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EXHIBIT 10.9
MORTGAGE, SECURITY AGREEMENT AND
FIXTURE FINANCING STATEMENT
THIS INSTRUMENT (this "Instrument") is made and entered into this ____
day of September, 1999, by and between XXXXXXXXX WEAVERS, INC., a Kentucky
corporation, having a mailing address of 0000 XxxxxXxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 ("Obligor"), and WACHOVIA BANK, N.A. ("Wachovia"), having
a mailing address of 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx 00000, as agent (together with its successors and assigns, "Collateral
Agent"), for itself, Bank of America, N.A. ("Bank of America"), having a mailing
address of Independence Center, 15th Floor, NCI 000-00-00, Charlotte,
Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 00000, and The Prudential Insurance Company
of America ("Prudential"), having a mailing address of Prudential Capital Group,
Xxx Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000
(collectively, "Lenders"), in connection with that certain Intercreditor
Agreement by and among Crown Crafts, Inc., a Georgia corporation ("Crown
Crafts"), Collateral Agent and Lenders dated August 9, 1999 (as amended or
otherwise modified from time to time, the "Intercreditor Agreement").
WITNESSETH:
That for and in consideration of and as security for the debt
hereinafter described, and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and in order to secure the indebtedness and other
obligations of Obligor hereinafter set forth, Obligor does hereby irrevocably
grant, bargain, sell, convey, assign, transfer and set over unto Collateral
Agent, for the ratable benefit of Lenders and their successors and assigns, all
of the following described land and interests in land, estates, easements,
rights, improvements, property, fixtures, equipment, furniture, furnishings,
appliances and appurtenances (collectively, the "Property"):
(a) All those tracts or parcels of land and easements more
particularly described in Exhibit "A" attached hereto and by this reference
made a part hereof (the "Land").
(b) All buildings, structures and improvements of every nature
whatsoever now or hereafter situated on the Land, and all gas and electric
fixtures, radiators, heaters, engines and machinery, boilers, ranges, elevators
and motors, plumbing and heating fixtures, carpeting and other floor coverings,
fire extinguishers and any other safety equipment required by governmental
regulation or law, washers, dryers, water heaters, mirrors, mantels, air
conditioning apparatus, refrigerating plants, refrigerators, cooking apparatus
and appurtenances, window screens, awnings and storm sashes, which are or shall
be owned by Obligor and attached to said buildings, structures or improvements
and all other furnishings, furniture, fixtures, machinery, equipment,
appliances, vehicles, building supplies and materials, books and records,
chattels, inventory, accounts, farm products, consumer goods, general
intangibles and personal
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property of every kind and nature whatsoever now or hereafter owned by Obligor
and located in, on or about, or used or intended to be used with or in
connection with the use, operation or enjoyment of the Property, including all
extensions, additions, improvements, betterments, after-acquired property,
renewals, replacements and substitutions, or proceeds from a permitted sale of
any of the foregoing, and all the right, title and interest of Obligor in any
such furnishings, furniture, fixtures, machinery, equipment, appliances,
vehicles and personal property subject to or covered by any prior security
agreement, conditional sales contract, chattel mortgage or similar lien or
claim, together with the benefit of any deposits or payments now or hereafter
made by Obligor or on behalf of Obligor, all of which are hereby declared and
shall be deemed to be fixtures and accessions to the Land and a part of the
Property as between the parties hereto and all persons claiming by, through or
under them, and which shall be deemed to be a portion of the security for the
indebtedness herein described and to be secured by this Instrument.
(c) All easements, rights-of-way, strips and gores of land,
vaults, streets, ways, alleys, passages, sewer rights, waters, water courses,
water rights and powers, minerals, flowers, shrubs, crops, trees, timber and
other emblements now or hereafter located on the Land or under or above the
same or any part or parcel thereof, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances, reversion
and reversions, remainder and remainders, whatsoever, in any way belonging,
relating or appertaining to the Land or any part thereof, or which hereafter
shall in any way belong, relate or be appurtenant thereto, whether now owned or
hereafter acquired by Obligor.
(d) All income, rents, issues, profits and revenues of the
Property from time to time accruing (including, without limitation, all
payments under leases or tenancies, proceeds of insurance, condemnation
payments, tenant security deposits whether held by Obligor or in a trust
account, and escrow funds), and all the estate, right, title, interest,
property, possession, claim and demand whatsoever at law, as well as in equity,
of Obligor of, in and to the same; reserving only the right to Obligor to
collect the same (other than insurance proceeds and condemnation payments) so
long as Obligor is not in default hereunder.
(e) All other "Collateral" (as defined in that certain Security
Agreement (as amended or otherwise modified from time to time, the "Security
Agreement") executed by Crown Crafts in favor of the Collateral Agent for the
ratable benefit of Lenders dated August 9, 1999.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof, to the use, benefit and behoof of Collateral Agent for
the ratable benefit of Lenders and their successors and assigns, IN FEE SIMPLE
forever; and Obligor covenants that Obligor is lawfully seized and possessed of
the Property as aforesaid, and has good right to convey the same, that the same
is unencumbered except for those matters expressly set forth in Exhibit "B"
attached hereto and by this reference made a part hereof, and that Obligor does
warrant and will forever defend the title thereto against the claims of all
persons whomsoever, except as to those matters set forth in said Exhibit "B"
attached hereto.
This Instrument is given to secure the following described
indebtedness (collectively, the "Indebtedness"):
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(a) Obligor's full guaranty pursuant to those certain Facility
Guaranties to each Lender, each dated as of August 9, 1999, and maturing on or
about October 12, 2010 (collectively, the "Guaranty") of the debt and interest
thereon of Crown Crafts evidenced by (i) those certain promissory notes (the
"Wachovia Notes") dated August 9, 1999, made by Crown Crafts, payable to the
order of Wachovia Bank, N.A., in the aggregate principal face amount of up to
Sixty Million and No/100 Dollars ($60,000,000), described as follows: (1) that
certain $15,000,000 Revolving A Note due on or before April 3, 2000, (2) that
certain $30,000,000 Revolving B Note due on or before January 15, 2000, and (3)
that certain $15,000,000 Term Note due on or before January 15, 2000; (ii)
those certain promissory notes (the "Bank of America Notes") dated August 9,
1999, made by Crown Crafts, payable to the order of Bank of America, in the
aggregate principal face amount of up to Twenty-Five Million and No/100
Dollars ($25,000,000), described as follows: (1) that certain $15,000,000
Revolving A Note due on or before April 3, 2000, and (2) that certain
$10,000,000 Revolving B Note due on or before January 15, 2000; and (iii) those
certain promissory notes (the "Prudential Notes") dated August 9, 1999, made by
Crown Crafts, payable to the order of Prudential, in the aggregate principal
face amount of up to Fifty Million and No/100 Dollars ($50,000,000), with the
final payment being due on or before October 12, 2005. The Wachovia Notes, the
Bank of America Notes and the Prudential Notes, as any of them may be amended
or otherwise modified from time to time, are herein collectively referred to as
the "Note".
(b) Obligor's full guaranty pursuant to the Guaranty of all other
"Secured Obligations" (as defined in the Security Agreement).
(c) Any and all additional advances made by any Lender to protect
or preserve the Property or the lien and security title hereof in and to the
Property, or for taxes, assessments or insurance premiums as hereinafter
provided (whether or not the Obligor remains the owner of the Property at the
time of such advances).
(d) Obligor's full guaranty pursuant to the Guaranty of any and
all other indebtedness now or hereafter owing by Crown Crafts to any Lender,
whether now existing or hereafter arising or incurred, however evidenced or
incurred, whether express or implied, direct or indirect, absolute or
contingent, due or to become due, and all renewals, modifications,
consolidations, replacements and extensions thereof.
Should the Indebtedness secured by this Instrument be paid according
to the tenor and effect thereof when the same shall become due and payable, and
should Obligor perform all covenants herein contained in a timely manner, then
this Instrument shall be cancelled and surrendered.
Obligor hereby further covenants and agrees with Collateral Agent as
follows:
ARTICLE I
Section 1.01 Payment of Indebtedness. Obligor will pay the
Indebtedness according to the tenor thereof and all other sums now or hereafter
secured hereby promptly as the same shall become due.
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Section 1.02 Condemnation. If all or any portion of the Property
shall be damaged or taken through condemnation (which term when used in this
Instrument shall include any damage or taking by any governmental authority or
any transfer by private sale in lieu thereof), either temporarily or
permanently, then if a Default or Event of Default is in existence, Collateral
Agent shall be entitled to receive all compensation, awards and other payments
or relief thereof, and Collateral Agent is hereby authorized, at its option, to
commence, appear in and prosecute, in its own or in Obligor's name, any action
or proceeding relating to any condemnation, and to settle or compromise any
claim in connection therewith. All such compensation, awards, damages, claims,
rights of action and proceeds and the right thereto are hereby assigned by
Obligor to Collateral Agent. After deducting from said condemnation proceeds
all of its expenses incurred in the collection and administration of such sums,
including attorney's fees, Collateral Agent may apply the net proceeds or any
part thereof, at its option, (a) to the payment of the Indebtedness hereby
secured, whether or not due and in accordance with the terms of the
Intercreditor Agreement, (b) to the repair and/or restoration of the Property
or (c) for any other purposes or objects for which Collateral Agent is entitled
to advance funds under this Instrument, all without affecting the lien of this
Instrument; and any balance of such monies then remaining shall be paid to
Obligor. Obligor agrees to execute such further assignment of any compensation,
awards, damages, claims, rights of action and proceeds as Collateral Agent may
require.
Section 1.03 Care, Use and Management of Property.
(a) Obligor will keep the buildings, roads and walkways,
landscaping and all other improvements of any kind now or hereafter erected on
the Land or any part thereof in good condition and repair, will not commit or
suffer any waste and will not do or suffer to be done anything which will
increase the risk of fire or other hazard to the Property or any part thereof.
(b) Obligor will not remove or demolish nor alter the structural
character of any building located on the Land without the written consent of
Collateral Agent.
(c) If the Property or any part thereof is damaged by fire or any
other cause, Obligor will give immediate written notice thereof to Collateral
Agent.
(d) Each Lender or its representative is hereby authorized to
enter upon and inspect the Property at any time during normal business hours.
(e) Obligor will promptly comply with all present and future
laws, ordinances, rules and regulations of any governmental authority affecting
the Property or any part thereof.
(f) If all or any part of the Property shall be damaged by fire
or other casualty, Obligor will promptly restore the Property to the equivalent
of its original condition; and if a part of the Property shall be damaged
through condemnation, Obligor will promptly restore, repair or alter the
remaining portions of the Property in a manner satisfactory to the Required
Lenders (as defined in the Intercreditor Agreement). Notwithstanding the
foregoing, Obligor shall not be obligated to so restore unless in each
instance, Collateral Agent agrees to make available to Obligor (pursuant to a
procedure satisfactory to Collateral Agent) any net insurance or condemnation
proceeds actually received by Collateral Agent hereunder in connection with
such
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casualty loss or condemnation, to the extent such proceeds are required to
defray the expense of such restoration; provided, however, that the
insufficiency of any such insurance or condemnation proceeds to defray the
entire expense of restoration shall in no way relieve Obligor of its obligation
to restore. In the event all or any portion of the Property shall be damaged or
destroyed by fire or other casualty or by condemnation, Obligor shall promptly
deposit with Collateral Agent a sum equal to the amount by which the estimated
cost of the restoration of the Property (as determined by Collateral Agent in
its good faith judgment) exceeds the actual net insurance or condemnation
proceeds received by Collateral Agent in connection with such damage or
destruction.
Section 1.04 Leases and Other Agreements Affecting Property.
Obligor will duly and punctually perform all terms, covenants, conditions and
agreements binding upon it under any lease or any other agreement of any nature
whatsoever which involves or affects the Property or any part thereof. Obligor
will, at the request of Collateral Agent, furnish the Lenders with executed
copies of all leases now or hereafter created upon the Property or any part
thereof and all leases now or hereafter entered into will be in form and
substance subject to the prior approval of Collateral Agent. Obligor will not,
without the express written consent of the Required Lenders, modify, surrender
or terminate, either orally or in writing, any lease now existing or hereafter
created upon the Property or any part thereof, nor will Obligor permit an
assignment or a subletting by any tenant without the prior express written
consent of Collateral Agent. In order to further secure payment of the
Indebtedness and the observance, performance and discharge of Obligor's
obligations, Obligor hereby assigns, transfers and sets over under Collateral
Agent all of Obligor's right, title and interest in, to and under all leases
affecting the Property or any part thereof and in and to all of the rents,
issues, profits, revenues, awards and other benefits now or hereafter arising
from the use and enjoyment of the Property or any part thereof; reserving only
the right to Obligor to collect the same so long as Obligor is not in default
hereunder.
All such leases must be subordinate to the lien of this Instrument
unless Collateral Agent otherwise specifies, in which case such specific leases
shall be made superior to this Instrument. Collateral Agent shall be entitled
to require that certain leases be made superior to this Instrument but that
certain provisions of such superior leases be made subject to this Instrument.
Collateral Agent shall also be entitled to require, and Obligor shall use its
best efforts to obtain, the execution of non-disturbance and attornment
agreements from any tenants specified by Collateral Agent. Any form lease
hereafter used by Obligor shall be first submitted to and approved by
Collateral Agent. Obligor hereby authorizes and directs each present and future
tenant of the Property to pay to Collateral Agent all rents and any other sums
due Obligor as landlord and to perform for the direct benefit of Collateral
Agent any other obligations of such tenant to Obligor as landlord, as if
Collateral Agent were the landlord under such tenant's lease, immediately upon
receipt of a written demand by Collateral Agent to make such payment or perform
such obligation during the existence of a Default or Event of Default. No such
demand by Collateral Agent shall constitute or be deemed to constitute any
assumption by Collateral Agent of any obligations of the landlord under such
tenant's lease. Subject only to compliance by Collateral Agent with the
provisions of Paragraph 2.01, no such demand by Collateral Agent shall
constitute or be deemed to constitute any wrongful interference by Collateral
Agent in the affairs or business relationships for ascertaining whether any
such demand by Collateral Agent is authorized or whether a default by Obligor
has occurred under this Instrument. Obligor hereby
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waives any right, claim or action Obligor may now or hereafter have against any
such tenant by reason of such tenant's payment to or performance for Collateral
Agent as described above, and any such payment to or performance for Collateral
Agent shall discharge the obligation of such tenant to make such payment to, or
perform such obligation for, Obligor.
Section 1.05 Security Agreement. Insofar as the machinery,
apparatus, equipment, fittings, fixtures, building supplies and materials, and
articles of personal property either referred to or described in this
Instrument, or in any way connected with the use and enjoyment of the Property
is concerned, this Instrument is hereby made and declared to be a security
agreement, encumbering each and every item of personal property included
herein, in compliance with the provisions of the Uniform Commercial Code as
enacted in the state wherein the Land is situated. A financing statement or
statements reciting this Instrument to be a security agreement, affecting all
of said personal property aforementioned, shall be executed by Obligor and
Collateral Agent and appropriately filed. The remedies for any violation of the
covenants, terms and conditions of the security agreement herein contained
shall be (i) as prescribed herein, or (ii) as prescribed by general law, or
(iii) as prescribed by the specific statutory consequences now or hereafter
enacted and specified in said Uniform Commercial Code, all at Collateral
Agent's sole election. Obligor and Collateral Agent agree that the filing of
such financing statement(s) in the records normally having to do with personal
property shall never be construed as in any way derogating from or impairing
this declaration and hereby stated intention of Obligor and Collateral Agent
that everything used in connection with the production of income from the
Property and/or adapted for use therein and/or which is described or reflected
in this Instrument, is, and at all times and for all purposes and in all
proceedings both legal or equitable shall be, regarded as part of the real
estate irrespective of whether (i) any such item is physically attached to the
improvements, (ii) serial numbers are used for the better identification of
certain items capable of being thus identified in a recital contained herein,
or (iii) any such item is referred to or reflected in any such financing
statement(s) so filed at any time. Similarly, the mention in any such financing
statement(s) of the rights in and to (1) the proceeds of any fire and/or hazard
insurance policy, or (2) any award in eminent domain proceedings for a taking
or for loss of value, or (3) Obligor's interest as lessor in any present or
future lease or rights to income growing out of the use and/or occupancy of the
Property, whether pursuant to lease or otherwise, shall never be construed as
in anyway altering any of the rights of Collateral Agent as determined by this
Instrument or impugning the priority of Collateral Agent's lien granted hereby
or by any other recorded document, but such mention in such financing
statement(s) is declared to be for the protection of Collateral Agent in the
event any court shall at any time hold with respect to the foregoing (1), (2)
or (3), that notice of Collateral Agent's priority of interest to be effective
against a particular class of persons, must be filed in the Uniform Commercial
Code records.
Section 1.06 Further Assurances; After-Acquired Property. At any
time, and from time to time, upon request by Collateral Agent, Obligor will
make, execute and deliver or cause to be made, executed and delivered, to
Collateral Agent and, where appropriate, cause to be recorded and/or filed and
from time to time thereafter to be rerecorded and/or refiled at such time and
in such offices and places as shall be deemed desirable by Collateral Agent,
any and all such other and further deeds to secure debt, deeds of trust,
security agreements, financing statements, continuation statements, instruments
of further assurance, certificates and other documents as may, in the opinion
of Collateral Agent, be necessary or desirable in order to effectuate,
complete, or perfect, or to continue and preserve (a) the obligation of Obligor
under the Note and
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under this Instrument and (b) the lien of this Instrument as a first and prior
lien upon and security title in and to all of the Property, whether now owned
or hereafter acquired by Obligor. Upon any failure by Obligor so to do,
Collateral Agent may make, execute, record, file, re-record and/or refile any
and all such deeds to secure debt, deeds of trust, security agreements,
financing statements, continuation statements, instruments, certificates, and
documents for and in the name of Obligor and Obligor hereby irrevocably
appoints Collateral Agent the agent and attorney-in-fact of Obligor so to do.
The lien hereof will automatically attach, without further act, to all after
acquired property attached to and/or used in the operation of the Property or
any part thereof.
Section 1.07 Expenses. Obligor will pay or reimburse Collateral
Agent, upon demand therefor, for all attorney's fees, costs and expenses
incurred by Collateral Agent in any suit, action, legal proceeding or dispute
of any kind in which Lenders or Collateral Agent is made a party or appears as
party plaintiff or defendant, affecting or arising in connection with the
Indebtedness secured hereby, this Instrument or the interest created herein, or
the Property, including, but not limited to, the exercise of the power of sale
contained in this Instrument, any condemnation action involving the Property or
any action to protect the security hereof; and any such amounts paid by Lenders
or Collateral Agent shall be added to the Indebtedness secured by the lien of
this Instrument.
Section 1.08 Subrogation. Collateral Agent shall be subrogated to
the claims and liens of all parties whose claims or liens are discharged or
paid with the proceeds of the Indebtedness secured hereby.
Section 1.09 Limit of Validity. If from any circumstances
whatsoever fulfillment of any provision of this Instrument or of the Note, at
the time performance of such provision shall be due, shall involve transcending
the limit of validity presently prescribed by any applicable usury statute or
any other applicable law, with regard to obligations of like character and
amount, then ipso facto the obligation to be fulfilled shall be reduced to the
limit of such validity, so that in no event shall any exaction be possible
under this Instrument or under the Note that is in excess of the current limit
of such validity, but such obligation shall be fulfilled to the limit of such
validity. The provisions of this Paragraph 1.09 shall control every other
provision of this Instrument and of the Note.
Section 1.10 Use of Property. Obligor shall not be permitted to
alter or change the use of the Property or to abandon the Property without the
prior written consent of Collateral Agent.
Section 1.11 Conveyance of Property. Obligor hereby acknowledges
to Collateral Agent that (a) the identity and expertise of Obligor was and
continues to be a material circumstance upon which Collateral Agent has relied
in connection with, and which constitute valuable consideration to Collateral
Agent for, the extending to Obligor of the loan evidenced by the Note, and (b)
any change in such identity or expertise could materially impair or jeopardize
the security for the payment of the Note granted to Collateral Agent by this
Instrument. Obligor therefore covenants and agrees with Collateral Agent, as
part of the consideration for the extending to Obligor of the loan evidenced by
the Note, that Obligor shall not convey, transfer, assign, further encumber or
pledge any or all of its interest in the Property without the prior written
consent of Collateral Agent.
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ARTICLE 2
Section 2.01 Events of Default. The terms "Default", "Event of
Default" or "Events of Default", wherever used in this Instrument, shall have
the meaning provided for in the Intercreditor Agreement and shall include the
failure of Borrower to perform any of its obligations under this Instrument;
provided, however, immediately upon the occurrence of an Event of Default, and
without regard to any time periods or opportunities to cure described in the
Transaction Documents (as defined in the Intercreditor Agreement), Collateral
Agent may make written demand upon any and all tenants of the Property to pay
to Collateral Agent all rents and other sums and to perform for the direct
benefit of Collateral Agent all obligations of such tenants, as provided in
Paragraph 1.04.
Section 2.02 Acceleration of Maturity. If an Event of Default
shall have occurred and be continuing, then the entire Indebtedness secured
hereby shall, as permitted by the terms of the Transaction Documents,
immediately become due and payable without notice or demand, time being of the
essence of this Instrument.
Section 2.03 Right to Enter and Take Possession.
(a) If an Event of Default shall have occurred and be continuing,
Obligor upon demand of Collateral Agent, shall forthwith surrender to
Collateral Agent the actual possession of the Property and if, and to the
extent, permitted by law, Collateral Agent itself, or by such officers or
agents as it may appoint, may enter and take possession of all the Property
without the appointment of a receiver, or an application therefor, and may
exclude Obligor and its agents and employees wholly therefrom, and may have
joint access with Obligor to the books, papers and accounts of Obligor.
(b) If Obligor shall for any reason fail to surrender or deliver
the Property or any part thereof after such demand by Collateral Agent,
Collateral Agent may obtain a judgment or decree conferring upon Collateral
Agent the right to immediate possession or requiring Obligor to deliver
immediate possession of the Property to Collateral Agent. Obligor will pay to
Collateral Agent, upon demand, all expenses of obtaining such judgment or
decree, including reasonable compensation to Collateral Agent, its attorneys
and agents; and all such expenses and compensation shall, until paid, be
secured by the lien of this Instrument.
(c) Upon every such entering upon or taking of possession,
Collateral Agent may hold, store, use, operate, manage and control the Property
and conduct the business thereof, and, from time to time (i) make all necessary
and proper maintenance, repairs, renewals, replacements, additions, betterments
and improvements thereto and thereon and purchase or otherwise acquire
additional fixtures, personalty and other property; (ii) insure or keep the
Property insured; (iii) manage and operate the Property and exercise all the
rights and powers of Obligor to the same extent as Obligor could in its own
name or otherwise with respect to the same; and (iv) enter into any and all
agreements with respect to the exercise by others of any of the powers herein
granted Collateral Agent, all as Collateral Agent from time to time may
determine to be in its best interest. Collateral Agent may collect and receive
all the rents, issues, profits and revenues from the Property, including those
past due as well as those accruing thereafter, and, after deducting (1) all
expenses of taking, holding, managing and operating the
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Property (including compensation for the services of all persons employed for
such purposes); (2) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements, purchases and acquisitions;
(3) the cost of such insurance; (4) such taxes, assessments and other similar
charges as Collateral Agent may at its option pay; (5) other proper charges
upon the Property or any part thereof, and (6) the reasonable compensation,
expenses and disbursements of the attorneys and agents of Collateral Agent,
Collateral Agent shall apply the remainder of the monies and proceeds so
received by Collateral Agent, first to the payment of accrued interest; second
to the payment of deposits (as may be required in Paragraph 1.04); and third to
the payment of overdue installments of principal. Collateral Agent shall have
no obligation to discharge any duties of a landlord to any tenant or to incur
any liability as a result of any exercise by Collateral Agent of any rights
under this Instrument or otherwise. Collateral Agent shall not be liable for
any failure to collect rents, issues, profits and revenues from the Property,
nor shall Collateral Agent be liable to account for any such rents, issues,
profits or revenues unless actually received by Collateral Agent.
(d) Whenever all that is due upon the Indebtedness and under any
of the terms, covenants, conditions and agreements of this Instrument, shall
have been paid and all Events of Default made good, Collateral Agent shall
surrender possession of the Property to Obligor, its successors or assigns. The
same right of taking possession, however, shall exist if any subsequent Event
of Default shall occur and be continuing.
Section 2.04 Performance by Collateral Agent. If Obligor shall
Default in the payment, performance or observance of any term, covenant or
condition of this Instrument, Collateral Agent may, so long as such Default
continues, at its option, pay, perform or observe the same, and all payments
made or costs or expenses incurred by Collateral Agent in connection therewith,
shall be secured hereby and shall be, upon demand, immediately repaid by
Obligor to Collateral Agent with interest thereon at the default rate provided
in the Note. Collateral Agent shall be the sole judge of the necessity for any
such actions and of the amounts to be paid. Collateral Agent is hereby
empowered to enter and to authorize others to enter upon the Land or any part
thereof for the purpose of performing or observing any such defaulted term,
covenant or condition without thereby becoming liable to Obligor or any person
in possession holding under Obligor.
Section 2.05 Receiver. If an Event of Default shall have occurred
and be continuing, Collateral Agent, upon application to a court of competent
jurisdiction, shall be entitled as a matter of strict right without notice and
without regard to the occupancy or value of any security for the Indebtedness
secured hereby or the solvency of any party bound for its payment, to the
appointment of a receiver to take possession of and to operate the Property and
to collect and apply the rents, issues, profits and revenues thereof. The
receiver shall have all of the rights and powers permitted under the laws of
the State of Kentucky. Obligor will pay to Collateral Agent upon demand all
expenses, including receiver's fees, attorney's fees, costs and agent's
compensation, incurred pursuant to the provisions of this Paragraph 2.05; and
all such expenses shall be secured by this Instrument.
Section 2.06 Foreclosure. If an Event of Default shall have
occurred and be continuing, Collateral Agent may either with or without entry
or taking possession as herein provided or otherwise, proceed by a suit or
suits in law or in equity or by any other appropriate proceeding or
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remedy (i) to enforce payment of the Indebtedness or the performance of any
term, covenant, condition or agreement of this Instrument or any other right,
and (ii) to pursue any other remedy available to it, as Collateral Agent shall
determine most effectual for such purposes.
Section 2.07 Application of Proceeds of Sale. In the event of a
foreclosure sale of the Property, the proceeds of said sale shall be applied as
provided in the Intercreditor Agreement.
Section 2.08 Purchase by Collateral Agent. Upon any foreclosure sale,
Collateral Agent, on behalf of the Lenders, may bid for and purchase the
Property and shall be entitled to apply all or any part of the Indebtedness
secured hereby as a credit to the purchase price.
Section 2.09 Application of Proceeds of Sale. In the event of a
foreclosure sale of the Property, the proceeds of said sale shall be applied as
provided in the Intercreditor Agreement.
Section 2.10 Obligor as Tenant Holding Over. In the event of any such
foreclosure sale by Collateral Agent, Obligor shall be deemed a tenant holding
over and shall forthwith deliver possession to the purchaser or purchasers at
such sale or be summarily dispossessed according to provisions of law applicable
to tenants holding over.
Section 2.11 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Obligor agrees to the full extent permitted by law, that in
case of a Default or Event of Default on the part of Obligor hereunder, neither
Obligor nor anyone claiming through or under it shall or will set up, claim or
seek to take advantage of any appraisement, valuation, stay, extension,
homestead, exemption or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement or foreclosure of this Instrument, or the
absolute sale of the Property, or the final and absolute putting into possession
thereof, immediately after such sale, of the purchasers thereat, and Obligor,
for itself and all who may at any time claim through or under it, hereby waives
to the full extent that it may lawfully so do, the benefit of all such laws, and
any and all right to have the assets comprised in the security intended to be
created hereby marshalled upon any foreclosure of the lien hereof.
Section 2.12 Waiver of Homestead. Obligor hereby waives and renounces
all homestead and exemption rights provided for by the Constitution and the laws
of the United States and of any state, in and to the Property as against the
collection of the Indebtedness, or any part hereof.
Section 2.13 Leases. Collateral Agent, at its option, is authorized to
foreclose this Instrument subject to the rights of any tenants of the Property,
and the failure to make any such tenants parties to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted to be by
Obligor, a defense to any proceedings instituted by Collateral Agent to collect
the sums secured hereby.
Section 2.14 Discontinuance of Proceedings and Restoration of the
Parties. In case Collateral Agent shall have proceeded to enforce any right,
power or remedy under this Instrument by foreclosure, entry or otherwise, and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to Collateral Agent, then and in every such
case Obligor and Collateral Agent shall be restored to their former positions
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and rights hereunder, and all rights, powers and remedies of Collateral Agent
shall continue as if no such proceeding had been taken.
Section 2.15 Remedies Cumulative. No right, power or remedy conferred
upon or reserved to Collateral Agent by this Instrument is intended to be
exclusive of any other right, power or remedy, but each and every such right,
power and remedy shall be cumulative and concurrent and shall be in addition to
any other right, power and remedy given hereunder or now or hereafter existing
at law or in equity or by statute.
Section 2.16 Waiver.
(a) No delay or omission of Collateral Agent or of any
Lender to exercise any right, power or remedy accruing upon any Default shall
exhaust or impair any such right, power or remedy or shall be construed to be a
waiver of any such Default, or acquiescence therein; and every right, power and
remedy given by this Instrument to Collateral Agent may be exercised from time
to time and as often as may be deemed expedient by Collateral Agent. No consent
or waiver, expressed or implied, by Collateral Agent to or of any breach or
Default by Obligor in the performance of the obligations thereof hereunder shall
be deemed or construed to be a consent or waiver to or of any other breach or
Default in the performance of the same or any other obligations of Obligor
hereunder. Failure on the part of Lenders to complain of any act or failure to
act or to declare an Event of Default, irrespective of how long such failure
continues, shall not constitute a waiver by any Lender of its rights hereunder
or impair any rights, powers or remedies consequent on any breach or Default by
Obligor.
(b) If Lenders (i) grant forbearance or an extension of
time for the payment of any sums secured hereby; (ii) take other or additional
security for the payment of any sums secured hereby; (iii) waive or do not
exercise any right granted herein or in the Note; (iv) release any part of the
Property from the lien of this Instrument or otherwise changes any of the terms,
covenants, conditions or agreements of the Note or this Instrument; (v) consent
to the filing of any map, plat or replat affecting the Property; (vi) consent to
the granting of any easement or other right affecting the Property; or (vii)
make or consent to any agreement subordinating the lien hereof, any such act or
omission shall not release, discharge, modify, change or affect the original
liability under the Note, this Instrument or any other obligation of Obligor or
any subsequent purchaser of the Property or any part thereof, or any maker,
co-signer, endorser, surety or guarantor; nor shall any such act or omission
preclude Collateral Agent from exercising any right, power or privilege herein
granted or intended to be granted in the event of any Default then made or of
any subsequent Default; nor, except as otherwise expressly provided in an
instrument or instruments executed by Collateral Agent, shall the lien of this
Instrument be altered thereby. In the event of the sale or transfer by operation
of law or otherwise of all or any part of the Property, Collateral Agent,
without notice, is hereby authorized and empowered to deal with any such vendee
or transferee with reference to the Property or the Indebtedness secured hereby,
or with reference to any of the terms, covenants, conditions or agreements
hereof, as fully and to the same extent as it might deal with the original
parties hereto and without in any way releasing or discharging any liabilities,
obligations or undertakings.
Section 2.17 Suits to Protect the Property. Collateral Agent shall have
power (a) to institute and maintain such suits and proceedings as it may deem
expedient to prevent any
11
12
impairment of the Property by any acts which may be unlawful or in violation of
this Instrument, (b) to preserve or protect its interest in the Property and in
the rents, issues, profits and revenues arising therefrom, and (c) to restrain
the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or order would impair
the security hereunder or be prejudicial to the interest of Lenders.
Section 2.18 Collateral Agent May File Proofs of Claim. In the case of
any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting Obligor, its creditors or
its property, Collateral Agent, to the extent permitted by law, shall be
entitled to file such proofs of claim and other documents as may be necessary or
advisable in order to have the claims of Collateral Agent allowed in such
proceedings for the entire amount due and payable by Obligor under this
Instrument at the date of the institution of such proceedings and for any
additional amount which may become due and payable by Obligor hereunder after
such date.
Section 2.19 WAIVER OF OBLIGOR'S RIGHTS. BY EXECUTION OF THIS
INSTRUMENT AND BY INITIALING THIS PARAGRAPH 2.19, OBLIGOR EXPRESSLY: (A)
ACKNOWLEDGES THE RIGHT TO ACCELERATE THE INDEBTEDNESS; (B) WAIVES ANY AND ALL
RIGHTS WHICH OBLIGOR MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES
(INCLUDING, WITHOUT LIMITATION, THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF),
THE VARIOUS PROVISIONS OF THE CONSTITUTIONS FOR THE SEVERAL STATES, OR BY REASON
OF ANY OTHER APPLICABLE LAW, TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE
EXERCISE BY COLLATERAL AGENT OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO
COLLATERAL AGENT, EXCEPT SUCH NOTICE (IF ANY) AS IS SPECIFICALLY REQUIRED TO BE
PROVIDED IN THIS INSTRUMENT; (C) ACKNOWLEDGES THAT OBLIGOR HAS READ THIS
INSTRUMENT AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS
INSTRUMENT AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO OBLIGOR AND OBLIGOR
HAS CONSULTED WITH COUNSEL OF OBLIGOR'S CHOICE PRIOR TO EXECUTING THIS
INSTRUMENT; AND (D) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF
OBLIGOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY OBLIGOR AS PART
OF A BARGAINED FOR LOAN TRANSACTION.
INITIALED BY OBLIGOR:
-------------------
Section 2.20 Claims Against Collateral Agent and Lenders. No action at
law or in equity shall be commenced, or allegation made, or defense raised, by
Obligor against Collateral Agent or Lenders for any claim under or related to
this Instrument, the Note or any other instrument, document, transfer,
conveyance, assignment or loan agreement given by Obligor with respect to the
Indebtedness secured hereby, or related to the conduct of the parties
thereunder, unless written notice of such claim, expressly setting forth the
particulars of the claim alleged by Obligor, shall have been given to Collateral
Agent within sixty (60) days from and after the initial awareness of Obligor of
the event, omission or circumstances forming the
12
13
basis of Obligor for such claim. Any failure by Obligor to timely provide such
written notice to Collateral Agent shall constitute a waiver by Obligor of such
claim.
ARTICLE 3
Section 3.01 Successors and Assigns. This Instrument shall inure to the
benefit of and be binding upon Obligor, Collateral Agent and their respective
heirs, executors, legal representatives, successors and assigns. Whenever a
reference is made in this Instrument to Obligor or Collateral Agent such
reference shall be deemed to include a reference to the heirs, executors, legal
representatives, successors and assigns of Obligor or Collateral Agent.
Section 3.02 Terminology. All personal pronouns used in this Instrument
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and vice versa. Titles and
Articles are for convenience only and neither limit nor amplify the provisions
of this Instrument itself, and all references herein to Articles, Paragraphs or
subparagraphs thereof, shall refer to the corresponding Articles, Paragraphs or
subparagraphs thereof, of this Instrument unless specific reference is made to
such Articles, Paragraphs or subparagraphs thereof of another document or
instrument.
Section 3.03 Severability. If any provision of this Instrument or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Instrument and the
application of such provisions to other persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
Section 3.04 Applicable Law. This Instrument shall be interpreted,
construed and enforced according to the laws of the State of Kentucky.
Section 3.05 Notices. Except as otherwise provided herein, any notice
or other communication required hereunder shall be in writing, and shall be
deemed to have been validly served, given or delivered the next succeeding
Business Day (as defined in the Intercreditor Agreement) after timely delivery
to the courier, if sent by overnight courier; at the time delivered by hand, if
personally delivered; or when receipt is acknowledged, if (i) telecopied
(followed by delivery of written copy thereof sent by overnight courier on the
same day as such notice is given), or (ii) sent by registered or certified mail,
return receipt requested, addressed to Obligor or Collateral Agent as follows:
If to Obligor:
Xxxxxxxxx Weavers, Inc.
c/o Crown Crafts, Inc.
0000 XxxxxXxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx, Chief Financial Officer
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
13
14
with a copy to:
Xxxxxx & Xxxxxx
2700 International Tower
Peachtree Center
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxx, Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
If to Collateral Agent:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Leveraged Finance
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
with a copy to:
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxx, Xx., Esq.
Telecopy Number: (000) 000-0000
Telephone Number: (000) 000-0000
or to such other address as any party may designate for itself by like notice.
Section 3.06 Replacement of Note. Upon receipt of evidence reasonably
satisfactory to Obligor of the loss, theft, destruction or mutilation of the
Note (or any of them), and in the case of any such loss, theft or destruction,
upon delivery of an indemnity agreement reasonably satisfactory to Obligor or,
in the case of any such mutilation, upon surrender and cancellation of the Note,
Obligor will execute and deliver, in lieu thereof, a replacement Note, identical
in form and substance to such Note and dated as of the date of such Note and
upon such execution and delivery all references in this Instrument to such Note
shall be deemed to refer to such replacement Note.
Section 3.07 Assignment. This Instrument is assignable by Collateral
Agent, and any assignment hereof by Collateral Agent shall operate to vest in
the assignee all rights and powers herein conferred upon and granted to
Collateral Agent.
Section 3.08 Time of the Essence. Time is of the essence with respect
to each and every covenant, agreement and obligation of Obligor under this
Instrument, the Note and any and
14
15
all other instruments now or hereafter evidencing, securing or otherwise
relating to the Indebtedness.
Section 3.09 Fixture Filing. FOR PURPOSES OF THE UNIFORM COMMERCIAL
CODE, THE FOLLOWING INFORMATION IS FURNISHED:
(a) The name and address of the record owner of the real estate
described in this Instrument is:
Xxxxxxxxx Weavers, Inc.
c/o Crown Crafts, Inc.
0000 XxxxxXxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(b) The name and address of the debtor/mortgagor is:
Xxxxxxxxx Weavers, Inc.
c/o Crown Crafts, Inc.
0000 XxxxxXxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
(c) The name and address of the secured party/mortgagee is:
Wachovia Bank, N.A., as agent
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
(d) Information concerning the security interest evidenced by this
Instrument may be obtained from the secured party at its
address above.
(e) This Instrument covers debts which are or are to become
fixtures.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
15
16
IN WITNESS WHEREOF, Obligor has executed this Instrument under seal, as
of the day and year first above written.
XXXXXXXXX WEAVERS, INC., a
Kentucky corporation
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Printed Name: Xxxxx X. Xxxxxxx
-------------------------------
Printed Title:Vice President
-------------------------------
Attest:/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Printed Name: Xxxxxx X. Xxxxxx
-------------------------------
Printed Title: Assistant Secretary
-------------------------------
16
17
STATE OF_______________________)
) ss:
COUNTY OF______________________)
The foregoing instrument was acknowledged before me this _______ day of
____________, 1999, by ______________________________, as the
_________________________ of Xxxxxxxxx Weavers, Inc., a Kentucky corporation, on
behalf of the corporation.
---------------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
My Commission Expires:
-----------------
THIS INSTRUMENT PREPARED BY
AND UPON RECORDATION, RETURN TO:
--------------------------------
Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
REVIEWED FOR CONFORMITY WITH
KENTUCKY LAW BY:
--------------------------------
Xxxxxx Xxxxxx, Esq.
Xxxxxx & Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
17
18
EXHIBIT "A"
Description of Land
[TO BE COMPLETED]
Being the same property conveyed to Obligor by ______________ pursuant to that
certain _______________ recorded in Book ____________, Page ______ of the real
estate records of ______________ County, Kentucky.
19
EXHIBIT "B"
Permitted Exceptions
1. Such encumbrances or exceptions to title as are of record prior to date
of recordation of this instrument.
2. Such encumbrances or exceptions to title as would be revealed by a
current survey of the property.
20
FIRST AMENDMENT TO MORTGAGE, SECURITY AGREEMENT
AND FIXTURE FINANCING STATEMENT
THIS FIRST AMENDMENT TO MORTGAGE, SECURITY AGREEMENT AND FIXTURE
FINANCING STATEMENT (this "First Amendment") is made and entered into this 23rd
day of July, 2001, by and between XXXXXXXXX WEAVERS, INC., a Kentucky
corporation, having a mailing address of 0000 XxxxxXxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 ("Obligor"), and WACHOVIA BANK, N.A. ("Wachovia"),
having a mailing address of 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxxxx 00000, as agent (together with its successors and assigns,
"Collateral Agent"), for itself, Bank of America, N.A. ("Bank of America"),
having a mailing address of Independence Center, 15th Floor, NCI 000-00-00,
Charlotte, Xxxxxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx 00000, and The Prudential
Insurance Company of America ("Prudential"), having a mailing address of
Prudential Capital Group, Xxx Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx 00000 (collectively, "Lenders").
WITNESSETH:
WHEREAS in connection with that certain Intercreditor Agreement by and
among Crown Crafts, Inc., a Georgia corporation, Collateral Agent and Lenders
dated August 9, 1999 (as amended or otherwise modified from time to time, the
"Original Intercreditor Agreement"), Obligor provided that certain Mortgage,
Security Agreement and Fixture Financing Statement dated September 22, 1999 and
recorded in Mortgage Book 586, Page 332, in the Office of the Clerk of Madison
County, Kentucky (as amended or otherwise modified from time to time, the
"Original Mortgage") encumbering the Property (as more particularly described
in the Original Mortgage);
WHEREAS the Lenders have agreed to refinance, amend and restate the
obligations of Crown Crafts, Inc., Obligor and other parties pursuant to that
certain Credit Agreement dated as of the date hereof by and among Crown Crafts,
Hamco, Inc., Crown Crafts Infant Products, Inc., Obligor, Collateral Agent and
Lenders; and
WHEREAS, Obligor, Collateral Agent and Lenders desire to amend the
Original Mortgage as hereinafter set forth to reflect the terms and conditions
of the Credit Agreement.
NOW THEREFORE, for and in consideration of and as security for the debt
hereinafter described, and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Obligor, Collateral Agent and Lenders hereby agree as
follows:
1. Definition of Indebtedness. Paragraphs (a) through (d),
inclusive, as set forth on pages 2 and 3 of the Original Mortgage (which
paragraphs define "Indebtedness" under the
21
Original Mortgage) are hereby deleted in their entirety, and in lieu thereof,
the following number paragraphs are inserted:
"(a) All Obligations, including the debt and interest
thereon evidenced by the Notes, including: (i) those certain promissory
notes (the "Wachovia Notes") dated July 23, 2001, made by Crown Crafts,
Hamco, Inc., Crown Crafts Infant Products, Inc. and Obligor, payable to
the order of Wachovia Bank, N.A., in the aggregate principal face
amount of up to Fifteen Million One Hundred Three Thousand One Hundred
Ten and No/100 Dollars ($15,103,110.00), described as follows: (1) that
certain Revolving Loan Note in the maximum principal amount of
$8,695,730.00 due on or before July 30, 2003, and (2) that certain
$6,407,380.00 Term Loan Note due on or before July 30, 2006; (ii) those
certain promissory notes (the "Bank of America Notes") dated July 23,
2001, made by Crown Crafts, Hamco, Inc., Crown Crafts Infant Products,
Inc. and Obligor, payable to the order of Bank of America, N.A., in the
aggregate principal face amount of up to Six Million Five Hundred Forty
Thousand Nine Hundred Thirty and No/100 Dollars ($6,540,930.00),
described as follows: (1) that certain Revolving Loan Note in the
maximum principal amount of $3,765,990.00 due on or before July 30,
2003, and (2) that certain $2,774,940.00 Term Loan Note due on or
before July 30, 2006; and (iii) those certain promissory notes (the
"Prudential Notes") dated July 23, 2001, made by Crown Crafts, Hamco,
Inc., Crown Crafts Infant Products, Inc. and Obligor, payable to the
order of The Prudential Insurance Company of America, in the aggregate
principal face amount of up to Eleven Million Three Hundred Fifty Five
Thousand Nine Hundred Sixty and No/100 Dollars ($11,355,960.00),
described as follows: (1) that certain Revolving Loan Note in the
maximum principal amount of $6,538,280.00 due on or before July 30,
2003, and (2) that certain $4,817,680.00 Term Loan Note due on or
before July 30, 2006, and all other indebtedness, liabilities and
obligations of Obligor to the Collateral Agent and Lenders under that
certain Credit Agreement dated as of the date hereof by and among Crown
Crafts, Hamco, Inc., Crown Crafts Infant Products, Inc., Obligor,
Collateral Agent and Lenders (as amended or otherwise modified from
time to time, the "Credit Agreement"), the Notes and the other Credit
Documents, including, without limitation, all principal, interest,
fees, costs and indemnification amounts, and any extensions and
renewals thereof in whole or in part. It is hereby stipulated that the
foregoing Revolving Loan Notes evidence indebtedness arising under a
"Line of Credit" as such term is defined in KRS 382.385, and the
Lenders and Obligor intend for this Instrument to secure such Line of
Credit. The Wachovia Notes, the Bank of America Notes and the
Prudential Notes, as any of them may be amended or otherwise modified
from time to time, are herein collectively referred to as the "Note".
(b) Any and all additional advances made by any Lender to
protect or preserve the Property or the lien and security title hereof
in and to the Property, or for taxes, assessments or insurance premiums
as hereinafter provided (whether or not the Obligor remains the owner
of the Property at the time of such advances)."
22
2. Collateral. Paragraph (e) as set forth on page 2 of the
Original Mortgage (which paragraph defines "Collateral" under the Original
Mortgage) is hereby deleted in its entirety, and in lieu thereof, the following
numbered paragraph is inserted:
"(e) All other "Collateral" (as defined in that certain
Security Agreement (as amended or otherwise modified from time to time,
the "Security Agreement") executed by Crown Crafts, Hamco, Inc., Crown
Crafts Infant Products, Inc. and Obligor in favor of the Collateral
Agent for the ratable benefit of Lenders dated as of the date hereof."
3. Credit Agreement. The words "Intercreditor Agreement" in
Sections 1.02, 1.03(f), 2.01 (Intercreditor Agreement occurs twice), 2.07, 2.09
and 3.05 are hereby deleted in their entirety, and in lieu thereof, the words
"Credit Agreement" shall be inserted.
4. Credit Documents. The words "Transaction Documents" in
Sections 2.01 and 2.02 are hereby deleted in their entirety, and in lieu
thereof, the words "Credit Documents" shall be inserted.
5. Domestic Business Day. The words "Business Day" in Section
3.05 are hereby deleted in their entirety, and in lieu thereof, the words
"Domestic Business Day" shall be inserted.
6. Counterparts. This First Amendment may be executed in any
number of counterparts, each of which when taken together shall constitute one
and the same original instrument.
7. Ratification. Except as expressly amended by this First
Amendment, the Original Mortgage shall remain in full force and effect in
accordance with its terms.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
23
IN WITNESS WHEREOF, Obligor has executed this First Amendment under
seal, as of the day and year first above written.
XXXXXXXXX WEAVERS, INC., a
Kentucky corporation
By:/s/ E. Xxxxxxx Xxxxxxxx
-----------------------------------------
Printed Name: E. Xxxxxxx Xxxxxxxx
------------------------------
Printed Title: Vice President
-----------------------------
Attest: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Printed Name: Xxxxxx X. Xxxxxx
------------------------------
Printed Title: Secretary
-----------------------------
STATE OF GEORGIA ) ss:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 24th
day of July, 2001, by E. Xxxxxxx Xxxxxxxx, as the Vice President of Xxxxxxxxx
Weavers, Inc., a Kentucky corporation, on behalf of the corporation.
/s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
My Commission Expires:
----------------------
(signatures continued on next page)
24
(signatures continued from previous page)
WACHOVIA BANK, N.A., as Collateral Agent
By: /s/ R.E.S. Xxxxx
----------------------------------------
Printed Name: R.E.S. Xxxxx
------------------------------
Printed Title: Vice President
-----------------------------
Attest: /s/ Xxxxx X. Xxxx
------------------------------------
Printed Name: Xxxxx X. Xxxx
------------------------------
Printed Title: Senior Vice President
-----------------------------
25
STATE OF GEORGIA )
) ss:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this 24th
day of July, 2001, by R.E.S. Xxxxx, as the Vice President of Wachovia Bank,
N.A., on behalf of said national association.
/s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
My Commission Expires:
-------------
THIS INSTRUMENT PREPARED BY
AND UPON RECORDATION, RETURN TO:
-----------------------------
Xxxxx X. Xxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
0000 XxxXxxxx Xxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
