Exhibit 4(a)(1)
FIRST SUPPLEMENTAL INDENTURE, dated as of March 10, 1995, between Texfi
Industries, Inc., a Delaware corporation (the "Company") and First Union
National Bank of North Carolina, a national banking association (the "Trustee").
Capitalized terms used herein without definition shall have the same meanings
herein as in the Indenture.
W I T N E S S E T H
WHEREAS, the Company and the Trustee are parties to an Indenture dated
as of September 8, 1993 ("Indenture"), pursuant to which the Company may issue
up to $34,500,000 in principal amount of 8 3/4% Series Subordinated Debentures
due August 1, 1999; and
WHEREAS, Section 11.2 of the Indenture provides that the Company, when
authorized by a resolution of its Board of Directors, and the Trustee may make
certain amendments to the Indenture with the consent of the holders of at least
a majority in principal amount of the outstanding Securities;
WHEREAS, the Company desires to amend the Indenture as set forth herein
and such amendments may be made with the consent of the holders of at least a
majority in principal amount of the outstanding Securities rather than of each
Securityholder;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable considerations, receipt whereof is hereby acknowledged, the parties
hereto agree as follows:
1. The Indenture is hereby amended by adding the following definition
to Section 1.01 of the Indenture:
"New Debt" means (i) any liability of any person (a) for
borrowed money, (b) evidenced by a note, debenture or similar
instrument (including a purchase money obligation given in connection
with the acquisition of any property or assets other than inventory or
similar property acquired in the ordinary court of business), including
securities, or (c) for the payment of money relating to a Capitalized
Lease Obligation; and (ii) any liability of others described in the
preceding clause (i) which the person has guaranteed or which is
otherwise its legal liability. Notwithstanding anything to the contrary
in the foregoing, New Debt shall not include advances to the Company
under any of its factoring agreements.
2. The Indenture is hereby amended by deleting Section 4.11 of the
Indenture in its entirety and inserting therefor the following:
"SECTION 4.11. Senior Indebtedness.
The Company shall not (i), directly or indirectly, create,
incur, assume or become liable for, contingently or otherwise, any New
Debt (unless, in the case of any particular New Debt, the instrument
creating or evidencing the same or the assumption or guarantee thereof
expressly provides that such New Debt shall not be senior in right of
payment to the Securities), or (ii) permit any Subsidiary to, directly
or indirectly, create, incur, assume or become liable for, contingently
or otherwise, any New Debt ((i) and (ii) are collectively referred to
in this Section 4.11 as an "incurrence") if, upon given effect to such
incurrence on a pro forma basis, the aggregate amount of the sum of (x)
Senior Indebtedness of the Company and (y) the aggregate Indebtedness
of all of the Subsidiaries shall exceed sixty percent (60%) of Total
Capitalization, all calculated as of the date of such incurrence."
3. The Indenture is hereby amended by deleting Section 4.12 of the
Indenture in its entirety and inserting therefor the following:
"SECTION 4.12. Total Indebtedness.
The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, create, incur, assume or become liable for,
contingently or otherwise (collectively referred to in this Section
4.12 as an "incurrence") any New Debt if, upon giving effect to such
incurrence on a pro forma basis, the aggregate amount of the
Indebtedness of the Company and the Subsidiaries on a consolidated
basis shall exceed (i) seventy-five (75%) of Total Capitalization or
(ii) the product of (x) 4.25 multiplied by (y) Four Quarter EBITDA
(excluding write-downs for discontinued operations), all as calculated
as of the date of such incurrence."
4. Except as specifically modified herein, the Indenture shall remain
in full force and effect in accordance with its terms.
5. The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. This First Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
6. The recitals contained in this First Supplemental Indenture shall be
taken as statements of the Company and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
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7. This First Supplemental Indenture shall be governed by and construed
in accordance with the laws of the State of North Carolina.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed, all as of the date first written above.
TEXFI INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx
Title: Vice President Finance, Treasurer
(SEAL)
ATTEST:
/s/ Xxxxx X. Xxxx
Assistant Secretary
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Trustee
By: /s/ Xxx Xxxx
Title: Trust Officer
(SEAL)
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