Exhibit 10.35
AMENDMENT NO. 4 AND CONSENT
to
LOAN AND SECURITY AGREEMENT
dated as of December 18, 1997
THIS AMENDMENT NO. 4 dated as of December , 1998 is made by and among
SYNTHETIC INDUSTRIES, INC., a Delaware corporation (the "Borrower"), the Lenders
parties from time to time to the Loan Agreement (as hereinafter defined), and
BANKBOSTON, N.A. ("BankBoston"), as the agent (the "Agent") for the Lenders.
Preliminary Statements
The Borrower, the Lenders and the Agent are parties to a Loan and
Security Agreement dated as of December 18, 1997, as amended by Amendment No. 1
dated as of March 11, 1998, Amendment No. 2 dated as of April 15, 1998 and
Amendment No. 3 dated as of June 30, 1998 (as so amended and in effect, the
"Loan Agreement"; terms defined therein and not otherwise defined herein being
used herein as therein defined). The Borrower has requested that the Loan
Agreement be amended to permit a conveyance of portions of the real property and
improvements included in the Borrower's Ringgold plant and certain of the
Equipment therein to the Catoosa County [Georgia] Development Authority, the
Borrower's lease back of all such real and personal property and the Borrower's
purchase of certain bonds issued by said Authority, and the Lenders and the
Agent have agreed, upon and subject to the terms, conditions and provisions of
this Amendment, to such requests.
Accordingly, in consideration of the Loan Agreement, the Loans made by
the Lenders and outstanding thereunder, the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Amendments to Loan Agreement. From and after the Amendment
Effective Date, subject to satisfaction of the conditions set forth in Section
2, the Loan Agreement is hereby amended as follows:
(a) by amending the provisions of SECTION 1.1 Definitions thereof by
adding thereto in appropriate alphabetical order the following additional
definitions:
CCDA means Catoosa County Development Authority, a public body
corporate and politic created and existing under the laws of the State
of Georgia.
CCDA Bond Property means Real Estate and Equipment described
on Schedule 1.1 - CCDA Bond Property and such additional property as
may become subject to the CCDA Lease from time to time as a result of a
Permitted CCDA Transaction.
CCDA Lease means the Lease Agreement dated as of December 1,
1998 between CCDA as lessor and the Borrower as lessee.
Catoosa County Bond Indenture means the Indenture of Trust
dated as of December 1, 1998 between CCDA and SunTrust Bank, Atlanta
with respect to bonds issued by CCDA and repayable solely out of rental
payments and other payments made by the Borrower under the CCDA Lease.
Catoosa County Bonds means up to $85,000,000 original
principal amount of Catoosa County Development Authority Taxable
Revenue Bonds (Synthetic Industries, Inc. Project), Series 1998 and any
Additional Bonds issued pursuant to (and as defined in) the Catoosa
County Bond Indenture.
Permitted CCDA Transaction means (a) in one transaction or a
series of substantially simultaneous transactions, (i) the sale to CCDA
of the Real Estate and Equipment described on Part A of Schedule 1.1 -
CCDA Bond Property hereto, subject to the Security Interest, (ii) the
lease by the Borrower of such CCDA Bond Property pursuant to the CCDA
Lease, (iii) the purchase by the Borrower of [$14,000,000] original
principal amount (or such lesser principal amount as CCDA shall issue
in connection with its purchase of such CCDA Bond Property) of Catoosa
County Bonds and (iv) consummation of the related transactions
contemplated by the Catoosa County Bond Indenture in connection with
the sale and purchase of such CCDA Bond Property, and (b) any
subsequent transaction approved by the Required Lenders in which the
Borrower leases property from CCDA (whether or not the property was
first conveyed by the Borrower to CCDA) pursuant to the CCDA Lease and
substantially contemporaneously purchases Catoosa County Bonds.
(b) by amending Section 12.3 Guaranties to add, immediately before the
period at the end thereof, the following:
or to the Borrower's Guaranty in favor of the Trustee under the Catoosa
County Bond Indenture, in respect of the Borrower's obligations under
the CCDA Lease
(c) by amending Section 12.4 Investments by inserting immediately
following the phrase "except that this Section 12.4 shall not apply to
Investments in" the following:
(a) Catoosa County Bonds issued in connection with Permitted CCDA
Transactions or (b)
(d) by amending Section 12.7 Merger, Consolidation and Sale of Assets
by redesignating clause (f) thereof as clause (g) and inserting a new clause (f)
immediately after clause (e) thereof to read as follows:
(f) sales of Real Estate and Equipment (including Collateral)
to the CCDA in connection with a Permitted CCDA Transaction,
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(e) by amending Section 12.9 Liens by inserting immediately after the
phrase "apply to Liens" the phrase "in favor of the Trustee under the Catoosa
County Bond Indenture arising out of Permitted CCDA Transactions, or to Liens";
(f) by amending Section 12.11 Amendments to Other Agreements by
inserting immediately after the phrase "Amend in any material respect" the
phrase "the Catoosa County Bond Indenture, the CCDA Lease or any document
executed and delivered in connection with a Permitted CCDA Transaction, "
(g) by amending Section 13.1 Events of Default by adding at the end
thereof a new subsection (q) to read as follows:
(q) Catoosa County Bonds; Permitted CCDA Transactions. The
Borrower shall sell, transfer or otherwise dispose of any Catoosa
County Bonds at any time owned by it, other than to a wholly owned
Subsidiary; or any conveyance or reconveyance documents (e.g., deeds,
bills of sale) executed by CCDA in connection with the consummation of
any Permitted CCDA Transaction shall prove to be ineffective for any
reason to vest in the Borrower title to the property leased by it as
part of such Permitted CCDA Transaction, free of any claim of CCDA or
any Person claiming through CCDA.
(h) by amending subsection Section 13.2(c) (Other Remedies) by amending
clause (vi) thereof in its entirety to read as follows:
(vi) at the expense of the Borrower, (i) deliver or cause to
be delivered and recorded or filed any conveyance or reconveyance
documents executed by CCDA in connection with the consummation of any
Permitted CCDA Transaction and (ii) cause any of Inventory or Equipment
to be placed in a public or field warehouse, and the Agent shall not be
liable to the Borrower on account of any loss, damage or depreciation
that may occur as a result thereof, so long as the Agent shall act
reasonably and in good faith;
(i) by adding thereto a new Schedule 1.1 - Catoosa Bond Property in the
form of Annex 1 hereto.
Section 2. Consent. Subject to the provisions of Section 3, the
Required Lenders hereby consent to the transaction described in clause (a) of
the definition "Permitted CCDA Transaction" contained in the Loan Agreement as
amended by this Amendment (the "First Ringgold Transaction").
Section 3. Effectiveness of Amendment. This Amendment shall become
effective on the first date (the "Amendment Effective Date") on which (a) the
Agent has received each of the following, each in form and substance
satisfactory to the Agent and the Required Lenders (and in sufficient copies for
each Lender):
(i) this Amendment duly executed and delivered by the Borrower and each
Lender;
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(ii) a Consent and Confirmation of Guarantor in the form attached
hereto as Annex 2 duly executed and delivered by the Subsidiary Guarantor;
(iii) a certificate of the Secretary of the Borrower as to the articles
or certificate of incorporation and bylaws of the Borrower, corporate
resolutions authorizing the transactions contemplated by this Amendment and the
incumbency of officers of the Borrower, all as in effect on the Amendment
Effective Date;
(iv) an amendment to the Pledge Agreement the effect of which is to add
as Pledged Collateral thereunder, the Catoosa County Bonds (as defined in the
Loan Agreement, as amended by this Amendment), as and when acquired by the
Borrower;
(v) an irrevocable written instruction to the Trustee under the Catoosa
County Bond Indenture (as defined in the Loan Agreement, as amended by this
Amendment) to deliver to the Agent, upon presentation of such instruction and
tender of the Catoosa County Bonds issued in connection with the First Ringgold
Transaction, the Quitclaim Deed, Xxxx of Sale and any other conveyance or
reconveyance documents executed by the CCDA in connection with the First
Ringgold Transaction and held by said Trustee pursuant to (and as such items are
defined in) the Catoosa County Bond Indenture;
(vi) a landlord's lien subordination and waiver in substantially the
form attached hereto as Annex 3, executed on behalf of the Catoosa County
Development Authority;
(vii) a certificate of the Chief Operating Officer or the Chief
Financial Officer of the Borrower to the effect that both before and after
giving effect to this Amendment, the representations and warranties of the
Borrower set forth in the Loan Agreement are true and correct in all material
respects, and that, after giving effect to this Amendment and consummation of
the First Ringgold Transaction, no Default or Event of Default exists;
(viii) an opinion of counsel for the Borrower as to the due
authorization, execution and delivery of this Amendment and the other Loan
Documents contemplated hereby to be delivered in connection with the
effectiveness hereof by the Borrower as to the enforceability of this Amendment,
the Loan Agreement as amended hereby and such other Loan Documents, and such
other matters as any Lender through the Agent may reasonably request; and
(ix) such other agreements, certificates, instruments and other
documents as any Lender through the Agent may reasonably request in connection
with the transactions contemplated hereby; and
(b) the First Ringgold Transaction shall have been consummated strictly
in accordance with the terms of the Catoosa County Bond Indenture and the other
documents referred to therein required to be executed and delivered as a
condition to the initial issuance of Catoosa County Bonds thereunder.
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Section 4. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that: (1) it has the
corporate power and has taken all actions necessary to authorize it to execute
and deliver this Amendment and the other documents contemplated to be delivered
by it pursuant to this Amendment and to perform its obligations under the Loan
Agreement as amended by this Amendment and under such other documents; (2) this
Amendment has been and each such other document when executed and delivered by
the Borrower will have been, duly executed and delivered by the Borrower; (3)
the Loan Agreement as amended hereby and each such other document, constitute
the legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their respective terms; and (4) the
representations and warranties of the Borrower contained in the Catoosa County
Bond Indenture and the related documents executed and delivered by the Borrower
pursuant thereto and in connection with the First Ringgold Transaction, are true
and correct in all material respects on and as of the Amendment Effective Date.
Section 5. Effect of Amendment. From and after the effectiveness of
this Amendment, all references in the Loan Agreement and in any other Loan
Document to "this Agreement," "the Loan Agreement," "hereunder," "hereof" and
words of like import referring to the Loan Agreement, shall mean and be
references to the Loan Agreement as amended by this Amendment. Except as
expressly amended hereby, the Loan Agreement and all terms, conditions and
provisions thereof remain in full force and effect and are hereby ratified and
confirmed. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
Section 6. Counterpart Execution; Governing Law.
(a) Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
(b) Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
SYNTHETIC INDUSTRIES, INC.
[Corporate Seal] By:
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Name:
ATTEST: Title:
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[Assistant] Secretary
BANKBOSTON, N.A., as the Agent and as a Lender
By:
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Xxxxxxx X. XxXxxxx
Managing Director
SANWA BUSINESS CREDIT
CORPORATION
By
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Name:
Title:
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By:
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Name:
Title:
ANNEX 1
To Amendment No. 4
[SEE FILE COPY FOR INSERTION OF LEGAL DESCRIPTIONS]
ANNEX 2
To Amendment No. 4
CONSENT AND CONFIRMATION OF GUARANTOR
The undersigned, in its capacity as a Guarantor under the Guaranty
(Subsidiary) dated as of March 11, 1998 (as modified or amended to date, the
"Guaranty"), in favor of the Lender, hereby expressly acknowledges and confirms,
for the benefit of the Borrower and the Lender, that (1) the Guarantor has an
economic interest in the financial success of the Borrower and the transactions
contemplated by the Loan Agreement and the Amendment, and hereby confirms to the
Lender the benefits to the Guarantor by reason of such transactions, (2) such
Guarantor has received a copy of Amendment No. 4 and Consent dated as of
December , 1998 to the Loan Agreement (the "Amendment") and consents thereto and
(3) the Guaranty of which such Guarantor is the maker constitutes a continuing,
unconditional guaranty of the Guaranteed Obligations under and as defined in the
Guaranty. The undersigned is and continues to be liable under its Guaranty in
accordance with the terms thereof, notwithstanding the execution and delivery of
the Amendment.
Dated: December ___, 1998
NOVOCON INTERNATIONAL, INC.
By:
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Name:
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Title:
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Address:
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ANNEX 3
To Amendment Xx. 0
XXXXXX XX XXXXXXX)
XXXXX XX XXXXXXX)
LANDLORD'S WAIVER
WHEREAS, BankBoston, N.A., as agent (the "Agent"), for itself and
certain other financial institutions (collectively, the "Lenders") and the
Lenders have entered into a loan transaction with Synthetic Industries, Inc.
(the "Debtor"), the obligations of the Debtor thereunder being secured in part
by all equipment and/or inventory of the Debtor (the "Personal Property") found
on the premises of the Catoosa County Development Authority located on real
estate located at Ringgold, Catoosa County, Georgia, and more particularly
described in Exhibit A hereto (the "Premises");
WHEREAS, the undersigned (the "Landlord") has an interest in the
Premises as lessor;
NOW, THEREFORE, in consideration of the financial accommodations
extended by the Lenders to the Debtor which have been applied, in part, to the
payment of the purchase price of certain of the Personal Property located on the
Premises on the date hereof, and for other good and valuable consideration, the
undersigned agrees as follows:
(a) That the Personal Property may be located, stored or installed in
the Premises from time to time and shall not be deemed a fixture or part of the
real estate but shall at all times be considered personal property;
(b) That it disclaims any interest in the Personal Property and agrees
to assert no claim to the Personal Property while Debtor is indebted to the
Lenders or the Agent;
(c) That the Agent or its representatives may enter upon the Premises
upon notice to but without the consent of Landlord to inspect or remove the
Personal Property, and may advertise and conduct a public auction or private
sale thereon;
(d) That at the option of the Agent said Personal Property may remain
upon (without the Agent or the Lenders being deemed to be taking possession of)
said Premises after the receipt by the Agent of written notice by the
undersigned directing removal thereof for a period of up to 90 days at the
rental provided under any lease covering the Premises then in effect to which
the Debtor is a party (or, if no such lease is then in effect, at a rental to be
agreed upon by the Agent and the undersigned), prorated on a per diem basis to
be determined on the basis of a 30-day month, without incurring any other
obligations of Debtor; provided that the Agent shall pay the cost of utilities
and, to the extent required to be paid by the Debtor, real property taxes during
the occupation of the Premises by the Agent; and
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(e) The Agent and the Lenders agree that, upon a default under any such
lease, the undersigned may set-off any security deposit or other rent paid by
the Debtor and held by the undersigned in satisfaction of any obligations owing
by the Debtor under any such lease.
This waiver is binding upon the undersigned and the heirs, personal
representatives, successors and assigns of the undersigned and inures to the
benefit of the Agent and the Lenders and their respective successors and
assigns.
Dated as of this _____ day of December, 1998.
LANDLORD:
CATOOSA COUNTY DEVELOPMENT AUTHORITY
By:
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Name:
Title:
Address:
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Exhibit A
Legal Description of Premises
ACKNOWLEDGEMENT
STATE OF
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COUNTY OF
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I hereby certify that on this day before me, an officer duly authorized
in the state aforesaid and in the county aforesaid to take acknowledgments,
personally appeared ___________________________, to me known and known to be the
person described in and who executed the foregoing instrument and acknowledged
before me that he/she executed the same for the purposes therein contained.
Witness my hand and official seal in the county and state last
aforesaid this _____ day of _______________, 199__.
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Notary Public
My commission expires:
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[NOTARIAL SEAL]
