1995 CONSOLIDATED AMENDMENT AGREEMENT TO
LOAN AGREEMENT AND RELATED DOCUMENTS
THIS AMENDMENT AGREEMENT, made and entered into as of this
31st day of May, 1995, by and between XXXXXXXX INDUSTRIES, INC.,
a Delaware corporation (the "Borrower") and NATIONSBANK, NATIONAL
ASSOCIATION (CAROLINAS), a national banking association (the
"Lender");
W I T N E S S E T H:
WHEREAS, pursuant to a Loan Agreement dated as of April 19,
1994 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 thereof;
WHEREAS, under the Loan Agreement, the Borrower has issued
to the Lender its Revolving Credit Note dated April 19, 1994 in
the principal amount of $2,000,000 (the "Note");
WHEREAS, under the Loan Agreement, the Borrower has obtained
a letter of credit facility of up to $12,000,000 for the issuance
of documentary letters of credit for the purposes set forth in
the Loan Agreement (the "Letter of Credit Facility");
WHEREAS, collateral for the indebtedness and obligations of
the Borrower in respect of the Loan Agreement, Note and Letter of
Credit Facility is provided under a Security Agreement dated
April 19, 1994 (the "Security Agreement") between the Borrower
and the Lender;
WHEREAS, the Borrower has requested that the Lender increase
the Letter of Credit Facility from $12,000,000 to $14,000,000,
modify the Borrowing Base and extend the maturity date, all as
provided herein;
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.
(i) The number "$12,000,000" as it appears in the following
places in the Loan Agreement is hereby deleted and the number
"$14,000,000" placed in its stead:
(a) First paragraph on page 1 under WITNESSETH;
(b) Sections 1.51, 2.1, 3.1 and 3.5(iv).
(ii) The number "$5,000,000" as it appears in Section 1.10
"Borrowing Base" is hereby deleted and the number "$7,000,000"
placed in its stead and subparagraph (ii) of Section 1.10 is
hereby amended to read as follows:
"(ii) until August 31, 1995 the lesser of (x) Eligible
Inventory multiplied by 30% or (y) $750,000".
(iii) The date "October 31, 1995" in Section 1.52 "Letter
of Credit Facility Termination Date" and Section 1.73
"Termination Date" is hereby deleted and the date "October 31,
1996" placed in its stead.
(iv) The number "$2,500,000" as it appears in the ninth
line of Section 3.1 is hereby deleted and the number "$3,500,000"
placed in its stead.
(v) The Borrowing Base Certificate attached as Exhibit A to
the Loan Agreement is deleted and a new Borrowing Base
Certificate, in the form of Exhibit 1-A attached hereto, is
placed in its stead to be effective until August 31, 1995 and a
new Borrowing Base Certificate, in the form of Exhibit 1-B
attached hereto, is placed in its stead to be effective after
August 31, 1995.
3. Representations and Warranties. The Borrower hereby
represents and warrants that:
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(A) 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.
(B) There has been no 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, none of which has been a
materially adverse change;
(C) 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;
(D) 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;
(E) 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;
(F) 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
(G) The Borrower has the requisite corporate power and
authority to execute, deliver and perform this Amendment
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Agreement; each of such documents has been duly authorized,
executed and delivered; and each of such documents
constitutes a valid, binding 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:
(A) Amendment Agreement. Two fully executed originals
of this Amendment Agreement.
(B) 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.
(C) Opinions. An opinion of counsel to the Borrower
covering the matters covered by its prior opinion on the
Loan Agreement.
(D) Uniform Commercial Code Financing Statements.
Uniform Commercial Code Financing Statements covering the
property described in the Security Agreement.
(E) Charter Documents. Copy of a Good Standing
Certificate of the State of Delaware concerning Borrower and
the Articles of Incorporation of Borrower certified by the
Secretary of State of Delaware to be a true and correct copy
as currently in effect and a copy of the Bylaws certified by
the Secretary of the Borrower to be a true and correct copy
as currently in effect.
(F) 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.
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(G) 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 adversely affect the
Borrower's ability to perform its obligations under this
Agreement or operation of the Borrower's business.
(H) Amendment Fee. An amendment fee of $5,000 payable
by Borrower.
(I) Other Documents, Etc. Such other documents,
instruments and certificates as the Lender may reasonably
request.
5. Miscellaneous.
(A) 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.
(B) 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
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and shall remain in full force and effect according to their
respective terms.
(C) 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.
(D) This Amendment Agreement shall be governed by and
construed and interpreted in accordance with the laws of the
State of North Carolina.
(E) 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.
(F) 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.
[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.
R.A. Bigger (sig) By: Xxxxx Xxxxx (sig)
Assistant Secretary Name: Xxxxx Xxxxx
Title: Vice President - Finance
NATIONSBANK, NATIONAL ASSOCIATION
(CAROLINAS)
By: Xxxx X. Xxxxxxx (sig)
Name: Xxxx X. Xxxxxxx
Title: SVP
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EXHIBIT 1-A
(Prior to August 31, 1995)
BORROWING BASE CERTIFICATE
Xxxxxxxx Industries, Inc.
Borrowing Base Certificate For the Week Ended
I. Accounts Receivable Gross Receivables $0
Less: Amounts over 90 days $0
from invoice
Less: Commissions and expenses $0
receivable
Less: Foreign accounts receivable $0
Less: Accounts receivable of an $0
account debtor for which more
than 25% of its total balance
is more than 90 days past due
Less: Other ineligible accounts $0
receivable including
"consigned inventories"
Net Eligible Receivables $0
A/R Availability (A) 80.00% $0
II. Inventories Gross Inventories $0
Less: Work in process, Supplies, $0
etc.
Less: Other ineligible $0
inventories
Net Eligible Inventories $0
Inventory Availability (B) 30.00% $0
(Limit $750,000)
Plus: Outstanding Documentary $0
L/C's
L/C Availability (C) 50.00% $0
L/C + Inventory Avail. (D) (B)+(C) $0
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(Limit $7,000,000)
III. Cash Collateral (E) Certificates of Deposit Pledged $0
to Lender
IV. Calculation of A/R Availability (A) $0
Total Borrowing L/C+Inventory Availability (D) $0
Base Availability Cash Collateral (E) $0
(F) Total Borrowing Base Availability $0
Credit Facility Usage:
Direct Borrowings $0
O/S Documentary L/C's $0
(G) Total Usage $0
Net Excess (F-G) $0
The aggregate face amount of letters of credit outstanding
in respect of textile machinery held as inventory for sale
does not exceed $3,500,000.
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EXHIBIT 1-B
BORROWING BASE CERTIFICATE
Xxxxxxxx Industries, Inc.
Borrowing Base Certificate For the Week Ended
I. Accounts Receivable Gross Receivables $0
Less: Amounts over 90 days $0
from invoice
Less: Commissions and expenses $0
receivable
Less: Foreign accounts receivable $0
Less: Accounts receivable of an $0
account debtor for which more
than 25% of its total balance
is more than 90 days past due
Less: Other ineligible accounts $0
receivable including
"consigned inventories"
Net Eligible Receivables $0
A/R Availability (A) 80.00% $0
II. L/C Availability (B) 50.00% $0
(Limit $7,000,000)
III. Cash Collateral (C) Certificates of Deposit Pledged $0
to Lender
IV. Calculation of A/R Availability (A) $0
Total Borrowing L/C Availability (B) $0
Base Availability Cash Collateral (C) $0
(D) Total Borrowing Base Availability $0
Credit Facility Usage:
Direct Borrowings $0
O/S Documentary L/C's $0
(E) Total Usage $0
Net Excess (D-E) $0
The aggregate face amount of letters of credit outstanding
in respect of textile machinery held as inventory for sale
does not exceed $3,500,000.
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