EXHIBIT (4)(C)(19)
THIRTEENTH AMENDMENT TO CREDIT AGREEMENT
THIS THIRTEENTH AMENDMENT TO CREDIT AGREEMENT (this
"Amendment"), dated as of July 16, 2001, by and between B.B. WALKER COMPANY,
a North Carolina corporation (the "Borrower"), and MICHIGAN NATIONAL BANK (as
successor in interest to Mellon Bank, N.A.) (the "Lender").
RECITALS
A. The Borrower and the Lender are parties to a certain Credit
Agreement dated as of August 15, 1995 (as amended by the "First Amendment",
the "Second Amendment", the "Third Amendment", the "Fourth Amendment", the
"Fifth Amendment", the"Sixth Amendment", the "Seventh Amendment" the "Eighth
Amendment", the "Ninth Amendment", the "Tenth Amendment", the "Eleventh
Amendment" and the "Twelfth Amendment", each defined below, the "Credit
Agreement") pursuant to which the Lender established certain credit
facilities for the Borrower in order to provide working capital financing
and to refinance certain existing indebtedness. Except as otherwise defined
herein, capitalized terms used in this Thirteenth Amendment shall have the
same meaning as in the Credit Agreement.
B. The Borrower and the Lender entered into the First Amendment
to Credit
Agreement dated as of April 15, 1996 ("First Amendment"), the Second Amendment
to Credit Agreement dated as of October 18, 1996 ("Second Amendment"), the
Third Amendment to Credit Agreement dated as of November 16, 1996 ("Third
Amendment"), the Fourth Amendment to Credit Agreement dated as of March 11,
1997 ("Fourth Amendment"), the Fifth Amendment to Credit Agreement dated as of
July 8, 1998 ("Fifth Amendment"), the Sixth Amendment to Credit Agreement
dated as of December 28, 1998 ("Sixth Amendment"), the Seventh Amendment to
Credit Agreement dated as of June 29, 1999 ("Seventh Amendment"), the Eighth
Amendment to Credit Agreement Dated as of December 31, 1999 ("Eighth
Amendment"), the Ninth Amendment to Credit Agreement dated as of January 28,
2000 ("Ninth Amendment"), the Tenth Amendment to Credit Agreement dated as of
June 23, 2000 ("Tenth Amendment"), the Eleventh Amendment to Credit Agreement
dated as of March 30, 2001 ("Eleventh Amendment"), and the Twelfth Amendment
to Credit Agreement dated as of May 31, 2001 (the "Twelfth Amendment").
C. The Borrower has requested that the Lender extend the Revolving
Credit Maturity Date, increase the Revolving Credit Committed Amount, and
consent to the sale by the Borrower of, and release its Lien in, all of its
remaining real property located in Asheboro, North Carolina, a portion of
which real property is subject to the Lien of the Asheboro Deed of Trust
and is part of the Collateral.
D. The Lender has appointed LaSalle Business Credit, Inc. (the
"Agent") to act as its agent in connection with the servicing, monitoring and
maintenance of the credit facilities extended to the Borrower under the Credit
Agreement and the Agent, in its capacity as the agent for the Lender, is
authorized to sign this Thirteenth Amendment in the name of the Lender.
E. The Lender has agreed to such requests, upon the terms and
subject to the conditions set forth herein, and to accomplish the foregoing,
the Borrower and the Lender have agreed to enter into this Thirteenth
Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the
parties hereto agree as follows:
AMENDMENTS
1. Amendment to Definitions. The definitions of "Revolving
Credit Committed
Amount" and "Revolving Credit Maturity Date" in Article 1 of the Credit
Agreement are each hereby deleted and replaced with the following:
"Revolving Credit Committed Amount" shall mean Five Million Dollars
($5,000,000).
"Revolving Credit Maturity Date" shall mean October 31, 2001.
2. New Definitions. The following additions are hereby made to
Article 1, Definitions, in alphabetical order:
"Thirteenth Amendment" shall mean the Thirteenth Amendment to Credit
Agreement, dated as of July 16, 2001, by and between the Borrower and the
Lender.
"Thirteenth Amendment Closing Date" shall mean July 16, 2001.
3. Amendments to Financial Reports. Section 5.01(f) is amended by
adding a new Section 5.01(f)(vi) as follows:
"(vii) No less than once each week, a summary aging of all accounts
receivable outstanding as of the end of the previous week."
4. Amendments to Financial Covenants. Section 6.01, Financial
Covenants, is amended in its entirety to read as follows:
"6.01 Financial Covenants.
(a) Sales. Sales, as calculated in accordance with GAAP, of the Borrower and
its Subsidiaries for each period set forth below shall not be less than the
amount set forth below corresponding to such period:
Period Sales
July 2001 $1,425,000
July and August 2001 $3,565,000
July, August and September 2001 $5,900,000
July, August, September and
October 2001 $9,000,000
(b) Consolidated Net Income. Consolidated Net Income for each period set
forth below shall not be less than the amount set forth below corresponding to
such period:
Period Consolidated Net Income
July 2001 ($100,000)
July and August 2001 $-0-
July, August and September 2001 $150,000
July, August, September and
October 2001 $525,000
(c) Consolidated Working Capital. Consolidated Working Capital for each
day during the period set forth below shall not be less than the amount set
forth below corresponding to such period:
Period Consolidated Working Capital
July 2001 $1,500,000
August 2001 $1,600,000
September 2001 $1,700,000
October 2001 $1,800,000
(d) Consolidated Tangible Net Worth. Consolidated Tangible Net Worth for
each day during the period set forth below shall not be less than the amount
set forth below corresponding to such period:
Period Consolidated Tangible Net Worth
July 2001 $800,000
August 2001 $800,000
September 2001 $1,050,000
October 2001 $1,425,000
(e) Consolidated Leverage Ratio. Consolidated Leverage Ratio for each day
during the period set forth below shall not be less than the ratio set forth
below corresponding to such period:
Period Consolidated Leverage Ratio
July 2001 10.0 to 1.0
August 2001 10.0 to 1.0
September 2001 9.0 to 1.0
October 2001 8.0 to 1.0"
REPRESENTATIONS AND WARRANTIES;
CONSENT BY THE LENDER
5. Other Representations and Warranties. Each of the
representations and warranties (as amended hereby) made by the Borrower in
Article 3 of the Credit Agreement are true and correct on and as of the
Thirteenth Amendment Closing Date (except those representations and warranties
that address matters only as of a particular date, which are true and correct
as of that date), and are incorporated herein as though fully set forth.
6. Consent by the Lender. The Lender grants its consent to the
sale by the Borrower of all of its remaining real estate located in Asheboro,
North Carolina for a purchase price of not less than $990,000 payable in cash
at the closing and agrees to release its Lien in that portion of such real
property encumbered by the Asheboro Deed of Trust.
CONDITIONS PRECEDENT
7. Conditions to Effectiveness of this Thirteenth Amendment and
Consent. The amendments made to the Credit Agreement by this Thirteenth
Amendment as set forth in Sections 1,2, 3 and 4 hereof, and the consent by the
Lender as set forth in Section 6 hereof, are each subject to the satisfaction,
immediately prior to or concurrently with the execution of this Thirteenth
Amendment, of each of the following conditions precedent:
(a) Thirteenth Amendment. The Lender shall have received
this Thirteenth Amendment, duly executed by the Borrower.
(b) Sale of Real Estate. By no later than July 18, 2001, the Borrower
shall have sold all of its remaining real estate located in Asheboro, North
Carolina for a purchase price of not less than $990,000 payable in cash at the
closing, and all of the sale proceeds, net of closing costs approved by the
Lender, shall have been paid directly to the Lender, for the account
of the Borrower, for application to the Obligations.
(c) Extension Fee. The Lender shall have received in
immediately available funds an extension fee of $50,000.
(d) Fees, Expenses. Etc. All fees and other compensation
(including, without limitation, attorneys' fees) required to be paid to the
Lender pursuant hereto or pursuant to any other written agreement on or prior
to the Thirteenth Amendment Closing Date shall have been paid or received.
(e) Other Conditions Precedent. Each of the conditions
precedent set forth in Section 4.02 of the Credit Agreement shall have been
met.
MISCELLANEOUS
8. Reaffirmation: No Waiver. Except as expressly modified
herein, the terms of the Credit Agreement, the Security Documents and all of
the Loan Documents executed in connection therewith, remain in full force and
effect in accordance with their respective terms and conditions, are in no
manner impaired hereby, and are hereby reaffirmed by all of the parties.
In the event of any conflict between this Thirteenth Amendment and any other
Loan Document, the provisions of this Thirteenth Amendment shall prevail.
9. Release by Borrower. The Borrower acknowledges and agrees
that: (i) it has no claim or cause of action against the Lender, any parent,
subsidiary or affiliate of the Lender, or representatives or agents (all of
which parties besides the Lender are herein collectively the "the Lender's
Agents"); (ii) it has no offset or defense against any of its
obligations, indebtedness or contracts in favor of the Lender; and (iii) the
Lender has heretofore properly performed and satisfied in a timely manner all
of its obligations to and contracts with the Borrower. The release set forth
in this Section 9 shall constitute a complete defense to any claim,
cause of action, defense, contract, liability, indebtedness or obligation
released hereunder. Nothing in this release as set forth herein shall be
construed as (or shall be admissible in any legal action or proceeding as) any
admission by the Lender or any of the Lender's Agents that any defense,
indebtedness, obligation, liability, contract, claim or cause of action exists
which is within the scope of those released within this Section 9 because the
Lender denies that any such matters exist and regards this release as
unnecessary except to confirm its understanding of the position of the parties.
10. Severability. The provisions of this Thirteenth Amendment
are intended to be severable. If any provision of this Thirteenth Amendment
shall be held invalid or unenforceable in whole or in part in any jurisdiction
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting
the validity or enforceability thereof in any other jurisdiction or the
remaining provisions hereof in any jurisdiction.
11. Prior Understandings. This Thirteenth Amendment
supersedes all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto relating to the transactions
provided for herein.
12. Counterparts. This Thirteenth Amendment may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
13. Successors and Assigns. This Thirteenth Amendment shall be
binding upon and inure to the benefit of the Borrower, the Lender, all future
holders of the Notes, and their respective successors and assigns, except that
the Borrower may not assign or transfer any of its rights hereunder or
interests herein without the prior written consent of the Lender, and any
purported assignment without such consent shall be void.
14. Fees and Expenses. The Borrower shall pay all of the
Lender's fees and expenses incurred in connection with the negotiation,
execution and delivery of this Thirteenth Amendment and the consummation of
the transactions contemplated hereby, including, without limitation, legal
fees and expenses.
15. Governing Law. THIS THIRTEENTH AMENDMENT SHALL BE
GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF PENNSYLVANIA, WITHOUT REGARD TO CHOICE OF LAW
PRINCIPLES.
[Signatures Begin on the Next Page]
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Thirteenth Amendment as of the
date first above written.
ATTEST: B.B. WALKER COMPANY
By S/REBECCA S. RICH By: S/KENT T. ANDERSON
Assistant Corporate Secretary Kent T. Anderson,
President
[Corporate Seal]
MICHIGAN NATIONAL BANK, as
successor in interest to Mellon Bank,
N.A.
By: LASALLE BUSINESS CREDIT, INC.,
Its agent
By: S/ROGER ATTIX
Authorized Signatory6