1998 FIRST AMENDMENT AGREEMENT TO
$37,000,000 AMENDED AND RESTATED LOAN AGREEMENT AND TERM NOTE
THIS AMENDMENT AGREEMENT, made and entered into as of this 6th day of
February, 1998, by and between XXXXXXXX INDUSTRIES, INC., a Delaware corporation
(the "Borrower") and NATIONSBANK, N.A., a national banking association (the
"Lender");
W I T N E S S E T H:
WHEREAS, pursuant to the $37,000,000 Amended and Restated Loan Agreement,
dated as of July 31, 1997, between the Borrower and the Lender (the "Loan
Agreement"), arrangements were made for the extension by the Lender to the
Borrower of credit on the terms and conditions set forth in such Loan Agreement;
WHEREAS, under the Loan Agreement, the Borrower obtained a Credit Facility
in the maximum aggregate principal amount at any time outstanding of up to
$37,000,000, of which (i) up to $30,000,000 may be allocated under a "Letter of
Credit Facility" for the issuance of documentary Letters of Credit to support
the Borrower's purchase and importing of (x) presold textile machinery in the
ordinary course of its business and (y) in certain cases, equipment to be held
as inventory for sale and, within such $30,000,000, up to $8,500,000 may be
allocated to borrowings for the Borrower's short term operating needs under a
Revolving Line of Credit, and up to $500,000 may be allocated for the issuance
of Standby Letters of Credit, as provided in such Loan Agreement, and (ii) up to
$7,000,000 may be allocated as a term loan, all upon the terms and conditions
provided in the Loan Agreement;
WHEREAS, under the Loan Agreement, the Borrower has issued to the Lender
its Amended and Restated Revolving Credit Note dated July 31, 1997 in the
principal amount of $8,500,000 (the "Revolving Credit Note");
WHEREAS, under the Loan Agreement, the Borrower has issued to the Lender
its Term Note dated July 31, 1997 in the principal amount of $7,000,000 (the
"Term Note");
WHEREAS, collateral for the indebtedness and obligations of the Borrower
in respect of the Loan Agreement, the Revolving Credit Note and the Letter of
Credit Facility is provided under the Amended and Restated Security Agreement
dated July 31, 1997 between the Borrower and Wink Xxxxx Equipment Co., Inc.
("WD") and the Lender;
WHEREAS, the Borrower has entered into a Stock Purchase Agreement (the
"Purchase Agreement") dated as of the date hereof with the holders of all of the
capital stock of Xxxx Motion Controls, Inc. ("TMC") to acquire all of the
outstanding capital stock of TMC;
WHEREAS, the Borrower has requested that the Lender, to facilitate the
Borrower's performance of its obligations under the Purchase Agreement, make a
$1,300,000 advance under the Term Loan, which would have the effects of
increasing the outstanding principal balance of the Term Loan to $8,050,000;
WHEREAS, the Bank is willing to extend such additional credit subject to
certain terms and conditions, including, but not limited to, the Bank's receipt
of a Security Agreement and Guaranty Agreement from TMC, and the Bank's receipt
of a Stock Pledge Agreement from the Borrower relating to the TMC stock;
NOW, THEREFORE, in consideration of the premises and mutual covenants and
conditions herein set forth, it is hereby agreed as follows:
1. Terms. All terms used herein without definition, unless the context
clearly requires otherwise, shall have the meanings provided therefor in the
Loan Agreement.
2. Amendment to Loan Agreement; Confirmation of Liens.
(1) Effective the date hereof, the term "the Borrower, WD or TMC"
shall replace the term "the Borrower or WD" whenever it appears in the
Loan Agreement.
(2) Effective the date hereof, the term "the Borrower's, WD's or
TMC's" shall replace the term "the Borrower's or WD's" whenever it appears
in the Loan Agreement.
(3) Effective the date hereof, the term "including WD and TMC" shall
replace the term "including WD" whenever it appears in the Loan Agreement.
(4) Effective the date hereof, Section 1.84 of the Loan Agreement is
rewritten in its entirety to read as follows:
1.84 "Security Agreement" means, collectively, the
Amended and Restated Security Agreement dated as of July 31,
1997, between the Borrower and WD and the Lender, and the
Security Agreement dated as of February 6, 1998 between TMC
and the Lender, and all amendments and supplements thereto.
(5) Effective the date hereof, Section 1.86 of the Loan Agreement is
rewritten in its entirety to read as follows:
1.86 "Stock Pledge Agreement" means, collectively, the
Stock Pledge Agreement dated as of July 31, 1997, between the
Borrower and the Lender, and the Stock Pledge Agreement dated
as of February 6, 1998 between the Borrower and the Lender,
and all amendments and supplements thereto.
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(6) Effective the date hereof, Section 1.89 of the Loan Agreement is
rewritten in its entirety to read as follows:
"1.89 "Term Note" means the promissory note of the
Borrower in the original principal amount of $7,000,000
evidencing the Term Loan, and as such promissory note may be
amended or modified from time to time."
(7) Effective the date hereof, Section 2.1(b) of the Loan Agreement is
rewritten in its entirety to read as follows:
"Subject to the terms and conditions of this Agreement,
the Lender agrees to make a Term Loan to the Borrower, such
loan to be evidenced by the Term Note. On July 31, 1997, the
date of the Loan Agreement, the Lender made an advance on the
Term Loan of $7,000,000. As of February 6, 1998, the
outstanding principal balance of the Term Loan is $6,750,000.
The Lender agrees to make, on February 6, 1998, an advance on
the Term Loan of $1,300,000, thereby increasing the
outstanding principal balance of the Term Loan to $8,050,000.
The $1,300,000 advance shall be used to acquire the
outstanding capital stock of TMC. The principal balance
outstanding under the Term Note shall bear interest at the
Eurodollar Rate or Base Rate as provided herein.
The principal indebtedness evidenced by the Term Note
shall be repayable in ten consecutive quarterly payments on
the last business day of each of the months of March, June,
September and December commencing March 31, 1998. The first
ten quarterly payments shall be in the amount of $380,000. One
final payment shall be due on July 31, 2000 in an amount equal
to the unpaid principal balance and all accrued interest on
the Term Loan.
The principal indebtedness evidenced by the Term Note
shall also be prepaid annually on June 30 of each year,
commencing June 30, 1998, in an amount equal to 25% of Excess
Cash Flow determined for the immediate preceding Fiscal Year.
All such prepayments shall be applied to principal
installments due under the Term Note in inverse order of their
maturities.
The Borrower agrees that if at any time the outstanding
balance under the Term Note shall exceed the excess of the
Borrowing Base over the sum of (x) the face amount of Letters
of Credit outstanding, (y) the Reimbursement Obligations and
(z) the Committed Amount, the Borrower shall immediately
reduce such outstanding balance to the extent of such excess."
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(8) The Borrower hereby agrees and confirms that all liens and security
interests securing the indebtedness evidenced by the Term Note shall cover all
additional indebtedness created under the Term Note and that the liens and
security interests created under the Loan Documents, including the Security
Agreement and the Cash Collateral Documents, shall cover all indebtedness
evidenced by the Term Note as modified by this Amendment Agreement and the Note
Modification Agreement. The Borrower further agrees and confirms that this
Amendment Agreement and the Note Modification Agreement shall constitute a
modification to the Term Loan and the Term Note and not a novation thereof.
3. Representations and Warranties. The Borrower hereby represents and warrants
that:
(1) The representations and warranties contained in Article V of the Loan
Agreement are hereby made by the Borrower on and as of the date hereof except
the representations of Sections 5.3 and 5.4 shall refer to the most recent
financial statements delivered under Section 7.1 of the Loan Agreement.
(2) There has been no material change, and there exists no prospective
change, in the condition, financial or otherwise, of the Borrower since the date
of the most recent financial reports received by the Lender, other than changes
in the ordinary course of business and the Borrower's purchase of TMC, none of
which has been a materially adverse change;
(3) The business and properties of the Borrower are not, and since the
date of the most recent financial reports thereof received by Lender have not,
been materially adversely affected as the result of any fire, explosion,
earthquake, chemical spill, accident, strike, lockout, combination of workmen,
flood, embargo, riot, or cancellation or loss of any major contracts;
(4) No event has occurred and no condition exists which, either prior to
or upon the consummation of the transactions contemplated hereby, constitutes an
Event of Default under the Loan Agreement, either immediately or with the lapse
of time or the giving of notice, or both;
(5) The property which is collateral for the indebtedness of the Borrower
to the Lender under the Security Agreement and other collateral documents of the
Borrower in favor of the Lender are subject to no liens or encumbrances except
Permitted Liens;
(6) The execution, delivery and performance by the Borrower of its
obligations under this Amendment Agreement will not cause a violation or default
under any indenture, loan agreement, or other agreement of, or applicable to,
the Borrower; and
(7) The Borrower has the requisite corporate power and authority to
execute, deliver and perform this Amendment Agreement; each of such documents
has been duly authorized, executed and delivered; and each of such documents
constitutes a valid, binding
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and enforceable instrument, obligation or agreement of the Borrower, in
accordance with its respective terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting enforcement of creditors' rights generally.
4. Effectiveness of Documents. The terms and conditions hereof shall not
be effective until each of the following are delivered to the Lender:
(1) Amendment Agreement. Two fully executed originals of this
Amendment Agreement and an executed copy of the Note Modification
Agreement in substantially the form attached hereto as Exhibit A.
(2) Resolutions of Borrower. Resolutions of the Borrower certified
by its secretary or assistant secretary as of the date hereof, approving
and adopting this Amendment Agreement and the other documents to be
executed by the Borrower.
(3) Opinions. An opinion of counsel to the Borrower covering the
matters covered by its prior opinion on the Loan Agreement.
(4) Certificate of Authority. Certificate of a recent date of the
Secretary of State of North Carolina as to the authority of the Borrower
to do business in North Carolina and the good standing of the Borrower.
(5) No Litigation Certificate. Certificate of the chief financial
officer of the Borrower to the effect that no litigation or proceedings
are pending or threatened which might reasonably be expected to materially
adversely affect the Borrower's ability to perform its obligations under
this Agreement or operation of the Borrower's business.
(6) Other Documents, Etc. Such other documents, instruments and
certificates as the Lender may reasonably request.
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5. Miscellaneous.
(1) This Amendment Agreement sets forth the entire understanding and
agreement of the parties hereto in relation to the subject matter hereof
and supersedes any prior negotiations and agreements among the parties
relative to such subject matter. No promise, condition, representation or
warranty, express or implied, not herein set forth shall bind any party
hereto, and none of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties, or commitments, express or implied, have been
made by any other party to the other regarding the subject matter hereof.
None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled, orally or otherwise, except in a
writing, signed by the party to be charged therewith, specifying such
change, modification, waiver or cancellation of such terms or conditions,
or of any preceding or succeeding breach thereof, unless expressly so
stated.
(2) Except as hereby specifically amended, modified, or
supplemented, the Loan Agreement, the Loan Documents and all other
agreements, documents, and instruments related thereto are hereby
confirmed and ratified in all respects and shall remain in full force and
effect according to their respective terms.
(3) This Amendment Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which together shall
constitute one and the same instrument.
(4) This Amendment Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina.
(5) Upon request of the Lender, each of the parties hereto will duly
execute and deliver or cause to be duly executed and delivered to the
Lender such further instruments and do and cause to be done such further
acts that may be reasonably necessary or proper in the opinion of the
Lender to carry out more effectively the provisions and purposes hereof,
including documents deemed necessary by the Lender to more fully evidence
the obligations of Borrower to Lender and protect and perfect the
collateral therefor.
(6) The Borrower agrees to pay all reasonable costs and expenses of
the Lender in connection with the preparation, execution and delivery of
the documents executed in connection with this Amendment Agreement,
including without limitation, the reasonable fees and out-of-pocket
expenses of special counsel to the Lender.
(7) Wink Xxxxx Equipment Co., Inc. (the "Guarantor") as guarantor
under a Guaranty Agreement dated July 31, 1997 from the Guarantor in favor
of the Lender hereby joins in this Amendment Agreement to evidence its
consent to the terms and conditions
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hereof and agrees that the additional indebtedness of $1,300,000 under the
Term Loan is covered by such Guaranty Agreement.
[Signatures appear on following page]
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
hereof by the Company and the Lender.
ATTEST: XXXXXXXX INDUSTRIES, INC.
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxxxxx
__________ Secretary Name: Xxxxxx X. Xxxxxxxx
Title: President
WINK XXXXX EQUIPMENT CO., INC.
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Vice President
NATIONSBANK, N.A.
By: /s/ J. Xxxxxxx Xxxxxx
Name: J. Xxxxxxx Xxxxxx
Title: Senior Vice President
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