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EXHIBIT 10.53
AMENDMENT AGREEMENT NO. 2
to that certain
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of December 18, 1995
This AMENDMENT AGREEMENT NO. 2 (the "Amendment"), dated as of October
21, 1996, is by and among (a) QUAKER FABRIC CORPORATION OF FALL RIVER, a
Massachusetts corporation (the "Company"), QUAKER TEXTILE CORPORATION, a
Massachusetts corporation ("Quaker Textile") and QUAKER FABRIC MEXICO, ▇.▇.▇▇
C.V., a Mexican corporation ("Quaker Mexico", and along with the Company and
Quaker Textile, the "Borrowers"), (b) QUAKER FABRIC CORPORATION, a Delaware
corporation (the "Parent"), (c) THE FIRST NATIONAL BANK OF BOSTON, FLEET
NATIONAL BANK and such other banking institutions that are or may become parties
to the Credit Agreement referred to below (collectively, the "Banks") and (d)
THE FIRST NATIONAL BANK OF BOSTON as agent for the Banks (the "Agent").
WHEREAS, the Borrowers, the Parent, the Banks and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of December 18,
1995 (as amended, restated, modified or supplemented and in effect from time to
time, the "Credit Agreement"), pursuant to which the Banks, upon certain terms
and conditions, have agreed to make loans to the Borrowers: and
WHEREAS, the Borrowers and the Parent have requested that the Banks
agree, and the Banks have agreed, on the terms and subject to the conditions set
forth herein, to amend certain provisions of the Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms which are used herein
without definition and which are defined in the Credit Agreement shall have the
same meanings herein as in the Credit Agreement.
SECTION 2. Amendment of Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by adding
the following new defined term in the appropriate place in the alphabetical
sequence:
"Export-Import Recourse Obligations" means Recourse Obligations
guaranteed by the Export-Import Bank of the United States on terms
acceptable to the Agent.
(b) Section 1.01 of the Credit Agreement is further amended by
inserting, in the
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second line of the definition of the term "Total Funded Debt" immediately
following the word "Debt" in subsection (a), the words "other than Export-Import
Recourse Obligations or those Recourse Obligations referred to in Section 5.10
(b)(ii) which are backed by other credit support acceptable to the Agent".
(c) Section 5.10 of the Credit Agreement is hereby amended by deleting
clause (ii) of paragraph (b) in its entirety and inserting the following new
clause (ii) in place thereof:
(ii) may sell, on a recourse basis, accounts receivable owing by
account debtors located outside of the United States, so long as such
sales are made for cash, the proceeds of such sales are used to prepay
the Advances and the aggregate amount of Recourse Obligations with
respect thereto does not exceed $3,000,000 at any time; provided,
however, in no event shall the aggregate amount of Recourse Obligations
referred to in the preceding clause which are neither Export-Import
Recourse Obligations or backed by other credit support acceptable to
the Agent exceed $1,000,000 at any time.
SECTION 3. Affirmation of the Company and the Parent. (a) The Company,
as guarantor of the Company guaranteed Obligations pursuant to Article IIB of
the Credit Agreement, hereby acknowledges that if has read and is aware of the
provisions of this Amendment. The company hereby reaffirms its absolute and
unconditional guaranty of the payment and performance of the Company Guaranteed
Obligations under the Credit Agreement as amended by this Amendment.
(b) The Parent, as guarantor of the Parent Guaranteed Obligations
pursuant to Article IIA of the Credit Agreement, hereby acknowledges that it has
read and is aware of the provisions of this Amendment. The parent hereby
reaffirms its absolute and unconditional guaranty of the payment and performance
of the Parent Guaranteed Obligations under the Credit Agreement as amended by
the Amendment.
SECTION 4. Representations and Warranties. Each of the Borrowers and
the Parent hereby represents and warrants to the Agent and the Banks as follows:
(a) Representations and Warranties in the Credit Agreement. The
representations and warranties of the Borrowers and the Parent contained in the
Credit Agreement were true and correct when made and continue to be true and
correct on and as of the date hereof as if made on the date hereof except to the
extent of changes resulting from transactions contemplated or permitted by the
Credit Agreement and to the extent that such representations and warranties
relate expressly to an earlier date. No Default or Event of Default has occurred
and is continuing.
(b) Corporate Existence and Standing; Authorization and Validity; No
Conflict; Government Consent. Each of the Borrowers and the Parent hereby
confirms that the representations and warranties of the Borrowers and the parent
contained in Section 4.01, 4.02 and 4.03 of the Credit Agreement are true and
correct on and as of the date hereof as if made on the date hereof. Each such
representation is hereby ratified, affirmed and
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incorporated herein by reference, with the same force and effect as if set forth
herein in its entirety.
SECTION 5. Effectiveness. This Amendment shall be effective upon the
execution and delivery of a fully executed copy of this Amendment to the Agent
by each of the Borrowers, the Parent, the Banks and the Agent.
SECTION 6. Miscellaneous Provisions. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) THIS AMENDMENT IS INTENDED TO TAKE EFFECT AS AN AGREEMENT UNDER
SEAL AND SHALL BE CONSTRUED ACCORDING TO AND GOVERNED BY THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS.
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) The Borrowers hereby agree to pay to the Agent, on demand, all
reasonable out-of-pocket costs and expenses incurred or sustained by the Agent
in connection with the preparation of this Amendment (including reasonable legal
fees.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an instrument under seal as of the date first written above.
QUAKER FABRIC CORPORATION
OF FALL RIVER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title:
QUAKER TEXTILE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title:
QUAKER FABRIC MEXICO, S.A. de C.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title:
QUAKER FABRIC CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title:
THE FIRST NATIONAL BANK
OF BOSTON, as Agent, as Issuing
Bank and as a Bank
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Director
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ BANK
By: /s/
----------------------------------------
Title: V. Pres.
By: /s/
----------------------------------------
Title: AVP
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CORPORATE CERTIFICATE
QUAKER FABRIC MEXICO, S.A. DE C.V.
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the duly elected and acting Secretary of Quaker
Fabric Mexico, S.A. de C.V., a Mexico corporation (the "Company"),
DO HEREBY CERTIFY:
1. That the Company is a duly incorporated and existing corporation in
good standing under the laws of the country first above mentioned; and
2. That the resolutions which were duly and regularly adopted by Unanimous
Written consent of the Board of Directors of the Company dated as of
October 21, 1996 (attached as Exhibit A) are true and correct, and that
the same are new in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
of the Company this 21st of October, 1996.
(CORPORATE SEAL)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
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EXHIBIT A
QUAKER FABRIC MEXICO, S.A. DE C.V.
RESOLVED: That the Board of Directors of the Company has determined that
it is in the best interests of the Company for the Company to
amend that certain $50.0 million Amended and Restated Credit
Agreement (the "Credit Agreement") with The First National
Bank of Boston ("FNB") and Fleet National Bank as the Banks
(as that term is defined in the Credit Agreement) as set forth
in Exhibit A attached; and further
RESOLVED: That the President, Vice President - Finance and Treasurer,
and the Vice President and Secretary of the company (the
"Authorized Officers") hereby are, and each of them hereby is,
reauthorized in the name of and on behalf of the Company; (I)
to negotiate, agree to, enter into, execute, seal,
acknowledge, deliver, and cause the Company to perform in
accordance with the terms of the Credit Agreement, as twice
amended; (ii) to affix such signatures and the corporate seals
of the Company as may be required to execute and deliver to
the appropriate person or persons such documents, agreements,
and instruments as may be necessary or advisable to implement
the transactions contemplated by the foregoing resolutions in
such form as the Authorized Officers executing the same shall
approve, such approval to be conclusively evidenced by the
signature thereon of the Authorized Officer; and (iii) to take
such other actions as such officer shall deem in the exercise
of his or her judgment to be necessary or advisable to
implement the transactions contemplated by the foregoing
resolutions the taking of such actions to be conclusive
evidence that he or she was duly authorized thereunto by the
terms of this resolution; and further
RESOLVED: That the Secretary of the Company is hereby directed to
certify, under the corporate seal, a copy of these resolutions
and, in her capacity as a Secretary of the Company, to certify
the names of the present incumbents of the offices of the
Company hereinbefore referred to; and to further certify from
time to time hereafter the ▇▇▇▇▇ of any successors to the
present incumbents of said offices, or changes in the
Authorized Officers authorized to act in the premises,
together with specimens of their respective signatures. The
Banks and the Agent are hereby authorized, empowered and
directed to rely upon any such certificate unless and until
certificate of the Company under its corporate seal, duly
attested; and that until notice is received the Banks and the
Agent are authorized to act in pursuance of these resolutions,
and shall be indemnified against any loss
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suffered, or liability incurred by them, or any of them, in
continuing to act in pursuance of these resolutions even
though these resolutions may have been changed; and further
RESOLVED: That all prior actions taken by the Authorized Officers and
each of them, and by and appropriate officer or employee of
the company designated by and Authorized Officer, with respect
to the matters referred to in the preceding resolutions, are
hereby ratified and approved in all respects.
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CORPORATE CERTIFICATE
QUAKER TEXTILE CORPORATION
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the duly elected and action Secretary of Quaker Textile
Corporation, a Massachusetts corporation (the "Company"),
DO HEREBY CERTIFY:
1. That the Company is a duly incorporated and existing corporation in
good standing under the laws of the country first above mentioned; and
2. That the resolutions which were duly and regularly adopted by Unanimous
Written consent of the Board of Directors of the Company dated as of
October 21, 1996 (attached as Exhibit A) are true and correct, and that
the same are now in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
of the Company this 21st of October, 1996.
(CORPORATE SEAL)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
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EXHIBIT A
QUAKER TEXTILE CORPORATION
RESOLVED: That the Board of Directors of the Company has determined that
it is in the best interests of the Company for the Company to
amend that certain $50.0 million Amended and Restated Credit
Agreement (the "Credit Agreement") with The First National
Bank of Boston ("FNB") and Fleet National Bank as the Banks
(as that term is defined in the Credit Agreement) as set forth
in Exhibit A attached; and further
RESOLVED: That the President, Vice President - Finance and Treasurer,
and the vice President and Secretary of the company (the
"Authorized Officers") hereby are, and each of them hereby is,
reauthorized in the name of and on behalf of the Company; (i)
to negotiate, agree to, enter into, execute, seal,
acknowledge, deliver, and cause the Company to perform in
accordance with the terms of the Credit Agreement, as twice
amended; (ii) to affix such signatures and the corporate seals
of the Company as may be required to execute and deliver to
the appropriate person or persons such documents, agreements,
and instruments as may be necessary or advisable to implement
the transactions contemplated by the foregoing resolutions in
such form as the Authorized Officers executing the same shall
approve, such approval to be conclusively evidenced by the
signature thereon of the Authorized Officer; and (iii) to take
such other actions as such officer shall deem in the exercise
of his or her judgment to be necessary or advisable to
implement the transactions contemplated by the foregoing
resolutions the taking of such actions to be conclusive
evidence that he or she was duly authorized thereunto by the
terms of this resolution; and further
RESOLVED: That the Secretary of the Company is hereby directed to
certify, under the corporate seal, a copy of these resolutions
and, in her capacity as a Secretary of the Company, to certify
the names of the present incumbents of the offices of the
Company hereinbefore referred to; and to further certify from
time to time hereafter the ▇▇▇▇▇ of any successors to the
present incumbents of said offices, or changes in the
Authorized Officers authorized to act in the premises,
together with specimens of their respective signatures. The
Banks and the Agent are hereby authorized, empowered and
directed to rely upon any such certificate unless and until
certificate of the Company under its corporate seal, duly
attested; and that
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until notice is received the Banks and the Agent are
authorized to act in pursuance of these resolutions, and shall
be indemnified against any loss suffered, or liability
incurred by them, or any of them, in continuing to act in
pursuance of these resolutions even though these resolutions
may have been changed; and further
RESOLVED: That all prior actions taken by the Authorized Officers and
each of them, and by and appropriate officer or employee of
the company designated by and Authorized Officer, with respect
to the matters referred to in the preceding resolutions, are
hereby ratified and approved in all respects.
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CORPORATE CERTIFICATE
QUAKER FABRIC CORPORATION OF FALL RIVER
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the duly elected and action Secretary of Quaker Fabric
Corporation of Fall River, a Massachusetts corporation (the "Company"),
DO HEREBY CERTIFY:
That the Company is a duly incorporated and existing corporation in good
standing under the laws of the country first above mentioned; and
That the resolutions which were duly and regularly adopted by Unanimous Written
consent of the Board of Directors of the Company dated as of October 21, 1996
(attached as Exhibit A) are true and correct, and that the same are new in full
force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
of the Company this 21st day of October, 1996.
(CORPORATE SEAL)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
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EXHIBIT A
QUAKER FABRIC CORPORATION OF FALL RIVER
RESOLVED: That the Board of Directors of the Company has determined that
it is in the best interests of the Company for the Company to
amend that certain $50.0 million Amended and Restated Credit
Agreement (the "Credit Agreement") with The First National
Bank of Boston ("FNB") and Fleet National Bank as the Banks
(as that term is defined in the Credit Agreement) as set forth
in Exhibit A attached; and further
RESOLVED: That, to induce the Banks to provide financing pursuant to
the Credit Agreement and for other good and valuable
consideration, it is in the best interests of the Company to
reaffirm the guaranty of the obligations of Quaker Textile
Corporation and Quaker Fabric Mexico S.A. de C.V. under the
Credit Agreement; and further
RESOLVED: That the President, Vice President - Finance and Treasurer,
and the Vice President and Secretary of the company (the
"Authorized Officers") hereby are, and each of them hereby is,
reauthorized in the name of and on behalf of the Company; (i)
to negotiate, agree to, enter into, execute, seal,
acknowledge, deliver, and cause the Company to perform in
accordance with the terms of the Credit Agreement, as twice
amended; (ii) to affix such signatures and the corporate seals
of the Company as may be required to execute and deliver to
the appropriate person or persons such documents, agreements,
and instruments as may be necessary or advisable to implement
the transactions contemplated by the foregoing resolutions in
such form as the Authorized Officers executing the same shall
approve, such approval to be conclusively evidenced by the
signature thereon of the Authorized Officer; and (iii) to take
such other actions as such officer shall deem in the exercise
of his or her judgment to be necessary or advisable to
implement the transactions contemplated by the foregoing
resolutions the taking of such actions to be conclusive
evidence that he or she was duly authorized thereunto by the
terms of this resolution; and further
RESOLVED: That the Secretary of the Company is hereby directed to
certify, under the corporate seal, a copy of these resolutions
and, in her capacity as a Secretary of the Company, to certify
the names of the present incumbents of the offices of the
Company hereinbefore referred to; and to further certify from
time to time hereafter the ▇▇▇▇▇ of any successors to the
present
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incumbents of said offices, or changes in the Authorized
Officers authorized to act in the premises, together with
specimens of their respective signatures. The Banks and the
Agent are hereby authorized, empowered and directed to rely
upon any such certificate unless and until certificate of the
Company under its corporate seal, duly attested; and that
until notice is received the Banks and the Agent are
authorized to act in pursuance of these resolutions, and shall
be indemnified against any loss suffered, or liability
incurred by them, or any of them, in continuing to act in
pursuance of these resolutions even though these resolutions
may have been changed; and further
RESOLVED: That all prior actions taken by the Authorized Officers and
each of them, and by and appropriate officer or employee of
the company designated by and Authorized Officer, with respect
to the matters referred to in the preceding resolutions, are
hereby ratified and approved in all respects.
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CORPORATE CERTIFICATE
QUAKER FABRIC CORPORATION
I, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the duly elected and action Secretary of Quaker Fabric
Corporation, a Delaware corporation (the "Company"),
DO HEREBY CERTIFY:
1. That the Company is a duly incorporated and existing corporation in
good standing under the laws of the country first above mentioned; and
2. That the resolutions which were duly and regularly adopted by Unanimous
Written consent of the Board of Directors of the Company dated as of
October 21, 1996 (attached as Exhibit A) are true and correct, and that
the same are now in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal
of the Company this 21st day of October, 1996.
(CORPORATE SEAL)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
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EXHIBIT A
QUAKER FABRIC CORPORATION
RESOLVED: That the Board of Directors of the Company has determined that
it is in the best interests of the Company for the Company to
amend that certain $50.0 million Amended and Restated Credit
Agreement (the "Credit Agreement") with The First National
Bank of Boston ("FNB") and Fleet National Bank as the Banks
(as that term is defined in the Credit Agreement) as set forth
in Exhibit A attached; and further
RESOLVED: That, to induce the Banks to provide financing pursuant to
the Credit Agreement and for other good and valuable
consideration, it is in the best interests of the Company to
reaffirm the guaranty of the obligations of QFR, Quaker
Textile Corporation, and Quaker Fabric Mexico S.A. de C.V.
under the Credit Agreement; and further
RESOLVED: That the President, Vice President - Finance and Treasurer,
and the Vice President and Secretary of the company (the
"Authorized Officers") hereby are, and each of them hereby is,
reauthorized in the name of and on behalf of the Company; (I)
to negotiate, agree to, enter into, execute, seal,
acknowledge, deliver, and cause the Company to perform in
accordance with the terms of the Credit Agreement, as twice
amended; (ii) to affix such signatures and the corporate seals
of the Company as may be required to execute and deliver to
the appropriate person or persons such documents, agreements,
and instruments as may be necessary or advisable to implement
the transactions contemplated by the foregoing resolutions in
such form as the Authorized Officers executing the same shall
approve, such approval to be conclusively evidenced by the
signature thereon of the Authorized Officer; and (iii) to take
such other actions as such officer shall deem in the exercise
of his or her judgment to be necessary or advisable to
implement the transactions contemplated by the foregoing
resolutions the taking of such actions to be conclusive
evidence that he or she was duly authorized thereunto by the
terms of this resolution; and further
RESOLVED: That the Secretary of the Company is hereby directed to
certify, under the corporate seal, a copy of these resolutions
and, in her capacity as a Secretary of the Company, to certify
the names of the present incumbents of the offices of the
Company hereinbefore referred to; and to further certify from
time to time hereafter the ▇▇▇▇▇ of
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any successors to the present incumbents of said offices, or
changes in the Authorized Officers authorized to act in the
premises, together with specimens of their respective
signatures. The Banks and the Agent are hereby authorized,
empowered and directed to rely upon any such certificate
unless and until certificate of the Company under its
corporate seal, duly attested; and that until notice is
received the Banks and the Agent are authorized to act in
pursuance of these resolutions, and shall be indemnified
against any loss suffered, or liability incurred by them, or
any of them, in continuing to act in pursuance of these
resolutions even though these resolutions may have been
changed; and further
RESOLVED: That all prior actions taken by the Authorized Officers and
each of them, and by and appropriate officer or employee of
the company designated by and Authorized Officer, with respect
to the matters referred to in the preceding resolutions, are
hereby ratified and approved in all respects.