EXHIBIT 4.2
AMENDMENT NO. 2
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 2 ("Amendment No. 2") is entered into as of
March 10, 1994, by and among GRANITEVILLE COMPANY ("Graniteville"), a
corporation organized under the laws of the State of South Carolina, C.H.
PATRICK & CO., INC. ("Patrick"), a corporation organized under the laws of
the State of South Carolina (Graniteville and Patrick each a "Borrower" and,
jointly and severally, the "Borrowers"), the undersigned financial
institutions (jointly and severally, the "Lenders") and THE CIT
GROUP/COMMERCIAL SERVICES, INC. ("CIT"), a corporation organized under the
laws of the State of New York, as agent for the Lenders (CIT in such
capacity, the "Agent").
. BACKGROUND
Borrowers, Lenders and Agent are parties to a Revolving Credit,
Term Loan and Security Agreement dated as of April 23, 1993 (as amended,
supplemented or otherwise modified from time to time, the "Loan Agreement")
pursuant to which Lenders provided Borrowers with certain financial
accommodations.
Borrowers have requested that Lenders increase both the inventory
sublimit and Maximum Revolving Advance Amount by $7,000,000 during the period
commencing March 10, 1994 through and including September 1, 1994 and Lenders
are willing to do so on the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant
of credit heretofore or hereafter made to or for the account of Borrowers by
Lenders, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of
the conditions precedent set forth in Section 4 below, the Loan Agreement is
hereby amended as follows:
(a) Section 1.2 of the Loan Agreement is hereby amended as
follows:
(i) the following defined terms are hereby added in the
appropriate alphabetical order:
"Facility Increase Period" shall mean the period commencing
March 10, 1994 through and including September 1, 1994.
"Maximum Inventory Advance Amount" shall mean (i)
$42,000,000 during the Facility Increase Period, and (ii)
$35,000,000 at all other times.
(ii) the following defined terms are hereby amended in
their entirety to provide as follows:
"Graniteville Sublimit" shall mean (i) $107,000,000 during
the Facility Increase Period, and (ii) $100,000,000 at all
other times, less at all times the outstanding amount of
Revolving Advances made to Patrick.
"Maximum Loan Amount" shall mean (i) $187,000,000 during
the Facility Increase Period less repayments of the Term
Loan, and (ii) $180,000,000 at all other times less
repayments of the Term Loan.
"Maximum Revolving Advance Amount" shall mean (i)
$107,000,000 during the Facility Increase Period, and (ii)
$100,000,000 at all other times.
(iii) All references to "DWG" shall be deemed to be
references to "Triarc Companies, Inc."
(b) Subsection (a)(II)(iii)(x) of Section 2.1 of the Loan
Agreement is hereby amended by deleting "$35,000,000" and inserting "the
Maximum Inventory Advance Amount" in its place and stead.
(c) Subsection (c)(iii) of Section 2.1 of the Loan Agreement is
hereby amended by deleting "$35,000,000" in the last line thereof and
inserting "the Maximum Inventory Advance Amount" in its place and stead.
(d) Subsection (d)(iii) of Section 2.1 of the Loan Agreement is
hereby amended by deleting "$35,000,000" in the last line thereof and
inserting "the Maximum Inventory Advance Amount" in its place and stead.
(e) Section 7.10(e) of the Loan Agreement is hereby amended in
its entirety to provide as follows:
"(e) Management Fees paid by Borrowers to DWG not to exceed
(i) $20,000,000 in the aggregate during the period March 1,
1993 through and including December 31, 1994, and (ii)
$7,500,000 during each calendar year commencing January 1,
1995;"
3. By its execution below, each Lender hereby acknowledges its
Commitment Percentage shall be applicable to the increase in the Maximum Loan
Amount and Maximum Revolving Advance Amount as set forth in Section 2(a) of
this Amendment No. 2.
4. Conditions of Effectiveness. This Amendment No. 2 shall
become effective as of March 10, 1994, upon satisfaction of the following
conditions precedent: (i) Agent shall have received ten (10) copies of this
Amendment No. 2 executed by Lenders and Borrowers and consented and agreed to
by Guarantors, (ii) Agent shall have received, for the ratable benefit of
Lenders, a $70,000 amendment fee, and (iii) Agent shall have received opinion
of counsel from counsel to Borrowers regarding the execution and delivery of
this Amendment No. 2 which shall be in form and substance satisfactory to
Agent and its counsel.
5. Representations and Warranties. Borrowers hereby represent
and warrant as follows:
(a) This Amendment No. 2 and the Loan Agreement, as
amended hereby, constitute legal, valid and binding obligations
of Borrowers and are enforceable against Borrowers in accordance
with their respective terms.
(b) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment
No. 2.
(c) Borrowers have no defense, counterclaim or offset
with respect to the Obligations.
6. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference
in the Loan Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import shall mean and be a reference to the Loan Agreement as
amended hereby.
(b) Except as specifically amended herein, the Loan Agreement,
and all other documents, instruments and agreements executed and/or delivered
in connection therewith, shall remain in full force and effect, and are
hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
No. 2 shall not, except as expressly provided in Section 3, operate as a
waiver of any right, power or remedy of Lender, nor constitute a waiver of
any provision of the Loan Agreement, or any other documents, instruments or
agreements executed and/or delivered under or in connection therewith.
7. Governing Law. This Amendment No. 2 shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and assigns and shall be governed by and construed in accordance
with the laws of the State of New York.
8. Headings. Section headings in this Amendment No. 2 are
included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 2 for any other purpose.
9. Counterparts. This Amendment No. 2 may be executed by the
parties hereto in one or more counterparts, each of which taken together
shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, this Amendment No. 2 has been duly executed
as of the day and year first written above.
GRANITEVILLE COMPANY
By: JOHN L. BARNES
Its: Executive Vice President
C.H. PATRICK & CO., INC.
By: JOHN L. BARNES
Its: Vice President
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as Lender and as Agent
By: KENNETH WENDLER
Its: Assistant Vice President
BOT FINANCIAL CORP.
By: WILLIAM R. YORK, JR.
Its: Senior Vice President
THE BANK OF NEW YORK
COMMERCIAL CORPORATION
By: DANIEL MURRAY
Its: Vice President
FIRST UNION NATIONAL BANK OF
GEORGIA
By: H.H. VINING
Its: Vice President
NATIONAL CANADA FINANCE CORP.
By: JOHN SCOTT COLLINS
Its: Vice President
NATIONAL WESTMINSTER BANK USA
By: DAVID J. MARIONE
Its: Vice President
SANWA BUSINESS CREDIT CORP.
By: PETER SKAVLA
Its: Vice President
CONSENTED AND AGREED TO:
TRIARC COMPANIES, INC.
By: JOSEPH A. LEVATO
Its: Executive Vice President
GS HOLDINGS, INC.
By: JOSEPH A. LEVATO
Its: Executive Vice President
GRANITEVILLE INTERNATIONAL
SALES, INC.
By: JOHN L. BARNES
Its: Vice President