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EXHIBIT 10.3
AMENDMENT NO. 2
THIS AMENDMENT AGREEMENT NO. 2 (the "Amendment Agreement") is made and
entered into as of this 1st day of April, 1998 by and among XXXXXXX FABRICS,
INC., a Delaware corporation (the "Borrower"), and NATIONSBANK, N.A. (formerly
NationsBank of Georgia, National Association), a national banking association,
in its capacity as Agent for each of the Lenders party to the Credit Agreement
(as defined below) (the "Agent"), and each of the undersigned Lenders. Unless
the context otherwise requires, all terms used herein without definition shall
have the respective meanings assigned thereto in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement dated as of September 20, 1993, as amended by that
certain Amendment Agreement No. 1 dated as of May 31, 1995, whereby the Lenders
have made available to the Borrower, a $60,000,000 revolving credit facility (as
at any time hereafter amended, restated, modified or supplemented, the "Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Agent and the Lenders make
certain amendments to the Credit Agreement; and
WHEREAS, the Agent and the Lenders are willing to so amend the Credit
Agreement upon the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the premises and conditions herein
set forth, it is hereby agreed as follows:
1. Credit Agreement Amendment. Subject to the conditions hereof, the
Credit Agreement is hereby amended, effective as of the date hereof, as follows;
(a) The definition of "Termination Date" appearing in Section
1.1 of the Credit Agreement is hereby amended to read in its entirety
as follows:
"Termination Date means September 20, 2000, as the
same may be extended from time to time in accordance with
Section 2.11 hereof, but in all events not later than
September 20, 2002."
(b) Section 2.11 of the Credit Agreement is hereby amended in
its entirety to read as follows:
"Provided Borrower shall have furnished to the Agent
and the Lenders the financial statements referred to in
Section 7.3 within the time set forth therein, the Borrower
may request not sooner than thirty (30) days preceding each of
September 20, 1998 and September 20, 1999, as applicable, that
the Termination Date be
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extended for an additional period of one year, provided that the
Termination Date may not extend beyond September 20, 2002. The Agent
shall notify the Borrower in writing, within sixty (60) days of such
request of the decision of the Lenders of whether to extend the
Termination Date. Failure by the Agent to give such notice shall
constitute refusal by the Lenders to extend the Termination Date.
The Termination Date shall be extended only upon written consent of
all Lenders."
2. Representations and Warranties. In order to induce the Agent and the
Lenders to enter into this Amendment Agreement, the Borrower hereby represents
and warrants that the Credit Agreement has been re-examined by the Borrower and
that except as disclosed by the Borrower in writing to the Agent as of the date
hereof:
(a) The representations and warranties made by the Borrower in
Article V thereof are true on and as of the date hereof;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its Subsidiaries
since the date of the most recent consolidated financial statements of
the Borrower and its Subsidiaries delivered to the Agent under Section
7.3 thereof;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the date of the most recent
consolidated financial statements of the Borrower and its Subsidiaries
delivered to the Lender under Section 7.3 thereof, have not been,
adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts; and
(d) After giving effect to this Amendment Agreement, no
condition exists which, upon the effectiveness of the amendment
contemplated hereby, would constitute a Default or an Event of Default
on the part of the Borrower under the Credit Agreement or the other
Loan Documents, either immediately or with the lapse of time or the
giving of notice, or both.
3. Conditions Precedent. The effectiveness of this Amendment Agreement
is subject to the receipt by the Agent of the following:
(i) six (6) counterparts of this Amendment Agreement duly
executed by all signatories hereto;
(ii) resolutions of the Board of Directors or other governing
body of the Borrower approving this Amendment Agreement certified by
the Secretary of the Borrower; and
(iii) copies of all additional agreements, instruments and
documents which the Lender may reasonably request, such documents,
when appropriate to be certified by appropriate governmental
authorities.
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All proceedings of the Borrower relating to the matters provided for herein
shall be satisfactory to the Agent and its counsel.
4. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, condition, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any party to
the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
5. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
6. Counterparts. This Amendment Agreement may be executed in any
number of counterparts, each of which shall be deemed an original as against any
party whose signature appears thereof, and all of which shall together
constitute one and the same instrument.
7. GOVERNING LAW. THIS AMENDMENT AGREEMENT SHALL IN ALL RESPECTS BE
GOVERNED BY THE LAW OF THE STATE OF GEORGIA, WITHOUT REGARD TO ANY OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. THE BORROWER HEREBY (i) SUBMITS TO
THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF GEORGIA FOR THE
PURPOSES OF RESOLVING DISPUTES HEREUNDER OR UNDER ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR FOR PURPOSES OF COLLECTION AND (ii) WAIVES
TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION.
8. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
9. Credit Agreement. All references in any of the Loan Documents to
the Credit Agreement shall mean and include the Credit Agreement as amended
hereby.
10. Successors and Assigns. This Amendment Agreement shall be binding
upon and inure to the benefit of each of the Borrower, the Lenders, the Agent
and their respective successors, assigns and legal representatives; provided,
however, that the Borrower, without the prior consent of the Lenders, may not
assign any rights, powers, duties or obligations hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
XXXXXXX FABRICS, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Chief Financial Officer
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Signature Page 1 of 5
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NATIONSBANK, N.A. (formerly NationsBank of
Georgia, National Association), as Agent for
the Lenders
By: /s/ Xxxx XxXxxxx
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Name: Xxxx XxXxxxx
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Title: Vice President
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NATIONSBANK, N.A. (formerly NationsBank of
Georgia, National Association), as Lender
By: /s/ Xxxx XxXxxxx
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Name: Xxxx XxXxxxx
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Title: Vice President
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Signature Page 2 of 5
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WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ X. Xxx O'Dell, II
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Name: Xxxxxxx Xxx O'Dell, II
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Title: Senior Vice President
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Signature Page 3 of 5
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SUNTRUST BANK, ATLANTA
By: /s/ X. X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President
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/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Banking Officer
Signature Page 4 of 5
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BANK OF MISSISSIPPI
By: /s/ Xxx Xxxxxxxxxx
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Name: Xxx Xxxxxxxxxx
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Title: Executive Vice President
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Signature Page 5 of 5
