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EXHIBIT 4.1
AMENDMENT NO. 1
DATED AS OF SEPTEMBER 30, 1999 TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
DATED AS OF MAY 28, 1999
CMI INDUSTRIES, INC., a Delaware corporation (the "Borrower"),
the financial institutions set forth on the signature pages hereof (the
"Lenders") and BANKBOSTON, N.A., a national banking association, as Agent for
the Lenders (the "Agent"), agree as follows:
PRELIMINARY STATEMENT
The Borrower, the Lenders and the Agent are parties to the Loan
Agreement (as hereinafter defined). The Borrower has requested modifications to
certain financial covenants contained in the Loan Agreement and the Agent and
the Lenders are willing to agree to such requests, upon and subject to all of
the terms and conditions of this Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for and in consideration of the premises, the Loan
Agreement and the mutual agreements hereinafter set forth, the parties hereto
hereby agree as follows:
SECTION 1. Cross-References and Definitions.
(a) Reference is made to the Amended and Restated Loan and
Security Agreement, dated as of May 28, 1999, among the Borrower, the Lenders
and the Agent (the "Loan Agreement"). Upon and after the Amendment Effective
Date (as hereinafter defined) all references to the Loan Agreement in that
document, or in any other Loan Document or related 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 or any
other Loan Document, and, except as specifically provided in this Amendment, the
Loan Agreement and all other Loan Documents shall remain in full force and
effect.
(b) Unless otherwise defined herein, terms used in this Amendment
which are defined in the Loan Agreement shall have the same meanings herein as
therein.
SECTION 2. Amendments. Effective on the Amendment Effective Date
(as defined in SECTION 3), the Loan Agreement is amended by amending Section
11.1 Financial Covenants of the Loan Agreement by amending subsections (a) and
(c) thereof in their entirety to read as follows:
(a) Interest Coverage. Permit the ratio of EBITDA to
Interest for any period of four consecutive Fiscal Quarters ending
after the Effective Date and (i)
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prior to the last day of the third Fiscal Quarter of Fiscal Year 1999,
to be less than 1.25 to 1, (ii) on the last day of the third Fiscal
Quarter of Fiscal Year 1999 or on the last day of Fiscal Year 1999 to
be less than 1.0 to 1, or (iii) after the last day of Fiscal Year 1999,
to be less than 1.5 to 1.0.
. . .
(c) Fixed Charge Coverage Ratio. Permit the Fixed Charge
Coverage Ratio for any period of four consecutive Fiscal Quarters
ending after the Effective Date and (i) (A) prior to the last day of
the third Fiscal Quarter of Fiscal Year 1999 or (B) after the last day
of Fiscal Year 1999, to be less than 1.1 to 1.0 or (ii) on the last day
of the third Fiscal Quarter of Fiscal Year 1999 to be less than .6 to 1
(iii) or on the last day of Fiscal Year 1999, to be less than .5 to 1.
SECTION 3. Conditions to Effectiveness. This Amendment shall be
effective as of the date hereof (the "Amendment Effective Date") upon receipt by
the Agent of the following, each in form and substance satisfactory to the
Agent, at which time the Agent shall issue a written notice to the Borrower and
each Lender that the Amendment Effective Date has occurred:
(a) counterparts of this Amendment, duly executed and delivered
by the Borrower and each Lender;
(b) a certificate of the President of the Borrower stating that,
to the best of his knowledge and based on an examination sufficient to enable
him to make an informed statement, after giving effect to this Amendment,
(i) all of the representations and warranties
made or deemed to be made under the Loan Agreement are true
and correct as of the date hereof, and
(ii) no Default or Event of Default exists,
and the Agent shall be satisfied as to the truth and accuracy thereof; and
(c) such other documents and instruments as the Agent or any
Lender may reasonably request.
SECTION 4. Representations and Warranties. The Borrower hereby
makes the following representations and warranties to the Agent and the Lenders,
which representations and warranties shall survive the delivery of this
Amendment and the making of additional Loans under the Loan Agreement as amended
hereby:
(a) Organization, Power; Qualification. The Borrower is a
corporation, duly organized, validly existing and in good standing under the
laws of its jurisdiction of its organization, having the power and authority to
own its properties and to carry on its business as now being and hereafter
proposed to be conducted and is duly qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business
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requires such qualification or authorization and the failure to so qualify would
have a Materially Adverse Effect.
(b) Authorization of Agreements. The Borrower has the right and
power, and has taken all necessary action to authorize it, to execute, deliver
and perform this Amendment and each other agreement contemplated hereby to which
it is a party in accordance with their respective terms. This Amendment and each
other agreement contemplated hereby to which it is a party have been duly
executed and delivered by the duly authorized officers of the Borrower and each
is, or each when executed and delivered in accordance with this Amendment will
be, a legal, valid and binding obligation of the Borrower, enforceable in
accordance with its terms.
(c) Compliance of Agreements with Laws. The execution, delivery
and performance of this Amendment and each other agreement contemplated hereby
to which the Borrower is a party in accordance with their respective terms do
not and will not, by the passage of time, the giving of notice or otherwise,
(i) require any Governmental Approvals or violate any
Applicable Law relating to the Borrower,
(iii) conflict with, result in a breach of or constitute a
default under the articles or certificate of incorporation, operating
agreement, by-laws, or any agreement among the members or shareholders
of the Borrower, any material provisions of any indenture, agreement or
other instrument to which the Borrower is a party or by which it or its
property may be bound or any Governmental Approvals relating to the
Borrower, which conflict, breach or default could have a Materially
Adverse Effect, or
(iv) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or hereafter
acquired by the Borrower, other than the Security Interest.
SECTION 5. Expenses. The Borrower agrees to pay or reimburse on
demand all costs and expenses, including, without limitation, reasonable fees
and disbursements of counsel, incurred by the Agent in connection with the
negotiation, preparation, execution and delivery of the Amendment.
SECTION 6. Governing Law. This Amendment shall be construed
in accordance with, and governed by the laws of, the State of Georgia.
SECTION 7. Counterparts. 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 and their respective 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 or agents in several counterparts all
as of the day and year first above written.
AGENT: BORROWER:
BANKBOSTON, as Agent and as a Lender CMI INDUSTRIES, INC.
By: By:
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Name: Name:
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Title: Title:
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LENDER:
BANK OF AMERICA, N.A. (formerly
NationsBank, N.A.)
By:
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Name:
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Title:
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