FIRST MODIFICATION AGREEMENT
THIS FIRST MODIFICATION AGREEMENT (this "Agreement"), dated
as of the ____ day of July, 1996, by and among PLASTI-LINE, INC.,
XXXXXX-XXXX, INC. and AMERICAN SIGN AND MARKETING SERVICES, INC.
(collectively, the "Borrowers"), and SUNTRUST BANK, EAST TENNESSEE,
N.A. ("SunTrust") and NATIONAL CITY BANK, KENTUCKY ("NCB")
(hereinafter SunTrust and NCB are referred to collectively as the
"Lenders"), recites and provides:
RECITALS:
By a certain Amended and Restated Credit Agreement dated as of April
30, 1996 by and among the Borrowers, the Lenders and SunTrust as Administrative
Agent for the Lenders (in such capacity, hereinafter, the "Administrative
Agent") (the "Loan Agreement"), the Lenders agreed to make to the Borrowers
revolving credit loans in the aggregate principal amount not to exceed
$19,000,000 pursuant to their respective Commitments. The Loans were evidenced
by (a) an Amended and Restated Revolving Credit Note dated April 30, 1996 made
by the Borrowers payable to SunTrust in the original principal amount of
$9,500,000 (the "SunTrust Note") and (b) an Amended and Restated Revolving
Credit Note dated April 30, 1996 made by the Borrowers payable to NCB in the
original principal amount of $9,500,000 (the "NCB Note") (hereinafter the
SunTrust Note and the NCB Note are referred to collectively as the "Notes", and
unless otherwise defined herein, all capitalized terms herein shall be as
defined in the Loan Agreement). The Notes were secured by an Amended and
Restated Security Agreement dated as of April 30, 1996 from the Borrowers to
SunTrust as collateral and administrative agent for the Lenders (the "Security
Agreement"). The rights and obligations of the Lenders vis-a-vis each other are
as set forth in the Intercreditor Agreement by and between the Borrowers, the
Lenders and the Administrative Agent dated as of April 30, 1996 (the
"Intercreditor Agreement"). The Loan Agreement, the Notes, the Security
Agreement, the Intercreditor Agreement and all other documents and instruments
evidencing and securing the Loans are hereinafter referred to collectively as
the "Loan Documents."
The parties hereto now wish to modify the Loan Agreement and the
Intercreditor Agreement to provide for an additional $2,000,000 swing line under
the Commitment of NCB, which swing line will not increase the Commitment of NCB,
but rather will be included in the Commitment of NCB as it currently exists.
MODIFICATION AGREEMENT:
FOR and in consideration of the sum of $10.00 cash in hand paid and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Modification of Loan Agreement.
(a) The Loan Agreement is hereby modified as follows:
(i) The following capitalized terms defined in Exhibit A in the
Loan Agreement shall have the definitions set forth below:
(A) "Commitment" means, with respect to each Bank, the
amount of the Commitment of such Bank as set forth opposite such
Bank's name on the signature pages hereof, as the same may be
reduced from time to time pursuant to this Agreement, and with
respect to each Bank, the "Commitment" of each Bank shall
include the Swing Line Commitment of such Bank.
(B) "NCB" means National City Bank, Kentucky, as a Bank.
(C) If the context so requires, references to "Swing Line
Commitment" shall become a reference to "Swing Line
Commitments", and "Swing Line Commitment" shall mean (a) the
obligation of SunTrust to make Swing Loans to the Borrowers
under the Swing Line of SunTrust in an aggregate principal
amount at any time not exceeding $2,000,000 and (b) the
obligation of NCB to make Swing Loans to the Borrowers under the
Swing Line of NCB in an aggregate principal amount at any time
not exceeding $2,000,000, which obligation shall be separate and
distinct from SunTrust's obligation under this definition.
(D) If the context so requires, references to "Swing Line"
shall become a reference to "Swing Lines", and "Swing Lines"
shall mean the separate revolving lines of credit under the
Swing Line Commitments made by each of SunTrust and NCB for the
benefit of the Borrowers, as set forth in Section 1.03 of this
Agreement.
(ii) Section 1.03 shall be modified to read as
follows:
SECTION 1.03. Swing Loans. (a) Upon the terms and subject to the
conditions of this Agreement, (i) SunTrust, for its own account,
agrees to make one or more advances under its Swing Line to the
Borrowers from time to time up to but not exceeding its Swing
Line Commitment and (ii) NCB, for its own account, may make one
or more advances under its Swing Line from time to time up to
but not exceeding its Swing Line Commitment (all such advances
in (i) and (ii), collectively, "Swing Loans"). All Swing Loans
made by SunTrust shall be deemed solely for the account of
SunTrust and credited against the Commitment of SunTrust, and
all Swing Loans made by NCB shall be deemed solely for the
account of NCB and credited against the Commitment of NCB.
(b) Advances of, and payments on, the Swing Loans made by
SunTrust shall be made automatically without notice to or from
SunTrust (excepting notice to NCB as may be required hereunder)
or the Borrowers all in accordance with the AIS Agreement.
Advances of, and payments on, the Swing Loans made by NCB shall
be made through the notification process as described herein and
in the Intercreditor Agreement and without two day prior notice.
The Banks shall in their sole discretion settle with each other
the outstanding Swing Loans by each Friday with SunTrust making
proper notifications to NCB.
(iii) Paragraphs (a) and (c) of Section 1.06 shall
be modified to read as follows:
(a) In consideration of the Commitments hereunder, the
Borrowers shall pay in immediately available funds to the
Administrative Agent, for the pro rata account of each Bank, on
the last day of each calendar quarter, commencing with the first
such date after the Closing Date, and on the date of any
reduction or termination of the Commitments of the Banks
hereunder, a commitment fee (the "Facility Fee") in an amount
equal to .50% multiplied by the average daily unused amount of
the Commitment of such Bank during the period or quarter then
ending.
(c) The Borrowers may, by written notice to the
Administrative Agent (as provided in Section 1.17) terminate in
full, or from time to time permanently reduce in part, the
aggregate Commitments. Each such voluntary partial reduction of
the aggregate Commitments shall be in an aggregate principal
amount of $2,000,000 and in integral multiples of $1,000,000 in
excess thereof. Any and all reductions to the Commitments of
SunTrust or NCB shall be applied first to that portion of such
Commitment not constituting such Bank's Swing Line Commitment.
(iv) Paragraph (c) of Section 1.09 shall be
modified to read as follows:
(c) Prepayment of LIBOR Loans constituting Swing Loans
made by SunTrust shall be made according to the terms of the AIS
Agreement and shall be made without notice to Borrowers and any
prepayment penalty. Prepayments of LIBOR Loans constituting
Swing Loans made by NCB shall be made without notice to
Borrowers and any prepayment penalty.
(v) The final sentence of Section 1.17 shall be
modified to read as follows:
Notwithstanding anything to the contrary in this Agreement
or any other Loan Document, the Borrowers shall not be required
to give notice of any Swing Loan borrowing or payment, it being
the intention of the parties hereto that the Swing Loans made by
SunTrust shall be available to Borrowers for daily cash
management purposes and the Swing Loans made by NCB shall be
used as a mechanism to enable each Bank to hold as often as
possible approximately 50% of the outstanding indebtedness under
this Agreement. All such advances and payments under SunTrust's
Swing Line Commitment shall be administered by SunTrust
according to the terms of the AIS Agreement, and all advances
and payments under NCB's Swing Line Commitment shall be
administered by NCB and SunTrust (to the extent required)
according to the terms herein and the terms of the Intercreditor
Agreement. Fundings and payments of the Swing Loans shall be
made as often as needed, with such fundings and payments being
made by the same day of notification to NCB by SunTrust.
(vi) The signature page of the Loan Agreement on which the
"Amount of Commitment" and "Percentage Interest" are set forth shall
be modified to reflect that an additional asterisk (*) shall be noted
after the $9,500,000 Amount of Commitment set opposite the NCB
signature line.
(b) Except as specifically modified hereby, the terms and provisions
set forth in the Loan Agreement, including but not limited to all
representations and covenants, are hereby ratified and confirmed and remain in
full force and effect.
2. Modification of Intercreditor Agreement. (a) Section 2
of the Intercreditor Agreement shall be modified to read as follows:
In order to provide for the orderly administration of the Revolving
Credit Loans, the Borrower agrees to make to the
Agent all payments and repayments in respect of Revolving
Credit Loans pursuant to Section 1.10 of the Credit
Agreement, and to establish and maintain with the Agent a
deposit account (the "Deposit Account"). No later than the
close of business on the date specified by the Borrower in a
notice given pursuant to Section 1.17 of the Credit
Agreement for the making of a Revolving Credit Loan, each
Bank shall make available to the Agent such Bank's ratable
share (determined pursuant to Sections 1.02 and 1.16 of the
Credit Agreement) of such Loan in dollars and in immediately
available funds by wire transfer or other method acceptable
to the Banks to the Deposit Account (and in making its share
of such Revolving Credit Loan available to the Agent in
accordance with this Section 2, Second Bank may rely on
written or oral notice received from the Agent specifying
the amount of such Revolving Credit Loan, Second Bank's
share thereof and the date such Revolving Credit Loan is to
be made); provided, however, that if the Agent receives a
payment pursuant to Section 1.10 of the Credit Agreement
from the Borrower on the date specified for the making of a
Revolving Credit Loan, the Agent shall telephonically notify
each Bank of such Bank's share (determined pursuant to
Section 1.02 of the Credit Agreement) of such payment and
the amount of each Bank's share of the Revolving Credit Loan
to be made available to the Agent on such date shall be
reduced by the amount of each Bank's share of such payment.
In the event the Agent receives a payment on the date on
which a Revolving Credit Loan is not made or in the event
that the payment received on the date a Revolving Credit
Loan is made exceeds the amount of such Loan, then the Agent
shall distribute to each Bank, in accordance with the
provisions of Sections 1.10 and 1.16 of the Credit
Agreement, the Bank's share of the payment received, or the
amount by which such payment exceeds the amount of such
Loan, by wire transfer or other method acceptable to the
Banks on the date of receipt; provided, however, that the
Agent does not guarantee that payments received by it after
12:00 p.m. will be received by the Banks in time to be
applied by them to their respective Note on the same day.
Notwithstanding the terms of this Agreement, either Bank,
after providing written notice to the other Bank, may
request that the Borrower make payments made pursuant to
Section 1.10 of the Credit Agreement directly to such Bank.
(b) Except as specifically modified hereby, the terms and provisions
set forth in the Intercreditor Agreement, including but not limited to all
representations and covenants, are hereby ratified and confirmed and
remain in full force and effect.
3. Waiver of Claims. As part of the consideration to the Lenders herein,
the Borrowers hereby waive all set-offs, counterclaims, claims and all other
defenses of every nature whatsoever which each may have with respect to the Loan
Documents.
4. Consent of Administrative Agent. SunTrust, as Administrative Agent,
executes this Agreement to evidence its consent to the modifications effected
hereby; provided, however, that such consent shall neither be nor be deemed to
be a consent to, or a waiver of the necessity of obtaining the consent of the
Administrative Agent to, any future modification.
5. Further Assurances. The Borrowers hereby covenant and agree to execute
and deliver, or cause to be executed and delivered, and to do or make, or cause
to be done or made, upon the reasonable request of the Lenders and/or the
Administrative Agent, any and all instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by such
party or parties for the purpose of effecting the modifications described
herein.
6. Completeness and Modification. This Agreement
constitutes the entire agreement between the parties hereto as to
the transactions contemplated hereby and supersedes all prior
discussions, understandings or oral agreements between the parties
hereto.
7. No Novation. This Agreement does not constitute a discharge or novation
of any Note or any other documents executed in connection with the Loans, as
herein modified, and such Loan Documents shall continue in full force and effect
and shall be fully binding upon all parties hereto.
8. Successors and Assigns. This Agreement shall bind and
inure to the benefit of the parties hereto and their respective
successors and assigns.
9. Governing Law. This Agreement and all other instruments
referred to herein shall be governed by, and shall be construed
according to, the laws of the State of Tennessee.
10. Counterparts. To facilitate execution, this Agreement may be executed
in as many counterparts as may be required. It shall not be necessary that the
signature on behalf of the parties hereto appear on each counterpart hereof, and
it shall be sufficient that the signature on behalf of each party hereto appear
on one or more such counterparts. All counterparts shall collectively constitute
a single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their duly authorized officers as of the day and year first
above written.
BORROWERS:
PLASTI-LINE, INC.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Title: Vice President - Finance
XXXXXX-XXXX, INC.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Title: Secretary-Treasurer
AMERICAN SIGN AND MARKETING
SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Title: Secretary
LENDERS:
SUNTRUST BANK, EAST TENNESSEE, N.A.,
as Lender
By: /s/ T. L. Chip Xxxxxxxxx
X. X. "Chip" Xxxxxxxxx
Title: Vice President
NATIONAL CITY BANK, KENTUCKY, as
a Lender
By: /s/ Xxxxxx Xxxx
Xxxxxx Xxxx
Title: Vice President
ADMINISTRATIVE AGENT:
SUNTRUST BANK, EAST TENNESSEE, N.A.,
as Administrative Agent
By: /s/ T. L. Chip Xxxxxxxxx
X. X. "Chip" Xxxxxxxxx
Title: Vice President
U:\SUNTRUST\PL\1STMOD\MODAGR.02
