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EXHIBIT 10.15
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (together with all amendments
and modifications, the "Agreement"), dated as of December ___, 1998, is by and
among TUFCO, L.P. a Delaware limited partnership (the "Borrower"), TUFCO
TECHNOLOGIES, INC., a Delaware corporation ("Parent"), CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, a national banking association ("Chase"), and FIRST UNION
NATIONAL BANK, a national banking association ("FUNB") (Chase and FUNB,
collectively, the "Banks"), individually and in its capacity as agent for the
Banks (the "Agent").
BACKGROUND
A. The Banks, the Borrower and Parent entered into that certain
Credit Agreement, dated as of August 28, 1998 (together with all amendments and
modifications thereto, the "Credit Agreement"), pursuant to which each of the
Banks agreed: (i) to make available to the Borrower a revolving credit facility
in a maximum aggregate principal amount of $4,500,000 (the "Revolver") and (ii)
to make a term loan to the Borrower in the initial aggregate principal amount of
$5,325,000 (the "Term Loan") (the Revolver and the Term Loan, collectively, the
"Loans").
B. In connection with the Credit Agreement and in order to evidence
the Loans, the Borrower executed and delivered to the Banks those certain
Revolving Notes, dated as of August 28, 1998, and those certain Term Notes,
dated as of August 28, 1998 (together with all amendments and modifications
thereto, the "Notes").
C. In connection with the Credit Agreement and the Notes and in
order to secure its obligations thereunder, the Borrower executed and delivered
to the Agent that certain Security Agreement, dated as of August 28, 1998
(together with all amendments and modifications thereto, collectively, the
"Security Agreement").
D. In connection with the Credit Agreement and the Notes and in
order to secure the Borrower's obligations thereunder, Tufco Technologies, Inc.,
a Delaware corporation, Tufco Tech, Inc., a Delaware corporation, Technologies
I, Inc., a Delaware corporation, Tufco, Inc., a Delaware corporation, TFCO,
Inc., a Delaware corporation, and Foremost Manufacturing Company, Inc., a
Missouri corporation (collectively, the "Guarantors") executed and delivered to
the Agent that certain Guaranty Agreement dated August 28, 1998 (the
"Guaranty").
E. In connection with the Guaranty and in order to secure the
Guarantor's obligations thereunder, each of the Guarantors executed and
delivered to the Agent that certain Guarantor Security Agreement dated as of
August 28, 1998 (the "Guarantor Security Agreement").
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F. The Credit Agreement, the Notes, the Security Agreement, the
Guaranty, the Guarantor Security Agreement and all of the documents, instruments
and agreements executed and delivered in connection therewith, together with all
amendments and modifications thereto, shall be referred to hereinafter as the
"Loan Documents."
G. The Banks and the Borrower, pursuant to the terms hereof, wish to
amend certain of the terms of the Loan Documents.
NOW, THEREFORE, incorporating the foregoing Background herein by
reference and for other good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties agree as follows:
1. DEFINED TERMS. Terms used herein which are capitalized but
not defined herein shall have the meanings ascribed to such terms in the Credit
Agreement.
2. AMENDMENTS.
(a) Section 12.1 of the Credit Agreement, is hereby amended
and restated to read in its entirety as follows:
"Consolidated Tangible Net Worth. Parent will at all
times maintain a Consolidated Tangible Net Worth in an
amount not less than the sum of (a) Thirteen Million
One Hundred Thousand Dollars ($13,100,000); plus (b)
fifty percent (50%) of Parent's net income determined
on a consolidated basis in accordance with GAAP for
each Fiscal Quarter to have completely elapsed since
September 30, 1998; plus (c) one hundred percent (100%)
of the net cash proceeds of any sale of securities or
other cash contributions to the capital of the Parent
received by Parent since September 30, 1998, calculated
without duplication. If Parent's consolidated net
income for a Fiscal Quarter is zero or less, no
adjustment to the requisite level of Consolidated
Tangible Net Worth shall be made. "Consolidated
Tangible Net Worth" means, at any particular time, the
sum of (a) all amounts which, in conformity with GAAP,
would be included as stockholders' equity on a
consolidated balance sheet of Parent and the
Subsidiaries; minus (b) the amount by which
stockholders' equity has been increased by the write-up
of any asset of the Parent and the Subsidiaries after
September 30, 1998; minus (c) the amount of intangible
assets carried on the balance sheet of the Parent and
the Subsidiaries at such date determined in accordance
with GAAP on a consolidated basis, including goodwill,
patents,
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trademarks, trade names, organizational expense,
deferred financing charges, debt acquisition cost,
computer software development costs, start-up costs,
pre-opening costs, prepaid pension costs, or any other
deferred charges; minus (d) the amount of deferred
income tax assets (less adjustments included in
Consolidated Net Income after September 30, 1998);
minus (e) any capital stock or debt security which is
not readily marketable; minus (f) any cash held in a
sinking fund or other analogous fund established for
the purpose of redemption, retirement or prepayment of
capital stock or Debt; minus (g) the cumulative
translation adjustments (less adjustments included in
Consolidated Net Income after September 30, 1998);
minus (h) the amount at which shares of capital stock
of the Parent is contained among the assets on the
balance sheet of the Parent and the Subsidiaries; minus
(i) to the extent included in clause (a) the amount
properly attributable to the minority interests, if
any, of other Persons in the stock, additional paid-in
capital, and retained earnings of Subsidiaries."
3. CONDITIONS PRECEDENT. The effectiveness of this Agreement
and the Banks' obligations hereunder are conditioned upon the satisfaction of
the following conditions precedent:
(a) Each of the Borrower and Parent shall have delivered to
the Agent this Agreement duly executed by each of them.
(b) Each of the Guarantors shall have delivered to the
Agent the reaffirmation of their obligations set forth following this Agreement
duly executed by each of them.
(c) Chase shall have delivered to the Agent this Agreement
duly executed by it and FUNB shall have duly executed this Agreement,
individually and as Agent.
4. REPRESENTATIONS AND WARRANTIES. In order to induce the Banks
to enter into this Agreement, the Borrower and Parent hereby represent and
warrant to the Banks as follows:
(a) The representations and warranties contained in the
Loan Documents are true and correct on and as of the date of this Agreement and
after giving effect hereto, no Event of Default will be in existence or will
occur as a result of giving effect hereto.
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(b) The Borrower and Parent each have the power to execute,
deliver and perform this Agreement and each of the documents, instruments and
agreements to be executed or delivered in connection herewith and has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and each of the documents, instruments and agreements executed or
delivered in connection herewith and the performance of the Credit Agreement as
amended hereby.
5. REAFFIRMATION. Except as amended hereby, all of the terms,
covenants and conditions of the Credit Agreement and each of the other Loan
Documents (including, but not limited to, provisions relating to any authority
granted to the Banks to confess judgment against the Borrower and any waiver of
the right to trial by jury) are ratified, reaffirmed and confirmed and shall
continue in full force and effect as therein written and are not intended to be
re-enacted as of the above date, but rather to be effective as of the original
date of such documents.
6. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Borrower and the Banks and their respective
successors and assigns; provided, however, that the Borrower may not assign any
of its rights, nor delegate any of its obligations, under this Agreement without
the prior written consent of the Banks and any purported assignment or
delegation absent such consent shall be void. The Banks may at any time assign
or otherwise transfer (by participation or otherwise) any or all of their
rights, or delegate any or all of its obligations, hereunder, as provided in the
Credit Agreement.
7. COUNTERPARTS; EFFECTIVENESS. This Agreement may be executed
in any number of counterparts and by the different parties on separate
counterparts. Each such counterpart shall be deemed to be an original, but all
such counterparts shall together constitute one and the same agreement. This
Agreement shall be deemed to have been executed and delivered when the Agent has
received counterparts hereof executed by all parties listed on the signature
page(s) hereto.
8. AMENDMENT AND WAIVER. No amendment of this Agreement, and no
waiver of any one or more of the provisions hereof shall be effective unless set
forth in a writing and signed by the parties hereto.
9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas and the applicable
laws of the United States of America.
10. SEVERABILITY. Any provision of this Agreement that is held
to be inoperative, unenforceable, voidable or invalid in any jurisdiction shall,
as to that jurisdiction, be ineffective, unenforceable, void or invalid without
affecting the remaining provisions in that or
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any other jurisdiction, and to this end the provisions of this Agreement are
declared to be severable.
11. JUDICIAL PROCEEDINGS. Each party to this Agreement agrees
that any suit, action or proceeding, whether claim or counterclaim, brought or
instituted by any party hereto or any successor or assign of any party, on or
with respect to this Agreement, the documents, instruments and agreements
executed in connection herewith, the Loan Documents or the dealings of the
parties with respect hereto and thereto, shall be tried only by a court and not
by a jury. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDINGS. Further, each
party waives any right it may have to claim or recover, in any such suit, action
or proceeding, any special, exemplary, punitive or consequential damages or
dames other than, or in addition to, actual damages. THE BORROWER ACKNOWLEDGE
AND AGREE THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT
AND THAT THE BANKS WOULD NOT ENTER INTO THIS AGREEMENT IF THE WAIVERS SET FORTH
IN THIS SECTION WERE NOT A PART OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first above written.
BORROWER:
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TUFCO, L.P.
By: Tufco Tech, Inc.,
its Managing General Partner
By: /s/ XXXX XXXXXXX
----------------------------------
Name: Xxxx Xxxxxxx
Title: CFO/COO
PARENT:
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TUFCO TECHNOLOGIES, INC.
By: /s/ XXXX XXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxx
Title: CFO/COO
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AGENT:
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FIRST UNION NATIONAL BANK, individually
as a Bank and as the Agent
By: /s/ XXXXXXX X XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
OTHER BANK:
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CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
The undersigned Guarantors, each of whom have guaranteed the
obligations of the Borrower under the Credit Agreement pursuant to the Guaranty,
hereby acknowledge that they have read and understand the provisions of this
Amendment, including without limitation the revised financial covenant set forth
in Section 12.1, and do hereby consent and agree to the Borrower's execution and
delivery of the First Amendment to Credit Agreement; and each of the undersigned
Guarantors hereby reaffirms, ratifies and confirms all of their respective
obligations under the Guaranty in favor of the Banks (the "Reaffirmed
Agreements") as if such Reaffirmed Agreements had been executed on the date
hereof.
GUARANTORS:
TUFCO TECHNOLOGIES, INC. TUFCO TECH, INC.
By: /s/ XXXX XXXXXXX By: /s/ XXXX XXXXXXX
-------------------------------- ---------------------------------
Name: Xxxx Xxxxxxx Name: Xxxx Xxxxxxx
Title: CFO/COO Title: CFO/COO
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TECHNOLOGIES I, INC. TUFCO, INC.
By: /s/ XXXXX XXXXX By: /s/ XXXXX XXXXX
-------------------------------- ---------------------------------
Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
Title: President Title: President
TFCO, INC. FOREMOST MANUFACTURING
COMPANY, INC.
By: /s/ XXXXX XXXXX By: /s/ XXXX XXXXXXX
-------------------------------- ---------------------------------
Name: Xxxxx Xxxxx Name: Xxxx Xxxxxxx
Title: President Title: CFO/COO
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STATE OF TEXAS :
: SS
COUNTY OF DALLAS :
On this 18 day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxx Xxxxxxx, who
acknowledged himself/herself to be CFO/COO of Tufco Tech, Inc., Managing Partner
of Tufco, L.P. and that he/she as such CFO/COO, being authorized to do so,
executed the foregoing Amendment for the purpose therein contained by signing
the name of Tufco Tech, Inc. by himself/herself as CFO/COO thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
[SEAL] ------------------------------------
Notary Public
My Commission Expires:
00-00-00
XXXXX XX XXXXX :
: SS
COUNTY OF DALLAS :
On this 18 day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxx Xxxxxxx, who
acknowledged himself/herself to be CFO/COO of Tufco Tech, Inc. and that he/she
as such CFO/COO, being authorized to do so, executed the foregoing Amendment for
the purpose therein contained by signing the name of the corporation by
himself/herself as CFO/COO thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
------------------------------------
Notary Public
My Commission Expires:
03-28-00 [SEAL]
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STATE OF TEXAS :
: SS
COUNTY OF DALLAS :
On this 18 day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxxx Xxxxx, who
acknowledged himself/herself to be President of Technologies I, Inc. and that
he/she as such President, being authorized to do so, executed the foregoing
Amendment for the purpose therein contained by signing the name of the
corporation by himself/herself as President thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
[SEAL] ------------------------------------
Notary Public
My Commission Expires:
00-00-00
XXXXX XX XXXXX :
: SS
COUNTY OF DALLAS :
On this 18th day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxxx Xxxxx, who
acknowledged himself/herself to be President of Tufco, Inc. and that he/she as
such President, being authorized to do so, executed the foregoing Amendment for
the purpose therein contained by signing the name of the corporation by
himself/herself as President thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
------------------------------------
Notary Public
My Commission Expires:
03-28-00 [SEAL]
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STATE OF TEXAS :
: SS
COUNTY OF DALLAS :
On this 18 day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxxx Xxxxx, who
acknowledged himself/herself to be President of TFCO, Inc. and that he/she as
such President, being authorized to do so, executed the foregoing Amendment for
the purpose therein contained by signing the name of the corporation by
himself/herself as President thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
[SEAL] ------------------------------------
Notary Public
My Commission Expires:
00-00-00
XXXXX XX XXXXX :
: SS
COUNTY OF DALLAS :
On this 18 day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxx Xxxxxxx, who
acknowledged himself/herself to be CFO/COO of Foremost Manufacturing Company,
Inc. and that he/she as such CFO/COO, being authorized to do so, executed the
foregoing Amendment for the purpose therein contained by signing the name of the
corporation by himself/herself as CFO/COO thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
------------------------------------
Notary Public
My Commission Expires:
03-28-00 [SEAL]
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00
XXXXX XX XXXXX :
: SS
COUNTY OF DALLAS :
On this 18 day of December, A.D., 1998, before me, a Notary
Public, the undersigned officer, personally appeared Xxxx Xxxxxxx, who
acknowledged himself/herself to be CFO/COO of Tufco Technologies, Inc. and that
he/she as such CFO/COO, being authorized to do so, executed the foregoing
Amendment for the purpose therein contained by signing the name of the
corporation by himself/herself as CFO/COO thereof.
WITNESS, my hand and Notarial seal, the day and year aforesaid.
/s/ XXXXXXX XXXXXX
------------------------------------
Notary Public
My Commission Expires:
03-28-00
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