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EXHIBIT 4(a)(4)
BIRD INCORPORATED
980 Washington Street, Suite 120
Dedham, Massachusetts 02026
March 8, 1995
Shawmut Capital Corporation
200 Glastonbury Boulevard
Glastonbury, Connecticut 06033
Re: FIRST AMENDMENT TO LOAN DOCUMENTS
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Ladies and Gentlemen:
Reference is made to the Loan and Security Agreement dated November 30,
1994 ("Loan Agreement") and all supplements, agreements, documents and
instruments entered into by Bird Incorporated (the "Borrower") and Barclays
Business Credit, Inc. ("BCI") pursuant thereto (collectively, the "Loan
Documents"). Except as otherwise defined herein, capitalized terms used herein
shall have the meanings given them in the Loan Documents. BCI transferred the
Loans and Loan Documents to Shawmut Capital Corporation on January 31, 1995 and
Shawmut Capital Corporation is referred to herein as "Lender". This First
Amendment to Loan Documents is referred to as the "First Amendment"
BACKGROUND. The Borrower has consummated the sale of its Vinyl Products
Division to Jannock Limited and has applied the proceeds of such sale according
to Section 3.8 of the Loan Agreement. In further accordance with Section 3.8,
the Borrower and Lender have agreed, subject to the terms of this First
Amendment, to decrease the maximum credit under the Loan Agreement from Thirty
Nine Million Dollars ($39,000,000) to Twenty Million Dollars ($20,000,000.00),
to decrease the principal amount of Term Note B from $7,500,000 to $5,000,000,
to add a LIBOR rate option to the Loan Agreement and to certain other
amendments to the Loan Documents as set forth herein.
Subject to the satisfaction of the terms and conditions hereof, Lender,
the Borrower and the Guarantors have agreed that the Loan Documents shall be
amended as follows:
A. AMENDMENTS TO THE LOAN AGREEMENT.
1. Section 1 of the Loan Agreement is hereby amended by deleting the
symbol and number "$39,000,000" in the fourth line of the Section, and
substituting in lieu thereof the symbol, number and words "$20,000,000 or such
lesser amount as may be elected by Borrower pursuant to Section 4.2.3 hereof".
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2. Section 1.1.2 of the Loan Agreement is hereby amended by deleting
the symbol and number "$24,000,000" and substituting in lieu thereof the
symbol, number and words "$15,000,000 or such lesser amount as may be elected
by Borrower pursuant to Section 4.2.3 hereof".
3. Section 1.2.2 of the Loan Agreement is hereby amended by deleting
the Section in its entirety and substituting in lieu thereof the following:
1.2.2 TERM LOAN B. Term Loan B shall be reduced from the
original principal amount of $7,500,000 to a principal amount of $5,000,000,
which shall be repayable in accordance with the terms of the Amended and
Restated Term Note B and shall be secured by all of the Collateral. The Term
Loan B shall, at Borrower's option, be made or continued as, or converted into,
one or more Advances consisting of Base Rate Advances or LIBOR Rate Advances.
4. Section 2.1.1 of the Loan Agreement is hereby amended by deleting
the Section in its entirety and substituting the following in lieu thereof:
2.1.1 INTEREST RATES. Borrower agrees to pay interest in
respect of all unpaid principal amounts of the Loans from the
respective dates such principal amounts are advanced until paid
(whether at stated maturity, on acceleration, or otherwise) at a rate
per annum equal to the applicable rate indicated below:
(i) For each Base Rate Advance, the Base Rate, and
(ii) For each LIBOR Rate Advance, the relevant Adjusted
LIBOR Rate for the applicable Interest Period selected by
Borrower in conformity with this Agreement plus 275 basis
points.
Upon determining the Adjusted LIBOR Rate for any Interest
Period requested by Borrower, Lender shall promptly notify Borrower
thereof by telephone or in writing. Such determination shall, absent
manifest error, be final, conclusive and binding on all parties and
for all purposes.
The applicable rates of interest with respect to all Base Rate
Advances shall be increased or decreased, as the case may be, by an
amount equal to any increase or decrease in the Base Rate, with such
adjustments to be effective as of the opening of business on the date
that any such change in the Base Rate becomes effective.
2.1.2 INTEREST PERIODS. In connection with the making or
continuation of, or conversion into, a LIBOR Rate Advance, Borrower
shall select an interest period (each an "Interest Period") to be
applicable to such LIBOR Rate Advance, which Interest Period shall
commence on the date
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such LIBOR Rate Advance is made and shall end on a numerically
corresponding date in the first, second, third or sixth month thereafter;
PROVIDED, HOWEVER, that:
(i) the initial Interest Period for a LIBOR Rate Advance shall
commence on the date of such borrowing (including the date of any
conversion from an Advance of other type) and each Interest Period
occurring thereafter in respect of such Advance shall commence on
the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
which is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day, provided that if any Interest Period
in respect of a LIBOR Rate Advance would otherwise expire on a day
which is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period
shall expire on the next preceding Business Day;
(iii) any Interest Period which begins on a day for which there
is no numerically corresponding day in the calendar month at the end
of such Interest Period shall expire on the last Business Day of
such calendar month; and
(iv) no Interest Period shall extend beyond the termination
date of this Agreement pursuant to Section 4 hereof or, in the
case of any LIBOR Rate Advance forming a part of th.e Term Loan,
beyond the final maturity date of the Term Loan.
2.1.3 INTEREST RATE NOT ASCERTAINABLE. If Lender shall determine
(which determination shall, absent manifest error, be final, conclusive
and binding upon all parties) that on any date for determining the Adjusted
LIBOR Rate for any Interest Period, by reason of any changes arising after the
date of this Agreement affecting the London interbank market or Lender's
position in such market, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the definition of
Adjusted LIBOR Rate, then, and in any such event, Lender shall forthwith give
notice (by telephone confirmed in writing) to Borrower of such determination.
Until Lender notifies Borrower that the circumstances giving rise to the
suspension described herein no longer exist, the obligation of Lender to make
LIBOR Rate Advances shall be suspended, and such affected Loans then
outstanding shall, at the end of the then applicable Interest Period or at such
earlier time as may be required by Applicable Law, bear the same interest as
Base Rate Advances.
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5. Section 2.1.2 of the Loan Agreement is hereby amended by
deleting the number "2.1.2" and substituting in lieu thereof the number
"2.1.4".
6. Section 2.1.3 of the Loan Agreement is hereby amended by deleting
the number "2.1.3" and substituting in lieu thereof the number "2.1.5".
7. The Loan Agreement is hereby amended by adding Sections 2.10 and
2.11 as follows:
2.10 FUNDING LOSSES. Borrower shall compensate Lender, upon
Lender's written request (which request shall set forth the basis for
requesting such amounts and which request shall, absent manifest
error, be final, conclusive and binding upon all of the parties
hereto), for all losses, expenses and liabilities (including any
interest paid by Lender to lenders of funds borrowed by Lender to make
or carry any LIBOR Rate Advances to the extent not recovered by Lender
in connection with the re-employment of such funds), which Lender may
sustain: (i) if for any reason (other than a default by Lender) a
borrowing of, or conversion to or continuation of, LIBOR Rate Advances
does not occur on the date specified therefor in a Notice of Borrowing
or Notice of Conversion/Continuation (whether or not withdrawn), (ii)
if any repayment (including prepayments and any conversions pursuant
to this Agreement) of any of its LIBOR Rate Advances occurs on a date
that is not the last day of an Interest Period applicable thereto, or
(iii) if, for any reason, Borrower defaults in its obligation to repay
LIBOR Rate Advances when required by the terms of this Agreement. For
purposes of this Section 2.10, all references to Lender shall be
deemed to include any bank holding company or bank parent of Lender.
2.11 INCREASED COSTS. If, by reason of (x) after the date
hereof, the introduction of or any change (including any change by way
of imposition or increase of Statutory Reserves or other reserve
requirements) in or in the interpretation of any law or regulation, or
(y) the. compliance with any guideline or request from any central
bank or other governmental authority or quasi-governmental authority
exercising control over banks or financial institutions generally
(whether or not having the force of law):
(i) Lender shall be subject to any tax, duty or other
charge with respect to any LIBOR Rate Advance or its
obligation to make LIBOR Rate Advances, or shall change the
basis of taxation of payment to a Lender of the principal of
or interest on any LIBOR Rate Advances or its obligation to
make LIBOR Rate Advances (except for changes in the rate of
Tax on the overall net income of Lender imposed by the
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jurisdiction in which Lender's principal executive office
is located); or
(ii) any reserve (including any imposed by the Board of
Governors of the Federal Reserve System), special deposits or
similar requirement against assets of, deposits with or for the
account of, or credit extended by, Lender shall be imposed or
deemed applicable or any other condition affecting LIBOR Rate
Advances or its obligation to make LIBOR Rate Advances shall be
imposed on Lender or the London interbank market;
and as a result thereof there shall be any increase in the cost to Lender
of agreeing to make or making, funding or maintaining LIBOR Rate Advances
(except to the extent already included in the determination of the applicable
Adjusted LIBOR Rate), or there shall be a reduction in the amount received or
receivable by Lender, then Borrower shall from time to time, upon written
notice from and demand by Lender (with a copy of such notice and demand to
Agent), pay to Lender, within five (5) Business Days after the date specified
in such notice and demand, an additional amount sufficient to indemnify Lender
against such increased cost. A certificate as to the amount of such increased
cost, showing such calculations in reasonable detail, submitted to Borrower by
Lender, shall, except for manifest error, be final, conclusive and binding for
all purposes.
If Lender shall advise Borrower at any time that, because of the
circumstances described hereinabove in this Section 2.11 or any other
circumstances arising after the date of this Agreement affecting Lender or the
London interbank market or Lender's position in such market, the Adjusted LIBOR
Rate, as determined by Lender, will not adequately and fairly reflect the cost
to Lender of funding LIBOR Rate Advances, then, and-in any such event:
(i) Lender shall forthwith give notice (by telephone
confirmed in writing) to Borrower of such advice;
(ii) Borrower's right to request and Lender's
obligation to make LIBOR Rate Advances shall be immediately
suspended and Borrower's right to continue a LIBOR Rate
Advance as such beyond the then applicable Interest Period
shall also be suspended; and
(iii) Lender shall make an advance as part of the
requested Borrowing of LIBOR Rate Advances as a Base Rate
Advance, which Base Rate Advance shall, for all purposes, be
considered part of such borrowing.
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For purposes of this Section 2.11, all references to Lender
shall be deemed to include any bank holding company or bank
parent of Lender.
8. Section 3.1.1 of the Loan and Security Agreement is hereby
amended by deleting the Section in its entirety and substituting in lieu
thereof the following:
3.1.1 LOAN REQUESTS. Borrowings of LIBOR Rate Advances
and Base Rate Advances shall be made and funded as follows:
(i) Whenever Borrower desires to borrow pursuant to
this Agreement (other than a borrowing resulting from a
conversion or continuation pursuant to Section 3.1.1(ii)
hereof), Borrower shall give Lender prior written notice (or
telephonic notice promptly confirmed in writing) of such
borrowing request (a "Notice of Borrowing"). Such Notice of
Borrowing shall be given prior to 11:00 a.m., Glastonbury,
Connecticut time at the office of Lender designated by
Lender from time to time (a) on the Business Day of the
requested date of such borrowing in the case of Base Rate
Advances, and (b) at least three (3) Business Days prior to
the requested date of such borrowing in the case of LIBOR
Rate Advances. Notices received after 11:00 a.m. shall be
deemed received on the next Business Day.
All Revolving Credit Loans made on the Closing Date
shall be made as Base Rate Advances and thereafter may be
made, continued as or converted into Base Rate Advances or
LIBOR Rate Advances. Each Notice of Borrowing shall be
irrevocable and shall specify (a) the principal amount of
the borrowing (which, in the case of each LIBOR Rate
Advance, shall be in the amount of $1,000,000 and $500,000
increments in excess thereof), (b) the date of borrowing
(which shall be a Business Day), (c) whether the borrowing
is to consist of Base Rate Advances or LIBOR Rate Advances
and the amount of each such Advance, and (d) in the c.ase of
LIBOR Rate Advances, the duration of the Interest Period to
be applicable thereto. Unless payment is otherwise timely
made by Borrower, the becoming due of any amount required to
be paid under this Agreement or any of the other Loan
Documents as principal, accrued interest, fees or other
charges shall be deemed irrevocably to be a request by
Borrower from Lender for a Revolving Credit Loan on the due
date of, and in an aggregate amount required to pay, such
principal, accrued interest, fees or other charges, and the
proceeds of each such Revolving Credit Loan may be disbursed
by Lender by way of direct payment of the relevant
Obligation and shall bear interest as a Base Rate Advance.
(ii) Whenever Borrower desires to convert all or a
portion of an outstanding Base Rate Advance or LIBOR
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Rate Advance into one or more Advances of another type, or
to continue outstanding a LIBOR Rate Advance for a new
Interest Period, Borrower shall give Lender written notice
(or telephone notice promptly confirmed in writing) at least
three (3) Business Days before the conversion into a Base
Rate Advance and at least three (3) Business Days before the
conversion into or continuation of a LIBOR Rate Advance.
Such notice (a "Notice of Conversion/Continuation") shall be
given prior to 11:00 a.m., Glastonbury, Connecticut time, on
the date specified. Each such Notice of
Conversion/Continuation shall be irrevocable and shall
specify the aggregate principal amount of the Advance to be
converted or continued, the date of such conversion or
continuation, whether the Advance is being converted into or
continued as a LIBOR Rate Advance (and, if so, the duration
of the Interest Period to be applicable thereto) or a Base
Rate Advance. If, upon the expiration of any Interest Period
in respect of any LIBOR Rate Advance, Borrower shall have
failed, or pursuant to the following sentence be unable, to
deliver the Notice of Conversion/Continuation, Borrower
shall be deemed to have elected to convert or continue such
LIBOR Rate Advance to a Base Rate Advance. So long as any
Default or Event of Default shall have occurred and be
continuing, no Advance may be converted into or continued as
(upon expiration of the current Interest Period) a LIBOR
Rate Advance. No conversion of any LIBOR Rate Advance shall
be permitted except on the last day of the Interest Period
in respect thereto.
(iii) The becoming due of any amount required to be
paid under this Agreement or the Term Note, whether as
interest or for any other Obligation, shall be deemed
irrevocably to be a request for a Revolving Credit Loan on
the due date in the amount required to pay such interest or
other Obligation.
(iv) In no event shall the number of Advances
outstanding under the Revolving Credit Loans or the Term
Loan exceed four (4), but for purposes of determining the
number of Advances outstanding, all Base Rate Advances
outstanding at any time shall be considered as one Advance.
Notwithstanding anything to the contrary in this Agreement,
in no event shall Borrower be authorized to obtain or
continue an Advance as a LIBOR Rate Advance, or to convert a
Base Rate Advance to a LIBOR Rate Advance, if, after giving
effect thereto, the aggregate principal amount of all LIBOR
Rate Advances then outstanding is greater than seventy-five
percent (75%) of the Average Loan Balance for the thirty-day
period immediately preceding the date of determination.
(v) As an accommodation to Borrower, Lender may permit
telephonic requests for loans and electronic
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transmittal of instructions, authorizations, agreements or
reports to Lender by Borrower. Unless Borrower specifically
directs Lender in writing not to accept or act upon
telephonic or electronic communications from Borrower,
Lender shall have no liability to Borrower for any loss or
damage suffered by Borrower as a result of Lender's
honoring of any requests, execution of any instructions,
authorizations or agreements or reliance on any reports
communicated to it telephonically or electronically and
purporting to have been sent to Lender by Borrower and
Lender shall have no duty to verify the origin of any such
communication or the authority of the person sending it.
(vi) All fundings of Revolving Credit Loans by Lender
to Borrower shall be made by Lender' s disbursement of such
monies in immediately available funds by wire transfer to
such bank account as may be agreed upon by Borrower and
Lender from time to time.
9. Section 3.1.2 of the Loan Agreement is hereby amended by
deleting the number "3.1.1(ii)" on the second to last line of the Section and
substituting in lieu thereof the number, "3.1.1 (iii) ".
10. The Loan Agreement is hereby amended by deleting Section
3 . 2.1 in its entirety and inserting in lieu thereof the following:
3.2.1 REPAYMENT OF REVOLVING CREDIT LOANS. Borrower's obligation
to pay the principal of, and interest on, the Revolving Credit Loans to Lender
shall be evidenced by the records of Lender and all outstanding principal
amounts and accrued interest with respect to the Revolving Credit Loans shall
be due and payable as follows:
(i) Any portion of the Revolving Credit Loans
consisting of the principal amount of Base Rate Advances
shall be paid by Borrower to Lender immediately upon the
earliest of (a) the receipt by Lender or Borrower of any
proceeds of any Collateral (other than proceeds of Equipment
or real Property that are applied pursuant to Section 6.4.2
hereof), to the extent of such proceeds, (b) the occurrence
of an Event of Default in consequence of which Lender elects
to accelerate the maturity and payment of the Obligations or
(c) termination of this Agreement pursuant to Section 4
hereof. Interest accrued on the principal amount of each
Base Rate Advance shall be paid as provided in Section 3.2.2
hereof.
(ii) Any portion of the Revolving Credit Loans
consisting of the principal amount of LIBOR Rate Advances
outstanding shall be paid by Borrower to
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Lender, unless converted to a Base Rate Advance or
continued as a LIBOR Rate Advance in accordance with the
terms of this Agreement, upon the earliest of (a) the last
day of the Interest Period applicable thereto, (b) the
occurrence of an Event of Default in consequence of which
Lender elects to accelerate the maturity and payment of the
Obligations, or (c) termination of this Agreement pursuant
to Section 4 hereof. In no event shall Borrower be
authorized to pay any LIBOR Rate Advance prior to the last
day of the Interest Period applicable thereto unless
otherwise agreed to in writing by Lender or Borrower is
otherwise expressly authorized or required by any other
provision of this Agreement to pay any LIBOR Rate Advance
outstanding on a date other than the last day of the
Interest Period applicable thereto. Interest accrued on the
principal amount of each LIBOR Rate advance shall be paid as
provided in Section 3.2.2 hereof.
(iii) Notwithstanding anything to the contrary
contained elsewhere in this Agreement, if the principal
amount of Revolving Credit Loans outstanding at any time
shall exceed the Borrowing Base at such time, except for
Seasonal Overadvances as permitted under Section 1.1.2
hereof, Borrower shall, on demand, repay the outstanding
Revolving Credit Loans bearing interest as Base Rate
Advances in an amount sufficient to reduce the aggregate
unpaid principal amount of all Revolving Credit Loans by an
amount equal to such excess; and, if such payment of Base
Rate Advances is not sufficient to cure the Overadvance
Condition, then, Borrower shall immediately either (a)
deposit with Lender, for application to any outstanding
Revolving Credit Loans bearing interest as LIBOR Rate
Advances as the same become due and payable at the end of
the applicable Interest Period, cash in an amount sufficient
to cure such Overadvance Condition and any such cash shall
be held by Lender, pending disbursement of same to Lender,
in such interest bearing account or accounts as Lender may
select, or (b) pay the Revolving Credit Loans outstanding
that bear interest as LIBOR Rate Advances to the extent
necessary to cure such Overadvance Condition and also pay to
Lender any and all amounts required by Section 2.10 hereof
to be paid by reason of the prepayment of a LIBOR Rate
Advance prior to the last day of the Interest Period
applicable thereto.
11. The Loan Agreement is hereby amended by deleting Section
3.2.2 in its entirety and inserting in lieu thereof the following:
3.2.2 VARIABLE RATES AND PAYMENT OF INTEREST. Interest on
each Revolving Credit Loan shall accrue from and including the
date of such Revolving Credit Loan to but excluding the date of
any repayment thereof; PROVIDED,
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HOWEVER, that, if a Revolving Credit Loan is repaid on the same day made,
one day's interest shall be paid on such Loan. Accrued interest on all
Revolving Credit Loans shall be paid upon the earliest of (i) the first day
of each month (for the immediately preceding month), computed through the
last calendar day of the preceding month, (ii) prepayment in accordance
with Section 3.2.3 hereof, (iii) the occurrence of an Event of Default in
consequence of which Lender elects to accelerate the maturity and payment
of the Obligations, (iv) the last day of an Interest Period in respect of a
LIBOR Rate Advance, or (v) the termination of this Agreement pursuant to
Section 4 hereof. With respect to any Base Rate Advance converted into a
LIBOR Rate Loan on a day when interest would not otherwise have been
payable with respect to such Base Rate Advance, accrued interest to the
date of such conversion on the amount of such Base Rate Advance shall be
paid by Borrower on the conversion date.
3.2.3 OPTIONAL PREPAYMENTS OF LIBOR RATE ADVANCES. LIBOR Rate Advances
may be prepaid, at Borrower's option, at any time in whole or from time to
time in part, in amounts aggregating $500,000 or any greater integral
multiple thereof, by paying the principal amount to be prepaid, interest
accrued and unpaid thereon to the date of prepayment and all charges
pursuant to Section 2.10 hereof if such prepayment is made on a date other
than the last day of an applicable Interest Period. Borrower shall give
written notice (or telephonic notice confirmed in writing) to Lender of any
intended prepayment not less than two (2) Business Days prior to any
prepayment of LIBOR Rate Advances. Such notice, once given, shall be
irrevocable. All prepayments shall include payment of accrued interest on
the principal amount so prepaid, plus any charges owing under Section 2.10
hereof, and shall be applied to the payment of interest before application
to principal.
12. Section 3.2.3 of the Loan Agreement is hereby amended by deleting
the number "3.2.3" and substituting in lieu thereof the number "3.2.4".
13. Section 3.2.4 of the Loan Agreement is hereby amended by deleting
the number "3.2.4" and substituting in lieu thereof the number "3.2.5".
14. The financial covenants set forth in Section 8.3 shall be reviewed
by Borrower and Lender based upon the financial condition of Borrower upon the
consummation of the sale of the Vinyl Products Division and as projected by the
Borrower at that time. If within sixty (60) days of the date of this First
Amendment the Lender reasonably determines that modifications to such financial
covenants are necessary or desirable, the modified financial covenants, as
reasonably determined by Lender, shall be substituted for the financial
covenants in the Loan Agreement. During such sixty (60) day period Borrower
shall, in its regular monthly reports to Lender, notify Lender of any failure
to comply
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with any of the original financial convenants in the Loan Agreement. Lender
agrees that if such non-compliance is solely as a result of Borrower's sale of
its Vinyl Products Division, then Lender shall waive such non-compliance. If
the non- compliance is not solely a result of the Vinyl Products Division sale,
then Lender reserves its rights and shall have no obligation to waive such
non-compliance.
15. The Loan and Security Agreement is hereby amended by adding Section
3.9 thereto as follows:
3.9 ILLEGALITY. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, if (x) any change in any law or
regulation or in the interpretation thereof by any governmental
authority charged with the administration thereof shall make it
unlawful for Lender to make or maintain a LIBOR Rate Advance or to give
effect to its obligations as contemplated hereby with respect to a
LIBOR Rate Advance or (y) at any time Lender determines that the making
or continuance of any LIBOR Rate Advance has become impracticable as a
result of a contingency occurring after the date hereof which adversely
effects the London Interbank Market or the position of Lender in such
market, then, by written notice to Borrower, Lender may (i) declare
that LIBOR Rate Advances will not thereafter be made by Lender,
whereupon any request by Borrower for a LIBOR Rate Advance shall be
deemed a request for a Base RAte Advance unless Lender's declaration
shall be subsequently withdrawn; and (ii) require that all outstanding
LIBOR Rate Advances be converted to Base Rate Advances, in which event
all such LIBOR Rate Advances shall be automatically converted to Base
Rate Advances as of the date of Borrower's receipt of the aforesaid
notice from Lender.
16. Section 4.2.3 of the Loan Agreement is hereby amended by adding the
following sentence at the end thereof:
"Notwithstanding the foregoing, the Borrower may upon thirty
(30) days written notice to Lender reduce the amount of the. Total
Credit Facility in increments of $1,000,000 to an amount not less
than $15,000,000. Each such reduction shall be accompanied by
prepayment of Revolving Credit Loans, together with accrued
interest on the amount prepaid to the date of such prepayment, to
the extent that the outstanding principal amount of the Loans plus
the LC Amount exceed the Total Credit Facility as reduced."
17. The definition of Borrowing Base in Appendix A to the Loan and
Security Agreement is hereby amended by deleting the symbol and number
"$39,000,000" and substituting in lieu thereof the symbol and number
"$20,000,000"; and by deleting the symbol and number "$10,000,000" and
substituting in lieu thereof the symbol and number "$5,000,000".
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18. The definition of Total Credit Facility in Appendix A to the Loan
and Security Agreement is hereby amended by deleting the symbol and number
"$39,000,000" and. inserting in lieu thereof the symbol and number "$20,000,000
or such lesser amount as Borrower may elect pursuant to Section 4.2.3 of the
Agreement".
19. Appendix A, General Definitions, is hereby amended by inserting the
following definitions according to alphabetical order therein:
ADJUSTED LIBOR RATE - with respect to each Interest Period for
a LIBOR Rate Advance, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to the quotient of (a) the
LIBOR Rate in effect for such Interest Period divided by (b) a
percentage (expressed as a decimal) equal to 100% minus Statutory
Reserves.
ADVANCE - a Revolving Credit Loan, or portion thereof, or a
portion of the Term Loan, as the case may be, as provided under the
Agreement.
APPLICABLE LAW - all laws, rules and regulations applicable to
the Person, conduct, transaction, covenant or Loan Documents in
question, including, but not limited to, all applicable common law and
equitable principles; all provisions of all applicable state and
federal constitutions, statues, rules, regulations and orders of
governmental bodies; and all orders, judgments and decrees of all
courts and arbitrators.
BASE RATE ADVANCE - an Advance made or outstanding as a
Revolving Credit Loan or portion of the Term Loan, as the case may be,
bearing interest based on the Base Rate as provided in Section 2.1.1
hereof.
INTEREST PERIOD - as defined in Section 2.1.2.
LIBOR RATE - the rate, as determined by Lender, at which Dollar
deposits approximately equal in principal amount to the LIBOR Rate
Advance for which the LIBOR Rate is being determined and for a maturity
comparable to the Interest Period for which such LIBOR Rate will apply
is offered by the Bank in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two (2)
Business Days prior to the commencement of such Interest Period.
LIBOR RATE ADVANCE - an Advance made or outstanding as a
Revolving Credit Loan or a portion of the Term Loan, as the case may
be, bearing interest based on the applicable Adjusted LIBOR Rate as
provided in Section 2.1.1 hereof.
NOTICE OF BORROWING - as defined in Section 2.2(A) hereof.
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NOTICE OF CONVERSION/CONTINUATION - as defined in Section 3.1.1
hereof.
OVERADVANCE CONDITION - at any date, a condition such that the
principal amount of the Revolving Credit Loans outstanding on such date
exceeds the Borrowing Base on such date, other than due to Seasonal
Overadvances permitted under Section 1.1.2.
STATUTORY RESERVES - on any date, the percentage (expressed as
a decimal) established by the Board of Governors which is the then
stated maximum rate for all reserves (including, but not limited to,
any emergency, supplemental or other marginal reserve requirements)
applicable to any member bank of the Federal Reserve System in respect
to Eurocurrency Liabilities (or any successor category of liabilities
under Regulation D). Such reserve percentage shall include, without
limitation, those imposed pursuant to Regulation D. The Statutory
Reserves shall be adjusted automatically on and as of the effective
date of any change in such percentage.
B. REPRESENTATIONS AND WARRANTIES.
To induce Lender to enter into this First Amendment, Borrower, Parent
and Subsidiaries warrant, represent and covenant to Lender that:
1. ORGANIZATION AND QUALIFICATION. Each of Parent, Borrower and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation. Each of
Parent, Borrower and its Subsidiaries is duly qualified and is authorized to do
business and is in good standing as a foreign corporation in each state or
jurisdiction listed on Exhibit C to the Loan Agreement and in all other states
and jurisdictions in which the failure of - Parent or Borrower or any of its
Subsidiaries to be so qualified would have a material adverse effect on the
financial condition, business or Properties of Borrower or Parent, Borrower and
its Subsidiaries, taken as a whole.
2. CORPORATE POWER AND AUTHORITY. Each of Parent, Borrower and its
Subsidiaries is duly authorized and empowered to enter into, execute, deliver
and perform this First Amendment and each of the Loan Documents to which it is
a party. The execution, delivery and performance of this First Amendment and
each of the other Loan Documents have been duly authorized by all necessary
corporate action and do not and will not (i) require any consent or approval of
the shareholders of Parent or Borrower or any of its Subsidiaries; (ii)
contravene Parent's or Borrower's or any of its Subsidiaries' charter, articles
or certificate of incorporation or by-laws; (iii) violate, or cause Parent or
Borrower or any of its Subsidiaries to be in default under, any provision of
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award in effect having
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applicability to Parent or Borrower or any of its Subsidiaries; (iv) result in
a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which Parent or
Borrower or any of its Subsidiaries is a party or by which Parent or Borrower
or its Subsidiaries' Properties may be bound or affected; or (v) result in, or
require, the creation or imposition of any Lien (other than Permitted Liens)
upon or with respect to any of the Properties now owned or hereafter acquired
by Parent or Borrower or any of its Subsidiaries.
3. LEGALLY ENFORCEABLE AGREEMENT. This First Amendment is, and each of
the other Loan Documents when delivered under this First Amendment will be, a
legal, valid and binding obligation of each of Parent, Borrower and its
Subsidiaries executing such document, enforceable against such party in
accordance with its respective terms.
4. NO MATERIAL ADVERSE CHANGE. Since the date of the last financial
statements provided by the Borrower to the Lender, there has been no material
adverse change in the condition, financial or otherwise, of Parent, Borrower
and such other Persons as shown on the Consolidated balance sheet as of such
date and no change in the aggregate value of Equipment and real Property owned
by Borrower or such other Persons, except changes in the ordinary course of
business, none of which individually or in the aggregate has been materially
adverse.
5. HARRIS BANK LOCK BOX. All payment items received into Lock Box
number 95932 of the Harris Trust and Savings Bank represent the proceeds of
accounts receivable related solely to the sales of inventory of the Vinyl
Products Division of Bird Incorporated.
6. PROPERTY OF PARENT IN THE STATE OF KENTUCKY. Parent has no right,
title or interest in any property, real or personal, located in the State of
Kentucky.
7. CONTINUOUS NATURE OF REPRESENTATIONS AND WARRANTIES. Each
representation and warranty contained in the Loan Agreement and the other Loan
Documents remains accurate, complete and not misleading on the date of this
First Amendment, except for representations and warranties that are specific to
a prior date and changes in the nature of Parent's or Borrower's or its
Subsidiaries' business or operations that would render the information in any
exhibit attached thereto either inaccurate, incomplete or misleading, so long
as Lender has consented to such changes or such changes are expressly permitted
by this First Amendment.
C. CONDITIONS PRECEDENT.
Notwithstanding any other provision of this First Amendment or any of
the other Loan Documents, and without affecting in any manner the rights of
Lender under the other sections of this
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First Amendment, this First Amendment shall not be effective as to Lender
unless and until each of the following conditions has been and continues to be
satisfied:
1. DOCUMENTATION. Lender shall have received, in form and substance
satisfactory to Lender and its counsel, a duly executed copy of this First
Amendment, together with such additional documents, instruments and
certificates as Lender and its counsel shall require in connection therewith
from time to time, all in form and substance satisfactory to Lender and its
counsel.
2. NO DEFAULT. No Default or Event of Default shall exist.
3. NO LITIGATION. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any
court, governmental agency or legislative body to enjoin, restrain or prohibit,
or to obtain damages in respect of, or which is related to or arises out of the
Loan Agreement or this First Amendment or the consummation of the transactions
contemplated thereby or hereby.
F. ACKNOWLEDGEMENT OF OBLIGATIONS.
Borrower hereby (1) reaffirms and ratifies all of the promises,
agreements, covenants and obligations to Lender under or in respect of the Loan
Documents as amended hereby and (2) acknowledges that it is unconditionally
liable for the punctual and full payment of all Obligations, including, without
limitation, all charges, fees, expenses and costs (including attorneys' fees
and expenses) .under the Loan Documents, as amended hereby, and that it has no
defenses, counterclaims or setoffs with respect to full, complete and timely
payment and performance of all Obligations.
G. CONFIRMATION OF LIENS.
Borrower and Guarantors acknowledge, confirm and agree that the
Loan Documents, as amended hereby, are effective to grant to Lender duly
perfected, valid and enforceable first priority security interests and liens in
the Collateral described therein and that the locations for such Collateral
specified in the Loan Documents have not changed. Borrower and Guarantors
further acknowledge and agree that all Obligations of Borrower and Guarantors
are and shall be secured by the Collateral.
H. CONFIRMATION BY GUARANTORS.
The Guarantors, for value received, hereby assent to the Borrower's
execution and delivery of this First Amendment, and to the performance by the
Borrower of its agreements and obligations hereunder. This First Amendment and
the performance or consummation of any transaction or matter contemplated under
this First Amendment, shall not limit, restrict, extinguish or otherwise impair
any of the Guarantors' liabilities to Lender with respect to the payment and
other performance of the
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obligations of any other Guarantors pursuant to the continuing Guaranties,
dated November 30, 1994, executed for the benefit of Lender. The Guarantors
acknowledge that they are unconditionally liable to Lender for the full and
complete payment of all Obligations including, without limitation, all
charges, fees, expenses and costs (including attorney's fees and expenses)
under the Loan Documents and that the Guarantors have no defenses,
counterclaims or setoffs with respect to full, complete and timely payment of
any and all Obligations.
I. PAYMENT OF EXPENSES.
Borrower hereby acknowledges its obligation to pay to Lender all
attorneys' fees and costs incurred in connection with any revisions to or
further preparation of this First Amendment incurred after November 30, 1994,
as set forth in Section 2.8 of the Loan Agreement.
J. MISCELLANEOUS.
Except as set forth herein, the undersigned confirm and agree that the
Loan Documents remain in full force and effect without amendment or
modification of any kind. The execution and delivery of this First Amendment by
Lender shall not be construed as a waiver by Lender of any Event of Default
under the Loan Documents. This First Amendment, together with the Loan
Documents, constitute the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior dealings, correspondence,
conversations or communications between the parties with respect to the subject
matter hereof. This First Amendment and the transactions hereunder shall be
deemed to be consummated in the Commonwealth of Massachusetts and the other
Loan Documents shall be governed by and interpreted in accordance with the laws
of that state. This First Amendment and the agreements, instruments and
documents entered into pursuant hereto or in connection herewith shall be "Loan
Documents" under and as defined in the Loan Agreement.
Executed under seal on the date set forth above.
ATTEST: BIRD INCORPORATED
___________________________ By:__________________________________
Name:________________________________
Title: VP Finance & Administration
BIRD CORPORATION
___________________________ By:__________________________________
Name:________________________________
Title: VP Finance & Administration
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BIRD-KENSINGTON HOLDING CORP.
------------------------------ By:
--------------------------
Name:
------------------------
Title: VP Finance & Admin.
BIRD ATLANTIC CORPORATION
------------------------------ By:
--------------------------
Name:
------------------------
Title: VP Finance & Admin.
BIRD ENVIRONMENTAL TECHNOLOGIES,
INC.
------------------------------ By:
--------------------------
Name:
------------------------
Title: VP Finance & Admin.
RIVER PARK, INC.
------------------------------ By:
--------------------------
Name:
------------------------
Title: VP Finance & Admin.
RIVER PARK ASSOCIATES LIMITED
PARTNERSHIP
By: RIVER PARK, INC.
its General Partner
------------------------------ By:
--------------------------
Name:
------------------------
Title: VP Finance & Admin.
Accepted in Boston, Massachusetts
on _____________ , 1995
SHAWMUT CAPITAL CORPORATION
By: Jeffrey P. Hoffman
Name: Jeffrey P. Hoffman
Title: Vice President
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COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. March 8, 1995
Then personally appeared before me the above-named Joseph M.
Grigelevich, Jr., the V.P. of Finance & Admin. of Bird Incorporated, Bird
Corporation, Bird-Kensington Holding Corp., Bird Atlantic Corporation, Bird
Environmental Technologies, Inc., and River Park, Inc. and acknowledged the
foregoing instrument to be such person's free act and deed and the free act
and deed of said corporations.
/s/ Donald L. Sloper, Jr.
-----------------------------------
DONALD L. SLOPER, JR.
NOTARY PUBLIC
My Commission Expires June 15, 2001
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EXHIBIT 4(a)(4)
AMENDED AND RESTATED
SECURED PROMISSORY TERM NOTE-B
$5,000,000.00 March 8, 1995
Boston, Massachusetts
FOR VALUE RECEIVED, the undersigned (hereinafter "Borrower"), hereby
promises to pay to the order of SHAWMUT CAPITAL CORPORATION, INC., a
Connecticut corporation (hereinafter "Lender"), in such coin or currency of the
United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, the principal sum of FIVE MILLION
DOLLARS ($5,000,000.00), together with interest from and after the date hereof
on the unpaid principal balance outstanding at a rate per annum equal to the
applicable rate indicated below: (i) For each Base Rate Advance, the Base Rate,
and (ii) For each LIBOR Rate Advance, the relevant Adjusted LIBOR Rate for the
applicable Interest Period selected by Borrower plus 275 basis points.
This Secured Promissory Note (the "Note") is one of the Term Notes
referred to in, and is issued pursuant to, that certain Loan and Security
Agreement between Borrower and Lender dated November 30, 1994, as amended by
the First Amendment to Loan Agreement dated the date hereof ( hereinafter, as
amended from time to time, the "Loan Agreement"), and is entitled to all of the
benefits and security of the Loan Agreement. All of the terms, covenants and
conditions of the Loan Agreement and the Security Documents are hereby made a
part of this Note and are deemed incorporated herein in full. All capitalized
terms used herein, unless otherwise specifically defined in this Note, shall
have the meanings ascribed to them in the Loan Agreement.
The rate of interest in effect hereunder for any Base Rate Advance
shall increase or decrease by an amount equal to any increase or decrease in
the Base Rate, effective as of the opening of business on the date that any
such change in the Base Rate occurs. Interest on all Advances hereunder shall
be computed in the manner provided in subsection 2.2 of the Loan Agreement.
For so long as no Event of Default shall have occurred the principal
amount and accrued interest of this Note shall be due and payable on the dates
and in the manner hereinafter set forth:
(a) Interest shall be due and payable monthly, in arrears, on
the first day of each month, commencing on April 1, 1995, and continuing until
such time as the full principal balance, together with all other amounts owing
hereunder, shall have been paid in full;
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(b) Principal shall be due and payable monthly commencing on January 1,
1996, and continuing on the first day of each month thereafter to and
including the first day of November 1, 1996, in installments of $62,500.00
each; and
(c) Principal shall be due and payable monthly commencing on December
1, 1996 and continuing on the first day of each month thereafter to and
including the first day of November 1, 1997, in installments of $71,416.67
each; and
(d) The entire remaining principal amount then outstanding, together
with any and all other amounts due hereunder, shall be due and payable on
November 30, 1997.
Notwithstanding the foregoing, the entire unpaid principal balance and accrued
interest on this Note shall be due and payable immediately upon any termination
of the Loan Agreement pursuant to Section 4 thereof.
This Note shall be subject to mandatory prepayment in accordance with
the provisions of Section 3.3 of the Loan Agreement. Borrower may also
terminate the Loan Agreement and, in connection with such termination, prepay
this Note in the manner provided in Section 4 of the Loan Agreement. The
prepayment of LIBOR Rate Advances shall be subject to the provisions of
Sections 3.2.3 and 2.10 of the Loan Agreement.
Upon the occurrence of an Event of Default, Lender shall have all of
the rights and remedies set forth in Section 10 of the Loan Agreement.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, Borrower, for itself and its legal representatives, successors
and assigns, expressly waives presentment, demand, protest, notice of dishonor,
notice of non- payment, notice of maturity, notice of protest, presentment for
the purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption or insolvency laws.
Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or remaining
provisions of this Note. No delay or failure on the part of Lender in the
exercise of any right or remedy hereunder shall operate as a waiver thereof,
nor as an acquiescence in any default, nor shall any single or partial exercise
by Lender of any right or remedy preclude any other right or remedy. Lender, at
its option, may enforce its rights against any collateral securing this Note
without enforcing its rights against Borrower, any guarantor of the
indebtedness evidenced hereby or any other property or indebtedness due or to
become due to Borrower.
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Borrower agrees that, without releasing or impairing Borrower's liability
hereunder, Lender may at any time release, surrender, substitute or
exchange any collateral securing this Note and may at any time release any
party primarily or secondarily liable for the indebtedness evidenced by this
Note.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
and delivered in Boston, Massachusetts, on the date first above written.
ATTEST: BIRD INCORPORATED
a Massachusetts corporation
("Borrower")
/s/ Margaret M. Doak By: Joseph M. Grigelevich, Jr.
----------------------------- ---------------------------
Asst. Clerk Title: VP Finance & Admin.
[CORPORATE SEAL]
COMMONWEALTH OF MASSACHUSETTS
Norfolk, ss. March 8, 1995
Then personally appeared before me the above-named Joseph M.
Grigelevich, Jr., the VICE PRES. FIN. & ADM. of Bird Incorporated and
acknowledged the foregoing instrument to be such person's free act and deed
and the free act and deed of said corporation.
/s/ Donald L. Sloper, Jr.
------------------------
Notary Public
DONALD L. SLOPER, JR.
NOTARY PUBLIC
MY COMMISSION EXPIRES JUNE 15, 2001
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