EXHIBIT 4.5
AMENDMENT NO. 4
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 4 ("Amendment No. 4") is entered into as of
October 31, 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 (a) establish the Maximum
Revolving Advance Amount at $112,000,000 until April 2, 1995, at $107,000,000
from April 2, 1995 through December 31, 1995, and at $100,000,000 thereafter,
(b) amend the interest coverage covenant, (c) waive the breach by Borrowers
of Section 7.6 of the Loan Agreement due to their making capital expenditures
in excess of the permitted amount of $16,667,000 during the fiscal year
ending January 1, 1995 and (d) permit Graniteville to sell approximately
$1,000,000 in timber in the fiscal year ending December 31, 1995. 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 6 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 inserted in the
appropriate alphabetical order:
"Amendment No. 4" shall mean Amendment No. 4 to this
Revolving Credit, Term Loan and Security Agreement.
(ii) the following defined terms are hereby amended in
their entirety to provide as follows:
"Graniteville Sublimit" shall mean (i) $112,000,000 through
April 1, 1995, (ii) $107,000,000 during the period April 2,
1995 through December 31, 1995, and (iii) $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) $192,000,000 through
April 1, 1995 less repayments of the Term Loan, (ii)
$187,000,000 during the period April 2, 1995 through
December 31, 1995 less repayments of the Term Loan, and
(iii) $180,000,000 at all other times less repayments of
the Term Loan.
"Maximum Revolving Advance Amount" shall mean (i)
$112,000,000 through April 1, 1995, (ii) $107,000,000
during the period April 2, 1995 through December 31, 1995,
and (iii) $100,000,000 at all other times.
(b) Section 6.9 of the Loan Agreement is hereby amended in its
entirety to provide as follows:
6.9 Interest Coverage. Cause for the fiscal period set forth
below the ratio of (i) Earnings Before Interest and Income Taxes
plus depreciation and amortization to (ii) aggregate interest
expense of Borrowers on a Consolidated Basis to be greater than
the ratio set forth opposite such fiscal period:
Fiscal Period Interest Coverage
Ratio
September 27, 1993 - October 2, 1994 2.60 to 1.00
January 3, 1994 - January 1, 1995 2.60 to 1.00
April 4, 1994 - April 2, 1995 2.60 to 1.00
July 4, 1994 - July 2, 1995 2.60 to 1.00
October 3, 1994 - October 1, 1995 2.60 to 1.00
January 2, 1995 - December 31, 1995 3.00 to 1.00
April 3, 1995 - March 31, 1996 4.00 to 1.00
July 3, 1995 - June 30, 1996 4.00 to 1.00
October 2, 1995 - September 29, 1996 4.00 to 1.00
January 1, 1996 - December 29, 1996 4.50 to 1.00
April 1, 1996 - March 30, 1997 4.50 to 1.00
July 1, 1996 - June 29, 1997 4.50 to 1.00
September 30, 1996 - September 28, 1997 4.50 to 1.00
December 30, 1996 - December 28, 1997 5.00 to 1.00
March 31, 1997 - March 29, 1998 5.00 to 1.00
3. Waiver. Subject to the satisfaction of the conditions
precedent set forth in Section 6 below, Lenders hereby waive the breach by
Borrowers of Section 7.6 of the Loan Agreement for the fiscal year of
Borrowers ending January 1, 1995, provided that the maximum amount of capital
expenditures for such fiscal year does not exceed an aggregate amount of
$23,000,000 excluding the investments by Patrick in Taysung as permitted in
accordance with Amendment No. 3.
4. Consent. Subject to the receipt by Agent of the proceeds
from the sale of timber on unimproved properties of Graniteville, such
proceeds to be applied to outstanding Revolving Advances and to be received
within five (5) Business Days of receipt of proceeds, Lenders consent to the
sale by Graniteville up to 1200 acres of timber having an aggregate value of
approximately $1,000,000 from designated areas of its unimproved properties
during the fiscal year of Borrowers ending on December 31, 1995.
5. Lender Acknowledgement. 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. 4.
6. Conditions of Effectiveness. (a) This Amendment No. 4
shall become effective upon satisfaction of the following conditions
precedent: Agent shall have received ten (10) copies of this Amendment No. 4
executed by Lenders and Borrowers and consented and agreed to by Guarantors.
7. Representations and Warranties. Borrowers hereby represent
and warrant as follows:
(a) This Amendment No. 4 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. 4.
(c) Borrowers have no defense, counterclaim or offset
with respect to the Obligations.
8. 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. 4 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.
9. Governing Law. This Amendment No. 4 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.
10. Headings. Section headings in this Amendment No. 4 are
included herein for convenience of reference only and shall not constitute a
part of this Amendment No. 4 for any other purpose.
11. Counterparts. This Amendment No. 4 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. 4 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: DANIEL J. LANDERS
Its: 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