Exhibit 10.22
FIFTH AMENDMENT TO CREDIT AGREEMENT AND
FORBEARANCE AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE AGREEMENT (this
"Agreement"), dated as of August 13, 2002, is entered into by and among ADVANCED
GLASSFIBER YARNS, LLC, a Delaware limited liability company ("Borrower"), the
subsidiaries of Borrower signatory hereto as guarantors ("Guarantors"), the
Required Lenders signatory hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION
(f/k/a First Union National Bank, a national banking association), in its
capacity as Administrative Agent for the Lenders ("Agent").
RECITALS:
WHEREAS, Borrower, certain Domestic Subsidiaries (as defined therein) of
Borrower signatory thereto, the Lenders (as defined therein) signatory thereto,
and Agent are parties to that certain Credit Agreement dated as of September 30,
1998; as amended by that certain Syndication Amendment and Assignment dated as
of November 24, 1998, that certain Second Amendment to Credit Agreement dated as
of December 16, 1999, that certain Third Amendment to Credit Agreement and
Waiver dated as of December 14, 2001, and that certain Fourth Amendment to
Credit Agreement and Forbearance Agreement dated as of June 28, 2002 (and as
further amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), various Security Documents (as defined therein), and other
instruments executed in connection therewith (together with the Credit Agreement
and Security Documents, collectively referred to hereinafter as the "Loan
Documents," and each as an individual "Loan Document"); and
WHEREAS, for its fiscal quarter ended June 30, 2002, Borrower failed to
achieve: (a) a Leverage Ratio of less than or equal to 4.50 to 1.0 as required
by Section 5.9(a) of the Credit Agreement (the "Leverage Ratio Default"); (b) an
Interest Coverage Ratio of greater than or equal to 2.50 to 1.0 as required by
Section 5.9(c) of the Credit Agreement (the "Interest Coverage Ratio Default");
and (c) a Fixed Charge Coverage Ratio of greater than or equal to 1.05 to 1.0 as
required by Section 5.9(e) of the Credit Agreement (the "Fixed Charge Coverage
Ratio Default") and (ii) as a result thereof it defaulted in certain other
obligations under the Credit Agreement as set forth on Exhibit A to this
Agreement (the "Exhibit A Defaults") (collectively, the Leverage Ratio Default,
the Interest Coverage Ratio Default, the Fixed Charge Coverage Ratio Default and
the Exhibit A Defaults are hereinafter collectively referred to as the "Covenant
Defaults," and each as an individual "Covenant Default"); and
WHEREAS, Agent and Required Lenders are willing to forbear from
enforcing their rights arising because of the Covenant Defaults and other
defaults specified herein until the Termination Date (as defined below) on the
terms and conditions specified in this Agreement; and
WHEREAS, Agent and Required Lenders have agreed to the amendments to the
Credit Agreement as set forth herein; and
WHEREAS, the outstanding Indebtedness owing under the Credit Agreement
totals the amounts set forth on "Exhibit B" to this Agreement, plus costs,
expenses and other fees and charges as provided in the Credit Agreement and the
other Loan Documents (all such amounts are hereinafter collectively referred to
as the "Current Obligations").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS
1.1 All capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
1.2 The following terms used in this Agreement shall have the meanings
set forth below:
"Forbearance Default" means any one the following: (a) the occurrence
of any Default or Event of Default (other than the Covenant Defaults and the
default caused by Borrower's failure to make its July 15, 2002 interest payment
pursuant to the Subordinated Debt Documents, if any the "Sub Debt Payment")
under the Credit Agreement; (b) the failure of Borrower or any Guarantor to
comply with any term, condition or covenant set forth in this Agreement; (c) any
representation made by Borrower or any Guarantor under or in connection with
this Agreement shall have been materially false or misleading as of the date
when made; (d) the filing of any petition (voluntary or involuntary) under the
insolvency or bankruptcy laws of the United States or any state with respect to
Borrower or any Guarantor or any of their respective affiliates or Subsidiaries;
provided however, that the filing of an involuntary petition shall not be a
Forbearance Default unless such petition shall not be dismissed or stayed for a
period of ten (10) days or more from the date of filing the petition, or an
order for relief shall have been entered; (e) Borrower or any Guarantor makes a
payment in respect of the Subordinated Debt; or (f) any holder of the
Subordinated Debt (or any agent or representative of such holder), institutes an
action or proceeding to collect or otherwise realize upon the Subordinated Debt
and such action or proceeding shall not be dismissed, stayed or bonded for a
period of twenty (20) days or more after the date of initiation of the action or
proceeding.
"Termination Date" means the earliest to occur of (a) 5:00 p.m. Eastern
Standard time on September 27, 2002, or (b) the date upon which a Forbearance
Default occurs.
SECTION 2. AGREEMENT TO FORBEAR
2.1 Provided that no Forbearance Default occurs, Agent and Lenders
hereby agree to forbear and refrain, through the Termination Date, from
exercising their respective rights and remedies under the Credit Agreement or
any other Loan Document that may exist because of the Covenant Defaults or a
default respecting the Sub Debt Payment.
2.2 Nothing in this Agreement shall be construed as a waiver of the
Covenant Defaults, which defaults shall continue in existence subject only to
the agreement of Agent and Lenders, upon the occurrence of such Covenant
Defaults as set forth herein, not to enforce their respective rights and
remedies for a limited period of time as set forth herein. Notwithstanding the
preceding sentence (and without in any manner limiting the generality or the
specific thereof), the occurrence of any Covenant Defaults or other defaults
identified herein shall only become Defaults or Events of Defaults for purposes
of the Credit Agreement on the Termination Date. Except as expressly provided
herein, the execution and delivery of this Agreement shall not: (a) constitute
an amendment, extension, modification, or waiver of any aspect of the Credit
Agreement or the other Loan Documents; (b) extend the terms of the Credit
Agreement or the due date of any of the Obligations; (c) give rise to any
obligation on the part of Agent or Lenders to extend, modify or waive any term
or condition of the Credit Agreement or any of the other Loan Documents; or (d)
give rise to any defenses or counterclaims to the right of Agent and Lenders to
compel payment of the Obligations or to otherwise enforce their respective
rights and remedies under the Credit Agreement and the other Loan Documents.
Except as expressly limited herein, Agent and Lenders hereby expressly reserve
all of their respective rights and remedies under the Loan Documents and under
applicable law with respect to such Covenant Defaults. Borrower and each
Guarantor expressly acknowledge that from and after the Termination Date, Agent
and Lenders shall be entitled to enforce the Loan Documents and require strict
compliance with all of the terms and provisions of the Credit Agreement and the
other Loan Documents.
SECTION 3. AMENDMENTS TO THE CREDIT AGREEMENT
The Credit Agreement is hereby amended as follows:
3.1 Amendment to Article I of the Credit Agreement. Section 1.1 of the
Credit Agreement, "Defined Terms" is hereby modified and amended as follows:
(a) The following defined terms are hereby inserted in the
appropriate alphabetical order:
(1) "`Amendment Fee' shall have the meaning set forth in
the Fifth Amendment."
(2) "`Fifth Amendment' shall mean that certain Fifth
Amendment to Credit Agreement and Forbearance Agreement dated as of August
13, 2002 by and among the Borrower, the Guarantors identified therein, the
Lenders identified therein and the Agent.
(3) "`Fifth Amendment Effective Date' shall mean the
Agreement Effective Date as defined in the Fifth Amendment.
(4) "`Fifth Amendment Termination Date' shall mean the
Termination Date as defined in the Fifth Amendment."
(b) The definition of "Applicable Percentage" is hereby amended
by deleting the paragraph following the pricing grid and replacing it with
the following:
"The Applicable Percentages for (a) Revolving Loans and Tranche A
Term Loans that are Alternate Base Rate Loans on the Fifth Amendment
Effective Date shall be 3.50% (the "Interim Pro Rata Base Rate Margin")
and (b) (i) Revolving Loans and Tranche A Term Loans that are LIBOR
Rate Loans and (ii) the Letter of Credit Fee on the Fifth Amendment
Effective Date shall be 4.75% (the "Interim Pro Rata LIBOR Margin").
The Applicable Percentages for (a) Tranche B Term Loans that are
Alternate Base Rate
Loans on the Fifth Amendment Effective Date shall be 4.25% (the "Interim
B Base Rate Margin") and (b) Tranche B Term Loans that are LIBOR Rate
Loans on the Fifth Amendment Effective Date shall be 5.50% (the "Interim
B LIBOR Margin").
3.2 Amendments to Article II of the Credit Agreement. Article II of the
Credit Agreement "The Loans; Amount and Terms" is hereby modified and amended as
follows:
(a) Section 2.1(a) of the Credit Agreement "Revolving Loans" (as
amended) is hereby amended by deleting the words "SIXTY FIVE MILLION DOLLARS
($65,000,000)" and replacing them with the words "FIFTY-SEVEN MILLION DOLLARS
($57,000,000)". In connection with the foregoing amendment, each Lender's
Revolving Committed Amount is hereby amended as shown on Schedule I attached
hereto.
(b) Section 2.1(a) of the Credit Agreement "Revolving Loans" (as
amended) is hereby further modified and amended by deleting the last paragraph
thereof in its entirety and substituting the following therefore:
"Notwithstanding anything to the contrary contained herein, in no
event shall the Borrower be permitted to borrow Revolving Loans in a
principal amount greater than $45,000,000 (the "Borrowing Cap") until the
earlier of (a) the Fifth Amendment Termination Date; provided however,
that after the Fifth Amendment Termination Date, the Borrowing Cap shall
not exceed $50,000,000, or (b) the date upon which Borrower has
demonstrated to the satisfaction of the Agent that Borrower is in
compliance with all of the financial covenants set forth in Section 5.9
hereof, as such Section 5.9 was in effect on September 30, 1998 without
giving effect to any subsequent amendments thereto, and upon such
compliance date the Borrowing Cap shall terminate."
3.3 Amendment to Article VI of the Credit Agreement. Article VI of the
Credit Agreement "Negative Covenants" is hereby modified and amended by deleting
Section 6.16 Limitation on Capital Expenditures (as amended) in its entirety and
substituting the following therefore:
"Section 6.16 Limitation on Capital Expenditures. The Borrower will not,
nor will it permit its Subsidiaries to, make Capital Expenditures in excess of
$600,000 in the aggregate during the period from the Fifth Amendment Effective
Date to the Fifth Amendment Termination Date."
SECTION 4. REPRESENTATIONS AND WARRANTIES
In consideration of the limited agreement of Agent and Lenders to amend
the Credit Agreement and forbear from the exercise of their rights and remedies
as set forth above, Borrower and each Guarantor hereby represent and warrant in
favor of Agent and each Lender as follows:
4.1 Borrower and each Guarantor have the corporate or limited liability
power and authority (a) to enter into this Agreement, and (b) to do all acts and
things as are required or contemplated hereunder to be done, observed and
performed by them, respectively;
4.2 This Agreement has been duly authorized, validly executed and
delivered by one or more authorized signatories of Borrower and each Guarantor
and constitutes the legal, valid and binding obligation of Borrower and each
Guarantor, enforceable against Borrower and each Guarantor in accordance with
its terms;
4.3 The execution and delivery of this Agreement and performance by
Borrower and each Guarantor does not and will not require the consent or
approval of any regulatory authority or governmental authority or agency having
jurisdiction over Borrower or any Guarantor that has not already been obtained,
nor contravene or conflict with the formation, charter or organizational
documents of Borrower or any Guarantor, or the provisions of any statute,
judgment or order to which Borrower or any Guarantor is a party or by which any
of their respective properties are or may become bound;
4.4 As of the Agreement Effective Date (defined below), and after giving
effect to this Agreement (a) except as specified herein, no Default or Event of
Default exists under the Credit Agreement, and (b) except as set forth on
Exhibit A to this Agreement, each representation and warranty set forth in
Article 3 of the Credit Agreement is true and correct; and
4.5 All Loan Documents to which Borrower and each Guarantor are a party,
including without limitation, the Credit Agreement, constitute valid and legally
binding obligations of Borrower and each Guarantor enforceable against Borrower
and such Guarantor in accordance with the terms thereof.
SECTION 5. COVENANTS AND AGREEMENTS
In order to induce Agent and Lenders to forbear from the exercise of
their respective rights and remedies as set forth above, Borrower hereby
covenants and agrees as follows:
5.1 Borrower will refrain from paying its July 15, 2002 regularly
scheduled interest payment, or any other payment then due in respect of the
Subordinated Debt.
5.2 The Borrower shall pay to Agent a fee equal to 0.125% multiplied by
the aggregate Commitments as of the date hereof for the account of each Lender
pro rata according to such lender's aggregate Commitment as of the date hereof
(the "Amendment Fee"); provided, however, that such fee shall be payable only to
those Lenders that shall have returned executed signature pages to this
Agreement not later than 5:00 p.m. on August 13, 2002 as directed by Agent. Such
fee shall be fully earned and non-refundable on the effective date of this
Agreement.
5.3 In addition to financial reports and other certificates and
instruments, Borrower is required to deliver to Agent pursuant to Sections 5.1
and 5.2 of the Credit Agreement, Borrower shall deliver to Agent, (a) on a
weekly basis by not later than Friday of each week, a rolling 13-week cash flow
projection, together with a comparison of actual payments to budgeted line items
for the prior weekly period, in form and substance satisfactory to Agent, and
(b) such other
reports, analyses, financial statements and projections as Agent may reasonably
request from time to time.
5.4 The Borrower will not modify or otherwise change any provisions of any
Material Contract (exclusive of collective bargaining agreements) during the
term of this Agreement, specifically including any contracts or agreements
between the Borrower or any of its Subsidiaries, on the one hand, and, on the
other hand, any members of the Borrower or any of their subsidiaries and any
members or shareholders of GHC Sub, Glass Holdings, Jefferson, or Owens Corning,
or Owens Corning in its individual corporate capacity.
5.5 Borrower shall, at Borrower's expense, and shall cause the Guarantors
to, cooperate fully, and cause their respective officers, employees,
accountants, consultants and other agents to cooperate fully, in furnishing
information as and when reasonably requested by Agent regarding, without
limitation, the business plan delivered to Agent on June 11, 2002, other
financial reports, business plans and projections delivered to Agent from time
to time, the Collateral, and Borrower's or any Guarantor's affairs, finances,
financial condition and business operations. Borrower and each Guarantor
authorize Agent to meet and/or have discussions with any of Borrower's or such
Guarantor's officers, key employees, accountants, consultants, financial
advisors, and other agents from time to time to discuss any reasonable matters
regarding business plans, financial reports, projections, and the Collateral and
Borrower's or such Guarantor's affairs, finances, financial condition and
business operations, and shall direct and authorize all such persons and
entities to fully disclose to Agent all information reasonably requested by
Agent subject to all applicable attorney-client or accountant-client privileges.
Borrower shall promptly, when and as requested by Agent, provide Agent with
access to Borrower's original books and records and permit Agent to make copies
thereof subject to all applicable attorney-client or accountant-client
privileges.
5.6 Borrower shall, throughout the term of this Agreement, continue to make
a full and complete disclosure of all material aspects of its financial
condition and business operations on behalf of itself and each Guarantor.
5.7 Borrower shall continue to perform and observe all terms and conditions
contained in the Loan Documents that are not specifically mentioned in this
Agreement as a Covenant Default or a default relating to the Sub Debt Payment.
5.8 This Agreement is intended to be a further accommodation by Agent and
Lenders to Borrower. In consideration of all such accommodations, and
acknowledging that Agent and Lenders will be specifically relying on the
following provisions as a material inducement in entering into this Agreement,
Borrower agrees that in connection with such release and discharge, Borrower
specifically and expressly waives all claims which Borrower does not know or
suspect to exist in its favor at the time of executing this Agreement.
SECTION 6. MISCELLANEOUS
6.1 ACKNOWLEDGMENT OF VALIDITY, ENFORCEABILITY OF LOAN DOCUMENTS AND
RELEASE. (a) To the extent of any inconsistencies between the terms and
provisions of this Agreement and the terms and provisions of the Credit
Agreement and other Loan Documents, this Agreement shall govern. In all other
respects, the Credit Agreement and other Loan Documents shall remain in full
force and effect. Borrower and each Guarantor expressly acknowledge and agree
that the Credit Agreement and other Loan Documents are valid and enforceable by
Agent and Lenders, and expressly reaffirm each of their obligations (including
the amount of the Current Obligations) under the Credit Agreement and other Loan
Documents, free and clear of all defenses, offsets and counterclaims of any kind
or nature. Borrower and each Guarantor further expressly acknowledge and agree
that Agent, for its benefit and the benefit of the Lenders, has a valid, duly
perfected and fully enforceable security interest in and lien against the
Collateral. Borrower and each Guarantor agree that they shall not dispute the
validity or enforceability of the Credit Agreement and other Loan Documents or
any of their respective obligations thereunder, or the validity, priority,
enforceability or extent of Agent's security interest in or lien against any
item of Collateral.
(b) The Borrower and each Guarantor, on behalf of themselves and any
Person claiming by, through, or under the Borrower and each Guarantor, and each
Subsidiary of the Borrower and each Guarantor (if any), on behalf of themselves
and Persons claiming by, through, or under such Subsidiary, respectively,
acknowledges that they have no claim, counterclaim, setoff, action or cause of
action of any kind or nature whatsoever ("Claims") against all or any of the
Agent, the Lenders or any of the Agent's or the Lenders' directors, officers,
employees, agents, attorneys, financial advisors, legal representatives,
successors and assigns (the Agent, the Lenders and their directors, officers,
employees, agents, attorneys, financial advisors, legal representatives,
successors and assigns are jointly and severally referred to as the "Lender
Group"), that directly or indirectly arise out of or are based upon or in any
manner connected with any "Prior Event" (as defined below), and the Borrower,
the Guarantors and each Subsidiary of the Borrower or the Guarantors hereby
releases the Lender Group from any liability whatsoever should any Claims
nonetheless exist. As used herein the term "Prior Event" means any transaction,
event, circumstances, action, failure to act or occurrence of any sort or type,
whether known or unknown, which occurred, existed, was taken, permitted or begun
prior to the execution of this Agreement and occurred, existed, was taken,
permitted or begun in accordance with, pursuant to or by virtue of any terms of
this Agreement, the transactions referred to herein, the Credit Agreement and
any Loan Document or oral or written agreement relating to any of the foregoing,
including without limitation any approval or acceptance given or denied.
6.2 EXPENSES. Borrower shall reimburse Agent, upon demand, for all fees,
costs and expenses (including, but not limited to, reasonable attorneys' and
consultants' fees, costs and expenses) incurred by Agent in connection with this
Agreement including, but not limited to, such fees, costs and expenses incurred
in connection with the negotiation, drafting, implementation, administration and
enforcement of this Agreement and the other Loan Documents.
6.3 CONDITIONS PRECEDENT AND EFFECTIVE DATE. This Agreement shall become
effective and be deemed effective upon the Agent's receipt of each of the
following (such date being the "Agreement Effective Date"):
(a) A counterpart of this Agreement duly executed by Borrower, each
Guarantor, and the Required Lenders;
(b) Such other documents executed by Borrower, or as applicable, any
Guarantor, as Agent and Lenders may reasonably require;
(c) Receipt by Agent of the Amendment Fee.
6.4 AMENDMENTS. No amendment or modification of any provision of this
Agreement shall be effective without the written agreement of Agent and the
Required Lenders, and no termination or waiver of any provision of this
Agreement, or consent to any departure therefrom, shall in any event be
effective without the written concurrence of Agent and the Required Lenders. Any
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which it was given.
6.5 DEFAULT WAIVER. Failure at any time or times hereafter on the part of
Agent or any Lender, to require strict performance by Borrower and each
Guarantor with any provision or term of this Agreement shall not waive, affect
or diminish any right of Agent or the Lenders thereafter to demand strict
compliance and performance therewith. Any suspension or waiver by Agent or the
Lenders of a Default or Event of Default shall not, except as may be expressly
set forth herein, suspend, waive or affect any other Default or Event of
Default, whether the same is prior or subsequent thereto and whether of the same
or of a different kind or character.
6.6 SOLE BENEFIT OF PARTIES. This Agreement is solely for the benefit of
the parties hereto and their respective successors and assigns, and no other
person or entity shall have any right, benefit or interest under or because of
the existence of this Agreement.
6.7 SECTION TITLES. The section titles contained in this Agreement are
included for the sake of convenience only, shall be without substantive meaning
or content of any kind whatsoever, and are not a part of the agreement between
the parties.
6.8 WAIVER BY AGENT AND LENDERS. No course of dealing between Borrower,
any Guarantor, Agent or any Lender and no delay or omission by Agent or any
Lender in exercising any right or remedy under this Agreement or the other Loan
Documents or with respect to the Obligations shall operate as a waiver thereof
or of any other right or remedy, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right or remedy. All rights and remedies of Agent and Lenders are cumulative.
6.9 SEVERABILITY. The provisions of this Agreement are independent of and
separable from each other, and no such provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other
such provision may be invalid or unenforceable in whole or in part. If any
provision of this Agreement is prohibited or unenforceable in any jurisdiction,
such provision shall be ineffective in such jurisdiction only to the extent of
such provision or unenforceability, and such prohibition or unenforceability
shall
not invalidate the balance of such provision to the extent it is not prohibited
or unenforceable nor render prohibited or unenforceable such provision in any
other jurisdiction.
6.10 ENTIRE AGREEMENT. This Agreement and the other Loan Documents
constitute the entire agreement and understanding between the parties hereto
with respect to the transactions contemplated hereby and supersede all prior
negotiations, understandings and agreements between such parties with respect to
such transactions.
6.11 APPLICABLE LAW. THIS AGREEMENT AND THE TRANSACTIONS EVIDENCED HEREBY
SHALL BE GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF NORTH
CAROLINA, WITH REGARD TO PRINCIPLES OF CONFLICTS OF LAW, THAT MAY CAUSE THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
6.12 CONSENT TO JURISDICTION. THE PARTIES HERETO AND THE OTHER LENDERS
AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THE LOAN
DOCUMENTS MAY BE COMMENCED IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NORTH CAROLINA, AND THE PARTIES HERETO WAIVE
PERSONAL SERVICE OF PROCESS AND AGREE THAT A SUMMONS AND COMPLAINT COMMENCING AN
ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER
PERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO SUCH PARTY,
OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF NORTH CAROLINA OR THE
UNITED STATES.
6.13 JURY TRIAL WAIVER. THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO
TRIAL BY JURY THE PARTIES HERETO MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR
IN EQUITY, IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS RELATED
THERETO. THE PARTIES HERETO REPRESENT AND WARRANT THAT NO REPRESENTATIVE OF
AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PERSON
WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL
WAIVER. BORROWER AND EACH GUARANTOR ACKNOWLEDGE THAT AGENT AND LENDERS HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE PROVISIONS OF
THIS SECTION.
6.14 WAIVER OF BOND. BORROWER AND EACH GUARANTOR HEREBY WAIVE THE POSTING
OF ANY BOND OTHERWISE REQUIRED OF AGENT OR ANY LENDER IN CONNECTION WITH ANY
JUDICIAL PROCESS OR PROCEEDING OR TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF AGENT OR ANY LENDER OR TO ENFORCE BY SPECIFIC PERFORMANCE,
ANY TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION, OR THIS
AGREEMENT.
6.15 CONSULTATION WITH COUNSEL. THE PARTIES HERETO REPRESENT TO AGENT AND
LENDERS THAT THEY HAVE DISCUSSED THIS AGREEMENT WITH THEIR LAWYERS.
6.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of this Agreement by facsimile transmission shall be equally
effective as a manually delivered executed counterpart hereof.
EXHIBIT A
Other Covenant Defaults
Borrower believes that it has defaulted on the following provisions of the Loan
Documents:
1. The representation in Section 3.5 of the Credit Agreement is not true and
correct with respect to the defaults identified in this Agreement.
2. The representation in Section 3.17 of the Credit Agreement is not true and
correct.
3. Pursuant to Section 5.15 of the Credit Agreement, delivery to Agent and
each of the Lenders, by July 5, 2002, of quarterly financial statements
demonstrating compliance with the financial ratios identified on the first
page of this Agreement.
4. Various Events of Default in Section 7.1 of the Credit Agreement have
occurred to the extent of the defaults identified in this Agreement.
EXHIBIT B
Current Obligations
Outstanding Principal
---------------------
(as of 8/6/02)
Revolving Loans $33,502,588.94
Revolver 27,000,000.00
Swingline Loans 4,200,000.00
Interest 76,233.94
Face Amount of Letters of Credit 2,226,355.00
Tranche A Term Loan 51,161 621.33
Interest 47,409.77
Tranche B Term Loan 94,890,867.82
Interest 99,793.56
--------------
Total Outstanding Principal and Interest on all Loans $179,702,281.32
Schedule I
SCHEDULE OF LENDERS
REVOLVING COMMITTED AMOUNTS
Revolving Revolving
Lender Committed Commitment
------
Amount Percentage
------ ----------
ABN Amro Bank N.V
7,500,000.00 13.15789473
CIT Group/Equipment 4,500,000.00 7.89473684
Financing, Inc
Compagnie Financiere 3,000,000.00 5.26315789
Credit Lyonnais, New York 3,600,000.00 6.31578948
Branch
Erste Bank, New York Branch 3,000,000.00 5.26315789
Firstrust Bank 2,400,000.00 4.21052632
NATEXIS Banques Populaires 3,000,000.00 5.26315789
PB Capital Corporation 3,000,000.00 5.26315789
Societe Generale 4,500,000.00 7.89473684
Wachovia Bank, National 10,500,000.00 18.42105264
Association
Bank of America, N.A 4,500,000.00 7.89473684
SunTrust Bank, Atlanta 7,500,000.00 13.15789473
$57,000,000.00 100.0000000000%
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first set forth above, by their respective duly authorized
officers.
BORROWER: ADVANCED GLASSFIBER YARNS,
- --------
LLC, a Delaware limited liability company
By: /s/ Catherine Cuisson
-----------------------------------
Name: Catherine Cuisson
Title: Vice President and CFO
GUARANTORS: AGY CAPITAL CORP., a Delaware corporation
- ----------
By: /s/ Catherine Cuisson
-----------------------------------
Name: Catherine Cuisson
Title: Vice President and CFO
AGENT AND LENDERS: WACHOVIA BANK, NATIONAL
- -----------------
ASSOCIATION (f/k/a First Union National
Bank, a national banking association), as
Agent and a Lender
By: /s/ Reginald T. Dawson
------------------------------------
Name: Reginald T. Dawson
Title: Director
NATEXIS BANQUES POPULAIRES, as a Lender
By: /s/ Anne Ulrich
------------------------------------
Name: Anne Ulrich
Title: Vice President
By: /ss/
------------------------------------
Name:
Title: Vice President and Manager
Multinational Group
CREDIT LYONNAIS, NEW YORK
BRANCH, as a Lender
By: /ss/
------------------------------------
Name:
Title: Senior Vice President
SOCIETE GENERALE, as a Lender
By: /s/ Betty Burg
------------------------------------
Name: Betty Burg
Title: Director
ALLSTATE LIFE INSURANCE COMPANY, as a
Lender
By: /s/ Patricia W. Wilson
------------------------------------
Name: Patricia W. Wilson
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY, as a
Lender
By: /s/ Jerry D. Zinkula
------------------------------------
Name: Jerry D. Zinkula
Title: Authorized Signatory
SEQUILS-ING I (HBDGM), LTD. as a
Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Philip C. Robbins
----------------------------------
Name: Philip C. Robbins
Title: Vice President
ARCHIMEDES FUNDING III, LTD., as
a Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By: /s/ Philip C. Robbins
----------------------------------
Name: Philip C. Robbins
Title: Vice President
ELC (CAYMAN) LTD. 1999-III, as a
Lender
By: /s/ John W. Stelwagon
----------------------------------
Name: John W. Stelwagon, CFA
Title: Managing Director
ELC (CAYMAN) LTD., as a Lender
By: /s/ John W. Stelwagon
----------------------------------
Name: John W. Stelwagon, CFA
Title: Managing Director
ELC (CAYMAN) LTD. 2000-I, as a Lender
By: /s/ John W. Stelwagon
---------------------------------------------
Name: John W. Stelwagon, CFA
Title: Managing Director
ERSTE BANK NEW YORK BRANCH, as a Lender
By: /s/ John S. Runnion
---------------------------------------------
Name: John S. Runnion
Title: Managing Director
By: /s/ Robert Suehnhoh
---------------------------------------------
Name: Robert Suehnhoh
Title: First Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC., as a
Lender
By: /s/ W. B. Stoebig
---------------------------------------------
Name: W. B. Stoebig
Title: Vice President Credit
TORONTO DOMINION (NEW YORK), INC., as a Lender
By: /s/ Susan K. Strong
---------------------------------------------
Name: Susan K. Strong
Title: Vice President
SANKATY HIGH YIELD PARTNERS II, L.P.,
as a Lender
By: /s/ Diane J. Exter
-----------------------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
SANKATY HIGH YIELD PARTNERS III, L.P.,
as a Lender
By: /s/ Diane J. Exter
-----------------------------------
Name: Diane J. Exter
Title: Managing Director
Portfolio Manager
ABN AMRO, as a Lender
By: /s/ Steven C. Wimpenny
-----------------------------------
Name: Steven C. Wimpenny
Title: Group Senior Vice President
By: /s/ Bryan J. Matthews
-----------------------------------
Name: Bryan J. Matthews
Title: Corporate Banking Officer
ALLIANCE CAPITAL MANAGEMENT L.P.,
as Manager on behalf of Alliance
Capital Funding, LLC, as Assignee
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, general
partner of Alliance Capital Management
L.P.
By: /s/ Michael E. Sohr
-----------------------------------
Name: Michael E. Sohr
Title: Vice President
CREDIT INDUSTRIEL ET COMMERCIAL,
as a Lender
By: /s/ A. Calo
-----------------------------------
Name: A. Calo
Title: Vice President
By: /s/ Eric Dulot
-----------------------------------
Name: Eric Dulot
Title: Vice President
PB CAPITAL CORPORATION, as a Lender
By: /s/ Dana L. McDougall
-----------------------------------
Name: Dana L. McDougall
Title: Vice President
By: /s/ Christopher J. Ruzzi
-----------------------------------
Name: Christopher J. Ruzzi
Title: Vice President
SUNTRUST BANK, as a Lender
By: /s/ Steven J. Newby
-----------------------------------
Name: Steven J. Newby
Title: Director
MORGAN STANLEY PRIME INCOME
TRUST, as a Lender
By: /ss/
-----------------------------------
Name:
Title:
FIRSTRUST BANK, as a
Lender
By: /s/ Richard Meyers
-----------------------------------
Name: Richard Meyers
Title: Executive Vice President
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research as
Investment Advisor
By: /s/ Scott H. Page
-----------------------------------
Name: Scott H. Page
Title: Vice President
EATON VANCE SENIOR INCOME
TRUST, as a Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Scott H. Page
-----------------------------------
Name: Scott H. Page
Title: Vice President
EATON VANCE INSTITUTIONAL
SENIOR LOAN FUND, as a Lender
By: Eaton Vance Management as
Investment Advisor
By: /s/ Scott H. Page
-----------------------------------
Name: Scott H. Page
Title: Vice President
OXFORD STRATEGIC INCOME
FUND, as a Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Scott H. Page
-----------------------------------
Name: Scott H. Page
Title: Vice President
EATON VANCE CDO III, LTD., as a
Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Scott H. Page
-----------------------------------
Name: Scott H. Page
Title: Vice President
GRAYSON & CO., as a Lender
By: Boston Management and Research
as Investment Advisor
By: /s/ Scott H. Page
-----------------------------------
Name: Scott H. Page
Title: Vice President
SOMERS CDO, LIMITED, as a Lender
By: David L. Babson and Company
Incorporated, under delegated authority from
Massachusetts Mutual Life Insurance
Company, its Collateral Manager
By: /s/ Richard McGauley
-----------------------------------
Name: Richard McGauley
Title: Managing Director
MASSMUTUAL HIGH YIELD
PARTNERS II, LLC, as a Lender
By: HYP Management Inc., as Managing
Partner
By: /s/ Richard McGauley
-----------------------------------
Name: Richard McGauley
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY, as a Lender
By: David L. Babson and Company
Incorporated, under delegated authority from
Massachusetts Mutual Life Insurance
Company, its Collateral Manager
By: /s/ Richard McGauley
--------------------------------------
Name: Richard McGauley
Title: Managing Director
ENDURANCE CLO I, LTD.
c/o: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Philip C. Robbins
--------------------------------------
Name: Philip C. Robbins
Title: Vice President
SEQUILS-ING I (HGDGM), LTD.
c/o: ING Capital Advisors LLC,
as Collateral Manager
By: /s/ Philip C. Robbins
--------------------------------------
Name: Philip C. Robbins
Title: Vice President
KZH ING-1 LLC, as a Lender
By: --------------------------------------
Name:
Title:
KZH ING-2 LLC, as a Lender
By: /s/ Anthony Iarrobino
--------------------------------------
Name: Anthony Iarrobino
Title: Authorized Agent
KZH ING-3 LLC, as a Lender
By: /s/ Philip C. Robbins
--------------------------------------
Name: Philip C. Robbins
Title: Vice President
By: /s/ Anthony Iarrobino
--------------------------------------
Name: Anthony Iarrobino
Title: Authorized Agent
BANK OF AMERICA, N.A., as a Lender
By: /s/ Daniel Langelier
--------------------------------------
Name: Daniel Langelier
Title: Senior Vice President