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EXHIBIT 99.1
FIFTH AMENDMENT TO AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT (this "Amendment") is made and entered into this 25th day of July,
2001, by and among CMI INDUSTRIES, INC., a Delaware corporation (hereinafter
referred to as the "Borrower") with its chief executive office and principal
place of business at 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxx Xxxxxxxx
00000, and FLEET CAPITAL CORPORATION, a Rhode Island corporation (in such
capacity, hereinafter referred to as the "Agent") with an office at 0000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, as collateral and
administrative agent for various financial institutions from time to time party
to the Loan Agreement (as hereinafter defined) (each a "Lender" and collectively
the "Lenders"), and FLEET CAPITAL CORPORATION, a Rhode Island corporation, as
the sole Lender.
RECITALS:
The Agent, the Lenders and the Borrower are parties to a certain
Amended and Restated Loan and Security Agreement dated as of May 28, 1999, as
amended by Amendment No. 1 dated as of September 30, 1999, as further amended by
Amendment No. 2 dated as of May 4, 2000, as further amended by Amendment No. 3
dated as of May 31, 2000, as further amended by Amendment No. 4 and Waiver dated
as of October 26, 2000, and as further amended by that certain Notice of
Voluntary Reduction of Revolving Credit Facility and Revolving Facility Amount,
dated December 11, 2000 (as at any time amended, the "Loan Agreement") pursuant
to which Lenders have made certain revolving credit loans to Borrower.
On May 3, 2001, the Borrower suffered the filing of an involuntary
petition in bankruptcy which remained unstayed and undismissed for more than 60
days, resulting in an Event of Default under the Loan Agreement (the "Bankruptcy
Default"). Notwithstanding the existence of the Bankruptcy Default, the Lender
continued to make Loans to Borrower during the pendency of the Borrower's
bankruptcy case pursuant to the order of the court having jurisdiction of the
bankruptcy case (the "Bankruptcy Court"). In addition to the Bankruptcy Default,
other Events of Default have occurred and currently exist under the Loan
Agreement (i) due to the occurrence of an event of default under that certain
Indenture dated as of October 28, 1993 by and between Chemical Bank, as Trustee
and the Borrower (the "Indenture"), as a result of the Borrower's failure to
make interest payments due under the Indenture on May 2, 2001, (ii) as a result
of the Borrower's breach, as of the last day of the Fiscal Quarter ended June
30, 2001, of the financial covenants contained in Sections 11.1(a) (Interest
Coverage), and 11.1(c) (Fixed Charge Coverage Ratio), which Events of Default
were waived through May 31, 2001, and (iii) as a result of the Borrower's
breach, at any time during the period commencing June 1, 2001, and ending
September 29, 2001, of the financial covenant contained in Section 11.1(b) (Net
Worth) (collectively, together with the Bankruptcy Default, the "Designated
Defaults").
At the Borrower's request and with the approval of the Bankruptcy
Court, the Lender agreed to make available additional Loans to the Borrower for
the payment of certain amounts
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owed by the Borrower to the petitioning creditors in the bankruptcy case upon
dismissal of the bankruptcy case. Among the other conditions for such Loans, the
Borrower agreed to grant to Agent, for the benefit of itself and the Lender, a
first priority security interest in and lien upon all of the Borrower's
equipment, fixtures, other fixed assets, and owned real property and to obtain a
guaranty (the "Subsidiary Guaranty") in favor of Agent by the Borrower's wholly
owned subsidiary, Elastic Fabrics of America, LLC ("EFA"), secured by a first
priority security interest in and lien upon all of EFA's real and personal
property pursuant to that certain Guarantor Security Agreement between EFA and
Agent (the "Guarantor Security Agreement"), each the Subsidiary Guaranty and the
Guarantor Security Agreement dated on or about the date hereof (collectively the
"Guarantor Documents").
The parties desire to amend the Loan Agreement to evidence the parties'
agreements concerning, and the conditions to, such additional Loans as
hereinafter set forth.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and other good
and valuable consideration, the receipt and sufficiency of which are hereby
severally acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions. All capitalized terms used in this Amendment,
unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Loan Agreement.
2. Amendments to Loan Agreement. The Loan Agreement is hereby
amended as follows:
(a) by deleting Section 2.7 of the Loan Agreement in its entirety.
(b) by deleting subsections (f) and (g) of Section 6.1 of the Loan
Agreement in their entireties and by substituting the following new subsections
in lieu thereof:
(f) Titles to Properties. Except as set forth in Schedule
6.1(f), the Borrower and each Restricted Subsidiary has good and
marketable title to its respective real Properties and valid and legal
title to all of its respective personal Property and assets, including,
but not limited to, those reflected on the consolidated balance sheet
of the Borrower delivered pursuant to Section 6.1(m), except for
defects in title that, singly or in the aggregate have not had and are
not reasonably expected to have a Material Adverse Effect, and except
those which have been disposed of by the Borrower or the Restricted
Subsidiary subsequent to such date which dispositions have been in the
ordinary course of business or otherwise permitted by this Loan
Agreement.
(g) Liens. Except as set forth in Schedule 6.1(g), none
of the properties and assets of the Borrower or any Restricted
Subsidiary is subject to any Lien, except Permitted Liens. The Borrower
has paid or discharged, and has caused each Restricted Subsidiary to
pay and discharge, all lawful claims which,
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if unpaid, might become a Lien against any Properties of the Borrower
or such Subsidiary that is not a Permitted Lien. The Liens granted to
Agent pursuant to this Agreement and the other Security Documents are
first priority Liens, subject only to Permitted Liens. Other than the
Financing Statements, no financing statement under the Uniform
Commercial Code of any State which names the Borrower or any such
Subsidiary or any of their trade names or divisions as debtor and which
has not been terminated, has been filed in any state or other
jurisdiction and neither the Borrower nor any Restricted Subsidiary has
not signed any such financing statement or any security agreement
authorizing any secured party thereunder to file any such financing
statement, except to perfect those Liens listed in Schedule 6.1(g).
(c) by deleting subsection (m) of Section 6.1 of the Loan
Agreement in its entirety and by substituting the following new subsection (m)
in lieu thereof:
The consolidated and consolidating balance sheets of the Borrower and
such other Persons described therein (including the accounts of all
Subsidiaries of the Borrower for the respective periods during which a
Subsidiary relationship existed) as of May 31, 2001, and the related
statements of income, changes in stockholder's equity, and changes in
financial position for the periods ended on such dates, have been
prepared in accordance with GAAP, and present fairly the financial
positions of the Borrower and such Persons at such dates and the
results of the Borrower's operations for such periods. Since May 31,
2001, there has been no material change in the condition, financial or
otherwise, of the Borrower and such other Persons as shown on the
consolidated balance sheet as of such date and no material change in
the aggregate value of Equipment and real Property owned by the
Borrower or such other Persons, none of which transactions or changes,
individually or in the aggregate, has been materially adverse.
(d) by deleting subsections (s) and (t) of Section 6.1 of the Loan
Agreement in its entirety and by substituting the following new subsections in
lieu thereof:
(s) Equipment. All of the Borrower's and the Restricted
Subsidiaries' Equipment is located on the premises set forth
on Schedule 6.1(s).
(t) Real Property. Neither the Borrower nor any
Restricted Subsidiary owns any real Property and leases as lessee any
real Property other than that summarized on Schedule 6.1(t). None of
the Real Property of the Borrower that is subject to the Lien of the
Mortgages is located in an area that has been identified by the
Secretary of Housing and Urban Development as an area having special
flood hazards and in which flood insurance has been made available
under the National Flood Insurance Act of 1968.
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(e) by inserting the following new subsection (c) to Section 7.1
of the Loan Agreement immediately following subsection (b):
(c) The due and punctual payment and performance of the
Secured Obligations shall also be secured by the Liens created by the
Mortgages upon all real Property of the Obligors described therein;
provided, however, that Mortgages to which the Guarantor is a party
secure only the "Guaranteed Obligations" (as defined in the Subsidiary
Guaranty). Each of the Mortgages shall be duly recorded, at the
Borrower's expense, in each office where such recording is required to
constitute a fully perfected Lien upon the Real Property covered
thereby. Promptly after the Borrower's or any Restricted Subsidiary's
obtaining any interest in any additional real Property, the Borrower
shall execute and deliver to the Agent, for the Agent's benefit and the
ratable benefit of Lenders, a mortgage, deed to secure debt, deed of
trust, assignment or other document satisfactory to the Agent and
sufficient to convey and perfect, upon recordation thereof in the
proper real estate records, in favor of the Agent a first priority Lien
upon such interest as security for the payment or performance of the
Secured Obligations. To further secure the prompt payment and
performance of the Secured Obligations, the Borrower hereby grants,
transfers and assigns to the Agent, for the benefit of itself as Agent
and for the ratable benefit of Lenders, and hereby grants to the Agent,
for the benefit of itself as Agent and for the ratable benefit of
Lenders, a security interest in and Lien upon all of the Borrower's
right, title and interest in, to and under all now or hereafter
existing leases of Real Property to which the Borrower is a party,
whether as lessor or lessee, and all extensions, renewals and
modifications thereof.
(f) by deleting subsection (c) of Section 7.2 of the Loan
Agreement in its entirety and by substituting the following new subsection (c)
in lieu thereof:
The Agent is hereby authorized to execute and file
one or more financing or continuation statements or amendments
thereto on behalf of the Borrower. The Agent will give the
Borrower notice of the filing of any such statements or
amendments, which notice shall specify the locations where
such statements or amendments were filed. A carbon,
photographic, xerographic or other reproduction of this
Agreement or of any of the Security Documents or of any
financing statement filed in connection with this Agreement is
sufficient as a financing statement. The Borrower hereby
agrees that the Agent is authorized to file any financing
statement naming the Borrower as debtor or any amendment to a
financing statement covering the Collateral without the
signature of the Borrower.
(g) by deleting Section 8.7 of the Loan Agreement in its entirety
and by substituting the following new Section 8.7 in lieu thereof:
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SECTION 8.7 Ownership and Defense of Title.
(a) Except for Permitted Liens, the Borrower
shall at all times be the sole owner of each and every item of
Collateral and shall not create any Lien on, or sell, lease,
exchange, assign, transfer, pledge, hypothecate, grant a
security interest or security title in or otherwise dispose
of, any of the Collateral or any interest therein, except for
(i) sales of Inventory in the ordinary course of business,
(ii) the sale of other Inventory provided that the Inventory
so disposed of pursuant to this clause (ii) in any Fiscal Year
does not have a book value in excess of $500,000 in the
aggregate, (iii) sales or other dispositions of Equipment in
accordance with Section 8.12(b), and (iv) sales or other
dispositions of Real Property in accordance with Section 8.13.
The inclusion of "proceeds" of the Collateral under the
Security Interest shall not be deemed a consent by the Lenders
to any other sale or other disposition of any part or all of
the Collateral.
(b) Except with respect to Permitted Liens, the
Borrower shall defend its title in and to, and the Security
Interest in, the material Collateral against the claims and
demands of all Persons.
(h) by deleting Section 8.8 of the Loan Agreement in its entirety
and by substituting the following new Section 8.8 in lieu thereof:
SECTION 8.8 Insurance of Collateral; Condemnation Proceeds.
(i) The Borrower shall maintain and pay for
insurance upon all Collateral, wherever located, covering
casualty, hazard, public liability, theft, malicious mischief,
loss in transit and such other risks in such amounts and with
such insurance companies as are reasonably satisfactory to the
Agent. All proceeds payable under each such policy shall be
payable to the Agent for application to the Secured
Obligations. On or before the Fifth Amendment Date, the
Borrower shall deliver a certificate of insurance evidencing
such policies with satisfactory lender's loss payable
endorsements reasonably satisfactory to the Agent naming the
Agent as sole loss payee, assignee or additional insured, as
appropriate, and as soon as possible, but in no event later
than sixty (60) days after the Fifth Amendment Date, the
Borrower shall deliver the originals or certified copies of
such policies to the Agent. Each policy of insurance or
endorsement shall contain a clause requiring the insurer to
give not less than 30 days prior written notice to the Agent
in the event of cancellation of the policy for any reason
whatsoever and a clause specifying that the interest of the
Agent shall not be impaired or invalidated by any act or
neglect of the Borrower or the owner of the Property or by the
occupation of the premises for purposes
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more hazardous than are permitted by said policy. If the
Borrower fails to provide and pay for such insurance, the
Agent may, at its option, but shall not be required to,
procure the same and charge the Borrower therefor. The
Borrower agrees to deliver to the Agent, promptly as rendered,
true copies of all reports made in any reporting forms to
insurance companies. For so long as no Event of Default
exists, the Borrower shall have the right to settle, adjust
and compromise any claim with respect to any insurance
maintained by the Borrower provided that all proceeds thereof
are applied in the manner specified in this Agreement, and the
Agent agrees promptly to provide any necessary endorsement to
any checks or drafts issued in payment of any such claim. At
any time that an Event of Default exists, only the Agent shall
be authorized to settle, adjust and compromise such claims,
the Agent shall have all rights and remedies with respect to
such policies of insurance as are provided for in this
Agreement and the other Loan Documents.
(ii) Any proceeds of insurance referred to in
this Section 8.8 and any condemnation awards that are paid to
the Agent in connection with a condemnation of any of the
Collateral shall be paid to the Agent and applied first to the
payment of the Revolving Credit Loans and then to any other
Secured Obligations outstanding, provided that, if requested
by the Borrower in writing within 5 days after the Agent's
receipt of such proceeds and if no Default or Event of Default
exists, the Borrower may apply such proceeds of Equipment or
Real Property to repair or replace the damaged or destroyed
Equipment or Real Property from which such proceeds are paid
to Agent so long as (1) such repair or replacement is promptly
undertaken and concluded, (2) replacements of buildings are
constructed on the sites of the original casualties and are of
comparable size, and quality and utility to the destroyed
buildings, (3) the repaired or replaced Property is at all
times free and clear of Liens other than Permitted Liens that
are not Purchase Money Liens, (4) the Borrower complies with
such disbursement procedures for such proceeds as the Agent
may reasonably impose for repair or replacement, and (5) the
amount of proceeds from any single casualty affecting
Equipment or Real Property does not exceed $500,000.
(i) by deleting subsection (a) of Section 8.9 of the Loan
Agreement in its entirety and by substituting the following new subsection (a)
in lieu thereof:
(a) The Borrower will not change the location of its
chief executive office or the place where it keeps its books and
records relating to the Collateral or change its name, identity or
corporate structure without giving the Agent sixty (60) days' prior
written notice thereof.
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All tangible items of Collateral, other than Inventory in
transit to any such location (including from one such location to any
other such location), will at all times be kept by the Borrower at one
or the other of the locations set forth in Schedule 6.1(t), and shall
not, without the prior written consent of the Agent, be removed
therefrom, except that, so long as no Event of Default shall have
occurred and be continuing, the Borrower may (i) make sales or other
dispositions of any Collateral to the extent authorized by SECTIONS
8.7(A) and 8.12(B) hereof and (ii) move Inventory or Equipment or any
record relating to any Collateral to a location in the United States
other than those shown on SCHEDULE 6.1(T) hereto so long as the
Borrower has given the Agent at least 30 Business Days' prior written
notice of such new location and prior to moving any Equipment to such
location where there shall have been filed any UCC-1 financing
statements and any other appropriate documentation necessary to perfect
or continue the perfection of the Agent's first priority Liens with
respect to such Equipment. Notwithstanding anything to the contrary
contained in this Agreement, the Borrower shall not be permitted to
keep, store or otherwise maintain any Collateral at any location
(including any location described in SCHEDULE 6.1(T)), unless (i) the
Borrower is the owner of such location, (ii) the Borrower leases such
location and has used its best efforts to obtain an executed landlord
waiver in favor of the Agent, or (iii) the Collateral consists of
Inventory placed with a warehouseman, bailee or processor, and the
Borrower has used its best efforts to obtain an executed and acceptable
Lien waiver agreement in favor of the Agent.
(j) by inserting the following new Section 8.12 immediately
following Section 8.11 of the Loan Agreement:
SECTION 8.12 Administration of Equipment.
(a) Records and Schedules of Equipment. Borrower
shall keep accurate records itemizing and describing the kind,
type, quality, quantity and cost of its Equipment and all
dispositions made in accordance with SECTION 8.12(B) hereof,
and shall furnish the Agent and Lenders with a current
schedule containing the foregoing information on at least an
annual basis and more often if requested by the Agent.
Promptly after request therefor by the Agent, Borrower shall
deliver to the Agent and Lenders any and all evidence of
ownership, if any, of any of the Equipment.
(b) Dispositions of Equipment. The Borrower will
not sell, lease or otherwise dispose of or transfer any of the
Equipment or any part thereof without the prior written
consent of the Agent; provided, however, that the foregoing
restriction shall not apply, for so long as no Default or
Event of Default exists, to (i) dispositions of Equipment
which, in the aggregate during any consecutive 12-month
period, has a fair market value
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or book value, whichever is more, of $500,000 or less,
provided that all Net Proceeds thereof are remitted to the
Agent for application to the Secured Obligations (but the
Revolving Facility Amount shall not be permanently reduced
solely as a result of such remittances); (ii) replacements of
Equipment that is substantially worn, damaged or obsolete with
Equipment of like kind, function and value, provided that the
replacement Equipment shall be acquired prior to or
concurrently with any disposition of the Equipment that is to
be replaced, the replacement Equipment shall be free and clear
of Liens other than Permitted Liens that are not Purchase
Money Liens, and the Borrower shall have given the Agent at
least 10 days prior written notice of such disposition; or
(iii) dispositions of the Equipment that, as of May 3, 2001,
was located at any of the Borrower's facilities located in
Geneva, Alabama, Clarkesville, Georgia, or Clinton, South
Carolina, provided that all Net Proceeds thereof are remitted
to the Agent for application to the Secured Obligations (but
the Revolving Facility Amount shall not be permanently reduced
solely as a result of such remittances).
(c) Condition of Equipment. The Equipment is in
good operating condition and repair, and all necessary
replacements of and repairs thereto shall be made so that the
value and operating efficiency of the Equipment shall be
maintained and preserved, reasonable wear and tear excepted.
Borrower shall ensure that the Equipment shall be mechanically
and structurally sound, capable of performing the functions
for which the Equipment was originally designed, in accordance
with the manufacturer's published and recommended
specifications. Borrower will not permit any of the Equipment
to become affixed to any real Property leased to Borrower so
that an interest arises therein under the real estate laws of
the applicable jurisdiction unless the landlord of such real
Property has executed a landlord waiver or leasehold mortgage
in favor of and in form acceptable to the Agent, and Borrower
will not permit any of the Equipment to become an accession to
any personal Property that is subject to a Lien unless the
Lien is a Permitted Lien.
(k) by adding the following new Section 8.13 immediately following
Section 8.12:
SECTION 8.13 Disposition of Real Property. The Borrower will
not sell or otherwise dispose of or transfer any of the Real Property or any
part thereof without the prior written consent of Agent; provided, however, that
the foregoing restriction shall not apply, for so long as no Default or Event of
Default exists, to sales or dispositions of the Borrower's real Property located
in Geneva, Alabama, Clarkesville, Georgia, or Clinton, South Carolina, provided
that all Net Proceeds thereof are remitted to the Agent for application to the
Secured Obligations (but the Revolving Facility Amount shall not be permanently
reduced solely as a result of such remittances).
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(l) by deleting subsection (b) of Section 11.8 in its entirety and
by substituting the following new subsection (b) in lieu thereof:
(b) Sell, lease, consign or transfer or
otherwise dispose of or permit any Restricted Subsidiary to
sell, lease, transfer or otherwise dispose of assets (other
than sales or other dispositions of Collateral in accordance
with SECTION 8.7(A), SECTION 8.12(B) and SECTION 8.13 hereof
or other dispositions of obsolete assets, or the sale or
other disposition of other assets which are replaced in the
ordinary course of business).
(m) by adding the following subsection (q) of Section 12.1
immediately following subsection (p) thereto:
(q) Repudiation of or Default Under Subsidiary
Guaranty. Any Guarantor shall revoke or attempt to revoke the
Subsidiary Guaranty signed by such Guarantor, shall
repudiate such Guarantor's liability thereunder, or shall be
in default under the terms thereof, or shall fail to confirm
in writing, promptly after receipt of Agent's written
request therefor, such Guarantor's ongoing liability under
the Subsidiary Guaranty in accordance with the terms thereof.
(n) by deleting subsection (b) of Section 12.2 in its entirety and
by substituting the following new subsection (b) in lieu thereof:
(b) Other Remedies. If any Event of Default
shall have occurred, and during the continuance of any such Event of
Default, the Agent may, upon the consent of the Required Lenders, and
shall, upon direction of the Required Lenders, do any of the following:
(i) in the name of the Borrower or the
Lenders verify the validity, amount or any other matter
relating to any Receivables by mail, telephone, telegraph or
otherwise and notify, or request the Borrower to notify, in
writing or otherwise, any Account Debtor or obligor with
respect to any one or more of the Receivables to make payment
to the Agent or any designee of the Agent for the ratable
benefit of the Lenders at such address as may be specified by
the Agent and if, notwithstanding the giving of any notice,
any Account Debtor or other such obligor shall make payments
to the Borrower, the Borrower shall hold all such payments it
receives in trust for the ratable benefit of the Lenders,
without commingling the same with other funds or property of,
or held by, the Borrower, and shall deliver the same to the
Agent or any such designee immediately upon receipt by the
Borrower in the identical form received, together with any
necessary endorsements;
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(ii) settle or adjust disputes and
claims directly with Account Debtors and other obligors on
Receivables for amounts and on terms which the Agent considers
advisable acting reasonably and in good faith and in all such
cases only the net amounts received by the Agent in payment of
such amounts, after deductions of costs and attorneys' fees,
shall constitute Collateral and the Borrower shall have no
further right to make any such settlements or adjustments or
to accept any returns of merchandise;
(iii) enter upon any premises on which
Collateral may be located and, without resistance or
interference by the Borrower, take physical possession of any
or all thereof and maintain such possession on such premises
or move the same or any part thereof to such other place or
places as the Agent shall choose, without being liable to the
Borrower on account of any loss, damage or depreciation that
may occur as a result thereof, so long as the Agent shall act
reasonably and in good faith;
(iv) require the Borrower to and the
Borrower shall, without charge to the Agent or the Lenders,
assemble the Collateral and maintain or deliver it into the
possession of the Agent or any agent or representative of the
Agent at such place or places as the Agent may designate and
as are reasonably convenient to both the Agent and the
Borrower;
(v) at the expense of the Borrower,
cause any of the Collateral to be placed in a public or field
warehouse, and neither the Agent nor the Lenders shall be
liable to the Borrower on account of any loss, damage or
depreciation that may occur as a result thereof, so long as
the Agent shall act reasonably and in good faith;
(vi) without notice, demand or other
process, and without payment of any rent or any other charge,
enter any of the Borrower's premises and, without breach of
the peace, until the Agent completes the enforcement of the
Lenders' rights in the Collateral, take possession of such
premises or place custodians in exclusive control thereof,
remain on such premises and use the same and any of the
Borrower's equipment for the purposes of (A) completing any
work in process, preparing any Inventory for disposition and
disposing thereof, and (B) collecting any Receivable;
(vii) in the exercise of the rights of
the Agent and the Lenders under this Agreement, without
payment of compensation of any kind, use any and all
trademarks, trade styles, trade names, licenses, franchises
and the like to the extent of the rights of the Borrower
therein, and the Borrower grants, or in the case of any
federally registered trademark, shall grant, a license to the
Agent and the Lenders for this purpose, provided that any use
of any federally registered trademarks as to any goods shall
be subject to the control as to quality of such goods of the
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owner of such trademarks and the goodwill of the business
symbolized thereby;
(viii) exercise any and all of its rights
under any and all of the Security Documents (including,
without limitation, the Mortgages);
(ix) subject to Section 12.3, apply any
cash Collateral to the payment of the Secured Obligations in
any order in which the Agent may elect or use such cash in
connection with the exercise of any of its other rights
hereunder or under any of the Security Documents;
(x) cause all collected balances in any
account of the Borrower to be transmitted daily by wire
transfer or depository transfer check or ACH to the Agent at
the Agent's Office;
(xi) establish or cause to be
established one or more arrangements for the deposit of
proceeds of Receivables;
(xii) exercise all of the rights and
remedies of a secured party under the Uniform Commercial Code
and under any other Applicable Law, including, without
limitation, the right, without notice except as specified
below and with or without taking possession thereof, to sell
the Collateral or any part thereof in one or more parcels at
public or private sale, at any location chosen by the Agent
for cash, on credit or for future delivery, and at such price
or prices and upon such other terms as the Agent may deem
commercially reasonable. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least ten
days' notice to the Borrower of the time and place of any
public sale or the time after which any private sale is to be
made shall constitute reasonable notification, but notice
given in any other reasonable manner or at any other
reasonable time shall also constitute reasonable notification.
The Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned;
(xiii) do or cause to be done any act or
thing which the Borrower has covenanted to do under this
Agreement or any of the Loan Documents and has failed to do,
either in the name of the Lenders or on behalf of the
Borrower; and
(xiv) cause all outstanding amounts under
the Notes to bear interest at a per annum rate equal to the
Base Rate in effect from time to time plus 2% for so long as
such Event of Default shall continue.
(o) by adding the following new Section 13.9 immediately following
Section 13.8 of the Loan Agreement:
SECTION 13.9 Agreements Regarding Collateral. Lenders hereby
irrevocably authorize the Agent, at its option and in its discretion,
to release any
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Lien upon any Collateral (i) upon the termination of this Agreement and
payment or satisfaction of all of the Secured Obligations, (ii)
constituting Equipment sold or disposed of in accordance with the terms
of this Agreement if the Borrower certifies to the Agent that the
disposition is made in compliance with the terms of this Agreement (and
the Agent may rely conclusively on any such certificate, without
further inquiry), or (iii) if approved or ratified by the Required
Lenders. The Agent shall have no obligation whatsoever to any of the
Lenders to assure that any of the Collateral exists or is owned by the
Borrower or is cared for, protected or insured or has been encumbered,
or that the Agent's Liens have been properly or sufficiently or
lawfully created, perfected, protected or enforced or entitled to any
particular priority or to exercise any duty of care with respect to any
of the Collateral.
(p) by adding the following new definitions to Appendix I to the
Loan Agreement in their proper alphabetical sequence:
"Availability Reserve" means, on any date of
determination thereof, an amount equal to the sum of the
following (without duplication): (i) any amounts which any
Obligor is obligated to pay pursuant to the provisions of any
of the Loan Documents that Agent or any Lender elects to pay
for the account of such Obligor in accordance with authority
contained in any of the Loan Documents; (ii) $7,000,000, (iii)
the Interest Rate Exposure Reserve; (iv) the Swap Reserve; (v)
the Fixed Asset Reserve; and (vi) such additional reserves, in
such amounts and with respect to such matters, as Agent in its
sole and absolute discretion may elect to impose from time to
time.
"Equipment" means all of the Borrower's machinery,
apparatus, equipment, fittings, furniture, fixtures, motor
vehicles and other tangible personal property (other than
Inventory) of every kind and description, whether now owned or
hereafter acquired by the Borrower and wherever located, and
all parts, accessories and special tools therefor, all
accessions thereto, and all substitutions and replacements
thereof.
"Fifth Amendment Date" means July 25, 2001.
"Fixed Asset Reserve" means, on any date of
determination thereof, an amount equal to the aggregate amount
of all proceeds received by Guarantor as of such date as a
result of any sale, lease, transfer or disposition of any of
the Guarantor's equipment or real Property.
"Goods" shall have the meaning ascribed to the term
"goods" in the UCC.
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"Governmental Authority" means any federal, state,
municipal, national, foreign or other governmental department,
commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to any government or
any court, in each case whether associated with a state of the
United States, the District of Columbia or a foreign entity or
government.
"Guarantor" means Elastic Fabrics of America, LLC,
and each other Person who guarantees payment or performance of
the whole or any part of the Secured Obligations.
"LC Obligations" means, on any date of determination
thereof, an amount (in Dollars) equal to the sum of (i) all
amounts then due and payable by any Obligor on such date by
reason of any payment made on or before such date by FCC under
any LC Support plus (ii) the aggregate undrawn amount of all
Letters of Credit then outstanding or to be issued by Fleet
Bank pursuant to any notice prescribed by Section 3.2(a)
theretofore submitted to Fleet Bank.
"Mortgage" means each mortgage, deed of trust or deed
to secure debt to be executed by an Obligor on or before the
Fifth Amendment Date, in favor of the Agent and by which such
Obligor shall grant and convey to the Agent for its benefit as
Agent and for the ratable benefit of the Lenders, Liens upon
the Real Property of such Obligor, and which in the case of
the Borrower shall include such real Properties located in
Clinton, South Carolina, and Clarkesville, Georgia, and which
in the case of the Guarantor shall include such real
Properties located in Greensboro, North Carolina, and Stuart,
Virginia, each of which mortgage, deeds of trust or deed to
secure debt is granted as security for the payment of the
Secured Obligations.
"Obligor" means the Borrower and each Guarantor, and
any other Person that is at any time liable for the payment of
the whole or any part of the Secured Obligations or that has
granted in favor of Agent a Lien upon any of any of such
Person's assets to secure payment of any of the Secured
Obligations.
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed and whether tangible
or intangible.
"Purchase Money Debt" means and includes (i) debt
(other than the Secured Obligations) for the payment of all or
any part of the purchase price of any fixed assets, (ii) any
debt (other than the Secured Obligations)
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incurred at the time of or within 10 days prior to or after
the acquisition of any fixed assets for the purpose of
financing all or any part of the purchase price thereof, and
(iii) any renewals, extensions or refinancings (but not any
increases in the principal amounts) thereof outstanding at the
time.
"Purchase Money Lien" means a Lien upon fixed assets
which secures Purchase Money Debt, but only if such Lien shall
at all times be confined solely to the fixed assets acquired
through the incurrence of the Purchase Money Debt secured by
such Lien and such Lien constitutes a purchase money security
interest under the UCC with respect to personal property, or a
purchase money lien under Applicable Law with respect to real
Property.
"Real Property" means all right, title and interest
of the Obligors (whether as owner, lessor or lessee) at any
time or times held by the Obligors in any real Property or any
buildings, structures, parking areas or other improvements
thereon, including each Obligor's facilities described in
Schedule 6.1(t).
"Subsidiary Guaranty" means that Subsidiary Guaranty
executed by Guarantor on or about the date hereof, and any
guaranty agreement now or hereafter executed by a Guarantor in
favor of Agent with respect to any of the Obligations.
"UCC" means the Uniform Commercial Code (or any
successor statute) as adopted and in force in the State of
Georgia from time to time or, when the laws of any other state
govern the method or manner of the perfection or enforcement
of any security interest in any of the Collateral, the Uniform
Commercial Code (or any successor statute) of such state.
(q) by deleting the definitions of "Asset Disposition" and
"BankBoston" contained in Appendix I to the Loan Agreement in their entireties.
(r) by deleting clause (b) in the definition of "Collateral"
contained in Appendix I to the Loan Agreement and by inserting the following new
clause (b) in lieu thereof:
(b) all Goods, including all Inventory and all Equipment,
(s) by further amending the definition of "Collateral" contained
in Appendix I to the Loan Agreement by re-lettering clauses (f), (g) and (h) as
clauses (g), (h) and (i) respectively and by inserting the following new clause
(f) immediately following clause (e):
(f) all of the Real Property described in the
Mortgages, and any other Real Property or interests in real
Property that now or hereafter
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secure (or are intended to secure) the payment and performance
of any of the Secured Obligations;
(t) by deleting clause (d) of the definition of "Eligible
Inventory" contained in Appendix I to the Loan Agreement and by inserting the
following new clause (d) in lieu thereof:
(d) such Inventory is located at one of the locations set
forth in the most recent Schedule of Inventory (other than
such locations for which no landlords', mortgagees' or
mechanics' releases, subordinations or waivers have been
obtained) ; and
(u) by deleting clause (h) of the definition of "Permitted Liens"
contained in Appendix I to the Loan Agreement and by inserting the following new
clause (h) in lieu thereof:
(h) Liens in existence on the Fifth Amendment
Date and listed on Schedule 6.1(g), and
(v) by deleting the definitions of "Borrowing Base," "FCC,"
"Governmental Approvals," "Revolving Credit Facility," "Revolving Facility
Amount," and "Revolving Facility Percentage Amount" contained in Appendix I to
the Loan Agreement in their entireties and by substituting in lieu thereof the
following new definitions:
"Borrowing Base" means at any time an amount equal to
the sum of:
(a) eighty-five percent (85%) of the face amount of Eligible Receivables of
the Borrower due and owing at such time, plus
(b) as to Eligible Inventory,
(i) sixty percent (60%) of the lesser of cost, determined on a first in,
first out or FIFO basis, and market value (as determined in accordance with
GAAP) of finished greige goods inventory of the Borrower at such time, plus (ii)
seventy percent (70%) of the lesser of cost, determined on a first in, first out
or FIFO basis and market value of raw baled fiber inventory of the Borrower at
such time, plus (iii) fifty percent (50%) of the lesser of cost, determined on a
first in, first out or FIFO basis and market value of other raw materials of the
Borrower at such time, plus (iv) fifty percent (50%) of the lesser of cost,
determined on a first in, first out or FIFO basis and market value of
uninspected finished fabric which is included in work in progress, less
(c) an amount equal to (i) the aggregate Stated Amount of all Letters of
Credit outstanding at such time and the amount of any unreimbursed Drawing under
any Letters of Credit and (without duplication) unreimbursed payments under any
related LC Support less (ii) all cash Collateral held by or on behalf of the
Agent to secure the Borrower's reimbursement obligations with respect to any
Letters of Credit, less
(d) the Availability Reserve at such time. The Agent may adjust the
percentages set forth in clause (a) and clause (b) above if, as a result of an
examination, on-site review or other audit of the Borrower's business performed
by the Agent's in-house auditors from time to time, the Agent reasonably
determines that the quality or collectibility of the Receivables or the
Inventory is materially worse than the quality or
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collectibility as of the Agreement Date. Any such adjustment shall be
proportionate to reflect the change in the Collateral quality or collectibility,
and shall be reversed by the Agent if the condition of the Collateral
subsequently improves so that the quality and collectibility of the Receivables
or Inventory is comparable to the quality and collectibility as of the date
hereof. The Agent shall give the Borrower 60 days' notice of any decrease in the
percentages.
"FCC" means Fleet Capital Corporation, a Rhode Island
corporation (assignee of Fleet Bank).
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Net Proceeds" means proceeds received by the
Borrower in cash from any sale, lease, transfer or other
disposition of any asset of the Borrower or any Subsidiary of
the Borrower (including, without limitation, payments as
received under notes or other debt securities delivered in
connection with any such sale lease transfer or disposition),
net of: (a) the transaction costs of such sale, lease,
transfer or other disposition; (b) any tax liability arising
from such transaction; and (c) amounts applied to repayment of
Indebtedness for Money Borrowed (other than the Secured
Obligations) secured by a Lien on the asset or property
disposed of.
"Revolving Credit Facility" means $22,000,000.
"Revolving Facility Amount" means the Revolving Credit Facility, as
reduced pursuant to the provisions of Section 2.6 of the Agreement, less the sum
of (a) the Stated Amount of any outstanding Letter of Credit from time to time
and the amount of any unreimbursed Drawing under any Letters of Credit and
(without duplication) unreimbursed payments under any related LC Supports, and
(b) the Availability Reserve.
"Revolving Facility Percentage Amount" means: as to FCC, $22,000,000 or
such other amount as may from time to time be reflected on the records of the
Agent as a result of an assignment by a Lender pursuant to Section 14.9 hereof.
(w) by deleting all references to "BankBoston, N.A., a national
banking association", "BankBoston, N.A." and the defined term "BankBoston"
throughout the Loan Agreement, and by substituting respectively "Fleet Capital
Corporation, a Rhode Island corporation", "Fleet Capital Corporation" and the
defined term "FCC" in lieu thereof.
(x) by deleting the notice address for the Agent set forth below
the Agent's signature on the signature page of the Loan Agreement and by
substituting in lieu thereof the new notice address for the Agent as set forth
below the signature of the Agent to this Amendment.
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(y) by deleting Schedules 6.1(f), (g), (i), (s) and (t) to the
Loan Agreement in their entireties and by substituting Schedules 6.1(f), (g),
(i), (s) and (t) attached hereto in lieu thereof.
3. Additional Covenants. To induce the Agent and the Lenders to
enter into this Amendment, the Borrower covenants and agrees as follows: (a)
simultaneously with the execution and delivery of this Amendment, the Borrower
shall execute and deliver (i) that certain South Carolina Mortgage, Security
Agreement and Assignment of Leases and Rents relating to the Borrower's facility
in Xxxxxxx, Xxxxxxx County, South Carolina and that certain Georgia Deed to
Secure Debt, Security Agreement and Assignment of Rents relating to the
Borrower's facility in Clarkesville, Habersham County, Georgia, each in form and
substance satisfactory to the Agent (collectively, the "Mortgages"); (b)
simultaneously with the execution and delivery of this Amendment, the Borrower
shall reimburse the Agent and the Lenders for the payment of all applicable
documentary stamp, intangibles, recording, note or other similar taxes payable
with respect to the Mortgage described in clause (a); and (c) within sixty (60)
days after the date of this Amendment, the Borrower shall deliver to the Agent
fully paid mortgagee title insurance policies, in standard ALTA form, issued by
a title insurance company satisfactory to the Agent, conforming to the marked
commitments delivered to Lender pursuant to Section 10 hereof on or prior to the
date of this Amendment.
4. Limited Waiver of Default. The Borrower represents and
warrants that the Designated Defaults are the only Default or Event of Default
that exist under the Loan Agreement and the other Loan Documents as of the date
hereof. Subject to the satisfaction of the conditions precedent set forth in
paragraph 10 hereof, the Agent and the Lenders hereby waive the Designated
Defaults in existence on the date hereof as well as any Default or Event of
Default with respect to Section 11.1(b) of the Loan Agreement that may exist
through September 29, 2001. In no event shall such waiver be deemed to
constitute a waiver of (a) any Default or Event of Default other than the
Designated Defaults in existence on the date of this Amendment (except for any
Default or Event of Default with respect to Section 11.1(b) of the Loan
Agreement that may exist through September 29, 2001) or (b) the Borrower's
obligation to comply with all of the terms and conditions of the Loan Agreement
and the other Loan Documents from and after the date hereof (except with respect
to Section 11.1(b) of the Loan Agreement through September 29, 2001).
Notwithstanding any prior, temporary mutual disregard of the terms of any
contracts between the parties, the Borrower hereby agrees that it shall be
required strictly to comply with all of the terms of the Loan Documents on and
after the date hereof (except with respect to Section 11.1(b) of the Loan
Agreement through September 29, 2001).
5. Ratification and Reaffirmation. The Borrower hereby ratifies
and reaffirms the Secured Obligations, each of the Loan Documents and all of the
Borrower's covenants, duties, indebtedness and liabilities under the Loan
Documents.
6. Acknowledgments and Stipulations. The Borrower acknowledges
and stipulates that the Loan Agreement and the other Loan Documents executed by
the Borrower are legal, valid and binding obligations of the Borrower that are
enforceable against the Borrower in
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accordance with the terms thereof; all of the Secured Obligations are owing and
payable without defense, offset or counterclaim (and to the extent there exists
any such defense, offset or counterclaim on the date hereof, the same is hereby
waived by the Borrower); the security interests and liens granted by the
Borrower in favor of Agent are duly perfected, first priority security interests
and liens (subject only to Permitted Liens); and on and as of July 24, 2001 the
unpaid principal amount of the Revolving Credit Loans totaled $0 and unpaid
principal amount of the LC Obligations totaled $2,972,000.
7. Representations and Warranties. The Borrower represents and
warrants to the Agent and the Lenders, to induce the Agent and the Lenders to
enter into this Amendment, that no Default or Event of Default exists on the
date hereof other than the Designated Defaults; the execution, delivery and
performance of this Amendment have been duly authorized by all requisite
corporate action on the part of the Borrower and this Amendment has been duly
executed and delivered by Borrower; and all of the representations and
warranties made by the Borrower in the Loan Agreement are true and correct on
and as of the date hereof (x) as stated as to representations and warranties
which contain materiality limitations, and (y) in all material respects as to
all other representations and warranties.
8. Reference to Loan Agreement. Upon the effectiveness of this
Amendment, each reference in the Loan Agreement to "this Agreement,"
"hereunder," or words of like import shall mean and be a reference to the Loan
Agreement, as amended by this Amendment.
9. Breach of Amendment. This Amendment shall be part of the Loan
Agreement and a breach of any of any representation, warranty or covenant herein
shall constitute an Event of Default, pursuant to Section 12.1(d) of the Loan
Agreement, in the same manner and with the same effect and subject to the same
conditions as a breach of each other representation, warranty or covenant
contained in the respective Articles of the Loan Agreement.
10. Conditions Precedent. The effectiveness of the amendments
contained in paragraphs (a) through (y) of Section 2 hereof and the waiver
pursuant to Section 4 hereof, and the Lender's obligation to make the Revolving
Credit Loans as set forth in Section 19 hereof, are subject to the satisfaction
on or before July 31, 2001 (the "Final Closing Date"), of each of the following
conditions precedent, in form and substance satisfactory to the Agent, unless
satisfaction thereof is specifically waived in writing by the Agent:
(a) Title Insurance Commitments. The Agent shall have
received fully paid binding commitments to issue title insurance policies,
marked to the Agent's satisfaction to evidence the form of such policies to be
delivered after the Closing Date, in standard ALTA form, issued by a title
insurance company satisfactory to the Agent, each in an amount equal to not less
than the fair market value of the real Property subject to the Mortgages,
insuring the Mortgages to create a valid Lien on all real Property described
therein with no exceptions which the Agent shall not have approved and no survey
exceptions; and
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(b) Closing Documents. The Guarantor Documents and each
of the Mortgages shall have been duly executed and delivered to Agent by each of
the signatories thereto and accepted by Agent and Lenders and each Obligor shall
be in compliance with all of the terms thereof.
(c) Evidence of Perfection and Priority of Liens. Agent
shall have received evidence in form satisfactory to Agent and Lenders that the
Liens of Agent in the Collateral constitute valid and perfected security
interests and Liens, and that there are no other Liens upon any Collateral
except for Permitted Liens.
(d) Organization Documents. Agent shall have received
copies of the charter, certificate or articles of incorporation, bylaws,
articles of organization, operating agreement, members agreement, partnership
agreement, voting trust, or similar agreement or instrument governing the
formation or operation of the Borrower and Guarantor, and all amendments
thereto, certified (i) with respect to the certificate or incorporation or
formation, by the Secretary of State or other appropriate officials of the
jurisdiction of Borrower's and each Obligor's states of organization, and (ii)
with respect to the bylaws, operating agreement, members agreement, partnership
agreement, voting trust, or similar agreement or instrument, by the Secretary or
Assistant Secretary of Borrower and the managing member of Guarantor.
(e) Good Standing Certificates. Agent shall have received
good standing certificates for each Obligor, issued by the Secretary of State or
other appropriate official of such Obligor's jurisdiction of organization and
each jurisdiction where the conduct of such Obligor's business activities or
ownership of its Property necessitates qualification.
(f) Opinion Letters. Agent shall have received a
favorable, written opinion of Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP and the respective
local counsel to Borrower and Agent, covering, to Agent's satisfaction, the
matters set forth on Exhibit A attached hereto.
(g) Compliance with Laws and Other Agreements. Agent
shall have determined or received assurances satisfactory to it that none of the
Loan Documents or Guarantor Documents or any of the transactions contemplated
thereby violate any Applicable Law, court order or agreement binding upon any
Obligor.
(h) No Material Adverse Change. No material adverse
change in the financial condition of any Obligor or in the quality, quantity or
value of any Collateral shall have occurred since May 31, 2001.
(i) Loan Agreement Conditions. Taking into account the
conditions precedent of this Amendment, all the other conditions to making
Revolving Credit Loans set forth in Sections 2.1 and 5.2 of the Loan Agreement
are satisfied.
11. Expenses of the Agent and the Lenders. The Borrower agrees to
pay, ON DEMAND, all reasonable costs and expenses actually incurred by the Agent
and the Lenders in
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connection with the preparation, negotiation and execution of this Amendment and
any other Loan Documents executed pursuant hereto and any and all amendments,
modifications, and supplements thereto, including, without limitation, the
reasonable costs and fees of the Agent's and the Lenders' legal counsel actually
incurred and any taxes or expenses associated with or incurred in connection
with any instrument or agreement referred to herein or contemplated hereby.
12. Cash Collateralization of Letters of Credit. The Borrower
hereby agrees to deposit into the Deposit Account, as defined in that certain
letter agreement between the Borrower and the Agent dated June 7, 2001, on or
before the date of issuance of any Letter of Credit that is not outstanding on
the Fifth Amendment Date, an amount equal to 102% of the Stated Amount of such
additional Letter of Credit that is requested by the Borrower. All such
additional Letters of Credit from time to time issued shall be deemed
"Outstanding Letters of Credit" under (and as defined in the Collateral
Assignment of Deposit Account and Control Agreement dated as of June 1, 2001,
between the Borrower and the Agent (as at any time amended, the "Account
Assignment"), and the Agent is hereby authorized (but is not obligated) from
time to time to substitute a revised Schedule 1 to the Account Assignment to
further evidence the then current list of Outstanding Letters of Credit. Any
failure of or delay by the Agent in amending such Schedule 1 shall not affect
the status of such additional Letters of Credit as Outstanding Letters of Credit
under the Account Assignment. All such additional amounts deposited into the
Deposit Account shall constitute a part of the Deposit Account Collateral under
(and as defined in) the Account Assignment and shall be subject to the Notice of
Collateral Assignment of Deposit Accounts dated as of June 1, 2001, among the
Borrower, the Agent and Fleet National Bank.
13. Effectiveness; Governing Law. This Amendment shall be
effective upon acceptance by the Agent in Atlanta, Georgia (notice of which
acceptance is hereby waived), whereupon the same shall be governed by and
construed in accordance with the internal laws of the State of Georgia.
14. Successors and Assigns. This Amendment shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
15. No Novation, etc.. Except as otherwise expressly provided in
this Amendment, nothing herein shall be deemed to amend or modify any provision
of the Loan Agreement or any of the other Loan Documents, each of which shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Agreement as herein modified shall continue in full force and effect.
16. Counterparts; Telecopied Signatures. This Amendment may be
executed in any number of counterparts and by different parties to this
Amendment on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile
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transmission shall be deemed to be an original signature hereto. The Borrower
hereby agrees that this Amendment constitutes an "authenticated record" for
purposes of compliance with the UCC.
17. Further Assurances. The Borrower agrees to take such further
actions as the Agent shall reasonably request from time to time in connection
herewith to evidence or give effect to the amendments set forth herein or any of
the transactions contemplated hereby.
18. Section Titles. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto.
19. Fifth Amendment Date Borrowings. The Borrower hereby requests
a borrowing from Lender as a Revolving Credit Loan which shall constitute a Base
Rate Loan in the aggregate amount of $3,711,268.29, the requested disbursement
of which borrowing is set forth in the form of disbursement letter attached
hereto as Exhibit B (the "Disbursement Letter"). If the conditions precedent set
forth in Section 10 are satisfied prior to 2:00 p.m. on the Fifth Amendment
Date, then Agent and Lender hereby agree to make such Revolving Credit Loan in
accordance with the Borrower's instructions therefor given in the Disbursement
Letter, with the Agent using its reasonable best efforts to initiate such
disbursement no later than 3:00 p.m., Boston time, on the Fifth Amendment Date.
If the conditions precedent set forth in Section 10 are satisfied after 2:00
p.m., Boston time, on the Fifth Amendment Date, or on any Business Day
thereafter on or prior to the Final Closing Date, then Agent and Lender hereby
agree to make such Revolving Credit Loan in accordance with the Borrower's
instructions therefor given in the Disbursement Letter, with the Agent using its
reasonable best efforts to initiate such disbursement no later than 3:00 p.m.,
Boston time, (x) on such Business Day if the conditions precedent are satisfied
prior to 2:00 p.m., Boston time, on such Business Day, or (y) on the following
Business Day if the conditions precedent are satisfied after 2:00 p.m, Boston
time, on such Business Day.
20. Release of Claims. To induce the Agent and the Lenders to
enter into this Amendment, the Borrower hereby releases, acquits and forever
discharges the Agent and each Lender, and all officers, directors, agents,
employees, successors and assigns of Agent and Lenders, from any and all
liabilities, claims, demands, actions or causes of action of any kind or nature
(if there be any), whether absolute or contingent, disputed or undisputed, at
law or in equity, or known or unknown, that the Borrower now has or ever had
against the Agent or any Lender arising under or in connection with any of the
Loan Documents or otherwise. The Borrower represents and warrants to the Agent
and the Lenders that the Borrower has not transferred or assigned to any Person
any claim that the Borrower ever had or claimed to have against the Agent or any
Lender.
21. Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, COUNTERCLAIM OR PROCEEDING ARISING OUT OF OR RELATED TO
THIS AMENDMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal in Atlanta, Georgia, and delivered by their respective
duly authorized officers on the date first written above.
CMI INDUSTRIES, INC.
("Borrower")
By: /s/ XXXXX X. XXXXXXX
---------------------------------------
Xxxxx X. Xxxxxxx, Vice President, Chief
Financial Officer and Secretary
[CORPORATE SEAL]
[Signatures continued on next page]
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Accepted in Atlanta, Georgia, on July 25, 2001
FLEET CAPITAL CORPORATION, as Agent
("Agent")
By: /s/ XXXXX XXXX
-------------------------------
Title: Vice President
------------------------
Address for Notice:
------------------
Fleet Capital Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
LENDER:
FLEET CAPITAL CORPORATION
("Lender")
By: /s/ XXXXX XXXX
--------------------------------
Title: Vice President
-------------------------
