AMENDMENT AND FORBEARANCE AGREEMENT
This Amendment and Forbearance Agreement ("Agreement") is made as of
the 13th day of November, 2000 by and between XXXXXXXX INDUSTRIES, INC., a
Delaware company ("Company"), XXXXXXXX YARN EQUIPMENT, INC., a South Carolina
company ("Xxxxxxxx Yarn"), WINK XXXXX
EQUIPMENT COMPANY, INC., a Georgia company
("Wink Xxxxx"), XXXX MOTION CONTROLS, INC., a North Carolina company ("Xxxx
Motion" and together with Xxxxxxxx Yarn, Wink Xxxxx and any future or indirect
subsidiaries of the Company or of any other entities listed above, the
"Subsidiaries"), jointly and severally and their respective successors and
assigns, and SOUTHTRUST BANK ("Bank").
WHEREAS, the parties listed above entered into that certain Credit
Facility Agreement, dated as of May 31, 2000 (the "Credit Agreement") for the
purpose of establishing a $17,500,000 Revolving Credit Facility and a
$15,000,000 Line of Credit Facility with the Bank in favor of the Company and
the Subsidiaries; and
WHEREAS, as of the close of business on November 7, 2000 the principal
amount outstanding under the Revolving Credit Facility was $14,954,000, and the
principal amount outstanding under the Line of Credit Facility was $4,952,424;
and
WHEREAS, the Company and the Subsidiaries have requested the Bank to
temporarily modify certain terms of the Credit Agreement and to forebear from
taking remedial actions as a result of their non-compliance with certain
covenants and warranties in the Credit Agreement; and
WHEREAS, the Bank is willing to accommodate the Company and the
Subsidiaries under the terms set forth in this Agreement.
NOW THEREFORE, the Company, each Subsidiary and the Bank, for valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the parties hereto, agree as follows:
ARTICLE I. Amendments to Credit Agreement; Term of Amendments.
1.01. For the term of these amendments as provided under section 1.02
below, the Credit Agreement shall be deemed amended as follows:
(a) The term "Revolving Credit Commitment" is amended to change
$17,500,000 to read $20,000,000.
(b) Section 3.1 is amended to reduce the maximum principal face
amount of Documentary Letters of Credit which may be
outstanding at any one time from the amount of $15,000,000
(as currently set forth in Section 3.1 of the Credit
Agreement) to the new limit of $7,500,000.
(c) Notwithstanding Section 4.2 of the original Credit Agreement,
the amount of the permitted Over-Advance Condition shall be
$1,000,000 during the months of December, 2000 and January,
2001, increased to $2,000,000 for the months of February and
March, 2001, reduced to $1,000,000 for the month of April,
2001 and shall be $0 (i.e., repaid in full) on May 1, 2001.
(d) During the term of this Agreement, the Applicable Margin for
the calculation of interest on the outstanding principal
amount of the Loan shall be LIBOR plus 300 basis points for
LIBOR Loans and the Base Rate plus 125 basis points for Base
Rate Loans.
1.02. The amendments stated in section 1.01 above shall remain in
effect until the later to occur of (a) June 30, 2001 or (b) the election by the
Bank, in its sole and absolute discretion, to terminate the amendments; provided
however, that notwithstanding the foregoing, if for any reason, (i) the Company
or the Subsidiaries fail to pay any sum to the Bank as and when due under the
terms of the Credit Agreement as amended herein, (ii) the condition of the
Company or any of the Subsidiaries deteriorates from their financial position on
the date of this Agreement such that they are in non-compliance with the
covenants under Sections 10.16, 10.17, 10.18 or 10.19 of the Credit Agreement as
amended herein, or (iii) any additional covenants under the Credit Agreement or
this Agreement are breached or any other Event of Default occurs, the Bank, in
its sole and absolute discretion, may terminate the amendments under this
Article I. Upon the expiration or termination of the amendments under this
section 1.01, and provided the Company and Subsidiaries are in compliance with
the terms and covenants of the original Credit Agreement and this Agreement, the
defined terms and covenants of the Loan shall revert to those under the original
Credit Agreement (except that the amendments in sections 1.01(a) and 1.01(b)
shall not revert).
ARTICLE II. Forbearance; Term of Forbearance.
2.01 The Company and the Subsidiaries acknowledge that as of the date
hereof they are not in compliance with the covenants set forth under Sections
10.16, 10.17, 10.18 and 10.19 of the Credit Agreement, and as a result, the Bank
could declare an event of default under the Credit Agreement and exercise its
rights and remedies thereunder and under the related Loan Documents. The Bank
agrees that, notwithstanding the forgoing, it will forbear from taking such
actions for the period set forth below, provided the Company and the
Subsidiaries remain in compliance with the terms hereof.
2.02 (a) The forbearance provided under this Article II shall remain in
effect until the later to occur of June 30, 2001 or the date on which the Bank,
in its sole and absolute discretion,
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notifies the Company and the Subsidiaries that the forbearance period has
expired (the "Forbearance Period"); provided however, that notwithstanding the
foregoing, if for any reason, (i) the Company or the Subsidiaries fail to pay
any sum to the Bank as and when due under the terms of the Credit Agreement as
amended herein, (ii) the condition of the Company or any of the Subsidiaries
deteriorates from their financial position on the date of this Agreement such
that they are in non-compliance with the covenants under Sections 10.16, 10.17,
10.18 or 10.19 of the Credit Agreement as amended herein, or (iii) any
additional covenants under the Credit Agreement or this Agreement are breached
or any Event of Default under the Credit Agreement occurs, the Bank in its sole
and absolute discretion may terminate the forbearance under this Article II.
(b) Upon the expiration of the Forbearance Period or the termination of
Article II by the Bank, the Bank may, in its sole and absolute discretion,
proceed to take any and all actions and remedies available to it under the
Credit Agreement or under the Loan Documents.
(c) The granting of said forbearance shall not indicate a course of
dealing between the parties or require the Bank to forbear from enforcing its
rights and remedies at any time in the future.
ARTICLE III. Additional Covenants of Company and Subsidiaries
3.01. The Company and Subsidiaries covenant the following:
(a) They will have a Consolidated Tangible Net Worth of not
less than $12,750,000 at the end of the second fiscal
quarter of 2001; $12,350,000 at the end of the third
fiscal quarter of 2001; and $14,350,000 at the end of the
fourth fiscal quarter of 2001.
(b) They will maintain ratios of Consolidated Total
Liabilities to Consolidated Tangible Net Worth not
exceeding 3.25 to 1.0 for the second and third fiscal
quarters of 2001 and not exceeding 3.0 to 1.0 for the
fourth fiscal quarter of 2001.
(c) They will have consolidated gross profit (as determined
under generally accepted accounting principals ("GAAP"))
of not less than $1,700,000 for the second fiscal quarter
of 2001; $3,400,000 for the third fiscal quarter of 2001
and $7,300,000 for the fourth fiscal quarter of 2001.
(d) They will have consolidated earnings before interest and
taxes (as determined under generally accepted accounting
principals ("GAAP")) of not less than ($6,000,000) for
the second fiscal quarter of 2001; ($400,000) for the
third fiscal quarter of 2001; and $3,400,000 for the
fourth fiscal quarter of 2001.
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3.02 The Company shall provide the Bank with pro forma consolidated
profit and loss statements and balance sheets for each of the four fiscal
quarters of 2002 at least 45 days prior to the end of fiscal 2001. Such
statements shall be in form and substance, and in reasonable detail, as is
acceptable to the Bank.
ARTICLE IV. Miscellaneous.
4.01 The Company and Subsidiaries agree to pay to the Bank a
restructuring fee equal to $50,000; such fee to be paid to the Bank in
immediately available funds on the date of execution of this Agreement. In
addition, the Company and Subsidiaries shall pay all of the costs of the Bank
associated with this Agreement, including but not limited to, the fees and costs
of the Bank's legal counsel.
4.02 The Company and each Subsidiary hereby agree to hold the Bank
harmless from and shall indemnify it against any and all liabilities, claims,
causes of actions and damages and damages relating to or arising from this
Agreement, the Credit Agreement, the Loan Documents or the transactions
contemplated thereby. The forgoing indemnification shall include the payment of
any legal fees and costs of the Bank associated with any claims or causes of
action relating hereto.
4.03 As additional consideration for Bank executing this Agreement,
Company and each Subsidiary hereby represent and warrant that they have no
present plans or intentions to file for protection under any chapter of the
United States Bankruptcy Code.
4.04 The forbearance granted by Bank does not alleviate any of the
Company's and each Subsidiary's obligations under the Loan including the
obligation to comply with all other covenants, conditions and requirements
contained in the Credit Agreement and Loan Documents and does not constitute a
waiver of any defaults, claims or rights that the Bank currently has or may have
against the Company or any Subsidiary in connection with the Loan, except that
Bank forbears from asserting its rights as stated in this Agreement. The
temporary forbearance by the Bank is granted based solely on the Bank's reliance
upon the Company's and each Subsidiary's representations and warranties to the
Bank and that the Company and each Subsidiary will at all times comply with the
terms of the Credit Agreement as amended hereby and the Loan Documents.
4.05 The Loan Documents and any other documents or instruments securing
the Loan (collectively, the "Security Documents") shall continue to secure the
obligations of the Company and each Subsidiary with the same force and effect as
when originally executed. It is intended that this Agreement will not disturb
the existing priority of any of the Security Documents.
4.06 Except as provided herein, the Credit Agreement and the Loan
Documents shall remain unchanged and in full force and effect.
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4.07 The Company and each Subsidiary warrant and represent to Bank that
the Loan is not subject to any credits, charges, claims, or rights of offset or
deduction of any kind or character whatsoever. For and in exchange of separate
consideration, the receipt and sufficiency of which is hereby acknowledged by
the Company and each Subsidiary, the Company and each Subsidiary hereby waives,
releases and discharges the Bank and the Bank's officers, directors, partners,
employees, agents and successors, any persons or entities owned or controlled
by, owning or controlling or under common control or affiliated with the Bank
from any and all claims and causes of action, in tort or in contract, whether
known or unknown and whether now existing, that have at any time been owned, or
that are hereafter owned, by the Company or any Subsidiary, and that arise out
of any one or more circumstances or events that occurred prior to the execution
of this Agreement.
4.08 All agreements of the Company and each Subsidiary contained herein
shall survive the execution and delivery of this Agreement, and shall survive
the termination of the Forbearance Period under Article II above.
4.09 This Agreement shall be governed by the laws of the State of North
Carolina.
4.10 This Agreement represents the final agreement among the parties
with respect to the subject matter hereof and may not be contradicted by
evidence of prior oral or written, contemporaneous, or subsequent oral
agreements among the parties. There are no unwritten oral agreements among the
parties.
4.11 All capitalized terms used herein but not otherwise defined shall
have the meaning assigned to them in the Credit Agreement.
4.12 Nothing herein shall inhibit the Bank from taking any actions to
protect its security interest in the Collateral authorized under the Credit
Agreement or Loan Documents.
4.13 In addition to the payment of the Restructuring Fee to the Bank
and the fees and costs of its counsel, the Company and each Subsidiary shall
cause to be delivered to the Bank an opinion of counsel, in form and substance
acceptable to the Bank and its counsel, stating that the Company and each
Subsidiary has full power and authority to execute this Agreement and that this
Agreement is enforceable in accordance with its terms.
4.14 The Company shall break those certain Lira forward purchase
contracts in effect on this date of this Agreement at its sole cost.
4.15 The Bank shall have the right to monitor the activities of the
Company and each Subsidiary on a daily or weekly basis and all components of
determining the Borrowing Base Amount. In addition, the Bank reserves the right,
in its sole and absolute discretion, to amend definitions of Eligible Accounts,
Eligible New Equipment Inventory, Certain Predetermined Used Equipment
Inventory, Eligible Used Equipment Inventory, Eligible Parts Inventory, Eligible
Inventory and the Borrowing Base Amount, as well as the formula for the
Borrowing
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Base Amount. The Company and each Subsidiary shall cooperate with the Bank in
such monitoring process and will provide such documents as may be requested by
the Bank for such monitoring purposes. The Company shall pay to the Bank a
monitoring fee as determined by the Bank and all costs associated with such
monitoring activities.
4.16 In case any one or more of the provisions contained in this
Agreement shall be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and this Agreement, the Credit
Agreement and the Note shall otherwise remain in full force and effect.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the Company, each Subsidiary and the Bank have
caused this Agreement to be duly executed by their duly authorized officers, all
as of the day and year first above written.
COMPANY AND SUBSIDIARIES: BANK:
XXXXXXXX INDUSTRIES, INC. (SEAL) SOUTHTRUST BANK (SEAL)
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ E. Xxxxxxx Xxxxx
----------------------------------------- --------------------------
Xxxxxx X. Xxxxxxxx E. Xxxxxxx Xxxxx
Its: President Its: Group Vice President
XXXXXXXX YARN EQUIPMENT, INC. (SEAL)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
Its: President
XXXX MOTION CONTROLS, INC. (SEAL)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
Its: President
WINK XXXXX EQUIPMENT COMPANY, INC. (SEAL)
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------------------
Xxxx X. Xxxxxxxxx
Its: Vice President & Assistant Secretary
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