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EXECUTION COPY
AMENDMENT NO. 4 AND WAIVER
to
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 AND WAIVER entered into as of October 26, 2000
(this "Amendment"), among CMI INDUSTRIES, INC., a Delaware corporation (the
"Borrower"), the financial institutions party to the Loan Agreement (as
hereinafter defined) from time to time (the "Lenders") and FLEET CAPITAL
CORPORATION, a Rhode Island corporation, as agent for the Lenders (the "Agent").
Preliminary Statement
The Borrower, the Lenders and the Agent are parties to the Amended and
Restated Loan and Security Agreement dated as of May 28, 1999, as amended by
Amendment No. 1 dated as of September 30, 1999, Amendment No. 2 dated as of
May 4, 2000 and Amendment No. 3 dated as of May 31, 2000 (the "Loan Agreement";
unless otherwise defined herein, capitalized terms used herein have the meanings
ascribed to them in the Loan Agreement). The Borrower has requested that the
Lenders waive compliance and the effects of noncompliance by the Borrower with
the financial covenants set forth in the Loan Agreement and the Lenders have
agreed to grant such waivers, all upon and subject to the terms and conditions
hereinafter set forth.
Statement of Agreement
NOW, THEREFORE, in consideration of the Loan Agreement, the Loans made
by the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendment to Loan Agreement Provisions. Effective in
accordance with Section 3 hereof, the Loan Agreement is hereby amended by:
(a) amending Appendix I to the Loan Agreement by:
(i) amending the definition "Borrowing Base" by
redesignating subsection (e) as subsection (f) and adding a new
subsection (e) to read as follows:
(e) $10,000,000, less
(ii) amending the definition "Revolving Credit Facility"
in its entirety to read as follows:
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"Revolving Credit Facility" means $28,000,000.
(iii) amending the definition "Revolving Facility Amount"
in its entirety to read as follows:
"Revolving Facility Amount" means the Revolving
Credit Facility, as reduced pursuant to the provisions of
Sections 2.6 and 2.7 of the Agreement, less the sum of (a) the
Stated Amount of any outstanding Letter of Credit from time to
time and the amount of any unreimbursed Drawing under any
Letters of Credit and (without duplication) unreimbursed
payments under any related LC Supports, (b) the Interest Rate
Exposure Reserve, (c) the Swap Reserve and (d) $10,000,000.
(iii) adding thereto the following new definitions in the
appropriate alphabetical order:
"Asset Disposition" means the sale, lease, transfer
or other disposition of any asset of the Borrower or any
Subsidiary of the Borrower, other than sales of real estate
upon which the Borrower or such Subsidiary does not engage in
manufacturing, Inventory in the ordinary course of business
and the disposition of worn-out and obsolete Equipment and
Inventory no longer useful in the Borrower's or such
Subsidiary's business, as the case may be, consistent with
past practices of the Borrower or such Subsidiary.
"Net Proceeds" means proceeds received by the
Borrower in cash from any Asset Disposition (including,
without limitation, payments as received under notes or other
debt securities delivered in connection with any Asset
Disposition), net of: (a) the transaction costs of such sale,
lease, transfer or other disposition; (b) any tax liability
arising from such transactions; and (c) amounts applied to
repayment of Indebtedness for Money Borrowed (other than the
Secured Obligations) secured by a Lien on the asset or
property disposed of.
(b) amending Article II. Revolving Credit Facility by
adding at the end thereof a new Section 2.7 to read as follows:
Section 2.7 Mandatory Prepayment and Reduction of
Revolving Credit Facility. Immediately upon receipt by the Borrower or
any of its Subsidiaries of the Net Proceeds of any Asset Disposition
(other than the Borrower's sale on or about October 26, 2000 of certain
assets of its Chatham Manufacturing Division and its interest in
Chatham & Borgstena, Inc. to Borgstena Textile North America, Inc.),
the Borrower shall pay to the Agent an amount equal to such Net
Proceeds for application to the prepayment of the
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Revolving Credit Loans (and the Revolving Credit Facility shall be
permanently reduced dollar-for-dollar by the amount of any such
prepayment of Revolving Credit Loans). Prepayments shall be first
applied to Base Rate Loans to the extent thereof and then to Eurodollar
Rate Loans and any payments received which would otherwise result in
prepayment of such Eurodollar Rate Loans prior to the end of the
Interest Period applicable thereto may, upon the request of the
Borrower, in the absence of an Event of Default, be deposited in a Cash
Collateral Account, with any excess after prepayment in full of the
Revolving Credit Loans to be deposited with the Agent to be held as
cash Collateral for the Secured Obligations and after the Termination
Date, to be applied to any of the Secured Obligations in such manner as
the Agent shall determine in its sole discretion. The Borrower shall
deliver to the Agent, together with each prepayment made pursuant to
this Section, a certificate of the chief financial officer of the
Borrower setting forth the amount of such prepayment and certifying
that such amount was computed in accordance with the provisions of this
Agreement, and having attached thereto the supporting calculations, in
reasonable detail.
(c) amending subsection (a) of Section 4.3 Commitment, Agency and
Letter of Credit Fees by deleting the first sentence appearing therein and
substituting therefor the following new sentence to read as follows:
The Borrower shall pay to the Agent, for the account of the
Lenders, an unused commitment fee (the "Unused Commitment Fee") at an
initial rate per annum equal to one-quarter of one percent (1/4%), as
subsequently adjusted on each Margin Adjustment Date in accordance with
the provisions of the definition "Applicable Margin," on the average
unused portion of the Revolving Credit Facility (excluding the
$10,000,000 reserve against the Revolving Credit Facility established
by the Lenders pursuant to Amendment No. 4 and Waiver dated as of
October 26, 2000 with respect to this Agreement).
(d) amending subsection (a) of Section 8.11 Information and
Reports in its entirety to read as follows:
(a) Schedule of Receivables. The Borrower shall deliver
to the Agent and the Lenders no later than Wednesday of each week and
by the 15th Business Day after the end of each Fiscal Month a Schedule
of Receivables which
(i) shall be as of the last Business Day of the
immediately preceding week or such Fiscal Month, as the case
may be,
(ii) in the case of any Schedule of Receivables
prepared as of the last Business Day of a Fiscal Month, shall
be reconciled to the Borrowing Base Certificate as of such
last Business Day,
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(iii) shall set forth a detailed report for such
week or Fiscal Month, as the case may be, specifying the
balance due on each Account Debtor's account, the aging of
each Account Debtor's account and the amount of any rebate
owed to that Account Debtor in the ordinary course of the
Borrower's business.
(e) deleting in its entirety subsection (d) (Minimum Availability)
of Section 11.1 Financial Covenants.
(f) amending subsection (b) of Section 11.8 Merger, Consolidation
and Disposition of Assets in its entirety to read as follow:
(b) Sell, lease or transfer or otherwise dispose of or
permit any Restricted Subsidiary to sell, lease, transfer or otherwise
dispose of assets (other than real estate upon which the Borrower or
such Restricted Subsidiary does not engage in manufacturing, the
Laurens FILOT, sales or other dispositions of Collateral in accordance
with Section 8.7(a) hereof or other dispositions of obsolete assets, or
the sale or other disposition of other assets which are replaced in the
ordinary course of business).
Section 2. Waiver. Subject to Section 3 hereof, the Lenders
hereby waive compliance and the effect of noncompliance by the Borrower with the
provisions of Sections 11.1(a), (b), (c) and (d) of the Loan Agreement as of and
for the Fiscal Quarter ended September 30, 2000.
Section 3. Conditions to Effectiveness of Amendment. SECTIONS 1
and 2 of this Amendment shall become effective as of the date hereof on the date
(the "Amendment Effective Date") on which the Agent receives the following, each
in form and substance satisfactory to the Agent and in sufficient copies for
each Lender:
(a) counterparts of this Amendment, duly executed and delivered by
the Borrower and the Lenders;
(b) a certificate of the secretary or assistant secretary of the
Borrower having attached thereto the articles or certificate of incorporation
and bylaws of the Borrower as in effect on the Amendment Effective Date (or
containing the certification of such secretary or assistant secretary that no
amendment or modification of such articles or certificate or bylaws has become
effective since the last date on which such documents were delivered to the
Lenders pursuant to the Loan Agreement), all corporate action, including
shareholder's approval, if necessary, taken by the Borrower and/or its
shareholders to authorize the execution, delivery and performance of this
Amendment, and to the further effect that the incumbency certificate delivered
in connection with the occurrence of the Effective Date remains in effect,
unchanged;
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(c) a certificate of the president or chief financial officer of
the Borrower stating that, to the best of his knowledge and based on an
examination sufficient to enable him to make an informed statement, after giving
effect to the Amendment,
(i) all of the representations and warranties made or
deemed to be made under the Loan Agreement are true and
correct in all material respects on and as of the Amendment
Effective Date, and
(ii) no Default or Event of Default exists
and the Agent shall be satisfied as to the truth and accuracy thereof;
and
(d) such other documents and instruments as the Agent or any
Lender may reasonably request.
Section 4. Effect of Amendment. Upon and after the effectiveness
of this Amendment as provided in SECTION 2 hereof, all references to the Loan
Agreement in the Loan Agreement or in any other Loan Document shall mean the
Loan Agreement as amended by this Amendment. Except as expressly provided in
this Amendment, the execution and delivery of this Amendment does not, and will
not, amend, modify or supplement any provision of or constitute a consent to or
a waiver of any noncompliance with the provisions of the Loan Agreement and,
except as specifically provided in this Amendment, the Loan Agreement shall
remain in full force and effect.
Section 5. Representations and Warranties. The Borrower hereby
represents and warrants that the Borrower has the right and power and has taken
all necessary action to authorize it to execute, deliver and perform this
Amendment in accordance with its terms and this Amendment has been duly executed
and delivered by a duly authorized officer of the Borrower and is a legal, valid
and binding obligation of the Borrower, enforceable in accordance with its
terms.
Section 6. General Provisions.
(a) Governing Law. This Amendment shall be construed in accordance
with and governed by the law of the State of Georgia, without giving effect to
the conflict of laws principles thereof.
(b) Counterpart Execution. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their duly authorized officers in several counterparts as of the
date first above written.
CMI INDUSTRIES, INC.
By: /s/ James A. Ovenden
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Name: James A. Ovenden
Title: CFO & EVP
FLEET CAPITAL CORPORATION, as the
Agent and a Lender
By: /s/ Roland J. Robinson
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Roland J. Robinson
Senior Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ David H. Dinkins
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Name: David H. Dinkins
Title: Principal
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