1
EXHIBIT 10.2
CONSENT AND WAIVER NO. 2 TO
CREDIT AND SECURITY AGREEMENT
Preamble. THIS CONSENT AND WAIVER NO. 2 (this "Second Waiver"), dated as of
March 5, 1999 (the "Second Waiver Date"), is made by and among THOMASTON XXXXX,
INC., a Georgia corporation (hereinafter, together with its successors and
permitted assigns called the "Borrower"); THOMASTON XXXXX FSC, INC., a U.S.
Virgin islands corporation (hereafter, together with its successors and
permitted assigns, called "FSC"); NATIONSBANK, N.A., a national banking
association (hereinafter, together with its successors and permitted assigns,
called "NationsBank"; NationsBank, together with SunTrust and Wachovia, each as
hereinafter defined, called collectively, the "Lenders" and, individually, a
"Lender"); SUNTRUST BANK, ATLANTA, a Georgia banking corporation (hereinafter,
together with its successors and permitted assigns, called "SunTrust"),
individually and as "Administrative Agent" and "Syndication Agent" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders; WACHOVIA BANK, N.A., a national banking association (hereinafter,
together with its successors and permitted assigns, called "Wachovia"), as
"Special Issuer," "Documentation Agent" and "Collateral Agent" (as those terms
are defined in the Credit Agreement defined below), on behalf of the Lenders;
and SUNTRUST EQUITABLE SECURITIES CORPORATION, a Tennessee corporation
(hereinafter, together with its successors and permitted assigns called
"SunTrust Equitable Securities"), as "Arranger" and "Lead Manager" (as those
terms are defined in the Credit Agreement defined below), on behalf of the
Lenders.
The Borrower, FSC, SunTrust (in its respective capacities described
above), Wachovia (in its respective capacities described above), NationsBank as
a Lender and SunTrust Equitable Securities (in its respective capacities
described above) (the foregoing parties herein sometimes collectively called the
"Parties" and individually called a "Party") are Parties to a certain Credit and
Security Agreement, dated as of August 19, 1998 (which is called herein the
"Credit Agreement"), pursuant to which, among other things, the Lenders agreed
to extend credit and other financial accommodations to the Borrower. The
Borrower has requested that the Lenders waive the Borrower's compliance with
certain terms and conditions of the Credit Agreement, which the Lenders have
agreed to do, in the manner, and subject to the terms and conditions, set forth
hereinbelow.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the Parties,
each intending to be legally bound, hereby agree as follows:
SECTION 10. Definitions. Capitalized terms used in this Second Waiver
and not defined herein are defined in the Credit Agreement.
2
SECTION 11. Waivers to Credit Agreement. The Lenders waive the
Borrower's compliance with the requirements set forth in Amended and Restated
Consent and Waiver No. 1 to Credit and Security Agreement, dated February 16,
1999 ("Waiver No. 1") that, by not later than March 5, 1999, the Borrower shall
have complied in all remaining respects with Section 5.42 in respect of all
Mortgaged Real Property described in clause (2) of subsection (E) of Waiver No.
1, and agree to defer the imposition of the late delivery fee of $1,000 per
Business Day set forth until the Borrower has duly complied with each of such
requirements, as set forth in Waiver No. 1, provided that the Borrower has
complied with all such requirements by not later than March 12, 1999.
SECTION 12. Representations and Warranties of Obligors. The Borrower
and FSC, each severally, represents and warrants to the other Parties that:
i. It has the power and authority to enter into and to perform
this Second Waiver, to execute and deliver all documents
relating to this Second Waiver, and or incur the obligations
provided for in this Second Waiver, all of which have been
duly authorized and approved in accordance with its corporate
documents;
ii. This Second Waiver, together with all documents executed
pursuant hereto, shall constitute when executed its valid and
legally binding obligations in accordance with their
respective terms;
iii. All representations and warranties made by it in the Credit
Agreement are true and correct as of the date hereof, with the
same force and effect as if all representations and warranties
were fully set forth herein;
iv. Its Obligations under the Credit Documents remain valid and
enforceable Obligations, and the execution and delivery of
this Second Waiver and the other documents executed in
connection herewith shall not be construed as a novation of
the Credit Agreement or any of the other Credit Documents;
v. As of the date hereof, it has no offsets, defenses or
counterclaims against the payment of any of the Obligations;
and
vi. As of the date hereof, and after giving effect to the terms
hereof, no Default Condition or Event of Default exists.
SECTION 13. Waiver of Claims. As a specific inducement to the other
Parties without which the Borrower and FSC acknowledge the other Parties would
not enter into this Second Waiver and the other documents executed in connection
herewith, each of the Borrower and FSC hereby waives any and all claims that it
may have against any other Party, as of the date hereof, arising out of or
relating to the Credit Agreement or any other Credit Document whether sounding
in contract, tort, or any other basis.
SECTION 14. Conditions of Effectiveness. This Second Waiver shall
become effective when, and only when, the Documentation Agent shall have
received this Second Waiver, executed by each Party.
2
3
SECTION 15. Miscellaneous.
a. Reference to Credit Agreement. Upon the effectiveness of
this Second Waiver, each reference in the Credit Agreement to "this Credit
Agreement" and each reference in the other Credit Documents to the Credit
Agreement, shall mean and be a reference to the Credit Agreement as modified
hereby.
b. Effect on Credit Documents. Except as specifically waived
above, all terms of the Credit Agreement and all other Credit Documents shall
remain in full force and effect and are hereby ratified and confirmed.
c. No Other Waiver. The execution, delivery and effectiveness
of this Second Waiver shall not operate as a waiver of any right, power, or
remedy of Lenders or the Agents under any of the Credit Documents, nor
constitute a waiver of any provision of any of the Credit Documents, other than
as expressly set forth hereinabove.
d. Costs, Expenses and Taxes. The Borrower agrees to pay on
demand all costs and expenses of the Agents and the Lenders in connection with
the preparation, reproduction, execution, and delivery of this Second Waiver and
the other instruments and documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Agent and the
Lenders with respect hereto.
e. No Novation. Nothing contained herein intended, or shall be
construed, to constitute a novation to the Credit Agreement or any Credit
Document.
f. Governing Law. This Second Waiver shall be governed by and
construed in accordance with the laws of the State of Georgia, without giving
affect to conflict of law provisions.
g. Counterparts. This Second Waiver may be executed in
counterparts. Each counterpart shall bind the Party or Parties executing same.
All counterparts, taken together, shall constitute one and the same agreement.
3
4
IN WITNESS WHEREOF, the Parties have caused this Second Waiver
to be duly executed, under seal, by their respective authorized officers as of
the day and year first above written.
"BORROWER"
THOMASTON XXXXX, INC.
By:/s/ Xxxx X. Xxxxxxxxx (SEAL)
------------------------------------
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
Attest: /s/ A. Xxxxxxx Xxx (SEAL)
--------------------------------
A. Xxxxxxx Xxx
Vice President-Finance
"SUBSIDIARY GUARANTOR"
THOMASTON XXXXX FSC, INC.
By:/s/ Xxxx X. Xxxxxxxxx (SEAL)
------------------------------------
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
Attest: /s/ A. Xxxxxxx Xxx (SEAL)
--------------------------------
A. Xxxxxxx Xxx
Vice President-Finance
4
5
SUNTRUST BANK, ATLANTA,
as Administrative Agent,
Syndication Agent and as a Lender (SEAL)
By: /s/
----------------------------------------
5
6
WACHOVIA BANK, N.A.,
as Special Issuer, Documentation Agent,
Collateral Agent, and as a Lender (SEAL)
By: /s/
----------------------------------------------
6
7
NATIONSBANK, N.A.,
as a Lender (SEAL)
By: /s/
-----------------------------------
7
8
SUNTRUST EQUITABLE SECURITIES
CORPORATION, as Arranger and Lead
Manager (SEAL)
By: /s/
------------------------------------
8
