Exhibit 10(d)
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THIRD AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
THIRD AMENDMENT, dated as of April 23, 2002 (the "Amendment"), to the
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of March 13, 2002, among
XXXXXXXX XXXXX, INC., a Delaware corporation (the "Borrower"), a debtor and
debtor-in-possession under Chapter 11 of the Bankruptcy Code, the Guarantors
named therein (the "Guarantors"), WACHOVIA BANK, NATIONAL ASSOCIATION, formerly
known as First Union National Bank, a national banking corporation ("Wachovia"),
each of the other financial institutions from time to time party thereto
(together with Wachovia, the "Lenders") and Wachovia, as Agent for the Lenders
(in such capacity, the "Agent"):
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent are
parties to that certain Revolving Credit and Guaranty Agreement, dated as of
March 13, 2002 (as amended by that certain First Amendment dated as of April 2,
2002, that certain Second Amendment dated as of April 23, 2002, and as the same
may be amended, modified or supplemented from time to time, the "Credit
Agreement");
WHEREAS, Section 10.03(b) of the Credit Agreement provides
that each Lender may assign to one or more Lenders or Eligible Assignees all or
a portion of its interests, rights and obligations under the Credit Agreement
(including, without limitation, all or a portion of its Commitment and the same
portion of the related Loans at the time owing to it) by executing and
delivering with such Lender or Eligible Assignee an Assignment and Acceptance in
substantially the form of Exhibit D to the Credit Agreement (a copy of which is
annexed hereto as Exhibit A); and
WHEREAS, Wachovia wishes to assign to each of the financial
institutions (other than Wachovia) that is named on Annex A hereto (such
financial institutions other than Wachovia, collectively the "New Lenders"), and
each of the New Lenders wishes to assume, a portion of Wachovia's interests,
rights and obligations under the Credit Agreement; and
WHEREAS, the Borrower, the Guarantors, Wachovia, the New
Lenders and the Agent have determined that the execution and delivery of this
Amendment to effectuate a reallocation of the Total Commitment among Wachovia
and the New Lenders will be more expeditious and administratively efficient than
the execution and delivery of separate Assignment and Acceptances between
Wachovia and each of the New Lenders;
WHEREAS, upon the occurrence of the Effective Date (as
hereinafter defined) of this Amendment, each of the New Lenders shall become a
party to the Credit Agreement as a Lender and shall have the rights and
obligations of a Lender thereunder, and the respective Commitment of Wachovia
and each of the New Lenders under the Credit Agreement shall be in the amount
set forth opposite its name on Annex A hereto, as the same may be reduced from
time to time pursuant to Section 2.10 of the Credit Agreement;
WHEREAS, the Borrower and the Guarantors have requested that from and
after the Effective Date (as hereinafter defined) of this Amendment, the Credit
Agreement be amended to effectuate the assignments described above, subject to
and upon the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. As used herein, all terms that are defined in the Credit Agreement
shall have the same meanings herein.
2. Annex A to the Credit Agreement is hereby replaced in its entirety
by Annex A hereto.
3. The signature pages to the Credit Agreement are hereby amended to
conform to the signature pages hereto.
4. This Amendment shall not become effective until the date (the
"Effective Date") on which this Amendment shall have been executed by the
Borrower, the Guarantors and Lenders, and the Agent shall have received evidence
satisfactory to it of such execution.
5. Except to the extent hereby amended, the Credit Agreement and each
of the Loan Documents remain in full force and effect and are hereby ratified
and affirmed.
6. The Borrower agrees that its obligations set forth in Section 10.05
of the Credit Agreement shall extend to the preparation, execution and delivery
of this Amendment, including the reasonable fees and disbursements of counsel to
the Agent.
7. This Amendment shall be limited precisely as written and shall not
be deemed (a) to be a consent granted pursuant to, or a waiver or modification
of, any other term or condition of the Credit Agreement or any of the
instruments or agreements referred to therein or (b) to prejudice any right or
rights which the Agent or the Lenders may now have or have in the future under
or in connection with the Credit Agreement or any of the instruments or
agreements referred to therein. Whenever the Credit Agreement is referred to in
the Credit Agreement or any of the instruments, agreements or other documents or
papers executed or delivered in connection therewith, such reference shall be
deemed to mean the Credit Agreement as modified by this Amendment.
8. This Amendment may be executed in any number of counterparts and by
the 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. A fax copy of a
counterpart signature page shall serve as the functional equivalent of a
manually executed copy for all purposes.
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9. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and the year first written.
BORROWER:
XXXXXXXX XXXXX, INC.
By:______________________________________
Title:______________________________
GUARANTORS:
CURTAINS AND FABRICS, INC.
GOLD XXXXX, INC.
RASCHEL FASHION INTERKNITTING, LTD.
GFD FABRICS, INC.
GFD SERVICES, INC.
MEXICAN INDUSTRIES OF NORTH
CAROLINA, INC.
XXXXXXX LACES, LTD.
ADVISORY RESEARCH SERVICES, INC.
XXXXXXXX XXXXX (MICHIGAN), INC.
GUILFORD AIRMONT, INC.
GOLD MILL FARMS, INC.
GMI COMPUTER SALES, INC.
TWIN RIVERS TEXTILE PRINTING AND FINISHING
By: Advisory Research Services, Inc.
a General Partner
By:______________________________________
Title:______________________________
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AGENT AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
formerly known as First Union National Bank,
Individually and as Agent
By: ________________________________________
Title: ___________________________________
BANK ONE, N.A.,
as a Lender
By: ________________________________________
Title: ___________________________________
BRANCH BANKING AND TRUST COMPANY,
as a Lender
By: _________________________________________
Title: ____________________________________
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Exhibit A
Form of Assignment and Acceptance
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ASSIGNMENT AND ACCEPTANCE
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Dated: _________ , 200__
Reference is made to the Revolving Credit and Guaranty Agreement, dated
as of March 13, 2002 (as restated, amended, modified, supplemented and in effect
from time to time, the "Credit Agreement"), among Xxxxxxxx Xxxxx, Inc., a
Delaware corporation, as Debtor and Debtor-in-Possession (the "Borrower"), the
Guarantors named therein, the Lenders named therein and, Wachovia Bank, National
Association, formerly known as First Union National Bank, as agent for the
Lenders (the "Agent"). Capitalized terms used herein and not otherwise defined
shall have the meanings assigned to such terms in the Credit Agreement. This
Assignment and Acceptance between the Assignor (as set forth on Schedule I
hereto and made a part hereof) and the Assignee (as set forth on Schedule I
hereto and made a part hereof) is dated as of the Effective Date (as set forth
on Schedule I hereto and made a part hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee without
recourse to the Assignor, and the Assignee hereby irrevocably purchases and
assumes from the Assignor without recourse to the Assignor, as of the Effective
Date, an undivided interest (the "Assigned Interest") in and to all the
Assignor's rights and obligations under the Credit Agreement in a principal
amount as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or any other of the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other of the Loan Documents or
any other instrument or document furnished pursuant thereto, other than that it
is the legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement, any of the other
Loan Documents or any other instrument or document furnished pursuant thereto;
and (iii) requests that the Agent evidence the Assigned Interest by recording
the information contained on Schedule I in the Register which reflects the
assignment being made hereby (and after giving effect to any other assignments
which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance and that it is an Eligible Assignee;
(ii) confirms that it has received a copy of the Credit Agreement, together with
copies of the most recent financial statements delivered pursuant to Section
5.01 thereof, and such other documents and information as it has deemed
appropriate to make its own credit analysis; (iii) agrees that it will,
independently and
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without reliance upon the Agent, the Assignor or any other Lenders and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (iv) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement
and the other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (v) agrees that
it will be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender; (vi) if the Assignee
is organized under the laws of a jurisdiction outside the United States,
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the Credit
Agreement; and (vii) has supplied the information requested on the
administrative questionnaire heretofore supplied by the Agent.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent, together with a processing and recordation fee of
$3,500, for acceptance by it and recording by the Agent pursuant to Section
10.03 of the Credit Agreement, effective as of the Effective Date (which
Effective Date shall, unless otherwise agreed to by the Agent, be within ten
Business Days after the execution of this Assignment and Acceptance).
5. Upon such acceptance and recording, from and after the Effective Date, the
Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignee,
whether such amounts have accrued prior to the Effective Date or accrue
subsequent to the Effective Date. The Assignor and Assignee shall make all
appropriate adjustments in payments for periods prior to the Effective Date by
the Agent or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder, and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement provided
that Assignor hereby represents and warrants that the restrictions set forth in
Section 10.03 of the Credit Agreement pertaining to the minimum amount of
assignments have been satisfied.
7. This Assignment and Acceptance 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 parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
Schedule I to Assignment and Acceptance Respecting the
Revolving Credit and Guaranty Agreement, dated as of March
[_], 2002, among Xxxxxxxx Xxxxx, Inc, the Guarantors named
therein, the Lenders named therein, and Wachovia Bank,
National Association, formerly known as First Union National
Bank, as Agent
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment:
Percentage Assigned (to at least 8 decimals)
Principal Amount shown as a percentage of aggregate
Assigned principal amount of all Lenders
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$ %
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CONSENTED TO AND ACCEPTED:
WACHOVIA BANK, NATIONAL ASSOCIATION,
formerly known as
--------------------------------------------
FIRST UNION NATIONAL BANK, as Assignor
as Agent
By__________________________________________
By_______________________ Name:
Name: Title:
Title:
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__________________________, ,
----------------------------------------
as Fronting Lender as Assignee
By______________________________________
By_______________________ Name:
Name: Title:
Title:
9
Annex A
Commitment Commitment
Lender Amount Percentage
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Wachovia Bank, National Association $19,384,615.39 64.6153846171%
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxxxx XxXxxxxx
Bank One, N.A. (Main Office Chicago) $6,000,000.00 20.0000000000%
TX1-2455
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxxxx Xxxxxx
Branch Banking and Trust Company $4,615,384.61 15.3846153828%
000 Xxxx 0xx Xxxxxx, 0xx Xxxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X.X. Xxxxxxx
Total $30,000,000.00 100.00000000%
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