EXHIBIT 10.4
SEVENTH AMENDMENT AGREEMENT
SEVENTH AMENDMENT AGREEMENT (this "Agreement"), dated as of October
17, 1997, by and among ALADDIN MANUFACTURING CORPORATION (the "Company"), a
Delaware corporation formerly known as Mohawk Manufacturing Corporation and
prior to that known as Mohawk Carpet Corporation, MOHAWK INDUSTRIES, INC. (the
"Parent"), a Delaware corporation, MOHAWK MARKETING, INC. ("Marketing"), a
Georgia corporation, MOHAWK XXXXX, INC. ("Xxxxx"), a Delaware corporation, and
MOHAWK CARPET CORPORATION ("Carpet"), a Delaware corporation formerly known as
Mohawk Limited (each of the foregoing, other than the Company, and each of their
respective successors and assigns, collectively, the "Guarantors") and EACH OF
THE OTHER PERSONS NAMED ON THE SIGNATURE PAGES HEREOF (collectively, the
"Noteholders").
RECITALS:
A. The Company entered into those separate Note Purchase Agreements,
each dated as of August 15, 1993 (collectively, as amended and as in effect
prior to the effectiveness of this Agreement, the "Existing Note Agreement,"
and, as amended by this Agreement, the "Amended Note Agreement"), with the
Noteholders, pursuant to which the Company issued and sold to the Noteholders an
aggregate principal amount of Eighteen Million Seven Hundred Fifty Thousand
Dollars ($18,750,000) of the Company's 9.5% Senior Notes Due April 1, 1998 (the
"Notes").
B. The obligations of the Company in respect of the Notes and the
Existing Note Agreement have been unconditionally guaranteed by the Guarantors
pursuant to the Existing Note Agreement, that certain Guaranty Agreement, dated
as of November 3, 1993, by Marketing, in favor of the Noteholders, that certain
Guaranty Agreement dated as of May 1, 1995, by Xxxxx, in favor of the
Noteholders and that certain Guaranty Agreement, dated as of July 19, 1995, by
Carpet, in favor of the Noteholders.
C. The Company and the Guarantors have requested the amendment of
certain provisions of the Existing Note Agreement.
D. Each of the Company, the Guarantors and the Noteholders are
desirous of entering into this Agreement on the terms and conditions hereinafter
set forth.
AGREEMENT:
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINED TERMS.
The terms used herein and not defined herein shall have the meanings
assigned to such terms in the Amended Note Agreement.
SECTION 2. AMENDMENTS TO THE EXISTING NOTE AGREEMENT.
2.1 AMENDMENTS TO EXISTING NOTE AGREEMENT. Each of the Company, the
Parent, the other Guarantors and, subject to the satisfaction of the conditions
set forth in Section 4, the Noteholders, hereby consents and agrees to the
amendments to the Existing Note Agreement set forth in Schedule A to this
Agreement. Such amendments are incorporated herein by reference as if set forth
verbatim in this Agreement.
SECTION 3. WARRANTIES AND REPRESENTATIONS.
To induce the Noteholders to enter into this Agreement, each of the
Company, the Parent and the other Guarantors warrants and represents to the
Noteholders that, as of the Effective Date (as hereinafter defined):
3.1 ORGANIZATION, EXISTENCE AND AUTHORITY. Each of the Company, the
Parent and the other Guarantors is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation. Each of the Company, the Parent and the other Guarantors has all
requisite power and authority to execute and deliver this Agreement and each of
the Company and the Parent has all requisite power and authority to perform its
respective obligations under the Amended Note Agreement.
3.2 LITIGATION. There are no proceedings pending, or to the
knowledge of the Company, the Parent or the other Guarantors, threatened,
against or affecting the Company, the Parent, any other Guarantor or any of the
other Subsidiaries, or any of their respective Properties, in any court or
before any governmental authority or arbitration board or tribunal which, either
individually or in the aggregate, would conflict with or interfere with the
ability of the Company, the Parent or any other Guarantor to execute and deliver
this Agreement or the ability of the Company, the Parent or any other Guarantor
to perform any of their respective obligations under the Amended Note Agreement
or any of the other Financing Documents.
3.3 AUTHORIZATION, EXECUTION AND ENFORCEABILITY. The execution and
delivery by the Company, the Parent and each other Guarantor of this Agreement
and the performance by the Company and the Parent of their respective
obligations under the Amended Note Agreement have been duly authorized by all
necessary action on the part of the Company, the Parent and each other
Guarantor. This Agreement has been duly executed by the Company, the Parent and
each other Guarantor and the Amended Note Agreement constitutes a valid and
binding obligation of the Company, the Parent, and each Guarantor, enforceable
in accordance with its respective terms, except that the enforceability thereof
may be:
2
(a) limited by bankruptcy, insolvency or other similar laws affecting
the enforceability of creditors' rights generally; and
(b) subject to the availability of equitable remedies.
3.4 NO CONFLICTS OR DEFAULTS. Neither the execution and delivery by
the Company, the Parent and each other Guarantor of this Agreement nor the
performance by the Company or the Parent or any Guarantor of its respective
obligations under the Amended Note Agreement conflicts with, results in any
breach of any of the provisions of, constitutes a default under, violates or,
except for the Liens granted to the Collateral Agent, results in the creation of
any Lien upon any Property of the Company, the Parent or any other Guarantor
under the provisions of:
(a) any charter document, agreement with shareholders or bylaws of the
Company, the Parent or any other Guarantor;
(b) any agreement, instrument or conveyance to which the Company, the
Parent or any other Guarantor or any of their respective Properties may be
bound or affected; or
(c) any statute, rule or regulation or any order, judgment or award of
any court, tribunal or arbitrator by which the Company, the Parent or any
other Guarantor, or any of their respective Properties, may be bound or
affected.
3.5 GOVERNMENTAL CONSENT. Neither the execution and delivery by the
Company, the Parent or the other Guarantors of this Agreement nor the
performance by the Company or the Parent or any Guarantor of their respective
obligations under the Amended Note Agreement is such as to require a consent,
approval or authorization of, or filing, registration or qualification with, any
Governmental Authority on the part of the Company, the Parent or any other
Guarantor as a condition thereto under the circumstances and conditions
contemplated by the Amended Note Agreement.
3.6 DISCLOSURE OF DEFAULTS. No event has occurred and no condition
exists which would constitute a Default or an Event of Default under the Amended
Note Agreement.
3.7 COMPLIANCE WITH LAW. Neither the Company, the Parent nor any of
the other Guarantors:
(a) is in violation of any law, ordinance, governmental rule or
regulation to which it is subject; or
(b) has failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its Property or to
the conduct of its business;
which violation or failure to obtain might, either individually or in the
aggregate, materially adversely affect
3
(i) the ability of the Company, the Parent or the other Guarantors to
perform their respective obligations under the Amended Note Agreement or
any of the other Financing Documents, or
(ii) the business, prospects, revenues, Properties or condition
(financial or otherwise) of the Company, the Parent, any other Guarantor or
any other Subsidiary.
3.8 DISCLOSURE. The financial statements delivered to the
Noteholders by the Company, the Parent and the other Guarantors pursuant to
Section 7.1 of the Existing Note Agreement do not, nor does this Agreement, or
any other written statement furnished by the Company, the Parent or the other
Guarantors to the Noteholders in connection herewith, contain any untrue
statement of a material fact or omit a material fact necessary to make the
statements contained therein or herein not misleading. There is no fact which
the Company, the Parent or the other Guarantors has not disclosed to the
Noteholders in writing which materially affects adversely or, so far as the
Company, the Parent or the other Guarantors can now foresee, will materially
affect adversely the Properties, business, prospects, profits or condition
(financial or otherwise) of the Company, the Parent, the other Guarantors or the
other Subsidiaries or the ability of the Company, the Parent or the other
Guarantors to perform their respective obligations under the Amended Note
Agreement or any of the other Financing Documents.
SECTION 4. CONDITIONS.
The consent of the Noteholders to the amendments set forth in Section
2 hereof shall not become effective until all of the following conditions shall
have been satisfied (the date of such satisfaction being herein referred to as
the "Effective Date"):
4.1 EXECUTION AND DELIVERY OF THIS AGREEMENT. The Company, the
Parent and each other Guarantor shall have executed and delivered to each of the
Noteholders a counterpart of this Agreement.
4.2 EXECUTION AND DELIVERY OF OTHER CORRESPONDING AMENDMENTS. The
Noteholders, or their legal counsel, shall have received an executed copy of the
amended and restated Bank Credit Agreement, and an amendment to each of the
Consolidated Note Agreement, the Series Note Agreement and the 8.46% Note
Agreement, amending each such agreement in a manner substantially similar as
provided herein, in form and substance satisfactory to the Noteholders.
4.3 NO DEFAULT; REPRESENTATIONS AND WARRANTIES TRUE. No Default or
Event of Default under the Amended Note Agreement or any of the other Financing
Documents shall exist and the warranties and representations set forth in
Section 3 hereof shall be true and correct in all material respects as of the
Effective Date.
4.4 EXPENSES. The Company shall have paid all costs and expenses to
the Noteholders relating to this Agreement in accordance with Section 5.5
hereof.
4
4.5 PROCEEDINGS SATISFACTORY. All proceedings taken in connection
with the Amended Financing Documents shall be satisfactory to the Noteholders
and their special counsel. The Noteholders and their special counsel shall have
received copies of such documents and papers as they may reasonably request in
connection therewith, in form and substance satisfactory to them.
SECTION 5. MISCELLANEOUS.
5.1 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED
AND ENFORCED IN ACCORDANCE WITH, AND GOVERNED BY, INTERNAL NEW YORK LAW.
5.2 DUPLICATE ORIGINALS. Two or more duplicate originals of this
Agreement may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument. This
Agreement may be executed in one or more counterparts and shall be effective
when at least one counterpart shall have been executed by Noteholders
constituting the Required Holders and each other party hereto, and each set of
counterparts which, collectively, show execution by each such party hereto shall
constitute one duplicate original.
5.3 WAIVERS AND AMENDMENTS. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally, or by any action
or inaction, but only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.
5.4 SECTION HEADINGS. The titles of the sections hereof appear as a
matter of convenience only, do not constitute a part of this Agreement and shall
not affect the construction hereof.
5.5 COSTS AND EXPENSES. On the Effective Date, the Company shall pay
all costs and expenses of the Noteholders relating to this Agreement, including,
but not limited to, the statement for reasonable fees and disbursements of the
Noteholders' special counsel presented to the Company on the Effective Date.
The Company will also pay upon receipt of any statement thereof, each additional
statement for reasonable fees and disbursements of the Noteholders' special
counsel rendered after the Effective Date in connection with the Amended Note
Agreement and any of the other Financing Documents.
5.6 SURVIVAL. All warranties, representations, certifications and
covenants made by the Company, the Parent and the other Guarantors in this
Agreement or the Amended Note Agreement or in any certificate or other
instrument delivered pursuant to this Agreement or the Amended Note Agreement
shall be considered to have been relied upon by the Noteholders and shall
survive the execution of this Agreement regardless of any investigation made by
or on behalf of the Noteholders. All statements in any such certificate or other
instrument shall constitute warranties and representations of each of the
Company, the Parent and the other Guarantors hereunder.
5
5.7 EFFECTIVENESS. Upon the occurrence of the Effective Date, this
Agreement shall be deemed effective and shall be deemed to be a Financing
Document. Notwithstanding the foregoing, the effectiveness of the amendments
provided for in paragraphs 1, 4, 5, 6, 8, 9, 10, 11, 12 and 16 set forth on
Schedule A attached hereto, is subject to receipt by the Collateral Agent of
written direction from all of the Lenders (as defined in the Intercreditor
Agreement) to release the Collateral from the Lien held by the Collateral Agent.
5.8 REFERENCE TO AND EFFECT ON THE FINANCING DOCUMENTS. (a) Upon the
effectiveness of this Agreement, on and after the date thereof, each reference
in the Existing Note Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Existing Note Agreement and each reference
in the other Financing Documents to "the Existing Note Agreement", "the 9.5%
Note Agreement", "the Note Purchase Agreements", "thereunder", "thereof" or
words of like import referring to the Existing Note Agreement, shall mean and be
a reference to the Existing Note Agreement as amended hereby.
(b) Except as specifically amended above, the Existing Note Agreement
and all other Financing Documents, are and shall continue to be in full force
and effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Agreement shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Noteholder under any of the Financing Documents, nor
constitute a waiver of any provision of any of the Financing Documents.
[Signatures on Following Pages]
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf by a duly authorized officer or agent thereof, as
the case may be, as of the date first above written.
ALADDIN MANUFACTURING CORPORATION
(F/K/A MOHAWK MANUFACTURING CORPORATION)
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MOHAWK INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President-Finance,
Secretary & Treasurer
MOHAWK MARKETING, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MOHAWK XXXXX, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
MOHAWK CARPET CORPORATION
(F/K/A MOHAWK LIMITED)
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Vice President of Finance
[Signatures Continued on Next Page]
7
[Signature Page to Seventh Amendment Agreement]
Agreed and Accepted:
XXXXXXXXX XXXXXXXX LIFE INSURANCE COMPANY OF AMERICA
By:
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:
Name:
Title:
THE FRANKLIN LIFE INSURANCE COMPANY
By:
Name:
Title:
By:
Name:
Title:
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By:
Name:
Title:
By:
Name:
Title:
8
SCHEDULE A
AMENDMENT TO SECTION 1.1(C). Section 1.1(c) of the Existing Note
Agreement is hereby deleted and the following substituted in its place:
"(C) INTERCREDITOR AGREEMENT. The Purchasers shall become parties to
the Intercreditor Agreement and the holders of the Notes shall be entitled
to the benefits thereof and bound by the covenants and agreements contained
therein."
AMENDMENT TO SECTION 6.9(B). Section 6.9(b) of the Existing Note
Agreement is hereby deleted and the following substituted in its place:
"(B) LIMIT ON RESTRICTED PAYMENTS AND PERMITTED AFFILIATE
TRANSACTIONS. The Parent and the Company will not, nor will they permit
any other Restricted Subsidiary to, at any time, declare or make any
Restricted Payment or enter into any Permitted Affiliate Transaction (other
than any Permitted Affiliate Transaction permitted under Section 6.10(b) or
(c)) unless:
(i) immediately after, and after giving effect to, such
Restricted Payment or such Permitted Affiliate Transaction, the
aggregate amount of (x) all Restricted Payments declared or made
during the period from the 8.46% Note Closing Date to and including
the date such Restricted Payment is made, plus (y) the aggregate
Affiliate Transaction Amounts for all Permitted Affiliate Transactions
(other than Permitted Affiliate Transactions permitted under Section
6.10(b) or (c)) entered into since the 8.46% Note Closing Date would
not exceed the sum of
(A) Twenty Million Dollars ($20,000,000), plus
(B) fifty percent (50%) (or minus one hundred percent (100%)
in the case of a deficit) of Consolidated Net Earnings for the
period beginning on the 8.46% Note Closing Date and ending at
such time, plus
(C) the aggregate amount of net cash proceeds received by
the Parent from the sale of any class of common stock of the
Parent after the 8.46% Note Closing Date; and
(ii) at the time of such declaration and immediately before, and
after giving effect to, such Restricted Payment or such Permitted
Affiliate Transaction, no Default or Event of Default exists or would
exist."
AMENDMENT TO SECTION 6.10. Section 6.10 of the Existing Note
Agreement is hereby deleted and the following substituted in its place:
"6.10 TRANSACTIONS WITH AFFILIATES.
The Parent and the Company will not, and will not permit any other
Restricted Subsidiary to, enter into any transaction, including, without
limitation, the purchase, sale or exchange of Property or the rendering of
any service, with any Affiliate or other Restricted Subsidiary, except in
the ordinary course of and pursuant to the reasonable requirements of the
business of such Person (including, without limitation, in connection with
any acquisition permitted by Section 6.12 hereof) and upon fair and
reasonable terms no less favorable to such Person than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate or a
Restricted Subsidiary; provided, however, that, notwithstanding the
foregoing, such Persons may enter into such transactions so long as:
(a)(i) the aggregate Affiliate Transaction Amounts in respect of
all such transactions during any calendar year do not exceed One
Million Five Hundred Thousand Dollars ($1,500,000), and (ii) the
aggregate Affiliate Transaction Amounts in respect of all such
transactions after the Closing Date do not exceed Five Million Dollars
($5,000,000) or
(b) such transaction is otherwise permitted under clause (ii) or
(iii) of Section 6.11(a) or
(c) such transaction is an Investment of the type described in
clause (l) of the definition of the term Restricted Investment."
AMENDMENT TO SECTION 6.11(B). Section 6.11(b) of the Existing Note
Agreement is hereby amended by inserting the word "and" at the end of Section
6.11(b)(iv)(B), deleting Section 6.11(b)(iv)(C) in its entirety and renumbering
Section 6.11(b)(iv)(D) as Section 6.11(b)(iv)(C).
AMENDMENT TO SECTION 6.12(A). Section 6.12(a) of the Existing Note
Agreement is hereby amended by inserting the word "and" at the end of Section
6.12(a)(iii)(A) and deleting Section 6.12(a)(iii)(C) in its entirety.
AMENDMENT TO SECTION 6.12(B). Section 6.12(b) of the Existing Note
Agreement is hereby amended by deleting Section 6.12(b)(iii) in its entirety and
substituting in its place the following:
"(iii) in the case of an acquisition of any Restricted Subsidiary, if
such transaction occurs prior to the Assumption and Release Date, the
Company and the Parent shall have complied with the provisions of Section
6.21 (b) of this Agreement."
2
AMENDMENT TO SECTION 6.13(A). Section 6.13(a) of the Existing Note
Agreement is hereby amended by deleting Section 6.13(a)(iv) in its entirety and
substituting the following in its place:
"(iv) any common law right of setoff or banker's lien arising in
connection with ordinary course of business deposit arrangements maintained
by the Parent, the Company or any other Restricted Subsidiary with its
banks or other financial institutions so long as any such bank or other
financial institution (A) shall be a party to the Bank Credit Agreement and
the Intercreditor Agreement, (B) shall not at any time make loans or
otherwise extend credit pursuant to any credit facility to the Parent, the
Company or any other Restricted Subsidiary, (C) does not maintain accounts
(for the deposit of cash or otherwise) for the benefit of the Parent or any
Restricted Subsidiary other than those which have in the aggregate monthly
balances less than $100,000, (D) shall have executed and delivered to each
party to the Intercreditor Agreement a Sharing Agreement substantially in
the form of Exhibit G to this Agreement, or (E) shall have waived in
writing such common law right of setoff or banker's lien;"
AMENDMENT TO SECTION 6.13(A). Section 6.13(a) of the Existing Note
Agreement is hereby further amended by deleting Section 6.13(a)(vi) in its
entirety and substituting the following in its place:
"(vi) [INTENTIONALLY OMITTED]"
AMENDMENT TO SECTION 6.13(D). Section 6.13(d) of the Existing Note
Agreement is hereby deleted in its entirety and the following substituted in its
place:
"(D) [INTENTIONALLY OMITTED]"
AMENDMENT TO SECTION 6.24(E). Section 6.24(e) of the Existing Note
Agreement is hereby amended by deleting the words "or to release any Collateral
from the Lien of any such Financing Document" from the second sentence of such
Section.
AMENDMENT TO SECTION 8.1(N). Section 8.1(n) of the Existing Note
Agreement is hereby deleted in its entirety and the following substituted in its
place:
"(D) [INTENTIONALLY OMITTED]"
AMENDMENT TO DEFINITION OF FINANCING DOCUMENTS. Section 9.1 of the
Existing Note Agreement is hereby further amended by deleting the definition of
Financing Documents and substituting in its place the following:
"FINANCING DOCUMENTS - means the Note Purchase Agreements, the Notes,
the Intercreditor Agreement, and the Guaranty Agreements, and in each such
case the other agreements and instruments executed in connection therewith,
as each may be amended, restated or modified from time to time."
3
AMENDMENT TO DEFINITION OF GUARANTY AGREEMENTS. Section 9.1 of the
Existing Note Agreement is hereby further amended by deleting the definition of
Guaranty Agreements and substituting in its place the following:
"GUARANTY AGREEMENTS -- means, collectively, (i) the Unconditional
Guaranty, (ii) the Guaranty Agreement dated as of November 3, 1993
delivered by Marketing for the benefit of the Noteholders, (iii) the
Guaranty Agreement dated as of May 1, 1995 delivered by Xxxxx for the
benefit of the Noteholders, (iv) the Guaranty Agreement dated as of July
19, 1995 delivered by Limited for the benefit of the Noteholders, and (v)
any other guaranty agreement delivered at any time by a Guarantor pursuant
to the terms of Section 6.21 of this Agreement, as any of the foregoing may
be amended, modified or supplemented from time to time in accordance with
its terms."
AMENDMENT TO DEFINITION OF RESTRICTED INVESTMENT. Section 9.1 of the
Existing Note Agreement is hereby further amended by deleting clause (l) of the
definition of Restricted Investment and substituting in its place the following:
"(l) investments constituting (x) loans and advances to employees
made in the ordinary course of business and consistent with the practices
of the Parent or the Company, as the case may be, existing on the 8.46%
Note Closing Date and (y) other loans or advances made by the Parent and/or
the Company in an aggregate amount not to exceed $10,000,000 at any time
outstanding to its officers so long as the proceeds of such loans or
advances are used for the purposes of purchasing capital stock of the
Parent or the Company, as the case may be, under any stock option plan
sponsored by Industries and paying any tax liabilities incurred by such
officers in connection with the exercise of their rights pursuant to any
such stock option plan and in which such capital stock the officer has
granted a security interest to the Parent or the Company, as the case may
be, to secure such loan or advance."
AMENDMENT TO DEFINITION OF TOTAL RESTRICTED SUBSIDIARY DEBT. Section
9.1 of the Existing Note Agreement is hereby further amended by deleting clause
(a) of the definition of Total Restricted Subsidiary Debt and substituting in
its place the following:
"(a) the aggregate principal amount of all unsecured Indebtedness of
all Restricted Subsidiaries outstanding at such time other than (i) subject
to compliance with Section 10.1 hereof, Indebtedness under Guaranties by
any Restricted Subsidiary of Indebtedness of the Company, the Parent or
another Restricted Subsidiary and (ii) Indebtedness owing by a Restricted
Subsidiary to any other Restricted Subsidiary, the Company or the Parent,
and"
AMENDMENT TO DEFINED TERMS. Section 9.1 of the Existing Note
Agreement is hereby further amended by deleting therefrom the definitions of
"Collateral", "Collateral Agent",
4
"Company Security Agreement", "Horizon Security Agreement", "Limited Security
Agreement" and "Parent Security Agreement".
5
