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EXHIBIT 10(b)
THIRD AMENDMENT TO LOAN AGREEMENT
AND OTHER LOAN DOCUMENTS
THIS THIRD AMENDMENT TO LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this
"Amendment") dated as of August 28, 1997 (the "Effective Date"), is entered
into by XXXXXX INDUSTRIES, INC., a Delaware corporation which is the successor
by merger to Xxxxxx Industries, Inc., an Alabama corporation (the "Borrower"),
and AMSOUTH BANK, an Alabama banking corporation formerly doing business as
AmSouth Bank N.A., a national banking association, and AmSouth Bank of Alabama,
an Alabama banking corporation (the "Lender").
RECITALS
A. The Borrower and the Lender are parties to a certain Loan
Agreement dated as of January 7, 1993, as amended by letter of April 5, 1994,
and as assumed and modified by an Assumption and Modification Agreement dated
February 17, 1995, and as further modified and amended by a First Amendment to
Loan Agreement and Other Loan Documents dated as of March 15, 1995, and as
further modified and amended by a Second Amendment to Loan Agreement and Other
Documents dated as of March 28, 1996 (the "Loan Agreement").
B. The Borrower and the Lender wish further to amend the Loan
Agreement to make the changes set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and in
further consideration of the mutual agreements set forth herein, effective as
of the Effective Date, the Borrower and the Lender hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement and
not otherwise defined herein have the meanings defined for them in the Loan
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF BORROWER. The Borrower
represents and warrants to the Lender that as of the Effective Date no Event of
Default (nor any event that upon notice or lapse of time or both would
constitute an Event of Default) exists under the Loan Agreement or any of the
other Loan Documents.
3. AMENDMENTS TO LOAN AGREEMENT AS OF EFFECTIVE DATE. Effective
as of the Effective Date, the Loan Agreement is amended as follows:
(a) The following new definition is added in alphabetical order in
Section 1.02:
THIRD AMENDMENT shall mean the Third Amendment to Loan
Agreement and Other Loan Documents between the Borrower and the Lender
as of August 28, 1997, which document amends certain of the provisions
of this Agreement.
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(b) The following definitions are amended as follows:
MAXIMUM LINE OF CREDIT shall mean $30,000,000.
LIBOR-BASED RATE shall mean a fixed rate one hundred
twenty-five (125) basis points in excess of the rate of interest
determined by the British Bankers Association, as reported in the Wall
Street Journal, of the cost of funds available to the Lender from the
purchase on the London interbank market of funds in the form of time
deposits in United States dollars in the approximate amount of the
Maximum Line of Credit having a one month maturity, adjusted for any
applicable LIBOR Reserve Requirement.
(c) The date "May 31, 1993" in the definition of "Line of Credit
Termination Date" in Section 1.02, which was previously extended to
July 31, 1997, is further amended to read "July 31, 1999."
(d) The figure "$15,000,000" that appears in two places in the
definition of "Maximum Line of Credit", which was previously
amended to $20,000,000, is further amended to read $30,000,000.
(e) The figure "$15,000,000" that appears in the fourth line of
Section 3.02, which was previously amended to "$20,000,000", is further
amended to read "$30,000,000".
4. MODIFIED LINE OF CREDIT NOTE. To evidence certain of the
changes effected by this Amendment, the Borrower shall execute and deliver to
the Lender a Modified, Amended and Restated Line of Credit Note substantially
in the form attached hereto as Exhibit A (the "Modified Line of Credit Note").
Commencing on the Effective Date the Modified, Amended and Restated Line of
Credit Note shall be the "Line of Credit Note" referred to in the Loan
Agreement and the other Loan Documents. The Lender may retain the original
Line of Credit Note dated January 7, 1993 and the Modified, Amended and
Restated Line of Credit Note dated March 15, 1995, in its file along with the
Modified, Amended and restated Line of Credit Note of even date until the
indebtedness evidenced thereby has been paid in full and the Line of Credit has
been terminated as set forth in the Loan Agreement.
5. REFERENCES IN LOAN DOCUMENTS. Effective as of the Effective
Date, all references in the Loan Documents to the "Loan Agreement" shall mean
the Loan Agreement, as heretofore modified and amended and as further modified
and amended by this Amendment, and all references to the "Line of Credit Note"
shall mean the Modified, Amended and Restated Line of Credit Note referred to
in this Amendment. Effective as of the Effective Date, the words "fifteen
million dollars" and figure "$15,000,000" as used in any of the Loan Documents
to refer to the maximum principal amount of the Line of Credit Master Note, as
amended to "twenty million dollars" and "$20,000,000", are further amended to
read "thirty million dollars" and $30,000,000" respectively.
6. LOAN DOCUMENTS TO REMAIN IN EFFECT. Except as specifically
modified by this Amendment, the Loan Agreement and the other Loan Documents
shall remain in full force and effect in accordance with their respective
terms.
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7. NO NOVATION, ETC. Nothing contained in this Amendment
shall be deemed to constitute a novation of the terms of the Loan Documents, or
impair any Liens granted to the Lender thereunder, or affect any of the rights,
powers or remedies of the Lender thereunder or constitute a waiver of any
provision thereof, except as specifically set forth in this Amendment.
8. GOVERNING LAW, SUCCESSORS AND ASSIGNS, ETC. This Amendment
shall be governed by and construed in accordance with the laws of the State of
Alabama and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
9. DATE. The date of this Amendment is intended as and for a
date for the convenient identification of this Amendment and for determining
the Effective Date hereof, and is not intended to indicate that this Amendment
was executed and delivered on said date.
10. SEVERABILITY. If any provision of this Amendment shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
11. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which so executed shall be deemed an original, but all
counterparts shall together constitute but one and the same instrument.
12. NO WAIVER. Nothing contained herein shall be construed as
a waiver, acknowledgment or consent to any breach of or Event of Default under
the Agreement and the Loan Documents not specifically mentioned herein, and the
consents granted herein are effective only in the specific instance and for the
purposes for which given.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Amendment to be executed and delivered by their duly authorized
representatives, effective as of the date first set forth above.
XXXXXX INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Its: Vice President of Finance
and Treasurer
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AMSOUTH BANK,
an Alabama banking corporation
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Senior Vice President
