EXHIBIT 10.1
GLOBAL AMENDMENT AGREEMENT
THIS GLOBAL AMENDMENT AGREEMENT (this "Agreement") is dated as of April
29, 2003, by and among CROWN CRAFTS, INC., (the "Parent", or the "Company"),
XXXXXXXXX WEAVERS, INC., HAMCO, INC. AND CROWN CRAFTS INFANT PRODUCTS, INC.
(individually and collectively, as the context shall require, the "Subsidiaries"
and, together with the Parent, the "Borrowers" or the "Obligors"), WACHOVIA
BANK, NATIONAL ASSOCIATION (successor by merger to Wachovia Bank, N.A.) in its
capacity as Agent under the Credit Agreement described below (the "Agent"),
WACHOVIA BANK, NATIONAL ASSOCIATION (successor by merger to Wachovia Bank,
N.A.), BANC OF AMERICA STRATEGIC SOLUTIONS, INC. (as assignee of Bank of
America, N.A.) and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA (individually and
collectively, as the context shall require, the "Lenders" or the "Purchasers"),
and WACHOVIA BANK, NATIONAL ASSOCIATION (successor by merger to Wachovia Bank,
N.A.), BANK OF AMERICA, N.A. and THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, as
Holders (as that term is defined below).
WITNESSETH:
WHEREAS, the Borrowers, the Agent and the Lenders entered into that
Credit Agreement dated as of July 23, 2001, as amended by First Amendment to
Credit Agreement dated as of September 28, 2001, Second Amendment to Credit
Agreement dated as of November 25, 2002 and Third Amendment to Credit Agreement
dated as of February 10, 2003 (as so amended, the "Credit Agreement");
WHEREAS, the Company and the Purchasers entered into that certain
Subordinated Note and Warrant Purchase Agreement dated as of July 23, 2001, as
amended by First Amendment of Subordinated Note and Warrant Purchase Agreement
dated as of September 28, 2001 and Second Amendment of Subordinated Note and
Warrant Purchase Agreement dated as of February 10, 2003 (as so amended, the
"Purchase Agreement");
WHEREAS, the Subsidiaries are Obligors under the Purchase Agreement and
the "Transaction Documents", as that term is defined in the Purchase Agreement;
WHEREAS, pursuant to the Credit Agreement, the Borrowers and the Agent
entered into the "Security Documents", including a "Domestic Stock Pledge
Agreement", a "Foreign Stock Pledge Agreement", a "Security Agreement" and the
"Mortgages", as those terms are defined in the Credit Agreement (collectively,
the "Senior Security Documents");
WHEREAS, pursuant to the Purchase Agreement, the Company and the
Purchasers entered into the "Security Documents", including a "Domestic Stock
Pledge Agreement", a "Foreign Stock Pledge Agreement", a "Security Agreement"
and the "Mortgages", as those terms are defined in the Purchase Agreement
(collectively, the "Subordinated Security Documents") and the Company issued to
the Lenders the "Warrants", as that term is defined in the Purchase Agreement
(the Warrant issued to Bank of America, N.A. not having been assigned by it to
Banc of America Strategic Solutions, Inc., but still being held by Bank of
America, N.A.,
and Wachovia Bank, National Association, Bank of America, N.A. and The
Prudential Insurance Company of America, in their capacity as holders of the
Warrants, being individually and collectively referred to herein, as the
"Holders");
WHEREAS, pursuant to the Credit Agreement and the Purchase Agreement,
the Agent, as Collateral Agent, the Lenders and the Purchasers are parties to an
Intercreditor Agreement dated as of July 23, 2001 (the "Intercreditor
Agreement");
WHEREAS, the Company has requested that the Holders execute and deliver
a Reserved Shares Agreement to be dated as of even date herewith, pursuant to
which (i) the Holders would permit the Company to issue "Contingent Shares" (as
that term is defined therein) upon the happening of certain events and (ii) the
Company would issue to the Holders the "Subordinated Contingent Notes" (as that
term is defined therein), payable to the Holders upon the circumstances, in the
amounts and upon the terms set forth therein, which Subordinated Contingent
Notes will be subordinated as to payment and priority to the obligations under
the Credit Agreement in the same manner and to the same extent as the "Notes"
issued under, and as defined in, the Purchase Agreement, pursuant to Article X
of the Purchase Agreement; and
WHEREAS, the parties intend to amend the Credit Agreement, the Purchase
Agreement and the Intercreditor Agreement to permit and give effect to the
foregoing, and to include the Subordinated Contingent Notes as part of the
"Obligations" (as that term is defined in the Purchase Agreement), secured
pursuant to the Subordinated Security Documents, subject to the terms and
conditions hereof;
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 Parent and the Subsidiaries
(in their respective capacities as Borrowers under the Credit Agreement and
Obligors under the Purchase Agreement), the Agent, and the Lenders and
Purchasers (in their respective capacities as such under the Credit Agreement
and the Purchase Agreement, respectively), and the Holders (in their capacities
as holders of the Subordinated Contingent Notes) hereby covenant and agree as
follows:
1. Definitions. Unless otherwise specifically defined herein, each term
used herein which is defined in the Credit Agreement or the Purchase Agreement
shall have the meaning assigned to such term in the Credit Agreement or the
Purchase Agreement, as the case may be.
2. Amendments to Credit Agreement.
(a) Amendment to Section 1.01(B). Section 1.01(B) of the
Credit Agreement hereby is amended by deleting the definition of
"Permitted Encumbrances" and adding the definitions of "Permitted
Encumbrances" and "Subordinated Contingent Notes" in appropriate
alphabetical sequence, as follows:
"Permitted Encumbrances" means, (i) as to the
Collateral granted pursuant to SECTION 3.01, the liens and
encumbrances securing the Subordinated Contingent Notes and
the encumbrances set forth on SCHEDULE 3.01, and (ii) as to
each parcel of the Real Properties, the encumbrances expressly
permitted by the Mortgage with respect to such parcel of the
Real Properties.
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"Subordinated Contingent Notes" means the
Subordinated Contingent Promissory Notes dated April 29, 2003,
issued by the Parent to Wachovia Bank, National Association,
Bank of America, N.A. and The Prudential Insurance Company of
America, together with all amendments, consolidations,
modifications, renewals and supplements thereto, which are
payable to the order of such holders upon the circumstances,
in the amounts and upon the terms set forth therein, which
Subordinated Contingent Notes are subordinated as to payment
and priority to the obligations under this Agreement in the
same manner and to the same extent as the Senior Subordinated
Notes pursuant to Article X of the Senior Subordinated Notes
Purchase Agreement.
(b) Amendment to Section 5.21(a). Section 5.21(a) of the
Credit Agreement hereby is deleted in its entirety and the following is
substituted therefor:
Debt owing by any Borrower to any other Borrower that
is subordinated to the payment of the Obligations, the Senior
Subordinated Notes and the Subordinated Contingent Notes;
3. Amendments to Purchase Agreement.
(a) Addition of Holders of Subordinated Contingent Notes. The
holders of the Subordinated Contingent Notes hereby are added to this
Agreement for the purposes of adding the obligations under the
Subordinated Contingent Notes as "Obligations" hereunder, secured under
the Security Documents, and for the purposes of Article X and Sections
9.02, 11.01, 11.03, 11.05 and 11.11 hereof, and shall be subject to and
entitled to the benefits thereof. The parties hereto acknowledge that
the Collateral is held by the Collateral Agent for the ratable benefit
of the Purchasers and the holders of the Subordinated Contingent Notes.
(b) Amendment to Section 1.01. Section 1.01 of the Purchase
Agreement hereby is amended by deleting the definitions of
"Collateral", "Permitted Encumbrances" and "Required Holders" and
adding the definitions of "Collateral", "Obligations", "Permitted
Encumbrances", "Required Holders" and "Subordinated Contingent Notes"
in appropriate alphabetical sequence, as follows:
"Collateral" shall mean (i) the personal property in
which the Collateral Agent, for the benefit of the Purchasers
and the holders of the Subordinated Contingent Notes, is
granted a security interest pursuant to the Security
Agreement, (ii) the Real Property conveyed to the Collateral
Agent pursuant to the Mortgages, and (iii) the Domestic
Pledged Stock and the Foreign Pledged Stock pledged to the
Collateral Agent pursuant to the Domestic Stock Pledge
Agreement and the Foreign Stock Pledge Agreement,
respectively.
"Obligations" shall mean all Debts, indebtedness,
liabilities, covenants, duties and other obligations of the
Obligors: (i) to the Collateral Agent, any of the Purchasers,
any of the holders of the Subordinated Contingent Notes, or
any of their respective successors, permitted transferees or
permitted assigns, included or arising from time to time under
this Agreement or any other Transaction Document, whether
evidenced by any note or other writing, whether arising from
the extension of credit, opening of a letter of credit,
acceptance or loan guaranty, including, without limitation,
principal, interest, Yield-Maintenance Amount, fees, costs,
attorney's fees and indemnification amounts and any and all
extensions or renewals thereof in whole or in part, direct or
indirect, absolute or contingent, due or to become due,
primary or secondary, or joint or several; (ii) to any
Purchaser or Affiliate thereof arising under any Interest Rate
Protection Agreement with any such Purchaser or Affiliate,
including, without limitation, any premature termination or
breakage or other costs with respect thereto; (iii) to any
Purchaser and its Affiliates, arising in connection with any
banking or related transactions, services or functions
provided to the
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Company in connection with the conduct of the Company's
business (excluding extensions of credit giving rise to any
Debt for Money Borrowed not related to this Agreement or any
of the other Transaction Documents).
"Permitted Encumbrances" means, (i) as to the
Collateral granted pursuant to the Security Agreement, the
liens and encumbrances securing the Subordinated Contingent
Notes and the encumbrances set forth on Schedule 7.10, and
(ii) as to each parcel of the Real Properties, the
encumbrances expressly permitted by the Mortgage with respect
to such parcel of the Real Properties.
"Required Holders" shall mean at any time: (i) prior
to payment in full of the Notes and all other Obligations
pertaining thereto, Purchasers holding at least (1) so long as
there are 3 or fewer Purchasers, 100%, (2) otherwise, 66
2/3's% of the aggregate outstanding principal amount of the
Notes; provided, however, that such calculation shall be made
without including the principal amount of Notes held by any
Purchasers which are in default with respect to their
obligations to the Collateral Agent, any Obligor or any
Purchaser; and (ii) thereafter, holders of Subordinated
Contingent Notes holding at least (1) so long as there are 3
or fewer such holders, 100%, (2) otherwise, 66 2/3's% of the
aggregate outstanding principal amount of the Subordinated
Contingent Notes; provided, however, that such calculation
shall be made without including the principal amount of
Subordinated Contingent Notes held by any Purchasers which are
in default with respect to their obligations to the Collateral
Agent, any Obligor or any other such holder.
"Subordinated Contingent Notes" means the
Subordinated Contingent Promissory Notes dated April 29, 2003,
issued by the Company to Wachovia Bank, National Association,
Bank of America, N.A. and The Prudential Insurance Company of
America, together with all amendments, consolidations,
modifications, renewals and supplements thereto, which are
payable to the order of such holders upon the circumstances,
in the amounts and upon the terms set forth therein.
(c) Amendment to Section 9.02. Section 9.02 of the Purchase
Agreement hereby is amended by adding a new (g) at the end thereof, as
follows:
(g) The parties hereto acknowledge and agree that:
(i) until payment in full of the Notes and all Obligations
relating thereto, the foregoing provisions of this Section
9.02 shall be exercisable solely by the Purchasers
constituting the Required Holders; and (ii) thereafter, the
foregoing provisions of this Section 9.02 shall be exercisable
by the holders of Subordinated Contingent Notes constituting
the Required Holders, and for such purposes, references to
"Notes" shall be deemed to be references to "Subordinated
Contingent Notes".
(d) Amendment to Article X. Article X of the Purchase
Agreement hereby is deleted in its entirety and the following is
substituted therefor:
ARTICLE X
SUBORDINATION OF NOTES AND SUBORDINATED CONTINGENT NOTES
SECTION 10.01. SUBORDINATION. Anything in this
Agreement to the contrary notwithstanding, all amounts owing
to the holders of the Notes under this Agreement or any other
Transaction Document, and any amounts owing to the holders of
the Subordinated Contingent Notes, in each case including
without limitation, principal, Yield-Maintenance Amount, if
any, interest and fees (excluding fees and expenses of special
counsel to the holders of the Notes or the holders of the
Contingent Subordinated Notes) (the "SUBORDINATED DEBT"),
shall be subordinate and junior to all Senior Debt to the
extent set forth in Section 10.01(a) through (g), inclusive,
below.
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(a) INSOLVENCY. In the event of any insolvency,
bankruptcy, liquidation, reorganization or other similar
proceedings, or any receivership proceedings in connection
therewith, relative to the Company or any other Obligor, and
in the event of any proceedings for voluntary liquidation,
dissolution or other winding up of the Company or any other
Obligor, whether or not involving insolvency or bankruptcy
proceedings, then all Senior Debt shall first be paid in full
in cash before any payment of or on account of the
Subordinated Debt.
(b) INSOLVENCY DISTRIBUTIONS. In any of the
proceedings referred to in Section 10.01(a) above, any payment
or distribution of any kind or character, whether in cash,
property, stock or obligations, which may be payable or
deliverable by the Company in respect of the Subordinated Debt
shall be paid or delivered directly to the holders of Senior
Debt (or to a banking institution selected by the court or
Person making the payment or delivery or designated by any
holder of Senior Debt) for application in payment thereof in
accordance with the priorities then existing among such
holders, unless and until all Senior Debt shall have been paid
in full in cash; provided, however, that no such delivery
shall be made to holders of Senior Debt of stock or
obligations which are issued pursuant to reorganization
proceedings in respect of the Subordinated Debt if such stock
or obligations are subordinate and junior (whether by law or
agreement) at least to the extent provided in this Section
10.01 to the payment of all Senior Debt then outstanding and
to the payment of any stock or obligations which are issued in
exchange or substitution for any Senior Debt then outstanding.
(c) SENIOR DEBT PAYMENT DEFAULT -- PAYMENT BLOCKAGE.
If the Company shall default in the payment of any principal
of or interest or Premium on any Senior Debt when the same
becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration of acceleration or
otherwise, then, until such default shall have been remedied
by payment in full in cash or waived, no holder of the Notes
or of the Subordinated Contingent Notes shall accept or
receive any direct or indirect payment of or on account of the
Subordinated Debt.
(d) SENIOR DEBT COVENANT DEFAULTS -- PAYMENT
BlOCKAGE. Upon the occurrence and during the continuance of
any Senior Debt Default (other than under circumstances when
the terms of Section 10.01(c) above are applicable), no holder
of the Notes or of the Subordinated Contingent Notes shall
accept or receive any direct or indirect payment of or on
account of any Subordinated Debt during the period (a
"BLOCKAGE PERIOD") beginning on the date of receipt by such
holder of written notice of such Senior Debt Default (a
"DEFAULT SUBORDINATION NOTICE") from the Required Holders and
ending on the earliest of (i) the date when all such Senior
Debt Defaults identified in the Default Subordination Notice
have been cured or waived in writing, (ii) the date that is
180 days after receipt of such Default Subordination Notice
and (iii) the date of repayment in full of the Senior Debt,
provided that (a) there shall be no more than four Blockage
Periods during the term of the Notes or of the Subordinated
Contingent Notes, (b) during any 365-day period, the aggregate
number of days for which Blockage Periods may be in effect
shall not exceed 210 days and (c) no facts or circumstances
constituting a Senior Debt Default existing on the date of
such Default Subordination Notice may be used as a basis for
any subsequent Default Subordination Notice. The provisions of
this Section 10.01(d) shall not prevent any payment on or in
respect of the Subordinated Debt which would (in the absence
of any such Senior Debt Default) have been payable on any date
during a Blockage Period from being paid following the
termination of such Blockage Period.
(e) STANDSTILL. At any time that the holders of the
Notes and of the Subordinated Contingent Notes are not
permitted to receive payments on the Subordinated Debt
pursuant to either Section 10.01(c) or (d), the holders of the
Notes and of the Subordinated Contingent Notes, to the extent
they are otherwise entitled to do so, will not accelerate the
maturity of the Notes or Subordinated Contingent Notes or
pursue any other remedy to enforce payment thereof or
initiate, or join in the initiation of, any bankruptcy or
insolvency proceeding relative to the Company until the
earliest of (i) the date when the Senior Debt Default giving
rise to the blockage of payments on the Notes pursuant to
Section 10.01(c) or (d) has been cured or waived in writing,
(ii) the date of the repayment in full of the Senior Debt,
(iii) the date that is 180 days after a Senior Debt payment
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default, (iv) the end of the Blockage Period applicable to
such Senior Debt Default and (v) subject to the Intercreditor
Agreement, the date on which the Senior Debt shall have been
declared due and payable prior to its stated maturity or any
holder of Senior Debt commences proceedings to collect any
Senior Debt or realize upon any material part of the
collateral for any Senior Debt (the "STANDSTILL PERIOD"). Upon
the termination of the Standstill Period, the holders of the
Notes and of the Subordinated Contingent Notes may exercise
all rights or remedies they may have in law or equity, subject
to the terms hereof and of the Intercreditor Agreement.
(f) EXERCISE OF REMEDIES. So long as the Senior Debt
is outstanding, if (i) a default pursuant to which the
Subordinated Debt may be accelerated shall have occurred and
is continuing and (ii) the remedies of the holders of the
Subordinated Debt shall not have been suspended under the
Intercreditor Agreement, upon 90 days prior written notice to
the Senior Lenders of its intention to do so, each holder of
the Subordinated Debt may elect to exercise any of its
remedies that may exist at law or in equity. Except as
otherwise provided in this Section 10(f), so long as the
Senior Debt is outstanding, the Subordinated Lenders shall not
take any action to enforce any remedies with respect to the
Subordinated Debt.
(g) TURNOVER. If any payment or distribution of any
character, whether in cash, securities or other property,
shall be received by any holder of Notes or Subordinated
Contingent Notes in contravention of any of the terms of this
Section 10.01 and before all the Senior Debt shall have been
paid in full in cash, such payment or distribution shall be
received in trust for the benefit of the holders of the Senior
Debt at the time outstanding and shall forthwith be paid over
or delivered and transferred to the holders of Senior Debt.
(h) FILING CLAIMS. Each holder of the Notes and of
the Subordinated Contingent Notes SHALL duly and promptly take
such action as is reasonably necessary to file appropriate
claims or proofs of claim in any of the proceedings referred
to in Section 10.01(a) and to execute and deliver such other
instruments and take such other actions as may be reasonably
necessary to prove or realize upon such claims and to have the
proceeds of such claims paid as provided in this Section
10.01. In the event any holder of the Notes or of the
Subordinated Contingent Notes shall not have made any such
filing on or prior to the date ten days before the expiration
of the time for such filing or shall not have timely executed
or delivered any such other instruments and taken such other
actions, each holder of Senior Debt, acting through an agent
or otherwise, is hereby authorized, as the agent and
attorney-in-fact for such holder of Notes or Subordinated
Contingent Notes for the specific and limited purpose set
forth in this paragraph, but shall have no obligation, to file
such proof of claim for or on behalf of such holder of the
Notes or of the Subordinated Contingent Notes, execute and
deliver such other instruments for or on behalf of such the
Notes or of the Subordinated Contingent Notes and take such
other action necessary under applicable law to collect
(subject to the provisions of Section 10.01(b)) any amounts
due in respect of such claim in such proceeding. Anything
contained in this paragraph notwithstanding, the right to vote
any claim or claims in respect of the Subordinated Debt in
connection with any proceedings referred to in Section
10.01(a) is exclusively reserved to the holders of the Notes
and of the Subordinated Contingent Notes.
SECTION 10.02. Obligation of the Company
Unconditional. The provisions of this Article X are for the
purpose of defining the relative rights of the holders of
Senior Debt on the one hand, and the holders of the Notes and
of the Subordinated Contingent Notes on the other hand,
against the Company and its property, and nothing herein shall
impair, as between the Company and the holders of the Notes
and of the Subordinated Contingent Notes, the obligation of
the Company, which is unconditional and absolute, to pay to
the holders thereof the Subordinated Debt in accordance with
the terms and the provisions of this Agreement and the Notes.
Except as otherwise provided in Section 10.01(e), nothing
contained herein shall prevent the holders of the Notes or of
the Subordinated Contingent Notes from exercising all remedies
otherwise permitted by applicable law or under this Agreement
upon default under this Agreement or under the Notes
(including, without limitation, the right to demand payment
and xxx for performance of the Agreement and of the Notes and
of the Subordinated Contingent Notes and to
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accelerate the maturity of the Notes as provided in Article
IX) or of making demand for payment of the Subordinated
Contingent Notes, subject to the rights, if any, under this
Article X of holders of Senior Debt to receive cash, property,
stock or obligations otherwise payable or deliverable by the
Company to the holders of the Notes or of the Subordinated
Contingent Notes.
SECTION 10.03. SUBROGATION. Upon payment in full of
the Senior Debt in cash, the holders of the Notes and of the
Subordinated Contingent Notes shall be subrogated to the
rights of the holders of the Senior Debt to receive payments
or distributions of assets of the Company made on the Senior
Debt until the Subordinated Debt shall be paid in full, and,
for the purposes of such subrogation, no payments to the
holders of the Senior Debt of any cash, property, stock or
obligations to which the holders of the Notes and of the
Subordinated Contingent Notes would be entitled except for the
provisions of Section 10.01 above shall, as between the
Company, its creditors (other than the holders of the Senior
Debt) and the holders of the Notes and of the Subordinated
Contingent Notes, be deemed to be a payment by the Company to
or on account of the Senior Debt.
SECTION 10.04. RIGHTS OF HOLDERS OF SENIOR DEBT. The
provisions of this Article X shall be deemed a continuing
offer to all holders of Senior Debt to act in reliance on such
provisions (but no such reliance shall be required to be
proven to receive the benefits hereof) and may be enforced by
such holders, and no right of any present or future holder of
any Senior Debt to enforce subordination as provided in this
Article X shall be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or
failure to act by any such holder, or by any non-compliance by
the Company with the terms, provisions and covenants of this
Agreement or the Notes or the Subordinated Contingent Notes.
Without in any way limiting the generality of the foregoing,
the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the holders of the
Notes or of the Subordinated Contingent Notes, and without
impairing or releasing the subordination provided in this
Article X or the obligations hereunder of the holders of the
Notes or of the Subordinated Contingent Notes to the holders
of Senior Debt, do any one or more of the following: (i)
change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, or waive defaults under
Senior Debt, or otherwise amend or supplement in any manner
Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged
or mortgaged to secure or otherwise securing Senior Debt;
(iii) release any Person liable in any manner for the payment
or collection of Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Company and any other
Person, including any guarantor or surety. The provisions of
this Article X shall continue to be effective, or be
reinstated as of the date immediately prior to payment in full
of the Senior Debt, as the case may be, if at any time
payment, or any part thereof, of any of Senior Debt is
rescinded or must otherwise be restored or returned by the
holders of Senior Debt upon occurrence of an event described
in Section 10.01(a), or otherwise, all as though such payments
had not been made.
(e) Amendment to Section 11.01. Section 11.01 of the Purchase
Agreement hereby is deleted in its entirety and the following is
substituted therefor:
SECTION 11.01. NOTICES. All notices, requests and
other communications to any party hereunder shall be in
writing (including telecopier) and shall be effective (a) if
given by mail, three (3) Business Days after being deposited
in the mails or (b) if given by telecopier, when so
telecopied. Notices hereunder shall be mailed or telecopied,
if to the Company at 000 Xxxxx Xxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxx 00000, telecopier 000-000-0000, if to a Purchaser,
as provided on the Purchaser Schedule hereto, and if to a
holder of the Contingent Subordinated Notes, addressed as
follows, or to such other address as such holder may designate
by notice to the other parties hereto:
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Wachovia Bank, National Association
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
Bank of America, N.A.
000 X. Xxxxx Xx.
XX0-000-00-00
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
The Prudential Insurance Company of America
c/o Prudential Capital Group
Corporate and Project Workouts
000 Xxxxxxxx Xxxxxx, Xxxxxxx Center 4
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
(f) Amendment to Section 11.03. Section 11.03 of the Purchase
Agreement hereby is deleted in its entirety and the following is
substituted therefor:
Section 11.03. EXPENSES.
(a) The Company agrees to pay on demand all costs,
expenses, taxes and fees (i) incurred by any Purchaser in
connection with the preparation, execution and delivery of
this Agreement and all other Transaction Documents, including
the reasonable fees and disbursements of counsel for such
Purchaser; (ii) incurred by such Purchaser in connection with
the preparation, execution and delivery of any waiver,
amendment or consent by such Purchaser relating to the
Transaction Documents, including the reasonable costs and fees
of counsel for such Purchaser; and (iii) incurred by such
Purchaser, including the reasonable costs and fees of its
counsel, in connection with the enforcement of the Transaction
Documents.
(b) The Company agrees to indemnify, pay and hold
each Purchaser and any holder of any of the Notes and the
Warrants and the officers, directors, employees and agents of
such Purchaser and such holders (the "Indemnified Persons")
harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind (including, without
limitation, the reasonable fees and disbursements of counsel
for any Indemnified Person in connection with any
investigative, administrative or judicial proceeding, whether
or not such Indemnified Person shall be designated a party
thereto) which may be incurred by any Indemnified Person,
relating to or arising out of the enforcement of this
Agreement, the Notes, the Warrants or any other Transaction
Document or any actual or proposed use of proceeds of the
Notes; provided, that no Indemnified Person shall have the
right to be indemnified hereunder for its own gross negligence
or willful misconduct, as finally determined by a court of
competent jurisdiction.
(g) Amendment to Section 11.05. Section 11.05 of the Purchase
Agreement hereby is deleted in its entirety and the following is
substituted therefor:
SECTION 11.05. SUCCESSORS AND ASSIGNS. The provisions
of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors
and assigns; provided, that the Company may not assign or
otherwise transfer any of its rights or obligations under this
Agreement, the Note or any
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other Transaction Document to any Person without the prior
written consent of the Required Holders or, prior to the
payment in full of the Notes and the obligations related
thereto, under the Subordinated Contingent Notes without the
prior written consent of the Required Holders (as defined in
clause (ii) of the definition thereof) . Any assignee of the
Notes or the Subordinated Contingent Notes shall have, to the
extent of such assignment (unless otherwise provided therein),
the same rights, obligations and benefits as it would have if
it were a Purchaser hereunder and under the other Transaction
Document, or a holder of a Subordinated Contingent Note, as
the case may be. Notwithstanding the foregoing, a Purchaser or
a holder of a Subordinated Contingent Note may sell or
otherwise grant participations in all or any part of the Notes
or Subordinated Contingent Notes, as applicable. The holder of
any such participation, if the participation agreement so
provides, shall have the same rights and benefits of a
Purchaser or a holder of a Subordinated Contingent Note
hereunder.
(h) Amendment to Section 11.11. Section 11.11 of the Purchase
Agreement hereby is deleted in its entirety and the following is
substituted therefor:
SECTION 11.11. TERMINATION OF AGREEMENT. This
Agreement shall terminate upon the payment in full of the
Notes and all Obligations relating thereto and the
Subordinated Contingent Notes and all Obligations relating
thereto; provided that, Sections 3.02, 3.03 and 10.03 shall
survive the termination of this Agreement.
4. Amendments to the Intercreditor Agreement
(a) Amendments to Recitals. The penultimate "WHEREAS" clause
of the Intercreditor Agreement hereby is deleted in its entirety and
the following is substituted therefor:
WHEREAS, the Lenders, the Purchasers and the holders
of the Subordinated Contingent Notes (collectively, the
"SECURED PARTIES") wish to appoint Wachovia as Collateral
Agent to act on behalf of the Secured Parties; and the Lender
and the Purchasers wish to add the holders of the Subordinated
Contingent Notes as parties hereto.
(b) Amendments to Section 1. Section 1 of the Intercreditor is
amended by deleting the definitions of "Subordinated Creditor" and
"Subordinated Transaction Documents and adding the definitions of
"Subordinated Creditor", "Subordinated Contingent Notes" and
"Subordinated Transaction Documents" in appropriate alphabetical
sequence, as follows:
"Subordinated Creditor" means, collectively, the
Purchasers and the holders of the Subordinated Contingent
Notes, together with any future holders or assignees (or any
of them) of the Subordinated Obligations.
"Subordinated Transaction Documents" means (i) the
Purchase Agreement, together with the Transaction Documents
(as defined in the Purchase Agreement), (ii) the Subordinated
Security Documents (as defined in the Purchase Agreement),
(iii) the Subordinated Contingent Notes, and (iv) all other
documents entered into in connection therewith which relate to
indebtedness or liabilities of the Parent and its Subsidiaries
incurred thereunder and the other obligations evidenced
thereby and any amendments, restatements, supplements or
modifications of or with respect to any of the foregoing and
permitted hereunder.
"Subordinated Contingent Notes" means the
Subordinated Contingent Promissory Notes dated April 29, 2003,
issued by the Parent to Wachovia Bank, National Association,
Bank of
9
America, N.A. and The Prudential Insurance Company of America,
together with all amendments, consolidations, modifications,
renewals and supplements thereto, which are payable to the
order of such holders upon the circumstances, in the amounts
and upon the terms set forth therein.
(c) Amendment to Section 14. Section 14 of the Intercreditor
hereby is deleted in its entirety and the following is substituted
therefor:
14. NOTES AND SUBORDINATED CONTINGENT NOTES
EVIDENCING SUBORDINATED OBLIGATIONS. The Notes (as defined in
the Purchase Agreement) and the Subordinated Contingent Notes
and all other notes or other evidence of indebtedness accepted
by each Subordinated Creditor from the Parent hereafter shall
contain a specific statement therein that the indebtedness
thereby evidenced is subordinated in right of payment and
subject to the provisions of this Intercreditor Agreement.
Copies of the Subordinated Transaction Documents will be
delivered to the Senior Creditors on, or have been delivered
to prior to, the date hereof, or upon any subsequent
execution thereof.
(d) Amendment to Section 21. Section 21 of the Intercreditor
Agreement hereby is amended by deleting clause (b) in its entirety and
the following is substituted therefor:
(b) in the case of the Subordinated Creditors, at the
address or telefacsimile number set forth in the Purchase
Schedule to the Purchase Agreement (as to the Purchasers), or
in Section 11.01 of the Purchase Agreement (as to the holders
of the Subordinated Contingent Notes) or such other address or
telefacsimile number as any Subordinated Creditor may
hereafter specify for the purpose by notice to each other
party, and...
(3) Amendment to Section 29. Section 29 of the Intercreditor
Agreement hereby is amended by deleting clause THIRD in its entirety
and the following is substituted therefor:
THIRD: (i) first, to each Subordinated Creditor which has any
Subordinated Obligations outstanding relating to Notes, ratably to each
such Subordinated Creditor based on the percentage which the amount
outstanding of such Subordinated Creditor's Subordinated Obligations
relating to Notes bears to the aggregate amount outstanding of all
Subordinated Obligations to all Subordinated Creditors relating to
Notes, for application to the Subordinated Obligations relating to
Notes until all Subordinated Obligations relating to Notes have been
indefeasibly paid in full and (ii) secondly, to each Subordinated
Creditor which has any Subordinated Obligations outstanding relating to
Subordinated Contingent Notes, ratably to each such Subordinated
Creditor based on the percentage which the amount outstanding of such
Subordinated Creditor's Subordinated Obligations relating to
Subordinated Contingent Notes bears to the aggregate amount outstanding
of all Subordinated Obligations to all Subordinated Creditors relating
to Subordinated Contingent Notes, for application to the Subordinated
Obligations relating to Subordinated Contingent Notes until all
Subordinated Obligations relating to Subordinated Contingent Notes have
been indefeasibly paid in full; and
5. Acknowledgments re Security Documents under the Purchase Agreement.
Each of the parties hereto acknowledges that the Subordinated Contingent Notes
constitute "Obligations" under the Purchase Agreement, and are secured pursuant
to the "Security Documents" (as defined in the Purchase Agreement). In addition,
the Subsidiaries hereby acknowledge and agree that the Subordinated Contingent
Notes are unconditionally and irrevocably guaranteed pursuant to the provisions
of the Mortgages, as fully as if they had been expressly referred to therein.
10
6. Restatement of Representations and Warranties. Each of the Borrowers
and the Obligors, in their capacities as such, hereby restates and renews each
and every representation and warranty heretofore made by it in the Credit
Agreement and the other Credit Documents to which it is a party, and the
Purchase Agreement and the other Transaction Documents to which it is a party,
as fully as if made on the date hereof and with specific reference to this
Agreement and all other Credit Documents and Transaction Documents executed
and/or delivered in connection herewith, except where reference is made to a
specific date.
7. Effect of Amendment. Except as set forth expressly hereinabove, all
terms of the Credit Agreement and the other Credit Documents and the Purchase
Agreement and the other Transaction Documents shall be and remain in full force
and effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrowers and the Obligors, in their capacities as such. The
amendments contained herein shall be deemed to have prospective application
only, unless otherwise specifically stated herein.
8. Ratification. Each of the Borrowers and the Obligors, in their
capacities as such, hereby restates, ratifies and reaffirms each and every term,
covenant and condition set forth in the Credit Agreement and the other Credit
Documents to which it is a party and the Purchase Agreement and the other
Transaction Documents to which it is a party effective as of the date hereof.
9. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which may be delivered by facsimile and which when so executed and delivered
(including counterparts 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.
10. Section References. Section titles and references used in this
Agreement 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.
11. No Default. To induce the Agent, the Lenders, the Purchasers and
the holders of the Subordinated Contingent Notes to enter into this Agreement
and for the Lenders to continue to make advances pursuant to the Credit
Agreement, (i) the Borrowers hereby acknowledge and agree that, as of the date
hereof, and after giving effect to the terms hereof, there exists (1) no Default
or Event of Default under the Credit Agreement and (2) no right of offset,
defense, counterclaim, claim or objection in favor of the Borrowers arising out
of or with respect to any of the Loans or other obligations of the Borrowers
owed to the Agent or the Lenders under the Credit Agreement and the other Credit
Documents, (ii) the Company hereby acknowledges and agrees that, as of the date
hereof, and after giving effect to the terms hereof, there exists (1) no Default
or Event of Default under the Purchase Agreement, and no breach or default
exists under the Transaction Documents to which it is a party and (2) no right
of offset, defense, counterclaim, claim or objection in favor of the Obligations
arising out of or with respect to any of the obligations of the Company owed to
the Purchasers under the Transaction Documents to which it is a party, (iii)
each of the Subsidiaries hereby acknowledges and agrees that, as of the date
hereof, and after giving effect to the terms hereof, there exists (1) no breach
or default exists under the Transaction Documents to which it is a party and (2)
no right of offset, defense,
11
counterclaim, claim or objection in favor of if arising out of or with respect
to any of its obligations owed to the Purchasers under the Transaction Documents
to which it is a party.
12. Further Assurances. Each of the Borrowers and the Obligors, in
their capacities as such, agrees to take such further actions as the Agent, the
Lenders, the Purchasers or the holders of the Subordinated Contingent Notes
shall reasonably request in connection herewith to evidence the amendments
herein contained.
13. Governing Law. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
14. Conditions Precedent. This Agreement shall become effective only
upon execution and delivery of this Agreement by each of the parties hereto.
[SIGNATURES COMMENCE ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by its duly authorized officer as of the day and year
first above written.
CROWN CRAFTS, INC., as a Borrower, the
Company and an Obligor (SEAL)
By: /s/ E. Xxxxxxx Xxxxxxxx
-------------------------------------
Title: President & CEO
XXXXXXXXX WEAVERS, INC., as a Borrower, a
Subsidiary and an Obligor (SEAL)
By: /s/ Xxx Xxxxxxx Xxxxxx
-------------------------------------
Title: Vice President
HAMCO, INC., as a Borrower, a Subsidiary
and an Obligor (SEAL)
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------------
Title: Secretary - Treasurer
CROWN CRAFTS INFANT PRODUCTS., as a
Borrower, a Subsidiary and an Obligor
(SEAL)
By: /s/ E. Xxxxxxx Xxxxxxxx
-------------------------------------
Title: Vice President
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WACHOVIA BANK, NATIONAL ASSOCIATION, as
the Agent, a Lender, a Purchaser and a
holder of a Subordinated Contingent Note
(SEAL)
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Title: Director
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BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
(as assignee of Bank of America, N.A.),
as a Lender and a Purchaser (SEAL)
By: /s/ Xxxx X. Register
-------------------------------------
Title: Principal
BANK OF AMERICA, N.A., as a holder of a
Subordinated Contingent Note (SEAL)
By: /s/ Xxxx X. Register
-------------------------------------
Title: Principal
15
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA, as a Lender, a Purchaser and a
holder of a Subordinated Contingent Note
(SEAL)
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Title: Vice President
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