EXHIBIT 10.1
NINTH AMENDMENT TO AND LIMITED WAIVER
UNDER CREDIT AGREEMENT
THIS NINTH AMENDMENT TO AND LIMITED WAIVER UNDER CREDIT
AGREEMENT (this "Ninth Amendment") is dated as of January 7, 2002, among
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ 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, Seventh Amendment to and Limited Waiver Under
Credit Agreement dated as of October 31, 2001 and Eighth Amendment to and
Limited Waiver Under Credit Agreement dated as of December 17, 2001 (the "Eighth
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 Eighth Amendment, the
Administrative Agent and the Banks agreed, among other things, to waive certain
Events of Default, which waiver will expire on January 7, 2002, pursuant to the
terms of the Eighth Amendment;
WHEREAS, the Borrower has requested that the Administrative Agent and
the Banks extend the waiver provided for in the Eighth Amendment, 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 "January 7, 2002"
where such date appears therein and replacing such date with "January 18, 2002".
3. Amendment to Section 2.08. Section 2.08 of the Credit Agreement is
hereby amended by deleting the date "January 7, 2002" where such date appears in
paragraph (b) thereof and replacing such date with "January 18, 2002".
4. Amendment to Section 5.01. Section 5.01 of the Credit Agreement is
hereby amended by deleting the date "January 7, 2002" where such date appears in
paragraph (a) thereof and replacing such date with "January 18, 2002".
5. Amendment to Section 5.30. Section 5.30 of the Credit Agreement is
hereby amended by deleting the date "January 7, 2002" where such date appears
therein and replacing such date with "January 18, 2002".
6. Limited Waiver. The "Waiver Period" and the "Eighth Amendment
Waiver Period," as defined in paragraph 6 of the Eighth Amendment, are hereby
extended to and including January 18, 2002; 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) and
automatically terminated in their entirety and be of no force and effect as if
the waivers had never been granted.
7. Payment of Interest. The Borrower and the Banks hereby agree that
all interest heretofore due and unpaid under the Credit Agreement shall be due
and payable not later than 11:00 a.m. on January 18, 2002, and the grace period
of five Business Days set forth in Section 6.01(a) of the Credit Agreement shall
not be applicable to the payment required under this Section 7 and no grace
period shall be afforded to the Borrower with respect thereto.
8. 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 Ninth Amendment.
9. Effect of Amendments and Waiver. Except as set forth expressly
hereinabove, all terms of the Credit Agreement and the other Loan Documents
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shall be and remain in full force and effect, and shall constitute the legal,
valid, binding and enforceable obligations of the Borrower.
10. Reaffirmation; No Novation or Mutual Departure. The Borrower
expressly acknowledges and agrees that: (i) there has not been, and this Ninth
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 Ninth
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.
11. 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.
12. Counterparts. This Ninth 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.
13. Section References. Section titles and references used in this
Ninth 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.
14. No Default. To induce the Administrative Agent and the Required
Banks to enter into this Ninth 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.
15. 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.
16. Governing Law. This Ninth Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
17. Conditions Precedent. This Ninth Amendment shall become effective
only upon: (i) execution and delivery (including by facsimile) of this Ninth
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
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Administrative Agent of a copy of a similar amendment executed and delivered by
the Majority Senior Note Holders (as defined in the Intercreditor Agreement);
(iv) execution and delivery (including by facsimile) by the Required Secured
Parties of the Eighth 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
Ninth Amendment to be duly executed, under seal, by its duly authorized officer
as of the day and year first above written.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.,
as Borrower
By: ▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Title: Treasurer
5
WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
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FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
7
BANK ONE, N.A.,
as Documentation Agent and as a Bank
By: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Title: First Vice President
8
BRANCH BANKING AND TRUST COMPANY, as a Bank
By: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Senior Vice President
9
CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Ninth
Amendment to and Waiver under Credit Agreement (the "Ninth Amendment"), (ii)
consents to the execution and delivery of the Ninth 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 Ninth 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 Ninth 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 ▇▇▇▇▇, 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)
▇▇▇▇▇▇▇ LACES, LTD.,
a New York corporation (SEAL)
ADVISORY RESEARCH SERVICES, INC.
a North Carolina corporation (SEAL)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (MICHIGAN), INC.
a Michigan corporation (SEAL)
GUILFORD AIRMONT, INC.,
a North Carolina corporation (SEAL)
GOLD ▇▇▇▇▇ FARMS, INC.,
a New York corporation (SEAL)
GMI COMPUTER SALES, INC.
a North Carolina corporation (SEAL)
By: ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------
Title: Vice President
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Research Services, Inc.
a General Partner
By: ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------------
Title: Vice President
11
ANNEX 1
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EIGHTH AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
EIGHTH AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
("Eighth Amendment"), dated as of January 7, 2002, 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 Eighth 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, that Sixth Amendment thereto dated as of October 31, 2001 and
that Seventh Amendment thereto dated as of December 17, 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 January 7, 2002 to January 18, 2002 the date upon which a
mandatory commitment reduction is due under the Credit Agreement), 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 "January 7, 2002" where such date appears therein and
replacing such date with "January 18, 2002".
2. Conditions Precedent. This Eighth 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.
[SIGNATURES CONTAINED ON NEXT PAGE]
IN WITNESS WHEREOF, the Required Secured Parties hereto
have caused this Eighth 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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc. as
Investment Adviser
By:
--------------------------------
Name:
Title:
8
C. M. LIFE INSURANCE COMPANY
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc. as
Investment Sub-Adviser
By:
--------------------------------
Name:
Title:
9
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 Eighth Amendment to Amended and Restated
Intercreditor Agreement to which this Consent And Reaffirmation of the Company
and the Guarantors is attached (the "Eighth 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 Eighth 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.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
By:
-----------------------------------------------
Name:
Title:
CURTAINS AND FABRICS, INC.
By:
-----------------------------------------------
Name:
Title:
GOLD ▇▇▇▇▇, 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:
-----------------------------------------------
Name:
Title:
MEXICAN INDUSTRIES OF NORTH
CAROLINA, INC. a North Carolina corporation (SEAL)
▇▇▇▇▇▇▇ LACES, LTD.,
a New York corporation (SEAL)
ADVISORY RESEARCH SERVICES, INC.
a North Carolina corporation (SEAL)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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:
-----------------------------------------------
Name:
Title:
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Research Services, Inc.
a General Partner
By:
-----------------------------------------------
Name:
Title:
11
