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EXHIBIT 10.2
CONSENT AND WAIVER NO. 1 TO
CREDIT AND SECURITY AGREEMENT
Preamble. THIS CONSENT AND WAIVER NO. 1 (this "First Waiver"), dated as of
February 12, 1999 (the "First Waiver Date"), is made by and among THOMASTON
XXXXX, INC., a Georgia corporation (hereinafter, together with its successors
and permitted assigns called the "Borrower"); THOMASTON XXXXX FSC, INC., a U.S.
Virgin islands corporation (hereafter, together with its successors and
permitted assigns, called "FSC"); NATIONSBANK, N.A., a national banking
association (hereinafter, together with its successors and permitted assigns,
called "NationsBank"; NationsBank, together with SunTrust and Wachovia, each as
hereinafter defined, called collectively, the "Lenders" and, individually, a
"Lender"); SUNTRUST BANK, ATLANTA, a Georgia banking corporation (hereinafter,
together with its successors and permitted assigns, called "SunTrust"),
individually and as "Administrative Agent" and "Syndication Agent" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders; WACHOVIA BANK, N.A., a national banking association (hereinafter,
together with its successors and permitted assigns, called "Wachovia"), as
"Special Issuer," "Documentation Agent" and "Collateral Agent" (as those terms
are defined in the Credit Agreement defined below), on behalf of the Lenders;
and SUNTRUST EQUITABLE SECURITIES CORPORATION, a Tennessee corporation
(hereinafter, together with its successors and permitted assigns called
"SunTrust Equitable Securities"), as "Arranger" and "Lead Manager" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders.
The Borrower, FSC, SunTrust (in its respective capacities
described above), Wachovia (in its respective capacities described above),
NationsBank as a Lender and SunTrust Equitable Securities (in its respective
capacities described above) (the foregoing parties herein sometimes collectively
called the "Parties" and individually called a "Party") are Parties to a certain
Credit and Security Agreement, dated as of August 19, 1998 (which is called
herein the "Credit Agreement"), pursuant to which, among other things, the
Lenders agreed to extend credit and other financial accommodations to the
Borrower. The Borrower has requested that the Lenders waive the Borrower's
compliance with certain terms and conditions of the Credit Agreement, which the
Lenders have agreed to do, in the manner, and subject to the terms and
conditions, set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the Parties, each intending to be legally bound, hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used in this First Waiver and
not defined herein are defined in the Credit Agreement.
SECTION 2. Waivers to Credit Agreement. The Lenders waive the
Borrower's compliance with the following terms and conditions of the Credit,
retroactive to the date of such non-compliance (the following herein called the
"Waivers"):
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(i) that, pursuant to Section 2.01(ii), the total amount
of all then outstanding Working Capital Obligations not exceed the
aggregate amount of the Borrowing Base, as to which the Borrower was
not in compliance on one or more days during the period from January 2,
1999 through January 18, 1999 (because the fixed reserve against the
Borrowing Base, set forth in clause (x) of the definition thereof,
remained at $10,000,000 during such period pending the execution of the
First Amendment to the Credit Agreement, effective as of January 19,
1999);
(ii) that, pursuant to Section 5.21, Consolidated EBITDA
be at least $2,700,000 for the two (2) Fiscal Quarters ending closest
to December 31, 1998, as to which the Borrower was not in compliance as
of January 2, 1999 (the actual Fiscal Quarter end);
(iii) that, pursuant to Section 5.24, Consolidated Tangible
Net Worth be at least $77,500,000 plus the cumulative increase
described in said Section for the Fiscal Quarter ending closest to
December 31, 1998, as to which the Borrower was not in compliance as of
January 2, 1999 (the actual Fiscal Quarter end);
(iv) that, pursuant to Section 5.34, by not later than
February 15, 1999, the Borrower shall have delivered to the Collateral
Agent the appraisal of the Inventory Collateral described therein; and
(v) that, pursuant to Section 5.42, by not later than
February 10, 1999, the Borrower shall have delivered certain Mortgages
and other instruments more particularly described therein in respect of
the Mortgaged Real Property;
subject, however, to the following terms and conditions:
(A) the foregoing waivers are limited solely to the
specific matters and for the specific times or time periods described
hereinabove;
(B) on the First Waiver Date, the Borrower shall have
paid to SunTrust, as Administrative Agent, the sum of $81,592.03, as a
waiver fee, to be shared by the Lenders pro rata based on their
respective shares of the total Commitments;
(C) as soon as practicable, but not later than March 15,
1999, the Borrower shall have obtained and delivered a copy to each of
the Agents of a written commitment letter (or series thereof) from one
or more banks or other financial institutions, on a fully underwritten
basis and which is otherwise acceptable to the Required Lenders, to
extend financing to the Borrower in an aggregate amount at least
sufficient to pay all Obligations (at par) and retire all Commitments
under the Credit Agreement by not later than April 30, 1999, which
commitment shall have been accepted by the Borrower (and, should the
Borrower be unable to comply with the foregoing requirement by March
15, 1999, then, the Waivers granted hereinabove shall be subject to
withdrawal by the Required Lenders);
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(D) In specific reference to the requirements for
delivery of the appraisal of the Inventory Collateral, the Borrower
shall have obtained and delivered such appraisal to the Collateral
Agent by not later than February 19, 1999 (and, should the Borrower be
unable to comply with the foregoing requirement by March 15, 1999,
then, the Waivers granted hereinabove shall be subject to withdrawal by
the Required Lenders); and
(E) in specific reference to the requirements for
delivery of Mortgages and other instruments in respect of Mortgaged
Real Property set forth in Section 5.42:
(1) by not later than February 19, 1999, the
Borrower shall have complied in all respects with Section 5.42
in regard to the following real property: (a) all real
property in Pike County, (b) the "Xxxxxxx plant" and (c) the
"Northside plant";
(2) by not later than February 19, 1999, the
Borrower shall have complied at least with the requirement in
Section 5.42 that Mortgages be executed and delivered to the
Collateral Agent in respect of all other Mortgaged Real
Property not described in clause (1) above; and
(3) by not later than March 5, 1999, the
Borrower shall have complied in all other respects with
Section 5.42 in respect of all Mortgaged Real Property
described in clause (2) above;
and, if Borrower is unable to comply with any of the foregoing
requirements by the deadlines stated therefor, then, (i) the Waivers
granted hereinabove shall be subject to withdrawal by the Required
Lenders and (ii) at the option of the Required Lenders, a late delivery
fee of $1,000 per Business Day shall be imposed until the Borrower has
duly complied with each of such requirements.
SECTION 3. Representations and Warranties of Obligors. The Borrower
and FSC, each severally, represents and warrants to the other Parties that:
(a) It has the power and authority to enter into and to perform
this First Waiver, to execute and deliver all documents
relating to this First Waiver, and or incur the obligations
provided for in this First Waiver, all of which have been duly
authorized and approved in accordance with its corporate
documents;
(b) This First Waiver, together with all documents executed
pursuant hereto, shall constitute when executed its valid and
legally binding obligations in accordance with their
respective terms;
(c) All representations and warranties made by it in the Credit
Agreement are true and correct as of the date hereof, with the
same force and effect as if all representations and warranties
were fully set forth herein;
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(d) Its Obligations under the Credit Documents remain valid and
enforceable Obligations, and the execution and delivery of
this First Waiver and the other documents executed in
connection herewith shall not be construed as a novation of
the Credit Agreement or any of the other Credit Documents;
(e) As of the date hereof, it has no offsets, defenses or
counterclaims against the payment of any of the Obligations;
and
(f) As of the date hereof, and after giving effect to the terms
hereof, no Default Condition or Event of Default exists.
SECTION 4. Waiver of Claims. As a specific inducement to the other
Parties without which the Borrower and FSC acknowledge the other Parties would
not enter into this First Waiver and the other documents executed in connection
herewith, each of the Borrower and FSC hereby waives any and all claims that it
may have against any other Party, as of the date hereof, arising out of or
relating to the Credit Agreement or any other Credit Document whether sounding
in contract, tort, or any other basis.
SECTION 5. Conditions of Effectiveness. This First Waiver shall become
effective when, and only when, the Documentation Agent shall have received this
First Waiver, executed by each Party.
SECTION 5. Miscellaneous.
5.1 Reference to Credit Agreement. Upon the effectiveness of
this First Waiver, each reference in the Credit Agreement to "this Credit
Agreement" and each reference in the other Credit Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as modified
hereby.
5.2 Effect on Credit Documents. Except as specifically waived
above, all terms of the Credit Agreement and all other Credit Documents shall
remain in full force and effect and are hereby ratified and confirmed.
5.3 No Other Waiver. The execution, delivery and
effectiveness of this First Waiver shall not operate as a waiver of any right,
power, or remedy of Lenders or the Agents under any of the Credit Documents, nor
constitute a waiver of any provision of any of the Credit Documents, other than
as expressly set forth hereinabove.
5.4 Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses of the Agents and the Lenders in connection with
the preparation, reproduction, execution, and delivery of this First Waiver and
the other instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Agent and the
Lenders with respect hereto.
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5.5 No Novation. Nothing contained herein intended, or shall
be construed, to constitute a novation to the Credit Agreement or any Credit
Document.
5.6 Governing Law. This First Waiver shall be governed by and
construed in accordance with the laws of the State of Georgia, without giving
affect to conflict of law provisions.
5.7 Counterparts. This First Waiver may be executed in
counterparts. Each counterpart shall bind the Party or Parties executing same.
All counterparts, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have caused this First Waiver
to be duly executed, under seal, by their respective authorized officers as of
the day and year first above written.
"BORROWER"
THOMASTON XXXXX, INC.
By: (SEAL)
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Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
Attest:
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A. Xxxxxxx Xxx
Vice President-Finance
(CORPORATE SEAL)
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"SUBSIDIARY GUARANTOR"
THOMASTON XXXXX FSC, INC.
By: (SEAL)
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Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
Attest:
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A. Xxxxxxx Xxx
Vice President-Finance
(CORPORATE SEAL)
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SUNTRUST BANK, ATLANTA,
as Administrative Agent,
Syndication Agent and as a Lender (SEAL)
By:
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Name:
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Title:
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By:
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Name:
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Title:
---------------------------------
(CORPORATE SEAL)
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WACHOVIA BANK, N.A.,
as Special Issuer, Documentation Agent,
Collateral Agent, and as a Lender (SEAL)
By:
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Name:
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Title:
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NATIONSBANK, N.A.,
as a Lender (SEAL)
By:
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Name:
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Title:
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SUNTRUST EQUITABLE SECURITIES
CORPORATION, as Arranger and Lead
Manager
By:
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Name:
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Title:
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By:
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Name:
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Title:
---------------------------------
(CORPORATE SEAL)
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