FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this
"Amendment"), dated as of May 11, 1998, is entered into by and
among Delta Xxxxx, Inc. (the "Borrower"), the guarantors
identified as such on the signature pages attached hereto (the
"Guarantors;" collectively, the Borrower and the Guarantors are
referred to as the "Credit Parties"), the lenders identified as
such on the signature pages hereto (the "Lenders"), NationsBank,
N.A., as Administrative Agent (the "Administrative Agent") for
the Lenders, and BNY Financial Corporation, as Collateral Agent
(the "Collateral Agent") for the Lenders. Terms used but not
otherwise defined herein shall have the meanings provided in the
Amended Credit Agreement (as defined below).
RECITALS
A. The Borrower, the Guarantors, the Lenders, the
Administrative Agent and the Collateral Agent entered into that
certain Credit Agreement dated as of August 25, 1997 (the
"Existing Credit Agreement").
B. The Lenders have agreed to execute and deliver this
Amendment on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
PART I
DEFINITIONS
SUBPART 1.1 General Definitions. Unless otherwise defined
herein or the context otherwise
requires, terms used in this Amendment, including the preamble
and recitals, have the meanings provided in the Existing Credit
Agreement.
SUBPART 1.2 Certain Definitions. Unless the context
otherwise requires, the following
terms used in this Amendment shall have the indicated
definitions:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 1 Effective Date" has the meaning ascribed to
such term in Part 5.1 of
this Amendment.
"Xxxxxx Plant" means the Xxxxxx manufacturing facility
located in Spartanburg, South Carolina.
"Xxxxxx Plant Disposition" means the Asset Disposition
involving the Xxxxxx Plant pursuant to the Sale Agreement.
"Sale Agreement" means, that certain agreement among the
Borrower and Ameritex Yarn, LLC providing for the sale of the
Xxxxxx Plant by the Borrower to Ameritex Yarn, LLC for an
aggregate purchase price of $6,000,000.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Section 7.11(d) of the Existing Credit Agreement is
hereby amended and restated to read as follows:
7.11 Financial Covenants.
*******
(d) Consolidated Tangible Net Worth. At all times the
Consolidated Tangible Net Worth shall be greater than or
equal to:
(i) for the period from the Closing Date to and
including the next to last day of the third fiscal
quarter of fiscal year 1998 of the Consolidated
Parties, $50,000,000;
(ii) for the period from the last day of the third
fiscal quarter of fiscal year 1998 to and including the
next to last day of fiscal year 1998 of the
Consolidated Parties, $27,000,000;
(iii) for the period from the last day of fiscal
year 1998 to and including the next to last day of
fiscal year 1999 of the Consolidated Parties,
$60,000,000;
(iv) for the period from the last day of fiscal
year 1999 to and including the next to last day of
fiscal year 2000 of the Consolidated Parties,
$75,000,000;
(v) for the period from the last day of fiscal
year 2000 to and including the next to last day of
fiscal year 2001 of the Consolidated Parties,
$90,000,000;
(vi) for the period from the last day of fiscal
year 2001 to and including the next to last day of
fiscal year 2002 of the Consolidated Parties,
$105,000,000; and
(vii) for the period from the last day of fiscal
year 2002 and thereafter, $120,000,000.
PART III
WAIVERS
SUBPART 3.1. Waiver of Defaults. The Required Lenders
hereby (i) waive the requirements of Sections 7.11(a),
7.11(b) and 7.11(c) of the Credit Agreement for March 28,
1998 and waive the requirement of Section 7.11(d) of the
Credit Agreement for the period from March 28, 1998 through
the Amendment No. 1 Effective Date and (ii) agree that the
Borrower's failure to observe the covenants of Sections
7.11(a), 7.11(b) and 7.11(c) for March 28, 1998 and the
covenant of Section 7.11(d) for the period from March 28,
1998 through the Amendment No. 1 Effective Date shall not
constitute an Event of Default under Section 9.1 of the
Credit Agreement.
SUBPART 3.2. Waiver of Certain Requirements of Section
8.5. With respect to the Xxxxxx Plant Disposition, the
Required Lenders hereby waive (i) the requirement set forth
in clause (d) of Section 8.5 of the Existing Credit
Agreement and (ii) the requirement that the Borrower deliver
a certificate with respect to the Xxxxxx Plant Disposition
at least 30 days prior to such Asset Disposition as provided
in clause (f) of Section 8.5 of the Existing Credit
Agreement. This waiver shall not be construed as a waiver of
such conditions with respect to any other Asset Disposition.
PART IV
REPRESENTATIONS AND WARRANTIES OF CREDIT PARTIES
. Each Credit Party hereby represents and warrants to the
Administrative Agent and to each Lender that:
(i) each of the representations and
warranties of the Borrower contained in the Amended
Credit Agreement or in any other Credit Document is
true as of the date hereof (after giving effect to this
Amendment);
(ii) after giving effect to this Amendment, no
Default or Event of Default exists and is continuing
under the Amended Credit Agreement;
(iii) since the date of the last financial
statements of the Borrower delivered to Lenders, no
material adverse change has occurred in the business,
financial condition, operations or prospects of the
Consolidated Parties other than as previously disclosed
to the Lenders; and
(iv) no consent, approval, authorization or order
of , or filing, registration or qualification with, any
court or governmental authority or third party is
required in connection with the execution, delivery or
performance by such Person of this Amendment.
PART V
CONDITIONS TO EFFECTIVENESS
SUBPART 5.1. Effective Time of Amendment. This Amendment
shall be and become effective as of the first Business Day upon
which each of the conditions set forth in this Subpart 5.1 shall
have been completed to the satisfaction of the Administrative
Agent and the Lenders (the "Amendment No. 1 Effective Date").
SUBPART 5.1. Execution of Amendment. The Administrative
Agent shall have received counterparts (or other evidence of
execution, including telephonic message, satisfactory to the
Administrative Agent) of the due execution of this Amendment on
behalf of the Credit Parties and each of the Lenders.
SUBPART 5.2. Amendment Fees. The Administrative Agent shall
have received from the Borrower, on the Amendment No. 1 Effective
Date, for the account of each Lender, in immediately available
funds, an amendment fee of 0.05% of each Lender's Commitment.
SUBPART 5.3. Other Documents. The Administrative Agent
shall have received such other documents relating to the
transactions contemplated hereby as the Administrative Agent or
counsel to the Administrative Agent may reasonably request of the
Borrower in writing on or before the Amendment No. 1 Effective
Date.
SUBPART 5.4. Expenses of Administrative Agent. The
Borrower shall have reimbursed the Administrative Agent for all
reasonable out-of-pocket expenses of the Administrative Agent ,
including without limitation, all reasonable fees and expenses of
its attorneys, incurred in connection with the negotiation,
preparation or execution of this Amendment as well as expenses
incurred by the Administrative Agent (or the Collateral Agent) to
release any Collateral in connection with the Xxxxxx Plant
Disposition.
SUBPART 5.5. Receipt of Sale Agreement. The Administrative
Agent shall have received an executed copy of the Sale Agreement
in form and substance reasonably satisfactory to the
Administrative Agent.
PART VI
MISCELLANEOUS
SUBPART 6.1 Further Assurances. As soon as practicable
after receipt of a written request from the Administrative Agent,
and in any event not later than 30 days from the date such
request is received by the Borrower, the Credit Parties shall
cause to be delivered to the Administrative Agent, in form and
content reasonably satisfactory to the Administrative Agent, all
documents or other instruments incident to the transactions
contemplated by this Agreement in the reasonable judgment of the
Administrative Agent.
SUBPART 6.2. Receipt of Certificate. The Administrative
Agent shall have received at least 15 days prior to the date of
the Xxxxxx Plant Disposition a certificate as described in clause
(f) of Section 8.5 of the Amended Credit Agreement.
SUBPART 6.3. References. References in this Amendment to
any Part or Subpart are, unless otherwise specified, to such Part
or Subpart of this Amendment. As of the Amendment No. 1
Effective Date, all references in the Credit Documents to the
"Credit Agreement" shall be deemed to refer to such document as
amended by this Amendment.
SUBPART 6.4. Counterparts. This Agreement may be executed
by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which constitute
together one and the same agreement.
SUBPART 6.5. Governing Law. This Amendment shall be deemed
to be a contract made under and governed by the internal laws and
judicial decisions of the State of North Carolina without giving
effect to the conflict of law principles thereof.
SUBPART 6.6. Successors and Assigns. This Amendment shall
be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
SUBPART 6.7. Entire Agreement. The Amended Credit
Agreement, this Amendment, and the other Credit Documents, as
amended hereby, constitute the entire contract among the parties
relative to the subject matter hereof.
SUBPART 6.8. No Other Changes. Except as expressly
modified and amended in this Agreement, all of the terms,
provisions and conditions of the Credit Documents shall remain
unchanged.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
BORROWER: DELTA XXXXX, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Treasurer
and Chief Financial Officer
GUARANTOR: DELTA XXXXX MARKETING, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President, Treasurer
and Chief Financial Officer
[Signatures Continued]
LENDERS: NATIONSBANK, N.A., individually as a
Lender and in its capacity as Administrative Agent
By: /s/ X. Xxxxxx Xxxxx
Name: X. Xxxxxx Xxxxx
Title: Senior Vice President
BNY FINANCIAL CORPORATION, individually
as a Lender and in its capacity as Collateral
Agent
By: /s/ Xxxxx Desparato
Name: Xxxxx Desparato
Title: Vice President
GENERAL ELECTRIC
CAPITAL CORPORATION
By: /s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
By: /s/Xxxxxxxx X. Xxx
Name: Xxxxxxxx X. Xxx
Title: Vice President
By: /s/W. Xxxxxxx Xxxxxxx
Name: W. Xxxxxxx Xxxxxxx
Title: Senior Credit Officer
Senior Vice President
