Exhibit (4)(a)
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AMENDMENT AND WAIVER UNDER NOTE AGREEMENT
THIS AMENDMENT AND WAIVER UNDER NOTE AGREEMENT (this "Amendment") is
dated as of the February 15, 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") and by the Amendment and Waiver, dated as of January 7,
2002 (the "First January Amendment and Waiver"), the Purchasers agreed to waive
certain Events of Default and as further extended and supplemented by the
Amendment and Waiver dated January 18, 2002 (the "Second January Amendment and
Waiver"), which waiver will expire on February 15, 2002;
3. The Company has requested that the Purchasers extend the Second
January Amendment and 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 16 hereof, and subject to the other terms and
conditions set forth herein, each of the Purchasers agrees (i) to extend to
March 29, 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 and by Section 9 of the December Amendment and Waiver, the
First January Amendment and Waiver and the Second January Amendment and Waiver,
be executed and become effective and (ii) to extend to March 29, 2002 the waiver
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provided in Section 2 of the each of the August Amendment and Waiver, the
December Amendment and Waiver, the First January Amendment and Waiver and the
Second 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 not later than 11:00 a.m. on March 29, 2002; (ii)
payment of interest at 7.91% shall be due on January 31, 2002 and February 28,
2002, provided, however, that each such payment shall be deferred until, and
payable not later than 11:00 a.m. on, March 29, 2002, and (iii) the balance of
unpaid interest accruing under the Notes at the Applicable Rate from May 16,
2001 through March 29, 2002 shall be due and payable not later than 11:00 a.m.
on March 29, 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), (ii) and (iii) 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 "February 15, 2002" where such date appears therein
and replacing such date with "March 29, 2002."
5. Amendment of Schedule B. Schedule B to each of the Note Agreements
is amended by deleting "February 15, 2002" in the definition of "Reserved Asset
Disposition Proceeds" and inserting in lieu thereof "March 29, 2002".
6. 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.
7. 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.
8. Condition Subsequent; Expiration of Waiver. Notwithstanding anything
to the contrary contained herein, in the event a Note Agreement Amendment or
other documentation in form and substance satisfactory to the Purchasers has not
been executed and become effective on or before March 29, 2002, then the
extension of waiver made pursuant to Section 2 hereof for the September 2001
Fiscal Quarter and the 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.
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9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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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16. 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 Eleventh Amendment to Intercreditor Agreement in substantially
the form of Annex 1 to the Bank Amendment; (iv) execution and delivery
(including by facsimile) of the Eleventh Amendment to and Waiver under Credit
Agreement (the "Bank Amendment"); and (v) 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. Xxxxxx
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Title: President and CEO
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THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxx X. Xxxxxx, CFA
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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
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 February 15, 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: Xxxx X. Xxxxxx
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Title: President
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TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
as a Guarantor
By: Advisory Research Services, Inc.
a General Partner
By: Xxxx X. Xxxxxx
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Title: President
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