Exhibit 10.23
SEVENTH AMENDMENT TO CREDIT AGREEMENT AND
FORBEARANCE AGREEMENT
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE AGREEMENT (this
"Agreement"), dated as of October 28, 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, that certain Fourth Amendment to Credit
Agreement and Forbearance Agreement dated as of June 28, 2002, that certain
Fifth Amendment to Credit Agreement and Forbearance Agreement dated as of August
13, 2002, and that certain Sixth Amendment to Credit Agreement and Forbearance
Agreement dated as of September 27, 2002, which Sixth Amendment to Credit
Agreement and Forbearance Agreement was itself further modified by that certain
Amendment to Forbearance Agreement dated as of October 18, 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 quarters ended June 30, 2002 and September 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"); and
WHEREAS, for its fiscal quarter ended September 30, 2002: (a) Borrower
failed to achieve the Consolidated Net Worth covenant set forth in Section
5.9(b) of the Credit Agreement (the "Consolidated Net Worth Default"), and (b)
Borrower did not make the scheduled principal payments on the Tranche A Term
Loan and the Tranche B Term Loan, as required by Section 2.2A(b) and Section
2.2B(b), respectively (collectively, the "Term Loan Payment Defaults")
(collectively, the Leverage Ratio Default, the Interest Coverage Ratio Default,
the Fixed Charge
Coverage Ratio Default, the Exhibit A Defaults, the Consolidated Net Worth
Default and the Term Loan Payment 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; (f) prior to the Termination Date,
Borrower or any Guarantor makes payment to Owens Corning with respect to any
post-Acquisition pension payments required to be made by Borrower pursuant to
the LLC Purchase Agreement, whether such obligations are billed or unbilled,
existing as of the date hereof or hereafter arising, and including, without
limitation, the invoice from Owens Corning to Borrower dated as of October 3,
2002 in the amount of $1,402,121.06, or (g) 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 December 6, 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.
2.3 Borrower acknowledges and agrees that, due to the Covenant Defaults,
as of the Fifth Amendment Termination Date, (a) no LIBOR Rate Loans have been
available to Borrower, (b) all Loans made to Borrower subsequent to such date
shall bear interest with respect to the Alternate Base Rate, (c) any LIBOR Rate
Loan outstanding as of such date has continued as a LIBOR Rate Loan until the
termination of the then-existing Interest Period with respect to such LIBOR Rate
Loan, at which time such LIBOR Rate Loan shall automatically convert to an
Alternate Base Rate Loan, (d) Borrower may not continue any Loan (or any portion
thereof) as or convert any Loan (or any portion thereof) into a Loan bearing
interest with reference to LIBOR,
and (e) except as set forth in clause (c), all Loans and other Obligations shall
thereafter bear interest at the Alternate Base Rate provided for in Sections
2.1(d)(i), 2.2A(c)(i), and 2.2B(c)(i).
2.4 Borrower further acknowledges and agrees that any amounts advanced to
Borrower by the Lenders after the Fifth Amendment Termination Date in excess of
$31,900,000 shall be repaid by Borrower pursuant to any debtor-in-possession
credit facility subsequently entered into among Borrower, Agent and the Lenders
party thereto prior to any other amounts being advanced to Borrower under such
credit facility.
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 inserting the
following defined terms in the appropriate alphabetical order:
(a) "`Master Account" shall have the meaning set forth in Section
6.15(b)."
(b) "`Seventh Amendment'" shall mean that certain Seventh Amendment
to Credit Agreement and Forbearance Agreement dated as of October 28, 2002 by
and among the Borrower, Guarantors identified therein, the Lenders identified
therein and the Agent."
(c) "`Seventh Amendment Effective Date' shall mean the Agreement
Effective Date as defined in the Seventh Amendment."
(d) "`Seventh Amendment Termination Date' shall mean the Termination
Date as defined in the Seventh Amendment."
3.2 Amendments to Article VI of the Credit Agreement. Article VI of the
Credit Agreement, "Negative Covenants", is hereby modified and amended as
follows:
(a) Section 6.5 of the Credit Agreement, "Consolidation, Merger,
Sale or Purchase of Assets, etc.", is hereby modified and amended by deleting
clause (a)(ii)(b) thereof in its entirety and substituting the following
therefor:
"(b) the sale, lease, transfer or other disposition of machinery,
parts and equipment (specifically excluding, prior to the Seventh Amendment
Termination Date, any sales or other dispositions of alloy assets of the
Borrower), no longer used or useful in the conduct of the business of the
Borrower or any of its Subsidiaries, as appropriate, in its reasonable
discretion;".
(b) Section 6.15 of the Credit Agreement, "Bank Accounts", is hereby
modified and amended by deleting such Section in its entirety and substituting
the following therefor:
"6.15 Bank Accounts. The Borrower will not, nor will it permit any
Subsidiary to, open, maintain or otherwise have any checking, savings or
other accounts at any bank or other financial institution other than:
(a) any such accounts maintained with a Lender; provided that, the
aggregate cash balance in all such accounts (inclusive of collected funds
or
otherwise) maintained in the United States at any time with respect to
all Lenders, plus the aggregate cash balance maintained with a bank or
financial institution in Canada permitted by clause (b), shall not
exceed $2,000,000 at any time, excluding any cash designated for the
pre-funding of Borrower's payroll or accounts payable disbursement
accounts; provided further that, the aggregate cash balance in such
accounts (inclusive of collected funds or otherwise) in excess of
$2,000,000 shall be used to repay outstanding Revolving Loans, in
accordance with Borrower's existing cash management system, within two
(2) Business Days after the date on which such $2,000,000 limit is
exceeded;
(b) not more than two (2) accounts maintained with a bank or
other financial institution in Canada, which account shall be
maintained solely for the purpose of depositing collections from
Canadian customers and for paying applicable taxes, duties and other
amounts owed to any Canadian Governmental Authority or supplier;
provided that, the aggregate cash balance in such account (inclusive
of collected funds or otherwise) maintained in Canada in excess of
$100,000 shall, in accordance with Borrower's existing cash management
system, be transferred on a weekly basis via wire transfer to the
account of Borrower, Account No. 2000002910293 with Wachovia Bank,
National Association (the "Master Account");
(c) any such accounts maintained with one or more European
financial institutions; provided that, the aggregate cash balance in
all such accounts (inclusive of collected funds or otherwise) at any
time with respect to all such European institutions shall not exceed
$2,000,000 at any time provided further that, the aggregate cash
balance in such accounts (inclusive of collected funds or otherwise)
in excess of $2,000,000 shall, in accordance with Borrower's existing
cash management system, be transferred via wire transfer to the Master
Account within three (3) Business Days after the date on which such
$2,000,000 limit is exceeded; and
(d) in addition to the time periods set forth in clauses (a), (b)
and (c) above, the Borrower shall have an additional two (2) Business
Days to transfer any balances in excess of the foregoing limitations
if any transfer to the Master Account does not occur within the
above-specified time periods and such failure was the result solely of
an administrative processing error by the Agent or its Affiliates."
(c) Section 6.16 of the Credit Agreement, Limitation on Capital
Expenditures (as amended), is hereby modified and amended by deleting such
Section in its entirety and substituting the following therefor:
"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 Seventh Amendment Effective Date to the Seventh 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 in Section 6.3 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, and will cause the Guarantors to, further refrain from
paying its July 15, 2002 regularly scheduled interest payment, or any other
payment then due with respect to the Subordinated Debt (other than payments to
or on behalf of professionals and advisors retained by or on behalf of some or
all of the holders of the Subordinated Debt).
5.2 Prior to the Termination Date, Borrower will, and will cause the
Guarantors to, refrain from paying Owens Corning with respect to any
post-Acquisition pension payments required to be made by Borrower pursuant to
the LLC Purchase Agreement, whether such
obligations are billed or unbilled, existing as of the date hereof or hereafter
arising, and including, without limitation, the invoice from Owens Corning to
Borrower dated as of October 3, 2002 in the amount of $1,402,121.06.
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 and its professional advisors,
(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 Borrower shall deliver to Agent and the Lenders on or before November
18, 2002, (a) a revised budget (the "DIP Budget") with respect to the proposed
debtor-in-possession credit facility, and (b) a revised rolling 6-week and
13-week cash flow projection reflecting any changes required by any DIP Budget.
5.5 On or before November 8, 2002, Borrower shall implement a revised
methodology for reporting all cash of Borrower and its Subsidiaries, in form and
substance satisfactory to Agent and its professional advisors.
5.6 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 Borrower or any of its Subsidiaries, on the one hand, and, on the other
hand, any members of 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.
5.7 Borrower shall, at Borrower's expense, and shall cause 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.
5.8 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.
5.9 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.
5.10 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) Borrower and each Guarantor, on behalf of themselves and any Person
claiming by, through, or under Borrower and each Guarantor, and each Subsidiary
of 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 Agent, the Lenders or any
of Agent's or the Lenders' directors, officers, employees, agents, attorneys,
financial advisors, legal representatives, successors and assigns (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 Borrower, Guarantors and each Subsidiary of Borrower or
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 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; and
(b) Such other documents executed by Borrower, or as applicable, any
Guarantor, as Agent and Lenders may reasonably require.
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.
6.17 REFERENCE TO AND EFFECT ON THE CREDIT DOCUMENTS. Upon the
effectiveness of this Agreement, on and after the date hereof each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the other Credit
Documents to "the Credit Agreement", "thereunder", "thereof" or words of like
import referring to the Credit Agreement, shall mean and be a reference to the
Credit Agreement as amended hereby and as amended by each amendment thereto
executed prior to the date hereof.
6.18 LOAN DOCUMENT. This Agreement, and each amendment to the Credit
Agreement and/or forbearance agreement executed by the undersigned parties prior
to the date hereof, shall be deemed to be a Credit Document (as such term is
defined in the Credit Agreement) for all purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
EXHIBIT A
Other Covenant Defaults
Borrower believes that it has defaulted on the following provisions of the
Loan Documents:
9. The representation in Section 3.5 of the Credit Agreement is not
true and correct with respect to the defaults identified in this Agreement.
10. The representation in Section 3.17 of the Credit Agreement is not
true and correct.
11. Pursuant to Section 5.15 of the Credit Agreement, delivery to
Agent and each of the Lenders by the dates required therein of quarterly and
monthly financial statements demonstrating compliance with the financial
ratios identified on the first page of this Agreement.
12. 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 10/25/02)
Revolving Loans $ 32,348,416.43
Revolver 30,000,000.00
Swingline Loans 0.00
Interest 122,061.43
Face Amount of Letters of Credit 2,226,355.00
Tranche A Term Loan 51,161 621.33
Interest 300,662.13
Tranche B Term Loan 94,890,867.82
Interest 608,341.46
---------------
Total Outstanding Principal and Interest on all Loans $179,309,908.96
Schedule I
SCHEDULE OF LENDERS'
REVOLVING COMMITTED AMOUNTS
Revolving Revolving
Lender Commitment
------ Committed Percentage
Amount ----------
------
ABN Amro Bank N.V. 4,605,263.16 13.15789473
CIT Group/Equipment Financing, 2,763,157.89 7.89473684
Inc.
Credit Industriel et Commercia 1,842,105.26 5.26315789
Credit Lyonnais, New York Branch 2,210,526.32 6.31578948
Erste Bank, New York Branch 1,842,105.26 5.26315789
Firstrust Bank 1,473,684.21 4.21052632
NATEXIS Banques Populaires 1,842,105.26 5.26315789
PB Capital Corporation 1,842,105.26 5.26315789
Societe Generale 2,763,157.89 7.89473684
Wachovia Bank, National 6,447,368.44 18.42105264
Association
Bank of America, N.A. 2,763,157.89 7.89473684
SunTrust Bank, Atlanta 4,605,263.16 13.15789473
$ 35,000,000 100.0000000000%
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: /ss/
---------------------------------------
Name:
Title:
By: /s/ Christine Dirringer
----------------------------------
Name: Christine Dirringer
Title: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH, as
a Lender
By: /ss/
----------------------------------
Name:
Title: Vice President
SOCIETE GENERALE, as a Lender
By: /s/ Marc J. Pouget-Abadie
----------------------------------
Name: Marc J. Pouget-Abadie
Title: Vice President
ENDURANCE CLO I, LTD., as a Lender
C/o: ING Capital Advisors LLC,
as Collateral Manager
By:__________________________________
Name:
Title:
SEQUILS-ING I (HBDGM), LTD. as a
Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:__________________________________
Name:
Title:
ARCHIMEDES FUNDING III, LTD., as a
Lender
By: ING Capital Advisors LLC, as
Collateral Manager
By:__________________________________
Name:
Title:
ELC (CAYMAN) LTD. 1999-III, as a
Lender
By: /s/ John W. Stelwagon
----------------------------------
Name: John W. Stelwagon
Title: Managing Director
ELC (CAYMAN) LTD., as a Lender
By: /s/ John W. Stelwagon
----------------------------------
Name: John W. Stelwagon
Title: Managing Director
ELC (CAYMAN) LTD. 2000-I, as a Lender
By: /s/ John W. Stelwagon
----------------------------------
Name: John W. Stelwagon
Title: Managing Director
ERSTE BANK NEW YORK BRANCH, as a
Lender
By: /s/ Paul Judicke
----------------------------------
Name: Paul Judicke
Title: Vice President
By: /s/ John S. Runnion
----------------------------------
Name: John S. Runnion
Title: Managing Director
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 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 BANK N.V., as a Lender
By: /s/ William J. Teresky, Jr.
----------------------------------
Name: William J. Teresky, Jr.
Title: Group 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:__________________________________
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL, as a
Lender
By: /s/ Albert M. Calo
----------------------------------
Name: Albert M. Calo
Title: Vice President
By: /s/ Eric Dulot
----------------------------------
Name: Eric Dulot
Title: Vice President
PB CAPITAL CORPORATION, as a Lender
By: /s/ Dana L. McDougal
----------------------------------
Name: Dana L. McDougal
Title: Vice President
By: /ss/
----------------------------------
Name:
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:
--------------------------------------
Name:
Title:
FIRSTRUST BANK, as a Lender
By: /s/ Kent Nelson
--------------------------------------
Name: Kent Nelson
Title: Senior Vice President
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
Title: Vice President
EATON VANCE SENIOR INCOME TRUST, as a
Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
Title: Vice President
EATON VANCE INSTITUTIONAL SENIOR LOAN
FUND, as a Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
Title: Vice President
OXFORD STRATEGIC INCOME FUND, as a Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
Title: Vice President
EATON VANCE CDO III, LTD., as a Lender
By: Eaton Vance Management as Investment
Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
Title: Vice President
GRAYSON & CO., as a Lender
By: Boston Management and Research as
Investment Advisor
By: /s/ Payson F. Swaffield
--------------------------------------
Name: Payson F. Swaffield
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/ Mary Ann McCarthy
--------------------------------------
Name: Mary Ann McCarthy
Title: Managing Director
MASSMUTUAL HIGH YIELD PARTNERS II, LLC,
as a Lender
By: HYP Management Inc., as Managing
Partner
By: /s/ Mary Ann McCarthy
--------------------------------------
Name: Mary Ann McCarthy
Title: Managing Director
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/ Mary Ann McCarthy
--------------------------------------
Name: Mary Ann McCarthy
Title: Managing Director
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/ Anthony Iarrobino
--------------------------------------
Name: Anthony Iarrobino
Title: Authorized Agent
BANK OF AMERICA, N.A., as a Lender
By:
--------------------------------------
Name:
Title:
PUTNAM HIGH YIELD TRUST, as a Lender
By:
--------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON INTERNATIONAL,
as a Lender
By:
--------------------------------------
Name:
Title: