AMENDMENT TO
LOAN AGREEMENT
AGREEMENT, made this 30th day of September, 1996,
by and among:
MXL INDUSTRIES, INC., a Delaware corporation (the
"Borrower");
The Banks that have executed the signature pages
hereto (individually a "Bank" and collectively, the "Banks"); and
FLEET BANK, NATIONAL ASSOCIATION, a national
banking association (the successor in interest to NatWest Bank
N.A.), as Agent for the Banks (in such capacity, together with its
successors in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS:
A. The Borrower, the Banks and National
Westminster Bank N.J., as Agent (a predecessor in interest to the Agent)
have heretofore entered into a Loan Agreement dated April 29,
1993 (as such Loan Agreement has heretofore been amended, the "Original Loan
Agreement", and as the Original Loan Agreement is amended hereby
and as it may from time to time hereafter be amended and supplemented, the
"Loan Agreement");
B. The parties hereto wish to amend the Original Loan
Agreement as hereinafter set forth; and
C. Capitalized terms used herein which are defined in
the Original Loan Agreement and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Original Loan
Agreement;
NOW, THEREFORE, for good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto
agree as follows:
Article 1. Amendments to the Loan Agreement
The Original Loan Agreement is hereby amended as follows:
Section 1.1 Article 1 of the Original Loan Agreement
is amended as follows:
(a) The definition of "Agent's Main Office" is deleted
in its entirety and the following new definition is substituted
therefor:
"'Agent's Main Office' - the office of the Agent
presently located at 51 Cragwood Road, South
Plainfield, New Jersey 07080."
(b) The definition of "Principal Office" is deleted in
its entirety, and the following new definition is substituted therefor:
"'Principal Office' - The office of Fleet Bank,
National Association presently located at 1133
Avenue of the Americas, New York, New York 10036."
(c) The following new definitions are added, each in the
appropriate alphabetical order:
"'Fleet' - Fleet Bank, National Association, a
national banking association."
"'Summit' - Summit Bank, a national banking
association."
Section 1.2 Section 2.8 of the Original Loan Agreement
is amended as follows:
(a) The heading of Section 2.8 is deleted in its
entirety, and the following new heading is substituted therefor:
"Section 2.8 Voluntary and Mandatory Changes in
Commitments; Mandatory and Optional
Prepayments of Loans."
(b) A new subsection (f) is added to Section 2.8 as follows:
"(f) In the event that Five Star shall prepay the
full outstanding balance of all Loans under the
Five Star Loan Agreement, or Five Star shall
terminate the Commitments under the Five Star Loan
Agreement, then, in such event, not later than such
prepayment or such termination, as the case may be,
(i) the Borrower shall prepay the full outstanding
balance of all Loans hereunder together with all
accrued interest and Fees, and (ii) the Commitments
hereunder shall thereupon terminate."
Section 1.3 Section 10.9 of the Original Loan Agreement is
amended by deleting subsection 10.9(c) and by substituting therefor the
following:
"(c) If to the Agent:
Fleet Bank, National Association, as Agent
51 Cragwood Road
South Plainfield, NJ 07080
Attention: Murray Markowitz
Telecopier No.: (908)226-6205
with a copy (other than in the case of Borrowing
Notices and reports and other documents delivered
in compliance with Article 5 hereof) to:
Sullivan & Worcester LLP
767 Third Avenue
New York, New York 10017
Attention: Simon B. Posner, Esq.
Telecopier No.: (212)758-2151"
Section 1.4 The parties hereto acknowledge that:
(a) Fleet is the successor to NatWest Bank N.A., which
in turn was a successor to National Westminster Bank USA, and that
all references in the Loan Agreement to "NatWest USA" shall be
deemed to refer to Fleet, in its capacity as a Bank under the Loan
Agreement; and
(b) Summit is the successor to UJB, and that all
references in the Loan Agreement to "UJB" shall be deemed to refer
to Summit in its capacity as a Bank under the Loan Agreement.
Section 1.5 The Original Loan Agreement, the Loan
Documents, and all agreements, instruments and documents executed
and delivered in connection with any of the foregoing, shall each
be deemed to be amended hereby to the extent necessary to give
effect to the provisions of this Amendment and Supplement. Except
as amended hereby, the Loan Agreement and the other Loan Documents
shall remain in full force and effect in accordance with their
respective terms.
Article 2. Acknowledgments and Confirmations
Section 2.1 Each of Five Star and NPDC, as Guarantors,
consents in all respects to the execution and delivery by the
Borrower of this Amendment, and acknowledges and confirms that its
Guaranty continues to be valid and in full force and effect.
Section 2.2 Each of the Borrower, the Banks and the
Agent hereby acknowledges and confirms that all references in the
Loan Agreement, the other Loan Documents and any other agreement,
instrument or document executed and delivered in connection herewith
or therewith to the "Loan Agreement" or "this Agreement"
(insofar as such term refers to the Loan Agreement) shall be deemed
to refer to the Original Loan Agreement as amended hereby.
Section 2.3 The Borrower, the Banks, the Agent and the
Guarantors acknowledge (i) that, concurrently herewith, the parties
to the Five Star Loan Agreement are amending and supplementing the
Five Star Loan Agreement pursuant to an Amendment and Supplement to
Loan Agreement of even date herewith, and (ii) all references in
the Loan Agreement and any of the other Loan Documents to the "Five
Star Loan Agreement" shall be deemed to refer to the Five Star Loan
Agreement as so amended and supplemented.
Article 3. Representations and Warranties
The Borrower hereby represents and warrants to the Agent
and the Banks that after giving effect to the amendment of the
Original Loan Agreement pursuant hereto and the consummation of the
transactions contemplated hereby, (a) each of the representations
and warranties set forth in Article 3 of the Loan Agreement is true
and correct in all respects as if made on the date hereof, and (b)
there exists no Default or Event of Default under the Loan Agreement.
Article 4. The Agent
(a) The Banks and the Agent agree and confirm that
Article 9 of the Loan Agreement applies in all respects to this
Amendment, the Loan Agreement as amended hereby and the transactions
contemplated herein. Without limiting the generality
of the foregoing, each Bank agrees that Section 9.6 of the
Loan Agreement applies to this Amendment and the transactions
contemplated hereby, and that each Bank has, independently
and without reliance on the Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter this Amendment.
(b) Each Bank acknowledges that Fleet Bank, National
Association is the successor in interest to NatWest Bank N.A. in
its capacity as Agent, and that Fleet Bank, National Association,
in such capacity, is vested with all the rights, powers, privileges
and duties with which NatWest Bank N.A. had been vested in its
capacity as Agent, and each Bank consents to the foregoing in all
respects.
Article 5. Miscellaneous
Section 5.1 THIS AMENDMENT, THE LOAN AGREEMENT AS
AMENDED HEREBY AND ALL OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS
EXECUTED AND DELIVERED IN CONNECTION HEREWITH AND THEREWITH SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
Section 5.2 The provisions of this Amendment are
severable, and if any clause or provision shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect only such clause or
provision, or part thereof, in such jurisdiction and shall not in
any manner affect such clause or provision in any other jurisdiction,
or any other clause or provision in this Amendment
and Supplement in any jurisdiction.
Section 5.3 This Amendment may be signed in any number
of counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Section 5.4 This Amendment shall be binding upon and
inure to the benefit of the Borrower and the Guarantors and their
respective successors and to the benefit of each of the Agent and
the Banks and its respective successors and assigns. The rights
and obligations of the Borrower and the Guarantors under this
Amendment shall not be assigned or delegated without the prior
written consent of the Banks, and any purported assignment or
delegation without such consent shall be void.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date first above written.
MXL INDUSTRIES, INC.
By:
Title:
FLEET BANK, NATIONAL
ASSOCIATION
By:
Title:
[Signatures Continued on Next Page]
SUMMIT BANK
By:
Title:
FLEET BANK, NATIONAL
ASSOCIATION, as Agent
By:
Title:
Consented to and
Agreed in All Respects:
NATIONAL PATENT DEVELOPMENT
CORPORATION
By:
Title:
FIVE STAR GROUP, INC.
By:
Title: