EXHIBIT 10.66
CONSOLIDATED AMENDMENT NO. 1
TO
CREDIT AGREEMENT
This Consolidated Amendment No. 1 to Credit Agreement (this
"Amendment"), dated to be effective as of December 31, 1997 is entered into by
and between ATLANTIS PLASTICS INJECTION MOLDING, INC., and ATLANTIS PLASTICS,
INC. (collectively, the "Borrower"), and NATIONAL CITY BANK, successor by merger
to National City Bank, Northeast ("Bank").
WITNESSETH:
WHEREAS, the parties have entered into a Credit Agreement dated May 19,
1995, as amended by a certain Amendment to Credit Agreement dated as of
September 30, 1995 ( the "First Amendment"), a certain Second Amendment to
Credit Agreement dated as of December 31, 1995 (the "Second Amendment") and a
certain Third Amendment to Credit Agreement dated as of June 30, 1997 (the
"Third Amendment") as Amended (the "Credit Agreement"), all terms used in the
Credit Agreement being used herein with the same meaning); and
WHEREAS, the parties desire to further amend certain provisions of the
Credit Agreement to amend certain financial covenants; and
WHEREAS, the parties also wish to evidence the agreement of Borrower to
pay to Bank a $1,000.00 documentation fee in consideration of Bank's preparation
of this Amendment; and
WHEREAS, in light of the fact that certain terms set forth in previous
amendments have been affected by later amendments and/or will be affected by
this Amendment and for ease of reference, the parties also desire to restate and
consolidate in this Amendment all amendments to the Credit Agreement that are
effective on and as of the date hereof.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
SECTION I - AMENDMENTS TO CREDIT AGREEMENT
A. Section 2A.01 of the Credit Agreement is amended and restated in its entirety
as follows:
2A.01 AMOUNT -- The aggregate amount of the Subject Commitment shall be
determined by the ratio of Indebtedness to EBITDA (which EBITDA is calculated on
a trailing twelve (12) Fiscal Month basis), as determined on the most recent
ended Fiscal Month for which monthly financial statements have been delivered
pursuant to Section 3A.01, in accordance with the following table:
INDEBTEDNESS TO EBITDA MAXIMUM REVOLVING
LOAN COMMITMENT
/less than or equal to/ 6.25 and /greater than or equal to/5.75x $758,333.00
/greater than or equal to/5.50x $866,667.00
/greater than or equal to/5.25x $975,000.00
B. Section 2B.08 is amended and restated in its entirety to read as follows:
2B.08 BORROWING BASE -- The Borrowing Base at any given time shall be the
aggregate of
(a) an amount equal to eighty-five percent (85%) of the net book value
(after deducting any discount or other incentive for early payment but without
deducting any valuation reserve) of the Eligible Receivables, plus
(b) an amount equal to fifty percent (50%) of the Eligible Inventory,
all as reasonably determined by Bank either on the basis of the then most recent
Borrowing Base Report furnished by Borrower to Bank pursuant to subsection 3A.01
or on the basis of the then most recent field audit (if any) made or other
information received by Bank.
C. Section 3B.02 of the Credit Agreement is amended and restated in its entirety
as follows:
3B.02 FIXED CHARGE COVERAGE -- Fixed Charge Coverage on a trailing twelve (12)
Fiscal Month basis, shall not be less than .90:1.00 as of December 31, 1997.
D. Section 3B.03 of the Credit Agreement is amended and restated in its entirety
to read as follows:
3B.03 INTEREST EXPENSE COVERAGE -- Interest Expense Coverage, on a trailing
twelve (12) Fiscal Month basis, shall not be less than 1.80.
E. Section 3B.04 is amended to provided that on and after the date hereof,
Indebtedness to EBIDAT, on a trailing twelve (12) Fiscal Month basis, shall not
be greater than 6.25 at the end of any Fiscal Quarter.
F. Section 3B.05 of the Credit Agreement is amended and restated in its entirety
as follows:
3B.05 EBIDAT -- EBIDAT on a trailing twelve (12) Fiscal Month basis, shall not
be less than $22,000,000.00 as of December 31, 1997.
G. Section 3D.06 of the Credit Agreement is amended and restated in its entirety
to read as follows:
3D.06 OPERATING INCOME -- Atlantis Plastics Injection Molding, Inc. shall
maintain a minimum controllable operating income of $1,500,000.00 as of December
31, 1997.
SECTION II - CONDITIONS PRECEDENT
It is a condition precedent to the effectiveness of this Amendment
that, prior to or on the date hereof, the following items shall have been
delivered to Bank (in form and substance acceptable to Bank):
(A) a Certificate, dated as of the date hereof, of the secretary of
Borrower certifying (1) that Borrower's Articles of Incorporation have
not been amended since the execution of the Credit Agreement (or
certifying that true, correct and complete copies of any amendments are
attached), (2) that copies of resolutions of the Board of Directors of
Borrower are attached with respect to the approval of this Amendment
and of the matters contemplated hereby and authorizing the execution,
delivery and performance by Borrower of this Amendment and each other
document to be delivered pursuant hereto and (3) as to the incumbency
and signatures of
the officers of Borrower signing this Amendment and each other document
to be delivered pursuant hereto;
(B) a non-refundable documentation fee in the amount of $1000.00 in
consideration of Bank's preparation of this Amendment and its
agreements herein;
(C) an Acknowledgment of Receipt of a copy of, and Consent and
Agreement to the terms of, this Amendment by Xxxxxx Financial, Inc.
with respect to a certain Subordination Agreement executed and
delivered to Bank by such entity and dated May 18, 1995; and
(D) such other documents as Bank may request to implement this
Amendment and the transactions contemplated hereby.
If Bank shall consummate the transaction contemplated hereby prior to the
fulfillment of any of the conditions precedent set forth above, the consummation
of such transaction shall constitute only an extension of time for the
fulfillment of such conditions and not a waiver thereof.
SECTION III REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Bank that:
(A) none of the representations and warranties made in subsections
4B.01 through 4B.10 of the Credit Agreement has ceased to be true and
complete in any material respect as of the date hereof; and
(B) as of the date hereof no "Default Under This Agreement" has
occurred that is continuing.
SECTION IV- ACKNOWLEDGMENTS CONCERNING OUTSTANDING LOANS
Borrower acknowledges and agrees that, as of the date hereof, all of
Borrower's outstanding loan obligations to Bank are owed without any offset,
defense, claim or counterclaim of any nature whatsoever. Borrower authorizes
Bank to share all credit and financial information relating to Borrower with
Bank's parent company and with any subsidiary or affiliate company of Bank or of
Bank's parent company.
SECTION V - REFERENCES
On and after the effective date of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", or words of
like import referring to the Credit Agreement, and each reference in the Related
Writings to the "Credit Agreement", "thereof", or words of like import referring
to the Credit Agreement shall mean and refer to the Credit Agreement as amended
hereby. The Credit Agreement, as amended by this Amendment, is and shall
continue to be in full force and effect and is hereby ratified and confirmed in
all respects. To the extent any amendment set forth in any previous amendment is
omitted from this Amendment, the same shall be deemed eliminated as between
Borrower and Bank as of the date hereof. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of Bank under the Credit Agreement or constitute a waiver of any
provision of the Credit Agreement except as specifically set forth herein.
SECTION VI - GOVERNING LAW
This Amendment, and the respective rights and obligations of the
parties hereto, shall be construed in accordance with and governed by Ohio law.
IN WITNESS WHEREOF, the Borrower and the Bank have caused this
Amendment to be executed by their authorized officers on March 9, 1998.
NATIONAL CITY BANK ATLANTIS PLASTICS INJECTION
MOLDING, INC.
(a Kentucky corporation)
By: /S/___________________________ By: /S/_______________________________
Printed Name: XXXXX X. XXXXXXXX Printed Name:_________________________
Title: Vice President Title:________________________________
ATLANTIS PLASTICS, INC.
(a Florida corporation)
By: /S/_______________________________
Printed Name:_________________________
Title:________________________________
SECRETARY'S CERTIFICATE
The undersigned, being the duly elected, qualified and acting Secretary
of ATLANTIS PLASTICS, INC., a Florida corporation ("Borrower"), on this 9th day
of March, 1998, certifies to NATIONAL CITY BANK ("Bank"), as follows:
(1) The Articles of Incorporation of Borrower have not been
amended or modified in any manner since May 31, 1994 and they continue
to remain in full force and effect or, if amended, complete copies of
all amendments are attached hereto.
(2) The following resolutions have been adopted by the Board
of Directors of Borrower authorizing the most recent amendment of that
certain Credit Agreement originally dated as of May 19, 1995 (as
amended, the "Credit Agreement") by and between Borrower and Bank as
well as certain other documents and instruments executed in connection
therewith, and such resolutions are in full force and effect as of the
date hereof without modification:
RESOLVED, that the President or any Vice President of
Borrower be and hereby are authorized to enter into a
Consolidated Amendment No. 1 to Credit Agreement (the
"Amendment"), by and between Borrower and National City Bank
("Bank") containing such provisions and agreements as said
officer may approve.
RESOLVED FURTHER, that the President or any Vice
President of Borrower are hereby authorized to (i) carry out
the terms of the Amendment and in connection therewith to
execute and deliver any instruments and documents contemplated
thereby and (ii) to take such other actions as in any of their
judgment may be necessary or appropriate to consummate the
transactions described in the Amendment, and the acts of said
officers in executing and delivering any documents or
instruments to or for the benefit of Bank or in taking any
such action shall be conclusive evidence of a determination on
their part that the same is necessary or appropriate and of
the approval thereof by this Board.
(3) Set forth below is the true and correct printed name,
title and signature of the duly elected and acting officer(s) of
Borrower who either have executed or are authorized to execute the
Amendment as of the date hereof:
PRINTED NAME TITLE SIGNATURE
------------ ----- ---------
_____________________ ________________ /S/___________________
_____________________ ________________ /S/___________________
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
the date set forth above.
/S/______________________,
Secretary of Borrower
