AFTER RECORDING, RETURN TO: CROSS REFERENCE: Deed Book 1076, Page
Xxxxxx X. Xxxxxx, Esq. 234, Fayette County, Georgia records
Xxxxxx, Xxxxxxx & Xxxxxx, P.C.
0000 Xxxxxx Xxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
LOAN DOCUMENTS MODIFICATION AGREEMENT
(February 28, 1997)
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as
this "Amendment") is made and entered into as of the 28th day of February, 1997,
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 OF GEORGIA, N.A., a national banking
association (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"). 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 28, 1997, 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 Two Million Two
Hundred Fourteen Thousand Eighty-Five and No/100 Dollars ($2,214,085.00),
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
February 27, 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
February 27, 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 Lender a loan fee in the amount of Five
Thousand and No/100 Dollars ($5,000.00) and further agrees to pay all fees and
expenses incurred in connection with this Amendment. Borrower acknowledges and
agrees that once paid, the loan fee shall have been fully earned and shall not
be refundable or rebatable, in whole or in part, for any reason whatsoever.
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. The Loan Agreement is further modified and amended, effective
as of the date hereof, as follows:
(a) The definition of "Borrowing Base" set forth on page 1 of the Loan
Agreement, is deleted in its entirety and replaced with the following:
" 'Borrowing Base' shall mean eighty percent (80.00%) of Eligible
Accounts, plus forty percent (40.00%) of Eligible Inventory, plus sixty-
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five percent (65.00%) of Cost and Estimated Earnings in Excess of Xxxxxxxx
on Uncompleted Contracts less Xxxxxxxx on Uncompleted Contracts in Excess
of Costs and Estimated Earnings, plus sixty-five percent (65.00%) of cash
----
on deposit in United States depositories, except for cash held as
collateral for other obligations."
(b) The definition of "Eligible Accounts" set forth on page 2 of the
Loan Agreement, is amended by deleting subparts (i) and (ii), which read "(i)
the account is unpaid more than one hundred twenty (120) days after the invoice
date thereof; (ii) twenty-five percent (25%) or more of the aggregate balances
of all accounts owed to Borrower by said account debtor are unpaid more than one
hundred twenty (120) days after the invoice dates thereof," and replacing them
with "(i) the account is unpaid more than one hundred twenty-five (125) days
after the invoice date thereof; (ii) twenty-five percent (25%) or more of the
aggregate balances of all accounts owed to Borrower by said account debtor are
unpaid more than one hundred twenty-five (125) days after the invoice dates
thereof."
(c) Section 9 (b) of the Loan Agreement, which sets forth Borrower's
required minimum Tangible Net Worth, is deleted in its entirety and replaced
with the following:
"(b) Borrower's Tangible Net Worth, as shown on its financial statements,
shall exceed as of June 30, 1996, and at all times thereafter until
September 30, 1996, Nine Million Six Hundred Thousand and No/100 Dollars
($9,600,000.00), and, shall exceed as of September 30, 1996, and at all
times thereafter until February 28, 1997, Nine Million Eight Hundred
Thousand and No/100 Dollars ($9,800,000.00), and, shall exceed as of
February 28, 1997, and at all times thereafter, Ten Million Four Hundred
Thousand and No/100 Dollars ($10,400,000.00)."
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
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($5,000,000.00), bearing even date herewith, with final payment being due
on February 27, 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.
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
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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.
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 CROWN XXXXXXXX INC., a Delaware
presence of: corporation
----------------------------------
Unofficial Witness By:
-----------------------------
Xxxxxx Xxxxxxxxxx
Treasurer/Chief Financial
Officer
[CORPORATE SEAL]
----------------------------------
Notary Public XXXXXXXX 2000 INC.,
[NOTARIAL SEAL] a Delaware corporation
By:
----------------------------
Xxxxxx Xxxxxxxxxx
Secretary
[CORPORATE SEAL]
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LENDER:
Signed, sealed and delivered in
the presence of:
SOUTHTRUST BANK OF GEORGIA, N.A.,
a national banking association
-----------------------------------
Unofficial Witness
By:
------------------------------
Xxxxx X. Xxxxxxxx
Vice President
-----------------------------------
Notary Public [CORPORATE SEAL]
[NOTARIAL SEAL]
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