EXHIBIT 10(c)(c)
AMENDMENT NO. 1
Dated as of December 17, 2003
This AMENDMENT NO. 1 (the "Amendment") is entered into by and among
Xxxxxxxx Xxxxx, Inc. (the "Company") as Borrower, the Guarantors referred to in
the Credit Agreement (as defined below), the Lenders referred to in the Credit
Agreement and Wachovia Bank, National Association, as Administrative Agent,
Collateral Agent and the Issuing Bank (in such capacity, the "Agent").
PRELIMINARY STATEMENT
A. The Company, the Guarantors, the Lenders and the
Agent have entered into that certain Credit, Security, Guaranty and Pledge
Agreement dated as of October 1, 2002 (as amended, restated, modified and waived
from time to time, the "Credit Agreement"; the terms defined therein being used
herein as therein defined unless otherwise defined herein).
B. The Company has informed the Agent and the Lenders of
its intention to sell the capital stock of one or more of the following wholly
owned subsidiaries: (i) Grupo Ambar, S.A. de C.V., (ii) American Textil, S.A. de
C.V., and (iii) Servicios Corporativos Ambar, S.A. de C.V (such transaction, the
"Sale").
C. The Company and the Guarantors have requested, and
the Lenders and the Agent have agreed, to amend the Credit Agreement as
hereinafter set forth to allow, among other things, for the sale of such
entities.
SECTION 1. Amendments to Credit Agreement. Upon the occurrence
of the First Amendment Effective Date (as defined herein), the Credit Agreement
is hereby amended as follows:
(a) The definition of "Consolidated Tangible Net Worth"
set forth in Section 1 of the Credit Agreement is hereby amended by inserting
the following at the end thereof:
"provided that, any reduction in Consolidated Tangible Net
Worth of up to $16,000,000 resulting solely from the
disposition of (i) Grupo Ambar, S.A. de C.V., (ii) American
Textil, S.A. de C.V., or (iii) Servicios Corporativos Ambar,
S.A. de C.V. shall not be taken into account when calculating
compliance with Section 6.13."
(b) Section 2.9(c) of the Credit Agreement is hereby
amended by inserting the following clause (w) immediately preceding clause (x)
therein:
"(w) result from the disposition of life insurance policies of
former employees as a result of the surrender of such policies
on or before October 31, 2003 in an amount not to exceed
$167,043.63,"
(c) Section 6.7(a) of the Credit Agreement is hereby
amended by (i) deleting the word "and" at the end of Clause (x) thereof, (ii)
deleting the "." at the end of clause (xi) thereof and inserting in lieu thereof
"; and" and (iii) adding the following new clause (xii):
(xii) the sale or other disposition of all the capital stock of one or
more of the following Subsidiaries: (i) Grupo Ambar, S.A. de C.V., (ii)
American Textil, S.A. de C.V., or (iii) Servicios Corporativos Ambar,
S.A. de C.V., substantially in accordance with the terms set forth in
the term sheet dated October 2, 2003 (the "Term Sheet") delivered to
the Lenders.
SECTION 2. Release of Pledged Collateral. In accordance with
Section 8.11 of the Credit Agreement and Section 18 of the Intercreditor
Agreement, the Administrative Agent agrees that upon the sale or other
disposition of all of the capital stock of any of Grupo Ambar, S.A., de C.V.,
American Textil, S.A. de C.V. or Servicios Corporativos Ambar, S.A. de C.V.
permitted by Section 6.7(a)(xii) of the Credit Agreement, the Administrative
Agent will release the stock of such entity (or entities) pledged to it pursuant
to Section 10 of the Credit Agreement.
SECTION 3. Certification Under Intercreditor Agreement. In
accordance with Section 18 of the Intercreditor Agreement, the Borrower hereby
certifies that the Sale is not prohibited by the Credit Agreement, the Note
Agreement or the Noteholder and A-Advanced Lender Guaranty and Security
Agreement (as defined in the Intercreditor Agreement).
SECTION 4. Exclusion of TaxLLC from Pledged Collateral. It is
hereby acknowledged and agreed by the parties hereto that TaxLLC (as defined in
the Term Sheet) is being created solely for the purpose of effectuating the Sale
and, accordingly, TaxLLC shall not be deemed Pledged Collateral and shall not be
deemed a Guarantor pursuant to Section 5.12 of the Credit Agreement; provided
that the Sale shall occur substantially simultaneously with (i) the transfer of
the capital stock of any of Grupo Ambar, S.A., de C.V., American Textil, S.A. de
C.V. or Servicios Corporativos Ambar, S.A. de C.V. into the TaxLLC, as more
fully described in the Term Sheet and (ii) the release of the stock as described
in Section 2 above.
SECTION 5. Conditions of Effectiveness. This Amendment shall
become effective on the date (such date, the "First Amendment Effective Date")
upon which (i) the Agent shall have received counterparts of this Amendment
executed by the Company, the Guarantors and the Required Lenders and (ii)
receipt by Xxxxxx, Xxxxx & Bockius LLP, as counsel to the Agent, of a copy of a
similar amendment executed and delivered by the Company and the Required Holders
under the Note Agreement.
SECTION 6. Restatement of Representations and Warranties. The
Company hereby restates and renews each and every representation and warranty
heretofore made by it in the Credit Agreement and the other Fundamental
Documents as fully as if made on the date hereof (but after giving effect to the
consents contained herein) and with specific reference to this Consent.
SECTION 7. Reference to and Effect on the Loan Documents. (a)
Upon the occurrence of the First Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words
of like import, and each reference in
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any Fundamental Documents to the Credit Agreement or any other Fundamental
Document, shall mean and be a reference to the Credit Agreement or such other
Fundamental Document as amended hereby.
(b) Except as specifically amended above, the
Credit Agreement and the other Fundamental Documents shall remain in full force
and effect and are hereby ratified and confirmed. Without limiting the
generality of the foregoing, and except as provided by paragraph 2 of this
Amendment, all of the "Collateral" described therein does and shall continue to
secure the payment of all Obligations.
(c) The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of the Agent or any Lender under any of the
Fundamental Documents, nor constitute a waiver of any provision of any of the
Fundamental Documents.
(d) The Agent and the Required Lenders are under
no obligation to enter into this Amendment. The Agent and the Required Lenders
entering into this Amendment shall not be deemed to limit or hinder any rights
of the Agent or any Lender under the Credit Agreement, nor shall it be deemed to
create or infer a course of dealing between the Agent or any Lender, the Company
or any of the Guarantors with regard to any provision of the Credit Agreement.
SECTION 8. Costs, Expenses and Taxes. The Company and
Guarantors jointly and severally agree to pay on demand all costs and expenses
of the Agent and the Lenders in connection with the preparation, execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for the Agent and the Lenders with respect
thereto and with respect to advising the Agent and the Lenders as to their
rights and responsibilities hereunder and thereunder. The Company and Guarantors
further jointly and severally agree to pay on demand all costs and expenses, if
any (including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, reasonable counsel fees and
expenses in connection with the enforcement of rights under this Section 8. In
addition, the Company and Guarantors shall pay any and all stamp and other taxes
payable or determined to be payable in connection with the execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, and agree to save the Agent and the Lenders harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
SECTION 9. Execution in Counterparts. This Amendment 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 taken together shall constitute but
one and the same instrument.
SECTION 10. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the Company, the Guarantors, the Agent and
the Required Lenders have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
BORROWER:
XXXXXXXX XXXXX, INC.
By: /s/Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: General Counsel
GUARANTORS:
CURTAINS AND FABRICS, INC.
GOLD XXXXX, INC.
RASCHEL FASHION INTERKNITTING, LTD.
GFD FABRICS, INC.
GFD SERVICES, INC.
XXXXXXX LACES, LTD.
ADVISORY RESEARCH SERVICES, INC.
XXXXXXXX XXXXX (MICHIGAN), INC.
GUILFORD AIRMONT, INC.
GOLDMILLS FARMS, INC.
GMI COMPUTER SALES, INC.
By: /s/Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: General Counsel
TWIN RIVERS TEXTILE PRINTING & FINISHING
By: Xxxxxxxx Xxxxx, Inc., as general partner
By: /s/Xxxxxx X. Xxxxx, Xx.
--------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title: General Counsel
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AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
INDIVIDUALLY AND AS ADMINISTRATIVE AGENT,
COLLATERAL AGENT AND ISSUING BANK
By: /s/Xxxxxxx XxXxxxxx
----------------------
Name: Xxxxxxx XxXxxxxx
Title: Managing Director
BANK ONE, NA
By: /s/C. Xxxxxx Xxxxxx
----------------------
Name: C. Xxxxxx Xxxxxx
Title: First Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Risk Manager
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By: /s/Xxxx X. Xxxxx
----------------------
Name: Xxxx X. Xxxxx
Title: Vice President
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