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EXHIBIT 10.16
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "Second Amendment") dated as
of July 10, 2000, is to that Credit Agreement dated as of August 28, 1998, as
amended by that certain First Amendment to Credit Agreement dated as of December
18, 1998 (as may be further amended and modified from time to time, the "Credit
Agreement"; terms used but not otherwise defined herein shall have the meanings
provided in the Credit Agreement), by and among TUFCO, L.P., a Delaware limited
partnership (the "Borrower"), TUFCO TECHNOLOGIES INC., a Delaware corporation
(the "Parent"), the several banks and other financial institutions identified
therein (the "Banks") and FIRST UNION NATIONAL BANK, as administrative agent for
the Banks thereunder (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the Banks have established a credit facility for the benefit of
the Borrower pursuant to the terms of the Credit Agreement;
WHEREAS, the Borrower has requested that the Required Banks amend certain
provisions of the Credit Agreement by making certain modifications thereto
including a $3,000,000 increase to the Revolving Commitment; and
WHEREAS, the Required Banks have agreed to the requested amendment on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
A. The Credit Agreement is amended in the following respects:
1. The definition of "Capital Expenditures" in Section 1.1 of the
Credit Agreement is hereby deleted in its entirety and the
following substituted therefor:
"Capital Expenditures" means, for any period, all expenditures of
Parent and the Subsidiaries which are classified as capital
expenditures in accordance with GAAP including all such
expenditures associated with Capital Lease Obligations but
excluding capital expenditures made in connection with the
expansion of the Borrower's Green Bay, Wisconsin production
facility in an aggregate amount not to exceed $3,000,000.
2. The definition of "Revolving Commitment" in Section 1.1 of the
Credit Agreement is hereby amended by deleting the amount of
"Nine Million Dollars ($9,000,000)" in the last sentence thereof
and replacing it with "Twelve Million Dollars ($12,000,000)".
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3. The definition of "Revolving Termination Date" in Section 1.1 of
the Credit Agreement is hereby amended by deleting the reference
to "June 1, 2001" and replacing it with "June 1, 2002".
4. Section 2.2 of the Credit Agreement is hereby deleted in its
entirety and the following substituted therefor:
Section 2.2 Notes. The Revolving Loans made by a Bank shall be
evidenced by one or more promissory notes of the Borrower in
substantially the form of Exhibit "A" hereto, payable to the order of
such Bank in a principal amount equal to, for the aggregate of such
notes payable to such Bank, its Revolving Commitment and otherwise
duly completed.
B. Except as modified hereby, all of the terms and provisions of the Credit
Agreement (and Exhibits) remain in full force and effect.
C. Each of the Borrower and the Guarantors hereby represent and warrant
that (a) the representations and warranties contained in Article III of the
Credit Agreement, as amended hereby are correct in all material respects on and
as of the date hereof as though made on and as of such date and after giving
effect to the amendments contained herein and (b) no Default or Event of Default
exists on and as of the date hereof and after giving effect to the amendments
contained herein.
D. This Second Amendment shall become effective upon the satisfaction of
the following conditions precedent (such date referred to herein as the
"Amendment Effective Date"):
(a) Execution of Second Amendment. The Agent shall have received
counterparts of this Second Amendment, executed by a duly authorized
officer of each party hereto.
(b) Revolving Notes. The Agent shall have received, for the account of
each Bank, fully executed Revolving Notes each in the amount of $1,500,000.
(c) Authority Documents. The Agent shall have received the following:
(i) Articles of Incorporation. A certificate of the secretary of
each of the Borrower and the Guarantor certifying that the articles of
incorporation or other charter documents, as applicable, of each of
the Borrower and the Guarantors previously delivered to the Agent are
true and complete as of the Amendment Effective Date and have not been
amended, modified, rescinded or supplemented since such date.
(ii) Resolutions. Copies of resolutions of the board of directors
of each of the Borrower and the Guarantors approving and adopting the
Second Amendment, the transactions contemplated therein, including the
increase of the Revolving Commitment hereunder, and authorizing
execution and delivery thereof, certified by an officer thereof as of
the Amendment Effective Date to be true and correct and in force and
effect as of such date.
(iii) Bylaws. A certificate of the secretary of each of the
Borrower and the Guarantor certifying that the bylaws of each of the
Borrower and the Guarantors previously delivered to the Agent are true
and correct as of the Amendment Effective Date and have not been
amended, modified, rescinded or supplemented since such date.
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(iv) Good Standing. Copies of (i) certificates of good standing,
existence or its equivalent with respect to the each of the Borrower
and the Guarantors certified as of a recent date by the appropriate
governmental authorities of the state of incorporation and (ii) a
certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental taxing
authorities of the state of incorporation of each of the Borrower and
the Guarantors.
(v) Incumbency. An incumbency certificate of each of the Borrower
and the Guarantors certified by a secretary or assistant secretary to
be true and correct as of the Amendment Effective Date.
(d) Opinion of Counsel. Favorable opinion of legal counsel to the
Parent and its Subsidiaries, as to such matters as the agent may request.
(e) Amendment Fee. The Borrower shall have paid an amendment fee to
each Bank party to this Second Amendment in the amount of 0.25% of such
Bank's Revolving Commitment after giving effect to this Second Amendment.
E. The Guarantors acknowledge and consent to all of the terms and
conditions of this Second Amendment and agree that this Second Amendment and all
documents executed in connection herewith do not operate to reduce or discharge
the Guarantors' obligations under the Credit Agreement, the Master Guaranty, or
the other Loan Documents. The Guarantors further acknowledge and agree that the
Guarantors have no claims, counterclaims, offsets, or defenses to the Master
Guaranty or the other Loan Documents and the performance of the Guarantors'
obligations thereunder or if the Guarantors did have any such claims,
counterclaims, offsets or defenses to the Master Guaranty or the other Loan
Documents or any transaction related to the Loan Documents, the same are hereby
waived, relinquished and released in consideration of the Required Banks'
execution and delivery of this Second Amendment.
F. This Second Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Second Amendment to produce or
account for more than one such counterpart.
G. This Second Amendment and the Credit Agreement, as amended hereby, shall
be deemed to be contracts made under, and for all purposes shall be construed in
accordance with the laws of the State of Texas.
H. THIS SECOND AMENDMENT, THE NOTES, THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS REFERRED TO HEREIN AND THEREIN EMBODY THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND THERETO AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO OR THERETO. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Second Amendment to be duly executed and delivered as of the date and year
first above written.
BORROWER: TUFCO, L.P.,
By: Tufco Tech, Inc.
its Managing General Partner
By: /s/ GREG WILEMON
---------------------------------
Name: GREG WILEMON
Title: CFO/COO
PARENT: TUFCO TECHNOLOGIES, INC.,
By: /s/ GREG WILEMON
---------------------------------
Name: GREG WILEMON
Title: CFO/COO
OTHER
GUARANTORS: TECHNOLOGIES I, INC.
By: /s/ KATHY MANOS
---------------------------------
Name: KATHY MANOS
Title: PRESIDENT
TUFCO, INC.
By: /s/ KATHY MANOS
---------------------------------
Name: KATHY MANOS
Title: PRESIDENT
TFCO, INC.
By: /s/ KATHY MANOS
---------------------------------
Name: KATHY MANOS
Title: PRESIDENT
FOREMOST MANUFACTURING COMPANY INC.
By: /s/ GREG WILEMON
---------------------------------
Name: GREG WILEMON
Title: CFO/COO
TUFCO TECH, INC.
By: /s/ GREG WILEMON
---------------------------------
Name: GREG WILEMON
Title: SECRETARY/TREASURER
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AGENTS AND LENDERS: FIRST UNION NATIONAL BANK,
as Administrative Agent and as a Lender
By: /s/ J. ANDREW PHELPS
---------------------------------
Name: J. ANDREW PHELPS
Title: VICE PRESIDENT
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CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
By: /s/ DAVID L. HOWARD
---------------------------------
Name: DAVID L. HOWARD
Title: VICE PRESIDENT
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REVOLVING NOTE
$1,500,000 July 10, 2000
FOR VALUE RECEIVED, the undersigned, TUFCO, L.P., a Delaware limited
partnership (the "Borrower"), hereby promises to pay to the order of First Union
National Bank (the "Bank"), at the Principal Office of the Agent, in lawful
money of the United States of America and in immediately available funds, the
principal amount of ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000) or
such other amount as shall equal the aggregate unpaid principal amount of the
Revolving Loans made by the Bank to the Borrower under the Credit Agreement
referred to below, on the dates and in the principal amounts provided in the
Credit Agreement, and to pay interest on the unpaid principal amount of each
such Revolving Loan, at such office, in like money and funds, for the period
commencing on the date of such Revolving Loan until such Revolving Loan shall be
paid in full, at the rates per annum and on the dates provided in the Credit
Agreement.
The Borrower hereby authorizes the Bank to record in its records the
amount of each Revolving Loan and Type of Accounts established under each
Revolving Loan and all Continuations, Conversions and payments of principal in
respect thereof, which records shall, in the absence of manifest error,
constitute prima facie evidence of the accuracy thereof; provided, however, that
the failure to make such notation with respect to any such Revolving Loan or
payment shall not limit or otherwise affect the obligations of the Borrower
under the Credit Agreement or this Revolving Note.
This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement dated as of August 28, 1998, among the Borrower, Tufco
Technologies, Inc., the other banks named therein and Bank, as agent for such
banks (the "Agent"), as amended by that First Amendment to Credit Agreement
dated as of December 18, 1998 and as further amended by that Second Amendment to
Credit Agreement dated as of the date hereof (such Credit Agreement, as the same
may be further amended or otherwise modified from time to time, being referred
to herein as the "Credit Agreement"), and evidences Revolving Loans made by the
Bank thereunder. The Credit Agreement, among other things, contains provisions
for acceleration of the maturity of this Revolving Note upon the happening of
certain stated events and for prepayments of Revolving Loans prior to the
maturity of this Revolving Note upon the terms and conditions specified in the
Credit Agreement. Capitalized terms used in this Revolving Note have the
respective meanings assigned to them in the Credit Agreement.
This Revolving Note shall be governed by and construed in accordance
with the laws of the State of Texas and the applicable laws of the United States
of America.
Except for any notices expressly required by the Loan Documents, the
Borrower and each surety, guarantor, endorser and other party ever liable for
payment of any sums of money payable on this Revolving Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
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protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace and all
other formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Revolving Note, all without
prejudice to the holder. The holder shall similarly have the right to deal in
any way, at any time, with one or more of the foregoing parties without notice
to any other party, and to grant any such party any extensions of time for
payment of any of said indebtedness, or to release any such party or to release
or substitute part or all of the collateral securing this Revolving Note, or to
grant any other indulgences or forbearances whatsoever, without notice to any
other party and without in any way affecting the personal liability of any party
hereunder.
This Revolving Note is in addition to and does not replace that certain
Revolving Note dated August 28, 1998 made by the Borrower in favor of the Bank.
TUFCO, L.P.
By: Tufco Tech, Inc.,
its general partner
By: /s/ GREG WILEMON
--------------------------
Name: GREG WILEMON
-------------------------
Title: CFO/COO
-----------------------
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REVOLVING NOTE
$1,500,000 July 10, 2000
FOR VALUE RECEIVED, the undersigned, TUFCO, L.P., a Delaware limited
partnership (the "Borrower"), hereby promises to pay to the order of Chase Bank
of Texas, National Association (the "Bank"), at the Principal Office of the
Agent, in lawful money of the United States of America and in immediately
available funds, the principal amount of ONE MILLION FIVE HUNDRED THOUSAND
DOLLARS ($1,500,000) or such other amount as shall equal the aggregate unpaid
principal amount of the Revolving Loans made by the Bank to the Borrower under
the Credit Agreement referred to below, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Revolving Loan, at such office, in like money and
funds, for the period commencing on the date of such Revolving Loan until such
Revolving Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The Borrower hereby authorizes the Bank to record in its records the
amount of each Revolving Loan and Type of Accounts established under each
Revolving Loan and all Continuations, Conversions and payments of principal in
respect thereof, which records shall, in the absence of manifest error,
constitute prima facie evidence of the accuracy thereof; provided, however, that
the failure to make such notation with respect to any such Revolving Loan or
payment shall not limit or otherwise affect the obligations of the Borrower
under the Credit Agreement or this Revolving Note.
This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement dated as of August 28, 1998, among the Borrower, Tufco
Technologies, Inc., the Bank, the other banks named therein and First Union
National Bank, as agent for such banks (the "Agent"), as amended by that First
Amendment to Credit Agreement dated as of December 18, 1998 and as further
amended by that Second Amendment to Credit Agreement dated as of the date hereof
(such Credit Agreement, as the same may be further amended or otherwise modified
from time to time, being referred to herein as the "Credit Agreement"), and
evidences Revolving Loans made by the Bank thereunder. The Credit Agreement,
among other things, contains provisions for acceleration of the maturity of this
Revolving Note upon the happening of certain stated events and for prepayments
of Revolving Loans prior to the maturity of this Revolving Note upon the terms
and conditions specified in the Credit Agreement. Capitalized terms used in this
Revolving Note have the respective meanings assigned to them in the Credit
Agreement.
This Revolving Note shall be governed by and construed in accordance
with the laws of the State of Texas and the applicable laws of the United States
of America.
Except for any notices expressly required by the Loan Documents, the
Borrower and each surety, guarantor, endorser and other party ever liable for
payment of any sums of money payable on this Revolving Note jointly and
severally waive notice, presentment, demand for payment, protest, notice of
protest and non-payment or dishonor, notice of acceleration, notice of intent to
accelerate, notice of intent to demand, diligence in collecting, grace and all
other
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formalities of any kind, and consent to all extensions without notice for
any period or periods of time and partial payments, before or after maturity,
and any impairment of any collateral securing this Revolving Note, all without
prejudice to the holder. The holder shall similarly have the right to deal in
any way, at any time, with one or more of the foregoing parties without notice
to any other party, and to grant any such party any extensions of time for
payment of any of said indebtedness, or to release any such party or to release
or substitute part or all of the collateral securing this Revolving Note, or to
grant any other indulgences or forbearances whatsoever, without notice to any
other party and without in any way affecting the personal liability of any party
hereunder.
This Revolving Note is in addition to and does not replace that certain
Revolving Note dated August 28, 1998 made by the Borrower in favor of the Bank.
TUFCO, L.P.
By: Tufco Tech, Inc.,
its general partner
By: /s/ GREG WILEMON
--------------------------
Name: GREG WILEMON
-------------------------
Title: CFO/COO
-----------------------
