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EXHIBIT 4.1
AMENDMENT NO. 3
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 entered into as of May 31, 2000 (this
"Amendment"), among CMI INDUSTRIES, INC., a Delaware corporation (the
"Borrower"), the financial institutions party to the Loan Agreement (as
hereinafter defined) from time to time (the "Lenders") and FLEET CAPITAL
CORPORATION, a Rhode Island corporation, as agent for the Lenders (the "Agent").
Preliminary Statement
The Borrower, the Lenders and the Agent are parties to the Amended and
Restated Loan and Security Agreement dated as of May 28, 1999 (as amended and in
effect, the "Loan Agreement"; unless otherwise defined herein, capitalized terms
used herein have the meanings ascribed to them in the Loan Agreement). The
Borrower has requested that the Lenders amend the Loan Agreement to permit the
Borrower to purchase additional Senior Subordinated Notes and the Lenders have
agreed so to amend the Loan Agreement, all upon and subject to the terms and
conditions hereinafter set forth.
Statement of Agreement
NOW THEREFORE, in consideration of the Loan Agreement, the Loans made
by the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment to Loan Agreement Provisions. Effective in
accordance with SECTION 2 hereof, the Loan Agreement is hereby amended by
amending subsection (b)(ii) of Section 11.5 (Restricted Dividend Payments and
Purchases, Etc.) to read as follows:
(ii) Restricted Payments arising from purchases by the
Borrower of its Senior Subordinated Notes during the period commencing
May 31, 2000 and ending September 30, 2000 for an aggregate purchase
price not to exceed $10,000,000.
Section 2. Conditions to Effectiveness of Amendment. This
Amendment shall become effective as of the date hereof on the date on which the
Agent receives counterparts of this Amendment, duly executed and delivered by
the Borrower and the Lenders and in sufficient copies for each Lender.
Section 3. Effect of Amendment. Upon and after the effectiveness
of this Amendment as provided in SECTION 2 hereof, all references to the Loan
Agreement in the Loan Agreement, or in any other Loan Document shall mean the
Loan Agreement as amended by this Amendment. Except as expressly provided in
this Amendment, the execution and delivery of this Amendment does not, and will
not, amend, modify or supplement any provision of or constitute a consent to or
a waiver of any noncompliance with the provisions of the Loan Agreement and,
except as specifically provided in this Amendment, the Loan Agreement shall
remain in full force and effect.
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Section 4. Representations and Warranties. The Borrower hereby
represents and warrants that the Borrower has the right and power and has taken
all necessary action to authorize it to execute, deliver and perform this
Amendment in accordance with its terms and this Amendment has been duly executed
and delivered by a duly authorized officer of the Borrower and is a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms.
Section 5. General Provisions.
(a) Governing Law. This Amendment shall be construed in
accordance with and governed by the law of the State of Georgia,
without giving effect to the conflict of laws principles thereof.
(b) Counterpart Execution. This Amendment may be executed
in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed
to be an original and shall be binding upon all parties, their
successors and assigns, and all of which taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers in several
counterparts as of the date first above written.
CMI INDUSTRIES, INC.
By: /s/ X. X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: CFO
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FLEET CAPITAL CORPORATION, as
the Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Senior Vice President
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BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Principal
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