EXHIBIT 10.1
EIGHTH AMENDMENT TO AND LIMITED WAIVER
UNDER CREDIT AGREEMENT
THIS EIGHTH AMENDMENT TO AND LIMITED WAIVER UNDER CREDIT
AGREEMENT (this "Eighth Amendment") is dated as of December 17, 2001, among
XXXXXXXX XXXXX, INC. (the "Borrower"), WACHOVIA BANK, N.A., as Administrative
Agent (the "Administrative Agent"), FIRST UNION NATIONAL BANK, as Syndication
Agent (the "Syndication Agent"), BANK ONE, N.A., as Documentation Agent (the
"Documentation Agent") and the Banks which are signatories hereto (collectively,
the "Banks").
W I T N E S S E T H :
WHEREAS, the Borrower, the Administrative Agent, the Syndication
Agent, the Documentation Agent and the Banks executed and delivered that certain
$130,000,000 Credit Agreement dated as of May 26, 2000 among the Borrower, the
Administrative Agent, the Syndication Agent, the Documentation Agent, and the
Banks, as amended by First Amendment to Credit Agreement dated as of November 6,
2000, Second Amendment to and Waiver under Credit Agreement dated as of May 15,
2001, Third Amendment to Credit Agreement dated as of June 29, 0000, Xxxxxx
Xxxxxxxxx to Credit Agreement dated as of July 31, 2001, Fifth Amendment to
Credit Agreement dated as of August 7, 2001, Sixth Amendment to Credit Agreement
dated as of August 13, 2001 and Seventh Amendment to and Limited Waiver Under
Credit Agreement dated as of October 31, 2001 (the "Seventh Amendment") (as so
amended, the "Credit Agreement");
WHEREAS, the Borrower has requested and the Administrative Agent and
the Banks have agreed to certain amendments to the Credit Agreement, subject to
the terms and conditions hereof;
WHEREAS, pursuant to the terms of the Seventh Amendment, the
Administrative Agent and the Banks agreed, among other things, to waive certain
Events of Default, which waiver will expire on December 17, 2001, pursuant to
the terms of the Seventh Amendment; and
WHEREAS, the Borrower has advised the Administrative Agent and the
Banks that for the Fiscal Quarter ending December 30, 2001 the Borrower will be
in breach of certain financial covenants contained in the Credit Agreement
(collectively, the "Additional Events of Default");
WHEREAS, the Borrower has requested that the Administrative Agent and
the Banks extend the waiver provided for in the Seventh Amendment and waive the
Additional Events of Default, and the Administrative Agent and the Required
Banks have agreed to such extension and waiver, 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 Borrower, the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Banks hereby
covenant and agree as follows:
1. Definitions. Unless otherwise specifically defined herein, each
term used herein which is defined in the Credit Agreement shall have the meaning
assigned to such term in the Credit Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Credit Agreement shall from and after the date hereof refer to the Credit
Agreement as amended hereby.
2. Amendment to Section 1.01. Section 1.01 of the Credit Agreement is
hereby amended by amending the definitions of "Commitment Reduction Date" and
"Reserved Asset Disposition Proceeds" by deleting the date "December 17, 2001"
where such date appears therein and replacing such date with "January 7, 2002".
3. Amendment to Section 2.08. Section 2.08 of the Credit Agreement is
hereby amended by deleting the date "December 17, 2001" where such date appears
in paragraph (b) thereof and replacing such date with "January 7, 2002".
4. Amendment to Section 5.01. Section 5.01 of the Credit Agreement is
hereby amended by adding the following proviso at the end of paragraph (a)
thereof:
"provided, that with respect to the 2001 Fiscal Year , such
financial statements may be delivered on or before January
7, 2002;"
5. Amendment to Section 5.30. Section 5.30 of the Credit Agreement is
hereby amended by deleting the date "December 1, 2001" where such date appears
therein and replacing such date with "January 7, 2002".
6. Limited Waiver. The "Waiver Period," as defined in paragraph 9 of
the Seventh Amendment, is hereby extended to and including January 7, 2002. In
addition, subject to the terms and conditions set forth herein, the
Administrative Agent and the Banks waive, for the period commencing on the date
hereof and ending on January 7, 2002 (the "Eighth Amendment Waiver Period") (i)
the Borrower's non-compliance with the Fixed Charge Coverage Ratio covenant
contained in Section 5.17 of the Credit Agreement for the Fiscal Quarter ending
December 30, 2001, (ii) the Borrower's non-compliance with the Leverage Ratio
covenant contained in Section 5.19 of the Credit Agreement for the Fiscal
Quarter ending December 30, 2001, (iii) the Borrower's non-compliance with the
Consolidated Total EBITDA covenant contained in Section 5.29 of the Credit
Agreement for the Fiscal Quarter ending December 30, 2001, (iv) the Borrower's
non-compliance with the Consolidated Tangible Net Worth covenant contained in
Section 5.20 of the Credit Agreement during the Fiscal Quarter ending December
30, 2001 and thereafter through the end of the Eighth Amendment Waiver Period,
and (v) the Events of Default that have occurred and are continuing or will
occur and continue solely as a result of such non-compliance; provided that upon
the expiration of the Waiver Period and the Eighth Amendment Waiver Period, the
waivers provided for herein shall be immediately (without cure period or notice)
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and automatically terminated in their entirety and be of no force and effect as
if the waivers had never been granted.
7. Restatement of Representations and Warranties. The Borrower hereby
restates and renews each and every representation and warranty heretofore made
by it in the Credit Agreement and the other Loan Documents as fully as if made
on the date hereof (but after giving effect to the amendments and limited waiver
contained herein) and with specific reference to this Eighth Amendment.
8. Effect of Amendments and Waiver. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Loan Documents
shall be and remain in full force and effect, and shall constitute the legal,
valid, binding and enforceable obligations of the Borrower.
9. Reaffirmation; No Novation or Mutual Departure. The Borrower
expressly acknowledges and agrees that: (i) there has not been, and this Eighth
Amendment does not constitute or establish, a novation with respect to the
Credit Agreement or any of the Loan Documents and (ii) nothing in this Eighth
Amendment shall affect or limit the Administrative Agent's and the Banks' right
to demand payment of liabilities owing from the Borrower to the Administrative
Agent and the Banks under, or to demand strict performance of the terms,
provisions and conditions of, the Credit Agreement and the other Loan Documents,
to exercise any and all rights, powers and remedies under the Credit Agreement
or the other Loan Documents 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 the terms hereof, the Credit
Agreement or the other Loan Documents.
10. Ratification. Except as expressly contemplated or provided
herein, the Borrower hereby restates, ratifies and reaffirms each and every
term, covenant and condition set forth in the Credit Agreement and the other
Loan Documents effective as of the date hereof.
11. Counterparts. This Eighth Amendment 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
Eighth Amendment 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. To induce the Administrative Agent and the Required
Banks to enter into this Eighth Amendment, the Borrower 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 Borrower arising out
of or with respect to any of the Loans or other obligations of the Borrower owed
to the Administrative Agent or the Banks under the Credit Agreement.
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14. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendments and waivers herein contained.
15. Governing Law. This Eighth Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
16. Conditions Precedent. This Eighth Amendment shall become
effective only upon: (i) execution and delivery (including by facsimile) of this
Eighth Amendment by the Borrower, the Administrative Agent and the Required
Banks; (ii) execution and delivery (including by facsimile) of the Consent and
Reaffirmation of Guarantors at the end hereof by the Guarantors; (iii) receipt
by the Administrative Agent of a copy of a similar amendment executed and
delivered by the Majority Senior Note Holders (as defined in the Intercreditor
Agreement), which amendment shall, among other things, provide for the accrual
of, and deferral of the payment of, a certain portion of the interest on the
Senior Notes; (iv) execution and delivery (including by facsimile) by the
Required Secured Parties of the Seventh Amendment to Amended and Restated
Intercreditor Agreement in substantially the form attached hereto as Annex 1,
and of the Consent and Reaffirmation of the Company and the Guarantors at the
end thereof by the Borrower and the Guarantors; and (v) payment of outstanding
professionals' fees and expenses of the Administrative Agent and Collateral
Agent.
[SIGNATURES CONTAINED ON NEXT PAGE]
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IN WITNESS WHEREOF, the Borrower, the Administrative Agent, the Syndication
Agent, the Documentation Agent and each of the Required Banks has caused this
Eighth Amendment to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
XXXXXXXX XXXXX, INC.,
as Borrower
By: Xxxx X. Xxxx
-------------------------------------
Title: Treasurer
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WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
By: Xxxxxxx XxXxxxxx
-------------------------------------
Title: Senior Vice President
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FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank
By: Xxxxxxx XxXxxxxx
-------------------------------------
Title: Senior Vice President
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BANK ONE, N.A.,
as Documentation Agent and as a Bank
By: C. Xxxxxx Xxxxxx
-------------------------------------
Title: First Vice President
8
BRANCH BANKING AND TRUST COMPANY, as a Bank
By: Xxxxxxx X. X. Xxxxxxx
-------------------------------------
Title: Senior Vice President
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CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Eighth
Amendment to and Waiver under Credit Agreement (the "Eighth Amendment"), (ii)
consents to the execution and delivery of the Eighth Amendment by the parties
thereto, (iii) reaffirms all of its obligations and covenants under the Amended
and Restated Guaranty dated as of November 6, 2000 (the "Guaranty") executed by
it, (iv) agrees that none of such obligations and covenants shall be affected by
the execution and delivery of the Eighth Amendment, (v) acknowledges and agrees
that there exists no right of offset, defense, counterclaim, claim or objection
in favor of such Guarantor (as defined in that certain Credit Agreement dated as
of May 26, 2000, as amended (the "Credit Agreement") among Xxxxxxxx Xxxxx, Inc.,
as borrower, Wachovia Bank, N.A., as administrative agent (the "Administrative
Agent"), First Union National Bank, as syndication agent, Bank One, N.A., as
documentation agent and the banks which are signatories thereto (the "Banks"))
arising out of or with respect to any of the Loans (as defined in the Credit
Agreement) or other obligations of such Guarantor owed to the Administrative
Agent or the Banks under the Credit Agreement, the Guaranty or the other Loan
Documents (as defined in the Credit Agreement), and (vi) agrees to take such
further actions as the Administrative Agent shall reasonably require in
connection with the Eighth Amendment and to evidence the amendments and waivers
therein contained. 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.
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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)
By: Xxxx X. Xxxx
----------------------------------------------
Title: Vice President
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Research Services, Inc.
a General Partner
By: Xxxx X. Xxxx
----------------------------------------------
Title: Vice President
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ANNEX 1 TO CONSENT AND WAIVER UNDER CREDIT AGREEMENT
[FORM OF SEVENTH AMENDMENT TO AMENDED AND RESTATED
INTERCREDITOR AGREEMENT]
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SEVENTH AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
SEVENTH AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
("Seventh Amendment"), dated as of December 17, 2001, among Wachovia Bank, N.A.,
in its capacity as collateral agent hereunder (the "Collateral Agent"), each of
the Senior Note Holders specified on the signature pages hereof and each of the
Banks specified on the signature pages hereof, in each case which has executed
this Seventh Amendment, together constituting the Required Secured Parties.
WHEREAS, the Collateral Agent and the Senior Note Holders and Banks
executed and delivered that certain Amended and Restated Intercreditor Agreement
dated as of November 6, 2000, as amended by that First Amendment thereto dated
as of May 15, 2001, that Second Amendment thereto dated as of June 29, 2001,
that Third Amendment thereto dated as of August 7, 2001, that Fourth Amendment
thereto dated as of August 13, 2001, that Fifth Amendment thereto dated as of
October 1, 2001 and that Sixth Amendment thereto dated as of October 31, 2001
(as so amended, the "Intercreditor Agreement"; capitalized terms used herein
without definition have the meanings given them or incorporated by reference in
the Intercreditor Agreement);
WHEREAS, certain amendments and waivers under each of the Credit
Agreement and the Note Purchase Agreements (the "Related Amendments and
Waivers") are being executed and delivered as of the date hereof (among other
things, to extend from December 17, 2001 to January 7, 2002 the date upon which
a mandatory commitment reduction is due under the Credit Agreement and to defer
a portion of the interest payable under the Note Purchase Agreements), and the
parties desire to amend the Intercreditor Agreement to make it consistent with
such amendments;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment to Definitions. The definition of "Reserved Asset
Disposition Proceeds" contained in the Intercreditor Agreement is hereby amended
by deleting the date "December 17, 2001" where such date appears therein and
replacing such date with "January 7, 2002".
2. Amendment to Section 26. Section 26 of the Intercreditor Agreement
hereby is hereby amended by deleting the date "December 17, 2001" where such
date appears therein and replacing such date with "January 7, 2002".
3. Conditions Precedent. This Seventh Amendment shall be effective
upon (i) execution and delivery of a counterpart hereof by the Required Secured
Parties and of the Consent and Reaffirmation of the Company and the Guarantors
at the end hereof by the parties thereto and (ii) execution and delivery of the
Related Amendments and Waivers, in each case satisfactory to all Secured
Parties.
IN WITNESS WHEREOF, the Required Secured Parties hereto
have caused this Seventh Amendment to be duly executed
as of the day and year first above written.
COLLATERAL AGENT:
WACHOVIA BANK, N.A.
By:
---------------------------------------
Name:
Title:
BANKS:
WACHOVIA BANK, N.A.
By:
---------------------------------------
Name:
Title:
2
FIRST UNION NATIONAL BANK
By:
---------------------------------------
Name:
Title:
3
BANK ONE, N.A.
(MAIN OFFICE CHICAGO)
By:
---------------------------------------
Name:
Title:
4
BRANCH BANKING AND TRUST COMPANY
By:
---------------------------------------
Name:
Title:
5
NOTEHOLDERS:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By:
---------------------------------------
Name:
Title:
6
AMERICAN GENERAL ANNUITY INSURANCE COMPANY
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
7
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Adviser
By:
---------------------------------------
Name:
Title:
8
C. M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Sub-Adviser
By:
---------------------------------------
Name:
Title:
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CONSENT AND REAFFIRMATION OF THE COMPANY AND THE GUARANTORS
The undersigned, although not a party thereto, (i) consent to the
execution and delivery of the Seventh Amendment to Amended and Restated
Intercreditor Agreement to which this Consent And Reaffirmation of the Company
and the Guarantors is attached (the "Seventh Amendment"), (ii) reaffirms all of
its obligations and covenants under the Acknowledgment and Agreement at the end
of the Intercreditor Agreement executed by it, and (iii) agrees that none of
such obligations and covenants shall be affected by the execution and delivery
of the Seventh Amendment. This Consent and Reaffirmation of the Company and the
Guarantors 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.
IN WITNESS WHEREOF, the party below has caused this Consent And
Reaffirmation of the Company and the Guarantors to be duly executed as of the
date first above written.
XXXXXXXX XXXXX, INC.
By:
---------------------------------------
Name:
Title:
CURTAINS AND FABRICS, INC.
By:
---------------------------------------
Name:
Title:
GOLD XXXXX, INC.
By:
---------------------------------------
Name:
Title:
10
RASCHEL FASHION INTERKNITTING, LTD.
By:
------------------------------------------------
Name:
Title:
GFD FABRICS, INC.,
a North Carolina corporation
GFD SERVICES, INC.,
a Delaware corporation
By:
------------------------------------------------
Title:
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 MILL FARMS, INC.,
a North Carolina corporation (SEAL)
GMI COMPUTER SALES, INC.
a North Carolina corporation (SEAL)
By:
------------------------------------------------
Title:
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Research Services, Inc.
a General Partner
By:
------------------------------------------------
Title:
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