AFTER RECORDING, RETURN TO: CROSS REFERENCE: Deed Book 1076, Page
Xxxxxx X. Xxxxxx, Esq. 234, Fayette County, Georgia records; Deed
Xxxxxx, Xxxxxxx & Xxxxxx, P.C. Book 1134, Page 694, aforesaid records
0000 Xxxxxx Xxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
LOAN DOCUMENTS MODIFICATION AGREEMENT
(February 28, 1998)
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 28th day of February, 1998,
by and among CROWN XXXXXXXX INC., a Delaware corporation, and XXXXXXXX 2000
INC., a Delaware corporation (hereinafter collectively referred to as
"Borrower"), and SOUTHTRUST BANK, N.A., a national banking association, formerly
known as SouthTrust Bank of Georgia, N.A. (hereinafter referred to as "Lender").
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Commercial Revolving
Note dated June 28, 1996, made by Borrower to the order of Lender in the
original principal amount of Five Million and No/100 Dollars ($5,000,000.00)
(hereinafter referred to as the "Note", and the loan evidenced thereby as the
"Loan"). The Note is secured by (a) that certain General Security Agreement
from Borrower, as "Debtor" therein, to Lender, as "Secured Party" therein, dated
June 28, 1996 (hereinafter referred to as the "Security Agreement"), (b) that
certain Deed to Secure Debt, Assignment of Rents and Security Agreement from
Borrower, as "Grantor" therein, to Lender, as "Grantee" therein, dated June 28,
1996, and recorded in Deed Book 1076, Page 234, Fayette County, Georgia records
(hereinafter referred to as the "Security Deed"), and (c) some of the other
"Loan Documents," as that term is defined in the Commercial Loan Agreement
between Borrower and Lender dated June 28, 1996 (hereinafter referred to as the
"Loan Agreement"). The Loan Documents have previously been amended pursuant to
that certain Loan Documents Modification Agreement dated February 28, 1997, and
recorded in Deed Book 1134, Page 694, Fayette County, Georgia records. Borrower
and Lender have agreed to amend the Note, the Loan Agreement, the Security Deed,
and all of the other Loan Documents, and the parties hereto are entering into
this Amendment to evidence their agreements.
AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
the foregoing recitals, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower and Lender do hereby
agree as follows:
1. LOAN BALANCE. The foregoing recitals are true and correct and are
incorporated herein by reference. Borrower and Lender acknowledge and agree
that as of February 11, 1998, the outstanding principal balance of the Note is
Zero and No/100 Dollars ($0.00), but that letters of credit have been issued by
Lender for the account of Borrower in the aggregate amount of One Million Two
Hundred Eighty Thousand Three Hundred Fifty-Two and No/100 Dollars
($1,280,352.00), thereby reducing availability under the Note.
2. MODIFICATION OF NOTE. The terms of the Note are hereby modified
and amended, effective as of the date hereof, by deleting in its entirety the
paragraph entitled "Payment Schedule" set forth on page 1 of the Note and
replacing it with the following:
"PAYMENT SCHEDULE. Principal and interest shall be due and payable as
follows: Interest only on the outstanding principal amount shall be due
and payable monthly, in arrears, beginning on August 1, 1996, and
continuing on the first day of each month thereafter until maturity. On
March 29, 1998, all unpaid principal, plus accrued and unpaid interest,
shall be due and payable in full."
The purpose of this modification is to extend the maturity date of the Note to
March 29, 1998.
3. RATIFICATION; EXPENSES. Except as herein expressly modified or
amended, all the terms and conditions of the Note are hereby ratified, affirmed,
and approved. In consideration of Lender agreeing to extend the maturity date
of the Note, Borrower agrees to pay all fees and expenses incurred in connection
with this Amendment.
4. MODIFICATION OF LOAN AGREEMENT AND LOAN DOCUMENTS. As of the date
hereof, Borrower hereby reaffirms and restates each and every warranty and
representation set forth in the Loan Agreement and the other Loan Documents.
The terms of the Loan Agreement and the other Loan Documents are hereby modified
and amended, effective as of the date hereof, so that any reference in the Loan
Agreement or any of the other Loan Documents to the Note shall refer to the Note
as herein amended.
5. MODIFICATION OF SECURITY DEED. As of the date hereof, Borrower
hereby reaffirms and restates each and every warranty and representation set
forth in the Security Deed. The terms of the Security Deed are hereby modified
and amended, effective as of the date hereof, by deleting the paragraph on page
1 of the Security Deed that commences "THAT, WHEREAS, Grantor is justly indebted
to Grantee" in the aggregate sum of Six Million and No/100 Dollars
($6,000,000.00) in lawful money of the United States, its entirety and replacing
it with the following:
"THAT, WHEREAS, Grantor is justly indebted to Grantee in the aggregate
sum of Six Million and No/100 Dollars ($6,000,000.00) in lawful money of
the United States, or so much of said sum as may be advanced and
outstanding from time to time, and has agreed to pay the same, with
interest thereon, according to the terms of (a) that certain Commercial
Promissory Note given by Grantor to Grantee in the original principal
amount of One Million and No/100 Dollars ($1,000,000.00), bearing even
date herewith, with final payment being due on February 28, 1999, and
(b) that certain Commercial Revolving Note given by Grantor to Grantee
in the original principal amount of Five Million and No/100 Dollars
($5,000,000.00), bearing even date herewith, with final payment being
due on March 29, 1998 (hereinafter collectively referred to as the
"Note");".
6. NO DEFENSES; RELEASE. For purposes of this Paragraph , the terms
"Borrower Parties" and "Lender Parties" shall mean and include Borrower and
Lender, respectively, and each of their respective predecessors, successors and
assigns, and each past and present, direct and indirect, parent, subsidiary and
affiliated entity of each of the foregoing, and each past and present employee,
agent, attorney-in-fact, attorney-at-law, representative, officer, director,
shareholder, partner and joint venturer of each of the foregoing, and each heir,
executor, administrator, successor and assign of each of the foregoing;
references in this paragraph to "any" of such parties shall be deemed to mean
"any one or more" of such parties; and references in this sentence to "each of
the foregoing" shall mean and refer cumulatively to each party referred to in
this sentence up to the point of such reference. Borrower hereby acknowledges,
represents and agrees: that Borrower has no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Note, the Loan Agreement and the other Loan Documents or the indebtedness
evidenced and secured thereby, or with respect to any other documents or
instruments now or heretofore evidencing, securing or in any way relating to the
Loan, or with respect to the administration or funding of the Loan, or with
respect to any other transaction, matter or occurrence between any of the
Borrower Parties and any Lender Parties or with respect to any acts or omissions
of any Lender Parties (all of said defenses, setoffs, claims, counterclaims or
causes of action being hereinafter referred to as "Loan Related Claims"); that,
to the extent that Borrower may be deemed to have any Loan Related Claims,
Borrower does hereby expressly waive, release and relinquish any and all such
Loan Related Claims, whether or not known to or suspected by Borrower; that
Borrower shall not institute or cause to be instituted any legal action or
proceeding of any kind based upon any Loan Related Claims; and that Borrower
shall indemnify, hold harmless and defend all Lender Parties from and against
any and all Loan Related Claims and any and all losses, damages, liabilities,
costs and expenses suffered or incurred by any Lender Parties as a result of any
assertion or allegation by any Borrower Parties of any Loan Related Claims or as
a result of any legal action related thereto.
-2-
7. NO NOVATION. Borrower and Lender hereby acknowledge and agree that
this Amendment shall not constitute a novation of the indebtedness evidenced by
the Loan Documents, and further that the terms and provisions of the Loan
Documents shall remain valid and in full force and effect except as may be
hereinabove modified and amended.
8. NO WAIVER OR IMPLICATION. Borrower hereby agrees that nothing
herein shall constitute a waiver by Lender of any default, whether known or
unknown, which may exist under the Note or any other Loan Documents. Borrower
hereby further agrees that no action, inaction or agreement by Lender,
including, without limitation, any extension, indulgence, waiver, consent or
agreement of modification which may have occurred or have been granted or
entered into (or which may be occurring or be granted or entered into hereunder
or otherwise) with respect to nonpayment of the Loan or any portion thereof, or
with respect to matters involving security for the Loan, or with respect to any
other matter relating to the Loan, shall require or imply any future extension,
indulgence, waiver, consent or agreement by Lender. Borrower hereby
acknowledges and agrees that Lender has made no agreement, and is in no way
obligated, to grant any future extension, indulgence, waiver or consent with
respect to the Loan or any matter relating to the Loan.
9. NO RELEASE OF COLLATERAL. Borrower further acknowledges and agrees
that this Amendment shall in no way occasion a release of any collateral held by
Lender as security to or for the Loan, and that all collateral held by Lender as
security to or for the Loan shall continue to secure the Loan.
10. EXTENSION; WAIVER OF STAY. Borrower and Lender acknowledge and
agree that this Amendment is being entered into as part of an extension of the
loan relationship created by the Loan Agreement following the scheduled maturity
of the Note. In consideration of Lender agreeing to the terms and conditions
set forth in this Amendment, Borrower hereby (i) waives and agrees not to assert
or take advantage of an assertion or claim that the automatic stay provided by
11 U.S.C. (S) 362 (arising upon the voluntary or involuntary bankruptcy
proceeding of Borrower), or any other stay provided under any other debtor
relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, shall operate or be interpreted to stay, interdict, condition,
reduce or inhibit the ability of Lender to enforce any of its rights, whether
now or hereafter acquired, which Lender may have against Borrower, and (ii)
consents to, and waives the right to oppose, Lender obtaining relief from the
automatic stay provided by 11 U.S.C. (S) 362 (arising upon the voluntary or
involuntary bankruptcy proceeding of Borrower), or any other stay provided under
any other debtor relief law (whether statutory, common law, case law or
otherwise).
11. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of Borrower and Lender and their respective successors and
assigns, whether voluntary by act of the parties or involuntary by operation of
law.
12. AUTHORITY. By executing this Amendment as hereinafter provided,
Xxxxxx Xxxxxxxxxx hereby certifies that he is the Treasurer and Chief Financial
Officer of Crown Xxxxxxxx Inc. and the Secretary of Xxxxxxxx 2000 Inc. and is
duly authorized to execute this Amendment on behalf of each of the parties
comprising Borrower.
[SIGNATURES COMMENCE ON NEXT PAGE]
-3-
IN WITNESS WHEREOF, this Amendment has been duly executed under seal by
Borrower, Guarantor and Lender, as of the day and year first above written.
BORROWER:
Signed, sealed and delivered in the presence of: CROWN XXXXXXXX INC.,
a Delaware corporation
_____________________________________
Unofficial Witness
By:__________________________________________
Xxxxxx Xxxxxxxxxx
Treasurer/
Chief Financial Officer
_____________________________________
Notary Public [CORPORATE SEAL]
[NOTARIAL SEAL]
XXXXXXXX 2000 INC.,
a Delaware corporation
By:_________________________________________ Xxxxxx Xxxxxxxxxx
Secretary
[CORPORATE SEAL]
LENDER:
Signed, sealed and delivered in the presence of:
SOUTHTRUST BANK, N.A.,
a national banking association
_____________________________________
Unofficial Witness
By:_________________________
Xxxxxx X. Xxxxxxx
Vice President
_____________________________________
Notary Public
[NOTARIAL SEAL]
-4-
AFTER RECORDING, RETURN TO: CROSS REFERENCE: Deed Book 1076, Page
Xxxxxx X. Xxxxxx, Esq. 234, Fayette County, Georgia records; Deed
Xxxxxx, Xxxxxxx & Xxxxxx, P.C. Book 1134, Page 694, aforesaid records
0000 Xxxxxx Xxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
LOAN DOCUMENTS MODIFICATION AGREEMENT
(March 29, 1998)
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 29th day of March, 1998, by
and among CROWN XXXXXXXX INC., a Delaware corporation, and XXXXXXXX 2000 INC., a
Delaware corporation (hereinafter collectively referred to as "Borrower"), and
SOUTHTRUST BANK, N.A., a national banking association, formerly known as
SouthTrust Bank of Georgia, N.A. (hereinafter referred to as "Lender").
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Commercial Revolving
Note dated June 28, 1996, made by Borrower to the order of Lender in the
original principal amount of Five Million and No/100 Dollars ($5,000,000.00)
(hereinafter referred to as the "Note", and the loan evidenced thereby as the
"Loan"). The Note is secured by (a) that certain General Security Agreement
from Borrower, as "Debtor" therein, to Lender, as "Secured Party" therein, dated
June 28, 1996 (hereinafter referred to as the "Security Agreement"), (b) that
certain Deed to Secure Debt, Assignment of Rents and Security Agreement from
Borrower, as "Grantor" therein, to Lender, as "Grantee" therein, dated June 28,
1996, and recorded in Deed Book 1076, Page 234, Fayette County, Georgia records
(hereinafter referred to as the "Security Deed"), and (c) some of the other
"Loan Documents," as that term is defined in the Commercial Loan Agreement
between Borrower and Lender dated June 28, 1996 (hereinafter referred to as the
"Loan Agreement"). The Loan Documents have previously been amended pursuant to
that certain Loan Documents Modification Agreement dated February 28, 1997, and
recorded in Deed Book 1134, Page 694, Fayette County, Georgia records, and that
certain Loan Documents Modification Agreement dated February 28, 1998. Borrower
and Lender have agreed to amend the Note, the Loan Agreement, the Security Deed,
and all of the other Loan Documents, and the parties hereto are entering into
this Amendment to evidence their agreements.
AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
the foregoing recitals, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower and Lender do hereby
agree as follows:
1. LOAN BALANCE. The foregoing recitals are true and correct and are
incorporated herein by reference. Borrower and Lender acknowledge and agree
that as of March 29, 1998, the outstanding principal balance of the Note is Zero
and No/100 Dollars ($0.00), but that letters of credit have been issued by
Lender for the account of Borrower in the aggregate amount of One Million Two
Hundred Eighty Thousand Three Hundred Fifty-Two and No/100 Dollars
($1,280,352.00), thereby reducing availability under the Note.
2. MODIFICATION OF NOTE. The terms of the Note are hereby modified
and amended, effective as of the date hereof, by deleting in its entirety the
paragraph entitled "Payment Schedule" set forth on page 1 of the Note and
replacing it with the following:
"PAYMENT SCHEDULE. Principal and interest shall be due and payable as
follows: Interest only on the outstanding principal amount shall be due
and payable monthly, in arrears, beginning on August 1, 1996, and
continuing on the first day of each month thereafter until maturity. On
March 30, 1999, all unpaid principal, plus accrued and unpaid interest,
shall be due and payable in full."
The purpose of this modification is to extend the maturity date of the Note to
March 30, 1999.
3. RATIFICATION; EXPENSES. Except as herein expressly modified or
amended, all the terms and conditions of the Note are hereby ratified, affirmed,
and approved. In consideration of Lender agreeing to extend the maturity date
of the Note, Borrower agrees to pay all fees and expenses incurred in connection
with this Amendment.
4. MODIFICATION OF LOAN AGREEMENT AND LOAN DOCUMENTS. As of the date
hereof, Borrower hereby reaffirms and restates each and every warranty and
representation set forth in the Loan Agreement and the other Loan Documents.
The terms of the Loan Agreement and the other Loan Documents are hereby modified
and amended, effective as of the date hereof, so that any reference in the Loan
Agreement or any of the other Loan Documents to the Note shall refer to the Note
as herein amended.
5. MODIFICATION OF SECURITY DEED. As of the date hereof, Borrower
hereby reaffirms and restates each and every warranty and representation set
forth in the Security Deed. The terms of the Security Deed are hereby modified
and amended, effective as of the date hereof, by deleting the paragraph on page
1 of the Security Deed that commences "THAT, WHEREAS, Grantor is justly indebted
to Grantee" in the aggregate sum of Six Million and No/100 Dollars
($6,000,000.00) in lawful money of the United States, its entirety and replacing
it with the following:
"THAT, WHEREAS, Grantor is justly indebted to Grantee in the aggregate
sum of Six Million and No/100 Dollars ($6,000,000.00) in lawful money of
the United States, or so much of said sum as may be advanced and
outstanding from time to time, and has agreed to pay the same, with
interest thereon, according to the terms of (a) that certain Commercial
Promissory Note given by Grantor to Grantee in the original principal
amount of One Million and No/100 Dollars ($1,000,000.00), bearing even
date herewith, with final payment being due on February 28, 1999, and
(b) that certain Commercial Revolving Note given by Grantor to Grantee
in the original principal amount of Five Million and No/100 Dollars
($5,000,000.00), bearing even date herewith, with final payment being
due on March 30, 1999 (hereinafter collectively referred to as the
"Note");".
6. NO DEFENSES; RELEASE. For purposes of this Paragraph , the terms
"Borrower Parties" and "Lender Parties" shall mean and include Borrower and
Lender, respectively, and each of their respective predecessors, successors and
assigns, and each past and present, direct and indirect, parent, subsidiary and
affiliated entity of each of the foregoing, and each past and present employee,
agent, attorney-in-fact, attorney-at-law, representative, officer, director,
shareholder, partner and joint venturer of each of the foregoing, and each heir,
executor, administrator, successor and assign of each of the foregoing;
references in this paragraph to "any" of such parties shall be deemed to mean
"any one or more" of such parties; and references in this sentence to "each of
the foregoing" shall mean and refer cumulatively to each party referred to in
this sentence up to the point of such reference. Borrower hereby acknowledges,
represents and agrees: that Borrower has no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Note, the Loan Agreement and the other Loan Documents or the indebtedness
evidenced and secured thereby, or with respect to any other documents or
instruments now or heretofore evidencing, securing or in any way relating to the
Loan, or with respect to the administration or funding of the Loan, or with
respect to any other transaction, matter or occurrence between any of the
Borrower Parties and any Lender Parties or with respect to any acts or omissions
of any Lender Parties (all of said defenses, setoffs, claims, counterclaims or
causes of action being hereinafter referred to as "Loan Related Claims"); that,
to the extent that Borrower may be deemed to have any Loan Related Claims,
Borrower does hereby expressly waive, release and relinquish any and all such
Loan Related Claims, whether or not known to or suspected by Borrower; that
Borrower shall not institute or cause to be instituted any legal action or
proceeding of any kind based upon any Loan Related Claims; and that Borrower
shall indemnify, hold harmless and defend all Lender Parties from and against
any and all Loan Related Claims and any and all losses, damages, liabilities,
costs and expenses suffered or incurred by any Lender Parties as a result of any
assertion or allegation by any Borrower Parties of any Loan Related Claims or as
a result of any legal action related thereto.
-2-
7. NO NOVATION. Borrower and Lender hereby acknowledge and agree that
this Amendment shall not constitute a novation of the indebtedness evidenced by
the Loan Documents, and further that the terms and provisions of the Loan
Documents shall remain valid and in full force and effect except as may be
hereinabove modified and amended.
8. NO WAIVER OR IMPLICATION. Borrower hereby agrees that nothing
herein shall constitute a waiver by Lender of any default, whether known or
unknown, which may exist under the Note or any other Loan Documents. Borrower
hereby further agrees that no action, inaction or agreement by Lender,
including, without limitation, any extension, indulgence, waiver, consent or
agreement of modification which may have occurred or have been granted or
entered into (or which may be occurring or be granted or entered into hereunder
or otherwise) with respect to nonpayment of the Loan or any portion thereof, or
with respect to matters involving security for the Loan, or with respect to any
other matter relating to the Loan, shall require or imply any future extension,
indulgence, waiver, consent or agreement by Lender. Borrower hereby
acknowledges and agrees that Lender has made no agreement, and is in no way
obligated, to grant any future extension, indulgence, waiver or consent with
respect to the Loan or any matter relating to the Loan.
9. NO RELEASE OF COLLATERAL. Borrower further acknowledges and agrees
that this Amendment shall in no way occasion a release of any collateral held by
Lender as security to or for the Loan, and that all collateral held by Lender as
security to or for the Loan shall continue to secure the Loan.
10. EXTENSION; WAIVER OF STAY. Borrower and Lender acknowledge and
agree that this Amendment is being entered into as part of an extension of the
loan relationship created by the Loan Agreement following the scheduled maturity
of the Note. In consideration of Lender agreeing to the terms and conditions
set forth in this Amendment, Borrower hereby (i) waives and agrees not to assert
or take advantage of an assertion or claim that the automatic stay provided by
11 U.S.C. (S) 362 (arising upon the voluntary or involuntary bankruptcy
proceeding of Borrower), or any other stay provided under any other debtor
relief law (whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, which may be or become
applicable, shall operate or be interpreted to stay, interdict, condition,
reduce or inhibit the ability of Lender to enforce any of its rights, whether
now or hereafter acquired, which Lender may have against Borrower, and (ii)
consents to, and waives the right to oppose, Lender obtaining relief from the
automatic stay provided by 11 U.S.C. (S) 362 (arising upon the voluntary or
involuntary bankruptcy proceeding of Borrower), or any other stay provided under
any other debtor relief law (whether statutory, common law, case law or
otherwise).
11. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of Borrower and Lender and their respective successors and
assigns, whether voluntary by act of the parties or involuntary by operation of
law.
12. AUTHORITY. By executing this Amendment as hereinafter provided,
Xxxxxx Xxxxxxxxxx hereby certifies that he is the Treasurer and Chief Financial
Officer of Crown Xxxxxxxx Inc. and the Secretary of Xxxxxxxx 2000 Inc. and is
duly authorized to execute this Amendment on behalf of each of the parties
comprising Borrower.
[SIGNATURES COMMENCE ON NEXT PAGE]
-3-
IN WITNESS WHEREOF, this Amendment has been duly executed under seal by
Borrower, Guarantor and Lender, as of the day and year first above written.
BORROWER:
Signed, sealed and delivered in the presence of: CROWN XXXXXXXX
INC., a Delaware
corporation
_____________________________________
Unofficial Witness
By:__________________________________________ Xxxxxx Xxxxxxxxxx
Treasurer/Chief
Financial Officer
_____________________________________
[CORPORATE SEAL]
Notary Public
[NOTARIAL SEAL] XXXXXXXX 2000 INC.,
a Delaware corporation
By:__________________________________________
Xxxxxx Xxxxxxxxxx
Secretary
[CORPORATE SEAL]
LENDER:
Signed, sealed and delivered in the presence of:
SOUTHTRUST BANK, N.A.,
a national banking
association
_____________________________________
Unofficial Witness
By:___________________
Xxxxxxx X. Xxxxxxxx
Vice President
_____________________________________
Notary Public
[NOTARIAL SEAL]
-4-
