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EXHIBIT 10.23
AMENDMENT NO. 1
TO
CREDIT AGREEMENT
AMENDMENT NO. 1 dated as of June 28, 1996 to the Credit Agreement dated as
of March 28, 1996 among Xxxxxxxx Industries, Inc., Wellington Sears Company,
Southern Phenix Textiles, Inc., Opp and Xxxxxxx Xxxxx, Inc., Xxxxxxxx
Industries Composite Reinforcements, Inc. and X.X. Xxxxx Company (each, a
"Borrower" and collectively, the "Borrowers"), the banks named therein (each, a
"Bank" and collectively, the "Banks"), The Chase Manhattan Bank, N.A., as
Administrative Agent, Chase Securities, Inc., as Arranger and Nationsbank,
N.A., as Syndication Agent (the "Credit Agreement"). All capitalized terms
used but not otherwise defined herein shall have the meanings given them in the
Credit Agreement.
WITNESSETH:
WHEREAS, the Banks, each Borrower, the Administrative Agent, the Arranger
and the Syndication Agent entered into the Credit Agreement, pursuant to which
certain Banks made Revolving Credit Loans, Term Loans A and Term Loans B to the
Borrowers in the aggregate principal amounts of $80,000,000, $40,000,000 and
$40,000,000, respectively; and
WHEREAS, the Borrowers have requested, and the Banks have agreed, subject
to the terms and conditions hereinafter set forth, to amend certain provisions
of the Credit Agreement to better reflect the operation of the Loans extended
thereunder and to modify the Borrowers' covenant regarding the permitted
minimum amounts of Consolidated Tangible Net Worth, and the Borrowers further
wish to confirm and reaffirm their joint and several obligations under the
Credit Agreement as amended hereby.
NOW, THEREFORE, each Bank, the Administrative Agent, the Syndication
Agent, the Arranger and each Borrower, on a joint and several basis, hereby
agree as follows:
1. Amendment to Definitions. Section 1.01 of the Credit Agreement is
amended hereby as follows:
a. The definition of "SBA Sale" is deleted in its entirety.
b. The following defined terms are added to Section 1.01 in alphabetical
order therein:
"Net Sales Proceeds" shall have the meaning assigned to that
term in Section 2.07(a).
"Sale" shall have the meaning assigned to that term in
Section 2.07(a).
2. Amendment to Section 2.01(b) - Repayment of Term Loans. Section
2.01(b) of the Credit Agreement is amended hereby to delete the second sentence
of said clause in its entirety and to substitute it with the following:
"The Term Loans shall be repaid in equal quarterly installments
of the annual aggregate amounts set forth below until and including the
Term Loan A Termination Date and Term Loan B Termination Date,
respectively, such that on the last Business day of each calendar
quarter, each Bank shall be paid an amount equal to such Bank's pro
rata share of the quarterly installment of the annual amounts set forth
below for Term Loan A or Term Loan B, as the case may be (calculated
based on its Term Loan Percentage):".
3. Amendment to Section 2.07 - Mandatory Prepayments.
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a. Section 2.07 of the Credit Agreement is amended hereby to delete
paragraph (a) thereof in its entirety and to substitute said paragraph with the
following:
"(a) Within six months after the Closing Date (the "Sale Period"),
the Borrowers will cause to be discharged in full (by repayment,
assumption or otherwise) all obligations of the Consolidated
Entities in respect of the SBA Loans. If, at any time, any
Consolidated Entity sells or otherwise disposes of all or any
substantial part of its assets (other than in the ordinary course
of business) (a "Sale"), then the cash proceeds (net of taxes and
transaction expenses, including commissions) of such Sale (the "Net
Sales Proceeds") shall be applied to discharge the SBA Loans, the
Term Loans and the Revolving Credit Loans as follows:
(1) 100% of Net Sales Proceeds received on or before the first
anniversary of the Closing Date shall be applied:
First, to the SBA Loans (to the extent not discharged by
assumption or otherwise) or the principal installments on the
Term Loans in inverse order of their maturities, at the
Borrowers' option, until (i) the obligations of the
Consolidated Entities in respect of the SBA Loans have been
discharged in full and (ii) $5,500,000 shall have been
applied to the principal installments of the Term Loans; and
Second, at the Borrowers' option (provided that Borrowers
shall have no option if a Default has occurred and is
continuing), to the principal installments of the Term Loans
in inverse order of their maturities or to the Revolving
Credit Loans.
(2) 100% of Net Sales Proceeds received after the first
anniversary of the Closing Date shall be applied:
First, to the principal installments of the Term Loans in
inverse order of their maturities until the Term Loans shall
have been paid in full; and
Second, to the Revolving Credit Loans until the Revolving
Credit Loans shall be paid in full."
b. Section 2.07 of the Credit Agreement is hereby further
amended to add to paragraph (d) thereof the following:
"; provided, however, that any mandatory prepayments under Section
2.07(a)(1) in respect of Net Sales Proceeds received during the
Sale Period need not be applied until the end of such Sale Period."
4. Amendment to Section 7.01 - Affirmative Covenants. Section
7.01 of the Credit Agreement is hereby amended as follows:
a. Section 7.01(o). Section 7.01(o) is amended by substituting
"150 days" for "45 days" where it appears therein. Time shall
be of the essence with respect to the time period for Borrowers to
comply with their joint and several obligations regarding delivery
of surveys, which is hereby extended to 150 days from the Closing
Date in lieu of 45 days.
b. Section 7.01(p). Section 7.01(p) is amended by substituting
"90 days" for "60 days" where it appears therein as an
extension of the time period for Borrowers to procure Interest Rate
Protection Agreements.
c. Section 7.01(s). Section 7.01(s) is amended by substituting
"150 days" for "45 days" where it appears therein. Time shall
be of the essence with respect to the time period for
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Borrowers to comply with their joint and several obligations
regarding delivery of mortgages with respect to Real Property owned
by TJB, which is hereby extended to 150 days from the Closing Date
in lieu of 45 days.
5. Amendment to Section 7.03 - Financial Covenants.
a. Section 7.03 of the Credit Agreement is hereby amended to delete
paragraph (b) thereof in its entirety and to substitute said paragraph with the
following:
"(b) Capital Expenditures. Permit Consolidated Capital Expenditures to
exceed (i) $24,000,000 for the fiscal year ending December 31, 1996 and
(ii) the lesser of (x) $25,000,000 for the fiscal year ending December 31,
1997 and for all fiscal years thereafter, or (y) 110% of the depreciation
amount set forth in the Consolidated Entities' Financial Statements for
the previous fiscal year, provided that, amounts of Consolidated Capital
Expenditures permitted hereunder but not utilized in any fiscal year may
be carried forward and utilized in the following fiscal year, so long as,
after giving effect to such carry-forward, the Borrowers remain in
compliance with all covenants contained in ARTICLE VII."
b. Section 7.03 of the Credit Agreement is hereby amended to delete
paragraph (d) thereof in its entirety and to substitute said paragraph with the
following:
"(d) Consolidated Tangible Net Worth. Permit its Consolidated Tangible
Net Worth, at all times during the periods set forth below, to be less
than the amount set forth opposite such period:
Period: Amount:
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Closing Date - 3/31/97 $44,000,000
4/l/97- 9/30/97 $49,000,000
10/l/97 - 12/31/97 $54,000,000
1/l/98- 9/30/98 $69,000,000
10/l/98 and at all
times thereafter $75,000,000
6. Representations, Warranties and Covenants of the Borrowers. Each
Borrower hereby represents and warrants to each Bank that on and as of the date
hereof (i) the representations and warranties of the Borrowers contained in the
Credit Agreement and any other Loan Document delivered in connection therewith
to which it is a party are true and correct with the same force and effect as
though made on and as of the date hereof, (ii) the Borrowers are in compliance
with all covenants contained in the Credit Agreement (as amended hereby), and
(iii) no Default or Event of Default has occurred and is continuing under the
Credit Agreement (as amended hereby) or any other Loan Document delivered in
connection therewith to which it is a party, after giving effect to this
Amendment. To the extent any claim or offset may exist as of the date hereof,
each Borrower, on behalf of itself and its successors and assigns, hereby
forever and irrevocably (a) releases each Bank, the Agent, the Arranger and the
Syndication Agent and their respective officers, representatives, agents,
attorneys, employees, successors and assigns (collectively, the "Released
Parties"), from any and all claims, demands, damages, suits, cross-complaints
and causes of action of any kind and nature whatsoever, whether known or
unknown and wherever and howsoever arising, and (b) waives any right of off-set
such Borrower may have against any of the Released Parties.
7. Credit Agreement in Full Force and Effect. Except as expressly
modified hereby, the Credit Agreement shall remain unchanged and in full force
and effect as executed and each Borrower hereby confirms and reaffirms all of
the terms and conditions of the Credit Agreement.
8. Entire Understanding. The Credit Agreement and this Amendment
contain the entire understanding of and supersede all prior agreements,
written and verbal, among the Banks, the Administrative
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Agent, the Syndication Agent, the Arranger and the Borrowers with respect to
the subject matter hereof and shall not be modified except in writing executed
by the parties hereto.
9. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
conflict of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE BORROWERS:
XXXXXXXX INDUSTRIES, INC. WELLINGTON SEARS COMPANY
By: /s/Xxxx X. Xxxxxxx By: /s/Xxxx X. Xxxxxxx
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Name:Xxxx X. Xxxxxxx Name:Xxxx X. Xxxxxxx
Title:Vice President and C.F.O. Vice President
OPP AND XXXXXXX XXXXX, INC. X.X. XXXXX COMPANY
By: /s/Xxxx X. Xxxxxxx By: /s/Xxxx X. Xxxxxxx
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Name:Xxxx X. Xxxxxxx Name:Xxxx X. Xxxxxxx
Title:Vice President Vice President
SOUTHERNPHENIX TEXTILES, INC. XXXXXXXX INDUSTRIES COMPOSITE
REINFORCEMENTS, INC.
By: /s/Xxxx X. Xxxxxxx By: /s/Xxxx X. Xxxxxxx
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Name:Xxxx X. Xxxxxxx Name:Xxxx X. Xxxxxxx
Title:Vice President Vice President
THE ADMINISTRATIVE AGENT: THE ARRANGER:
THE CHASE MANHATTAN BANK, X.X. XXXXX SECURITIES, INC.
By: By:
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Name: Name:
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Title: Title:
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THE SYNDICATION AGENT:
NATIONSBANK, N.A.
By:
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Name:
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Title:
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THE BANKS:
THE CHASE MANHATTAN BANK, N.A. NATIONS BANK, N.A.
By: By:
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Name: Name:
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Title: Title:
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FIRST ALABAMA BANK COMERICA BANK
By: By:
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Name: Name:
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Title: Title:
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XXX XXXXXX AMERICAN CAPITAL CORESTATES FINANCIAL CORP.
By: By:
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Name: Name:
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Title: Title:
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WACHOVIA BANK OF GEORGIA, N.A. THE SUMITOMO BANK, LTD.
By: By:
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Name: Name:
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Title: Title:
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By:
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Name:
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Title:
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