Exhibit (10)
AMENDMENT NO. 2
Dated as of December __, 2003
This AMENDMENT NO. 2 (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 Lenders of its
intention to transfer certain existing split dollar life insurance contracts,
including the cash surrender value thereof, to a trust for the benefit of the
individuals covered by such policies.
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 transfer of such
cash surrender value.
SECTION 1. Amendments to Credit Agreement. Upon the occurrence
of the Second Amendment Effective Date (as defined herein), the Credit Agreement
is hereby amended as follows:
(a) Section 6.7(a) of the Credit Agreement is
hereby amended by (i) deleting the word "and" at the end of Clause (xi) thereof,
(ii) deleting the "." at the end of clause (xii) thereof and inserting in lieu
thereof "; and" and (iii) adding the following new clause (xiii):
(xiii) the disposition of certain existing split dollar life insurance
contracts, including the cash surrender value thereof, into a trust for
the benefit of the individuals covered by such policies, provided that
the total amount of the Company's contribution into such trust,
exclusive of the Company's and/or executive's portions of the cash
surrender value in the split dollar life insurance contracts shall not
exceed $850,000, provided further that the total value of the assets
transferred to the trust shall not exceed $3,000,000.00 in the
aggregate.
SECTION 2. Conditions of Effectiveness. This Amendment shall
become effective on the date (such date, the "Second Amendment Effective Date")
upon which the Agent
shall have received counterparts of this Amendment executed by the Company, the
Guarantors and the Required Lenders.
The effectiveness of this Amendment is further conditioned
upon the presentation of evidence satisfactory to the Agent of the written
consent of the employees who will be beneficiaries of the trust to the
termination of the split dollar life insurance contracts and to the termination
of the Company's obligations under its supplemental retirement plan.
SECTION 3. 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 Amendment.
SECTION 4. Reference to and Effect on the Loan Documents. (a)
Upon the occurrence of the Second Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or
words of like import, and each reference in 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 5. 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,
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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 5. 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 6. 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 7. 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/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
TWIN RIVERS TEXTILE PRINTING & FINISHING
By: Xxxxxxxx Xxxxx, Inc., as general partner
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
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: Director
BANK ONE, NA
By: /s/C. Xxxxxx Xxxxxx
-------------------
Name: C. Xxxxxx Xxxxxx
Title: First Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/Xxxxxxx X. Xxxxx
-------------------
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/Xxxxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
