Exhibit 10.2
AMENDMENT NO. 7
TO
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
THIS AMENDMENT NO. 7 ("Amendment No. 7") is entered into as of
August 30, 1995, 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 provide Borrowers with certain
financial accommodations.
Borrowers have decided to change their accounting treatment of
the notes representing the Original Triarc Loan and the Additional Triarc
Loan and as a result of such changes adjustments are required to certain
of the Financial Covenants. Borrowers and Lenders have agreed to amend
such covenants on the terms and conditions hereafter set forth and also to
rectify certain typographical errors and certain provisions of the Loan
Agreement to eliminate confusion.
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 or
waiver of the conditions precedent set forth in Section 3 below, the Loan
Agreement is hereby amended as follows:
(a) Section 1.2 of the Loan Agreement is amended by
amending the definition of "Maximum Loan Amount" by adding the words ",
less repayment of the Term Loan" at the end thereof.
(b) Section 2.9 of the Loan Agreement is hereby amended by
deleting the language "plus (iii) the Excess Cash Flow reserve plus (iv)
reserves".
(c) Section 6.5 of the Loan Agreement is hereby amended in
its entirety to provide as follows:
"6.5 Net Worth. Cause to be maintained as of the end
of each fiscal quarter a Net Worth of not less than the
amount set forth below opposite such fiscal quarter end:
Fiscal Quarter End Minimum Net Worth
July 2, 1995 $ 88,400,000
October 1, 1995 50,500,000
December 31, 1995 56,000,000
March 31, 1996 56,500,000
June 30, 1996 59,500,000
September 29, 1996 62,500,000
December 29, 1996 66,000,000
March 30, 1997 69,000,000
June 29, 1997 72,000,000
September 28, 1997 75,000,000
December 28, 1997 78,500,000
For each fiscal quarter end thereafter, the Minimum Net Worth
shall be increased by an amount equal to $5,000,000 for such fiscal
quarter end."
(d) Section 6.7 of the Loan Agreement is hereby amended in
its entirety to provide as follows:
"6.7 Indebtedness to Net Worth Ratio. Cause to be
maintained as of the end of each fiscal quarter a ratio of
Indebtedness of Borrowers on a Consolidated Basis to Net
Worth no greater than the ratio set forth below opposite
such fiscal quarter end:
Indebtedness to
Fiscal Quarter End Net Worth Ratio
July 2, 1995 2.90 to 1.00
October 1, 1995 4.87 to 1.00
December 31, 1995 4.50 to 1.00
March 31, 1996 4.28 to 1.00
June 30, 1996 3.93 to 1.00
September 29, 1996 3.65 to 1.00
December 29, 1996 3.41 to 1.00
March 30, 1997 3.15 to 1.00
June 29, 1997 2.91 to 1.00
September 28, 1997 2.72 to 1.00
December 28, 1997 2.55 to 1.00
and each fiscal quarter 2.55 to 1.00"
end thereafter
(e) Section 6.9 of the Loan Agreement is hereby amended in its
entirety to provide as follows:
"6.9. Interest Coverage. Cause for each four
quarter period ending at the fiscal quarter ends 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
quarter end:
Fiscal Quarter End Interest Coverage Ratio
July 2, 1995 2.60 to 1.0
October 1, 1995 2.33 to 1.0
December 31, 1995 2.32 to 1.0
March 31, 1996 2.30 to 1.0
June 30, 1996 2.30 to 1.0
September 29, 1996 2.30 to 1.0
December 29, 1996 2.55 to 1.0
March 30, 1997 2.55 to 1.0
June 29, 1997 2.55 to 1.0
September 28, 1997 2.55 to 1.0
December 28, 1997 2.85 to 1.0
and each four 2.85 to 1.0
(4) quarter period
ending thereafter
In the event that the Mistic Acquisition is not consummated on or before
August 31, 1995 and a prepayment is made pursuant to Section 2.4(b)(iii)
hereof, then Borrowers and Lenders shall, in good faith, negotiate any
adjustments required to the Financial Covenants as a result of such
prepayment and in the event Borrowers and Required Lenders cannot agree on
such adjustments by September 30, 1995, Agent shall, in the exercise of
its reasonable business judgment, determine the necessary adjustments and
reset the Financial Covenants in which event the consent of Lenders or
Borrowers shall not be required."
(f) Section 6.13 of the Loan Agreement is hereby amended
in its entirety to provide as follows:
"6.13. Interest Rate Protection. No later
than sixty (60) days from the Amendment No. 6
Effective Date, deliver to Agent evidence
reasonably satisfactory to Agent that Borrowers
have purchased interest rate protection for at
least $108,000,000 of the Advances covering a
period of twenty-four (24) months from the date
of purchase and providing for a Eurodollar Rate
cap of 9% per annum in the event that the three
month Eurodollar Rate exceeds 9%."
(g) Section 7.7 of the Loan Agreement is hereby amended by
changing the reference to "Section 7.5(f)" to a reference to "Section
7.5(g)" wherever "Section 7.5(f)" appears.
(h) Section 7.10(c) of the Loan Agreement is hereby
amended in its entirety to provide "(c) loans and advances permitted
pursuant to Sections 7.5(b), 7.5(d), 7.5(e) and 7.5(f);".
(i) Section 9.9 of the Loan Agreement is hereby amended by
changing the reference to "7.5(f)" in the last sentence to a reference to
"7.5(g)".
3. Conditions of Effectiveness. This Amendment No. 7 shall
become effective upon receipt by Agent of this Amendment No. 7 executed by
the Required Lenders and Borrowers and consented to by each Guarantor.
4. Representations and Warranties. Borrowers hereby represent
and warrant as follows:
(a) This Amendment No. 7 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. 7.
(c) Borrowers have no defense, counterclaim or offset with
respect to the Obligations.
5. 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. 7 shall not 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.
6. Governing Law. This Amendment No. 7 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.
7. Headings. Section headings in this Amendment No. 7 are
included herein for convenience of reference only and shall not constitute
a part of this Amendment No. 7 for any other purpose.
8. Counterparts. This Amendment No. 7 may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed
an original but all of which taken together shall be deemed to constitute
one and the same agreement. Any signature delivered by a party by
facsimile transmission shall be deemed to be an original signature hereto.
IN WITNESS WHEREOF, this Amendment No. 7 has been duly executed
as of the day and year first written above.
GRANITEVILLE COMPANY
By: JOHN L. BARNES
Title: Executive Vice President
C.H. PATRICK & CO., INC.
By: JOHN L. BARNES
Title: Vice President
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Lender and as Agent
By: GORDON JONES
Title: Vice President
BOT FINANCIAL CORP.
By: DANIEL J. LANDERS
Title: Vice President
THE BANK OF NEW YORK
COMMERCIAL CORPORATION
By: DANIEL MURRAY
Title: Vice President
FIRST UNION NATIONAL BANK OF
GEORGIA
By: WINSTON WILKENSON
Title: Vice President
NATIONAL CANADA FINANCE CORP.
By: CHARLES COLLIE
Title: Vice President
By:
Title: Assistant Vice President
NATWEST BANK, N.A.
By: DAVID MARIONE
Title: Vice President
SANWA BUSINESS CREDIT CORP.
By: PETER SKAVLA
Title: Vice President
CONSENTED AGREED TO:
TRIARC COMPANIES, INC.
By: JOSEPH A. LEVATO
Title: Exeutive Vice President & CFO
GRANITEVILLE INTERNATIONAL SALES, INC.
By: JOHN L. BARNES
Title: Executive Vice President
GS HOLDINGS, INC.
By: JOSEPH A. LEVATO
Title: Executive Vice President & CFO
GVT HOLDINGS, INC.
By: JOSEPH A. LEVATO
Title: Executive Vice President & CFO
GRANITEVILLE HOLDINGS, INC.
By: JOSEPH A. LEVATO
Title: Executive Vice President & CFO