THIRD AMENDMENT
TO REVOLVING NOTE
THIS THIRD AMENDMENT TO REVOLVING NOTE ("Third Amendment"), made as of
January 24, 2001, by and among United Industrial Corporation, a Delaware
corporation, having an address of 570 Lexington Avenue, New York, New York
10022, and AAI Corporation, AAI Engineering Support, Inc., AAI/ACL Technologies,
Inc., AAI/ACL Technologies Europe Limited, Detroit Stoker Company, Midwest
Metallurgical Laboratory, 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, as amended by First Amendment to Revolving
Note, dated as of March 31, 2000 and as further amended by a Second
Amendment to Revolving Note, dated as of November 14, 2000 (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 Term Loan Agreement and Security Agreement,
dated June 11, 1997, as amended by that certain First Amendment to
Revolving Line of Credit Loan Agreement, Term Loan Agreement and
Security Agreement dated as of October 1, 1998, and by that certain
Second Amendment to Revolving Line of Credit Loan Agreement Term
Loan Agreement and Security Agreement dated as of December 31, 1998,
and by that certain Third Amendment to Revolving Line of Credit Loan
Agreement, Term Loan Agreement and Security Agreement, made as of
March 31, 2000, and by that certain Fourth Amendment to Revolving
Line of Credit Loan Agreement, Term Loan Agreement and Security
Agreement, dated as of September 21, 2000, and by that certain Fifth
Amendment to Revolving Line of Credit Loan Agreement, Term Loan
Agreement and Security Agreement, dated as of November 14, 2000, and
by that certain Sixth Amendment to Revolving Line of Credit Loan
Agreement, Term 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 increasing the principal amount of the Revolving Note
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 Third Amendment but not defined herein have
the meanings ascribed to them in the Revolving Note.
2. The maximum principal sum owing under the Revolving Note is hereby
modified and increased from Seventeen Million, Five Hundred Thousand
Dollars ($17,500,000.00) to Twenty Five Million Three Hundred Forty Two
Thousand and 00/100 Dollars ($25,342,000.00) (the "Principal Sum"), or so
much thereof as has been or may be advanced or readvanced to or for the
account of the Borrower pursuant to the terms and conditions of the Loan
Agreement, together with interest thereon at the rate or rates set forth
in the Revolving Note.
3. Except as modified by this Third 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 Third Amendment.
4. In consideration of Lender's agreement to this Third 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 Third Amendment arising
out of or relating to the Loan Agreement or the Revolving Note, as amended
by this Third 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
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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 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 Third 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,
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but shall be confirmed promptly with a counterpart containing an original
signature.
BORROWER: UNITED INDUSTRIAL CORPORATION
By /s/ James Perry
---------------------------------
James Perry, Vice President
AAI CORPORATION
By /s/ James Perry
---------------------------------
James Perry, Vice President
AAI ENGINEERING SUPPORT, INC.
By: /s/ Richard Erkeneff
---------------------------------
Richard Erkeneff, President
AAI/ACL TECHNOLOGIES, INC.
By: /s/ Thomas E. Wurzel
---------------------------------
Thomas E. Wurzel, President
AAI/ACL TECHNOLOGIES EUROPE LIMITED
By: /s/ Thomas E. Wurzel
---------------------------------
Thomas E. Wurzel, President
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
AAI MICROFLITE Simulation International
Corporation
By: /s/ Stanley J. Mecinski, Jr.
---------------------------------
Stanley J. Mecinski, Jr.
Assistant Secretary and Assistant
Treasurer
CONSENTED TO: FIRST UNION COMMERCIAL CORPORATION
By: /s/ Barbara Van Meerten
----------------------------------------
Barbara Van Meerten, Vice President
STATE OF MARYLAND )
COUNTY/CITY OF HARTFORD )To Wit:
I Diane Richardson, 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 January 26, 2001, as Vice President of United
Industrial Corporation, Vice President of AAI Corporation, Vice President of
Detroit Stoker Company, and Vice President of Midwest Metallurgical Laboratory,
Inc., has acknowledged the same before me in my jurisdiction aforesaid.
Given under my hand and seal this 26th day of January, 2001.
/s/ Diane Richardson
--------------------
Notary Public
My Commission Expires: September 28, 2004
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STATE OF MARYLAND )
COUNTY/CITY OF HARTFORD )To Wit:
I Diane Richardson, 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 January 26, 2001, as President of AAI Engineering Support,
Inc., has acknowledged the same before me in my jurisdiction aforesaid.
Given under my hand and seal this 26th day of January, 2001.
/s/ Diane Richardson
--------------------
Notary Public
My Commission Expires: September 28, 2004
STATE OF MARYLAND )
COUNTY/CITY OF HARTFORD )To Wit:
I Diane Richardson, a Notary Public in and for the jurisdiction
aforesaid, do certify that Thomas E. Wurzel, whose name is signed to the writing
above, bearing date as of January 26, 2001, as President of AAI/ACL
Technologies, Inc., and President of AAI/ACL Technologies Europe Limited has
acknowledged the same before me in my jurisdiction aforesaid.
Given under my hand and seal this 26th day of January, 2001.
/s/ Diane Richardson
--------------------
Notary Public
My Commission Expires: September 28, 2004
STATE OF MARYLAND )
COUNTY/CITY OF HARTFORD )To Wit:
I Diane Richardson, a Notary Public in and for the jurisdiction
aforesaid, do certify that Stanley J. Mecinski, Jr., whose name is signed to the
writing above, bearing date as of January 26, 2001, as Assistant Secretary and
Assistant Treasurer of AAI MICROFLITE Simulation International Corporation has
acknowledged the same before me in my jurisdiction aforesaid.
Given under my hand and seal this 26th day of January, 2001.
/s/ Diane Richardson
--------------------
Notary Public
My Commission Expires: September 28, 2004
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