties, intending to be bound, hereby
agree as follows:
1. Incorporation of the Agreement. All capitalized terms which are
not defined hereunder shall have the same meanings as set forth in the
Agreement, and the Agreement to the extent not inconsistent with this
Amendment is incorporated herein by this reference as though the same were
set forth in its entirety. To the extent any terms and provisions of the
Agreement are inconsistent with the amendments set forth in Paragraph 2
below, such terms and provisions shall be deemed superseded hereby. Except as
specifically set forth herein, the Agreement shall remain in full force and
effect and its provisions shall be binding on the parties hereto.
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2. Amendment of the Agreement. The Agreement is hereby amended as
follows:
(a) Any and all references to the Agreement shall be deemed to
refer to and include this Amendment, as the same may be further amended,
modified or supplemented from time to time.
(a) The definition of the term "Revolving Credit Maturity Date"
in Paragraph 1.1 is hereby amended and restated to read in its entirety as
follows:
"Revolving Credit Maturity Date" means March 31, 2001.
(a) The definition of the term "Revolving Note" in Paragraph
1.1 is hereby amended and restated to read in its entirety as follows:
"Revolving Note" means that certain Substitute
Revolving Note dated as of December 31, 2000
made by Borrowers, jointly and severally, in
favor of Bank, in the maximum principal amount
available of Eleven Million and 00/100 Dollars
($11,000,000), as the same may be amended,
modified or supplemented from time to time,
together with any renewals thereof or exchanges
or substitutes therefor.
(d) Paragraph 2.1 is hereby amended and restated to read in its
entirety as follows:
Revolving Credit Commitment. On the
terms and subject to the conditions set
forth in this Agreement, Bank agrees to
make revolving credit available and
Letters of Credit available to Borrowers
from time to time prior to the Revolving
Credit Termination Date with respect to
revolving credit loans and the Letter of
Credit Termination Date with respect to
Letters of Credit, in such aggregate
amounts as Borrowers may from time to
time request but in no event exceeding
Eleven Million Dollars ($11,000,000) in
the aggregate (the "Revolving Credit
Commitment"); provided, however, that in
no event shall the aggregate amount of
Letters of Credit outstanding at any one
time exceed the Letter of Credit Limit.
The Revolving Credit Commitment shall be
available to Borrowers by means of Loans,
it being understood that the Loans may be
repaid and used again during the period
from the date hereof to and including the
Revolving Credit Termination Date, at
which time the Revolving Credit
Commitment shall expire. Notwithstanding
the foregoing, the Revolving Credit
Commitment shall be permanently reduced
(i) to Nine Million Six Hundred Thousand
Dollars ($9,600,000) upon the earlier to
occur of (A) Borrowers' sale of a portion
of the Kinzie Station Mortgaged Property
to Gamma Photo and (B) February 28, 2001,
and (ii) to Eight Million One Hundred
Thousand Dollars ($8,100,000) on March
28, 2001; provided, however, that the
Revolving Credit Commitment shall be
reduced to Seven Million Six Hundred
Thousand Dollars ($7,600,000) on March
28, 2001 in the event the Bank, following
written request by the Borrowers on or
before March 16, 2001, agrees to release
its liens on the Fife Mortgaged
Property. Upon any reduction of the
Revolving Credit Commitment as set forth
above, Borrowers hereby agree to
immediately pay all amounts outstanding
under the Revolving Credit Commitment in
excess of the reduced amount of the
Revolving Credit Commitment as of the
date of such reduction. To the extent
such amounts are not paid upon the
corresponding date of such reduction, it
shall constitute an Event of Default and,
in addition to any other remedies
available to Bank, interest on the Loans
shall accrue at the Default Rate.
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(e) Paragraph 8.3(g) is hereby amended and restated to read in its
entirety as follows:
Partnership Interests, Loans and Advances. (i) make, or
permit any Subsidiary to make, any distribution to any partner or member (as
the case may be) or other Affiliate of any Borrower, pay or permit any
Subsidiary to pay, any management fees or such similar fee to any partner or
member, as the case may be (other than an annual management fee to HTI in the
aggregate amount not to exceed $425,000), or set aside funds for any of the
foregoing; (ii) redeem, retire, purchase, or otherwise acquire, directly or
indirectly, any partnership or membership interests, as the case may be, of
any Borrower or other evidence of ownership interests, or declare or pay any
distribution of any kind from any Borrower or make any distribution of any
Borrower's property or assets; or (iii) make any loans or advances of any
kind from any Borrower to any Person at any time.
3. As of the date hereof, the Borrowers hereby acknowledge that the
Borrowers have made advances to HTI in the aggregate principal amount of
$4,300,000. The parties hereto agree that the Borrowers may make future
advances to HTI in an amount not to exceed $2,000,000 in the aggregate.
Borrowers acknowledge that any present or future advances made by any
Borrower to any Person other than as set forth in this paragraph shall
constitute an Event of Default under the Loan Agreement as amended hereby.
4. Closing Documents. All the documents on Exhibit A hereto shall be
delivered concurrently with this Amendment, each in form and substance
satisfactory to Bank.
5. Representations and Warranties; No Event of Default; Schedules. The
representations and warranties set forth in Paragraph 8.1 of the Agreement
are deemed remade as of the date hereof and each Borrower represents that
such representations and warranties are true and correct as of the date
hereof. No Event of Default exists nor does there exist any event or
condition which with notice, lapse of time and/or the consummation of the
transactions contemplated hereby would constitute an Event of Default.
6. Fees and Expenses. The Borrowers agree to pay on demand all costs and
expenses of or incurred by Bank in connection with the evaluation,
negotiation, preparation, execution and delivery of this Amendment and the
other instruments and documents executed and delivered in connection with the
transactions described herein (including the filing or recording thereof),
including, but not limited to, the fees and expenses of counsel for the Bank
and any future amendments to the Agreement.
7. Effectuation. The amendments to the Agreement contemplated by this
Amendment shall be deemed effective immediately upon the full execution of
this Amendment and without any further action required by the parties
hereto. There are no conditions precedent or subsequent to the effectiveness
of this Amendment.
8. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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Fifth Amendment to Amended and Restated Loan
and Security Agreement Signature Page
IN WITNESS WHEREOF, the parties hereto have duly executed this Fifth
Amendment as of the date first above written.
CMC HEARTLAND PARTNERS, a
Delaware general partnership
By: HEARTLAND TECHNOLOGY, INC., a
Delaware corporation and an
authorized general partner
By:
Its:
By: HEARTLAND PARTNERS, L.P., a
Delaware limited partnership and an
authorized general partner
By: Heartland Technology, Inc.,
Its: General Partner
By:
Its:
HEARTLAND PARTNERS, L.P.,
a Delaware limited partnership
By: Heartland Technology, Inc.
Its: General Partner
By:
Its:
[Continued on following page]
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[Continued from prior page]
CMC HEARTLAND PARTNERS IV, LLC, a
Delaware limited liability company
By:
Its:
LASALLE BANK NATIONAL ASSOCIATION,
a national banking association
By:_________________________________
Its:________________________________
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EXHIBIT A
Amendment Documents
1. Fifth Amendment to Amended and Restated Loan and Security
Agreement
2. Substitute Revolving Note
3. Secretary's Certificate of Heartland Technology, Inc. certifying
to resolutions of each Borrower.
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