AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT
This Agreement ("Agreement") is made the 5th day of October, 1998, by
and among:
UNITED CAPITAL CORP., a corporation organized under the laws of the
State of Delaware (the "Borrower"); and
THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase") and
FLEET BANK, N.A., a national banking association organized under the laws of the
United States ("Fleet"); collectively with Chase, the "Banks").
R E C I T A L S :
(A) The Borrower and the Banks are parties to a Revolving Credit
Agreement dated as of January 15, 1997, which was amended by that certain
Amendment No. 1 to Credit Agreement dated as of September 5, 1997 (such
agreement, so amended, the "Credit Agreement").
(B) The Borrower has requested that the Credit Agreement be amended in
certain respects as provided herein and the Banks are willing to amend the
Credit Agreement as set forth herein;
(C) Any capitalized terms not defined herein shall have the meanings
ascribed thereto in the Credit Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1. AMENDMENTS TO REVOLVING CREDIT AGREEMENT.
This Agreement shall be deemed to be an amendment to the Credit
Agreement and shall not be construed in any way as a replacement or substitute
therefore. All of the terms and provisions of this Agreement are hereby
incorporated by reference into the Credit Agreement as if such terms and
provisions were set forth in full herein.
SECTION 1.1. Section 8.11 of the Credit Agreement is hereby amended
and restated to provide in its entirety as follows: -----------
SECTION 8.11. DIVIDENDS, ETC. Declare or pay any dividends on its
capital stock or purchase, redeem, retire or otherwise acquire any of
its capital stock at any time outstanding, except that any Subsidiary
wholly owned by the Borrower may declare and pay dividends to the
Borrower, and except that the Borrower may repurchase its capital
stock in amounts not to exceed (i) $4,500,000 in its fiscal year
ending December 31, 1998; (ii) $2,500,000 in its fiscal year ending
December 31, 1999; (iii) $2,000,000 in any other fiscal year; or (iv)
$7,700,000 during the term of this Agreement.
ARTICLE 2. REPRESENTATION AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
SECTION 2.1. Each and every one of the representations and warranties
set forth in the Credit Agreement is true as of the date hereof with respect to
the Borrower and the Guarantors with the same effect as though made on the date
hereof, and is hereby incorporated herein in full by reference as if fully
restated herein in its entirety.
SECTION 2.2. No Default or Event of Default, as defined in the Credit
Agreement now exists.
SECTION 2.3. No representation, warranty or statement by the Borrower
or the Guarantors contained herein or in any other document to be furnished by
the Borrower or the Guarantors in connection herewith contains, or at the time
of delivery shall contain, any untrue statement of material fact, or omits or at
the time of delivery shall omit to state a material fact necessary to make such
representation, warranty or statement not misleading.
SECTION 2.4. Each of the Facility Documents continues to be in full
force and effect and secure all payment and other obligations of the Borrower
under the Credit Agreement.
ARTICLE 3. MISCELLANEOUS
SECTION 3.1. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 3.2. Except as specifically amended hereby, the Credit
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, each of the undersigned has executed or caused to
be duly executed this Amendment as of the date first above written.
UNITED CAPITAL CORP.
By:______________________
Name:
Title:
THE CHASE MANHATTAN BANK
By:___________________
Name:
Title:
FLEET BANK, N.A.
By:______________________
Name:
Title:
AMENDMENT NO. 3
TO CREDIT AGREEMENT
This Agreement (this "Agreement") is made as of the 31st day of
December, 1998 by and among:
UNITED CAPITAL CORP., a corporation organized under the laws of the
State of Delaware (the "Borrower"); and
THE CHASE MANHATTAN BANK, a New York banking corporation ("Chase") and
FLEET BANK, NATIONAL ASSOCIATION, a national banking association organized under
the laws of the United States ("Fleet"; collectively with Chase, the "Banks").
RECITALS:
(A) The Borrower and the Banks are parties to a Revolving Credit
Agreement dated as of January 15, 1997, as amended through the date hereof, (the
Credit Agreement as so amended being hereinafter referred to as the "Credit
Agreement");
(B) The Borrower has informed the Banks that it has acquired all of
the shares of capital stock of Kentile Floors Inc. ("Kentile") pursuant to a
Chapter 11 Joint Plan of Reorganization of Kentile Floors Inc., as Debtor and
the Official Unsecured Creditors Committee (as amended, the "Plan"), which Plan
was confirmed by an Order of the United States Bankruptcy Court for the Southern
District of New York (Case No. 92B46466 (BRL)), dated December 10, 1998 (the
"Order");
(C) The Borrower has also informed the Banks that Kentile's name has
been changed to KF Real Estate Holding Corporation ("KF Real Estate");
(D) The Borrower has informed the Banks of its intent to merge Metex
Corporation ("Metex") with and into KF Real Estate (the "Proposed Merger") and
the subsequent name change of KF Real Estate to Metex Mfg. Corporation; and
(E) The Borrower has requested the Banks to amend certain provisions
of the Credit Agreement to the extent necessary to permit the foregoing
transactions and the Banks are willing to agree to such amendments on the terms
and conditions set forth herein; and
(F) Any capitalized terms used herein and note defined herein shall
have the meanings ascertained to them in the Credit Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1. AMENDMENTS TO REVOLVING CREDIT AGREEMENT.
This Agreement shall be deemed to be an amendment to the Credit
Agreement and shall not be construed in any way as a replacement or substitute
therefore. All of the terms and provisions of this Agreement are hereby
incorporated by reference into the Credit Agreement as if such terms and
provisions were set forth in full herein.
SECTION 1.1. The definition of the term "Eligible Properties"
contained in Section 1.1 of the Credit Agreement is hereby amended by inserting
the following sentence at the end thereof: "In no event shall the real property
owned by Metex Mfg. Corporation and located at 0 Xxxxxxx Xxxx, Xxxxx Xxxxxxxxxx,
Xxx Xxxxxx, be considered an "eligible property."
SECTION 1.2. The definition of the term "Operating Companies"
contained in Section 1.1 of the Credit Agreement is hereby amended by deleting
clause (i) therefrom and substituting the following in its place:
"(i) prior to December 31, 1998, Metex Corporation, a
Delaware corporation, and from and after December 31, 1998,
Metex Mfg. Corporation, as the surviving entity of the merger
of Metex Corporation and KF Real Estate Holding Corporation,
a New York corporation."
SECTION 1.3. Section 8.6 of the Credit Agreement is hereby amended by
inserting the following sentence at the end thereof: -----------
"Notwithstanding the foregoing, Metex Corporation may merge
with and into KF Real Estate Holding Corporation provided
that immediately after giving effect to such merger the
surviving entity shall be a Guarantor hereunder and shall
have granted to the Banks a first lien upon and security
interest in all of its personal property assets."
SECTION 1.4. Section 8.7 of the Credit Agreement is hereby amended by
inserting a new clause (iii) at the end thereof which provides as follows:
"and (iii) the Borrower may acquire 100% of the issued and
outstanding capital stock of Kentile Floors Inc. pursuant to
a Chapter 11 Joint Plan of Reorganization of Kentile Floors
Inc., as Debtor, and the Official Unsecured Creditors'
Committee as confirmed by Order of the United States
Bankruptcy Court for the Southern District of New York, dated
December 10, 1998, provided that the terms of such Plan are
acceptable to the Banks."
ARTICLE 2. CONDITIONS PRECEDENT
SECTION 2.1.
CONDITIONS TO EFFECTIVENESS. The amendments to the Credit Agreement
described in Article 1 above are subject to the following conditions precedent
and shall have no force --------------------------- or effect until the
following conditions are satisfied:
(a) each Bank shall have received a Guarantee duly executed by
Metex Mfg. Corporation;
(b) each Bank shall have received a Security Agreement duly
executed by Metex Mfg. Corporation, together with fully executed
financing statements on Form UCC-1 in proper form for filing in all
jurisdictions necessary or, in the reasonable discretion of the Agent,
deniable to perfect the security interests granted under the Security
Agreements;
(c) each Bank shall have received a copy of the Plan;
(d) each of the Banks shall have received the following:
i. each a certificate of the Secretary of Metex Mfg.
Corporation attesting to all corporate action taken by such
entity, including resolutions of its Board of Directors
authorizing the execution, delivery and performance of a
Guaranty and a Security Agreement and each other document to be
executed by such entity, together with certified copies of the
certificate or articles of incorporation and the by-laws of such
entity; and such certificate shall state that the resolutions
and corporate documents thereby certified have not been amended,
modified, revoked or rescinded as of the date of such
certificate;
ii. a certificate of the Secretary of Metex Mfg. Corporation
certifying the names and true signatures of the officers of such
entity authorized to sign a Guaranty and a Security Agreement
and other documents to be signed by such entity hereunder;
iii. satisfactory evidence that Metex Mfg. Corporation is
duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and each other
jurisdiction where qualification is necessary;
iv. an opinion of counsel for the Borrower and Metex Mfg.
Corporation as to such matters as the Banks deem necessary.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES.
The Borrower hereby represents and warrants to the Banks that:
SECTION 3.1. Each and every one of the representations and warranties
set forth in the Credit Agreement is true in all material respects as of the
date hereof with respect to the Borrower and the Guarantors with the same effect
as though made on the date hereof, and is hereby incorporated herein in full by
reference as if fully restated herein in its entirety.
SECTION 3.2. No Default or Event of Default, as defined in the Credit
Agreement now exists.
SECTION 3.3. No representation, warranty or statement by the Borrower
or the Guarantors contained herein or in any other document to be furnished by
the Borrower or the Guarantors in connection herewith contains, or at the time
of delivery shall contain, any untrue statement of material fact, or omits or at
the time of delivery shall omit to state a material fact necessary to make such
representation, warranty or statement not misleading.
SECTION 3.4. Each of the Facility Documents continues to be in full
force and effect and secure all payment and other obligations of the Borrower
under the Credit Agreement.
ARTICLE 4. MISCELLANEOUS.
This Amendment shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, each of the undersigned has executed or caused to
be duly executed this Amendment as of the date first above written.
UNITED CAPITAL CORPORATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
FLEET BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
