EXHIBIT 10.44
EXECUTION ORIGINAL
NINTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN, EQUIPMENT LINE OF CREDIT AND
SECURITY AGREEMENT
THIS NINTH AMENDMENT TO REVOLVING CREDIT, TERM LOAN, EQUIPMENT LINE OF
CREDIT AND SECURITY AGREEMENT (this "Agreement") is entered into October 9, 2009
by and among AIR INDUSTRIES MACHINING, CORP. (as successor by merger with Xxxxx
Industries Acquisition Corp., Inc.), a corporation organized under the laws of
the State of New York ("Air"), SIGMA METALS, INC. (as successor by merger with
GMS Sub, Corp.), a corporation organized under the laws of the State of New York
("Sigma" and collectively with Air, the "Borrower"), WELDING METALLURGY, INC.
(as successor by merger with WMS MERGER CORP.), a corporation organized under
the laws of the State of New York ("WM"), AIR INDUSTRIES GROUP, INC. (f/k/a
Xxxxx Industries Incorporated), a corporation organized under the laws of the
State of Delaware ("Air Group" and collectively with the Borrower and WM, the
"Obligor"), the financial institutions which are now or which hereafter become a
party hereto (collectively, the "Lenders" and individually a "Lender") and PNC
BANK, NATIONAL ASSOCIATION ("PNC"), as agent for Lenders (PNC, in such capacity,
the "Agent").
RECITALS
Whereas, Borrower and PNC entered into a certain Revolving Credit, Term
Loan, Equipment Line of Credit and Security Agreement dated November 30, 2005
(which has been, is being and may be further amended, replaced, restated,
modified and/or extended, the "Loan Agreement"); and
Now, therefore, in consideration of PNC's continued extension of credit
and the agreements contained herein, the parties agree as follows:
AGREEMENT
1) ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent
statement of account sent to Borrower with respect to the Obligations is
correct.
2) MODIFICATIONS. The Loan Agreement be and hereby is modified as follows:
(a) The following definitions in Section 1.2 of the Loan Agreement are
hereby deleted, and are replaced to read as follows:
"Advances" shall mean and include the Revolving Advances and as well as
Letters of Credit.
"Contract Rate" shall mean, as applicable, the Revolving Interest Rate, as
more fully described in Section 3.1 herein.
"Earnings Before Interest and Taxes" shall mean for any period the sum of
(i) net income (or loss) of Air Group for such period (excluding
extraordinary gains and losses) on a consolidated basis, plus (ii) all
interest expense of Air Group for such period on a consolidated basis,
plus (iii) all charges against income of Air Group for such period for
federal, state and local taxes actually paid on a consolidated basis.
"EBITDA" shall mean for any period with regard to Air Group the sum of (i)
Earnings Before Interest and Taxes for such period on a consolidated basis
plus (ii) depreciation expenses for such period on a consolidated basis,
plus (iii) amortization expenses for such period on a consolidated basis.
"Fixed Charge Coverage Ratio" shall mean and include, with respect to Air
Group for any fiscal period, the ratio of (a) EBITDA on a consolidated
basis, minus the aggregate amount of unfunded capitalized expenditures
made during such period on a consolidated basis, minus the aggregate
amount of distributions made during such period on a consolidated basis,
minus the aggregate amount of cash taxes paid during such period on a
consolidated basis to (b) the aggregate amount of principal and/or
interest payments made on Funded Debt during such period on a consolidated
basis.
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"Loans" shall mean the Revolving Advances.
"Maximum Loan Amount" shall mean $14,000,000.
"Note" shall mean the Revolving Credit Note.
"Revolving Advances" shall mean the Advances made other than Letters of
Credit.
"Revolving Interest Rate" shall mean an interest rate per annum equal to
(a) the sum of the Alternate Base Rate plus two and one quarter of one
percent (2.25%) with respect to Domestic Rate Loans and (b) the greater of
(i) the sum of the Eurodollar Rate plus three and one half of one percent
(3.50%) and (ii) five and one half of one percent (5.50%) with respect to
Eurodollar Rate Loans.
"Undrawn Availability" at a particular date shall mean an amount equal to
(a) the lesser of (i) the Formula Amount or (ii) the Maximum Revolving
Advance Amount, minus (b) the sum of (i) the outstanding amount of
Advances plus (ii) all amounts due and owing to Borrower's trade creditors
which are outstanding beyond normal trade terms, plus (iii) fees and
expenses for which Borrower is liable but which have not been paid or
charged to Borrower's Account.
(b) The following definition is hereby added to Section 1.2 of the Loan
Agreement to read as follows:
"Ninth Amendment Closing Date" shall mean October 9, 2009.
(c) The following definitions are hereby deleted in their entirety from
Section 1.2 of the Loan Agreement:
"Converted Equipment Loan(s)"
"Converted Equipment Line of Credit Note"
"Equipment Line of Credit Note"
"Equipment Line of Credit Rate"
"Equipment Loans"
"Equipment Note"
"Maximum Equipment Loan Amount"
"Term Loan"
"Term Loan Rate"
"Term Note"
(d) Subsection 2.1(a) of the Loan Agreement is deleted, and is replaced
by a new Subsection 2.1(a) to read as follows:
2.1 Revolving Advances. (a) Subject to the terms and conditions set
forth in this Agreement including Section 2.1(b), each Lender, severally
and not jointly, will make Revolving Advances to Borrower in aggregate
amounts outstanding at any time equal to such Lender's Commitment
Percentage of the lesser of (x) the Maximum Revolving Advance Amount or
(y) an amount equal to the sum of:
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(i) up to the sum of (A) 85%, subject to the provisions
of Section 2.1(b) hereof (the "Receivables Advance Rate A"),
of Eligible Receivables that do not constitute Eligible
Unassigned Government Receivables (specifically excluding all
Eligible Receivables of Sigma) plus (B) the lesser of (I) 50%,
subject to the provisions of Section 2.1(b) hereof (the
"Receivables Advance Rate B" and collectively with the
Receivables Advance Rate A, the "Receivables Advance Rate"),
of Eligible Unassigned Government Receivables (specifically
excluding all Eligible Unassigned Government Receivables of
Sigma) and (II) the Unassigned Government Receivables
Sublimit, plus
(ii) up to the lesser of (A) 50%, subject to the
provisions of Section 2.1(b) hereof, of the value of the
Eligible Inventory (specifically excluding all Eligible
Inventory of Sigma), (B) 85% of the appraised net orderly
liquidation value of Eligible Inventory (as evidenced by an
Inventory appraisal satisfactory to Agent in its sole
discretion exercised in good faith and specifically excluding
all Eligible Inventory of Sigma) or (C) the Inventory Sublimit
in the aggregate at any one time ("Inventory Advance Rate" and
together with the Receivables Advance Rate, collectively, the
"Advance Rates"), minus
(iii) such reserves as Agent may reasonably deem proper
and necessary from time to time including, but not limited to,
the Seller Note Payable Reserve.
The amount derived from the sum of (x) Sections 2.1(a)(y)(i) and (ii)
minus (y) Section 2.1 (a)(y)(iii) at any time and from time to time shall
be referred to as the "Formula Amount". The Revolving Advances shall be
evidenced by one or more secured promissory notes (collectively, the
"Revolving Credit Note") substantially in the form attached hereto as
Exhibit 2.1(a).
(e) Section 2.4 of the Loan Agreement is deleted, and is replaced by a
new Section 2.4 to read as follows:
2.4 INTENTIONALLY DELETED.
(f) Subsection 2.6(a) of the Loan Agreement is deleted, and is replaced
by a new Subsection 2.6(a) to read as follows:
(a) The Revolving Advances shall be due and payable in full on
the Termination Date subject to earlier prepayment as herein provided.
(g) Subsections 2.10(a) and (b) of the Loan Agreement are deleted, and
are replaced by new Subsections 2.10(a) and (b) to read as follows:
(a) Each borrowing of Revolving Advances shall be advanced
according to the applicable Commitment Percentages of Lenders.
(b) Each payment (including each prepayment) by Borrower on
account of the principal of and interest on the Revolving Advances, shall
be applied to the Revolving Advances pro rata according to the applicable
Commitment Percentages of Lenders. Except as expressly provided herein,
all payments (including prepayments) to be made by Borrower on account of
principal, interest and fees shall be made without set off or counterclaim
and shall be made to Agent on behalf of the Lenders to the Payment Office,
in each case on or prior to 1:00 P.M., New York time, in Dollars and in
immediately available funds.
(h) Section 2.11 of the Loan Agreement is deleted, and is replaced by a
new Section 2.11 to read as follows:
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2.11 Mandatory Prepayments. Subject to Section 4.3 hereof, when
Borrower sells or otherwise disposes of any Collateral other than
Inventory in the Ordinary Course of Business, Borrower shall repay the
Advances in an amount equal to the net proceeds of such sale (i.e., gross
proceeds less the reasonable costs of such sales or other dispositions),
such repayments to be made promptly but in no event more than one (1)
Business Day following receipt of such net proceeds, and until the date of
payment, such proceeds shall be held in trust for Agent. The foregoing
shall not be deemed to be implied consent to any such sale otherwise
prohibited by the terms and conditions hereof. Such repayments shall be
applied to the Advances in such order as Agent may determine, subject to
Borrower's ability to reborrow Revolving Advances in accordance with the
terms hereof.
(i) Section 3.1 of the Loan Agreement is deleted, and is replaced by a
new Section 3.1 to read as follows:
3.1 Interest. Interest on Advances shall be payable in arrears on
the first day of each month with respect to Domestic Rate Loans and, with
respect to Eurodollar Rate Loans, at the end of each Interest Period or,
for Eurodollar Rate Loans with an Interest Period in excess of three
months, at the earlier of (a) each three months from the commencement of
such Eurodollar Rate Loan or (b) the end of the Interest Period. Interest
charges shall be computed on the actual principal amount of Advances
outstanding during the month at a rate per annum equal to with respect to
Revolving Advances, the applicable Revolving Interest Rate (as applicable,
the "Contract Rate"). Whenever, subsequent to the date of this Agreement,
the Alternate Base Rate is increased or decreased, the applicable Contract
Rate for Domestic Rate Loans shall be similarly changed without notice or
demand of any kind by an amount equal to the amount of such change in the
Alternate Base Rate during the time such change or changes remain in
effect. The Eurodollar Rate shall be adjusted with respect to Eurodollar
Rate Loans without notice or demand of any kind on the effective date of
any change in the Reserve Percentage as of such effective date. Upon and
after the occurrence of an Event of Default, and during the continuation
thereof, (i) at the option of Agent or at the direction of Required
Lenders, the Obligations other than Eurodollar Rate Loans shall bear
interest at the applicable Contract Rate for Domestic Loans plus two
percent (2%) per annum and (ii) Eurodollar Rate Loans shall bear interest
at the Revolving Interest Rate for Eurodollar Rate Loans plus two percent
(2%) per annum (as applicable, the "Default Rate").
(j) Subsection 3.3(b) of the Loan Agreement is deleted, and is replaced
by a new Subsection 3.3(b) to read as follows:
(b) Collateral Monitoring Fee. Borrower shall pay to Agent on
the first day of each month following any month in which Agent performs
any collateral monitoring - namely any field examination, collateral
analysis or other business analysis, the need for which is to be
determined by Agent and which monitoring is undertaken by Agent or for
Agent's benefit - a collateral monitoring fee in an amount equal to
$850.00 per day for each person employed to perform such monitoring, plus
all costs and disbursements incurred by Agent in the performance of such
examination or analysis.
(k) Section 6.5 of the Loan Agreement is deleted, and is replaced by a
new Section 6.5 to read as follows:
6.5 Financial Covenants.
(a) Funded Debt Ratio. Maintain at all times a ratio of Funded
Debt (exclusive of Indebtedness subordinated to the Steel City
Subordinated Credit Facility but inclusive of Indebtedness for borrowed
money not subordinated to the Steel City Subordinated Credit Facility
whether or not it has a maturity of more than one year from its date of
creation) to EBITDA of Air Group on a consolidated basis not greater than
(i) 8.50 to 1.00 on September 30, 2009 tested on a rolling three month
basis, (ii) 6.25 to 1.00 on October 31, 2009 tested on a rolling four
month basis, (iii) 4.80 to 1.00 on November 30, 2009 tested on a rolling
five month basis, (iv) 3.80 to 1.00 on December 31, 2009 tested on a
rolling six month basis and (v) an amount equal to eighty five percent
(85%) of the projected amounts provided by the Obligor to the Agent
pursuant to Section 9.12 herein for each month thereafter, tested on a
rolling seven month basis on January 31, 2010 and building each month
thereafter to a rolling twelve (12) month basis.
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(b) Fixed Charge Coverage Ratio. Maintain at all times a Fixed
Charge Coverage Ratio of not less than 1.25 to 1.00, tested monthly on a
consolidated basis for the three months ending September 30, 2009 and at
the end of each month thereafter building to a rolling twelve (12) month
basis. For purposes of calculating the Fixed Charge Coverage Ratio, the
repayment of the Term Loan, the Equipment Loans and the Converted
Equipment Loans pursuant to the reduction of the 2008 Reserve on the Ninth
Amendment Closing Date shall be excluded.
(l) Section 7.5 of the Loan Agreement is deleted, and is replaced by a
new Section 7.5 to read as follows:
7.5 Loans. Make advances, loans or extensions of credit to any
Person, including any Parent, Subsidiary or Affiliate except with respect
to (a) the extension of commercial trade credit in connection with the
sale of Inventory in the Ordinary Course of Business, (b) loans made by
Air to Air Group in an aggregate amount not to exceed $59,000 in any month
so long as (i) such monies are utilized by Air Group to pay outstanding
obligations of interest due and payable pursuant to the Junior
Subordinated Notes and the New Junior Subordinated Notes (as such terms
are defined in the Eighth Amendment to Revolving Credit, Term Loan,
Equipment Line of Credit and Security Agreement dated September 25, 2008)
and (ii) no Default and/or Event of Default has occurred and is continuing
at the time of each such loan and/or shall be caused by making any such
loan, and (c) loans to its employees in the Ordinary Course of Business
not to exceed the aggregate amount of $200,000 at any time outstanding.
(m) Sections 9.7, 9.8 and 9.9 of the Loan Agreement are deleted, and are
replaced by new Sections 9.7, 9.8 and 9.9 to read as follows:
9.7 Annual Financial Statements. Furnish Agent within ninety (90)
days after the end of each fiscal year of Air Group, audited financial
statements of Air Group including, but not limited to, statements of
income and stockholders' equity and cash flow from the beginning of the
current fiscal year to the end of such fiscal year and the balance sheet
as at the end of such fiscal year, all prepared on a consolidated and
consolidating basis in accordance with GAAP applied on a basis consistent
with prior practices, and in reasonable detail and reported upon without
qualification by an independent certified public accounting firm selected
by Air Group and satisfactory to Agent (the "Accountants"). The report of
the Accountants shall be accompanied by a statement of the Accountants
certifying that (i) they have caused this Agreement to be reviewed, (ii)
in making the examination upon which such report was based either no
information came to their attention which to their knowledge constituted
an Event of Default or a Default under this Agreement or any related
agreement or, if such information came to their attention, specifying any
such Default or Event of Default, its nature, when it occurred and whether
it is continuing, and such report shall contain or have appended thereto
calculations which set forth Borrower's compliance with the requirements
or restrictions imposed by Sections 6.5, 7.4, 7.5,7.6, 7.7, 7.8 and 7.11
hereof. In addition, the reports shall be accompanied by a Compliance
Certificate.
9.8 Quarterly Financial Statements. Furnish Agent within 45 days
after the end of each fiscal quarter, an unaudited balance sheet of Air
Group and unaudited statements of income and stockholders' equity and cash
flow of Air Group reflecting results of operations from the beginning of
the fiscal year to the end of such quarter and for such quarter, prepared
on a on a consolidated and consolidating basis consistent with prior
practices and complete and correct in all material respects, subject to
normal and recurring year end adjustments that individually and in the
aggregate are not material to Borrower's business. The reports shall be
accompanied by a Compliance Certificate.
9.9 Monthly Financial Statements. Commencing with the month of July,
2006, furnish Agent within thirty (30) days after the end of each month,
an unaudited balance sheet of Air Group and unaudited statements of income
and stockholders' equity and cash flow of Air Group reflecting results of
operations from the beginning of the fiscal year to the end of such month
and for such month, prepared on a on a consolidated and consolidating
basis consistent with prior practices and complete and correct in all
material respects, subject to normal and recurring year end adjustments
that individually and in the aggregate are not material to Borrower's
business. The reports shall be accompanied by a Compliance Certificate and
a thirteen (13) week cash flow forecast of each Obligor.
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(n) Section 13.1 of the Loan Agreement is deleted, and is replaced by a
new Section 13.1 to read as follows:
13.1 Term This Agreement, which shall inure to the benefit of and
shall be binding upon the respective successors and permitted assigns of
Borrower, Agent and each Lender, shall become effective on the date hereof
and shall continue in full force and effect until the Termination Date
(the "Term") unless sooner terminated as herein provided. Borrower may
terminate this Agreement at any time upon thirty (30) days' prior written
notice upon payment in full of the Obligations. In the event the
Obligations are prepaid in full prior to the last day of the Term (the
date of such prepayment hereinafter referred to as the "Early Termination
Date"), Borrower shall pay to Agent for the benefit of Lenders an early
termination fee in an amount equal to (y) one percent (1%) of the Maximum
Loan Amount if the Early Termination Date occurs on or after the Third
Amendment Closing Date to and including the date immediately preceding the
first anniversary of the Third Amendment Closing Date, and (z) one half of
one percent (1/2%) of the Maximum Loan Amount if the Early Termination
Date occurs on or after the first anniversary of the Third Amendment
Closing Date to and including the date immediately preceding the second
anniversary of the Third Amendment Closing Date.
3) WAIVER OF PRIOR DEFAULTS. The Obligor acknowledges that it is in default
of various covenants including, but not limited to, (i) failure to comply
with Section 7.5 of the Loan Agreement for the extension of certain loans
by Air in favor of Air Group and (ii) the occurrence of an event of
default under the Subordinated Loan Documentation as set forth in Section
10.19. The Lenders hereby waive the Obligor's default under such covenants
as of the date hereof and the Default Rate is no longer in effect at this
time. Except as heretofore waived by the Lenders in writing, the Lenders
reserve their rights under the Loan Agreement and the Other Documents for
defaults under such covenants for any other periods and to institute the
Default Rate with regard to any other defaults. The Lenders hereby confirm
that there are no existing Defaults and/or Events of Default due to the
Obligor's failure to comply with any financial covenants set forth in
Section 6 of the Loan Agreement.
4) AVAILABILITY RESERVE. The Agent hereby reduces the amount of the 2008
Reserve from $900,000 to $488,800. The excess availability created by this
reduction of the 2008 Reserve shall be utilized to payoff in full the Term
Loan, the Equipment Loans and the Converted Equipment Loans.
5) EXTENSION OF DELIVERY DATE FOR 2008 AUDITED FINANCIAL STATEMENTS. The
Lenders hereby agree that, notwithstanding the requirements of Section 9.7
of the Loan Agreement, the annual audited financial statements of Air
Group for the fiscal year ended December 31, 2008 only, prepared on a
consolidated and consolidating basis, together with all other information
and documents required to be delivered pursuant to Section 9.7 for such
fiscal year only, shall be delivered to the Agent on or before October 23,
2009 along with revised annual audited financial statements of Air Group
for the fiscal year ended December 31, 2007. Nothing herein shall be
deemed or construed as (i) a consent by the Lenders to extend the delivery
date of any other financial statements or information required to be
delivered by the Obligor pursuant to Section 9.7 of the Loan Agreement
(other than with respect to the audited financial statements and other
related information for the fiscal year ended December 31, 2008 only, as
expressly set forth above) or (ii) a waiver of any of the other delivery
requirements of the Obligor under Section 9.7 of the Loan Agreement.
6) INVENTORY APPRAISAL. The Obligor and the Lenders hereby agree that the
Agent shall order an appraisal of the Obligor's Inventory which shall be
delivered to the Agent by not later than March 31, 2010.
7) PAYMENTS MADE WITH REGARD TO SIGMA'S ACCOUNTS PAYABLE. The Obligor hereby
agrees that any and all payments with regard to Sigma's accounts payable
shall not exceed (i) $150,000 from the Ninth Amendment Closing Date
through and including December 31, 2009 and (ii) $150,000 during any
fiscal year thereafter. The Obligor hereby agrees to provide to the Agent
on or before the 15th day of each month hereafter a monthly summary of all
accounts payable of Sigma for the immediately preceding month, which lists
all cash payments made to and all debt forgiven by any creditor.
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8) CONSENT TO PRINCIPAL PAYMENTS WITH REGARD TO THE SUBORDINATED NOTE.
Notwithstanding anything to the contrary in the Subordination Agreement,
the Lenders hereby consent to the Obligor making monthly principal
payments to the Steel City with regard to the Subordinated Note so long as
(i) the aggregate amount of each such monthly payment does not exceed
$20,000, (ii) Air Group's consolidated Fixed Charge Coverage Ratio prior
to each such payment and immediately after each such payment is not less
than 1.05 to 1.00 (tested on a rolling three month basis as of September
1, 2009, a rolling four month basis as of October 1, 2009, a rolling five
month basis as of November 1, 2009, a rolling six month basis as of
December 1, 2009, a rolling seven month basis as of January 1, 2010, a
rolling eight month basis as of February 1, 2010, a rolling nine month
basis as of March 1, 2010, a rolling ten month basis as of April 1, 2010,
a rolling eleven month basis as of May 1, 2010 and a rolling twelve month
basis as of June 1, 2010 and for each month thereafter) and (iii) no
Default and/or Event of Default has occurred and is continuing at the time
of each such payment and/or shall be caused by making any such payment
other than any Default and/or Event of Default due to the Fixed Charge
Coverage Ratio being less than 1.25 to 1.00 for the applicable time
period.
9) CONSENT TO CONSIGNMENT AGREEMENT WITH TRANS WORLD ALLOYS. The Lenders
hereby consent to Sigma entering into a consignment agreement with TW
Alloys, a California corporation having a place of business at 000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("TW Alloys"), so long as (i)
such consignment agreement is in form and substance acceptable to the
Agent and (ii) TW Alloys enters into an access agreement in form and
substance acceptable to the Agent.
10) LATE FEE. If, at any time, the Obligor does not provide and deliver to the
Agent and/or the Lenders any documents, information, financial statements,
notices and/or any other materials required to by provided pursuant to the
terms and conditions of the Loan Agreement and/or any Other Document, then
the Obligor shall pay to the Agent for the benefit of the Lenders a late
fee in the amount of $500 for each day that such materials are not
provided and delivered to the Agent and/or the Lenders. Failure to comply
with this Section 10 is an Event of Default under the Loan Agreement.
11) GUARANTORS RATIFICATION. WM and Air Group each hereby reaffirm their
respective continuing obligations under the terms of each respective
Guaranty and Suretyship Agreement dated August 24, 2007 executed by each
(collectively, the "Guaranty"), and acknowledges that (i) each has read
this Agreement, (ii) the Obligations under the Loan Agreement are secured
by their respective Guaranty, and (iii) each makes such reaffirmation with
full knowledge of the terms thereof.
12) ACKNOWLEDGMENTS. Borrower acknowledges and represents that:
(A) the Loan Agreement and Other Documents, as amended hereby, are in full
force and effect without any defense, claim, counterclaim, right or claim
of set-off;
(B) to the best of its knowledge, no default by the Agent or Lenders in
the performance of their duties under the Loan Agreement or the Other
Documents has occurred;
(C) all representations and warranties of the Borrower contained herein,
in the Loan Agreement and in the Other Documents are true and correct in
all material respects as of this date, except for any representation or
warranty that specifically refers to an earlier date;
(D) Borrower has taken all necessary action to authorize the execution and
delivery of this Agreement; and
(E) this Agreement is a modification of an existing obligation and is not
a novation.
13) PRECONDITIONS. As a precondition to the effectiveness of any of the
modifications, consents, or waivers contained herein, the Borrower agrees
to:
(A) provide the Agent with this Agreement, properly executed;
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(B) pay to the Agent a modification fee in the amount of $25,000;
(C) pay all legal fees incurred by the Agent in entering into this
Agreement to Wilentz, Xxxxxxx & Xxxxxxx; and
(D) pay all other fees and costs incurred by the Lenders in entering into
this Agreement.
14) MISCELLANEOUS. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York, without reference to that
state's conflicts of law principles. This Agreement, the Loan Agreement
and the Other Documents constitute the sole agreement of the parties with
respect to the subject matter thereof and supersede all oral negotiations
and prior writings with respect to the subject matter thereof. No
amendment of this Agreement, and no waiver of any one or more of the
provisions hereof shall be effective unless set forth in writing and
signed by the parties hereto. The illegality, unenforceability or
inconsistency of any provision of this Agreement shall not in any way
affect or impair the legality, enforceability or consistency of the
remaining provisions of this Agreement, the Loan Agreement or the Other
Documents. This Agreement, the Loan Agreement and the Other Documents are
intended to be consistent. However, in the event of any inconsistencies
among this Agreement, the Loan Agreement and/or any of the Other
Documents, the terms of this Agreement, then the Loan Agreement, shall
control. This Agreement may be executed in any number of counterparts and
by the different parties on separate counterparts. Each such counterpart
shall be deemed an original, but all such counterparts shall together
constitute one and the same agreement.
15) DEFINITIONS. The terms used herein and not otherwise defined or modified
herein shall have the meanings ascribed to them in the Loan Agreement. The
terms used herein and not otherwise defined or modified herein or defined
in the Loan Agreement shall have the meanings ascribed to them by the
Uniform Commercial Code as enacted in State of New York.
IN WITNESS WHEREOF, the undersigned have signed and sealed this Agreement
the day and year first above written.
ATTEST: AIR INDUSTRIES MACHINING, CORP.
By: By:
------------------------------- -------------------------------
Name: XXXXX XXXXXXXXX Name: XXXXX XXXXXXXXXX
Title: Secretary Title: President
ATTEST: SIGMA METALS, INC.
By: By:
------------------------------- -------------------------------
Name: XXXXX XXXXXXXXX Name: XXXXX XXXXXXXXXX
Title: Secretary Title: President
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ATTEST: WELDING METALLURGY, INC. (as successor by
merger with WMS Merger Corp.)
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
------------------------------- -------------------------------
Name: XXXXX XXXXXXXXX Name: XXXXX XXXXXXXXXX
Title: Secretary Title: President
ATTEST: AIR INDUSTRIES GROUP, INC.
(f/k/a Xxxxx Industries Incorporated)
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxxxxx
------------------------------- -------------------------------
Name: XXXXX XXXXXXXXX Name: XXXXX XXXXXXXXXX
Title: Secretary Title: President
PNC BANK, NATIONAL ASSOCIATION
Lender and as Agent
By: /s/ A. Xxxxx Xxxxx, Jr.
-------------------------------
Name: A. XXXXX XXXXX, JR.
Title: Vice President
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