Exhibit (10)(a)
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ELEVENTH AMENDMENT TO AND LIMITED WAIVER
UNDER CREDIT AGREEMENT
THIS ELEVENTH AMENDMENT TO AND LIMITED WAIVER UNDER CREDIT
AGREEMENT (this "Eleventh Amendment") is dated as of February 15, 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 (the "Seventh Amendment"), Eighth
Amendment to and Limited Waiver Under Credit Agreement dated as of December 17,
2001 (the "Eighth Amendment"), Ninth Amendment to and Limited Waiver Under
Credit Agreement dated as of January 7, 2002 (the "Ninth Amendment") and Tenth
Amendment to and Limited Waiver Under Credit Agreement dated as of January 18,
2002 (the "Tenth 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 Tenth Amendment, the
Administrative Agent and the Banks agreed, among other things, to waive certain
Events of Default, which waiver will expire on February 15, 2002, pursuant to
the terms of the Tenth Amendment;
WHEREAS, the Borrower has requested that the Administrative Agent and
the Banks extend the waiver provided for in the Tenth 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 "February 15, 2002"
where such date appears therein and replacing such date with "March 29, 2002".
3. Amendment to Section 2.08. Section 2.08 of the Credit Agreement is
hereby amended by deleting the date "February 15, 2002" where such date appears
in paragraph (b) thereof and replacing such date with "March 29, 2002".
4. Amendment to Section 5.01. Section 5.01 of the Credit Agreement is
hereby amended by deleting the date "February 15, 2002" where such date appears
in paragraph (a) thereof and replacing such date with "March 29, 2002".
5. Amendment to Section 5.30. Section 5.30 of the Credit Agreement is
hereby amended by deleting the date "February 15, 2002" where such date appears
therein and replacing such date with "March 29, 2002".
6. Limited Waiver. The "Waiver Period," as defined in paragraph 9 of
the Seventh Amendment and as extended by paragraph 6 of the Eighth Amendment,
paragraph 6 of the Ninth Amendment and paragraph 6 of the Tenth Amendment, is
hereby extended to and including March 29, 2002. In addition, the "Eighth
Amendment Waiver Period," as defined in paragraph 6 of the Eighth Amendment and
as extended by paragraph 6 of the Ninth Amendment and paragraph 6 of the Tenth
Amendment, is hereby extended to and including March 29, 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, and that
shall become due on or before March 29, 2002, shall be due and payable not later
than 11:00 a.m. on March 29, 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
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on the date hereof (but after giving effect to the amendments and limited waiver
contained herein) and with specific reference to this Eleventh Amendment.
9. 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.
10. Reaffirmation; No Novation or Mutual Departure. The Borrower
expressly acknowledges and agrees that: (i) there has not been, and this
Eleventh 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
Eleventh 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 Eleventh 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
Eleventh 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 Eleventh 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 Eleventh Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of New York.
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17. Conditions Precedent. This Eleventh Amendment shall become
effective only upon: (i) execution and delivery (including by facsimile) of this
Eleventh 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); (iv) execution and delivery (including by facsimile) by the Required
Secured Parties of the Eleventh 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
Eleventh 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: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: President and CEO
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WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By ▇. ▇▇▇▇▇ w/permission
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Title:
6
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By ▇. ▇▇▇▇▇ w/permission
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Title:
7
BANK ONE, N.A.,
as Documentation Agent and as a Bank
By: /s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: First Vice President
8
BRANCH BANKING AND TRUST COMPANY, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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CONSENT, REAFFIRMATION AND AGREEMENT OF GUARANTORS
Each of the undersigned (i) acknowledges receipt of the foregoing Eleventh
Amendment to and Waiver under Credit Agreement (the " Eleventh Amendment"), (ii)
consents to the execution and delivery of the Eleventh 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 Eleventh 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 Eleventh 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: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Research Services, Inc.
a General Partner
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
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ANNEX 1
ELEVENTH AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
ELEVENTH AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR AGREEMENT
("Eleventh Amendment"), dated as of February 15, 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 Eleventh 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, that
Seventh Amendment thereto dated as of December 17, 2001, that Eighth Amendment
thereto dated as of January 7, 2002, that Ninth Amendment thereto dated as of
January 18, 2002 and that Tenth Amendment thereto dated as of January 29, 2002
(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 February 15, 2002 to March 29, 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 "February 15, 2002" where such date appears therein and
replacing such date with "March 29, 2002".
2. Conditions Precedent. This Eleventh Amendment shall be effective
upon 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.
[SIGNATURES CONTAINED ON NEXT PAGE]
IN WITNESS WHEREOF, the Required Secured Parties hereto have
caused this Eleventh 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:
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Name:
Title:
3
BANK ONE, N.A.
(Main Office Chicago)
By:
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Name:
Title:
4
BRANCH BANKING AND TRUST COMPANY
By:
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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 Eleventh Amendment to Amended and Restated
Intercreditor Agreement to which this Consent And Reaffirmation of the Company
and the Guarantors is attached (the "Eleventh 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 Eleventh 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:
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RASCHEL FASHION INTERKNITTING, LTD.
By: ________________________________
Name:
Title:
GFD FABRICS, INC.,
a North Carolina corporation
GFD SERVICES, INC.,
a Delaware corporation
By:
--------------------------------
Title:
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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:
--------------------------------
Title:
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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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