Exhibit 10(b)
FIRST AMENDMENT
TO REVOLVING NOTE
THIS FIRST AMENDMENT TO REVOLVING NOTE ("First Amendment"), made as of
March 31, 2000, by and between United Industrial Corporation, AAI Corporation,
AAI Engineering Support, Inc., AAI/ACL Technologies, Inc., AAI/ACL Technologies
Europe Limited, Detroit Stoker Company, Midwest Metallurgical Laboratory, Inc.,
UIC Products Co., Symtron Systems, Inc., and AAI MICROFLITE Simulation
International Corporation (collectively, the "Borrower"), and First Union
Commercial Corporation, a North Carolina Corporation (the "Lender").
RECITALS
A. United Industrial Corporation and certain of its subsidiaries
entered into a Revolving Note, dated as of June 11, 1997, in
the maximum principal amount of Seventeen Million, Five
Hundred Thousand Dollars ($17,500,000.00) made payable to the
order of First Union Commercial Corporation (the "Revolving
Note").
B. The Revolving Note evidences Borrower's obligations to repay
advances of principal made by the Lender under a Revolving
Line of Credit Loan Agreement And Security Agreement, dated
June 11, 1997, as amended by First Amendment to Revolving Line
of Credit Loan Agreement and Security Agreement dated as of
October 1, 1998, by Second Amendment to Revolving Line of
Credit Loan Agreement and Security Agreement dated as of
December 31, 1998, and Third Amendment to Revolving Line of
Credit Loan Agreement and Security Agreement of even date
herewith (the "Loan Agreement"). The Revolving Note is
governed, in part, by certain provisions of the Loan
Agreement.
C. The Borrower and the Lender desire to amend the Revolving Note
for the purpose of extending the Maturity Date (as defined in
the Revolving Note) to January 11, 2001, for the purpose of
changing the definition of "Borrower" to the definition set
forth above and for certain other purposes hereinafter set
forth.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lender hereby
agree as follows:
1. Capitalized terms used in this First Amendment but not defined herein
have the meanings ascribed to them in the Revolving Note. The term
"Borrower" shall henceforth refer to the Persons encompassed by the
term "Borrower" as defined above.
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2. The Maturity Date is extended to and including January 11, 2001.
3. Except as modified by this First Amendment, the Revolving Note remains
in full force and effect and unmodified. Borrower warrants and
represents that it has no offsets or defenses to its obligations under
the Revolving Note, as modified by this First Amendment.
4. In consideration of Lender's agreement to this First Amendment, the
Borrower hereby releases and waives any and all claims of any kind that
it may have against the Lender as of the date of this First Amendment
arising out of or relating to the Loan Agreement or the Revolving Note,
as amended by this First Amendment.
5. ARBITRATION. UPON DEMAND OF ANY PARTY HERETO, WHETHER MADE BEFORE OR
AFTER INSTITUTION OF ANY JUDICIAL PROCEEDING, ANY CONTROVERSY OR CLAIM
ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS BETWEEN PARTIES HERETO
(A "DISPUTE") SHALL BE RESOLVED BY BINDING ARBITRATION CONDUCTED UNDER
AND GOVERNED BY THE COMMERCIAL FINANCIAL DISPUTES ARBITRATION RULES
(THE "ARBITRATION RULES") OF THE AMERICAN ARBITRATION ASSOCIATION
("AAA") AND THE FEDERAL ARBITRATION ACT. DISPUTES MAY INCLUDE, WITHOUT
LIMITATION, TORT CLAIMS, COUNTERCLAIMS, A DISPUTE AS TO WHETHER A
MATTER IS SUBJECT TO ARBITRATION, CLAIMS BROUGHT AS CLASS ACTIONS, OR
CLAIMS ARISING FROM DOCUMENTS EXECUTED IN THE FUTURE. A JUDGMENT UPON
THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION.
NOTWITHSTANDING THE FOREGOING, THIS ARBITRATION PROVISION DOES NOT
APPLY TO DISPUTES UNDER OR RELATED TO SWAP AGREEMENTS. ALL ARBITRATION
HEARINGS SHALL BE CONDUCTED IN THE CITY OR COUNTY WHERE THE LENDER'S
OFFICE, AS FIRST STATED ABOVE, IS LOCATED, OR AT SUCH OTHER PLACE AS
THE PARTIES MAY IN WRITING AGREE. A HEARING SHALL BEGIN WITHIN 90 DAYS
OF DEMAND FOR ARBITRATION AND ALL HEARINGS SHALL CONCLUDE WITHIN 120
DAYS OF DEMAND FOR ARBITRATION. THESE TIME LIMITS MAY NOT BE EXTENDED
UNLESS A PARTY SHOWS CAUSE FOR EXTENSION AND THEN FOR NO MORE THAN A
TOTAL OF 60 DAYS. THE EXPEDITED PROCEDURES SET FORTH IN RULE 51, ET
SEQ., OF THE ARBITRATION RULES SHALL APPLY TO DISPUTES IN WHICH
THE CLAIM IS LESS THAN $1,000,000.00. ARBITRATORS SHALL BE LICENSED
ATTORNEYS SELECTED FROM THE COMMERCIAL FINANCIAL DISPUTE ARBITRATION
PANEL OF THE AAA. THE PARTIES DO NOT WAIVE APPLICABLE FEDERAL OR STATE
SUBSTANTIVE LAW EXCEPT AS PROVIDED HEREIN. NOTWITHSTANDING THE
PRECEDING BINDING ARBITRATION PROVISIONS, THE PARTIES AGREE TO PRESERVE
WITHOUT DIMINUTION, CERTAIN REMEDIES THAT ANY
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PARTY MAY EXERCISE BEFORE OR AFTER AN ARBITRATION PROCEEDING IS
BROUGHT. THE PARTIES SHALL HAVE THE RIGHT TO PROCEED IN ANY COURT OF
PROPER JURISDICTION OR BY SELF HELP TO EXERCISE OR PROSECUTE THE
FOLLOWING REMEDIES, AS APPLICABLE: (1) ALL RIGHTS TO FORECLOSE AGAINST
ANY REAL OR PERSONAL PROPERTY OR OTHER SECURITY BY EXERCISING A POWER
OF SALE OR UNDER APPLICABLE LAW BY JUDICIAL FORECLOSURE INCLUDING A
PROCEEDING TO CONFIRM THE SALE; (2) ALL RIGHTS OF SELF HELP, INCLUDING
WITHOUT LIMITATION, PEACEFUL OCCUPATION OF REAL PROPERTY AND COLLECTION
OF RENTS, SETOFF, AND PEACEFUL POSSESSION OF PERSONAL PROPERTY; (3)
OBTAINING PROVISIONAL OR ANCILLARY REMEDIES INCLUDING INJUNCTIVE
RELIEF, SEQUESTRATION, GARNISHMENT, ATTACHMENT, APPOINTMENT OF RECEIVER
AND FILING AN INVOLUNTARY BANKRUPTCY PROCEEDING; AND (4) WHEN
APPLICABLE, A JUDGMENT BY CONFESSION OF JUDGMENT. ANY CLAIM OR
CONTROVERSY WITH REGARD TO ANY PARTY'S ENTITLEMENT TO SUCH REMEDIES IS
A DISPUTE. THE PARTIES AGREE THAT THEY SHALL NOT HAVE A REMEDY OF
PUNITIVE OR EXEMPLARY DAMAGES AGAINST OTHER PARTIES IN ANY DISPUTE, AND
THEY HEREBY WAIVE ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES
THEY MAY NOW HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH
ANY DISPUTE WHETHER THE DISPUTE IS RESOLVED BY ARBITRATION OR
JUDICIALLY.
6. Lender has executed this First Amendment for the sole purpose of
evidencing its consent hereto, and not for the purpose of becoming
liable on the Revolving Note as a co-maker, endorser or guarantor.
7. This Third Amendment may be signed in several counterparts which, when
executed, shall constitute a single agreement. A counterpart containing
a facsimile signature shall be effective to the same extent as if it
were a counterpart containing an original signature, but shall be
confirmed promptly with a counterpart containing an original signature.
BORROWER: UNITED INDUSTRIAL CORPORATION
By: /s/ Richard Erkeneff
--------------------------------
Richard Erkeneff, President
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AAI CORPORATION
By: /s/ Paul J. Michaud
--------------------------------
Paul J. Michaud, Vice President,
Chief Financial Officer & Treasurer
AAI ENGINEERING SUPPORT, INC.
By: /s/ Paul J. Michaud
--------------------------------
Paul J. Michaud, Vice President,
Chief Financial Officer & Treasurer
AAI/ACL TECHNOLOGIES, INC.
By: /s/ Paul J. Michaud
--------------------------------
Paul J. Michaud, Vice President &
Chief Financial Officer
AAI/ACL TECHNOLOGIES EUROPE LIMITED
By: /s/ Paul J. Michaud
--------------------------------
Paul J. Michaud, Vice President &
Chief Financial Officer
DETROIT STOKER COMPANY
By: /s/ James Perry
--------------------------------
James Perry
Vice President
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MIDWEST METALLURGICAL LABORATORY, INC.
By: /s/ James Perry
--------------------------------
James Perry
Vice President
UIC PRODUCTS CO.
By: /s/ James Perry
--------------------------------
James Perry
Vice President
SYMTRON SYSTEMS, INC.
By: /s/ Robert Worthing
--------------------------------
Robert Worthing, Vice President,
General Counsel, and Assistant
Secretary
AAI MICROFLITE Simulation
International Corporation
By: /s/ Paul J. Michaud
--------------------------------
Paul J. Michaud
President
CONSENTED TO: FIRST UNION COMMERCIAL CORPORATION
By: /s/ Michael J. Landini
--------------------------------------
Michael J. Landini, Vice President
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STATE OF MARYLAND )
) To-wit:
COUNTY/CITY OF BALTIMORE )
I Darlene J. Koch, a Notary Public in and for the jurisdiction
aforesaid, do certify that James Perry, whose name is signed to the writing
above, bearing date as of April 3rd, 2000, has acknowledged the same before me
in my jurisdiction aforesaid.
Given under my hand and seal this 3rd day of April, 2000.
/s/ Darlene J. Koch
-----------------------------
Notary Public
My Commission Expires: Darlene J. Koch, Notary Public
Baltimore County
State of Maryland
My Commission Expires Dec. 1, 2001
STATE OF MARYLAND )
) To-wit:
COUNTY/CITY OF BALTIMORE )
I Darlene J. Koch, a Notary Public in and for the jurisdiction
aforesaid, do certify that Paul J. Michaud, whose name is signed to the writing
above, bearing date as of March 30, 2000, has acknowledged the same before me
in my jurisdiction aforesaid.
Given under my hand and seal this 30th day of March, 2000.
/s/ Darlene J. Koch
-----------------------------
Notary Public
My Commission Expires: Darlene J. Koch, Notary Public
Baltimore County
State of Maryland
My Commission Expires Dec. 1, 2001
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STATE OF MARYLAND )
) To-wit:
COUNTY/CITY OF BALTIMORE )
I Darlene J. Koch, a Notary Public in and for the jurisdiction
aforesaid, do certify that Robert Worthing, whose name is signed to the writing
above, bearing date as of March 30th, 2000, has acknowledged the same before me
in my jurisdiction aforesaid.
Given under my hand and seal this 30th day of March, 2000.
/s/ Darlene J. Koch
-----------------------------
Notary Public
My Commission Expires: Darlene J. Koch, Notary Public
Baltimore County
State of Maryland
My Commission Expires Dec. 1, 2001
STATE OF MARYLAND )
) To-wit:
COUNTY/CITY OF BALTIMORE )
I Darlene J. Koch, a Notary Public in and for the jurisdiction
aforesaid, do certify that Richard Erkeneff, whose name is signed to the writing
above, bearing date as of March 30th, 2000, has acknowledged the same before me
in my jurisdiction aforesaid.
Given under my hand and seal this 30th day of March, 2000.
/s/ Darlene J. Koch
-----------------------------
Notary Public
My Commission Expires: Darlene J. Koch, Notary Public
Baltimore County
State of Maryland
My Commission Expires Dec. 1, 2001
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