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EXHIBIT 10.10.1
SECOND AMENDMENT TO
AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
Preamble. THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AND SECURITY
AGREEMENT (hereinafter, together with all schedules and exhibits hereto, and
any supplements, additions, modifications or amendments thereto made from time
to time called the "Second Amendment"), dated as of September 1, 2000 (the
"Second Amendment Date"), is made by and among THOMASTON MILLS, INC., a Georgia
corporation (hereinafter, together with its successors and permitted assigns
called the "Borrower"); THOMASTON MILLS FSC, INC., a U.S. Virgin islands
corporation (hereafter, together with its successors and permitted assigns,
called "FSC"); BANK OF AMERICA, N.A., f/k/a NATIONSBANK, N.A., a national
banking association (hereinafter, together with its successors and permitted
assigns, called "BAC"; BAC, together with SunTrust and Wachovia, each as
hereinafter defined, called collectively, the "Lenders" and, individually, a
"Lender"); SUNTRUST BANK, f/k/a SUNTRUST BANK, ATLANTA, a Georgia banking
corporation (hereinafter, together with its successors and permitted assigns,
called "SunTrust"), individually and as "Administrative Agent" and "Syndication
Agent" (as those terms are defined in the Credit Agreement defined below), on
behalf of the Lenders; WACHOVIA BANK, N.A., a national banking association
(hereinafter, together with its successors and permitted assigns, called
"Wachovia"), individually and as "Documentation Agent" and "Collateral Agent"
(as those terms are defined in the Credit Agreement defined below), on behalf
of the Lenders; and SUNTRUST EQUITABLE SECURITIES CORPORATION, a Tennessee
corporation (hereinafter, together with its successors and permitted assigns
called "SunTrust Equitable Securities"), as "Arranger" and "Lead Manager" (as
those terms are defined in the Credit Agreement defined below), on behalf of
the Lenders.
The Borrower, FSC, SunTrust (in its respective capacities
described above), Wachovia (in its respective capacities described above), BAC
as a Lender and SunTrust Equitable Securities (in its respective capacities
described above) (the foregoing parties herein sometimes collectively called
the "Parties" and individually called a "Party") are Parties to a certain
Amended and Restated Credit and Security Agreement, dated as of July 27, 1999
(which is, as amended to date, called herein the "Credit Agreement"), pursuant
to which, among other things, the Lenders agreed to extend credit and other
financial accommodations to the Borrower.
The Parties have agreed to modify and amend the Credit
Agreement in the manner, and subject to the terms and conditions, set forth
hereinbelow.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the Parties, each intending to be legally bound, hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used in this Second
Amendment and not defined herein are defined in the Credit Agreement.
SECTION 2. Amendments to Credit Agreement.
(a) Section 5.20(a) of the Credit Agreement (Minimum EBITDA) is
hereby amended by changing the table presently set forth
therein to read, instead, as follows:
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<TABLE>
<CAPTION>
As of the Fiscal
Month Ended Year-to-Date
Closest to: EBITDA
--------------------------------------------------
<S> <C>
July 31, 2000 $ 333,000
--------------------------------------------------
August 31, 2000 $ 352,000
--------------------------------------------------
September 30, 2000 $ 684,000
--------------------------------------------------
October 31, 2000 $1,077,000
--------------------------------------------------
November 30, 2000 $1,315,000
--------------------------------------------------
December 31, 2000 $1,450,000
--------------------------------------------------
January 31, 2001 $1,885,000
--------------------------------------------------
February 28, 2001 $2,353,000
--------------------------------------------------
March 31, 2001 $3,186,000
--------------------------------------------------
April 30, 2001 $3,948,000
--------------------------------------------------
May 31, 2001 $4,654,000
--------------------------------------------------
June 30, 2001 $5,415,000
--------------------------------------------------
</TABLE>
(b) Section 5.20(b) of the Credit Agreement (Tangible Net Worth) is hereby
amended by changing the table set forth therein to read, instead, as
follows:
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<TABLE>
<CAPTION>
As of the Fiscal
Month Ended Year-to-Date
Closest to: Tangible Net Worth
-------------------------------------------------
<S> <C>
July 31, 2000 $17,905,000
-------------------------------------------------
August 31, 2000 $16,705,000
-------------------------------------------------
September 30, 2000 $15,557,000
-------------------------------------------------
October 31, 2000 $14,745,000
-------------------------------------------------
November 30, 2000 $13,771,000
-------------------------------------------------
December 31, 2000 $12,372,000
-------------------------------------------------
January 31, 2001 $11,563,000
-------------------------------------------------
February 28, 2001 $10,800,000
-------------------------------------------------
March 31, 2001 $10,117,000
-------------------------------------------------
April 30, 2001 $ 9,657,000
-------------------------------------------------
May 31, 2001 $ 9,124,000
-------------------------------------------------
June 30, 2001 $ 8,375,000
-------------------------------------------------
</TABLE>
(c) In connection with the foregoing modifications to Sections 5.20(a) and
5.20(b) of the Credit Agreement, any Event of Default heretofore
existing in respect of Borrower's non-compliance with said Sections as
of, or for the fiscal period(s) ended, May 31, 2000 and June 30, 2000
(in respect of Section 5.20(a)) or June 30, 2000 (in respect of
Section 5.20(b)), are hereby waived by the Lenders.
(d) Section 5.20 is further amended by changing the proviso at the end of
Section 5.20(b), which pertains to all of Section 5.20, to read,
instead, as follows:
; provided, however, that, based upon Borrower's Business
Plan delivered to the Lenders pursuant to SECTION 5.01(o),
the Required Lenders shall establish the monthly minimum
EBITDA and Tangible Net Worth covenants for each Fiscal Year
after the Fiscal Year ending closest to June 30, 2001 using
the same methodology as utilized for the Fiscal Year ending
closest to June 30, 2001, and the covenants shall be
presented to Borrower for its approval, which approval shall
not be unreasonably withheld. In the event Borrower does not
approve the proposed covenants, then the Required Lenders
shall establish such
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covenants, in their reasonable discretion, based upon
Borrower's Business Plan for the applicable Fiscal Year;
provided, however, that with respect to the minimum Tangible
Net Worth covenant set forth in SECTION 5.20(b), prior to the
date such covenant is established for Fiscal Months
subsequent to June 30, 2001, Borrower shall not fail to
maintain Tangible Net Worth of at least $8,375,000 as of each
Fiscal Month-end.
SECTION 3. Representations and Warranties of Obligors. The Borrower
and FSC, each severally, represents and warrants to the other Parties that:
(a) It has the power and authority to enter into and to perform
this Second Amendment, to execute and deliver all documents
relating to this Second Amendment, and or incur the
obligations provided for in this Second Amendment, all of
which have been duly authorized and approved in accordance
with its corporate documents;
(b) This Second Amendment, together with all documents executed
pursuant hereto, shall constitute when executed its valid and
legally binding obligations in accordance with their
respective terms;
(c) All representations and warranties made by it in the Credit
Agreement are true and correct as of the date hereof, with
the same force and effect as if all representations and
warranties were fully set forth herein;
(d) Its Obligations under the Credit Documents remain valid and
enforceable Obligations, and the execution and delivery of
this Second Amendment and the other documents executed in
connection herewith shall not be construed as a novation of
the Credit Agreement or any of the other Credit Documents;
(e) As of the Second Amendment Date, it has no offsets, defenses
or counterclaims against the payment of any of the
Obligations; and
(f) As of the Second Amendment Date, and after giving effect to
the terms hereof, no Default Condition or Event of Default
exists.
SECTION 4. Waiver of Claims. As a specific inducement to the other
Parties without which the Borrower and FSC acknowledge the other Parties would
not enter into this Second Amendment and the other documents executed in
connection herewith, each of the Borrower and FSC hereby waives any and all
claims that it may have against any other Party, as of the date hereof, arising
out of or relating to the Credit Agreement or any other Credit Document whether
sounding in contract, tort, or any other basis.
SECTION 5. Conditions of Effectiveness. This Second Amendment shall
become effective when, and only when, the Documentation Agent shall have
received this Second Amendment, executed by each Party, at which time the
amendments set forth in Section 2 above shall become effective, retroactive to
the Second Amendment Date.
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SECTION 6. Miscellaneous.
6.1 Reference to Credit Agreement. Upon the
effectiveness of this Credit Agreement, each reference in the Credit Agreement
to "this Credit Agreement" and each reference in the other Credit Documents to
the Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby.
6.2 Effect on Credit Documents. Except as specifically
amended above, all terms of the Credit Agreement and all other Credit Documents
shall remain in full force and effect and are hereby ratified and confirmed.
6.3 No Waiver. The execution, delivery and effectiveness
of this Second Amendment shall not operate as a waiver of any right, power, or
remedy of Lenders or the Agents under any of the Credit Documents, nor
constitute a waiver of any provision of any of the Credit Documents.
6.4 Costs, Expenses and Taxes. The Borrower agrees to
pay on demand all costs and expenses of the Agents and the Lenders in
connection with the preparation, reproduction, execution, and delivery of this
Second Amendment and the other instruments and documents to be delivered
hereunder, including the reasonable fees and out-of-pocket expenses of counsel
for the Agent and the Lenders with respect hereto.
6.5 No Novation. Nothing contained herein intended, or
shall be construed, to constitute a novation to the Credit Agreement or any
Credit Document.
6.6 Governing Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of Georgia,
without giving affect to conflict of law provisions.
6.7 Counterparts. This Second Amendment may be executed
in counterparts. Each counterpart shall bind the Party or Parties executing
same. All counterparts, taken together, shall constitute one and the same
agreement.
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IN WITNESS WHEREOF, the Parties have caused this Second
Amendment to be duly executed, under seal, by their respective authorized
officers as of the day and year first above written.
"BORROWER"
THOMASTON MILLS, INC. (SEAL)
By: /s/
---------------------------------------
Neil H. Hightower
President and Chief Executive Officer
Attest: /s/
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A. William Ott
Vice President-Finance
"SUBSIDIARY GUARANTOR"
THOMASTON MILLS FSC, INC. (SEAL)
By: /s/
---------------------------------------
Neil H. Hightower
President and Chief Executive Officer
Attest: /s/
-------------------------------------
A. William Ott
Vice President-Finance
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SUNTRUST BANK, (SEAL)
as Administrative Agent and
Syndication Agent, as a Lender,
and as Agent for SunTrust Equitable
Securities Corporation
By: /s/
---------------------------------------
Name:
Title:
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WACHOVIA BANK, N.A., (SEAL)
as Documentation Agent,
Collateral Agent, and as a Lender
By: /s/
---------------------------------------
Name:
Title:
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BANK OF AMERICA, N.A., (SEAL)
as a Lender
By: /s/
--------------------------------------
Name:
Title:
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