FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of January 28, 2000
(this "Amendment"), is between XXXXXXX INDUSTRIES, INC., an Indiana corporation
(the "Company"), and BANK ONE, INDIANA, N.A., a national banking association,
formerly known as NBD Bank (the "Bank").
RECITALS
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A. The Company and the Bank are parties to a Credit Agreement dated as
of February 2, 1997 (as now and hereafter amended, the "Credit Agreement")
pursuant to which the Bank agreed, subject to the terms and conditions thereof,
to extend credit to the Company in a revolving credit facility in the amount of
$10,000,000.
B. The parties now desire to renew the revolving credit facility and to
amend certain terms and provisions of the Credit Agreement as set forth herein.
TERMS
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In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE I. AMENDMENTS. Effective upon the date that the conditions set forth in
Article III of this Amendment are satisfied (the "Amendment Date"), which date
shall be determined by the Bank in its sole discretion, the Credit Agreement
shall be amended as follows:
1.1 The definitions of the terms "Bonds" and "Revolving Credit
Termination Date" in Section 1.1 are amended and restated in their entirety as
follows:
"Bonds" shall mean (i) the Five Million Dollars
($5,000,000) principal amount The Stanly County Industrial
Facilities And Pollution Control Financing Authority Variable
Rate Demand Industrial Development Revenue Bonds (Xxxxxxx
Industries, Inc. Project), Series 1998, (ii) the Six Million
Dollars ($6,000,000) principal amount State of Oregon Economic
Development Revenue Bonds, Series CLI (Xxxxxxx Industries,
Inc. Project), dated December 22, 1994, (iii) the Three
Million Nine Hundred Thousand Dollars ($3,900,000) principal
amount The Indiana Development Finance Authority Limited
Obligation Refunding Revenue Bonds (Xxxxxxx Industries, Inc.
Project), Series 1991, and (iv) all other obligations of the
Company or any of its Subsidiaries to the Bank under or in
connection with any future bond issuance for the benefit of
the Company or any of its Subsidiaries.
"Revolving Credit Termination Date" shall mean the
earlier to occur of (a) January 28, 2003 and (b) the date on
which the Commitment shall be terminated pursuant to Section
2.2 or Section 6.2.
1.2 The following definition of the term "Amendment Fee" is added to
Section 1.1 in alphabetical order:
"Amendment Fee" shall mean the fee payable in
connection with the First Amendment to Credit Agreement, dated
as of January 28, 2000 (the "First Amendment") on the
Amendment Date as defined in the First Amendment in the amount
of $12,500.
1.3 Section 5.2(c) shall be amended and restated as follows:
(c) Tangible Net Worth. Permit or suffer the consolidated
Tangible Net Worth of the Company and its Subsidiaries to be
less than $57,000,000 at any time, which amount shall be
increased by an amount equal to (i) 50% of the Cumulative Net
Income of the Company and its Subsidiaries on and after
December 31, 1998, and (ii) 100% of the net cash proceeds of
any stock issuance by the Company after the Effective Date.
1.4 The following subsection (c) is added to the end of Section 2.3 as
follows:
(c) In addition to the commitment fees payable
pursuant to Section 2.3(a) and the facility fee payable
pursuant to Section 2.3(b), the Company agrees to pay to the
Bank on the Amendment Date an Amendment Fee of $12,500.
1.5 Exhibit A annexed to the Credit Agreement is deleted in its
entirety and Exhibit A annexed to this Amendment shall be deemed substituted in
place thereof. The Company shall execute and deliver to the Bank a replacement
revolving credit note in the form of Exhibit A annexed to this Amendment (the
"Replacement Revolving Credit Note") to be exchanged for the existing Revolving
Credit Note issued by the Company to the Bank under the Credit Agreement (the
"Existing Revolving Credit Note"). On the Amendment Date, the principal balance
of the Existing Revolving Credit Note, as well as all other information which
has been endorsed on the schedule attached to the Existing Revolving Credit Note
or elsewhere on the books and records of the Bank with respect to the Existing
Revolving Credit Note, shall be endorsed on the schedule attached to the
Replacement Revolving Credit Note or elsewhere on the books and records of the
Bank with respect to the Replacement Revolving Credit Note. The execution and
delivery by the Company of the Replacement Revolving Credit Note shall not in
any circumstances be deemed a novation or to have terminated, extinguished or
discharged the Company's indebtedness evidenced by the Existing Revolving Credit
Note, all of which indebtedness shall continue under and be evidenced and
governed by the Replacement Revolving Credit Note and the Credit Agreement, as
amended, and, subject to Article III of this Amendment, the Bank shall be
entitled to all of the benefits of the security documents with respect to the
entire indebtedness evidenced by the Replacement Revolving Credit Note.
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1.6 Each reference in the Credit Agreement, the Note and all related
documents, instruments and agreements to "NBD Bank" shall be deleted and "Bank
One, Indiana, N.A." shall be substituted in place thereof.
1.7 Schedules 4.4, 4.5, 4.13, 5.2(e) and 5.2(f) annexed to the Credit
Agreement are deleted in their entirety and Schedules 4.4, 4.5, 4.13, 5.2(e) and
5.2(f) annexed to this Amendment shall be deemed substituted in place thereof.
ARTICLE II. REPRESENTATIONS. The Company represents and warrants to the Bank
that:
2.1 The execution, delivery and performance of this Amendment are
within its powers, have been duly authorized and are not in contravention with
any law, of the terms of its Articles of Incorporation or By-laws, or any
material undertaking to which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of the
Company enforceable against it in accordance with the respective terms hereof.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof with the same force and effect as if made
on and as of the date hereof, provided, that, the representations and warranties
contained in Section 4.6 of the Credit Agreement shall be deemed to have been
made with respect to the financial statements most recently delivered pursuant
to Section 5.1(d) of the Credit Agreement.
2.4 No Event of Default or event or condition which, with notice or
lapse of time or both, could become such an Event of Default exists or has
occurred and is continuing on the date hereof.
ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until each of the following has been satisfied:
3.1 Copies of resolutions adopted by the Board of Directors of the
Company, certified by an officer of the Company, as being true and correct and
in full force and effect without amendment as of the date hereof, authorizing
the Company to enter into this Amendment and any other documents or agreements
executed pursuant hereto, if any, shall have been delivered to the Bank.
3.2 This Amendment shall be signed by the Company and the Bank.
3.3 The Company shall have executed the Revolving Credit Note annexed
to this Amendment as Exhibit A.
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3.4 The Bank shall receive a favorable written opinion of Xxxxxxx &
Boyn, counsel for the Company, in a form reasonable satisfactory to the Bank.
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3.5 The Company shall have paid the Amendment Fee and the fees of
counsel to the Bank.
3.6 The Bank shall receive such other documents and the Company shall
satisfy such other conditions and complete such other matters as the Bank may
reasonable request.
ARTICLE IV. MISCELLANEOUS.
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4.1 References in the Credit Agreement to "this Agreement" and
references in any note, certificate, instrument or other document to the "Credit
Agreement" shall be deemed to be references to the Credit Agreement as amended
hereby and as further amended from time to time.
4.2 The Company agrees to pay and to save the Bank harmless for the
payment of all costs and expenses arising in connection with this Amendment,
including the reasonable fees of counsel to the Bank in connection with
preparing this Amendment and the related documents.
4.3 The Company acknowledges and agrees that the Bank has fully
performed all of its obligations under all documents executed in connection with
the Credit Agreement and all actions taken by the Bank are reasonable and
appropriate under the circumstances and within its rights under the Credit
Agreement and all other documents executed in connection therewith and otherwise
available. The Company represents and warrants that it is not aware of any
claims or causes of action against the Bank, or any of its successors or
assigns. Notwithstanding this representation and as further consideration for
the agreements and understandings herein, the Company and its heirs, successors
and assigns, hereby release the Bank and its heirs, successors and assigns from
any liability, claim, right or cause of action which now exists, arising from or
in any way related to facts in existence as of the date hereof to any agreements
or transactions between the Bank and the Company or to any acts or omissions of
the Bank in connection therewith or otherwise.
4.4 Except as expressly amended hereby, the Company agrees that the
Credit Agreement, the promissory note and all other documents and agreements
executed by the Company in connection with the Credit Agreement in favor of the
Bank are ratified and confirmed and shall remain in full force and effect and
that it has no set off, counterclaim or defense with respect to any of the
foregoing. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement.
4.5 This Amendment shall be deemed to be a contract made under and for
all purposes shall be governed by and construed in accordance with the laws of
the State of Indiana applicable to contracts made and to be performed entirely
within such State, without regard to the choice of law principles of such State.
4.6 This Amendment may be signed upon any number of counterparts with
the same effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of the date first above written.
XXXXXXX INDUSTRIES, INC.
/S/Xxxxx X. Xxxxxx
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By: Xxxxx X. Xxxxxx
Its: Vice President - Finance
BANK ONE, INDIANA, N.A.
/S/Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx
Its: Vice President
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