1999 THIRD AMENDMENT AGREEMENT TO
$37,000,000 AMENDED AND RESTATED LOAN AGREEMENT AND TERM NOTE
THIS AMENDMENT AGREEMENT, made and entered into as of this 27th day of
September, 1999, by and between ▇▇▇▇▇▇▇▇ INDUSTRIES, INC., a Delaware
corporation (the "Borrower"), WINK ▇▇▇▇▇ EQUIPMENT CO., INC., a Georgia
corporation ("WD"), ▇▇▇▇ MOTION CONTROLS, INC., a North Carolina corporation
("TMC") and BANK OF AMERICA, N.A. d/b/a NATIONSBANK, N.A., successor to
NATIONSBANK, N.A., a national banking association (the "Lender");
W I T N E S S E T H:
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WHEREAS, pursuant to the $37,000,000 Amended and Restated Loan
Agreement dated as of July 31, 1997 between Borrower and Lender, as amended by
1998 First Amendment Agreement thereto dated as of February 6, 1998, 1998 Second
Amendment Agreement dated as of December 30, 1998, 1999 First Amendment
Agreement thereto dated as of May 17, 1999 and 1999 Second Amendment Agreement
thereto dated as of August 27, 1999, among the Borrower, WD, TMC and the Lender
(collectively the "Loan Agreement"), arrangements were made for the extension by
the Lender to the Borrower of credit on the terms and conditions set forth in
such Loan Agreement;
WHEREAS, under the Loan Agreement, the Borrower obtained a Credit
Facility in the maximum aggregate principal amount at any time outstanding of up
to $37,000,000, of which (i) up to $30,000,000 may be allocated under a "Letter
of Credit Facility" for the issuance of documentary Letters of Credit to support
the Borrower's purchase and importing of (x) presold textile machinery in the
ordinary course of its business and (y) in certain cases, equipment to be held
as inventory for sale and, within such $30,000,000, up to $8,500,000 may be
allocated to borrowings for the Borrower's short term operating needs under a
Revolving Line of Credit, and up to $500,000 may be allocated for the issuance
of Standby Letters of Credit, as provided in such Loan Agreement, and (ii) up to
$7,000,000, as subsequently increased to $8,050,000 by Note Modification
Agreement dated February 6, 1998, may be allocated as a term loan, all upon the
terms and conditions provided in the Loan Agreement;
WHEREAS, under the Loan Agreement, the Borrower has issued to the
Lender its Amended and Restated Revolving Credit Note dated July 31, 1997 in the
principal amount of $8,500,000 (the "Revolving Credit Note");
WHEREAS, under the Loan Agreement, the Borrower has issued to the
Lender its Term Note dated July 31, 1997 in the original principal amount of
$7,000,000, as subsequently increased to $8,050,000 by Note Modification
Agreement dated February 6, 1998 (the "Term Note");
WHEREAS, collateral for the indebtedness and obligations of the
Borrower in respect of the Loan Agreement, the Revolving Credit Note and the
Letter of Credit Facility is provided under the Amended and Restated Security
Agreement dated July 31, 1997 between the Borrower, WD and the Lender and a
Security Agreement dated as of February 6, 1998 between TMC and the Lender
(collectively, the "Security Agreement");
WHEREAS, the Borrower has requested that the Lender agree to certain
modifications to the Loan Agreement to increase the Committed Amount under the
Revolving Line of Credit from $10,000,000 to $11,500,000 on a temporary basis;
NOW, THEREFORE, in consideration of the premises and mutual covenants
and conditions herein set forth, it is hereby agreed as follows:
1. Terms. All terms used herein without definition, unless the context
clearly requires otherwise, shall have the meanings provided therefor in the
Loan Agreement.
2. Amendment to Loan Agreement.
(A) Section 2.4(b) of the Loan Agreement is hereby amended to
provide for a temporary increase in the Committed Amount to $11,500,000
by amending subparagraph (iv) to read as follows:
"(iv) Notwithstanding the foregoing, the Committed
Amount shall be $10,000,000 during the period August 12, 1999
to September 17, 1999 and $11,500,000 during the period
September 18, 1999 to October 31, 1999, subject to such
permanent reductions as may be required hereunder during such
period. At November 1, 1999 and thereafter, the Committed
Amount shall be permanently reduced to $6,000,000, less any
other permanent reductions which may otherwise be required
hereunder."
(B) Each of the Borrower, WD and TMC hereby agrees and
confirms that all liens and security interests securing the
indebtedness evidenced by the Note shall cover all additional
indebtedness created under the Note and that the liens and security
interests created under the Loan Documents, including the Security
Agreement and the Cash Collateral Documents, shall cover all
indebtedness evidenced by the Note as increased by this Amendment
Agreement. The Borrower further agrees and confirms that this Amendment
Agreement shall constitute a modification to the Revolving Credit Loan
and the Note and not a novation thereof.
3. Representations and Warranties. Each of the Borrower, WD and TMC
hereby jointly and severally represents and warrants that:
(A) The representations and warranties contained in Article V
of the Loan Agreement are hereby made by the Borrower on and as of the
date hereof except the representations of Sections 5.3 and 5.4 shall
refer to the most recent financial statements delivered under Section
7.1 of the Loan Agreement.
(B) There has been no material change, and there exists no
known prospective change, in the condition, financial or otherwise, of
the Borrower, WD or TMC since the date of the most recent financial
reports received by the Lender, other than changes in the ordinary
course of business, none of which has been a materially adverse change;
(C) The business and properties of the Borrower, WD or TMC are
not, and since the date of the most recent financial reports thereof
received by Lender have not, been materially adversely affected as the
result of any fire, explosion, earthquake, chemical spill, accident,
strike, lockout, combination of workmen, flood, embargo, riot, or
cancellation or loss of any major contracts;
(D) No event has occurred and no condition exists which,
either prior to or upon the consummation of the transactions
contemplated hereby, constitutes an Event of Default under the Loan
Agreement, either immediately or with the lapse of time or the giving
of notice, or both;
(E) The property which is collateral for the indebtedness of
the Borrower, WD or TMC to the Lender under the Security Agreement and
other collateral documents of the Borrower, WD or TMC in favor of the
Lender are subject to no liens or encumbrances except Permitted Liens;
(F) The execution, delivery and performance by the Borrower,
WD or TMC of its obligations under this Amendment Agreement will not
cause a violation or default under any indenture, loan agreement, or
other agreement of, or applicable to, the Borrower, WD or TMC; and
(G) Each of the Borrower, WD and TMC has the requisite
corporate power and authority to execute, deliver and perform this
Amendment Agreement; each of such documents has been duly authorized,
executed and delivered; and each of such documents constitutes a valid,
binding and enforceable instrument, obligation or agreement of the
Borrower, WD or TMC, in accordance with its respective terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting enforcement
of creditors' rights generally.
4. Effectiveness of Documents. The terms and conditions hereof shall
not be effective until each of the following are delivered to the Lender:
(A) Amendment Agreement. Three (3) fully executed originals of
this Amendment Agreement.
(B) Resolutions of Borrower. Resolutions of the Borrower, WD
and TMC certified by its secretary or assistant secretary of each as of
the date hereof, approving and adopting this Amendment Agreement and
the other documents to be executed by the Borrower, WD and TMC.
(C) Opinions. An opinion of counsel to the Borrower, WD and
TMC covering the matters covered by its prior opinion on the Loan
Agreement.
(D) Certificate of Authority. Certificate of a recent date of
the Secretary of State of North Carolina as to the authority of the
Borrower, WD and TMC to do business in North Carolina and the good
standing of the Borrower, WD and TMC.
(E) No Litigation Certificate. Certificate of the chief
financial officer of the Borrower, WD and TMC to the effect that no
litigation or proceedings are pending or threatened which might
reasonably be expected to materially adversely affect the Borrower's,
TMC's or WD's ability to perform its obligations under this Amendment
Agreement or any Loan Document or operation of the Borrower's, TMC's or
WD's business.
(F) Other Documents, Etc. Such other documents, instruments
and certificates as the Lender may reasonably request.
5. Miscellaneous.
(A) This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter. No
promise, condition, representation or warranty, express or implied, not
herein set forth shall bind any party hereto, and none of them has
relied on any such promise, condition, representation or warranty. Each
of the parties hereto acknowledges that, except as in this Amendment
Agreement otherwise expressly stated, no representations, warranties,
or commitments, express or implied, have been made by any other party
to the other regarding the subject matter hereof. None of the terms or
conditions of this Amendment Agreement may be changed, modified, waived
or canceled, orally or otherwise, except in a writing, signed by the
party to be charged therewith, specifying such change, modification,
waiver or cancellation of such terms or conditions, or of any preceding
or succeeding breach thereof, unless expressly so stated.
(B) Except as hereby specifically amended, modified, or
supplemented, the Loan Agreement, the Loan Documents and all other
agreements, documents, and instruments related thereto are hereby
confirmed and ratified in all respects and shall remain in full force
and effect according to their respective terms.
(C) This Amendment Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which
together shall constitute one and the same instrument.
(D) This Amendment Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of
North Carolina.
(E) Upon request of the Lender, each of the parties hereto
will duly execute and deliver or cause to be duly executed and
delivered to the Lender such further instruments and do and cause to be
done such further acts that may be reasonably necessary or proper in
the opinion of the Lender to carry out more effectively the provisions
and purposes hereof, including documents deemed necessary by the Lender
to more fully evidence the obligations of Borrower, TMC or WD to Lender
and protect and perfect the collateral therefor.
(F) The Borrower agrees to pay all reasonable costs and
expenses of the Lender in connection with the preparation, execution
and delivery of the documents executed in connection with this
Amendment Agreement, including without limitation, the reasonable fees
and out-of-pocket expenses of special counsel to the Lender.
(G) Each of WD and TMC (collectively the "Guarantors") as
guarantors under, in the case of WD, a Guaranty Agreement dated July
31, 1997 from the WD in favor of the Lender and, in the case of TMC, a
Guaranty Agreement dated February 6, 1998, of TMC in favor of the
Lender, hereby joins in this Amendment Agreement to join in the terms
hereof and evidence its consent to the terms and conditions hereof.
[Signatures appear on following page]
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date hereof by the Company and the Lender.
ATTEST: ▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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__________ Secretary Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
ATTEST: WINK ▇▇▇▇▇ EQUIPMENT CO., INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
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Assistant Secretary Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Vice President
ATTEST: ▇▇▇▇ MOTION CONTROLS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- ------------------------------
__________ Secretary Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
BANK OF AMERICA, N.A.
d/b/a NATIONSBANK, N.A.
successor to NATIONSBANK, N.A.
By:______________________________
Name:____________________________
Title:_____________________________
