EXHIBIT 4.1
[EXECUTION COPY]
AMENDMENT AND WAIVER UNDER NOTE AGREEMENT
THIS AMENDMENT AND WAIVER UNDER NOTE AGREEMENT (this "AMENDMENT") is
dated as of the January 18, 2002, among XXXXXXXX XXXXX, INC. (the "COMPANY") and
each of the Purchasers a party hereto (collectively, the "PURCHASERS");
PRELIMINARY STATEMENTS
1. The Company and each of the Purchasers entered into an Amended and
Restated Note Purchase Agreement dated November 6, 2000 (collectively, as
amended through the date hereof, the "NOTE AGREEMENTS").
2. Under the Amendment and Waiver under Note Agreement, dated as of
August 13, 2001 (the "AUGUST AMENDMENT AND WAIVER") as extended by the Amendment
and Waiver, dated as of October 31, 2001, as further extended and supplemented
by the Amendment and Waiver, dated as of December 17, 2001 (the "DECEMBER
AMENDMENT AND WAIVER"), the Purchasers agreed to waive certain Events of Default
and as further extended and supplemented by the Amendment and Waiver, dated as
of January 7, 2002 (the "JANUARY AMENDMENT AND WAIVER"), which waiver will
expire on January 18, 2002;
3. The Company has requested that the Purchasers extend such waiver;
4. The Purchasers are willing to extend such waiver, subject to the
satisfaction of conditions and terms set forth herein, by entering into this
Amendment and Waiver.
NOW, THEREFORE, for and in consideration of the above premises and
other good and valuable consideration, the receipt and sufficiency of which
hereby is acknowledged by the parties hereto, the Company and the Purchasers
hereby covenant and agree as follows:
1. DEFINITIONS. Unless otherwise specifically defined herein, each
term used herein which is defined in the Note Agreements shall have the meaning
assigned to such term in the Note Agreements.
2. WAIVER. Effective upon satisfaction of the conditions to
effectiveness set forth in Section 17 hereof, and subject to the other terms and
conditions set forth herein, each of the Purchasers agrees (i) to extend to
February 15, 2002 the date by which a Note Agreement Amendment (as defined in
the August Amendment and Waiver) must, as required by Section 8 of the August
Amendment and Waiver, by Section 9 of the December Amendment and Waiver and by
Section 9 of the January Amendment and Waiver, be executed and become effective
and (ii) to extend to February 15, 2002 the waiver provided in Section 2 of the
August Amendment and Waiver, Section 2 of the December Amendment and Waiver and
Section 2 of the January Amendment and Waiver.
3. PAYMENT OF INTEREST. The Company and the Noteholders agree that
(i) the interest payment of $891,100.85 due on December 31, 2001 shall be
deferred and shall be due and payable on February 15, 2002; (ii) payment of
interest at 7.91% shall be due on January 31, 2002, provided, however, that such
payment shall be deferred until, and payable on, February 15, 2002, (iii) the
balance of unpaid interest accruing under the Notes at the Applicable Rate from
May 16, 2001 through February 15, 2002 shall be due and payable not later than
11:00 a.m. on February 15, 2002 and (iv) the grace period of five Business Days
set forth in Section 11(b) of the Note Agreements shall not be applicable to the
payments required under clauses (i) and (ii) of this Section 3 and no grace
period shall be afforded to the Company with respect thereto.
4. AMENDMENT TO SECTION 10.19. Section 10.19 of the Note Agreements
is amended by deleting the date "January 18, 2002" where such date appears
therein and replacing such date with "February 15, 2002."
5. AMENDMENT OF SECTION 11. Section 11 of each Note Agreement is
hereby amended by deleting the period at the end of clause (p) and inserting ";
or" and adding a new clause (q) thereof as follows:
"(q) the Company shall fail to observe or perform any of the covenants
contained in the letter agreement dated January 18, 2002; or"
6. AMENDMENT OF SCHEDULE B. Schedule B to each of the Note Agreements
is amended by deleting "January 18, 2002" in the definition of "Reserved Asset
Disposition Proceeds" and inserting in lieu thereof "February 15, 2002".
7. RESTATEMENT OF REPRESENTATIONS AND WARRANTIES. The Company hereby
restates and renews each and every other representation and warranty heretofore
made by it in the Note Agreements as fully as if made on the date hereof (after
giving effect to the amendments and extension of waiver contained herein) and
with specific reference to this Amendment and all other documents executed
and/or delivered in connection herewith.
8. EFFECT OF AMENDMENT AND WAIVER. Except as set forth expressly
hereinabove, all terms of each of the Note Agreements shall be and remain in
full force and effect, and shall constitute the legal, valid, binding and
enforceable obligations of the Company. The waiver extended in Section 2 of this
Amendment shall continue to be limited in the manner described in Section 7 of
the August Amendment and Waiver.
9. CONDITION SUBSEQUENT; EXPIRATION OF WAIVER. Notwithstanding
anything to the contrary contained herein, (i) in the event a Note Agreement
Amendment has not been executed and become effective on or before February 15,
2002 or (ii) in the event a detailed term sheet with respect to a long-term
restructuring proposal in form and substance satisfactory to the Noteholders has
not been delivered by January 23, 2002, then the extension of waiver made
pursuant to Section 2 hereof for the September 2001 Fiscal Quarter and the
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December 2001 Fiscal Quarter shall expire and become void and of no further
force or effect on such date, and the provisions of the Fixed Charge Coverage
Covenant, the Leverage Covenant, the Net Worth Covenant and the EBITDA Covenant
shall be strictly enforceable by each Purchaser for the September 2001 Fiscal
Quarter and the December 2001 Fiscal Quarter to the same extent as if no waiver
had ever been given pursuant hereto.
10. REAFFIRMATION; NO NOVATION OR MUTUAL DEPARTURE. The Company
expressly acknowledges and agrees that: (i) there has not been, and this
Amendment and Waiver does not constitute or establish, a novation with respect
to any Note or Note Agreement, or a mutual departure from the strict terms,
provisions and conditions thereof, other than as provided herein; and (ii)
nothing in this Amendment and Waiver shall affect or limit a Purchaser's right
to demand payment of liabilities owing from the Company to such Purchaser under,
or to demand strict performance of the terms, provisions and conditions of, its
respective Note Agreement, to exercise any and all rights, powers and remedies
under such Note Agreement or at law or in equity, or to do any and all of the
foregoing, immediately at any time after the occurrence of a Default or an Event
of Default which is not waived pursuant to this Amendment and Waiver, pursuant
to such Note Agreement, including, without limitation, as a result of the
circumstances described in Section 8 hereof.
11. RATIFICATION. Except as expressly contemplated or provided
herein, the Company hereby restates, ratifies and reaffirms each and every term,
covenant and condition set forth in the Note Agreements effective as of the date
hereof.
12. COUNTERPARTS. This Amendment and Waiver may be executed in any
number of counterparts and by different parties hereto in separate counterparts
and transmitted by facsimile to the other parties, each of which when so
executed and delivered by facsimile shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
instrument.
13. SECTION REFERENCES. Section titles and references used in this
Amendment and Waiver shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreements among the parties hereto
evidenced hereby.
14. NO DEFAULT/NO CLAIM. To induce the Purchasers to enter into this
Amendment and Waiver, the Company hereby acknowledges and agrees that, as of the
date hereof, and after giving effect to the terms hereof, there exists (i) no
Default or Event of Default and (ii) no right of offset, defense, counterclaim,
claim or objection in favor of the Company arising out of or with respect to any
of the Notes or other obligations of the Company owed to a Purchaser under its
respective Note Agreement.
15. FURTHER ASSURANCES. The Company agrees to take such further
actions as any Purchaser shall reasonably request in connection herewith to
evidence the waiver herein contained.
16. GOVERNING LAW. This Amendment and Waiver shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
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17. CONDITIONS PRECEDENT. This Amendment and Waiver shall become
effective only upon: (i) execution and delivery (including by facsimile) of this
Amendment and Waiver by the Company and all the holders; (ii) execution and
delivery (including by facsimile) of the Consent and Reaffirmation of Guarantors
at the end hereof by the Guarantors; (iii) execution and delivery (including by
facsimile) of the Ninth Amendment to Intercreditor Agreement in substantially
the form of Annex 1 to the Bank Amendment; (iv) execution and delivery
(including by facsimile) of the Tenth Amendment to and Waiver under Credit
Agreement (the "BANK AMENDMENT"); (v) execution and delivery of the letter dated
January 18, 2002 by each of the parties thereto; and (vi) payment of outstanding
fees and expenses of Purchasers' counsel, King & Spalding.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment and Waiver to be duly executed, under seal, by its duly authorized
officer as of the day and year first above written.
XXXXXXXX XXXXX, INC.
By: /s/ Xxxx X. Xxxx
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Title: Treasurer
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THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxx X. Xxxxx
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Title: Vice President
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THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
By: American General Investment
Management, L.P.
By: American General Investment Managing
Corporation, its general Partner
By: /s/ Xxxxxxx X. XxXxx
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Title: Senior Vice President
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MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company, Inc.,
as Investment Advisor
By: /s/ Xxxxxx X. Xxxx
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Title: Counsel
CM LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company, Inc.,
as Investment Advisor
By: /s/ Xxxxxx X. Xxxx
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Title: Counsel
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CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing
Amendment and Waiver Under Note Agreement, dated as of January 18, 2002 (the
"AMENDMENT AND WAIVER"), (ii) consents to the execution and delivery of the
Amendment and Waiver by the parties thereto and acknowledges the limitation with
respect to such Amendment and Waiver, as set forth therein and (iii) reaffirms
all of its obligations and covenants under each of the Guaranty Agreements,
dated as of November 6, 2000 (each, a "GUARANTY"), executed by it in favor of
each of the Purchasers (as defined in the Amendment and Waiver), and agrees that
none of such obligations and covenants shall be affected by the execution and
delivery of the Amendment and Waiver, (iv) acknowledges and agrees that there
exists no right of offset, defense, counterclaim, claim or objection in favor of
it arising out of or with respect to any Note (as defined in each Guaranty) or
other obligations of such Guarantor (as defined in each Guaranty) owed to any
Purchaser under any Note Agreement (as defined in each Guaranty), any Guaranty
or any document delivered in connection therewith, and (v) agrees to take such
further actions as any Purchasers shall reasonably require in connection with
the Amendment and Waiver and to evidence the amendments and waivers contained
therein. This Consent and Reaffirmation may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
GOLD XXXXX, Inc., a Delaware corporation (SEAL)
RASCHEL FASHION INTERKNITTING, LTD.,
a New York corporation (SEAL)
CURTAINS AND FABRICS, INC.,
a New York corporation (SEAL)
GFD FABRICS, INC.,
a North Carolina corporation (SEAL)
GFD SERVICES, INC.,
a Delaware corporation (SEAL)
MEXICAN INDUSTRIES OF NORTH
CAROLINA, INC.,
a North Carolina corporation (SEAL)
XXXXXXX LACES, LTD.,
a New York corporation (SEAL)
ADVISORY RESEARCH SERVICES, INC.
a North Carolina corporation (SEAL)
XXXXXXXX XXXXX (MICHIGAN), INC.
a Michigan corporation (SEAL)
GUILFORD AIRMONT, INC.,
a North Carolina corporation (SEAL)
GOLD XXXXX FARMS, INC.,
a New York corporation (SEAL)
GMI COMPUTER SALES, INC.
a North Carolina corporation (SEAL)
each as a Guarantor
By: /s/ Xxxx X. Xxxx
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Title: Vice President
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
as a Guarantor
By: Advisory Research Services, Inc.
a General Partner
By: /s/ Xxxx X. Xxxx
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Title: Vice President
