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XXXXXXXX INDUSTRIES, INC. AND SUBSIDIARIES
EXHIBIT 10.30
AMENDMENT # 6 DATED DECEMBER 22, 1998 TO BANK CREDIT AGREEMENT
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AMENDMENT NO. 6
TO
CREDIT AGREEMENT
AMENDMENT NO. 6, dated as of December 22, 1998, among Xxxxxxxx
Industries, Inc., a Delaware Corporation ("Xxxxxxxx"), Xxxxxxxx Industries
Alabama, Inc., an Alabama corporation formerly known as Opp and Xxxxxxx Xxxxx,
Inc. ("Xxxxxxxx Alabama"), J.I. Georgia, Inc., a Georgia corporation formerly
known as X.X. Xxxxx Company ("JIG"), and Xxxxxxxx Industries Composite
Reinforcements, Inc., an Alabama corporation ("JICR", and collectively with
Xxxxxxxx, Xxxxxxxx Alabama and JIG, the "Borrowers" and each individually, a
"Borrower"), NationsBank, N.A., as Syndication Agent, The Chase Manhattan Bank,
the successor by merger to The Chase Manhattan Bank, N.A., as Agent for the
banks party hereto ("Banks") and as Collateral Monitoring Agent ("Agent"), to
the Credit Agreement dated as of March 28, 1996 among Xxxxxxxx, Wellington Sears
Company ("Wellington"), Southern Phenix Textiles, Inc. ("Phenix"), Opp and
Xxxxxxx Xxxxx, Inc. ("Opp"), X.X. Xxxxx Company ("TJB") and JICR, the banks
named therein, The Chase Manhattan Bank, N.A., as Administrative Agent, Chase
Securities, Inc., as Arranger and NationsBank, N.A., as Syndication Agent, as
amended by Amendment No. 1 dated as of June 28, 1996, Amendment No. 2 dated as
of February 28, 1997, Amendment No. 3 dated as of December 18, 1997, Amendment
No. 4 dated as of March 28, 1998 and Amendment No. 5 dated as of July 10, 1998
(collectively, the "Credit Agreement"). All capitalized terms used herein but
not otherwise defined herein shall have the meanings given them in the Credit
Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, a credit facility in an
aggregate amount of up to $160,000,000 is available to the Borrowers on the
terms and conditions set forth therein;
WHEREAS, pursuant to Amendment No. 5 to Credit Agreement referred to
above, the Borrowers entered into collateral monitoring arrangements for the
benefit of the Banks and certain cash management arrangements to facilitate and
implement such collateral monitoring arrangements; and
WHEREAS, the Borrowers and the Banks have agreed to amend in certain
respects such collateral monitoring arrangements as hereinafter set forth.
NOW, THEREFORE, each Bank, the Agent, the Syndication Agent and each
Borrower, on a joint and several basis, hereby agree as follows:
1. Amendments to Section 7.01(b)(v) - Affirmative Covenants. Section
7.01(b)(v) of the Credit Agreement is hereby amended by:
(a) adding the following sentence immediately after the second sentence
thereof: "Notwithstanding the foregoing, such $400,000 aggregate amount in the
Exempt Accounts may be increased up to a maximum aggregate amount not to exceed
$750,000 at any one time on a cumulative basis solely to enable the Borrowers to
deposit in the payroll accounts included in the Exempt Accounts such monies as
are necessary to pre-
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fund such payroll accounts in such amounts and at such times as may be required
to satisfy the requirements of the applicable paying banks when the payment of
such payroll expenses is made utilizing the Automated Clearinghouse payment
system."; and
(b) by adding the following sentence at the end of such clause (v):
"Each Borrower hereby acknowledges and agrees that to the extent that such
Borrower directly receives any payments or other items that should have been
deposited in a Lockbox Account or a Blocked Account or receives any other
payments (including, without limitation, tax refunds and rebates), such payments
and other items shall be held as the Banks' property by such Borrower, as
trustee of an express trust for the Banks' benefit, and such Borrower shall
immediately deliver to the bank identified in Exhibit M such payments and other
items for deposit in the Blocked Account."
2. Amendments to Section 7.02 - Negative Covenants. Section 7.02(r) of
the Credit Agreement is hereby amended by adding the following after the last
word thereof: ", or such increased amount as may be permitted pursuant to the
terms and conditions of Section 7.01(b)(v)".
3 . Amendments to Exhibits to the Credit Agreement. (a) Exhibit M to
the Credit Agreement is hereby amended by deleting from the Blocked Accounts,
Concentration Account No. _____ of Xxxxxxxx at Regions Bank, Birmingham,
Alabama. A copy of Exhibit M, as amended, is attached hereto and is hereby
substituted for Exhibit M to the Credit Agreement.
(b) Exhibit P to the Credit Agreement is hereby amended by
adding to the Exempt Accounts, Account No. _____ at Regions Bank, Birmingham,
Alabama. A copy of Exhibit P, as amended, is attached hereto and is hereby
substituted for Exhibit P to the Credit Agreement.
4. 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 and apply to the Borrowers hereto
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 off-set 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 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.
5. Conditions Precedent to Amendment No.6. The obligation of the Banks
and the Agent to enter into this Amendment shall be subject to the Agent having
received from the Borrowers, prior to or simultaneously with the execution and
delivery of this Amendment, the following:
(a) Amendment No. 1 to Lockbox Account Agreement, duly executed by
the Borrowers and the bank identified on Exhibit M, pursuant
which the Concentration Account identified in paragraph 4(b)
of the Lockbox Agreement shall be amended to refer to Account
No. ___________;
(b) Amendment No. 1 to Blocked Account Agreement, duly executed by
the Borrowers and the bank identified on Exhibit M, pursuant
to which Account No. ____________ shall be deleted as Blocked
Account; and
(c) A Pledged Account Letter, duly executed by the Borrowers, with
respect to Account No. ____________.
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6. Pledged Account Letter. The Borrowers agree that the Pledged
Account Letter referred to in Paragraph 5(c), to be executed and
delivered to the Agent simultaneously with this Amendment, shall
be held by the Agent until (i) a Default or an Event of Default
has occurred and is continuing, or (ii) the occurrence of a
Material Adverse Change, as determined by the Required Banks. In
either case, upon such event or occurrence, the Agent may, and
upon the request of the Required Banks shall, release such Pledged
Account Letter to the banks or other financial institutions to
which such Letter has been addressed, and the Borrowers each
hereby expressly authorize such release by the Agent.
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 Agent, the Syndication Agent 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.
10. Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed an original, and together which shall constitute one
and the same instrument.
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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. XXXXXXXX INDUSTRIES
ALABAMA, INC.
By: By:
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Name: Name:
Title: Title:
J.I. GEORGIA, INC. XXXXXXXX INDUSTRIES COMPOSITE
REINFORCEMENTS, INC.
By: By:
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Name: Name:
Title: Title:
THE AGENT:
THE CHASE MANHATTAN BANK
By:
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Name:
Title:
THE SYNDICATION AGENT:
NATIONSBANK, N.A.
By:
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Name:
Title:
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THE LENDERS:
THE CHASE MANHATTAN BANK BANK OF AMERICA
(F/K/A NATIONSBANK, N.A.)
By: By:
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Name: Name:
Title: Title:
REGIONS BANK COMERICA BANK
By: By:
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Name: Name:
Title: Title:
XXX XXXXXX PRIME RATE THE SUMITOMO BANK, LIMITED
INCOME TRUST
By: By:
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Name: Name:
Title: Title:
By:
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Name:
Title:
XXXXXXX LYNCH, PEARCE, DK ACQUISITION PARTNERS, X.X.
XXXXXX & XXXXX INCORPORATED
By: By:
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Name: Name:
Title: Title:
FIRST UNION N.B.
(F/K/A CORESTATES BANK, N.A.)
By:
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Name:
Title:
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