FIRST AMENDMENT TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
(this "Amendment") is made as of January 31, 2003 by and between LaSalle Bank
National Association, a national banking association ("Bank"), and CFC
International, Inc., a Delaware corporation ("Borrower").
BACKGROUND
A. Borrower and Bank are parties to an Amended and Restated Loan and
Security Agreement dated as of May 17, 2001 (the "Loan Agreement"), pursuant to
which Bank has made certain loans, advances and other financial accommodations
to Borrower, and as security therefor, Borrower has granted to Bank a lien on
certain real and personal property.
B. Unless otherwise defined, capitalized terms used in this Amendment shall
have the meanings given to them in the Loan Agreement.
C. Borrower has requested that Bank, among other things, (i) extend the
maturity of the Revolving Loan, (ii) extend the maturity of the Term Loan and
the Second Term Loan, (iii) change the interest rate payable on the Term Loan
and the Second Term Loan and (iv) modify certain other terms of the Loan
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in consideration of the
foregoing and the premises herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1 AMENDMENT.
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1.1 Section 1.1 of the Loan Agreement is hereby amended by amending and
restating the following definitions appearing therein in their entirety to read
as follows:
"Revolving Loan Maturity Date" shall mean April 1, 2005.
"Second Term Loan Maturity Date" shall mean January 31, 2008, unless
extended by Bank pursuant to any modification, extension or renewal by
Borrower and accepted by Bank in its sole and absolute discretion in
substitution for the Second Term Note.
"Swap Rate" shall mean with respect to either the Term Loan and/or the
Second Term Loan, the "Fixed Rate" under (and as such term is defined in)
the Term Loan Interest Rate Agreement or the Second Term Loan Interest Rate
Agreement, as applicable.
"Term Loan Maturity Date" shall mean January 31, 2008, unless extended
by Bank pursuant to any modification, extension or renewal by Borrower and
accepted by Bank in its sole and absolute discretion in substitution for
the Term Note.
1.2 Section 1.1 of the Loan Agreement is hereby amended by inserting the
following new definitions therein in their appropriate alphabetical positions to
read as follows:
"Account", "Account Debtor", "Chattel Paper", "Commercial Tort
Claims", "Deposit Accounts", "Documents", "Electronic Chattel Paper",
"Equipment", "General Intangibles", "Goods", "Instruments", "Inventory",
"Investment Property", "Letter-of-Credit Right", "Proceeds" and "Tangible
Chattel Paper" shall have the respective meanings assigned to such terms in
the Illinois Uniform Commercial Code, as the same may be in effect from
time to time.
"Bank Cost of Funds" means, with respect to the Term Loan or Second
Term Loan for which the Borrower shall have elected the Fixed Rate interest
option, Bank's cost for a matched fund deposit in the notional amount and
maturity corresponding to the Term Loan or Second Term Loan, as applicable,
as of the date such Fixed Rate is designated by Bank.
"Fixed Rate" means either the Second Term Loan Fixed Rate or the Term
Loan Fixed Rate, as applicable.
"Real Property" means the real property owned by the Borrower and
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
"Second Term Loan Fixed Rate" means a fixed rate of interest to be
applicable to the Second Term Loan upon the effectiveness of the election
of such option by the Borrower in accordance with Section 2.3.3, which rate
shall be determined in accordance with Annex B attached hereto based on the
Borrower's ratio of Liabilities to Tangible Net Worth as in effect on the
effective date of such election (and as determined in accordance with
Section 8.2).
"Second Term Loan Interest Rate Agreement" means an Interest Rate
Agreement entered into between Borrower and Bank in the notional amount and
maturity corresponding to that of the Second Term Loan as of the effective
date of the Second Term Loan Interest Rate Agreement, which agreement shall
be in form and substance satisfactory to Bank and shall only become
effective upon the satisfaction by Borrower or waiver by Bank of the
conditions specified therein.
"Term Loan Fixed Rate" means a fixed rate of interest to be applicable
to the Term Loan upon the effectiveness of the election of such option by
the Borrower in accordance with Section 2.2.3, which rate shall be
determined in accordance with Annex A attached hereto based on the
Borrower's ratio of Liabilities to Tangible Net Worth as in effect on the
effective date of such election (and as determined in accordance with
Section 8.2).
"Term Loan Interest Rate Agreement" means an Interest Rate Agreement
entered into between Borrower and Bank in the notional amount and maturity
corresponding to that of the Term Loan as of the effective date of the Term
Loan Interest Rate Agreement, which agreement shall be in form and
substance satisfactory to Bank and shall only become effective upon the
satisfaction by Borrower or waiver by Bank of the conditions specified
therein.
"Uniform Commercial Code" means the Uniform Commercial Code in effect
from time to time in the State of Illinois.
1.3 Section 2.2.3 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.2.3 Term Loan Interest Rate. The principal amount from time to time
outstanding under the Term Loan shall bear interest at one of the following
rates: (i) the Prime Rate or (ii)(a) from and after the election of
Borrower with respect to all, but not less than all, of the outstanding
principal balance of the Term Loan made upon at least two (2) Banking Days'
prior written notice to Bank, the Term Loan Fixed Rate or (b) with respect
to all, but not less than all of the outstanding principal balance of the
Term Loan, subject to, and from and after the effectiveness of, the Second
Term Loan Interest Rate Agreement, the Swap Rate; it being agreed that any
such election by the Borrower of the Term Loan Fixed Rate or the Swap Rate
shall be final and non-revocable and Borrower shall have no right to
terminate such election prior to the Term Loan Maturity Date. Interest
shall be calculated on the basis of a year consisting of 360 days and shall
be paid for the actual number of days elapsed. Any amount of principal or
interest on the Term Loan which is not paid when due, whether at stated
maturity, by acceleration or otherwise shall bear interest payable on
demand at the Default Rate."
1.4 Section 2.2.4 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.2.4 Repayment or Principal. Payments of principal amounts due under
the Term Note shall be made in sixty (60) equal monthly installments of
principal, each in the amount of Thirteen Thousand Fifty-One and No/100
Dollars ($13,051), plus interest, commencing on February 1, 2003 and
continuing on the first day of each month thereafter, unless such day is
not a Business Day, then on the next succeeding Business Day, and a final
installment of the then outstanding principal balance together with all
interest accrued thereon on the Term Loan Maturity Date. Principal amounts
repaid on the Term Note may not be borrowed again."
1.5 Section 2.3.1 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.3.1 Increase of Second Term Loan. The parties acknowledge that Bank
has heretofore made a term loan to Borrower under the Original Agreement,
the outstanding principal amount of which as of December 30, 2002 was
approximately $4,684,029. Bank has agreed to increase the outstanding
principal amount of the Second Term Loan, the principal amount of which, as
of the date hereof after giving effect to such increase, shall be
$4,806,574 (the "Second Term Loan"). The increase of the Second Term Loan
shall constitute a part of the "Second Term Loan" under the Original
Agreement, and all Collateral securing the Obligations thereunder continue
to secure the Obligations hereunder with the same priority and effective
dates of recording or filing for the Original Agreement. The Second Term
Loan shall be subject to the terms and conditions of this Agreement and the
other Loan Documents."
1.6 Section 2.3.2 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.3.2 Second Term Note; Repayment of Principal. In order to evidence
the Second Term Loan on the date hereof, Borrower will execute and deliver
a promissory note, in the form of Exhibit C (together with any and all
amendments, modifications, supplements, substitutions, renewals,
extensions, and restatements, thereof and therefor, the "Second Term
Note"), repayable and maturing in accordance with and bearing interest as
set forth in this Agreement. Payments of principal amounts due under the
Second Term Note shall be made in sixty (60) equal monthly installments of
principal, each in the amount of Sixty-Six Thousand Seven Hundred Fifty and
No/100 Dollars ($66,750), plus interest, commencing on February 1, 2003 and
continuing on the first day of each month thereafter, unless such day is
not a Business Day, then on the next succeeding Business Day, and a final
installment of the then outstanding principal balance together with all
interest accrued thereon on the Second Term Loan Maturity Date. Principal
amounts repaid on the Second Term Note may not be borrowed again."
1.7 Section 2.3.3 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.3.3 Second Term Loan Interest Rate. The principal amount from time
to time outstanding under the Second Term Loan shall bear interest at one
of the following rates: (i) the Prime Rate or (ii) (a) from and after the
election of Borrower with respect to all, but not less than all, of the
outstanding principal balance of the Second Term Loan made upon at least
two (2) Banking Days' prior written notice to Bank, the Second Term Loan
Fixed Rate or (b) with respect to all, but not less than all of the
outstanding principal balance of the Second Term Loan, subject to, and from
and after the effectiveness of, the Term Loan Interest Rate Agreement, the
Swap Rate; it being agreed that any such election by the Borrower of the
Term Loan Fixed Rate or the Swap Rate shall be final and Borrower shall
have no right to terminated such election prior to the Second Term Loan
Maturity Date. Any amount of principal or interest on the Second Term Loan
which is not paid when due, whether at stated maturity, by acceleration or
otherwise shall bear interest payable on demand at the Default Rate."
1.8 Section 2.5.1 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.5.1 Prepayment of Term Loan or Second Term Loan. The principal
balance of the Term Loan and the Second Term Loan may be prepaid in whole
or in part at any time without premium or penalty except as provided in
Sections 2.5.2 and 2.5.3. Any prepayment of the Term Loan or the Second
Term Loan (i) shall include accrued interest on the amount of such
prepayment to the date of such prepayment, (ii) shall be in a minimum
amount of $10,000 or a multiple of $1,000 in excess thereof and (iii) shall
to the extent the Term Loan is the Second Term Loan is/are bearing interest
at the Fixed Rate or the Swap Rate, include any Make Whole Premium Amount
or Interest Charges associated with respect to such prepayment as provided
in Sections 2.5.2 and 2.5.3.
1.9 Section 2.5.2 of the Loan Agreement shall be amended and restated in
its entirety to read as follows:
"2.5.2 Prepayment of Fixed Rate Loans. In connection with any
prepayment, in whole or in part, of the Term Loan or the Second Term Loan
which is then bearing interest at the Fixed Rate, Borrower shall pay to
Bank as provided hereunder, a "Make Whole Premium Amount" if the
"Reinvestment Yield" (as hereinafter defined) is less than Bank's matched
cost for the Loan being prepaid. The "Make Whole Premium Amount" shall
equal the positive difference between two sums determined by subtracting
the second sum from the first sum, each sum representing the total
cumulative present value of each payment of principal being prepaid. The
first sum shall be calculated by discounting each such prepaid amount
utilizing an interest factor equal to Bank's matched cost for the Loan
being prepaid. The "Reinvestment Yield" shall be defined as the sum of the
U.S. Treasury Rate for an issue with comparable average life to that
portion of the Term Loan or the Second Term Loan being prepaid plus the
corresponding swap spread as published in Bloomberg's Financial Markets
Commodities News. In the absence of material error, a certificate from Bank
specifying such losses, costs or expenses shall be conclusive and binding
on all parties. The Term Loan and/or the Second Term Loan, as applicable,
shall be conclusively deemed to have been funded on behalf of Bank in the
manner specified by it in such calculations by the purchase of a matched
fund deposit corresponding in amount and maturity to such Term Loan or
Second Term Loan."
1.10 Section 2.5.3 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
"2.5.3 Prepayment of Swap Rate Loans. Notwithstanding anything
contained herein to the contrary, upon the prepayment of any amounts owing
under Loans in respect of which interest is calculated pursuant to the Swap
Rate for any reason whatsoever, including upon the acceleration thereof
pursuant to Section 10.1 or any mandatory or voluntary prepayment pursuant
to this Section 2.5, such prepayment shall be accompanied by the payment of
all settlement amounts, fees, costs and expenses, if any, associated with
the prepayment of such Loans required to be paid by the Borrower under the
applicable Term Loan Interest Rate Agreement or Second Term Loan Interest
Rate Agreement."
1.11 Section 2.5 of the Loan Agreement is hereby amended to add a new
Section 2.5.4 to read as follows:
"2.5.4 Application of Payments and Prepayments. Any payments made by
Borrower under this Agreement, the Notes or any of the other Loan Documents
shall be applied to Obligations owing as of the date of payment in the
following order: (i) to any expenses of Bank incurred in connection with
this Agreement; (ii) settlement amounts, fees, costs and expenses, if any
from prepayment of Loans bearing interest at the Swap Rate; (iii) Make
Whole Premium Amounts due from the prepayment of Loans bearing interest at
a Fixed Rate, (iv) to interest accrued pursuant to the terms of the Notes;
(v) to the principal balance of the Revolving Loans; and (vi) to the
principal balances of the Term Loan and Second Term Loan in inverse order
of maturity."
1.12 Revised Article 9 Collateral Amendments. To comport with Revised
Article 9 of the Uniform Commercial Code, effective in Illinois from and after
July 1, 2001, the following amendments are hereby made to the Loan Agreement:
(a) The definition of "Collateral" in the Loan Agreement
is hereby amended to include and add as additional
items or descriptions of Collateral, the Collateral
set forth on Schedule A.
(b) Borrower authorizes Bank to file UCC financing
statements and amendments to UCC financing statements
and other filings or recordings in all jurisdictions
where Bank determines appropriate without any
Borrower's signature, and authorizes Bank to describe
the Collateral in such financing statements in any
manner Bank determines appropriate, including
describing it as all assets, personal property,
fixtures, rights and interests of the applicable
Borrower, now existing or hereafter arising or
acquired and wherever located.
Borrower acknowledges and agrees that any term
describing Collateral in the Loan Agreement or any
other Loan Document or in any UCC financing statement
or other filing or recording which is susceptible of
different scope or meaning, depending upon which
version of the Uniform Commercial Code is used or
applied, shall be given the broadest and most
inclusive definition so as to encompass the greatest
amounts, items, descriptions, or types of Collateral.
Notwithstanding the foregoing or any other provision
of this Amendment, nothing in this Amendment shall be
deemed to expand or increase the items or scope of,
or criteria for, or change the definition of
"Eligible Accounts," "Eligible Inventory" or the
"Revolving Loan Borrowing Base". In particular the
term "Eligible Accounts" will continue to exclude
Accounts other than those arising from the actual
sale of Goods in the ordinary course of Borrower's
business which meet the eligibility requirements in
the definition of "Eligible Accounts."
SECTION 2 REPRESENTATIONS AND WARRANTIES.
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Borrower represents and warrants to Bank that:
2.1 Compliance with Loan Agreement. On the date hereof, Borrower is in
compliance with the terms and provisions set forth in the Loan Agreement, and no
Event of Default specified in Section 9 of the Loan Agreement nor any event
which would, upon notice or lapse of time, or both, constitute such an Event of
Default, has occurred.
2.2 Representations and Warranties. On the date hereof, the representations
and warranties and covenants set forth in the Loan Agreement and the other Loan
Documents are true and correct with the same effect as though such
representations and warranties and covenants had been made on the date hereof,
except to the extent that such representations and warranties and covenants
expressly relate to an earlier date. Borrower further represents and warrants
that none of the proceeds of any Revolving Loan will be used, directly or
indirectly, to purchase or carry "margin stock" within the meaning of Regulation
U of the Federal Reserve Board.
2.3 Authority of Borrower. Borrower has full power and authority to enter
into this Amendment, to make the borrowings under the Loan Agreement as amended
by this Amendment, and to incur and perform the obligations provided for under
the Loan Agreement and this Amendment, all of which have been duly authorized by
all proper and necessary corporate action. No consent or approval of
stockholders or of any public authority or regulatory body is required as a
condition to the validity or enforceability of this Amendment.
2.4 Amendment as Binding Agreement. This Amendment constitutes the valid
and legally binding obligation of Borrower, fully enforceable against Borrower,
in accordance with its terms.
2.5 No Conflicting Agreements. The execution and performance by Borrower of
this Amendment will not (i) violate any provision of law, any order of any court
or other agency of government, or the Certificate of Incorporation or By-Laws of
Borrower, or (ii) violate any indenture, contract, agreement or other instrument
to which Borrower is a party, or by which its property is bound, or be in
conflict with, result in a breach of or constitute (with due notice and/or lapse
of time) a default under any such indenture, contract, agreement or other
instrument or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of
Borrower.
SECTION 3 CONDITIONS PRECEDENT.
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The agreement by Bank to amend the Loan Agreement is subject to the
following conditions precedent:
3.1 Borrower shall have delivered to Bank an executed copy of this
Amendment.
3.2 Borrower shall have delivered to Bank an Amended and Restated Revolving
Note made by Borrower and payable to the order of Bank, in the form of Exhibit A
attached hereto.
3.3 Borrower shall have delivered to Bank an Amended and Restated Term Note
made by Borrower and payable to the order of Bank, in the form of Exhibit B
attached hereto.
3.4 Borrower shall have delivered to Bank an Amended and Restated Second
Term Note made by Borrower and payable to the order of Bank, in the form of
Exhibit C attached hereto.
3.5 Borrower shall have executed and delivered to Bank an Eighth Amendment
to Mortgage and Assignment of Rents and Leases, in the form of Exhibit D
attached hereto.
3.6 Bank shall have received each of the instruments, documents and
agreements set forth on the Loan Closing Checklist set forth in Exhibit E
attached hereto.
3.7 Bank shall have received, in form and substance satisfactory to Bank,
each and every agreement, document, note, release, guaranty, certificate,
notice, affidavit, exhibit, schedule, resolution, legal opinion, assignment,
security agreement, or financing statement, which Bank may reasonably request
from Borrower to effect the intent of this Amendment.
3.8 No Event of Default under Section 9 of the Loan Agreement or event or
condition which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default, has occurred or is continuing.
SECTION 4 REAFFIRMATION.
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Borrower hereby expressly reaffirms and assumes all of Borrower's
obligations and liabilities to Bank as set forth in the Loan Agreement and the
other Loan Documents and agrees to be bound by and abide by and operate and
perform under and pursuant to and comply fully with all of the terms,
conditions, provisions, agreements, representations, undertakings, warranties,
indemnities, grants of security interests and covenants contained in the Loan
Agreement and the other Loan Documents, in so far as such obligations and
liabilities may be modified by this Amendment, as though such Loan Agreement and
Loan Documents were being re-executed on the date hereof, except to the extent
that such terms expressly relate to an earlier date. Borrower ratifies, confirms
and affirms without condition, all liens and security interests granted to Bank
pursuant to the Loan Agreement and the other Loan Documents (including but not
limited all the liens and security interests granted to Bank under the Security
Agreement, the Mortgage and the financing statements) and such liens and
security interests shall continue to secure the Obligations, including but not
limited to, Loans made by Bank to the Borrower under the Loan Agreement as
amended by this Amendment, and all extensions renewals, refinancings, amendments
or modifications of any of the foregoing.
SECTION 5 GENERAL PROVISIONS.
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5.1 No Changes. Except as expressly provided in this Amendment, the terms
and provisions of the Loan Agreement shall remain in full force and effect and
are hereby affirmed, confirmed and ratified in all respects.
5.2 Attorneys Fees and Costs. In addition to the restructuring fee
described above, Borrower agrees to reimburse Bank for all of its out of pocket
legal fees and expenses incurred in the preparation and documentation of this
Amendment and related documents.
5.3 Governing Law. This Amendment shall be construed in accordance with and
governed by the internal laws (as distinguished from the conflicts of law
provisions) of the State of Illinois.
5.4 Counterparts. This Amendment may be executed in any number of
counterparts.
5.5 References. On or after the effective date hereof, each reference in
the Loan Agreement or any of the Loan Documents to this "Agreement" or words of
like import, shall unless the context otherwise requires, be deemed to refer to
the Loan Agreement as amended hereby.
5.6 No Waiver. No failure on the part of Bank to exercise, and no delay in
exercising, any right under the Loan Agreement or any Loan Documents or under
this Amendment shall operate as a waiver thereof; nor shall any single or
partial exercise of any right under the Loan Agreement or any other Loan
Document preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided in the Loan Documents are cumulative and are
not exclusive of any remedies provided by law or equity.
5.7 Successors and Assigns. This Amendment shall inure to the benefit of
Bank, its successors and assigns and be binding upon Borrower, its successors
and assigns.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Borrower and Bank have caused this Amendment to be duly
executed by their duly authorized representatives, all as of the date and year
first above written.
BORROWER: CFC INTERNATIONAL, INC.
By: _________________________
Title: ________________________
BANK: LASALLE BANK NATIONAL ASSOCIATION
By: _________________________
Title: ________________________
Annex A
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Debt to TNW Bank's Cost of Funds, plus
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Annex B
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Debt to TNW Bank's Cost of Funds, plus
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>1.0<1.5:1 225 bps
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>1.5<2.0:1 250 bps
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Schedule A
COLLATERAL DESCRIPTION
The word "Collateral" means all assets, personal property, rights,
interests and fixtures of Borrower, of any kind or description, tangible or
intangible, whether now existing or hereafter arising or acquired, and wherever
located, including, but not limited to, the following (all of which property,
along with the accessions, accessories, products, increase and Proceeds
therefrom, are individually and collectively referred to as the "Collateral"):
(a) all funds, Deposit Accounts, Instruments, checks, drafts, credits,
cash, securities, notes, Investment Property (including all Financial Assets),
General Intangibles (including Payment Intangibles, charge card or credit card
receivables, interest rate exchange agreements, foreign exchange agreements, and
hedging agreements of all types), Letter of Credit Rights, Goods or other
property of any type, of, or for the account of, Borrower now or hereafter
coming into the possession, control or custody of, or in transit to, Bank or any
agent or bailee for Bank or any parent, affiliate or subsidiary of Bank or any
participant with Bank in the loans to Borrower (whether for safekeeping,
deposit, collection, custody, pledge, transmission or otherwise), including all
earnings, dividends, interest, or other rights in connection therewith and the
products and Proceeds therefrom, including the proceeds of insurance thereon;
and
(b) the additional property of Borrower, whether now existing or hereafter
arising or acquired, and wherever now or hereafter located, together with all
additions, increase, accessories, and accessions thereto, substitutions for, and
replacements, products and Proceeds therefrom, and all of Borrower's books and
records and recorded data relating thereto (regardless of the medium of
recording together with all of Borrower's right, title and interest in and to
all computer software required to utilize, create, maintain and process any such
records or data on electronic media), identified and set forth as follows:
(i) All Accounts (whether or not Eligible Accounts and including
Health Care Insurance Receivables) and all Goods whose sale, lease or other
disposition by Borrower has given rise to Accounts and have been returned
to, or repossessed or stopped in transit by, Borrower, or rejected or
refused by an Account Debtor;
(ii) All Inventory (whether or not Eligible Inventory) including raw
materials, work in process and finished goods, and whether or not delivered
or held in stock, on consignment, leased or otherwise;
(iii) All Goods (including Goods with Embedded Software) and Fixtures,
including, without limitation, Equipment (including Equipment with Embedded
Software), vehicles, furniture, Fixtures, Manufactured Homes, Farm
Products, timber and extracted minerals;
(iv) All General Intangibles, including but not limited to Payment
Intangibles, Software, trademarks (including related goodwill), patents,
copyrights, trade secrets, computer and electronic data and records,
licensed rights, lease rights, interest rate exchange agreements, foreign
exchange agreements, hedging agreements of all types, and all other
contractual or legal rights and interests not covered by other descriptions
or types of Collateral;
(v) All Investment Property and Deposit Accounts;
(vi) All Chattel Paper, Electronic Chattel Paper, Instruments, notes,
Documents, Letter of Credit Rights, letters of credit and proceeds of
letters of credit, Supporting Obligations, notes secured by real estate,
and Commercial Tort Claims;
(vii) All Real Property of Borrower, including Fixtures, As-Extracted
Minerals and uncut timber (to the extent not Goods);
(viii) All life insurance policies and rights thereunder and proceeds
thereof; and
(ix) All Proceeds, including insurance policies and proceeds insuring
the foregoing property or any part thereof, including unearned premiums.
Except for the terms "Collateral," "Bank," "Borrower," "Account Debtor,"
"Real Property," "Eligible Accounts" and "Eligible Inventory," each capitalized
term used in this description of the Collateral shall have the meaning given to
it in the Uniform Commercial Code in effect from time to time in the State of
Illinois.
AMENDED AND RESTATED
REVOLVING NOTE
$5,500,000 January 31, 2003
CFC International, Inc., a Delaware corporation (the "Borrower"), for value
received, hereby promises to pay to the order of LaSalle Bank National
Association, a national banking association (the "Bank"), on April 1, 2005, the
principal sum of Five Million Five Hundred Thousand Dollars ($5,500,000), or
such lesser amount of all of the then outstanding advances made by the Bank to
the Borrower pursuant to Section 2.1 of the "Loan Agreement" (as hereinafter
defined), together with interest on any and all principal amounts remaining
unpaid hereunder from time to time from the date hereof until paid at the rates
and payable as provided in the Loan Agreement.
Any amount of interest or principal hereof which is not paid when due,
whether on a Monthly Payment Date (as defined in the Loan Agreement), at stated
maturity, by acceleration or otherwise, shall bear interest payable on demand at
the "Default Rate" (as defined in the Loan Agreement).
All payments of principal and interest on this Note shall be payable in
lawful money of the United States of America. In no event shall the interest
payable exceed the highest rate permitted by law. Principal and interest shall
be paid to the Bank at its office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ or at such other place as the holder of this Note may designate in writing
to the Borrower. The Bank may charge any deposit or other account maintained by
the Borrower with the Bank or any of the Bank's affiliates amounts equal to all
payments of principal, accrued interest and fees from time to time as they come
due and payable hereunder or under any agreement pursuant to which this Note was
issued. All payments hereunder shall be applied as provided in the Loan
Agreement. In determining the Borrower's liability to the Bank hereunder, the
books and records of the Bank shall be controlling absent manifest error.
This Note evidences certain indebtedness incurred under the Amended and
Restated Loan and Security Agreement, dated as of May 17, 2001, between the
Borrower and the Bank (as heretofore and hereafter amended, the "Loan
Agreement"), to which reference is hereby made for a statement of the terms and
conditions under which the due date of this Note or any payment thereon may be
accelerated or is automatically accelerated, or under which this Note may be
prepaid or is required to be prepaid. All capitalized terms used herein shall,
unless otherwise defined herein, have the meanings set forth in the Loan
Agreement. The holder of this Note is entitled to all of the benefits provided
in said Loan Agreement and the Loan Documents referred to therein. The Borrower
agrees to pay all reasonable costs of collection and all reasonable attorneys'
fees paid or incurred in enforcing any of the Bank's rights hereunder promptly
on demand of the Bank and as more fully set forth in the Loan Agreement.
This Note is secured by, among other things, a security interest in the
Collateral granted to Bank pursuant to the Loan Agreement.
Upon the occurrence of an Event of Default under the Loan Agreement, the
outstanding indebtedness evidenced by this Note, together with all accrued
interest, shall be due and payable in accordance with the terms of the Loan
Agreement, without notice to or demand upon the Borrower, and the Bank may
exercise all of its rights and remedies reserved to it under the Loan Agreement
or applicable law.
The Borrower, endorsers and all other parties to this Note waive
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note and the Loan Agreement. In any action on this Note, the Bank or its
assignee need not file the original of this Note, but need only file a photocopy
of this Note certified by the Bank or such assignee to be a true and correct
copy of this Note.
No delay on the part of the Bank in exercising any right under this Note,
any security agreement, guaranty or other undertaking affecting this Note, shall
operate as a waiver of such right or any other right under this Note, nor shall
any omission in exercising any right on the part of the Bank under this Note
operate as a waiver of any other rights.
If any provision of this Note or the application thereof to any party or
circumstance is held invalid or unenforceable, the remainder of this Note and
the application of such provision to other parties or circumstances will not be
affected thereby and the provisions of this Note shall be severable in any such
instance. All references to the singular shall be deemed to include the plural,
and vice versa, where the context so requires.
THE BORROWER HEREBY WAIVES ANY RIGHT THE BORROWER MAY NOW OR HEREAFTER HAVE
TO SUBMIT ANY CLAIM, ISSUE OR DEFENSE ARISING HEREUNDER OR UNDER THE OTHER
DOCUMENTS RELATING TO THIS NOTE TO A TRIAL BY JURY.
This Note constitutes a renewal and restatement of, and replacement and
substitution for, the Revolving Note dated May 17, 2001 of the Borrower made
payable to the order of Bank in the principal amount of Five Million Five
Hundred Thousand Dollars ($5,500,000.00) (the "Original Note"). The indebtedness
evidenced by the Original Note is continuing indebtedness, and nothing herein
shall be deemed to constitute a payment, settlement or novation of the Original
Note, or to release or otherwise adversely affect any lien, mortgage or security
interest securing such indebtedness or any rights of the Bank against any
guarantor, surety or other party primarily or secondarily liable for such
indebtedness.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
This Note shall be deemed to have been made under and shall be governed in
accordance with the internal laws and not the conflict of law rules of the State
of Illinois.
CFC INTERNATIONAL, INC.
By:
-----------------------
Title:
-----------------------
AMENDED AND RESTATED
TERM NOTE
$2,349,162 January 31, 2003
CFC International, Inc., a Delaware corporation (the "Borrower"), for value
received, hereby promises to pay to the order of LaSalle Bank National
Association, a national banking association (the "Bank"), the principal sum of
Two Million Three Hundred Forty-Nine Thousand One Hundred Sixty-Two Dollars
($2,349,162), in sixty (60) equal monthly installments of principal, each in the
amount of Thirteen Thousand Fifty-One and No/100 Dollars ($13,051), plus
interest accrued thereof, commencing on February 1, 2003 and continuing on the
first day of each month thereafter, unless such day is not a Business Day (as
defined in the Loan Agreement (defined hereunder)), then on the next succeeding
Business Day, with a final installment of the then outstanding principal balance
together with all interest accrued thereon on January 31, 2008.
Any and all principal amounts remaining unpaid hereunder from time to time
shall bear interest from the date hereof until paid, computed on the basis of
actual number of days elapsed over a 360-day year, payable on the first day of
each month commencing February 1, 2003, at the interest rate provided in Section
2.2.3 of the Loan Agreement, calculated on the basis of actual days elapsed over
a 360-day year.
This Note may be prepaid in whole or in part in accordance with the terms
of the Loan Agreement.
Any amount of interest or principal hereof which is not paid when due,
whether on the first day of the month, at stated maturity, by acceleration or
otherwise, shall bear interest payable on demand at the "Default Rate" (as such
term is defined in the Loan Agreement).
All payments of principal and interest on this Note shall be payable in
lawful money of the United States of America. In no event shall the interest
payable exceed the highest rate permitted by law. Principal and interest shall
be paid to Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as the holder of this Note may designate in writing to Borrower.
Borrower authorizes Bank to charge its account maintained with Bank in amounts
equal to all payments of principal, accrued interest, and fees from time to time
as they come due and payable hereunder or under any agreement pursuant to which
this Note was issued. All payments hereunder shall be applied as provided in the
Loan Agreement. In determining Borrower's liability to the Bank hereunder, the
books and records of the Bank shall be controlling absent arithmetic or manifest
error.
This Note evidences certain indebtedness incurred under that certain
Amended and Restated Loan and Security Agreement, dated as of May 17, 2001
between Borrower and Bank (as heretofore or hereafter amended, the "Loan
Agreement), to which reference is hereby made for a statement of the terms and
conditions under which the due date of this Note or any payment thereon may be
accelerated or is automatically accelerated, or under which this Note may be
prepaid or is required to be prepaid. All capitalized terms used herein shall,
unless otherwise defined herein, have the meanings set forth in the Loan
Agreement. The holder of this Note is entitled to all of the benefits provided
in said Loan Agreement and the Loan Documents referred to herein. Borrower
agrees to pay all costs of collection and all reasonable attorneys' fees paid or
incurred in enforcing any of the Bank's rights hereunder promptly on demand of
the Bank and as more fully set forth in the Loan Agreement.
Except as set forth in the Loan Agreement, Borrower, endorsers and all
other parties to this Note waive presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note and the Loan Agreement. In any
action on this Note, the Bank or its assignee need not file the original of this
Note, but need only file a photocopy of this Note certified by the Bank or such
assignee to be a true and correct copy of this Note.
This is the Term Note referred to in the Loan Agreement. This Note is
secured by, among other things a security interest in the Collateral granted to
the Bank pursuant to the Loan Agreement and the other Loan Documents.
No delay on the part of the Bank in exercising any right under this Note,
any security agreement, guaranty or other undertaking affecting this Note, shall
operate as a waiver of such right or any other right under this Note, nor shall
any omission in exercising any right on the part of the Bank under this Note
operate as a waiver of any other rights.
Upon the occurrence and during the continuation of an Event of Default
under the Loan Agreement and the expiration of any applicable grace or cure
periods under the Loan Agreement, the outstanding indebtedness evidenced by this
Note, together with all accrued interest, shall be due and payable in accordance
with the terms of the Loan Agreement, without notice to or demand upon any
Borrower except as otherwise set forth in the Loan Agreement, and the Bank may
exercise all of its rights and remedies reserved to it under the Loan Agreement
or applicable law.
If any provision of this Note or the application thereof to any party of
circumstance is held invalid or unenforceable, the remainder of this Note and
the application of such provision to other parties or circumstances will not be
affected thereby and the provisions of this Note shall be severable in any such
instance.
This Note shall be in replacement of and in substitution for that certain
Replacement Term Note dated November 13, 1998, in the original principal amount
of $2,625,000.00, made by Borrower and payable to the order of Bank (the
"Original Note"). The indebtedness evidenced by the Original Note is continuing
indebtedness, and nothing herein shall be deemed to constitute a payment,
settlement or novation of the Original Note, or to release or otherwise
adversely affect any lien, mortgage or security interest securing such
indebtedness or any rights of the Bank against any guarantor, surety or other
party primarily or secondarily liable for such indebtedness.
BORROWER HEREBY WAIVES ANY RIGHT SUCH BORROWER MAY NOW OR HEREAFTER HAVE TO
SUBMIT ANY CLAIM, ISSUE OR DEFENSE ARISING HEREUNDER OR UNDER THE OTHER
DOCUMENTS RELATING TO THIS NOTE TO A TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
This Note shall be deemed to have been made under and shall be governed in
accordance with the internal laws and not the conflict of law rules of the State
of Illinois.
CFC INTERNATIONAL, INC.
By:
----------------------
Title:
----------------------
AMENDED AND RESTATED
SECOND TERM NOTE
$4,806,574 January 31, 2003
CFC International, Inc., a Delaware corporation (the "Borrower"), for value
received, hereby promises to pay to the order of LaSalle Bank National
Association, a national banking association (the "Bank"), the principal sum of
Four Million Eight Hundred Six Thousand Five Hundred Seventy-Four Dollars
($4,806,574), in sixty (60) equal monthly installments of principal, each in the
amount of Sixty-Six Thousand Seven Hundred Fifty and No/100 Dollars ($66,750),
plus interest accrued thereof, commencing on February 1, 2003 and continuing on
the first day of each month thereafter, unless such day is not a Business Day
(as defined in the Loan Agreement (defined hereunder)), then on the next
succeeding Business Day, with a final installment of the then outstanding
principal balance together with all interest accrued thereon on January 31,
2008.
Any and all principal amounts remaining unpaid hereunder from time to time
shall bear interest from the date hereof until paid, computed on the basis of
actual number of days elapsed over a 360-day year, payable on the first day of
each month commencing February 1, 2003, at the interest rate provided in Section
2.3.3 of the Loan Agreement, calculated on the basis of actual days elapsed over
a 360-day year.
This Note may be prepaid in whole or in part in accordance with the terms
of the Loan Agreement.
Any amount of interest or principal hereof which is not paid when due,
whether on the first day of the month, at stated maturity, by acceleration or
otherwise, shall bear interest payable on demand at the "Default Rate" (as such
term is defined in the Loan Agreement).
All payments of principal and interest on this Note shall be payable in
lawful money of the United States of America. In no event shall the interest
payable exceed the highest rate permitted by law. Principal and interest shall
be paid to Bank at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such
other place as the holder of this Note may designate in writing to Borrower.
Borrower authorizes Bank to charge its account maintained with Bank in amounts
equal to all payments of principal, accrued interest, and fees from time to time
as they come due and payable hereunder or under any agreement pursuant to which
this Note was issued. All payments hereunder shall be applied as provided in the
Loan Agreement. In determining Borrower's liability to the Bank hereunder, the
books and records of the Bank shall be controlling absent arithmetic or manifest
error.
This Note evidences certain indebtedness incurred under that certain
Amended and Restated Loan and Security Agreement, dated as of May 17, 2001
between Borrower and Bank (as heretofore or hereafter amended, the "Loan
Agreement), to which reference is hereby made for a statement of the terms and
conditions under which the due date of this Note or any payment thereon may be
accelerated or is automatically accelerated, or under which this Note may be
prepaid or is required to be prepaid. All capitalized terms used herein shall,
unless otherwise defined herein, have the meanings set forth in the Loan
Agreement. The holder of this Note is entitled to all of the benefits provided
in said Loan Agreement and the Loan Documents referred to herein. Borrower
agrees to pay all costs of collection and all reasonable attorneys' fees paid or
incurred in enforcing any of the Bank's rights hereunder promptly on demand of
the Bank and as more fully set forth in the Loan Agreement.
Except as set forth in the Loan Agreement, Borrower, endorsers and all
other parties to this Note waive presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note and the Loan Agreement. In any
action on this Note, the Bank or its assignee need not file the original of this
Note, but need only file a photocopy of this Note certified by the Bank or such
assignee to be a true and correct copy of this Note.
This is the Second Term Note referred to in the Loan Agreement. This Note
is secured by, among other things a security interest in the Collateral granted
to the Bank pursuant to the Loan Agreement and the other Loan Documents.
No delay on the part of the Bank in exercising any right under this Note,
any security agreement, guaranty or other undertaking affecting this Note, shall
operate as a waiver of such right or any other right under this Note, nor shall
any omission in exercising any right on the part of the Bank under this Note
operate as a waiver of any other rights.
Upon the occurrence and during the continuation of an Event of Default
under the Loan Agreement and the expiration of any applicable grace or cure
periods under the Loan Agreement, the outstanding indebtedness evidenced by this
Note, together with all accrued interest, shall be due and payable in accordance
with the terms of the Loan Agreement, without notice to or demand upon any
Borrower except as otherwise set forth in the Loan Agreement, and the Bank may
exercise all of its rights and remedies reserved to it under the Loan Agreement
or applicable law.
If any provision of this Note or the application thereof to any party of
circumstance is held invalid or unenforceable, the remainder of this Note and
the application of such provision to other parties or circumstances will not be
affected thereby and the provisions of this Note shall be severable in any such
instance.
This Note shall be in replacement of and in substitution for that certain
Second Term Note dated May 17, 2001, in the original principal amount of
$5,773,336.00, made by Borrower and payable to the order of Bank (the "Original
Note"). The indebtedness evidenced by the Original Note is continuing
indebtedness, and nothing herein shall be deemed to constitute a payment,
settlement or novation of the Original Note, or to release or otherwise
adversely affect any lien, mortgage or security interest securing such
indebtedness or any rights of the Bank against any guarantor, surety or other
party primarily or secondarily liable for such indebtedness.
BORROWER HEREBY WAIVES ANY RIGHT SUCH BORROWER MAY NOW OR HEREAFTER HAVE TO
SUBMIT ANY CLAIM, ISSUE OR DEFENSE ARISING HEREUNDER OR UNDER THE OTHER
DOCUMENTS RELATING TO THIS NOTE TO A TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
This Note shall be deemed to have been made under and shall be governed in
accordance with the internal laws and not the conflict of law rules of the State
of Illinois.
CFC INTERNATIONAL, INC.
By:
----------------------
Title:
----------------------
SECRETARY'S CERTIFICATE
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary of CFC International, Inc., a Delaware
corporation (the "Company"), in connection with the First Amendment to Amended
and Restated Loan and Security Agreement dated January 31, 2003 by and between
the Company and LaSalle Bank National Association, HEREBY CERTIFY that:
1. Attached hereto as Exhibit I is a true, correct and complete copy of the
Certificate of Incorporation of the Company as in effect on the date hereof.
2. Attached hereto as Exhibit II is a true, correct and complete copy of
the by-laws of the Company as in effect on the date hereof.
3. Attached hereto as Exhibit III is a true, correct and complete copy of
the resolutions duly adopted by the Board of Directors of the Company, which
resolutions have not been revoked, modified, amended or rescinded and are still
in full force and effect.
4. The persons named in Exhibit IV attached hereto have been duly elected,
have duly qualified and are acting officers of the Company holding on the date
hereof the respective offices set forth therein opposite their names, and the
signatures set forth therein opposite their names are their genuine signatures.
IN WITNESS WHEREOF, I have executed this certificate on behalf of the
Company this 31 day of January, 2003.
CFC International, Inc., a Delaware corporation
By:________________________________