EXHIBIT 10(A)
SEVENTH AMENDMENT AND FORBEARANCE AGREEMENT
THIS SEVENTH AMENDMENT AND FORBEARANCE AGREEMENT (this "Agreement"),
dated and effective as of the 22nd day of December, 2003 (the "Effective Date"),
is by and among XXXXXXXX INDUSTRIES, INC., a Delaware corporation ("Xxxxxxxx"),
XXXXXXXX YARN EQUIPMENT, INC., a South Carolina corporation ("Xxxxxxxx Yarn"),
WINK XXXXX EQUIPMENT COMPANY, INC., a Georgia corporation ("Wink Xxxxx"), XXXX
MOTION CONTROLS, INC., a North Carolina corporation ("Xxxx Motion;" and together
with Xxxxxxxx, Xxxxxxxx Yarn, Wink Xxxxx and any future direct or indirect
subsidiaries of Xxxxxxxx or of any other entities listed above, the
"Borrowers"), jointly and severally and their respective successors and assigns,
and SOUTHTRUST BANK, an Alabama banking corporation ("Lender").
R E C I T A L S :
WHEREAS, Lender and the Borrowers entered into that certain Credit
Facility Agreement dated as of May 31, 2000 (as heretofore or hereafter amended,
extended, restated or renewed, the "Credit Agreement"), for the purpose of
establishing a $17,500,000 Revolving Credit Facility and a $15,000,000 Letter of
Credit Facility with the Lender in favor of the Borrowers. All capitalized terms
used herein and not otherwise defined shall have the respective meanings
thereunto ascribed in the Credit Agreement. All obligations, duties and
liabilities of the Borrower from time to time existing under and pursuant to the
Credit Agreement and the other Loan Documents are sometimes collectively
referred to herein as the "Obligations"; and
WHEREAS, the parties amended the Credit Agreement pursuant to that
certain Amendment and Forbearance Agreement dated as of the 13th day of
November, 2000 (the "First Amendment"); and
WHEREAS, the parties further amended the Credit Agreement pursuant to
that certain Second Amendment and Forbearance Agreement dated July 1, 2001 (the
"Second Amendment"); and
WHEREAS, the parties further amended the Credit Agreement pursuant to
that certain Third Amendment and Forbearance Agreement dated February 19, 2002
(the "Third Amendment"); and
WHEREAS, the parties further amended the Credit Agreement pursuant to
that certain Fourth Amendment and Forbearance Agreement dated July 31, 2002 (the
"Fourth Amendment"); and
WHEREAS, the parties further amended the Credit Agreement pursuant to
that certain Fifth Amendment and Forbearance Agreement dated December 31, 2002
(the "Fifth Amendment"); and
WHEREAS, the parties further amended the Credit Agreement pursuant to
that certain Sixth Amendment and Forbearance Agreement dated March 31, 2003 (the
"Sixth Amendment;" and collectively with the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment,
the "Amendments");
WHEREAS, pursuant to the Amendments, Lender's outstanding commitment
under the Revolving Credit Facility has been changed to $10,000,000 (subject to
the borrowing base formula set forth in the Credit Facility as amended pursuant
to the Amendments and herein, regarding availability under the Revolving Credit
Facility), and the outstanding commitment under the Letter of Credit Facility
has been changed to $7,500,000; and
WHEREAS, the Borrowers have requested that the maturity of the Credit
Facilities under the Credit Agreement be extended, that certain terms of the
Credit Agreement be modified, and that Lender continue to forbear from taking
remedial actions as a result of the Borrowers' non-compliance with certain
covenants and warranties in the Credit Agreement (as more particularly described
in Section 2 below, the "Existing Noncompliance"); and
WHEREAS, the Lender is willing to accommodate the Borrowers and to
continue the forbearance requested by the Borrowers, but only upon the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing Recitals, which the
parties acknowledge to be true and correct in all material respects, the
Borrowers and the Lender agree as follows:
1. CERTAIN DEFINITIONS. Notwithstanding any contrary meaning set forth
in the Credit Agreement or in any other Loan Document, the following terms shall
have the meanings hereunto ascribed:
"EXISTING NONCOMPLIANCE" shall mean the Borrowers' current and
existing failure to comply with Sections 10.16, 10.17, 10.18 and 10.19
of the Credit Agreement, as heretofore set forth in Sections 4.01(a),
(c) and (d) of the Second Amendment.
"FORBEARANCE PERIOD" shall mean the period of time commencing
on the date of this Agreement, and ending on March 31, 2004, subject to
an earlier termination of the Forbearance Period as provided in Section
3 of this Agreement.
"OBLIGATIONS" shall collectively mean all indebtedness or
other liabilities and obligations of the Borrowers to the Lender
arising out of or secured by the Loan Documents, including, without
limitation (i) the Borrowers' obligation to repay the principal amount
of the Loans with interest thereon as set forth in the Loan Documents,
and (ii) the Borrowers' obligation to pay all commitment fees,
extension fees and other agreed charges in connection with the Loans,
and (iii) the Borrowers' obligation to pay certain legal fees, court
costs and other costs of collection as set forth herein and in the
other Loan Documents, and (iv) the Borrowers' obligation to pay and
discharge any and all liens or encumbrances upon or tax liabilities
with respect to the collateral described in the Loan Documents, and (v)
any and all indemnity obligations of the Borrowers in favor of the
Lender set forth in any of the Loan Documents, and (vi) the Borrowers'
obligation timely to observe and perform all other covenants and
agreements set forth in the Loan Documents.
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2. FOREBEARANCE BY LENDER. The Borrowers acknowledge and agree that by
virtue of the Existing Noncompliance, the Lender is presently entitled to
declare an Event of Default under the Credit Agreement and exercise its rights
and remedies thereunder and under the related Loan Documents. In consideration
of the representations, warranties, promises and covenants of the Borrowers set
forth in this Agreement, and the contemplated future performance by the
Borrowers of the terms hereof and of the other Loan Documents, the Lender hereby
agrees that during the Forbearance Period (as defined below), Lender will not
enforce or exercise any remedies available to it under the Loan Documents with
respect to the Existing Noncompliance, and will not seek collection of the Loans
from the Borrowers except as set forth herein.
3. TERMINATION OF FOREBEARANCE PERIOD. Notwithstanding the provisions
of Section 2 above, the Forbearance Period shall automatically terminate without
further notice to the Borrowers or any other person (all notice otherwise
required by the Loan Documents or otherwise being hereby waived), if (i) any
case or other proceeding is instituted by or against Borrower or any of the
Guarantors under any state or federal law relating to the bankruptcy or
insolvency of debtors, including, without limitation, the United States
Bankruptcy Code, 11 U.S.C. ss. 101 ET SEQ., or (ii) any material and substantial
default, event of default or "Event of Default" (as defined in the Loan
Documents), occurs under any of the Loan Documents other than the Existing
Noncompliance, or (iii) any of the acknowledgments, warranties, or
representations of Borrowers set forth herein shall be untrue or inaccurate in
any material respect as of the date made, or (iv) any Borrower shall breach,
default, or fail to perform any other obligation or agreement contained in this
Agreement.
4. MODIFICATION OF CREDIT FACILITIES.
(a) The Credit Facility No. 1 Termination Date is hereby extended to
March 31, 2004. From the Effective Date of this Agreement through the Credit
Facility No. 1 Termination Date, the Revolving Credit Commitment shall be a
principal sum not to exceed the lesser of (i) $8,000,000.00 minus the amount
outstanding under the Borrowers' Automated Clearinghouse payroll facility with
Lender, or (ii) the Borrowing Base Amount less the amount outstanding under the
Borrowers' Automated Clearinghouse payroll facility with Lender. Facility No. 1
shall continue to be administered in accordance with Article II of the Credit
Agreement, as amended by this Agreement.
(b) The Credit Facility No. 2 Termination Date is hereby extended to
March 31, 2004. From the Effective Date of this Agreement through the Credit
Facility No. 2 Termination Date, the aggregate maximum principal face amount of
Documentary Letters of Credit which may be outstanding at any one time shall not
exceed the sum of $4,500,000.00, subject to reduction as provided in Section 3.1
of the Credit Agreement. Facility No. 2 shall continue to be administered in
accordance with Article III of the Credit Agreement, as amended by this
Agreement.
(c) From and after the Effective Date of this Agreement, the Loan
Documents shall each be construed and interpreted by reference to the foregoing
modifications, MUTATIS MUTANDIS, such that each and every term, covenant,
condition and agreement set forth in the Loan Documents shall, to the extent of
any direct conflict with the foregoing subsections (a) and (b), be deemed
amended as the context may require.
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5. STATUS OF THE LOAN DOCUMENTS. Borrowers acknowledge and agree that
this Agreement and each of the Amendments shall for all purposes be deemed to
constitute "Loan Documents" as that term is defined in the Credit Agreement.
Borrowers further acknowledge and agree that, except as expressly set forth in
this Agreement, (i) this Agreement is not intended to be, and shall not be
deemed or construed to be, a novation or release of the Loan Documents or any of
them; (ii) except as expressly provided in this Agreement, this Agreement is not
intended to be, and shall not be deemed or construed to be, a modification,
amendment, or waiver of the Loan Documents or any of them; (iii) neither this
Agreement nor any payments made or other actions taken pursuant to this
Agreement shall be deemed to cure the Existing Noncompliance unless and until
all sums payable pursuant to the Loan Documents are paid in full; (iv) except as
otherwise expressly provided in this Agreement, Lender reserves all available
rights and remedies, at law, in equity, and under the Loan Documents, in
connection with any default or event of default, including the Existing
Noncompliance, whether now existing or hereafter occurring, under the Loan
Documents; and (v) all requirements in the Loan Documents for notice by Lender
to the Borrowers, or any of them, are hereby waived.
6. REAFFIRMATION OF OBLIGATIONS. The Borrowers hereby ratify and affirm
all terms and conditions of the Loan Documents (as amended hereby). The
Borrowers acknowledge that, as amended and modified by this Agreement: (i) the
Loan Documents remain in full force and effect, and (ii) the Loan Documents to
which each is a party constitute the legal, valid and binding obligations of the
Borrowers, enforceable against each of the Borrowers in accordance with their
respective terms. The Borrowers hereby represent and warrant to Lender that as
of the date hereof, the Borrowers have no defenses, setoffs, rights of
recoupment, counterclaims or claims of any nature whatsoever in respect to the
Loan Documents, and to the extent any such defenses, setoffs, rights of
recoupment, counterclaims or claims may exist, whether known or unknown, the
same are hereby expressly waived, released and discharged. Borrowers represent
and warrant to Lender that the Loans continue to be secured by the Loan
Documents, and that except with respect to the Existing Noncompliance, no Event
of Default or default has occurred and is continuing under the Loan Documents,
and no event has occurred or failed to occur that, with the lapse of time,
giving of notice or both, would constitute an Event of Default or default under
the Loan Documents.
7. WAIVER AND RELEASE OF CLAIMS. In consideration of the Lender's
execution and delivery of this Agreement, and as a material inducement therefor,
effective as of the date of this Agreement the Borrowers do hereby release,
remise and discharge Lender and its affiliates, parents, divisions,
subsidiaries, successors, predecessors, stockholders, officers, directors,
agents, employees, attorneys, successors, and assigns (Lender and such other
parties being collectively referred to herein as the "Released Parties"), of and
from any and all claims, liabilities, actions, and causes of action, if any, of
whatever kind or nature, which have existed or currently exist as of the date of
this Agreement, arising out of or in any way connected with any occurrences,
acts, omissions, or transactions involving, directly or indirectly, the Loan
Agreement, or any of the Obligations, or any other transactions or dealings
between the Lender and any of the Borrowers.
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8. REPRESENTATIONS AND WARRANTIES. Borrowers represent and warrant to
Lender that: (i) each Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of organization reflected in
the heading of this Agreement, and has full power and authority to execute,
deliver and perform this Agreement and the other Loan Documents, and the same
have been duly authorized pursuant to all requisite corporate action; (ii) this
Agreement and the other Loan Documents constitute valid and legally binding
obligations of the Borrowers, enforceable in accordance with their respective
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally, and
general principles of equity; (iii) the execution, delivery and performance by
the Borrowers of this Agreement and the other Loan Documents, will not and did
not violate, conflict with, or constitute any default under any law (including
laws relating to usury), government regulation, or any other agreement or
instrument binding upon the Borrowers; and (iv) no approval, authorization or
other action by, or filing with, any governmental official, board or authority
is required in connection with the execution and delivery of this Agreement or
any of the other Loan Documents, and the performance of the provisions thereof,
except such approvals and authorizations as have been received, such actions as
have been taken, and such filings as have been made; and (v) other than the
Existing Noncompliance, the Borrowers are not in material breach or violation of
any covenant, agreement or other Obligation under the Credit Agreement or any
other Loan Document.
9. GOVERNING LAW; JURISDICTION. The validity, interpretation,
enforcement and effect of this Agreement and the other Loan Documents
(including, without limitation, provisions with respect to interest, late
charges, and interest on overdue installments), shall be governed by, and
construed according to the laws of, the State of North Carolina. Lender's
principal place of business is located in Jefferson County, Alabama, and the
Borrowers agree that this Agreement has been made and delivered to Lender, and
shall be held by Lender, at such principal place of business. By execution and
delivery of this Agreement, the Borrowers expressly and irrevocably assent and
submit to the personal jurisdiction of the state and federal courts presiding in
and over Jefferson County, Alabama, in any legal action or proceeding arising
under, out of, or in any manner relating to this Agreement or any other Loan
Document, and acknowledge that the negotiation, execution and delivery of this
Agreement constitute sufficient contacts with the State of Alabama for purposes
of independently conferring such jurisdiction. The Borrowers further agree that
the exclusive venue of any such legal action or proceeding arising out of or in
any manner relating to this Agreement or any other Loan Document shall be in the
state and/or federal courts presiding in and over Jefferson County, Alabama,
unless Lender shall, at its sole option, elect to bring or permit the
maintenance of any such action in another venue, and the Borrowers hereby waive
any and all rights under any state or federal law to object to such venue on
grounds of FORUM NON CONVENIENS or otherwise.
10. WAIVER OF JURY TRIAL. BORROWERS AND LENDER HEREBY MUTUALLY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY LAWSUIT OR OTHER COURT ACTION
RELATED TO THE THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, ANY OBLIGATIONS
ARISING THEREUNDER OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY, INCLUDING,
WITHOUT LIMITATION, IN RESPECT TO ANY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM,
DEFENSE, OR SET-OFF ASSERTED IN ANY SUCH LAWSUIT OR COURT ACTION. ANY SUCH
LAWSUIT OR COURT ACTION SHALL BE TRIED EXCLUSIVELY TO A COURT WITHOUT A JURY.
THE BORROWERS SPECIFICALLY ACKNOWLEDGE THAT THEIR EXECUTION OF THIS WAIVER
CONSTITUTES A MATERIAL PORTION OF THE CONSIDERATION RECEIVED BY THE LENDER IN
EXCHANGE FOR ITS ENTERING INTO THIS AGREEMENT.
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11. PAYMENT OF EXPENSES. Borrowers agree to pay all expenses, including
reasonable attorneys' fees, incurred by Lender in connection with the
negotiation and preparation of this Agreement. The Borrowers further agree that
they shall pay on demand any and all further out-of-pocket costs or expenses
hereafter incurred by Lender in connection with the administration of the Loan
Documents and/or the enforcement of the Obligations, including reasonable
attorneys' fees.
12. MISCELLANEOUS.
(a) Except as expressly set forth herein, Lender shall not by any act,
delay, omission, or otherwise be deemed to have waived any of its rights or
remedies under this Agreement or any other Loan Document, and no waiver of any
kind shall be valid unless in writing and signed by Lender.
(b) All rights and remedies of Lender under the terms of this Agreement
and the other Loan Documents and applicable statutes or rules of law shall be
cumulative and may be exercised successively or concurrently.
(c) Any provision in this Agreement or of any other Loan Document which
may be unenforceable or invalid under any law shall be ineffective to the extent
of such unenforceability or invalidity without affecting the enforceability or
validity of any other provision hereof or thereof.
(d) This Agreement and the obligations of the Borrowers hereunder shall
be binding upon and enforceable against the Borrowers and their respective
heirs, administrators, successors and assigns, and shall inure to the benefit of
Lender and its successors and assigns, including any subsequent holder of the
Notes.
(e) Lender may, at its option, release any collateral given to secure
the Obligations, or release any guarantor from its obligations under any
guaranty or surety agreement, and no such release shall impair the Obligations
of any Borrower to Lender under this Agreement and the other Loan Documents.
(f) Section headings are inserted for convenience of reference only and
shall be disregarded in the interpretation of this Agreement.
(g) No provision of this Agreement shall be construed against or
interpreted to the disadvantage of any party by reason of such party's having or
being deemed to have drafted, structured or dictated the terms of such
provision.
(h) This Agreement may be executed in any number of counterparts
bearing the original signatures of one or more of the parties hereto, each of
which shall for all purposes be deemed an original, but all of which, taken
together, shall constitute one and the same Agreement. It shall not be necessary
that all parties execute the same counterpart.
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(i) The Borrowers acknowledge that prior to the execution and delivery
of this Agreement they have had full and fair opportunity to review the same
with independent legal counsel of their choosing, and that this Agreement has
been executed and delivered as a free and voluntary act of the Borrowers,
without coercion or duress.
(j) Time is of the essence of this Agreement and the performance of
each of the covenants and agreements contained herein.
[NO FURTHER TEXT THIS PAGE; SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, or have caused the same to be properly executed and delivered, as of
the day and year first above written.
BORROWERS: LENDER:
XXXXXXXX INDUSTRIES, INC. (SEAL) SOUTHTRUST BANK (SEAL)
By: /S/ XXXX XXXXXXX By: /S/ XXXXXXX X. XXXXXXXXX
-------------------------------- -----------------------------------
Xxxx Xxxxxxx Xxxxxxx X. Xxxxxxxxx
Title: Vice President Title: Vice President
XXXXXXXX YARN EQUIPMENT, INC.
(SEAL)
By: /S/ XXXX XXXXXXX
-------------------------------
Xxxx Xxxxxxx
Title: Vice President
XXXX MOTION CONTROLS, INC.
(SEAL)
By: /S/ XXXX XXXXXXX
-------------------------------
Xxxx Xxxxxxx
Title: Vice President
WINK XXXXX EQUIPMENT
COMPANY, INC. (SEAL)
By: /S/ XXXX XXXXXXX
-------------------------------
Xxxx Xxxxxxx
Title: Vice President
8
STATE OF NORTH CAROLINA )
)
COUNTY OF MECKLENBURG )
I, L. Xxxx Xxxxxx, a Notary Public in and for said County in said
State, hereby certify that Xxxx Xxxxxxx, whose name as Vice President of
XXXXXXXX INDUSTRIES, INC., a Delaware corporation, is signed to the foregoing
Forbearance Agreement, and who is known to me, acknowledged before me on this
day that, being informed of the contents of such instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and seal, this 22nd day of December, 2003.
/S/ L. XXXX XXXXXX
-----------------------------------
NOTARY PUBLIC
[SEAL]
My Commission Expires: November 11, 0000
XXXXX XX XXXXX XXXXXXXX )
)
COUNTY OF MECKLENBURG )
I, L. Xxxx Xxxxxx, a Notary Public in and for said County in said
State, hereby certify that Xxxx Xxxxxxx, whose name as Vice President of
XXXXXXXX YARN EQUIPMENT, INC., a South Carolina corporation, is signed to the
foregoing Forbearance Agreement, and who is known to me, acknowledged before me
on this day that, being informed of the contents of such instrument, he, as such
officer and with full authority, executed the same voluntarily for and as the
act of said corporation.
Given under my hand and seal, this 22nd day of December, 2003.
/S/ L. XXXX XXXXXX
-----------------------------------
NOTARY PUBLIC
[SEAL]
My Commission Expires: November 11, 2005
9
STATE OF NORTH CAROLINA )
)
COUNTY OF MECKLENBURG )
I, L. Xxxx Xxxxxx, a Notary Public in and for said County in said
State, hereby certify that Xxxx Xxxxxxx, whose name as Vice President of XXXX
MOTION CONTROLS, INC., a North Carolina corporation, is signed to the foregoing
Forbearance Agreement, and who is known to me, acknowledged before me on this
day that, being informed of the contents of such instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and seal, this 22nd day of December, 2003.
/S/ L. XXXX XXXXXX
---------------------------------
NOTARY PUBLIC
[SEAL]
My Commission Expires: November 11, 0000
XXXXX XX XXXXX XXXXXXXX )
)
COUNTY OF MECKLENBURG )
I, L. Xxxx Xxxxxx, a Notary Public in and for said County in said
State, hereby certify that Xxxx Xxxxxxx, whose name as Vice President of WINK
XXXXX EQUIPMENT, INC., a Georgia corporation, is signed to the foregoing
Forbearance Agreement, and who is known to me, acknowledged before me on this
day that, being informed of the contents of such instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and seal, this 22nd day of December, 2003.
/S/ L. XXXX XXXXXX
-----------------------------------
NOTARY PUBLIC
[SEAL]
My Commission Expires: November 11, 0000
00
XXXXX XX XXXXXXX )
)
COUNTY OF XXXXXX )
I, Xxxxxx X. Xxxxxxxx, a Notary Public in and for said County in said
State, hereby certify that Xxxxxxx X. Xxxxxxxxx, whose name as Vice President of
SOUTHTRUST BANK is signed to the foregoing Forbearance, and who is known to me,
acknowledged before me on this day that, being informed of the contents of such
instrument, he, as such officer and with full authority, executed the same
voluntarily for and as the act of said SOUTHTRUST BANK.
Given under my hand and seal, this 22nd day of December, 2003.
/S/ XXXXXX X. XXXXXXXX
----------------------------------
NOTARY PUBLIC
[SEAL]
My Commission Expires: March 23, 2004
