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Exhibit 10.44
EXECUTION COPY
FIRST AMENDMENT dated as of April 7, 1997 (the "Amendment") to LOAN
AND SECURITY AGREEMENT dated as of December 19, 1995 (the "Loan Agreement")
between XXXXXX CITY COMPOSITES CORPORATION, a Delaware corporation, formerly
known as AMT Sub, Inc. (the "Borrower") and LASALLE BUSINESS CREDIT, INC.
("LaSalle"). Terms which are capitalized in this Amendment and not otherwise
defined shall have the meanings ascribed to such terms in the Loan Agreement.
WHEREAS, the Borrower has requested that LaSalle consider (i)
increasing the amount of the Total Credit Facility by extending a new term loan
to the Borrower and establishing a subline of credit available to the Borrower
for the purpose of financing its capital expenditure needs and (ii) modifying
the Loan Agreement so as to decrease the interest rate margin applicable to the
Loans; and
WHEREAS, LaSalle has consented to the foregoing request, on the
terms and subject to the fulfillment of the conditions set forth in this
Amendment.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE. NEW TERM LOAN.
(a) On the First Amendment Closing Date, LaSalle agrees
to make a term loan to the Borrower in the original principal amount of Seven
Hundred Twenty-Seven Thousand Dollars ($727,000). Principal payable on account
of such term loan shall be payable in successive monthly installments (i)
payable on the first day of each month, the first of which installments shall
be due and payable on the first day of May, 1997 and (ii) based on an
amortization schedule consisting of sixty (60) equal and level payments.
Proceeds of such term loan shall be disbursed first by application thereof
against the unpaid principal balance of the Term Loan outstanding as of the
First Amendment Closing Date and the aggregate amount of accrued and unpaid
interest on the Term Loan through and including the day immediately preceding
the First Amendment Closing Date and second by wire transfer of the remaining
proceeds as the Borrower shall direct LaSalle in writing.
(b) The Borrower warrants and represents that (i) as of
April 7, 1997, the outstanding principal balance of the Term Loan made by
LaSalle to it on the Closing Date equals $410,666.56 and (ii) the aggregate
amount of accrued and unpaid interest on the Term Loan through and including
April 6, 1997 equals $684.42.
(c) The Borrower agrees to execute and deliver to
LaSalle, concurrently with the execution and delivery of this Amendment, a
promissory note in the form of Exhibit A to this Amendment. Such promissory
note shall (i) be in the amount of $727,000, and (ii) evidence the aggregate
amount of the original principal indebtedness owing by the Borrower to LaSalle
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pursuant to the term loan made by LaSalle to it on the First Amendment Closing
Date. Upon the execution and delivery by the Borrower to the Lender of this
Amendment, such promissory note and any other documents or instruments to be
executed or delivered in connection with this Amendment, and the consummation
of the transactions contemplated to occur hereunder, the Lender shall return
the Term Note to the Borrower, marked "cancelled and paid in full."
SECTION TWO. AMENDMENT. Upon the fulfillment of the conditions
set forth in Section Four hereof, the Loan Agreement shall be and is hereby
amended as follows:
(a) PARAGRAPH 1. DEFINITIONS. Paragraph 1(a) is amended
by (i) adding thereto in the appropriate alphabetical order each of the terms
"Agreement", "Amendment", "Asset Purchase Agreement", "Capex Facility
Termination Date", "Capex Loans", "Capex Loan Commitment", "Capex Note", "First
Amendment Closing Date", "First Amendment Term Loan", "Grafalloy", and the
definitions thereof, as hereinafter provided and (ii) deleting the definitions
of the following terms in their entireties and substituting the definitions set
forth below in lieu thereof: "Loan" or "Loans", "Note", "Term Note", and "Total
Credit Facility":
"Agreement" means the Loan Agreement (including all Schedules and
Exhibits annexed thereto) dated as of December 19, 1995, between LaSalle
Business Credit, Inc. and AMT Sub Inc., now known as Xxxxxx City Composites
Corporation, as the same may hereafter be further amended, modified,
supplemented or restated from time to time.
"Amendment" means the First Amendment to the Agreement, dated as of
April 7, 1997.
"Asset Purchase Agreement" means the Asset Purchase Agreement dated
as of February 27, 1997, among AMT, Grafalloy, as purchaser, Grafalloy, L.P., a
Delaware limited partnership, as seller, and Grafalloy, Inc.
"Capex Facility Termination Date" has the meaning specified in
paragraph 2(d) hereof.
"Capex Loans" has the meaning specified in paragraph 2(d) hereof.
"Capex Loan Commitment" shall mean the sum of $1,000,000.
"Capex Note" shall mean the promissory note in the original
principal amount of $1,000,000 executed by the Borrower to the order of
LaSalle, dated as of the First Amendment Closing Date.
"First Amendment Closing Date" means the date upon which the last
of the events, the fulfillment of each of which is a condition precedent to the
effectiveness of the Amendment, shall have occurred.
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"First Amendment Term Loan" shall have the meaning specified in
paragraph 3(a) hereof.
"Grafalloy" shall mean Grafalloy Corporation, formally known as
Grafalloy Acquisition Corporation, a Delaware corporation, 100% of the issued
and outstanding shares of capital stock of which is owned beneficially and of
record by AMT.
"Loan or "Loans" shall mean any and all Revolving Loans, the Term
Loan, the First Amendment Term Loan and the Capex Loans made by LaSalle
pursuant to paragraphs 2, 3 and 4 hereof and all other loans, advances and
financial accommodations made by LaSalle to or on behalf of the Borrower
hereunder.
"Note" shall mean the Revolving Note, the Term Note and the Capex
Note.
"Term Note" shall mean, initially, the promissory note payable to
the order of LaSalle and dated as of the Closing Date, evidencing the Term Loan
made by LaSalle to the Borrower on the Closing Date, and on and after the First
Amendment Closing Date, shall mean the promissory note payable to the order of
LaSalle and dated as of the First Amendment Closing Date, evidencing the
original principal amount of the First Amendment Term Loan.
"Total Credit Facility" means the sum of $6,167,000.
(b) PARAGRAPHS 2(d) AND 2(e). New paragraphs 2(d) and
2(e) are added to read as follows:
"(d) Commencing on the First Amendment Closing
Date and through that date which is one year from the date that
LaSalle shall have made the first Capex Loan (the "Capex Facility
Termination Date"), LaSalle shall make revolving loans and advances
for capital expenditures ("Capex Loans") to the Borrower as the
Borrower shall from time to time request in accordance with the
terms of paragraph 2(e) hereof, the proceeds of which Capex Loans
will be used to finance the Borrower's purchase of Equipment to be
used in the Borrower's business. The aggregate unpaid principal
amount of all Capex Loans outstanding at any one time made to the
Borrower shall not exceed the Capex Loan Commitment. If at any
time the outstanding principal balance of the Capex Loans made to
the Borrower exceeds the Capex Loan Commitment, then, without the
necessity of a demand by LaSalle, the Borrower shall pay to
LaSalle, within not more than two (2) Business Days' after
LaSalle's notice to the Borrower of such excess, such amount as may
be necessary to eliminate such excess, and LaSalle shall apply such
payment against the outstanding principal balance of the Capex
Loans. Principal payable on account of all Capex Loans outstanding
as of the Capex Facility Termination Date shall be payable in
successive monthly installments (i) payable on the first day of
each month, the first of which installments shall be due and
payable on the first day of the month immediately following the
Capex Facility Termination Date and (ii) based on an amortization
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schedule consisting of sixty (60) equal and level principal
payments; provided, however, that the entire unpaid principal
balance of the Capex Loans shall be due and payable in full upon
the expiration of the Original Term of this Agreement, and provided
further that in the event that the Original Term of this Agreement
is initially or subsequently renewed in accordance with paragraph
12 hereof, then the final installment due and payable upon the
expiration of the Original Term or upon the expiration of the
Renewal Term, as the case may be, shall not be due and instead,
commencing on the day such final installment would otherwise have
been due and payable, the Borrower shall pay during the ensuing
Renewal Term eleven (11) monthly installments, each of which shall
be in an amount equal to the amount of each installment of
principal of the Capex Loans payable during the Original Term,
followed by a final installment payable upon the expiration of the
Renewal Term, in an amount equal to the then unpaid principal
balance of the Capex Loans. Notwithstanding anything hereinabove
to the contrary, the entire unpaid principal balance of the Capex
Loans, and any accrued and unpaid interest thereon, shall be
immediately due and payable upon the earlier to occur of (i) the
last day of the Original Term or the last day of any Renewal Term,
if either LaSalle or the Borrower elects to terminate this
Agreement as of the end of any such term and (ii) the acceleration
of the Liabilities pursuant to paragraph 17 of this Agreement."
"(e) Each Capex Loan to the Borrower shall be in a
principal amount not greater than eighty-five percent (85%) of the
purchase price of the Equipment to be purchased with the proceeds
of such Capex Loan; provided, however, that for purposes of
calculation thereof, the purchase price of such Equipment shall not
include the related costs of freight, shipping and installation and
sales or other related taxes. If the Borrower sells, transfers or
otherwise disposes of any Equipment purchased with the proceeds of
a Capex Loan, the Borrower shall pay to LaSalle a sum equal to the
net cash proceeds received by the Borrower from any such
disposition (unless otherwise specifically provided herein or
otherwise agreed to by LaSalle), as and when received by the
Borrower and as a mandatory prepayment of all Capex Loans, to be
applied (i) if received prior to the Capex Facility Termination
Date, pro rata against the then unpaid principal balance of each
such Capex Loan then outstanding and (ii) if received on or after
the Capex Facility Termination Date, pro rata against the last
maturing installments of principal of each such Capex Loan then
outstanding, in the inverse order of such installments (or, at
LaSalle's option, such of the other Liabilities of the Borrower as
LaSalle may elect)."
(c) PARAGRAPH 3. Paragraph 3 is amended in its entirety
to read as follows:
"3. TERM LOANS. (a) On the Closing Date,
LaSalle shall make a term loan to the Borrower in the original
principal amount of Five Hundred Sixty Thousand Dollars ($560,000)
(the "Term Loan"). On the First Amendment Closing Date, LaSalle
shall make a term loan to the Borrower in the original
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principal amount of Seven Hundred Twenty-Seven Thousand Dollars
($727,000) (the "First Amendment Term Loan"), the initial portion
of the proceeds of which shall be used to pay and satisfy in full
the unpaid principal balance of, and all accrued and unpaid
interest on, the Term Loan. Principal payable on account of the
Term Loan and the First Amendment Term Loan shall be payable in
successive monthly installments (i) payable on the first day of
each month, the first of which installments shall be due and
payable, in the case of the Term Loan, on the first day of the
month immediately following the month during which the Closing Date
occurs and in the case of the First Amendment Term Loan, on the
first day of May, 1997 and (ii) based on an amortization schedule
consisting of sixty (60) equal and level principal payments,
provided, however, that the entire unpaid principal balance of the
First Amendment Term Loan shall be due and payable in full upon the
expiration of the Original Term of this Agreement and provided
further that in the event that the Original Term of this Agreement
is initially or subsequently renewed in accordance with paragraph
12 hereof, then the final installment due and payable in respect of
the First Amendment Term Loan upon the expiration of the Original
Term or upon the expiration of the Renewal Term, as the case may
be, shall not be due and instead, commencing on the day such final
installment would otherwise have been due and payable, the Borrower
shall pay during the ensuing Renewal Term eleven (11) monthly
installments, each of which shall be in an amount equal to the sum
of the amount of each installment of principal of the First
Amendment Term Loan payable during the Original Term, followed by a
final installment payable upon the expiration of the Renewal Term,
in an amount equal to the then unpaid principal balance of the
First Amendment Term Loan. Notwithstanding anything hereinabove to
the contrary, the entire unpaid principal balance of the First
Amendment Term Loan, and any accrued and unpaid interest thereon,
shall be immediately due and payable upon the earlier to occur of
(i) the last day of the Original Term or the last day of any
Renewal Term, if either LaSalle or the Borrower elects to terminate
this Agreement as of the end of any such term and (ii) the
acceleration of the Liabilities pursuant to paragraph 17 of this
Agreement. The original principal amount of the First Amendment
Term Loan shall be evidenced by a promissory note payable by the
Borrower to LaSalle and shall be in the form of Exhibit A to the
Amendment."
"(b) If the Borrower sells any Equipment, other
than Equipment purchased with the proceeds of Capex Loans, or if
any of the Collateral is damaged, destroyed or taken by
condemnation, the Borrower shall pay to LaSalle, unless otherwise
specifically provided herein or otherwise agreed to by LaSalle, as
and when received by the Borrower and as a mandatory prepayment the
First Amendment Term Loan, to be applied pro rata against the last
maturing installments of principal thereof, in the inverse order
thereof (or, at LaSalle's option, such of the other Liabilities of
the Borrower as LaSalle may elect), a sum equal to the proceeds
received by the Borrower from (i) such sale or (ii) such
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damage, destruction or condemnation, provided, however, that
without LaSalle's consent, unless and until an Event of Default has
occurred and is continuing:
(i) obsolete or worn out Equipment, other
than Equipment purchased with the proceeds of Capex
Loans, may be sold or otherwise disposed of by the
Borrower and the proceeds thereof may be retained by
the Borrower, so long as LaSalle shall have received
at least five (5) Business Days prior written notice
of any such sale or disposition and the fair market
value of any such Equipment sold or otherwise
disposed of in any single transaction is less than
$50,000, and the fair market value, in the aggregate,
of all such Equipment sold or otherwise disposed of
by the Borrower during any twelve-month period is
less than $100,000; and
(ii) proceeds of Equipment arising from the
damage, destruction or condemnation thereof, may be
retained by the Borrower and used by the Borrower to
repair, restore or replace such Equipment, so long as
(A) LaSalle shall have received prompt written notice
of any such damage, destruction or condemnation as
well as prompt written notice of the Borrower's
receipt of any such proceeds and (B) the fair market
value of any such Equipment damaged, destroyed or
condemned in any single incident is less than
$100,000, and the fair market value, in the
aggregate, of all such Equipment damaged, destroyed
or condemned during any twelve-month period is less
than $100,000."
(d) PARAGRAPH 5(a). Paragraph 5(a) is amended in its
entirety to read as follows:
"(a) Rates of Interest. Interest accrued on the
Loans shall be due on the earliest of (i) the first day of each
month (for the immediately preceding month), computed through the
last calendar day of the preceding month, (ii) the occurrence of an
Event of Default in consequence of which LaSalle elects to
accelerate the maturity and payment of the Liabilities, or (iii)
termination of this Agreement pursuant to paragraph 12 hereof.
From the Closing Date through and including the day preceding the
First Amendment Closing Date, interest shall accrue on the
principal amount of the Revolving Loans outstanding at the end of
each day and the unpaid principal balance of the Term Loan
outstanding at the end of each day, in each case at a fluctuating
rate per annum equal to one and one-half per cent (1 1/2%) above
the Prime Rate. On and after the First Amendment Closing Date,
interest shall accrue on the principal amount of the Revolving
Loans outstanding at the end of each day, and on the unpaid
principal balance of the First Amendment Term Loan and each Capex
Loan outstanding at the end of each day at a fluctuating rate per
annum equal to one per cent (1%) above the Prime Rate. The rate of
interest payable on all Loans shall increase or decrease by an
amount equal to any increase or decrease in the Prime Rate,
effective as of the opening of business on the day that any such
change in the
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Prime Rate occurs. Upon and after the occurrence of an Event of
Default, and during the continuation thereof, the principal amount
of all Loans shall bear interest on demand at a rate per annum
equal to the rate of interest then in effect hereunder plus two
percent (2%)."
(e) PARAGRAPHS 6(a) AND (b). Paragraphs 6(a) and (b) are
amended in their entirety to read as follows:
"(a) Loan Requests. A request for a Revolving Loan
shall be made or shall be deemed to be made and a request for a
Capex Loan shall be made, each in the following manner: (i) the
Borrower shall give LaSalle, in the case of a Revolving Loan, same
day notice, no later than 11:30 A.M. (Chicago time) of such day, of
its intention to borrow such Revolving Loan and, in the case of a
Capex Loan, at least two (2) Business Days notice of its intention
to borrow a Capex Loan, in which notice the Borrower shall specify
the amount of the proposed borrowing and the proposed borrowing
date, and in the case of a notice for a Capex Loan, a statement of
the purpose for the Capex Loan together with documentation
substantiating the purchase or commitment to purchase Equipment or
the making of or the commitment to make the capital expenditures,
which documentation shall be satisfactory to LaSalle in its sole
discretion; provided, however, that no such request may be made at
a time when there exists a Default or an Event of Default; and (ii)
the becoming due of any amount required to be paid under this
Agreement or any Note, whether on account of interest or for any
other Liability, shall be deemed irrevocably to be a request for a
Revolving Loan on the due date thereof in the amount required to
pay such interest or other Liability. As an accommodation to the
Borrower, LaSalle may permit telephone requests for Revolving Loans
and electronic transmittal of instructions, authorizations,
agreements or reports to LaSalle by the Borrower. Unless the
Borrower specifically directs LaSalle in writing not to accept or
act upon telephonic or electronic communications from the Borrower,
LaSalle shall have no liability to the Borrower for any loss or
damage suffered by the Borrower as a result of LaSalle's honoring
of any requests, execution of any instructions, authorizations or
agreements or reliance on any reports communicated to it
telephonically or electronically and purporting to have been sent
to LaSalle by the Borrower and LaSalle shall have no duty to verify
the origin of any such communication or the authority of the Person
sending it. Each notice of borrowing shall be irrevocable by and
binding on the Borrower. Any Capex Loan shall be in the minimum
amount of $50,000."
"(b) Disbursement. The Borrower hereby irrevocably
authorizes LaSalle to disburse the proceeds of each Revolving Loan
requested, or deemed to be requested, by the Borrower and each
Capex Loan requested by the Borrower, as follows: (i) the proceeds
of each Revolving Loan and each Capex Loan requested under
paragraph 6(a)(i) shall be disbursed by LaSalle in lawful money of
the United States of America in immediately available funds, in the
case of the initial
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borrowing, in accordance with the terms of the written disbursement
letter from the Borrower, and in the case of each subsequent
borrowing, by wire transfer to such bank account as may be agreed
upon by the Borrower and LaSalle from time to time, or elsewhere if
pursuant to a written direction from the Borrower; and (ii) the
proceeds of each Revolving Loan deemed to have been requested under
paragraph 6(a)(ii) shall be disbursed by LaSalle by way of direct
payment of the relevant interest or other Liability."
(f) PARAGRAPH 12(c). New Paragraph 12(c) is added to
read as follows:
"(c) Borrower shall make a mandatory prepayment of
the unpaid principal balance of all Loans, together with a payment
of the accrued and unpaid interest thereon, which prepayment and
payment shall be due and payable on the date, if any, of prepayment
by Grafalloy of the obligations owing by it to LaSalle, pursuant to
paragraph 12(b) of the Loan and Security Agreement between them
dated as of April 7, 1997."
(g) PARAGRAPH 14(b). Clause (ii) of Paragraph 14(b) is
amended in its entirety to read as follows:
"(ii) no later than ninety (90) days after the end of
each of the Parent's fiscal years, annual financial statements of
the Parent and its Subsidiaries on a consolidated basis certified
by independent certified public accountants selected by the Parent
and reasonably satisfactory to LaSalle, together with such
accountants' "management letter;".
(h) PARAGRAPH 14(j). Paragraph 14(j) is amended to read
in its entirety as follows:
"(j) Except for the Merger, Borrower shall not
enter into any merger or consolidation, or sell, lease or otherwise
dispose of all or substantially all of its assets; provided,
however, that Borrower may merge with Grafalloy, upon the prior
written consent of LaSalle, which consent shall not be unreasonably
withheld or delayed. Without the prior written consent of LaSalle,
which consent shall not be unreasonably withheld or delayed,
Borrower shall not create any new Subsidiary or Affiliate or issue
any shares of, or warrants or other rights to receive or purchase
any shares of, any class of its stock. Borrower shall not enter
into any transaction outside the ordinary course of Borrower's
business".
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(i) XXXXXXXXX 00(x). Xxxxxxxxx 14(l) is amended to read
in its entirety as follows:
"(l) Borrower shall not make any investment in, or
make any loan, advance, capital contribution or transfer of
property to, any Person, whether in cash, securities or other
property of any kind, other than direct obligations of the United
States or interest-bearing demand or time deposits insured by the
Federal Deposit Insurance Corporation or similar federal insurance
program or publicly traded obligations of LaSalle, ABN AMRO Bank
N.V. or any other subsidiary of ABN AMRO Bank N.V. except that
Borrower may make loans or advances in the ordinary course of
business to Grafalloy, so long as such loans and advances are made
at arm's length and on fair and reasonable terms";
(j) PARAGRAPH 14(m). Paragraph 14(m) is amended to read
in its entirety as follows:
"(m) Except on account of the Merger or to effectuate
the change of corporate name permitted under Paragraph 13(m)(iii)
hereof, without prior written notice to LaSalle, Borrower shall not
make any material change in its organizational documents; provided,
however, that Borrower shall not make any change to its
organizational documents that would adversely affect, or would be
reasonably likely to adversely affect, LaSalle. Borrower shall not
change its fiscal year;".
(k) PARAGRAPH 14(o)(iv). Paragraph 14(o)(iv) is amended
in its entirety to read as follows:
"(iv) Capital Expenditures. Other than Capital
Expenditures the acquisition of which shall have been financed,
Borrower shall not make any Capital Expenditures of an aggregate
amount of more than $600,000 during any fiscal year."
(l) SCHEDULES. Exhibit A, the Schedule of Equipment,
Schedules 1(a), 13(i), 13(q) and 13(s) are amended to read in their entirety as
set forth in Exhibit A, the Schedule of Equipment, Schedules 1(a), 13(i), 13(q)
and 13(s) hereto, respectively.
SECTION THREE. CONDITIONS PRECEDENT. This Amendment shall become
effective on the date when all of the following conditions, the fulfillment of
each of which is a condition precedent to the effectiveness of this Amendment,
shall have occurred or shall have been waived in writing by LaSalle.
(a) LaSalle shall have received fully executed
counterparts or originals of each of the following agreements, instruments,
opinions, certificates and documents:
(i) the Term Note, in the form of Exhibit A
hereto;
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(ii) the Capex Note, in the form of Exhibit B
hereto;
(iii) the Reaffirmation of Guaranty of AMT in the
form of Exhibit C hereto;
(iv) the opinion of the law firm of Xxxxx, Xxxx &
Eliot LLP in form and substance satisfactory
to LaSalle;
(v) a Certificate of the Secretary of the
Borrower (A) relating to the adoption of the
resolutions of the Borrower's Board of
Directors approving the First Amendment and
the other documents executed or delivered in
connection therewith and (B) certifying that
no amendments have been made to the
Borrower's Certificate of Incorporation as
amended, and the Borrower's, by-laws, as
amended, since prior to December 19, 1995 and
further certifying the names and incumbency
of officers, and the names and validity of
signatures of such officers;
(vi) updated Certificates of Good Standing, as to
the Borrower, from Secretaries of State of
California and Delaware; and
(vii) a notice of borrowing from the Borrower,
together with a completed schedule of payees
and wiring instructions.
(b) Upon the effectiveness of this Amendment, all
representations and warranties set forth in the Loan Agreement (except for such
inducing representations and warranties that were only required to be true and
correct as of a prior date) shall be true and correct in all material respects
on and as of the effective date hereof, and no Default or Event of Default
shall have occurred and be continuing.
(c) All corporate and legal proceedings and all documents
and instruments executed or delivered in connection with this Amendment shall
be satisfactory in form and substance to LaSalle and its counsel, and LaSalle
and its counsel shall have received all information and copies of all documents
which LaSalle and its counsel may have requested in connection herewith and the
matters contemplated hereunder, such documents, when requested by them, to be
certified by appropriate corporate authorities.
(d) There shall be no action, suit or proceeding pending
or threatened against the Borrower before any court (including any bankruptcy
court), arbitrator or governmental or administrative body or agency which
challenges or relates to the consummation of this Amendment or the other
transactions contemplated herein.
(e) LaSalle shall have received such further agreements,
consents, instruments and documents as may be necessary or proper in the
reasonable opinion of LaSalle and its counsel to carry out the provisions and
purposes of this Amendment.
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SECTION FOUR. REPRESENTATIONS AND WARRANTIES. The Borrower
hereby represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to LaSalle that:
(a) The Borrower has the corporate power, authority and
legal right to execute, deliver and perform this Amendment, and the
instruments, agreements, documents and transactions contemplated hereby, and
has taken all actions necessary to authorize the execution, delivery and
performance of this Amendment, and the instruments, agreements, documents and
transactions contemplated hereby;
(b) No consent of any Person (including, without
limitation, stockholders or creditors of the Borrower, as the case may be)
other than LaSalle, and no consent, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Amendment, and the
instruments, agreements, documents and transactions contemplated hereby;
(c) This Amendment has been duly executed and delivered
on behalf of the Borrower by its duly authorized officer, and constitutes the
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms;
(d) The Borrower is not in default under any indenture,
mortgage, deed of trust, agreement or other instrument to which it is a party
or by which it may be bound. Neither the execution and delivery of this
Amendment, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof will (i) violate any law or regulation,
or (ii) result in or cause a violation by the Borrower of any order or decree
of any court or government instrumentality, or (iii) conflict with, or result
in the breach of, or constitute a default under, any indenture, mortgage, deed
of trust, agreement or other instrument to which such Borrower is a party or by
which it may be bound, or (iv) result in the creation or imposition of any
lien, charge, or encumbrance upon any of the property of the Borrower, except
in favor of LaSalle, to secure the Liabilities, or (v) violate any provision of
the Certificate of Incorporation, By-Laws or any capital stock provisions of
the Borrower;
(e) No Event of Default has occurred and is continuing;
(f) Since the date of LaSalle's receipt of the Borrower's
financial statements for the period ended November 30, 1996, no change or event
has occurred which has had or could reasonably be expected to have a Material
Adverse Effect; and
(g) The recitals contained in this Amendment are true and
correct in all respects.
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SECTION FIVE. GENERAL PROVISIONS.
(a) Except as herein expressly amended, the Loan
Agreement and all other agreements, documents, instruments and certificates
executed in connection therewith, are ratified and confirmed in all respects
and shall remain in full force and effect in accordance with their respective
terms.
(b) All references in the Other Agreements to the Loan Agreement
shall mean the Loan Agreement as amended as of the effective date hereof, and
as amended hereby and as hereafter amended, supplemented or modified from time
to time. From and after the date hereof, all references in the Loan Agreement
to "this Agreement," "hereof," "herein," or similar terms, shall mean and refer
to the Loan Agreement as amended by this Amendment.
(c) This Amendment may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which
shall be an original and all which shall constitute one and the same agreement.
(d) This Amendment shall be governed and controlled by
the laws of the State of Illinois without reference to its choice of law
principles.
IN WITNESS WHEREOF, the Borrower and LaSalle have caused this
Amendment to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
LASALLE BUSINESS CREDIT, INC.
/s/ Xxxx X. Xxxxx-Xxxxx
--------------------------------
Name: Xxxx Xxxxx Xxxxx-Xxxxx
Title: Vice President
XXXXXX CITY COMPOSITES
CORPORATION, formerly known
as AMT Sub, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Wm. Xxxxxxxxx
Title: Director
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