Exhibit (4)(c)(16)
TENTH AMENDMENT TO CREDIT AGREEMENT
THIS TENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of June 23, 2000, by and between X.X. XXXXXX COMPANY, a North Carolina
corporation (the "Borrower"), and MELLON BANK, N.A., a national banking
association (the "Lender").
RECITALS
A. The Borrower and the Lender are parties to a certain Credit Agreement
dated as of August 15, 1995 (as amended by the "First Amendment", the
"Second Amendment", the "Third Amendment", the "Fourth Amendment", the
"Fifth Amendment", the "Sixth Amendment", the "Seventh Amendment", the
"Eighth Amendment", and the "Ninth Amendment", each defined below, the
"Credit Agreement") pursuant to which the Lender established certain
credit facilities for the Borrower in order to provide working capital
financing and to refinance certain existing indebtedness. Except as
otherwise defined herein, capitalized terms used in this Amendment shall
have the same meaning as in the Credit Agreement.
B. As a result of certain Events of Default, the Borrower and the Lender
entered into the First Amendment to Credit Agreement dated as of April 15,
1996 ("First Amendment"), the Second Amendment to Credit Agreement dated
as of October 18, 1996 ("Second Amendment"), the Third Amendment to Credit
Agreement dated as of November 16, 1996 ("Third Amendment"), the Fourth
Amendment to Credit Agreement dated as of March 11, 1997 ("Fourth
Amendment"), the Fifth Amendment to Credit Agreement dated as of July 8,
1998 ("Fifth Amendment"), the Sixth Amendment to Credit Agreement
dated as of December 28, 1998 ("Sixth Amendment"), the Seventh Amendment
to the Credit Agreement dated as of June 29, 1999 ("Seventh Amendment"),
the Eighth Amendment to the Credit Agreement dated as of December 31, 1999
("Eighth Amendment"), and the Ninth Amendment to the Credit Agreement
dated as of January 28, 2000 ("Ninth Amendment").
C. The Borrower has requested that the Lender amend certain terms and
provisions in the Credit Agreement and forbear from exercising its
remedies under the Credit Agreement as a result of the occurrence of
recent Events of Default under Sections 6.1(c) and (d) of the Credit
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
AMENDMENTS
1. The definition of "Revolving Credit Committed Amount" in Article 1
of the Credit Agreement is hereby deleted and replaced with the following:
"Revolving Credit Committed Amount" shall mean Seven Million
Dollars ($7,000,000).
2. Section 2.2 (a)(iv) of the Credit Agreement is hereby deleted in its
entirety and replaced with the following:
2.02 Borrowing Base
(iv) as of June 1, 2000, thirty percent (30%) of the Net Value
of Eligible Retail Inventory; as of July 1, 2000, twenty percent
(20%) of the Net Value of Eligible Retail Inventory; as of
August 1, 2000, ten percent (10%) of the Net Value of Eligible
Retail Inventory; and as of September 1, 2000 and at all times
thereafter, zero percent (0%) of the Net Value of Eligible
Retail Inventory; provided, however, that in no event shall
aggregate Loans made against Eligible Retail Inventory exceed
$300,000; plus
3. The following additions are hereby made to Article 1, Definitions,
in alphabetical order:
"Tenth Amendment" shall mean the Tenth Amendment to Credit
Agreement dated as of June 23, 2000, by and between the
Borrower and the Lender.
"Tenth Amendment Closing Date" shall mean June 23, 2000.
REPRESENTATIONS AND WARRANTIES
4. Other Representations and Warranties. Each of the representations
and warranties (as amended hereby) made by the Borrower in Article 3 of
the Credit Agreement are true and correct on and as of the Tenth
Amendment Closing Date (except those representations and warranties that
address matters only as of a particular date, which are true and correct
as of that date), and are incorporated herein as though fully set forth.
FORBEARANCE
5. Forbearance.
(a) The Borrower acknowledges and agrees that the aforementioned
Events of Default (the "Existing Defaults") have occurred and are con-
tinuing under the Credit Agreement. The Existing Defaults entitle the
Lender to exercise all of its rights and remedies under the Loan
Documents.
(b) During the period (the "Forbearance Period") commencing on the
date of this Amendment and ending on the earlier to occur of (a) Septem-
ber 30, 2000 or (b) the date that any Forebearance Default (as hereinafter
defined) shall occur, Mellon agrees that it will forbear in the exercise
of its rights and remedies under the Loan Documents.
(c) Each of the following shall constitute a "Forbearance Default"
under this Amendment: (a) the occurrence of any default or event of
default (other than the Existing Defaults) under any of the Loan Docu-
ments; or (b) the Company shall fail to keep or observe any of the
covenants or agreements contained in this Amendment; or (c) any
representation or warranty of the Company contained in this Amendment
shall be false, incorrect or misleading in any material respect.
(d) The Lender hereby reserves all of its rights and remedies under
the Loan Documents, whether at law or in equity.
CONDITIONS PRECEDENT
6. Conditions to Effectiveness of this Amendment. The obligation of the
Lender to enter into this Amendment is subject to the satisfaction,
immediately prior to or concurrently with the execution of the Amendment,
of the following conditions precedent:
(a) Tenth Amendment, etc. The Lender shall have received this Tenth
Amendment, duly executed by the Borrower.
(b) Officers' Certificates. The Lender shall have received certificates
from such officers of the Borrower in the form of Exhibit C attached
hereto.
(c) Restructuring Fee. The Lender shall have received from the
Borrower a one-time fee of $20,000 (of which $18,275 shall be allocated
to Mellon Bank, N.A. and $1,725 to First National Bank and Trust Company)
in connection with the preparation and execution of the Tenth Amendment.
(d) Fees, Expenses, Etc. All fees and other compensation (including,
without limitation, attorneys' fees) required to be paid to the Lender
pursuant hereto or pursuant to any other written agreement on or prior
to the Tenth Amendment Closing Date shall have been paid or received.
(e) Other Conditions Precedent. Each of the conditions precedent set
forth in Section 4.02 of the Credit Agreement shall have been met.
MISCELLANEOUS
7. Reaffirmation; No Waiver. Except as expressly modified herein, the
terms of the Credit Agreement, the Security Documents and all of the
Loan Documents executed in connection therewith, remain in full force
and effect in accordance with their respective terms and conditions, are
in no manner impaired hereby and, are hereby reaffirmed by all of the
parties. In the event of any conflict between this Amendment and any
other Loan Document, the provisions of this Amendment shall prevail.
8. Severability. The provisions of this Amendment are intended to be
severable. If any provision of this Amendment shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the
validity or enforceability thereof in any other jurisdiction or the
remaining provisions hereof in any jurisdiction.
9. Prior Understandings. This Amendment and the other Amendment
Documents supersede all prior and contemporaneous understandings and
agreements, whether written or oral, among the parties hereto relating
to the transactions provided for herein and therein.
10. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the
same instrument.
11. Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the Borrower, the Lender, all future holders of
the Notes, and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights hereunder or
interests herein without the prior written consent of the Lender, and
any purported assignment without such consent shall be void.
12. Governing Law. THIS AMENDMENT AND ALL OTHER AMENDMENT DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER
AMENDMENT DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA, WITHOUT REGARD
TO CHOICE OF LAW PRINCIPLES.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Amendment as of the
date first above written.
ATTEST: X.X. XXXXXX COMPANY
By: XXXXXXX X. XXXXXX By: XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx, President
[Corporate Seal]
MELLON BANK, N.A.
By: XXXXX X. XXXXX
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Xxxxx X. Xxxxx, Vice President
CONSENTED TO this 23rd
day of June, 2000:
FIRST NATIONAL BANK
AND TRUST COMPANY
By: R. XXXXXX XXXXXX, III
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R. Xxxxxx Xxxxxx, III
Senior Vice President
