AMENDMENT TO THE CREDIT AGREEMENT DATED MARCH 13, 2009
EXHIBIT 10.15
AMENDMENT TO THE CREDIT AGREEMENT
DATED MARCH 13, 2009
FIRST AMENDMENT
TO
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (the “Amendment”), is made as of the 13th
day of March, 2009, by and between ADVANCED FIBERGLASS TECHNOLOGIES, INC., a
Wisconsin corporation (“AFT”), and XXXXX X. XXXXX AND XXXXXXXX XXXXX (the
“Mancls”) and NEKOOSA PORT XXXXXXX STATE BANK (“Bank”).
WHEREAS,
AFT, the Mancls, Bank and M & W Fiberglass, LLC (“M&W”) are parties to
that certain Credit Agreement dated as of February 28, 2007 (the “Credit
Agreement”); and
WHEREAS,
M&W has assigned all of its rights, title and interests in and to, and AFT
has assumed all of the obligations of M&W arising under, the Credit
Agreement pursuant to that certain Assignment and Assumption Agreement dated as
of December 31, 2008; and
WHEREAS,
AFT, the Mancls and the Bank wish to amend the Credit Agreement as hereinafter
described to reflect modifications to various definitions and
covenants.
NOW
THEREFORE, in consideration of the recitals and of the consummation of the
transactions contemplated in this Amendment and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Capitalized
Terms. All capitalized terms used in this Amendment and not
otherwise defined herein shall have the meaning given such terms in the Credit
Agreement.
2. Amendment to Section
1.01. Section 1.01 of the Credit Agreement is hereby amended
as follows:
a. The
definition of “Debt
Service Coverage Ratio” is deleted in its entirety and restated as
follows:
“Debt Service Coverage
Ratio” of any entity or entities on any date shall mean the ratio of (i)
EBITDA for the 12-month period ending on the measurement date to (ii) interest
expenses plus principal payments coming due during the 12-month period beginning
on the day after measurement.
b. The
definition of “EBITDAR” is deleted
in its entirety and replaced with the following:
“EBITDA” shall mean,
for any period, the sum of the amounts for such period of (A) net income (or
loss) after taxes of the Corporation and ECC on a consolidated basis ("Net
Income"), plus (B) interest expense which has been deducted in the determination
of Net Income, plus (C) federal, state and local taxes which have been deducted
in determining Net Income, plus (D) depreciation and amortization expenses which
have been deducted in
determining
Net Income, plus (E) extraordinary losses which have been deducted in the
determination of Net Income, minus (F) extraordinary gains which have been
included in the determination of Net Income.
c. The following
definition is inserted:
“ECC” shall mean
Energy Composites Corporation, a Nevada corporation.
d. The
definition of “Tangible Net Worth”
is deleted in its entirety and replaced with the following:
“Equity” shall mean,
for any period, (A) the total of all assets of the Corporation and ECC on a
consolidated basis minus (B) the aggregate of all liabilities and reserves of
every kind and character of the Corporation and ECC on a consolidated basis, all
determined in accordance with generally accepted accounting principles
consistent with those followed in preparation of the financial statements
described in Section 5.03 hereof.
3. Amendment to Section
5.03(a). Section 5.03(a) of the Credit Agreement is hereby
deleted in its entirety and restated as follows:
(a) as
soon as available, and in any event on or before September 15th
following the close of each fiscal year, each Borrower shall provide Bank a copy
of the tax return for such year as of the end of such fiscal year for such
Borrower;
4. Amendment to Section
5.03(b). Section 5.03(b) of the Credit Agreement is hereby
deleted in its entirety and restated as follows:
(b) as
soon as available, and in any event within 120 days after the end of each fiscal
year, consolidated and consolidating financial statements for the Corporation
and ECC for each fiscal year, prepared in accordance with GAAP, and audited by
independent accountants acceptable to Bank;
5. Amendment to Section
5.03(d). Section 5.03(d) of the Credit Agreement is hereby
deleted in its entirety and restated as follows:
(d) as
soon as available, and in any event within 45 days after the end of each fiscal
quarter, consolidated and consolidating financial statements for the Corporation
and ECC for each quarter, prepared in accordance with GAAP, all in reasonable
detail and certified as true and correct, subject to review and normal year end
adjustments, by the chief financial officer of the Corporation;
6. Amendment to Section
5.14. Section 5.14 of the Credit Agreement is hereby deleted
in its entirety.
7. Amendment to Section
5.15. Section 5.15 of the Credit Agreement is hereby deleted
in its entirety and restated as follows:
Debt Service Coverage
Ratio. The Corporation and ECC on a consolidated basis shall
at all times maintain a Debt Service Coverage Ratio measured as of the last day
of each fiscal quarter of not less than 1.25:1.0.
8. Amendment to Section
5.16. Section 5.16 of the Credit Agreement is hereby deleted
in its entirety and restated as follows:
Total Indebtedness to Equity
Ratio. The Corporation and ECC on a consolidated basis shall
at all times maintain a Total Indebtedness to Equity Ratio measured as of the
last day of each fiscal quarter of not more than 3.50:1.0.
9. Amendment to Section
6.09. Section 6.09 of the Credit Agreement is hereby deleted
in its entirety.
10. Amendment to Section
6.10. Section 6.10 of the Credit Agreement is hereby deleted
in its entirety and restated as follows:
Change in
Control. Make no changes in the current ownership structure of
the Corporation without Bank’s consent.
11. Effect of this
Amendment. Except as modified pursuant hereto, no other
changes or modifications to the Credit Agreement or the Bond Documents are
intended or implied and in all other respects the Credit Agreement and the Bond
Documents are hereby specifically ratified, restated and confirmed by all
parties hereto as of the effective date hereof. To the extent of any
conflict between the terms of this Amendment and any of the Bond Documents, the
terms of this Amendment shall control.
12. Representations and
Warranties of AFT and the Mancls. In order to induce the Bank
to enter into this First Amendment to Credit Agreement, and in recognition of
the fact that the Bank is acting in reliance thereupon, AFT and the Mancls
represent and warrant to the Bank as follows:
a. AFT has
the corporate power and authority to enter into and deliver this First Amendment
to Credit Agreement. Each of the Credit Agreement, as amended hereby,
this First Amendment to Credit Agreement, and any other documents executed in
connection with this First Amendment to Credit Agreement when duly executed on
behalf of AFT, constitutes the legal, valid and binding obligations of AFT,
enforceable against AFT in accordance with their terms.
b. The
execution and delivery of this First Amendment to Credit Agreement and any other
document or instrument executed in connection herewith have been authorized by
all necessary corporate action on the part of AFT.
c. The
representations and warranties of AFT and the Mancls contained in the Credit
Agreement are true and correct in all material respects as of the date of this
First Amendment to Credit Agreement to the same extent as if made on and as of
the date of this Amendment, except to the extent that such representations and
warranties expressly relate to an earlier date.
d. As of the
date of this First Amendment to Credit Agreement no Event of Default has
occurred and is continuing and no event has occurred which with the passage of
time or the giving of notice or both would constitute an Event of
Default.
13. Miscellaneous.
a. Costs and
Expenses. As provided in Section 5.09(b) of the Credit
Agreement, AFT shall pay, on demand, all reasonable out-of-pocket costs and
expenses of Bank in connection with the negotiation, preparation, execution and
delivery of this Amendment, including the fees and expenses of counsel for Bank
with respect to all of the foregoing.
b. Binding
Nature. This Amendment shall be binding upon each of AFT and
the Mancls and their respective successors and assigns and shall inure to the
benefit of the Bank and the benefit of its successors and assigns.
c. Governing
Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin.
d. Counterparts. This
Amendment may be executed in multiple counterparts, all of which shall
constitute one and the same instrument and each of which shall be deemed to be
an original.
e. References. Any
reference to the Credit Agreement contained in any notice, request, certificate
or other document executed concurrently with or after the execution and delivery
of this Amendment shall be deemed to include this Amendment unless the context
shall otherwise require.
f. Breach. A
breach of this Amendment shall constitute a breach of the Credit Agreement and
the Bank shall be entitled to all rights and remedies thereunder.
g.
Further
Assurances. The parties hereto shall execute and deliver such
additional documents and take such additional actions as may be necessary or
desirable to effectuate the provisions and purposes of this
Amendment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have executed this Assignment and Assumption
Agreement effective as of the date first written above.
|
MANCLS:
/s/
Xxxxx X.
Xxxxx
XXXXX
X. XXXXX
/s/
Xxxxxxxx
Xxxxx
XXXXXXXX
XXXXX
|
AFT:
ADVANCED
FIBERGLASS
TECHNOLOGIES,
INC., a Wisconsin
corporation
By: /s/ Xxxxxxx X.
Xxxxxxxx
Name: Xxxxxxx X.
Xxxxxxxx
Title: V.P.
Finance
BANK:
NEKOOSA
PORT XXXXXXX STATE BANK
By: /s/ Xxxx X.
Xxxxxx
Name: Xxxx X.
Xxxxxx
Title:
President
Acknowledgement
by ENERGY
COMPOSITES
CORPORATION, a Wisconsin
corporation
By: /s/ Xxxxx X.
Xxxxx
Name: Xxxxx X.
Xxxxx
Title:
President
|
