FIRST AMENDMENT
FIRST AMENDMENT ( this "Amendment"), dated as of November 9, 1995, to the
Letter of Credit Facility Agreement dated as of September 19, 1995 (the
"Facility Agreement"; capitalized terms used but not defined herein shall have
the respective meanings set forth in the Facility Agreement), between Color
Title, Inc., a Delaware corporation (the "Borrower"), and The Bank of Tokyo,
Ltd., New York Agency (the "Bank").
W I T N E S S E T H :
WHEREAS, the Bank and the Borrower desire to amend the Facility Agreement
in certain respects on the terms and subject to the conditions hereinafter set
forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Amendments to Paragraph 1.1
1.1 The definition of "Facility Amount" set forth in Paragraph 1.1 of the
Facility Agreement shall be amended in its entirety to read as follows:
"Facility Amount": $8,000,000, or such lesser amount as may result from a
reduction or reductions thereto pursuant to the terms hereof.
1.2 A new definition of the term "Syndicated Credit Agreement Default"
shall be added to Paragraph 1.1 of the Facility Agreement in appropriate
alphabetical order and shall read as follows:
"Syndicated Credit Agreement Default": any "Event of Default" (as defined
in the Syndicated Credit Agreement, as amended).
2. Amendments to Paragraph 7.
2.1 A new Paragraph 7.3 shall be added to the Facility Agreement
immediately after the end of Paragraph 7.2 f the Facility Agreement and shall
read as follows:
7.3 Handling of Collateral. The Borrower agrees that, so long as this
Agreement is in effect, any Letter of Credit or any Letter of Credit
Reimbursement Obligation remains outstanding or unpaid, or any other amount is
owing to the Bank hereunder or under any other Transaction Document, and in
addition to the covenants of the Borrower set forth in Article III of the
Security Agreement, the Borrower shall continue to handle the Collateral (as
defined in the
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Security Agreement) pursuant to and in a manner consistent with the
procedures and methods which it had been using to handle Collateral prior to
November 9, 1995, and shall not change or alter such procedures or methods in
any material respect.
3. Amendments to Paragraph 8.1.
3.1 Subparagraph (e) of Paragraph 8.1 of the Facility Agreement shall be
amended in its entirety to read as follows:
(e) Any Syndicated Credit Agreement Default shall have occurred and be
continuing; or the maturity of the Loans (as defined in the Syndicated Credit
Agreement) shall have been accelerated; or
3.2 The period at the end of Subparagraph (f) of Paragraph 8.1 of the
Facility Agreement shall be deleted, the words "; or" shall be inserted in lieu
thereof, and a new Subparagraph (g) shall be added to Paragraph 8.1 of the
Facility Agreement and shall read as follows:
(g) Since November 7, 1995, other than any non-cash charges or reserves
taken by the Borrower on or before December 31, 1995, there shall have been any
change, or any development or event involving a prospective change, which shall
have had or could reasonably be expected to have a material adverse effect on
the business, assets, condition (financial or otherwise) or results of
operations of the Borrower and its subsidiaries taken as a whole.
4. Limited Effect; No Default. The amendments contained herein shall be
limited precisely as drafted and shall not constitute a waiver or amendment of
any other terms of the Facility Agreement or the other terms of the Facility
Agreement or the other Transaction Documents are and shall remain in full force
and effect in accordance with their respective terms. The Borrower hereby
represents and warrants to the Bank that, after giving effect to this Amendment,
(a) each of the representations and warranties made by the Borrower set forth in
the Facility Agreement and the other Transaction Documents shall be true and
correct in all material respects on and as of the date hereof as if made on and
as of such date (unless stated to relate to a specific earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date), but for the giving of notice or the
passage of time, or both, would constitute an Event of Default) shall have
occurred and be continuing.
5. Costs and Expenses. The Borrower hereby agrees to pay on demand all
costs and expenses incurred in connection with the preparation, execution and
delivery of this Amendment, including without limitation, the attorneys' fees
and expenses incurred with respect thereto by the Bank's counsel.
6. Counterparts. This Amendment may be executed by the parties hereto in
any number of separate counterparts and all of said counterparts taken together
shall be deemed to
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constitute one and the same instrument. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF the undersigned have caused this Amendment to be
executed and delivered by their duly authorized officers as of the date first
above written.
COLOR TILE, INC.
By:/s/ Xxxx X. Xxxxx, Xx.
Title: Chief Executive Officer
and President
By: /s/ Xxxx X. Bethcheider
Title: Executive Vice
President, General
Counsel and Secretary
THE BANK OF TOKYO, LTD.,
NEW YORK AGENCY
By:/s/ Xxxxxx Xxxxxxxxxxxx
Title: Attorney-in-Fact
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