EXHIBIT 10.38
TENTH AMENDMENT TO CREDIT AGREEMENT
This Tenth Amendment to Credit Agreement, dated as of August 4, 1997
(this "Agreement"), is between ATLANTIS PLASTICS, INC., a Florida corporation
("Borrower"), and XXXXXX FINANCIAL, INC., a Delaware corporation in its
individual capacity as a Lender and in its capacity as agent for the Lenders
("Agent").
W I T N E S S E T H:
WHEREAS, Agent, Borrower and Lenders are parties to that certain Credit
Agreement dated as of February 22, 1993 (as heretofore amended, the "Credit
Agreement"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in the Credit Agreement.
WHEREAS, the parties wish to amend the Agreement as provided herein.
NOW, THEREFORE, the parties agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT. Effective as of June 30, 1997,
the Credit Agreement is amended as follows:
A. Subsection 6.2 is hereby amended by deleting such
subsection in its entirety and replacing it with the following:
"6.2 FIXED CHARGE COVERAGE. The Fixed Charge Coverage, on a
trailing twelve (12) Fiscal Month basis, shall not be less than (i) .90 for the
Fiscal Quarter ending June 30, 1997 and (ii) 1.0 for the Fiscal Quarters ending
September 30, 1997 and thereafter."
B. Subsection 6.5 is hereby amended by deleting such
subsection in its entirety and replacing it with the following:
"6.5 EBIDAT. EBIDAT, on a trailing twelve (12) Fiscal Month
basis, shall not be less than the following for the respective Fiscal Quarters:
FISCAL QUARTER ENDING
---------------------
ON THE FOLLOWING DATES EBIDAT
---------------------- ------
June 30, 1997 $22,000,000
September 30, 1997 $24,000,000
December 31, 1997
And thereafter $24,202,000"
2. REPRESENTATIONS AND WARRANTIES. To induce Agent and Lenders to enter into
this Amendment, Borrower represents and warrants to Xxxxxx that:
(a) AUTHORITY AND BINDING EFFECT. The execution, delivery and
performance by Borrower of this Agreement is within its corporate power, has
been duly authorized by all necessary corporate action (including, without
limitation, shareholder approval), has received all necessary government
approvals (if any shall be required), and does not and will not contravene or
conflict with any provision of law applicable to Borrower, the Certificate of
Incorporation or Bylaws of Borrower, or any order, judgment, or decree of any
court or other agency of government or any agreement, instrument, or document
binding upon Borrower; and the Credit Agreement as heretofore amended and as
amended as of the date hereof is the legal, valid, and binding obligation of
Borrower enforceable against Borrower in accordance with its terms.
(b) NO DEFAULT. No Default or Event of Default under the
Credit Agreement, as amended hereby, has occurred and is continuing.
3. MISCELLANEOUS.
(a) CAPTIONS. Section captions used in this Agreement are for
convenience only, and shall not affect the construction of this Agreement.
(b) GOVERNING LAW. This Agreement shall be a contract made
under and governed by the laws of the State of Illinois, without regard to
conflict of laws principles. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(c) COUNTERPARTS. This Amendment may be executed in any number
of counterparts, and each such counterpart shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
Agreement.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon Agent, Borrower and Lenders and their respective successors and assigns,
and shall insure to the sole benefit of Agent, Borrower and Lenders and the
successors and assigns of Agent, Borrower and Lenders.
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(e) REFERENCES. Any reference to the Credit Agreement
contained in any notice, request, certificate, or other document executed
concurrently with or after the execution and delivery of this Agreement shall be
deemed to include this Agreement unless the context shall otherwise require.
(f) Continued Effectiveness. Notwithstanding anything
contained herein, the terms of this Agreement are not intended to and do not
serve to effect a novation as to the Credit Agreement. The parties hereto
expressly do not intend to extinguish the Credit Agreement. Instead, it is the
express intention of the parties hereto to reaffirm the indebtedness created
under the Credit Agreement which is evidenced by the Notes and secured by the
Collateral. The Credit Agreement as amended hereby and each of the other Loan
Documents remains in full force and effect.
(g) COST, EXPENSES AND TAXES. Borrower affirms and
acknowledges that subsection 10.1 of the Credit Agreement applies to this
Agreement and the transactions and Agreements and documents contemplated
hereunder.
Delivered at Chicago, Illinois, as of the day and year first above written.
ATLANTIS PLASTICS, INC.
By: /S/____________________________________
Name Printed:______________________________
Title:_____________________________________
XXXXXX FINANCIAL, INC.,
Individually and as Agent
By: /S/____________________________________
Name Printed:______________________________
Title:_____________________________________
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ACKNOWLEDGMENT
Each of Atlantis Molded Plastics, Inc., Atlantis Plastic Injection
Molding, Inc. (f/k/a Cyanede Plastics, Inc.), Atlantis Plastic Films, Inc. and
Xxxxxx Plastics, Inc. hereby acknowledges and consents to the terms of this
Agreement and hereby affirms, ratifies and confirms all of the terms and
provisions of the such entity's Guaranty in favor of Agent and Lenders.
ATLANTIS MOLDED PLASTICS, INC.
By: /S/____________________________________
Name Printed:______________________________
Title:_____________________________________
ATLANTIS PLASTIC INJECTION
MOLDING, INC.
By: /S/____________________________________
Name Printed:______________________________
Title:_____________________________________
ATLANTIS PLASTIC FILMS, INC.
By: /S/____________________________________
Name Printed:______________________________
Title:_____________________________________
XXXXXX PLASTICS, INC.
By: /S/____________________________________
Name Printed:______________________________
Title:_____________________________________
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