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EXHIBIT 10.33
AMENDMENT NO. 5 AND WAIVER TO
CREDIT AGREEMENT
AMENDMENT NO. 5 AND WAIVER dated as of March 26, 1999 (this
"Amendment") to Credit Agreement dated as of January 7, 1997 (the "Credit
Agreement") among Brookwood Companies Incorporated, Xxxxxx Industries, Inc. and
Brookwood Laminating, Inc., as Borrowers, and The Bank of New York, as the Bank.
WHEREAS, the parties hereto desire to amend or waive certain covenants
of the Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined herein will have
the respective meanings given to such terms in the Credit Agreement.
2. Waiver. The Bank hereby waives compliance by the Borrowers with the
minimum Consolidated Capital Expenditure requirement of Section 6.8 of the
Credit Agreement, but only for the fiscal year ended December 31, 1998, and the
Bank also waives its right to declare a default, Default, or Event of Default
under the Credit Agreement as a result of any non-compliance with said
Consolidated Capital Expenditure requirement.
3. Amendment. Section 6.1(c) is hereby amended by adding the
following exception to the end of Section 6.1(c);
"except for the period of four consecutive fiscal quarters ending March 31,
1999 and for said period only the required ratio of Consolidated EBITDA to
Consolidated Fixed Charges may not be less than 0.70:1.00."
4. References. From the date hereof, references in the Credit Agreement
to "this Agreement" or in any other Loan Document to the "Credit Agreement" will
be a reference to the Credit Agreement as amended hereby.
5. Representations and Warranties. Each of the Borrowers hereby
represents and warrants that each of the representations and warranties made
under Section 3 of the Credit Agreement is true and correct with the same force
and effect as though made on and as of the date of this Amendment, except to the
extent that such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties were true and correct on
and as of such earlier date. As of the date of this Amendment, no Default or
Event of Default (other than any Default or Event of Default expressly waived
hereby) has occurred and is continuing or would result from the transactions
contemplated hereby.
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6. Credit Agreement Remains in Effect. Except as expressly waived,
modified and amended hereby, the Credit Agreement remains unchanged and in full
force and effect in all material respects. This Amendment shall not be deemed to
be a waiver of, or consent to, or a modification or amendment of, any other term
or condition of the Credit Agreement or to prejudice any other right or rights
that the Bank may now have or may have in the future under or in connection with
the Credit Agreement or any of the instruments or agreements referred to
therein, as the same may be amended, supplemented or otherwise modified from
time to time.
7. Conditions to Effectiveness. This Amendment will become effective as
of March 26, 1999, but only upon Bank's receipt of (i) an original counterpart
of this Amendment executed by each of the Borrowers, and (ii) a fee in the
amount of $10,000 payable by the Borrowers as consideration for this Amendment.
8. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
9. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
THE BORROWERS:
BROOKWOOD COMPANIES INCORPORATED
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Vice President Finance
XXXXXX INDUSTRIES, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Treasurer
BROOKWOOD LAMINATING, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Treasurer
THE BANK:
THE BANK OF NEW YORK
By: /s/ XXXXX X. XXXXX
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Name: Xxxxx X. Xxxxx
Title: Vice President
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