EXHIBIT 10.47
WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT (the
"AMENDMENT") is dated as of January 22, 2004, by and among AVONDALE XXXXX,
INC., an Alabama corporation, as the Borrower (in such capacity, the
"BORROWER") and as a Credit Party; AVONDALE XXXXX GRANITEVILLE FABRICS, INC., a
Delaware corporation, as a Credit Party (together with Avondale Xxxxx, Inc.,
the "CREDIT PARTIES" and each a "CREDIT PARTY"), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as the sole Lender (in such capacity, the
"LENDER") and as agent (in such capacity, the "AGENT"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to
such terms in Annex A to the Credit Agreement referred to below.
RECITALS
WHEREAS, the Borrower, the Credit Parties, the Lender and the
Agent are parties to a Credit Agreement dated as of November 7, 2003 (as
amended, restated, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT");
WHEREAS, the Borrower has failed to provide (a) evidence
satisfactory to the Agent that, as of the December 22, 2003, Cash Management
Systems complying with Annex C to the Credit Agreement have been established
and are currently being maintained in the manner set forth in such Annex C to
the Credit Agreement, together with copies of duly executed tri-party blocked
account and lock box agreements, reasonably satisfactory to the Agent, with
respect to each of the bank accounts listed on Schedule V to Annex D to the
Credit Agreement in contravention of Section 2.1(a) of the Credit Agreement and
(b) an acknowledgment executed by Wachovia Bank, National Association relating
to the Pledged Account Agreement Side Letter dated as of July 3, 2003 in
contravention of Section 2.1(a) of the Credit Agreement;
WHEREAS, the Borrower and the Credit Parties have requested
that the Lender and the Agent waive all violations of the Credit Agreement that
may arise solely as a result of the Borrower's failure to provide (a) evidence
satisfactory to the Agent that, as of the December 22, 2003, Cash Management
Systems complying with Annex C to the Credit Agreement have been established
and are currently being maintained in the manner set forth in such Annex C to
the Credit Agreement, together with copies of duly executed tri-party blocked
account and lock box agreements, reasonably satisfactory to the Agent, with
respect to each of the bank accounts listed on Schedule V to Annex D to the
Credit Agreement or (b) an acknowledgment executed by Wachovia Bank, National
Association relating to the Pledged Account Agreement Side Letter dated as of
July 3, 2003;
WHEREAS, the Lender and the Agent have agreed to grant such
waivers on the terms and conditions set forth herein; and
WHEREAS, the Parties hereto have agreed, on the terms and
conditions set forth below, to so amend the Credit Agreement.
NOW, THEREFORE, in consideration of the continued performance
by Borrower and each Credit Party of their respective promises and obligations
under the Credit Agreement and the other Loan Documents, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Credit Parties, the Lender, and the Agent
hereby agree as follows:
1. Waiver. Effective as of the date hereof and subject
to the satisfaction of the conditions precedent set forth in Section 3, below,
the Lender and the Agent hereby waive any violation of the Credit Agreement,
including but not limited to Section 2.1(a) thereof as may arise solely as a
result of the Borrower's failure to provide on or prior to March 12, 2004 (a)
evidence satisfactory to the Agent that, as of the December 22, 2003, Cash
Management Systems complying with Annex C to the Credit Agreement have been
established and are currently being maintained in the manner set forth in such
Annex C to the Credit Agreement, together with copies of duly executed
tri-party blocked account and lock box agreements, reasonably satisfactory to
the Agent, with respect to each of the bank accounts listed on Schedule V to
Annex D to the Credit Agreement or (b) an acknowledgment executed by Wachovia
Bank, National Association relating to the Pledged Account Agreement Side
Letter dated as of July 3, 2003.
2. Amendment to Credit Agreement. Subject to Section 3
hereof, the Credit Agreement is hereby amended as follows:
(a) Annex D to the Credit Agreement is hereby amended to
delete the text of the footnote to item 34 in its entirety and to substitute
the following therefor:
"To be delivered on or before Xxxxx 00, 0000"
(x) Annex D to the Credit Agreement is hereby amended to
delete the text of the footnote to item 37 in its entirety and to substitute
the following therefor:
"To be delivered on or before March 12, 2004"
3. Effectiveness of this Amendment; Conditions
Precedent. The provisions of Paragraphs 1 and 2 of this Amendment shall be
deemed to have become effective as of the date of this Amendment, but such
effectiveness shall be expressly conditioned upon the Agent's receipt of (a) an
originally-executed counterpart of this Amendment executed and delivered by duly
authorized officers of the Borrower, the Credit Parties, Avondale Incorporated
and the Lender and (b) evidence satisfactory to the Agent that all conditions
precedent to the effectiveness of Amendment No. 4 to Receivables Purchase and
Servicing Agreement dated as of the date hereof among the Borrower, Avondale
Funding, LLC and General Electric Capital Corporation in its respective
capacities as Committed Purchaser and as Administrative Agent have been
satisfied.
4. Miscellaneous.
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(a) Headings. The various headings of this Amendment are
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this Amendment or any provisions hereof.
(b) Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and the same
instrument. Delivery of an executed counterpart of a signature page to this
Amendment by facsimile transmission shall be effective as delivery of a
manually executed counterpart thereof.
(c) Interpretation. No provision of this Amendment shall
be construed against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured, drafted or dictated such provision.
(d) Reaffirmation, Ratification and Acknowledgment;
Reservation. The Borrower and each Credit Party hereby (a) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, and each grant of security interests and liens in favor of the
Agent, under each Loan Document to which it is a party, (b) agrees and
acknowledges that such ratification and reaffirmation is not a condition to the
continued effectiveness of such Loan Documents, and (c) agrees that neither
such ratification and reaffirmation, nor the Agent's, or the Lender's
solicitation of such ratification and reaffirmation, constitutes a course of
dealing giving rise to any obligation or condition requiring a similar or any
other ratification or reaffirmation from the Borrower or such Credit Party with
respect to any subsequent modifications to the Credit Agreement or the other
Loan Documents. The Credit Agreement is in all respects ratified and confirmed.
Each of the Loan Documents shall remain in full force and effect and are hereby
ratified and confirmed. Except as set forth in Section 1 above, neither the
execution, delivery nor effectiveness of this Amendment shall operate as a
waiver of any right, power or remedy of the Agent or the Lender, or of any
Default or Event of Default (whether or not known to the Agent or the Lender),
under any of the Loan Documents, all of which rights, powers and remedies, with
respect to any such Default or Event of Default or otherwise, are hereby
expressly reserved by the Agent and the Lender. This Amendment shall constitute
a Loan Document for purposes of the Credit Agreement.
(e) Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE
A CONTRACT MADE UNDER AND GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF GEORGIA.
(f) Effect. Upon the effectiveness of this Amendment,
each reference in the Credit Agreement to "this Amendment," "hereunder,"
"hereof" or words of like import shall mean and be a reference to the Credit
Agreement as amended hereby and each reference in the other Loan Documents to
the Credit Agreement, "thereunder," "thereof," or words of like import shall
mean and be a reference to the Credit Agreement as amended hereby. Except as
expressly provided in this Amendment, all of the terms, conditions and
provisions of the Credit Agreement and the other Loan Documents shall remain
the same. The Borrower hereby represents and warrants to the Lender that all
authorizations, consents and approvals of the Borrower's board of directors and
shareholders, and all other Persons, necessary to permit the Borrower to
execute
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and deliver this Amendment and to perform its obligations hereunder and under
the Credit Agreement as amended hereby, and to permit the Lender and the Agent
to enforce such obligations, have been obtained.
(g) No Novation or Waiver. Except as specifically set
forth in this Amendment the execution, delivery and effectiveness of this
Amendment shall not (a) limit, impair, constitute a waiver by, or otherwise
affect any right, power or remedy of, the Agent or the Lender under the Credit
Agreement or any other Loan Document, (b) constitute a waiver of any provision
in the Credit Agreement or in any of the other Loan Documents or of any Default
or Event of Default that may have occurred and be continuing, or (c) alter,
modify, amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Credit Agreement or in any of the
other Loan Documents, all of which are ratified and affirmed in all respects
and shall continue in full force and effect.
(h) Agent's Expenses. The Borrower hereby agrees to
promptly reimburse the Agent for all of the reasonable out-of-pocket expenses,
including, without limitation, attorneys' and paralegals' fees, it has
heretofore or hereafter incurred or incurs in connection with the preparation,
negotiation and execution of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the day and year first above written.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and the sole
Lender
By:
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Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
AVONDALE XXXXX, INC., as the Borrower
and as a Credit Party
By:
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Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and Chief
Financial Officer
AVONDALE XXXXX GRANITEVILLE FABRICS,
INC., as a Credit Party
By:
------------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and Chief
Financial Officer
Acknowledged and Agreed to:
AVONDALE INCORPORATED
By:
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Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and Chief
Financial Officer
Signature Page to Waiver and Amendment No. 1 to Credit Agreement
