Exhibit 10.1
------------
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "First Amendment") is
dated as of November 6, 2000 among XXXXXXXX XXXXX, INC. (the "Borrower"),
WACHOVIA BANK, N.A., as Administrative Agent, FIRST UNION NATIONAL BANK, as
Syndication Agent, BANK ONE, NA, as Documentation Agent and WACHOVIA BANK, N.A.,
FIRST UNION NATIONAL BANK, BANK ONE, NA, and BRANCH BANKING AND TRUST COMPANY,
as Banks (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 Credit
Agreement, dated as of May 26, 2000 (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;
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 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
hereby is amended by (i) deleting the definitions of "Newly Designated
Subsidiary", "Non-Significant Foreign Subsidiary", "Significant Domestic
Subsidiary" and "Significant Foreign Subsidiary", (ii) amending and restating
each of the following definitions which previously were contained in Section
1.01 of the Credit Agreement and (iii) adding to the Credit Agreement the
following definitions which were not previously contained in Section 1.01 of the
Credit Agreement.
"A-Advanced" means A-Advanced Mini Storage, LLC, a
limited liability company in which the Borrower owns 50% of the
membership interests and two individuals not otherwise affiliated with
the Borrower each own the other 25%.
"A-Advanced GuarantY" means the unconditional
guaranty of payment executed and delivered by the Borrower and the
other members of A-Advanced in favor of Wachovia, guaranteeing payment
of the principal, interest, fees, costs and other amounts arising in
connection with to revolving and term loan obligations of A-Advanced to
Wachovia in the maximum principal amount of $2,550,000 incurred to
construct mini-xxxx houses on land owned by the Borrower and leased to
A-Advanced.
"A-Advanced Guaranty Obligations" means the
obligations of the Borrower to Wachovia under the A-Advanced Guaranty.
"Applicable Restructuring Charges" means, for each
applicable quarterly reporting period in which such charges should be
included: (i) restructuring charges incurred in the fourth Fiscal
Quarter of the 2000 Fiscal Year in an amount not exceeding $28,645,000,
described in the Restructuring Charges Letter; (ii) restructuring
charges to be incurred in each Fiscal Quarter of the 2001 Fiscal Year
described in the Restructuring Charges Letter; provided, that the
aggregate of such Applicable Restructuring Charges for the 2001 Fiscal
Year shall not exceed $14,015,000.
"Asset Dispositions" means, subject to the Asset
Letter, any disposition, whether by sale, lease, assignment or other
transfer of (a) any of the assets of the Borrower or its Domestic
Subsidiaries (other than a Receivables Subsidiary), including, without
limitation, pursuant to any Permitted Factoring Arrangements and any
Receivables Securitization Program, and (b) any of the assets of a
Foreign Subsidiary pursuant to a Foreign Sale-Leaseback Transaction.
"Asset Letter" means a letter dated November 6, 2000
from the Borrower to the Agent, the Banks and the Senior Note Holders
designated the Asset Letter.
"Bank Letter of Credit Obligations" means all
reimbursement obligations and all other obligations, including
interest, fees, costs and indemnification amounts, incurred or arising
from any standby or trade letters of credit issued by any Bank or
Affiliate thereof for the account of the Borrower or any Subsidiary.
"Cash Deposits" has the meaning set forth in Section
5.26.
"Cash Deposit Limits" has the meaning set forth in
Section 5.26.
"Consolidated Total EBITDA" means, as to the Borrower
and its Consolidated Subsidiaries calculated for each Fiscal Quarter
then ending, and the immediately preceding 3 Fiscal Quarters
(determined on a consolidated basis and in accordance with GAAP), the
sum of (a) Consolidated Net Income, plus (b) Consolidated Interest
Expense (to the extent subtracted from Consolidated Net Income), plus
(c) Amortization (to the extent subtracted from Consolidated Net
Income), plus (d) Depreciation (to the extent subtracted from
Consolidated Net Income), plus (e) consolidated tax expenses for such
2
period (to the extent subtracted from Consolidated Net Income), minus
or plus (f) to the extent included in Consolidated Net Income, any
non-operating gains and losses, up to but not in excess of $2,500,000,
plus (g) non cash charges up to but not in excess of $5,000,000, plus
(h) Applicable Restructuring Charges.
"Contribution Agreement" means the Amended and
Restated Contribution Agreement of even date with the First Amendment
Effective Date in substantially the form of Exhibit L to be executed by
the Borrower and each of the Guarantors.
"Domestic Stock Pledge Agreement" means the Amended
and Restated Domestic Stock Pledge Agreement, substantially in the form
of Exhibit J, and to be executed by the Borrower and each Guarantor
owning Domestic Subsidiaries, agreeing to pledge to the Collateral
Agent pursuant thereto, for the equal and ratable benefit of the
Secured Parties, all of the outstanding capital stock of all Domestic
Subsidiaries, to secure the payment of all of the Secured Obligations,
as any of the foregoing may be amended or supplemented from time to
time.
"First Amendment Effective Date" means November 6,
2000.
"Foreign Capital Lease" means any lease by any
Foreign Subsidiary entered into after the First Amendment Effective
Date of any Property or other assets not located in any state or
territory of the United States of America or the District of Columbia,
where such lease is required to be treated as a capital lease in
accordance with GAAP and the lessor obtains no interest in any of the
Collateral, any Plants or any Other Real Property which is encumbered
by a Mortgage.
"Foreign Sale-Leaseback Transaction" means any
transaction pursuant to which any Foreign Subsidiary sells any Property
or other asset to a another Person and then leases back such Property
or other asset not located in any state or territory of the United
States of America or the District of Columbia from such other Person
and the lessor obtains no interest in any assets of the Borrower or any
Subsidiary, other than the Property or assets leased pursuant thereto.
"Foreign Stock Pledge Agreement" means, collectively,
(i) the Amended and Restated Foreign Stock Pledge Agreement,
substantially in the form of Exhibit M, and (ii) and if requested by
the Administrative Agent, any pledge or other agreement which may be
required pursuant to applicable law in the jurisdiction in which a
Direct Foreign Subsidiary is located, in each case to be executed and
delivered by the Borrower and each Domestic Subsidiary which owns any
Direct Foreign Subsidiaries, agreeing to pledge to the Collateral Agent
pursuant thereto, for the ratable benefit of the Secured Parties, 65%
of the capital stock of all Direct Foreign Subsidiaries, to secure the
payment of all of the Secured Obligations, as any of the foregoing may
be amended or supplemented from time to time.
3
"Guarantors" means any Domestic Subsidiary which is a
Domestic Subsidiary on the First Amendment Effective Date and any
Person which becomes a Domestic Subsidiary and a Guarantor pursuant to
Section 5.21; in each case subject to the provisions of Section
5.21(b).
"Guaranty" means the Amended and Restated Guaranty
Agreement of even date with the First Amendment Effective Date in
substantially the form of Exhibit "K" to be executed by the Guarantors,
unconditionally and jointly and severally Guaranteeing payment of the
Bank Obligations.
"Intercreditor Agreement" means the Amended and
Restated Intercreditor Agreement dated as of October 13, 2000,
substantially in the form of Exhibit N, among the Collateral Agent, the
Banks, The Prudential Insurance Company of America, The Variable
Annuity Life Insurance Company, American General Annuity Insurance
Company, Massachusetts Mutual Life Insurance Company and C. M. Life
Insurance Company, together with the Acknowledgment and Agreement of
the Borrower and the Guarantors at the end thereof, as it may be
amended or supplemented from time to time.
"Interest Coverage Ratio" means the ratio of (i)
Consolidated Total EBITDA to (ii) Consolidated Interest Expense.
"Net Proceeds of Asset Dispositions" means, in
connection with any Asset Disposition , the proceeds thereof in the
form of cash and cash equivalents (including any such proceeds received
by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received) of such Asset Disposition,
after deducting therefrom, as applicable, (i) attorneys' fees,
accountants' fees, investment banking fees, survey costs, title
insurance premiums, and related search and recording charges, transfer
taxes, deed or mortgage recording taxes, amounts required to be applied
to the repayment of Debt secured by a Lien on any asset which is the
subject of such Asset Disposition and other customary fees and expenses
actually incurred in connection therewith and (ii) taxes paid or
reasonably estimated by the Borrower or any Subsidiary to be payable as
a result thereof (including withholding taxes incurred in connection
with cross-border transactions, if applicable).
"Net Proceeds of Debt" means, in connection with the
issuance or incurrence by the Borrower or any Subsidiary of any Debt of
the types described in clauses (i), (ii), or (vi) of the definition of
"Debt" (including in connection with incurrence by any Foreign
Subsidiary of any obligations under Foreign Capital Leases or other
Permitted Foreign Debt, but not including in "Net Proceeds of Debt" any
replacements, refundings or refinancings of existing Debt, except to
the extent, if any, that the principal amount thereof is increased),
the cash proceeds received from such issuance or incurrence, or, with
respect to Foreign Capital Leases, the gross purchase price of the
assets subject thereto, in each case net of attorneys' fees, investment
banking fees, agent's fees, facility fees, accountants' fees and other
customary fees and expenses actually incurred in connection therewith,
4
or sales or recording taxes incurred by a Foreign Subsidiary in
connection with any Foreign Capital Leases.
"Patent Assignment" means the Amended and Restated
Patent Collateral Assignment, substantially in the form of Exhibit P,
to be executed and delivered by the Borrower and each applicable
Guarantor, granting to the Collateral Agent, for the equal and ratable
benefit of the Secured Parties, a first priority collateral assignment
of the patents described therein to secure the Secured Obligations,
together with all amendments and supplements thereto.
"Permitted Foreign Debt" means any Debt incurred by a
Foreign Subsidiary consisting of (i) any Foreign Capital Lease or (ii)
any other Debt to a Person which is not affiliated with the Borrower or
any Subsidiaries which is not secured by any of the Collateral, any
Plants or any Other Real Property which is encumbered by a Mortgage.
"Restricted Payment" means (i) any dividend or other
distribution on any shares of the Borrower's Capital Stock (except
dividends payable solely in shares of its Capital Stock) or (ii) any
payment (other than solely in shares of its Capital Stock) on account
of the purchase, redemption, retirement or acquisition of (a) any
shares of the Borrower's Capital Stock (except shares acquired upon the
conversion thereof into other shares of its Capital Stock) or (b) any
option, warrant or other right to acquire shares of the Borrower's
Capital Stock; provided, however, that Restricted Payment shall not
include the issuance of shares in exchange for "underwater" stock
options, issuance of restricted stock or payments related to the
Stockholders' Agreement with the Borrower dated as of April 30, 1991,
as amended, relating to the acquisition by the Borrower of certain of
Xxxxxxx X. Xxxxx' shares of Capital Stock; so long as (i) the Borrower
continuously maintains key man life insurance on the life of Xxxxxxx X.
Xxxxx in an amount not less than $2,900,000, (ii) the proceeds of such
insurance are applied toward such payment and (iii) the aggregate
amount of such payment (including amounts paid with such insurance)
does not exceed $2,900,000.
"Restructuring Charges Letter means a letter dated
November 6, 2000 from the Borrower to the Agent, the Banks and the
Senior Note Holders describing the Applicable Restructuring Charges.
"Secured Obligations" means the Bank Obligations, the
Senior Note Obligations, the Cash Management Services Obligations,
subject to the limitations contained in the Intercreditor Agreement,
all Hedge Obligations with any Bank or Affiliate thereof, all Bank
Letter of Credit Obligations, subject to the limitations contained in
the Intercreditor Agreement, all A-Advanced Guaranty Obligations and
other Secured Obligations described in the Intercreditor Agreement
(pertaining to certain costs and expenses).
"Security Agreement" means the Amended and Restated
Security Agreement, substantially in the form of Exhibit O, to be
executed and delivered by the Borrower and each Guarantor, granting to
the Collateral Agent, for the equal and ratable benefit of the Secured
Parties, a first priority security interest in the personal property
described therein, subject only to Permitted Encumbrances, to secure
5
the Secured Obligations, together with all amendments and supplements
thereto.
3. Amendment to Section 2.05(a). Section 2.05(a) hereby is amended by
deleting the definition of "Applicable Margin" contained therein and the table
following such definition and substituting the following therefor:
"Applicable Margin" means:
(i) for the period commencing on the First Amendment
Effective Date Date to and including the first Performance
Pricing Determination Date after the First Amendment Effective
Date, (x) for any Base Rate Loan, 0%, and (y) for any
Euro-Dollar Loan or Foreign Currency Loan, 4.25%; and
(ii) from and after the first Performance Pricing
Determination Date after the First Amendment Effective Date,
(x) for any Base Rate Loan, 0%, and (y) for any Euro-Dollar
Loan or Foreign Currency Loan, the percentage determined on
each Performance Pricing Determination Date by reference to
the table set forth below and the Leverage Ratio for the
quarterly or annual period ending immediately prior to such
Performance Pricing Determination Date.
Leverage Ratio Applicable Margin
-------------- -----------------
< 1.75 1.25%
=> 1.75 and < 2.25 1.75%
=> 2.25 and < 2.75 2.25%
=> 2.75 and < 3.25 2.75%
=> 3.25 and < 4.00 3.75%
=> 4.00 4.25%
4. Amendment to Section 2.06(a). Section 2.06(a) hereby is amended by
deleting the first sentence thereof and the table following such first sentence
and substituting the following therefor:
The Borrower shall pay to the
Administrative Agent, for the ratable account of each Bank, a
commitment fee, calculated in the manner provided in the last
paragraph of Section 2.05(a)(ii), on the aggregate daily
amount of such Bank's Unused Commitment, at a rate per annum
equal to: (i) for the period commencing on the First Amendment
Effective Date to and including the first Performance Pricing
Determination Date after the First Amendment Effective Date,
0.50%; and (ii) from and after the first Performance Pricing
Determination Date after the First Amendment Effective Date,
the percentage determined on each Performance Pricing
Determination Date by reference to the table set forth below
and the Leverage Ratio for the quarterly or annual period
ending immediately prior to such Performance Pricing
Determination Date:
Leverage Ratio Commitment Fee
-------------- --------------
< 1.75 0.25%
=> 1.75 and < 2.75 0.375%
=>2.75 0.50%
6
5. Amendment to Section 2.10. Section 2.10 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 2.10 Mandatory Prepayments.
(a) On each date on which the
Commitments are reduced pursuant to Section 2.07 or Section
2.08, the Borrower shall repay or prepay such principal amount
of the outstanding Loans, if any (together with interest
accrued thereon and any amount due under Section 8.05(a)), as
may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the
aggregate amount of the Commitments as then reduced. All such
prepayments shall be applied first to the Syndicated Dollar
Loan Notes and then to the Swing Loan Note.
(b) If the Administrative Agent
determines at any time (either on its own initiative or at the
instance of any Bank) that the aggregate principal amount of
the Foreign Currency Loans outstanding (after converting each
Foreign Currency Loan to its Dollar Equivalent on the date of
calculation) at any time exceeds $25,000,000, then upon 5
Foreign Currency Business Days' written notice from the
Administrative Agent, the Borrower shall prepay an aggregate
principal amount of Foreign Currency Loans sufficient to bring
the aggregate of the Foreign Currency Loans outstanding within
an amount equal to $25,000,000. Nothing in the foregoing shall
require the Administrative Agent to make any such calculation
unless expressly requested to do so by the Required Banks.
(c) Within 30 days of the end of each
Fiscal Quarter in which the Borrower or any Domestic
Subsidiary receives Net Proceeds of Asset Dispositions from
any Receivables Securitization Program, the Borrower shall
certify to the Administrative Agent the amount of Net Proceeds
of Asset Dispositions so received and the current amount of
Maximum Available Proceeds under such Receivables
Securitization Program and prepay the outstanding Loans and
Senior Notes (as provided in paragraph (j) below) in an
aggregate principal amount equal to 85% of such Net Proceeds
of Asset Dispositions, but including such Net Proceeds of
Asset Dispositions only to the extent they are derived from
sales of Receivables in an aggregate amount in excess of the
highest level of aggregate sales of Receivables for which Net
Proceeds of Asset Dispositions have previously been paid
pursuant to this paragraph (c).
(d) After the First Amendment Effective
Date, as to all Asset Dispositions (other than in connection
with a Receivables Securitization Program or Permitted
Factoring Arrangement) with respect to which the Net Proceeds
of Asset Disposition are equal to or greater than $100,000
(each a "Material Asset Disposition"), within 3 Domestic
Business Days after the Borrower or any Domestic Subsidiary
receives Net Proceeds of Asset Dispositions therefrom, the
7
Borrower shall certify to the Administrative Agent the amount
of Net Proceeds of Asset Dispositions so received from such
Material Asset Disposition, and prepay the outstanding Loans
and Senior Notes (as provided in paragraph (j) below) by an
aggregate principal amount equal to 100% of such Net Proceeds
of Asset Dispositions in excess of $1,000,000 received from
Material Asset Dispositions after the First Amendment
Effective Date.
(e) After the First Amendment Effective
Date, within 5 Domestic Business Days after any Foreign
Subsidiary receives Net Proceeds of Asset Dispositions from
any Foreign Sale-Leaseback Transaction, the Borrower shall
certify to the Administrative Agent the amount of Net Proceeds
of Asset Dispositions so received and prepay the outstanding
Loans and Senior Notes (as provided in paragraph (j) below) in
an aggregate principal amount equal to 65% of the amount of
such Net Proceeds of Asset Dispositions.
(f) After the First Amendment Effective
Date, within 3 Domestic Business Days after the Borrower or
any Domestic Subsidiary receives Net Proceeds of Debt in
excess of $250,000, the Borrower shall certify to the
Administrative Agent the amount of Net Proceeds of Debt so
received and prepay the outstanding Loans and Senior Notes (as
provided in paragraph (j) below) in an aggregate principal
amount equal to 100% of the amount by which such Net Proceeds
of Debt exceeds an aggregate amount of Net Proceeds of Debt so
received since the First Amendment Effective Date of $250,000.
(g) After the First Amendment Effective
Date, within 5 Domestic Business Days after any Foreign
Subsidiary receives Net Proceeds of Debt or incurs any
obligations under a Foreign Capital Lease, the Borrower shall
certify to the Administrative Agent the amount of Net Proceeds
of Debt pertaining thereto and prepay the outstanding Loans
and Senior Notes (as provided in paragraph (i) below) in an
aggregate principal amount equal to 65% of the amount of such
Net Proceeds of Debt, or, in the case of a Foreign Capital
Lease, the present value (using a discount rate equal to the
implicit interest rate of such Foreign Capital Lease) of the
aggregate amount of basic rent (excluding taxes, insurance and
similar other charges) required to be paid during the term of
such Foreign Capital Lease (excluding any renewal term, but
including any payment required to be made at the end of the
term as a result of failure to renew or purchase the
property).
(h) After the First Amendment Effective
Date, within 3 Domestic Business Days after the Borrower or
any Consolidated Subsidiary receives any Net Proceeds of
Capital Stock (excluding Net Proceeds of Capital Stock issued
in connection with the exercise of any management or employee
stock option, so long as the Borrower or such Consolidated
Subsidiary does not incur any net cash cost in connection with
the exercise of such option), the Borrower shall certify to
the Administrative Agent the amount of Net Proceeds of Capital
Stock pertaining thereto and prepay the outstanding Loans and
Senior Notes (as provided in paragraph (j) below) in an
8
aggregate principal amount equal to 100% of the amount of such
Net Proceeds of Capital Stock.
(i) After the First Amendment Effective
Date, within 3 Domestic Business Days after each date on which
the aggregate amount of Cash Deposits exceeds the Cash Deposit
Limit, the Borrower shall prepay the Loans by an amount equal
to the excess.
(j) The amount of all prepayments
pursuant to paragraphs (c) through (h), inclusive, shall be
made ratably (based on the aggregate outstanding principal
amount of Loans and under the Senior Notes) to (x) the Agent,
for the ratable benefit of the Banks and (y) ratably to the
Senior Note Holders, but subject to the exercise by any Senior
Note Holder of its contractual right to decline any mandatory
prepayments. In the event any Senior Note Holder declines any
such prepayment, the prepayments shall be made ratably based
on the aggregate outstanding principal amount of Loans and
under the Senior Notes held by Senior Note Holders who have
not declined such prepayment. The Commitments shall be ratably
reduced by the amount of all such prepayments received by the
Agent pursuant to paragraphs (c) through (h), inclusive.
(k) Each such payment or prepayment
pursuant to this Section 2.10 shall be applied ratably to the
Loans of the Banks outstanding on the date of payment or
prepayment in the following order of priority:(i) first, to
Syndicated Loans which are Base Rate Loans; (ii) secondly, to
Swing Loans which are Base Rate Loans; (iii) thirdly, to
Euro-Dollar Loans; (iv) fourthly, to Syndicated Loans which
are Foreign Currency Loans, and (v) lastly, to Swing Loans
which are Foreign Currency Loans.
6. Amendment to Section 4.04(b). Section 4.04(b) hereby is amended by
deleting it in its entirety and substituting the following therefor:
(b) Since October 3, 1999 there has been
no event, act, condition or occurrence having a Material
Adverse Effect, except to the extent, if any, any event, act,
condition or occurrence disclosed in public filings with the
Securities and Exchange Commission prior to the First
Amendment Effective Date could have a Material Adverse Effect.
7. Amendment to Section 5.01(c). Section 5.01(c) hereby is amended by
deleting it in its entirety and substituting the following therefor:
(c) simultaneously with the delivery of
each set of financial statements referred to in paragraphs (a)
and (b) above, a certificate, substantially in the form of
Exhibit F (a "Compliance Certificate"), of the chief financial
officer, the chief accounting officer or the treasurer of the
Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in
compliance with the requirements of Section 5.05, 5.15, 5.16,
5.17, 5.19, 5.20, 5.23, 5.24, 5.27 and (when applicable) 5.28
on the date of such financial statements and (ii) stating
9
whether any Default exists on the date of such certificate
and, if any Default then exists, setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
8. Amendment to Section 5.05(c). Section 5.05(c) hereby is amended by
deleting it in its entirety and substituting the following therefor:
(c) the foregoing limitation on the
sale, lease or other transfer of assets and on the
discontinuation or elimination of a business line or segment
shall not prohibit, subject to Sections 2.10, 5.21(b) and
5.22(b), if applicable:
(1) any Foreign
Sale-Leaseback;
(2) during any Fiscal
Quarter, a transfer of assets or the
discontinuance or elimination of a
business line or segment (in a single
transaction or in a series of related
transactions) unless the aggregate
assets to be so transferred or utilized
in a business line or segment to be
discontinued, when combined with all
other assets transferred or utilized in
a business line or segment to be
discontinued, in such Fiscal Quarter and
the most recent 3 consecutive Fiscal
Quarters then ended, either (x)
constituted more than 10% of
Consolidated Total Assets measured as of
the end of the immediately preceding
Fiscal Quarter for which the Borrower
has supplied financial statements
pursuant to this Agreement, or (y)
contributed more than 10% of
Consolidated Operating Income during the
most recent 4 consecutive Fiscal
Quarters for which the Borrower has
supplied financial statements pursuant
to this Agreement (disregarding any
Fiscal Quarter in which there was an
operating loss, on a consolidated
basis); provided, that, notwithstanding
the foregoing, in no event shall any
disposition of assets pursuant to this
Section 5.05(c)(2) be permitted in the
event that after such disposition, the
requirements of the final paragraph of
Section 5.21(a) would not be satisfied
or Consolidated Total Assets shall be
less than 90% of Consolidated Total
Assets measured as of the end of the
Fiscal Year ended October 3, 1999, and
the Collateral Agent shall release any
Liens which it has on any such assets
sold as permitted by this Section
5.05(c)(2), or
(3) the Borrower may enter
into an arrangement to sell Receivables
pursuant to a Receivables Securitization
Program if, as of the end of each of the
2 immediately preceding Fiscal Quarters
prior to entering into such arrangement,
the Leverage Ratio has been equal to or
less than 2.50 to 1.00.
10
9. Amendment to Section 5.07(b). The last sentence of Section 5.07(b)
hereby is deleted and the following is substituted therefor:
The Borrower agrees, at the request of
the Administrative Agent, (i) once in each year, beginning
with 2001, to request and obtain a current statement of the
withdrawal liability of the Borrower and members of the
Controlled Group from each Multiemployer Plan, if any, and
(ii) to transmit a copy of such statement to the
Administrative Agent and the Banks within fifteen (15) days
after the Borrower receives the same.
10. Amendment to Section 5.15. Section 5.15 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 5.15 Investments. Neither the Borrower nor
any of its Subsidiaries shall make Investments in any Person except (i)
existing Investments described in Schedule 5.15 and Debt permitted by
Section 5.24, (ii) loans or advances to employees not exceeding
$1,000,000 in the aggregate principal amount outstanding at any time,
in each case made in the ordinary course of business and consistent
with practices existing on the Closing Date; (iii) deposits required by
landlords, government agencies or public utilities; (iv) Investments in
direct obligations of the United States Government maturing within one
year, (v) Investments in certificates of deposit issued by a commercial
bank whose credit is satisfactory to the Administrative Agent, (vi)
Investments in commercial paper rated A1 or the equivalent thereof by
Standard & Poor's Rating Group, a division of XxXxxx-Xxxx, Inc. or P1
or the equivalent thereof by Xxxxx'x Investors Service, Inc. and in
either case maturing within 6 months after the date of acquisition,
(vii) Investments in tender bonds the payment of the principal of and
interest on which is fully supported by a letter of credit issued by a
United States bank whose long-term certificates of deposit are rated at
least AA or the equivalent thereof by Standard & Poor's Rating Group
and Aa or the equivalent thereof by Xxxxx'x Investors Service, Inc.,
(viii) Investments in the Borrower or any Guarantor, (ix) loans and
advances to Subsidiaries which are in existence on the First Amendment
Effective Date and are evidenced by Pledged Notes, (x) Investments in a
Receivables Subsidiary pursuant to a Receivables Securitization
Program, (xi) conversion of debt in existence on the First Amendment
Effective Date which arose from loans to American Textil S.A. de C.V.
and Xxxxx Fabrik, LLC to equity, (xii) total Investments made in the
infrastructure project in Tamaulipas, Mexico, in an aggregate amount
not exceeding $12,500,000, (xiii) total Investments made for other
capital expenditures in Tamaulipas, Mexico for the completion of
dyeing, finishing and knitting and related facilities in an aggregate
amount not exceeding $57,900,000, (xiv) loans made after the First
Amendment Effective Date for working capital to be used in Tamaulipas,
Mexico in an aggregate amount not exceeding $16,000,000, (xv) transfer
of equipment in an aggregate amount not exceeding $3,000,000 from the
United States to Tamaulipas or Mexico City, Mexico, (xvi) Investments
made after the First Amendment Effective Date in Brazil in an aggregate
amount not exceeding $2,000,000 (xvii) Investments made after the First
11
Amendment Effective Date in the Czech Republic in an aggregate amount
not exceeding $1,500,000, consisting of up to $800,000 in transfers of
equipment to the Czech Republic and up to $700,000 in working capital
loans from cash available in the United Kingdom, (xviii) Investments
made after the First Amendment Effective Date in American Textil S.A.
de C.V. in an aggregate amount not exceeding $1,000,000, (xix)
Investments made after the First Amendment Effective Date in Xxxxx
Fabrik, LLC in an aggregate amount not exceeding $1,000,000 (except
that if Xxxxx Fabrik, LLC becomes a Guarantor hereunder, clause (viii)
above shall be applicable and this clause shall have no further force
or effect), (xx) in addition to other Investments permitted by this
Section, other Investments made after the First Amendment Effective
Date in Mexico in an aggregate amount not exceeding $1,000,000, (xxi)
other Investments made in Foreign Subsidiaries created after the First
Amendment Effective Date, so long as the amount of such Investment in
any such new Foreign Subsidiary does not exceed the statutory minimum
amount required by applicable law in order to create such new Foreign
Subsidiary, and the aggregate amount of all such Investments does not
exceed $100,000 and (xxii) Investments in Grupo Ambar S.A. de C.V.
necessary to acquire the 5% of the common stock therein not owned by
the Borrower in the event the owner of such 5% interest exercises a put
right or the Borrower exercises a call right pertaining thereto, so
long as such Investments do not involve the payment of cash or cash
equivalents as part of the purchase price or consideration paid to such
owner (other than pursuant to a subordinated loan arrangement in which
such loan is fully subordinated in all respects to the Bank
Obligations, with no interest or principal being payable thereunder
until all Bank Obligations have been repaid in full and all Commitments
terminated); provided that after giving effect to the making of any
Investments permitted by clauses (xi) through (xxi) of this Section, if
there are any Loans outstanding at that time, no Default shall be in
existence or be created thereby.
11. Amendment to Section 5.16(j). Section 5.16(j) hereby is amended by
deleting it in its entirety and substituting the following therefor:
(j) Liens on assets leased pursuant to Foreign
Capital Leases or other Permitted Foreign Debt and Liens permitted by
Section 5.23 in connection with Permitted Factoring Arrangements.
12. Amendment to Section 5.17. Section 5.17 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 5.17 Interest Coverage Ratio. The Interest
Coverage Ratio for the Fiscal Quarter just ended and the 3 immediately
preceding Fiscal Quarters shall at no time be less than the ratio set
forth below as of the end of the Fiscal Quarters set forth below:
12
----------------------------------------- ----------------------------------
FISCAL QUARTER MINIMUM INTEREST
COVERAGE RATIO
----------------------------------------- ----------------------------------
4th of 2000 Fiscal Year 4.00
----------------------------------------- ----------------------------------
1st of 2001 Fiscal Year 3.05
----------------------------------------- ----------------------------------
2nd of 2001 Fiscal Year 2.65
----------------------------------------- ----------------------------------
3rd of 2001 Fiscal Year 2.75
----------------------------------------- ----------------------------------
4th of 2001 Fiscal Year 3.20
----------------------------------------- ----------------------------------
1st of 2002 Fiscal Year 3.80
----------------------------------------- ----------------------------------
2nd of 2002 Fiscal Year 4.00
----------------------------------------- ----------------------------------
3rd of 2002 Fiscal Year 4.50
----------------------------------------- ----------------------------------
4th of 2002 Fiscal Year and 5.00
thereafter
----------------------------------------- ----------------------------------
13. Amendment to Section 5.18 Section 5.18 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 5.18 Restricted Payments. The Borrower will
not declare or make any Restricted Payment during any Fiscal Year.
14. Amendment to Section 5.19. Section 5.19 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 5.19 Leverage Ratio. The Leverage Ratio for
the Fiscal Quarter just ended and the immediately preceding 3 Fiscal
Quarters shall at all times be less than the ratio set forth below as
of the end of the Fiscal Quarters set forth below:
----------------------------------------- ----------------------------------
FISCAL QUARTER LEVERAGE RATIO
----------------------------------------- ----------------------------------
4th of 2000 Fiscal Year 4.25
----------------------------------------- ----------------------------------
1st of 2001 Fiscal Year 4.35
----------------------------------------- ----------------------------------
2nd of 2001 Fiscal Year 4.50
----------------------------------------- ----------------------------------
3rd of 2001 Fiscal Year 3.75
----------------------------------------- ----------------------------------
4th of 2001 Fiscal Year 2.95
----------------------------------------- ----------------------------------
1st of 2002 Fiscal Year 2.55
----------------------------------------- ----------------------------------
2nd of 2002 Fiscal Year 2.50
----------------------------------------- ----------------------------------
3rd of 2002 Fiscal Year 2.25
----------------------------------------- ----------------------------------
4th of 2002 Fiscal Year and 2.00
thereafter
----------------------------------------- ----------------------------------
13
15. Amendment to Section 5.21. Section 5.21 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 5.21 Domestic Subsidiaries to Become
Guarantors; Release of Guarantors to be Sold.
(a) If the Borrower acquires or creates a Domestic
Subsidiary (other than a Receivables Subsidiary) at any time after the
First Amendment Effective Date, then (1) within 10 Domestic Business
Days after the Borrower acquires or creates such Domestic Subsidiary,
it must so notify the Administrative Agent, and (ii) within 10 Domestic
Business Days after giving such notice, such Domestic Subsidiary must:
(A) become a Guarantor by (x) executing and delivering to the
Administrative Agent a counterpart of or joinder agreement pertaining
to the Guaranty and a counterpart of or joinder agreement pertaining to
the Contribution Agreement, thereby becoming a party to each of them,
(y) delivering to the Administrative Agent an opinion of counsel to
such Subsidiary substantially in the form of Exhibit B-1, but limited
to such Domestic Subsidiary, and excluding paragraph 2 thereof, and (z)
delivering to the Administrative Agent documents pertaining to such
Domestic Subsidiary reasonably requested by the Administrative Agent of
the types described in paragraph (f) of Section 3.01; and (B) execute
and deliver such Security Documents pursuant to Section 5.25(b) as it
would have been required to execute pursuant thereto if it had been a
Guarantor on the Closing Date.
(b) In the case of any Guarantor the stock of which
is to be sold, such Guarantor may submit to the Administrative Agent a
request for a release of its obligations under the Guaranty, and such
Guarantor shall be entitled to obtain from the Administrative Agent a
written release from the Guaranty, a written termination of all of its
obligations under all Security Documents executed by it and a written
release, a termination of all Liens under all such Security Documents,
and the Borrower shall be entitled to obtain a written release from the
Domestic Stock Pledge Agreement with respect to the capital stock of
such Guarantor; provided that it can demonstrate to the reasonable
satisfaction of the Administrative Agent that (A) the provisions of
Section 5.05 will not be breached by such sale, (B) all loans to such
Guarantor from the Borrower or any other Guarantor have been repaid in
full, (C) the net purchase price to be realized by the seller of such
Guarantor for such sale will be not less than 100% of the fair market
value of such Guarantor, as determined in good faith by the Borrower's
board of directors, and (D) no Event of Default is in existence or will
be caused as a result of such sale, and upon obtaining such written
release, it shall no longer be a Guarantor for any purpose hereunder or
under the Guaranty.
16. Amendment to Section 5.22. Section 5.22 hereby is amended by
deleting it in its entirety and substituting the following therefor:
14
Section 5.22 Pledge of Stock of Direct Foreign
Subsidiaries; Release with respect to Certain Guarantors to be Sold.
(a) If the Borrower or any Domestic Subsidiary
acquires or creates a Direct Foreign Subsidiary at any time after the
First Amendment Effective Date, then (1) within 10 Domestic Business
Days after the Borrower or such Domestic Subsidiary acquires or creates
such Direct Foreign Subsidiary, the Borrower must so notify the
Administrative Agent, and (ii) within 10 Domestic Business Days after
giving such notice, the Borrower or such Domestic Subsidiary must
execute and deliver a Foreign Stock Pledge Agreement with respect to
65% of the capital stock of such Direct Foreign Subsidiary together
with the powers of attorney pursuant thereto and evidence of
registration of the pledge or such other document or other writing
which the Administrative Agent may reasonably require with respect
thereto.
(b) In the case of any Guarantor the stock of which
is to be sold, if such Guarantor has executed a Foreign Stock Pledge
Agreement with respect to any Direct Foreign Subsidiary which will
continue to be a subsidiary thereof after such sale, or if any Direct
Foreign Subsidiary is to be sold, with respect to such Direct Foreign
Subsidiary, such Guarantor may submit to the Administrative Agent a
request for a release of such Foreign Stock Pledge Agreement, and such
Guarantor shall be entitled to obtain from the Administrative Agent a
written release from such Foreign Stock Pledge Agreement with respect
to such Direct Foreign Subsidiary, provided that it can demonstrate to
the reasonable satisfaction of the Administrative Agent that the
conditions to the release of such Guarantor from the Guaranty set forth
in Section 5.21(b) have been satisfied.
17. Amendment to Section 5.23. Section 5.23 hereby is amended by
deleting it in its entirety and substituting the following therefor:
Section 5.23 Factoring Arrangements.
The Borrower and its Subsidiaries shall not have any
factoring arrangements, except those which comply with the provisions
of this Section 5.23 ("Permitted Factoring Arrangements"): (i) the
aggregate face amount of factored accounts receivable outstanding at
any time shall not exceed $30,000,000; (ii) any Factor Advances under a
Permitted Factoring Arrangement shall be included in the computation of
Debt for purposes of Section 5.24(B)(viii) and may be secured by (x)
accounts receivable which are not sold and have not been identified for
sale to such factor ("Non-Factored Accounts"), so long as such factor
has expressly subordinated its Lien on such Non-Factored Accounts to
the Lien of the Collateral Agent, pursuant to a subordination provision
acceptable to the Administrative Agent, which subordinated Liens shall
be included in the computation of Liens permitted by Section 5.16(j),
and (y) accounts which have been identified for sale to such factor
pursuant to the factoring arrangement but which have not yet been sold
("Identified Accounts"), which Liens shall be included in the
computation of Liens permitted by Section 5.16(j) until they are
actually sold pursuant to such factoring arrangement, but need not be
subordinated pursuant to the foregoing (and any Non-Factored Accounts
which become Identified Accounts shall no longer be subject to such
15
subordination provisions). Upon the actual sale of Identified Accounts
pursuant to such factoring arrangement (such sold accounts being
"Factored Accounts"), the Lien of the Collateral Agent shall be
automatically released pursuant to the Security Agreement.
18. Amendment to Section 5.24. Section 5.24 hereby is amended by
deleting it in its entirety and substituting the following therefor:
(A) Subject to Section 2.10(g), Debt under credit
facilities in Mexico in the aggregate amount not exceeding the Dollar
equivalent of 66,000,000 Mexican pesos, calculated based on the
exchange rate as of the Closing Date, debt under credit facilities in
the United Kingdom in the aggregate amount not exceeding the Dollar
equivalent of 5,000,000 British pounds sterling, calculated based on
the exchange rate as of the Closing Date, term facilities to be entered
into in Portugal in the aggregate amount not exceeding the Dollar
equivalent of 900,000,000 Portuguese escudos, calculated based on the
exchange rate as of the Closing Date; and
(B) (i) Debt in existence on the Closing Date
(including unsecured Debt in the amount of $1,500,000 of Xxxxx Fabrik
LLC, a limited liability company in which the Borrower owns 50% on the
First Amendment Effective Date, but in which it may thereafter acquire
additional interests), and extensions, renewals, refinancings or
refundings thereof (provided that the amount of such Debt is not
increased); (ii) the Debt under this Agreement; (iii) Debt permitted to
be secured by Liens permitted by Section 5.16; (iv) Debt of the types
described in clause (vii) of the definition of Debt which is incurred
in the ordinary course of business in connection with the sale or
purchase of goods or to assure performance of an obligation to a
utility or a governmental entity or a worker's compensation obligation;
(v) Receivables Program Obligations; (vi) Debt permitted by Section
5.15; (vii) obligations to reimburse any bank or other Person in
respect of amounts paid or to be paid under any irrevocable standby
letter of credit, or letter of credit issued in support of trade
payables arising from the import of goods, in an aggregate amount at
any time for all such standby and trade letters of credit not exceeding
$3,000,000 and (viii) Foreign Capital Leases and other Permitted
Foreign Debt. The Borrower shall not permit the Receivables Subsidiary
to incur any Debt or other liabilities other than in connection with
the Receivables Securitization Program.
19. Amendment to Section 5.25(b). Section 5.25(b) hereby is amended by
deleting it in its entirety and substituting the following therefor:
(b) It is the intent of the parties hereto that the
Secured Obligations shall be secured by the Collateral subject to the
provisions of Section 9.19 regarding the release of the Receivables
Program Assets and the provisions of the Intercreditor Agreement. On
the First Amendment Effective Date, the Borrower and the Guarantors
will execute and deliver to the Collateral Agent the Security Documents
(other than the Mortgages) and the other documents described in Section
3.01(g) and the Intercreditor Agreement (which also shall be executed
16
by the Collateral Agent and each of the Secured Parties). Prior to the
First Amendment Effective Date, the Borrower and the Guarantors, as
applicable, have delivered to the Collateral Agent, and as to any Other
Real Property which is not Designated Other Real Property on the First
Amendment Effective Date, the Borrowers and the Guarantors shall
deliver to the Collateral Agent, within 45 days after the date the
Administrative Agent notifies the Borrower of such designation, copies
of any existing owner's title insurance policies, surveys and
environmental inspection reports, as to such Plant or Designated Other
Real Property which the Borrower or any Guarantor has in its
possession. Within 45 days after the First Amendment Effective Date
(or, as to any Other Real Property which is not Designated Other Real
Property on the First Amendment Effective Date, after the date the
Administrative Agent notifies the Borrower of such designation), the
Borrower and the Guarantors shall execute (as applicable) and deliver
to the Collateral Agent: (i) with respect to the Security Agreement,
such agreements with Third Parties (including acknowledgements, lien
waivers and agreements as to access to personal property from any
warehouse owner or processor where any of such personal property may be
located) as the Collateral Agent may reasonably require, and the
Borrower agrees to use commercially reasonable efforts to obtain such
Third Party agreements; (ii) the Mortgages and UCC-1 financing
statements relating to the fixtures located at the premises described
therein as to all Plants and all Designated Other Real Property;
provided, however, that as to any Mortgage on a leasehold, the Borrower
agrees that it shall use commercially reasonable efforts to obtain any
required consent; and (iii) all other Real Property Documentation with
respect thereto (including a mortgagee title policy, a current survey
and an environmental inspection report) and related lien searches;
provided, however, that if a Phase 2 report is recommended in any Phase
1 report as to any Plant or Designated Other Property or the
Administrative Agent determines in its reasonable judgment, based on
such Phase 1 report, that a Phase 2 report should be obtained, such
Phase 2 report shall be obtained and furnished as soon as reasonably
practicable after such 45 day period ends, if it cannot be obtained and
furnished within such 45 day period. The Collateral Agent shall file
for record, as applicable, each of the Mortgages (and related UCC-1
financing statements pertaining to related fixtures) as to all of the
Plants and Designated Other Real Property and the Borrower shall pay
all recording fees and costs and stamp, intangible or other taxes
payable in connection with the filing for record of the Mortgages,
UCC-1 financing statements and the Patent Assignment (collectively, the
"Recording Expenses"). In addition, the Collateral Agent shall obtain,
at the expense of the Borrower, an appraisal as to the machinery and
equipment owned by the Borrower and the Guarantors, which appraisal
shall be in form and content and be obtained from an appraiser or
appraisers satisfactory to the Collateral Agent. The Collateral Agent
also shall conduct or cause to be conducted a field audit of the assets
of the Borrower and the Guarantors, and the cost of such field audit
shall be reimbursed by the Borrower.
20. New Section 5.26. A new Section 5.26 hereby is added to the Credit
Agreement as follows:
17
Section 5.26 Domestic Cash Deposits. The Borrower and
its Domestic Subsidiaries shall maintain all of its deposits of cash
and cash equivalents (collectively, "Cash Deposits") with one or more
of the Banks, and shall not permit Cash Deposits to exceed at any time
an aggregate amount equal to $5,000,000 (the "Cash Deposit Limit"), and
if and to the extent at any time the aggregate amount of Cash Deposits
exceeds the Cash Deposit Limit, the amount of the excess shall be
subject to mandatory prepayment pursuant to Section 2.10(i).
21. New Section 5.27. A new Section 5.27 hereby is added to the Credit
Agreement as follows:
Section 5.27 Capital Expenditures. Capital
Expenditures will not exceed in the aggregate (i) in the 2001 Fiscal
Year, $72,000,000 and (ii) in the 2002 Fiscal Year, $50,000,000, plus
any amount permitted to be spent for Capital Expenditures in the 2001
Fiscal Year and not spent in such Fiscal Year.
22. New Section 5.28. A new Section 5.28 hereby is added to the Credit
Agreement as follows:
Section 5.28 Adjusted Interest Coverage Ratio.
Commencing at the end of the first Fiscal Quarter of the 2003 Fiscal
Year, the Adjusted Interest Coverage Ratio for the Fiscal Quarter just
ended and the 3 immediately preceding Fiscal Quarters shall at no time
be less than 3.00.
23. Amendment to Section 6.01(b). Section 6.01(b) hereby is amended by
deleting it in its entirety and substituting the following therefor:
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.02(ii), 5.03 to 5.06, inclusive, or
Sections 5.15 through 5.20, inclusive, or Sections 5.27 or 5.28; or
24. Replacement of Certain Exhibits. Exhibits X-0, X-0, C, F, J, K, L,
M, N, O and P to the Credit Agreement hereby are deleted, and Exhibits F, J, K,
L, M, N, O and P attached hereto are substituted therefor.
25. Replacement of Schedule 5.15. Schedule 5.15 to the Credit Agreement
hereby is deleted, and Schedule 5.15 attached hereto is substituted therefor.
26. Restatement of Representations and Warranties. Since October 3,
1999 there has been no event, act, condition or occurrence having a Material
Adverse Effect, except to the extent, if any, any event, act, condition or
occurrence disclosed in public filings with the Securities and Exchange
Commission prior to the First Amendment Effective Date could have a Material
Adverse Effect. The Borrower hereby restates and renews each and every other
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 and with
specific reference to this First Amendment and all other loan documents executed
and/or delivered in connection herewith.
27. Effect of Amendment. 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
18
enforceable obligations of the Borrower. The amendments contained herein shall
be deemed to have prospective application only, unless otherwise specifically
stated herein.
28. Ratification. 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.
29. Counterparts. This First Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts and
delivered by facsimile transmission, each of which when so executed and
delivered (including by facsimile transmission) shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same instrument.
30. Section References. Section titles and references used in this
First 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.
31. No Default. To induce the Administrative Agent and the Banks to
enter into this First Amendment and to continue to make advances pursuant to the
Credit Agreement, 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 Banks under
the Credit Agreement.
32. Further Assurances. The Borrower agrees to take such further
actions as the Administrative Agent shall reasonably request in connection
herewith to evidence the amendments herein contained.
33. Governing Law. This First Amendment shall be governed by and
construed and interpreted in accordance with, the laws of the State of Georgia.
34. Conditions Precedent. This First Amendment shall become effective
only upon receipt by the Administrative Agent of the following (as to the
documents described in paragraphs (a) and (e) below, in sufficient number of
counterparts for delivery of a counterpart to each Bank and retention of one
counterpart by the Administrative Agent):
(a) from each of the parties hereto of either (i) a duly
executed counterpart of this First Amendment signed by such party or
(ii) a facsimile transmission of such executed counterpart with the
original to be sent to the Administrative Agent by overnight courier;
(b) an opinion letter (together with any opinions of local
counsel relied on therein) of (i) Weil, Gotshal & Xxxxxx LLP, special
counsel for the Borrower and the Guarantors, and (ii) Xxxxxx X. Xxxxx,
Xx., General Counsel for the Borrower and the Guarantors, each dated as
of the First Amendment Effective Date, substantially in the form of
Exhibits B-1 and B-2, respectively, and covering such additional
matters relating to the transactions contemplated hereby as the
Administrative Agent or any Bank may reasonably request;
19
(c) an opinion of Xxxxx, Day, Xxxxxx & Xxxxx, special counsel
for the Administrative Agent, dated as of the First Amendment Effective
Date, substantially in the form of Exhibit C and covering such
additional matters relating to the transactions contemplated hereby as
the Administrative Agent may reasonably request;
(d) all documents which the Administrative Agent or any Bank
may reasonably request relating to the existence of the Borrower and
each Guarantor, the corporate authority for and the validity of this
First Amendment, the Guaranty, the Contribution Agreement, the Security
Documents and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent, including, without
limitation, a certificate of the Borrower and each Guarantor, signed by
the Secretary or an Assistant Secretary of the Borrower and each
Guarantor, respectively, substantially in the form of Exhibit H (the
"Officer's Certificate"), certifying as to the names, true signatures
and incumbency of the officer or officers of the Borrower or such
Guarantor authorized to execute and deliver the Loan Documents to which
it is a party, and certified copies of the following items: (i) any
amendments to Certificate of Incorporation or Bylaws of the Borrower
and each Person who was a Guarantor as of the Closing Date, (ii) the
Certificate of Incorporation of each Person who first becomes a
Guarantor on the First Amendment Effective Date, (iii) the Bylaws of
each Person who first becomes a Guarantor on the First Amendment
Effective Date, (iv) certificates of the Secretary of State of the
jurisdiction of incorporation as to the good standing of each of the
Borrower and the Guarantors, and (v) the action taken by the Board of
Directors of the Borrower and each Guarantor authorizing the Borrower's
or such Guarantor's execution, delivery and performance of this First
Amendment, the Guaranty, the Contribution Agreement, and the Security
Documents to which the Borrower or such Guarantor is a party;
(e) counterparts of the Guaranty, duly executed by each of the
Guarantors, the Contribution Agreement, the Domestic Stock Pledge
Agreement, the Security Agreement and, if applicable, the Patent
Assignment, duly executed by the Borrower and each of the Guarantors
(other than, with respect to the Domestic Stock Pledge Agreement, any
Guarantors not owning Domestic Subsidiaries) and the Foreign Stock
Pledge Agreement, duly executed by the Borrower and each applicable
Domestic Subsidiary, together with, as to the Foreign Stock Pledge
Agreement and the Domestic Stock Pledge Agreement, the powers of
attorney or blank stock powers pursuant thereto and with delivery of
the relevant stock certificates or evidence of registration of the
pledge or such other document or other writing which the Administrative
Agent may reasonably require with respect thereto and as to the
Security Agreement, the UCC-1 financing statements relating to the
personal property of the Borrower and the Guarantors, together with
such lien search reports regarding such personal property as are
available on the Closing Date;
(f) receipt, for the ratable account of the Banks, of a
consent fee in an amount equal to 0.125% of the aggregate Commitments;
(g) receipt of the Applicable Restructuring Charges Letter;
(h) receipt of the Asset Letter; and
20
(i) receipt of and satisfaction with the amendments to (or
amendments and restatements of) the Note Purchase Agreements required
by the Senior Note Holders and contemplated in Section 25 of the
Intercreditor Agreement.
IN WITNESS WHEREOF, the Borrower, the Administrative Agent and each of
the Banks has caused this First 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: Xxx X. Xxxxxxxx
------------------------------
Title: Vice President and
Chief Financial Officer
21
WACHOVIA BANK, N.A.,
as Administrative Agent and as a Bank
By: Xxxxxxx Xxxxxxxxx, V
----------------------------
Title: Senior Vice President
22
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Bank
By: Xxxxx Xxxx
--------------------------------
Title: Senior Vice President
23
BANK ONE, NA,
as Documentation Agent and as a Bank
By: Xxxxxxxx Xxxxxxx
-------------------------------
Title: Customer Service Officer
24
BRANCH BANKING AND TRUST COMPANY, as a Bank
By: Xxxx X. Xxxxxxxxx
---------------------------------------
Title: Senior V.P.
25
EXHIBIT B-1
-----------
OPINION OF WEIL, GOTSHAL & XXXXXX
Special Counsel to the Borrower
November 6, 2000
To the Banks and the
Administrative Agent referred to herein
c/o Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Gentlemen:
We have acted as special counsel to Xxxxxxxx Xxxxx, Inc., a
Delaware corporation (the "Company"), in connection with the execution and
delivery of, and the consummation of the transactions contemplated by, the First
Amendment to Credit Agreement, dated as of November 6, 2000 (the "First
Amendment"), among the Company, the banks listed on the signature pages thereof
(the "Banks"), Wachovia Bank, N.A., as Administrative Agent (the "Administrative
Agent"), First Union National Bank, as Syndication Agent and Bank One, NA, as
Documentation Agent, pursuant to which amendments have been made to the Credit
Agreement by and among such parties dated as of May 26, 2000 (the "Credit
Agreement"). Terms defined in the Credit Agreement, as amended by the First
Amendment, and not otherwise defined herein are used herein with the meanings as
so defined. This opinion is being delivered to you pursuant to Section 34(b) of
the First Amendment.
In so acting, we have examined originals or copies (certified
or otherwise identified to our satisfaction) of the Loan Documents and the
Intercreditor Agreement, and such corporate records, agreements, documents and
other instruments, and such certificates or comparable documents of public
officials and of officers and representatives of the Company, and have made such
inquiries of such officers and representatives, as we have deemed relevant and
necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
representatives of the Company and upon the representations and warranties of
the Company contained in the First Amendment and in the Contribution Agreement,
the Domestic Stock Pledge Agreement, the Foreign Stock Pledge Agreement, the
Acknowledgment and Agreement of the Borrower and the Guarantors at the end of
the Intercreditor Agreement and the Security Agreement executed on the date
26
hereof (collectively, the "Company Documents"). We have also assumed (i) that
the Company has the requisite corporate power and authority to enter into and
perform the Company Documents, (ii) the due authorization, execution and
delivery of the Company Documents by the Company, (iii) the valid existence of
each Guarantor, (iv) that each Guarantor has the requisite corporate power and
authority to enter into and perform the Guaranty, the Contribution Agreement,
the Foreign Stock Pledge Agreement, Acknowledgment and Agreement of the Borrower
and the Guarantors at the end of the Intercreditor Agreement and the Security
Agreement executed on the date hereof to which it is a party (collectively, the
"Guarantor Documents") and (v) the due authorization, execution and delivery of
the Guarantor Documents by each Guarantor. We have also assumed the validity and
enforceability of the obligations of the Company and each of the Guarantors
under the Loan Documents under the laws of the State of Georgia. As used herein,
"to our knowledge" and "of which we are aware" mean the conscious awareness of
facts or other information by any lawyer in our firm actively involved in the
transactions contemplated by the Loan Documents.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that:
1. The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to own its properties and to carry on its business as now
being conducted.
2. Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Company Documents constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except that
certain remedial provisions of the Security Documents are or may be
unenforceable in whole or in part under the laws of the State of New York, but
the inclusion of such provisions does not affect the validity of the Security
Documents which are included in the Company Documents and the Guarantor Document
(collectively, the "Security Documents"), and the Security Documents contain
adequate provision for the practical realization of the rights and benefits
afforded thereby. No opinion is expressed in this paragraph as to the
attachment, perfection or priority of any liens granted pursuant to the Security
Documents.
3. Assuming the due authorization, execution and delivery
thereof by the other parties thereto, the Guarantor Documents constitute the
legal, valid and binding obligations of each Guarantor, enforceable against such
Guarantor in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except that
certain remedial provisions of the Security Documents are or may be
unenforceable in whole or in part under the laws of the State of New York, but
27
the inclusion of such provisions does not affect the validity of the Security
Documents, and the Security Documents contain adequate provision for the
practical realization of the rights and benefits afforded thereby. No opinion is
expressed in this paragraph as to the attachment, perfection or priority of any
liens granted pursuant to the Security Documents.
4. To our knowledge, except as otherwise provided in the Loan
Documents, no consent, approval, waiver, license or authorization or other
action by or filing with any New York, Delaware corporate or federal
governmental authority is required in connection with (i) the execution and
delivery by the Company of the Company Documents, the consummation by the
Company of the transactions contemplated thereby or the performance by the
Company of its obligations thereunder and (ii) the execution and delivery by any
Guarantor of the Guarantor Documents, the consummation by such Guarantor of the
transactions contemplated thereby or the performance by such Guarantor of its
obligations thereunder, in each case, except for filings in connection with
perfecting security interests and federal or state securities or blue sky laws,
as to which we express no opinion, and those already obtained.
5. The execution and delivery by the Company of the Company
Documents and the performance by the Company of its obligations thereunder, and
the execution and delivery by any Guarantor of the Guarantor Documents and the
performance by such Guarantor of its obligations thereunder, will not conflict
with, constitute a default under or violate New York, Delaware corporate or
federal law or regulation (other than federal and state securities or blue sky
laws, as to which we express no opinion).
6. Neither the Company nor any Guarantor is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
7. Neither the Company nor any Guarantor is a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company," as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
The opinions expressed herein are limited to the laws of the
State of New York, the corporate laws of the State of Delaware and the federal
laws of the United States, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction. For the
purposes of this opinion, we have assumed that the laws of the State of Georgia,
which is the governing law of the Company Documents and the Guarantor Documents
(other than the Mortgages), are the same as the laws of the State of New York.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, except an Assignee or
Participant, nor may this letter or any copies hereof be furnished to a third
party, filed with a governmental agency, quoted, cited or otherwise referred to
without our prior written consent, other than to an Assignee, a Participant, a
prospective Assignee or a prospective Participant.
Very truly yours,
28
EXHIBIT B-2
-----------
OPINION OF XXXXXX X. XXXXX, XX
General Counsel of the Borrower
November 6, 2000
To the Banks and Administrative Agent referred to herein
c/o Wachovia Bank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Gentlemen:
As General Counsel of Xxxxxxxx Xxxxx, Inc., a Delaware
corporation (the "Company"), I am generally familiar with the legal affairs of
the Company and the Guarantors and am familiar with the actions taken by the
Company with respect to the execution and delivery of, and the consummation of
the transactions contemplated by, the First Amendment to Credit Agreement, dated
as of November 6, 2000 (the "First Amendment"), among the Company, the banks
listed on the signature pages thereof (the "Banks"), Wachovia Bank, N.A., as
Administrative Agent (the "Administrative Agent"), First Union National Bank, as
Syndication Agent and Bank One, NA, as Documentation Agent, pursuant to which
amendments have been made to the Credit Agreement by and among such parties
dated as of May 26, 2000 (the "Credit Agreement"). Terms defined in the Credit
Agreement, as amended by the First Amendment, and not otherwise defined herein
are used herein with the meanings as so defined. This opinion is being delivered
to you pursuant to Section 34(b) of the First Amendment.
In connection with rendering this opinion, I have examined
originals or copies, certified or otherwise identified to my satisfaction, of
the Loan Documents and such corporate records, agreements, documents and other
instruments, and such certificates or comparable documents of public officials,
and have made such other inquiries of such officers and representatives, as I
have deemed relevant and necessary as a basis for the opinions hereinafter set
forth.
In such examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to these opinions that have not been independently established,
I have relied upon certificates or comparable documents of officers and
representatives of the Company and upon the representations and warranties of
the Company and the Guarantors contained in the First Amendment and in the
Contribution Agreement, the Domestic Stock Pledge Agreement, the Foreign Stock
Pledge Agreement, the Acknowledgment and Agreement of the Borrower and the
Guarantors at the end of the Intercreditor Agreement and the Security Agreement
executed on the date hereof (collectively, the "Amendment Documents").
29
Based on the foregoing, and subject to the qualifications
stated herein, I am of the opinion that:
1. Each Guarantor is a corporation validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
all requisite corporate power and authority to own its properties and to carry
on its business as now being conducted.
2. Each of the Company and the Guarantors has all requisite
corporate power and authority to execute and deliver the Amendment Documents to
which it is a party and to perform its obligations thereunder. The execution,
delivery and performance by each of the Company and the Guarantors of the
Amendment Documents to which it is a party have been duly authorized by all
necessary corporate action on the part of each of the Company and the
Guarantors. Each of the Company and the Guarantors have duly and validly
executed and delivered the Amendment Documents to which it is a party.
3. To my knowledge, except as otherwise provided in the Credit
Agreement, there is no litigation, proceeding or governmental investigation
pending or overtly threatened against the Company or any of the Guarantors that
relates to any of the transactions contemplated by the Loan Documents or which,
if adversely determined, would have a material adverse effect on the business,
assets or financial condition of the Company and its Subsidiaries taken as a
whole.
4. The execution and delivery by the Company of the Amendment
Documents to which it is a party (the "Company Documents") and the performance
by the Company of its obligations thereunder will not (A) conflict with,
constitute a default under or violate (i) any of the terms, conditions or
provisions of the Certificate of Incorporation or by-laws of the Company, (ii)
any of the terms, conditions or provisions of any material document, agreement
or other instrument to which the Company is a party or by which it is bound of
which I am aware (except for any consents which may be required with respect to
the Security Documents) or (iii) any judgment, writ, injunction, decree, order
or ruling of any court or governmental authority binding on the Company of which
I am aware or (B) to my knowledge, except as otherwise contemplated by the Loan
Documents, result in the creation or imposition of any lien, charge or
encumbrance upon any assets of the Company.
5. The execution and delivery by each Guarantor of the
Amendment Documents to which it is a party (the "Guarantor Documents") and the
performance by such Guarantor of its obligations thereunder will not (A)
conflict with, constitute a default under or violate (i) any of the terms,
conditions or provisions of the Certificate of Incorporation or by-laws of such
Guarantor, (ii) any of the terms, conditions or provisions of any material
document, agreement or other instrument to which such Guarantor is a party or by
which it is bound of which I am aware (except for any consents which may be
required with respect to the Security Documents) or (iii) any judgment, writ,
injunction, decree, order or ruling of any court or governmental authority
binding on such Guarantor of which I am aware or (B) to my knowledge, except as
otherwise contemplated by the Loan Documents, result in the creation or
imposition of any lien, charge or encumbrance upon any assets of such Guarantor.
6. No consent, approval, waiver, license or authorization or
other action by or filing with any North Carolina governmental authority is
required in connection with the execution and delivery by each of the Company
30
and the Guarantors of the Amendment Documents to which it is a party, the
consummation by each of the Company and the Guarantors of the transactions
contemplated thereby or the performance by each of the Company and the
Guarantors of its obligations thereunder, except for filings in connection with
perfecting security interests and federal and state securities or blue sky laws,
as to which I express no opinion, and those already obtained.
The opinions expressed herein are limited to the laws of the
State of North Carolina and the corporate laws of the State of Delaware, and I
express no opinion as to the effect on the matters covered by this letter of the
laws of any other jurisdiction.
The opinions expressed herein are rendered solely for your
benefit in connection with the transactions described herein. Those opinions may
not be used or relied upon by any other person, except an Assignee or
Participant, nor may this letter or any copies hereof be furnished to a third
party, filed with a governmental agency, quoted, cited or otherwise referred to
without my prior written consent, other than to an Assignee, a Participant, a
prospective Assignee or a prospective Participant.
Very truly yours,
Xxxxxx X. Xxxxx, Xx.
General Counsel
31
EXHIBIT C
---------
OPINION OF
XXXXX, DAY, XXXXXX & XXXXX, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
November 6, 2000
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Syndications Group
Dear Sirs:
We have participated in the preparation of the First Amendment
to Credit Agreement, dated as of November 6, 2000 (the "First Amendment"), among
Xxxxxxxx Xxxxx, Inc., a Delaware corporation (the "Borrower"), the banks listed
on the signature pages thereof (the "Banks"), Wachovia Bank, N.A., as
Administrative Agent (the "Administrative Agent"), First Union National Bank, as
Syndication Agent and Bank One, NA, as Documentation Agent and have acted as
special counsel for the Administrative Agent for the purpose of rendering this
opinion pursuant to Section 34(c) of the First Amendment. The First Amendment
amends the Credit Agreement by and among such parties dated as of May 26, 2000
(the "Credit Agreement"). Terms defined in the Credit Agreement, as amended by
the First Amendment, and not otherwise defined herein are used herein with the
meanings as so defined.
This opinion letter is limited by, and is in accordance with,
the January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, and assuming the due
authorization, execution and delivery of the First Amendment, the Contribution
Agreement, the Domestic Stock Pledge Agreement, the Foreign Stock Pledge
Agreement and the Security Agreement executed on the date hereof (collectively,
the "Amendment Documents") to which it is a party by each of the Borrower and
the Guarantors, we are of the opinion that each of the Amendment Documents to
which it is a party constitutes a valid and binding agreement of the Borrower
and each of the Guarantors, in each case enforceable in accordance with its
terms except as: (i) the enforceability thereof may be affected by bankruptcy,
32
insolvency, reorganization, fraudulent conveyance, voidable preference,
moratorium or similar laws applicable to creditors' rights or the collection of
debtors' obligations generally; (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability; and (iii) the enforceability of certain of the remedial, waiver
and other provisions of the Amendment Documents may be further limited by the
laws of the State of Georgia; provided, however, such additional laws do not, in
our opinion, substantially interfere with the practical realization of the
benefits expressed in the Amendment Documents, except for the economic
consequences of any procedural delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to
the effect (if any) of any law of any jurisdiction except the State of Georgia.
We express no opinion as to the effect of the compliance or noncompliance of the
Administrative Agent or any of the Banks with any state or federal laws or
regulations applicable to the Administrative Agent or any of the Banks by reason
of the legal or regulatory status or the nature of the business of the
Administrative Agent or any of the Banks.
This opinion is delivered to you in connection with the
transaction referenced above and may only be relied upon by you and any
Assignee, Participant or other Transferee under the Credit Agreement without our
prior written consent.
Very truly yours,
33
EXHIBIT F
---------
COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as of May 26,
2000, as amended by First Amendment to Credit Agreement dated as of November 6,
2000 (as so amended, and as hereafter modified and supplemented and in effect
from time to time, the "Credit Agreement") among Xxxxxxxx Xxxxx, Inc., the Banks
from time to time parties thereto, Wachovia Bank, N.A., as Administrative Agent,
First Union National Bank, as Syndication Agent and Bank One, NA, as
Documentation Agent. Capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 5.01(c) [or 5.05(a)]of the Credit
Agreement, , the duly authorized of Xxxxxxxx Xxxxx, Inc., hereby (i) certifies
to the Administrative Agent and the Banks that the information contained in the
Compliance Check List attached hereto is true, accurate and complete as of , ,
and that no Default is in existence on and as of the date hereof and (ii)
restates and reaffirms that the representations and warranties contained in
Article IV of the Credit Agreement are true on and as of the date hereof as
though restated on and as of this date.
XXXXXXXX XXXXX, INC. (SEAL)
By:__________________________________
Title:____________________________
34
1. Consolidations, Mergers and Sales of Assets (Section 5.05)
The Borrower will not, nor will it permit any Subsidiary to . . . sell,
lease or otherwise transfer all or any substantial part of its assets
to, any other Person, or discontinue or eliminate any business line or
segment, provided that . . . (c) the foregoing limitation on the sale,
lease or other transfer of assets and on the discontinuation or
elimination of a business line or segment shall not prohibit, subject
to Sections 2.10, 5.21(b) and 5.22(b), if applicable:
(1) any Foreign Sale-Leaseback
(2) during any Fiscal Quarter, a transfer of assets
or the discontinuance or elimination of a business line or
segment (in a single transaction or in a series of related
transactions) unless the aggregate assets to be so transferred
or utilized in a business line or segment to be discontinued,
when combined with all other assets transferred or utilized in
a business line or segment to be discontinued, in such Fiscal
Quarter and the most recent 3 consecutive Fiscal Quarters then
ended, either (x) constituted more than 10% of Consolidated
Total Assets measured as of the end of the immediately
preceding Fiscal Quarter for which the Borrower has supplied
financial statements pursuant to this Agreement, or (y)
contributed more than 10% of Consolidated Operating Income
during the most recent 4 consecutive Fiscal Quarters for which
the Borrower has supplied financial statements pursuant to
this Agreement (disregarding any Fiscal Quarter in which there
was an operating loss, on a consolidated basis); provided,
that, notwithstanding the foregoing, in no event shall any
disposition of assets pursuant to this Section 5.05(c)(2) be
permitted in the event that after such disposition, the
requirements of the final paragraph of Section 5.21(a) would
not be satisfied or Consolidated Total Assets shall be less
than 90% of Consolidated Total Assets measured as of the end
of the Fiscal Year ended October 3, 1999, and the Collateral
Agent shall release any Liens which it has on any such assets
sold as permitted by this Section 5.05(c)(2), or
(3) the Borrower may enter into an arrangement to
sell Receivables pursuant to a Receivables Securitization
Program if, as of the end of each of the 2 immediately
preceding Fiscal Quarters prior to entering into such
arrangement, the Leverage Ratio has been equal to or less than
2.50 to 1.00.
(a) Aggregate amount of assets sold during
Current Fiscal Quarter $____________
(b) Aggregate amount of other assets sold during
the 3 prior consecutive Fiscal Quarters $____________
(c) Sum of (a) and (b) $____________
35
(d) Consolidated Total Assets as of the end of the most
recent 4 consecutive Fiscal Quarters for which the
Borrower has supplied financial statements $____________
(e) 10% of (d) $____________
Limitation: (c) may not exceed (e)
(f) Portion of Consolidated Operating Income
contributed by assets in (a) $____________
(g) Portion of Consolidated Operating Income
contributed by assets in (b) $____________
(h) sum of (f) and (g) $____________
(i) Consolidated Operating Income during the most recent 4
consecutive Fiscal Quarters for which the Borrower has
supplied financial statements $____________
(j) 10% of (i) $____________
Limitation: (h) may not exceed (j)
(k) Consolidated Total Assets (excluding assets in
(a) and (b)) $____________
(l) Consolidated Total Assets as of the end
of the Fiscal Year ended October 3, 1999 $____________
(m) 90% of (l) $____________
Limitation: (k) may not be less than (m)
(n) Consolidated Total Debt $____________
(o) Consolidated Total EBITDA
(Schedule 1) $____________
(p) Ratio of (n) to (o) _____ to 1.00
Minimum Ratio to permit entering into arrangement for
sale of Receivables pursuant to a Receivables
Securitization Program 2.50 to 1.00
36
2. Investments (Section 5.15)
Neither the Borrower nor any of its Subsidiaries shall make Investments
in any Person except (i) existing Investments described in Schedule
5.15 and Debt permitted by Section 5.24, (ii) loans or advances to
employees not exceeding $1,000,000 in the aggregate principal amount
outstanding at any time, in each case made in the ordinary course of
business and consistent with practices existing on the Closing Date;
(iii) deposits required by landlords, government agencies or public
utilities; (iv) Investments in direct obligations of the United States
Government maturing within one year, (v) Investments in certificates of
deposit issued by a commercial bank whose credit is satisfactory to the
Administrative Agent, (vi) Investments in commercial paper rated A1 or
the equivalent thereof by Standard & Poor's Rating Group, a division of
XxXxxx-Xxxx, Inc. or P1 or the equivalent thereof by Xxxxx'x Investors
Service, Inc. and in either case maturing within 6 months after the
date of acquisition, (vii) Investments in tender bonds the payment of
the principal of and interest on which is fully supported by a letter
of credit issued by a United States bank whose long-term certificates
of deposit are rated at least AA or the equivalent thereof by Standard
& Poor's Rating Group and Aa or the equivalent thereof by Xxxxx'x
Investors Service, Inc., (viii) Investments in the Borrower or any
Guarantor, (ix) loans and advances to Subsidiaries which are in
existence on the First Amendment Effective Date and are evidenced by
Pledged Notes, (x) Investments in a Receivables Subsidiary pursuant to
a Receivables Securitization Program, (xi) conversion of debt in
existence on the First Amendment Effective Date which arose from loans
to American Textil S.A. de C.V. and Xxxxx Fabrik, LLC to equity, (xii)
total Investments made in the infrastructure project in Tamaulipas,
Mexico, in an aggregate amount not exceeding $12,500,000, (xiii) total
Investments made for other capital expenditures in Tamaulipas, Mexico
for the completion of dyeing, finishing and knitting and related
facilities in an aggregate amount not exceeding $57,900,000, (xiv)
loans made after the First Amendment Effective Date for working capital
to be used in Tamaulipas, Mexico in an aggregate amount not exceeding
$16,000,000, (xv) transfer of equipment in an aggregate amount not
exceeding $3,000,000 from the United States to Tamaulipas or Mexico
City, Mexico, (xvi) Investments made after the First Amendment
Effective Date in Brazil in an aggregate amount not exceeding
$2,000,000 (xvii) Investments made after the First Amendment Effective
Date in the Czech Republic in an aggregate amount not exceeding
$1,500,000, consisting of up to $800,000 in transfers of equipment to
the Czech Republic and up to $700,000 in working capital loans from
cash available in the United Kingdom, (xviii) Investments made after
the First Amendment Effective Date in American Textil S.A. de C.V. in
an aggregate amount not exceeding $1,000,000, (xix) Investments made
after the First Amendment Effective Date in Xxxxx Fabrik, LLC in an
aggregate amount not exceeding $1,000,000 (except that if Xxxxx Fabrik,
LLC becomes a Guarantor hereunder, clause (viii) above shall be
applicable and this clause shall have no further force or effect), (xx)
in addition to other Investments permitted by this Section, other
Investments made after the First Amendment Effective Date in Mexico in
an aggregate amount not exceeding $1,000,000, (xxi) other Investments
made in Foreign Subsidiaries created after the First Amendment
Effective Date, so long as the amount of such Investment in any such
new Foreign Subsidiary does not exceed the statutory minimum amount
required by applicable law in order to create such new Foreign
Subsidiary, and the aggregate amount of all such Investments does not
exceed $100,000 and (xxii) Investments in Grupo Ambar S.A. de C.V.
necessary to acquire the 5% of the common stock therein not owned by
37
the Borrower in the event the owner of such 5% interest exercises a put
right or the Borrower exercises a call right pertaining thereto, so
long as such Investments do not involve the payment of cash or cash
equivalents as part of the purchase price or consideration paid to such
owner (other than pursuant to a subordinated loan arrangement in which
such loan is fully subordinated in all respects to the Bank
Obligations, with no interest or principal being payable thereunder
until all Bank Obligations have been repaid in full and all Commitments
terminated); provided that after giving effect to the making of any
Investments permitted by clauses (xi) through (xxi) of this Section, if
there are any Loans outstanding at that time, no Default shall be in
existence or be created thereby.
(a) loans or advances to employees $_______________
Limitation: $1,000,000
(b) Investments consisting of acquisitions of stock or
assets of any Person which is in the same or a similar
line of business $_______________1
(c) Investments for infrastructure in Tamaulipas, Mexico $_______________
Limitation: $12,500,000
(d) Investments for completion of facilities in Tamaulipas,
Mexico $_______________
Limitation: $57,900,000
(e) loans for working capital in Taqmaulipas, Mexico $_______________
Limitation: $16,000,000
(f) transfer of equipment from the United States to
Tamaulipas or Mexico City, Mexico $_______________
Limitation $3,000,000
(g) Investments in Brazil $_______________
Limitation $2,000,000
(h) Transfers of Equipment to the Czech Republic $_______________
Limitation: $800,000
--------
1 The Borrower must demonstrate pro forma compliance with any such Investments
exceeding $25,000,000.
38
(i) Working capital loans in the Czech Republic
Limitation: $700,000
(j) Investments in American Textil S.A. de C.V. $_______________
Limitation: $1,000,000
(k) Investments in Xxxxx Fabrik, LLC2 $_______________
Limitation: $1,000,000
(l) other Investments in Mexico $_______________
Limitation: $1,000,000
(m) other Investments in new Foreign Subsidiaries $_______________
Limitation: $100,000
3. Liens (Section 5.16)
Neither the Borrower nor any Consolidated Subsidiary will create,
assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except: . . . (j) Liens on assets leased pursuant to
Foreign Capital Leases or other Permitted Foreign Debt and Liens
permitted by Section 5.23 in connection with Permitted Factoring
Arrangements.
None of the Borrower's or any Consolidated Subsidiary's property is
subject to any Lien securing Debt which is not permitted by paragraphs
(a) through (i) of Section 5.16, except for Foreign Capital Leases
described below and in connection with Permitted Factoring
Arrangements:
Description of Lien and Property Amount of Debt
Subject to same Secured
------------------------------------------------- -------
a. _______________________________________ $____________
b. _______________________________________ $____________
c. _______________________________________ $____________
d. _______________________________________ $____________
e. _______________________________________ $____________
f. _______________________________________ $____________
g. _______________________________________ $____________
----------
2 Delete if Xxxxx Fabrik, LLC becomes a Xxxxxxxxx
00
0. Interest Coverage Ratio (Section 5.17)
The Interest Coverage Ratio for the Fiscal Quarter
just ended and the 3 immediately preceding Fiscal Quarters shall at no
time be less than the ratio set forth below as of the end of the Fiscal
Quarters set forth below:
----------------------------------------- ----------------------------------
FISCAL QUARTER MINIMUM INTEREST
COVERAGE RATIO
----------------------------------------- ----------------------------------
4th of 2000 Fiscal Year 4.00
----------------------------------------- ----------------------------------
1st of 2001 Fiscal Year 3.05
----------------------------------------- ----------------------------------
2nd of 2001 Fiscal Year 2.65
----------------------------------------- ----------------------------------
3rd of 2001 Fiscal Year 2.75
----------------------------------------- ----------------------------------
4th of 2001 Fiscal Year 3.20
----------------------------------------- ----------------------------------
1st of 2002 Fiscal Year 3.80
----------------------------------------- ----------------------------------
2nd of 2002 Fiscal Year 4.00
----------------------------------------- ----------------------------------
3rd of 2002 Fiscal Year 4.50
----------------------------------------- ----------------------------------
4th of 2002 Fiscal Year and 5.00
thereafter
----------------------------------------- ----------------------------------
40
(a) Consolidated Total EBITDA $____________
(Schedule 1)
(b) Consolidated Interest Expense $____________
(c) Ratio of (a) to (b) ______ to 1.00
Minimum Ratio [4.00 to 1.00]
[3.05 to 1.00]
[2.65 to 1.00]
[2.75 to 1.00]
[3.20 to 1.00]
[3.80 to 1.00]
[4.00 to 1.00]
[4.50 to 1.00]
[5.00 to 1.00]
5. Leverage Ratio (Section 5.19)
The Leverage Ratio for the Fiscal Quarter just ended
and the immediately preceding 3 Fiscal Quarters shall at all times be
less than the ratio set forth below as of the end of the Fiscal
Quarters set forth below:
----------------------------------------- ----------------------------------
FISCAL QUARTER LEVERAGE RATIO
----------------------------------------- ----------------------------------
4th of 2000 Fiscal Year 4.25
----------------------------------------- ----------------------------------
1st of 2001 Fiscal Year 4.35
----------------------------------------- ----------------------------------
2nd of 2001 Fiscal Year 4.50
----------------------------------------- ----------------------------------
3rd of 2001 Fiscal Year 3.75
----------------------------------------- ----------------------------------
4th of 2001 Fiscal Year 2.95
----------------------------------------- ----------------------------------
1st of 2002 Fiscal Year 2.95
----------------------------------------- ----------------------------------
2nd of 2002 Fiscal Year 2.55
----------------------------------------- ----------------------------------
3rd of 2002 Fiscal Year 2.25
----------------------------------------- ----------------------------------
4th of 2002 Fiscal Year and 2.00
thereafter
----------------------------------------- ----------------------------------
41
(a) Consolidated Total Debt $_______________
(b) Consolidated Total EBITDA
(Schedule 1) $_______________
(c) Ratio of (a) to (b) ______ to 1.00
Maximum Ratio <[4.25 to 1.00]
<[4.35 to 1.00]
<[4.50 to 1.00]
<[3.75 to 1.00]
<[2.95 to 1.00]
<[2.55 to 1.00]
<[2.50 to 1.00]
<[2.25 to 1.00]
<[2.00 to 1.00]
7. Minimum Consolidated Tangible Net Worth (Section 5.20)
Consolidated Tangible Net Worth will at no time be less than
$245,000,000 plus the sum of (i) 50% of the cumulative Reported Net
Income of the Borrower and its Consolidated Subsidiaries during any
period after the Fiscal Quarter ending April 2, 2000 (taken as one
accounting period), calculated quarterly at the end of each Fiscal
Quarter but excluding from such calculations of Reported Net Income for
purposes of this clause (i), any Fiscal Quarter in which the Reported
Net Income of the Borrower and its Consolidated Subsidiaries is
negative, (ii) 100% of the cumulative Net Proceeds of Capital Stock
received during any period after the Fiscal Quarter ending April 2,
2000, calculated quarterly at the end of each Fiscal Quarter, and (iii)
100% of any equity resulting from the conversions of any Debt of the
Borrower or its Consolidated Subsidiaries.
(a) Consolidated Tangible Net Worth
(Schedule 2) $______________
(b) Reported Net Income3___________________ $______________
(c) 50% of (b) $______________
(d) cumulative Net Proceeds of Capital Stock received
after Fiscal Quarter ending April 2, 2000 $______________
(e) equity resulting from conversions of Debt $______________
(f) Sum of (c), (d) (e) and $245,000,000 $______________
Limitation: (a) may not be less than (f)
----------
3 Exclude any Fiscal Quarter in which Reported Net Income is negative, 100% of
cumulative Net Proceeds of Capital Stock received during any period after the
Fiscal Quarter ending April 2, 2000, and 100% of any equity resulting from the
conversions of any Debt.
42
8. Factoring Arrangements (Section 5.23)
The Borrower and its Subsidiaries shall not have any factoring arrangements,
except those which comply with the provisions of this Section 5.23 ("Permitted
Factoring Arrangements"): (i) the aggregate face amount of factored accounts
receivable outstanding at any time shall not exceed $30,000,000 . . .
----------- ---------------------------------------------------------- --------------------------------------
(a) aggregate face amount of factored accounts outstanding $_______________
----------- ---------------------------------------------------------- --------------------------------------
(b) Limitation $30,000,000
----------- ---------------------------------------------------------- --------------------------------------
9. Additional Debt (Section 5.24)
The Borrower shall not incur or permit to exist, or permit any Consolidated
Subsidiary other than the Receivables Subsidiary to incur or permit to exist,
any Debt other than:
(A) Subject to Section 2.10(g), Debt under credit facilities
in Mexico in the aggregate amount not exceeding the Dollar equivalent
of 66,000,000 Mexican pesos, calculated based on the exchange rate as
of the Closing Date, debt under credit facilities in the United Kingdom
in the aggregate amount not exceeding the Dollar equivalent of
5,000,000 British pounds sterling, calculated based on the exchange
rate as of the Closing Date, term facilities to be entered into in
Portugal in the aggregate amount not exceeding the Dollar equivalent of
900,000,000 Portuguese escudos, calculated based on the exchange rate
as of the Closing Date; and
(B) (i) Debt in existence on the Closing Date (including Debt
in the amount of $1,500,000 of Xxxxx Fabrik LLC, a limited liability
company in which the Borrower owns 50% on the First Amendment Effective
Date, but in which it may thereafter acquire additional interests), and
extensions, renewals, refinancings or refundings thereof (provided that
the amount of such Debt is not increased); (ii) the Debt under this
Agreement; (iii) Debt permitted to be secured by Liens permitted by
Section 5.16; (iv) Debt of the types described in clause (vii) of the
definition of Debt which is incurred in the ordinary course of business
in connection with the sale or purchase of goods or to assure
performance of an obligation to a utility or a governmental entity or a
worker's compensation obligation; (v) Receivables Program Obligations;
(vi) Debt permitted by Section 5.15; (vii) obligations to reimburse any
bank or other Person in respect of amounts paid or to be paid under any
irrevocable standby letter of credit, or letter of credit issued in
support of trade payables arising from the import of goods, in an
aggregate amount at any time for all such standby and trade letters of
credit not exceeding $3,000,000 and (viii) Foreign Capital Leases and
other Permitted Foreign Debt. The Borrower shall not permit the
Receivables Subsidiary to incur any Debt or other liabilities other
than in connection with the Receivables Securitization Program.
43
(a) Reimbursement obligations under standby and trade letters of credit $________
Limitation: (a) may not exceed $3,000,000
10. Capital Expenditures (Section 5.27)
Capital Expenditures will not exceed in the aggregate (i) in the 2001
Fiscal Year, $72,000,000 and (ii) in the 2002 Fiscal Year, $50,000,000,
plus any amount permitted to be spent for Capital Expenditures in the
2001 Fiscal Year and not spent in such Fiscal Year.
-------------------------------------------------------------------------------------- ----------------------
(a) Capital expenditures made during current Fiscal Year $_________
-------------------------------------------------------------------------------------- ----------------------
(b) For Fiscal Year 2002, amount permitted to be carried over $_________4
from 2001 Fiscal Year
-------------------------------------------------------------------------------------- ----------------------
Limitation for current Fiscal Year [$72,000,000]
[$50,000,000 plus
(b)]
-------------------------------------------------------------------------------------- ----------------------
11. Adjusted Interest Coverage Ratio (Section 5.28)5
Commencing at the end of the first Fiscal Quarter of the 2003 Fiscal
Year, the Adjusted Interest Coverage Ratio for the Fiscal Quarter just
ended and the 3 immediately preceding Fiscal Quarters shall at no time
be less than 3.00.
(a) Consolidated Total EBITDA $____________
(Schedule 1)
(b) Capital Expenditures $____________
(c) Sum of (a) less (b) $____________
(d) Consolidated Interest Expense $____________
(e) Ratio of (c) to (d) ______ to 1.00
Minimum Ratio 3.0 to 1.00
----------
4 May not exceed $5,000,000
5 Include this portion only from and after the first Fiscal Quarter of the 2003
Fiscal Year
44
Schedule 1
----------
CONSOLIDATED TOTAL EBITDA
-------------------------
(a) Consolidated Net Income for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(b) Consolidated Interest Expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(c) Amortization expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(d) Depreciation expense for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
(e) Consolidated tax expense for (subtract if a
net tax benefit has been received):
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
45
(f) extraordinary gains and losses and other
non-operating gains and losses for:
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________6
(g) non cash charges for
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________7
(h) Applicable Restructuring Charges for
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
___ quarter ___ $______________
Total $______________
CONSOLIDATED TOTAL EBITDA $______________
(sum of (a), plus (b), plus (c), plus (d),
plus (e), plus or less (f), plus (g), plus (h))
----------
6 This amount may not exceed $2,500,000
7 This amount may not exceed $5,000,000
46
Schedule 2
----------
CONSOLIDATED TANGIBLE NET WORTH
-------------------------------
(a) Stockholders' Equity $_____________
(b) any surplus resulting from any write-up of
assets subsequent to [__________________] $_____________
(c) all assets which would be treated as
intangible assets $_____________
(d) any amount at which shares of Capital Stock
appear as an asset on the balance sheet (to the
extent not included in (c) $_____________
(e) loans or advances to stockholders, directors,
officers or employees $_____________
(f) deferred expenses (to the extent not
included in (c) $_____________
CONSOLIDATED TANGIBLE NET WORTH (sum
of (a) less (b), less (c), less (d), less (e), less (f)) $_____________
47
EXHIBIT J
---------
AMENDED AND RESTATED DOMESTIC STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED DOMESTIC STOCK PLEDGE AGREEMENT (this "Agreement")
dated as of November 6, 2000 by and among XXXXXXXX XXXXX, INC., a Delaware
corporation, (the "Company") and each of the undersigned corporations
respectively organized under the laws of the states set forth on the signature
pages below their names (collectively, the "Pledgor Subsidiaries", which term
shall refer to any Domestic Subsidiary of the Company which becomes a Pledgor
Subsidiary pursuant to Section 24 hereof and Section 5.21 of the Credit
Agreement referred to below; the Company and the Pledgor Subsidiaries being
collectively referred to as the "Pledgors" and individually as a "Pledgor") and
WACHOVIA BANK, N.A., a national banking association (in its individual capacity,
"Wachovia") organized under the laws of the United States of America, as
collateral agent (in such capacity, together with its successors and assigns,
"Collateral Agent") for itself, and for (i) The Prudential Insurance Company of
America, The Variable Annuity Life Insurance Company, American General Annuity
Insurance Company, Massachusetts Mutual Life Insurance Company and C.M. Life
Insurance Company (collectively, together with any other holders of Senior
Notes, as defined in and from time to time pursuant to the Note Purchase
Agreements, as defined in the Intercreditor Agreement described below, the
"Senior Note Holders") and (ii) Wachovia, First Union National Bank, Bank One,
NA and Branch Banking and Trust Company (collectively, together with any other
Banks parties from time to time to the Credit Agreement defined below, the
"Banks"; the Senior Note Holders and the Banks being collectively referred to,
together with any Cash Management Services Provider (as defined in the
Intercreditor Agreement), with respect to Cash Management Services Obligations
(as defined in the Intercreditor Agreement), any Bank providing hedge
arrangements giving rise to Hedge Obligations or Bank Letter of Credit
Obligations (as those terms are defined in the Intercreditor Agreement), and
Wachovia Bank, N.A., with respect to the A-Advanced Guaranty Obligations (as
defined in the Intercreditor Agreement) as "Secured Parties"), in connection
with that certain Amended and Restated Intercreditor Agreement by and among the
Company, the Collateral Agent and the Secured Parties dated as of October 13,
2000 (as amended or otherwise modified from time to time, the "Intercreditor
Agreement").
W I T N E S S E T H:
WHEREAS, the Company, the Banks, Wachovia, as Administrative Agent, First
Union National Bank, as Syndication Agent, and Bank One, NA, as Documentation
Agent, have entered into that certain Credit Agreement dated as of the date
hereof, as amended by First Amendment to Credit Agreement dated as of November
6, 2000 (as so amended and as it may hereafter be amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms,
the "Credit Agreement"; capitalized terms used herein without definition have
the meanings set forth in the Credit Agreement), pursuant to which the Banks
have agreed, subject to the terms thereof, to make available to the Borrowers
certain financial accommodations;
WHEREAS, certain of the undersigned Pledgors executed a Domestic Stock
Pledge Agreement dated as of May 26, 2000 (the "Original Agreement"), and this
Amended and Restated Domestic Stock Pledge Agreement is an amendment and
48
restatement of and supersedes such Original Agreement, and the parties hereto
intend that the security interests and liens granted pursuant to the Original
Agreement by the Debtors parties thereto shall continue uninterrupted and
without break in perfection from the date of the Original Agreement and
perfection thereunder; and
WHEREAS, Pursuant to the Intercreditor Agreement, the Secured Parties have
agreed that the Secured Obligations shall be equally and ratably secured
pursuant to this Agreement and any other Security Documents; the Secured Parties
have appointed Wachovia as the Collateral Agent to act on behalf of all Secured
Parties regarding the Pledged Collateral, all as more fully provided in the
Intercreditor Agreement; and the Secured Parties have entered into the
Intercreditor Agreement to, among other things, further define the rights,
duties, authority and responsibilities of the Collateral Agent and the
relationship between the Secured Parties regarding their interests in the
Pledged Collateral.
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. The Pledge. Each of the Pledgors hereby pledges, hypothecates,
assigns, transfers, sets over and delivers unto the Collateral Agent, and grants
to the Collateral Agent, for the ratable benefit of the Secured Parties, a
security interest in all of each Pledgor's right, title and interest in, to and
under the following (collectively, the "Pledged Collateral"): (a) all of the
shares of common stock, equity interests and other securities (collectively,
"Securities") of the respective Domestic Subsidiaries held by such Pledgor as
set forth on Exhibit A attached hereto (collectively, the "Issuers"); (b) any
additional Securities of any of the Issuers as may from time to time be issued
to the respective Pledgor or otherwise acquired by such Pledgor; (c) any
additional Securities of the Issuer as may hereafter at any time be delivered to
the Collateral Agent by or on behalf of the Pledgor; (d) any cash or additional
Securities or other property at any time and from time to time receivable or
otherwise distributable in respect of, in exchange for, or in substitution of,
any of the property referred to in any of the immediately preceding clauses (a)
through (c); and (e) any and all products and proceeds of any of the foregoing,
together with all other rights, titles, interests, powers, privileges and
preferences pertaining to said property.
Section 2. Obligations Secured. This Agreement is made, and the security
interest created hereby is granted to the Collateral Agent, to secure the prompt
performance and payment in full of the Secured Obligations (as defined in the
Intercreditor Agreement).
Section 3. Representations and Warranties. Each of the Pledgors, jointly and
severally, hereby represents and warrants to the Collateral Agent as follows:
(a) Validly Issued, etc. All of the Securities of each Issuer have been
validly issued and are fully paid and nonassessable.
(b) Title and Liens. Each Pledgor is, and, except as permitted by the Credit
Agreement, will at all times continue to be, the legal and beneficial owner of
the applicable Pledged Collateral and none of the Pledged Collateral is subject
to any Lien, except for the Lien granted hereby.
(c) Name; Chief Executive Office; Taxpayer ID Number. The correct corporate
name of each Pledgor, the chief executive office and principal place of business
of each Pledgor, the location of each Pledgor's books and records relating to
the respective Pledged Collateral, and the Federal Identification number of each
49
Pledgor is set forth on Exhibit B attached hereto. None of the Pledgors has any
offices or places of business other than as set forth on Exhibit B.
(d) Authority, etc. Each of the Pledgors (i) has the power and authority to
pledge the Pledged Collateral in the manner hereby done or contemplated and (ii)
will defend its title or interest thereto or therein against any and all Liens
(other than the Lien created by this Agreement), however arising, of all
persons.
(e) No Approval. No consent or approval of any Governmental Authority or any
securities exchange was or is necessary to the validity of the pledges effected
hereby.
(f) Outstanding Shares. The Securities pledged by each of the Pledgors
hereunder constitute all of the issued and outstanding Shares of the respective
Domestic Subsidiary owned by each of the Pledgors.
Section 4. Covenants. Each of the Pledgors hereby unconditionally covenants
and agrees as follows:
(a) No Liens; No Sale of Pledged Collateral. None of the Pledgors will
create, assume, incur or permit or suffer to exist or to be created, assumed or
incurred, any Lien on any of the Securities, and will not, except as permitted
by the Credit Agreement, without the prior written consent of the Collateral
Agent (which consent shall not be unreasonably withheld), sell, lease, assign,
transfer or otherwise dispose of all or any portion of the Securities (or any
interest therein).
(b) Change of Locations, Name, Etc. Without giving the Collateral Agent 30
days prior written notice, none of the Pledgors will (i) change such Pledgor's
chief executive office, principal place of business, or the location of its
books and records relating to any of the Pledged Collateral or (ii) change such
Pledgor's name, identity or structure.
Section 5. Additional Shares.
(a) During the period this Agreement is in effect, without the consent of the
Collateral Agent, none of the Pledgors shall permit any of the Issuers to issue
any additional shares of capital stock or other equity securities or interests,
unless such additional shares have been delivered and pledged to the Collateral
Agent. Further, without the consent of the Collateral Agent, none of the
Pledgors shall permit any of the Issuers to amend or modify its respective
articles or certificate of incorporation in a manner which would materially
adversely affect the voting, liquidation, preference or other rights of a holder
of the shares of stock pledged hereunder.
(b) Each of the Pledgors agrees that, until this Agreement has terminated in
accordance with its terms, any additional Securities of any of the Issuers at
any time issued to any of the Pledgors or otherwise acquired by any of the
Pledgors shall be promptly delivered or otherwise transferred to the Collateral
Agent as additional Pledged Collateral and shall be subject to the Lien of, and
the terms and conditions of, this Agreement.
Section 6. Registration in Nominee Name, Denominations. The Collateral Agent
shall have the right (in its sole and absolute discretion) to hold the Pledged
Collateral in its own name as pledgee, the name of its nominee (as Collateral
Agent or as sub-agent) or the name of the applicable Pledgor, endorsed or
assigned in blank pursuant to a separate blank stock power or in favor of the
Collateral Agent or (where applicable) registered in the name of the Collateral
Agent in the relevant stock registry. Each of the Pledgors will promptly give to
the Collateral Agent copies of any notices or other communications received by
it with respect to Pledged Collateral registered in the name of such Pledgor.
The Collateral Agent shall at all times have the right to exchange the
50
certificates representing Pledged Collateral for certificates of smaller or
larger numbers of shares for any purpose consistent with this Agreement.
Section 7. Voting Rights; Dividends, etc. So long as no Event of Default
shall have occurred and be continuing, with respect to any Securities:
(a) each of the Pledgors shall be entitled to exercise any and all voting
and/or consensual rights and powers accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
and conditions of this Agreement or any agreement giving rise to or otherwise
relating to any of the Secured Obligations; provided, however, that none of the
Pledgors shall exercise, or refrain from exercising, any such right or power if
any such action would have a materially adverse effect on the value of such
Pledged Collateral in the reasonable judgment of the Collateral Agent;
(b) each of the Pledgors shall be entitled to retain and use any and all cash
dividends, interest and principal paid on the Pledged Collateral, but any and
all stock and/or liquidating dividends, other distributions in property, return
of capital or other distributions made on or in respect of Pledged Collateral,
whether resulting from a subdivision, combination or reclassification of
outstanding Securities of any of the Issuers which are pledged hereunder or
received in exchange for the respective Pledged Collateral or any part thereof
or as a result of any merger, consolidation, acquisition or other exchange of
assets or on the liquidation, whether voluntary or involuntary, of any of the
Issuers, or otherwise, shall be and become part of the Pledged Collateral
pledged hereunder and, if received by any of the Pledgors, shall forthwith be
delivered to the Collateral Agent to be held as collateral subject to the terms
and conditions of this Agreement.
(c) The Collateral Agent agrees to execute and deliver to each of the
Pledgors, or cause to be executed and delivered to each of the Pledgors, as
appropriate, at the sole cost and expense of such Pledgor, all such proxies,
powers of attorney, dividend orders and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to exercise the
voting and/or consensual rights and powers which such Pledgor is entitled to
exercise pursuant to clause (a) above and/or to receive the dividends which such
Pledgor is authorized to retain pursuant to subsection (b) above.
(d) Upon the occurrence and during the continuance of an Event of Default,
all rights of each the Pledgors to exercise the voting and/or consensual rights
and powers which such Pledgor is entitled to exercise pursuant to subsection (a)
above and/or to receive the dividends, interest and principal that such Pledgor
is authorized to receive and retain pursuant to subsection (b) above shall
cease, and all such rights thereupon shall become immediately vested in the
Collateral Agent, which shall have, to the extent permitted by law, the sole and
exclusive right and authority to exercise such voting and/or consensual rights
and powers which each of the Pledgors shall otherwise be entitled to exercise
pursuant to subsection (a) above and/or to receive and retain the dividends
which each of the Pledgors shall otherwise be authorized to retain pursuant to
subsection (b) above. Any and all money and other property paid over to or
received by the Collateral Agent pursuant to the provisions of this subsection
(b) shall be retained by the Collateral Agent as additional collateral hereunder
and shall be applied in accordance with the provisions of Section 10. If any of
the Pledgors shall receive any dividends or other property which it is not
entitled to receive under this Section, such Pledgor shall hold the same in
trust for the Collateral Agent, without commingling the same with other funds or
property of or held by such Pledgor, and shall promptly deliver the same to the
Collateral Agent upon receipt by such Pledgor in the identical form received,
together with any necessary endorsements.
51
Section 8. Event of Default Defined. For purposes of this Agreement, "Event
of Default" shall mean:
(a) any of the Pledgors shall fail to observe or perform any covenant or
agreement contained in Sections 4(a), 5, or 7(b) hereof;
(b) any of Pledgors shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by the
immediately preceding subsection (a)) for a period of 30 days after written
notice thereof has been given to such Pledgor by the Collateral Agent; and
(c) an Event of Default under and as defined in each of the Credit Agreement
and the Intercreditor Agreement shall occur and be continuing.
Section 9. Remedies upon Default.
(a) In addition to any right or remedy that the Collateral Agent may have
under the Intercreditor Agreement, the Credit Agreement, the other Loan
Documents or otherwise under applicable law, if an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise any and all the
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any applicable jurisdiction (the "Code") and may otherwise sell,
assign, transfer, endorse and deliver the whole or, from time to time, any part
of the Pledged Collateral at a public or private sale or on any securities
exchange, for cash, upon credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Collateral Agent
in its discretion shall deem appropriate. The Collateral Agent shall be
authorized at any sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account in compliance
with the Securities Act and upon consummation of any such sale the Collateral
Agent shall have the right to assign, transfer, endorse and deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each purchaser
at any sale of Pledged Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of any of the Pledgors, and
each of the Pledgors hereby waives (to the fullest extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which any of the
Pledgors now has or may at any time in the future have under any applicable law
now existing or hereafter enacted. Each of the Pledgors agrees that, to the
extent notice of sale shall be required by applicable law, at least ten days'
prior written notice to the applicable Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification, but notice given in any other reasonable
manner or at any other reasonable time shall constitute reasonable notification.
Such notice, in case of public sale, shall state the time and place for such
sale, and, in the case of sale on a securities exchange, shall state the
exchange on which such sale is to be made and the day on which the respective
Pledged Collateral, or portion thereof, will first be offered for sale at such
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix and shall state in the notice or publication (if any) of such sale. At any
such sale, the applicable Pledged Collateral, or portion thereof to be sold, may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine in its sole and absolute discretion. The Collateral Agent
shall not be obligated to make any sale of any of the Pledged Collateral if it
shall determine not to do so regardless of the fact that notice of sale of the
Pledged Collateral may have been given. The Collateral Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
52
to which the same was so adjourned. In case the sale of all or any part of the
Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Collateral Agent until the sale price
is paid by the purchaser or purchasers thereof, but the Collateral Agent shall
not incur any liability to any of the Pledgors in case any such purchaser or
purchasers shall fail to take up and pay for the Pledged Collateral so sold and,
in case of any such failure, such Pledged Collateral may be sold again upon like
notice. At any public sale made pursuant to this Agreement, the Collateral Agent
or any Secured Party (in accordance with Section 8 of the Intercreditor
Agreement), to the extent permitted by applicable law, may bid for or purchase,
free from any right of redemption, stay and/or appraisal on the part of any of
the Pledgors (all said rights being also hereby waived and released to the
extent permitted by applicable law), any part of or all the Pledged Collateral
offered for sale and may make payment on account thereof by using any claim then
due and payable to the Collateral Agent from any of the Pledgors as a credit
against the purchase price, and the Collateral Agent may, upon compliance with
the terms of sale and to the extent permitted by applicable law, hold, retain
and dispose of such property without further accountability to any of the
Pledgors therefor. For purposes hereof, a written agreement to purchase all or
any part of the Pledged Collateral shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and none of the Pledgors shall be entitled to the return of any Pledged
Collateral subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default may have
been remedied or the Secured Obligations may have been paid in full as herein
provided. Each of the Pledgors hereby waives any right to require any marshaling
of assets and any similar right.
(b) In addition to exercising the power of sale herein conferred upon it, the
Collateral Agent shall also have the option to proceed by suit or suits at law
or in equity to foreclose this Agreement and sell the Pledged Collateral or any
portion thereof pursuant to judgment or decree of a court or courts having
competent jurisdiction.
(c) In addition to the foregoing, the Collateral Agent shall have all other
rights, powers and remedies which are available to it under any applicable laws.
(d) The rights and remedies of the Collateral Agent under this Agreement are
cumulative and not exclusive of any rights or remedies which it would otherwise
have.
Section 10. Application of Proceeds of Sale and Cash. The Company agrees to
pay to the Collateral Agent all Enforcement Costs paid or incurred by the
Collateral Agent. This agreement in this Section 10 shall survive the
termination of this Agreement and the Lien on the Pledged Collateral. All
Enforcement Costs, together with interest thereon from the date of any demand
therefor until paid in full at a per annum rate of interest equal at all times
to the Default Rate, shall be paid by the Company to the Collateral Agent
whenever demanded by the Collateral Agent.
Any proceeds of the collection of the sale or other disposition of the
Collateral will be applied by the Collateral Agent in accordance with the terms
of Section 12 of the Intercreditor Agreement. If the sale or other disposition
of the Collateral fails to satisfy all of the Secured Obligations, the Debtors
shall remain liable to the Collateral Agent and the Secured Parties for any
deficiency. Any surplus from the sale or disposition of the Pledged Collateral
shall be paid to the respective Debtor or to any other party entitled thereto or
shall otherwise be paid over in a manner permitted by law after payment in full
of all Secured Obligations and the Enforcement Costs related to any such
payment.
53
As used herein, the term "Enforcement Costs" means all reasonable expenses,
charges, costs and fees whatsoever (including, without limitation, reasonable
attorneys' fees and expenses) of any nature whatsoever paid or incurred by or on
behalf of the Collateral Agent in connection with (a) the collection or
enforcement of any or all of the Secured Obligations or this Agreement
(including, without limitation, reasonable attorneys fees incurred prior to the
institution of any suit or other proceeding), (b) the creation, perfection,
collection, maintenance, preservation, defense, protection, realization upon,
disposition, sale or enforcement of all or any part of the Collateral, (c) the
monitoring, inspection, administration, processing, servicing of any or all of
the Secured Obligations and/or the Collateral, (d) the preparation of this
Agreement, the Security Documents, and the preparation and review of lien and
record searches, reports, certificates, and/or other documents or information
relating from time to time to the taking, perfection, inspection, preservation,
protection and/or release of a Lien on the Collateral, the value of the
Collateral, or otherwise relating to the Collateral Agent's or any Secured
Party's rights, powers and remedies under this Agreement or with respect to the
Collateral, and (e) all filing and/or recording taxes or fees and all stamp and
other similar taxes and fees payable or determined to be payable in connection
with the execution and delivery of this Agreement and any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes or fees, the Pledgors hereby agreeing to indemnify and save the Collateral
Agent and the Secured Parties harmless from and against such liabilities
Section 11. Collateral Agent Appointed Attorney-in-Fact. From and after the
occurrence and during the existence of an Event of Default, each of the Pledgors
hereby constitutes and appoints the Collateral Agent as the attorney-in-fact of
each Pledgor with full power of substitution either in the Collateral Agent's
name or in the name of each of the Pledgors to do any of the following with
respect to any Securities and the related Pledged Collateral: (a) to perform any
obligation of any of the Pledgors hereunder in such Pledgor's name or otherwise;
(b) to ask for, demand, xxx for, collect, receive, receipt and give acquittance
for any and all moneys due or to become due under and by virtue of any Pledged
Collateral; (c) to prepare, execute, file, record or deliver notices,
assignments, financing statements, continuation statements, applications for
registration or like papers to perfect, preserve or release the Collateral
Agent's security interest in the Pledged Collateral or any of the documents,
instruments, certificates and agreements described in Section 13(b); (d) to
verify facts concerning the Pledged Collateral in its own name or a fictitious
name; (e) to endorse checks, drafts, orders and other instruments for the
payment of money payable to any of the Pledgors, representing any interest or
dividend or other distribution payable in respect of the Pledged Collateral or
any part thereof or on account thereof and to give full discharge for the same;
(f) to exercise all rights, powers and remedies which any of the Pledgors would
have, but for this Agreement, under the Pledged Collateral; and (g) to carry out
the provisions of this Agreement and to take any action and execute any
instrument which the Collateral Agent may deem necessary or advisable to
accomplish the purposes hereof, and to do all acts and things and execute all
documents in the name of each of the Pledgors or otherwise, deemed by the
Collateral Agent as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder. Nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by it, or to present or file any claim or notice, or to
take any action with respect to the Pledged Collateral or any part thereof or
the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by the Collateral Agent or omitted to be taken with
respect to the Pledged Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or
54
action against the Collateral Agent. The power of attorney granted herein is
irrevocable and coupled with an interest.
Section 12. Reimbursement of Collateral Agent. The Company agrees to pay upon
demand to the Collateral Agent the amount of any and all reasonable expenses,
including the reasonable fees disbursements and other charges of its counsel and
of any experts or agents, that the Collateral Agent may incur in connection with
(i) the administration of this Agreement, (ii) the custody or preservation of,
or any sale of, collection from, or other realization upon, any of the Pledged
Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder, or (iv) the failure by any of the Pledgors to
perform or observe any of the provisions hereof. Any such amounts payable as
provided hereunder shall be additional obligations secured hereby and by the
other Security Documents.
Section 13. Further Assurances. Each of the Pledgors shall, at its sole cost
and expense, take all action that may be necessary or desirable in the
Collateral Agent's sole discretion, so as at all times to maintain the validity,
perfection, enforceability and priority of the Collateral Agent's security
interest in the Pledged Collateral, or to enable the Collateral Agent to
exercise or enforce its rights hereunder, including without limitation (a)
delivering to the Collateral Agent, endorsed or accompanied by such instruments
of assignment as the Collateral Agent may specify, any and all chattel paper,
instruments, letters of credit and all other undertakings of guaranty and
documents evidencing or forming a part of the Pledged Collateral and (b)
executing and delivering financing statements, pledges, designations, notices
and assignments, in each case in form and substance satisfactory to the
Collateral Agent, relating to the creation, validity, perfection, priority or
continuation of the security interest granted hereunder. Subject to the
foregoing, each of the Pledgors agrees to take, and authorizes the Collateral
Agent to take on such Pledgor's behalf, any or all of the following actions with
respect to any Pledged Collateral as the Collateral Agent shall deem necessary
to perfect the security interest and pledge created hereby or to enable the
Collateral Agent to enforce its rights and remedies hereunder: (i) to register
in the name of the Collateral Agent any Pledged Collateral in certificated or
uncertificated form; (ii) to endorse in the name of the Collateral Agent any
Pledged Collateral issued in certificated form; and (iii) by book entry or
otherwise, identify as belonging to the Collateral Agent a quantity of
securities that constitutes all or part of the Pledged Collateral registered in
the name of the Collateral Agent. Notwithstanding the foregoing each of the
Pledgors agrees that Pledged Collateral which is not in certificated form or is
otherwise in book-entry form shall be held for the account of the Collateral
Agent. Each of the Pledgors hereby authorizes the Collateral Agent to execute
and file in all necessary and appropriate jurisdictions (as determined by the
Collateral Agent) one or more financing or continuation statements (or any other
document or instrument referred to in the immediately preceding clause (b)) in
the name of the applicable Pledgor and to sign such Pledgor's name thereto. Each
of the Pledgors authorizes the Collateral Agent to file any such financing
statement, document or instrument without the signature of such Pledgor to the
extent permitted by applicable law. To the extent permitted by applicable law, a
carbon, photographic, xerographic or other reproduction of this Agreement or any
financing statement is sufficient as a financing statement. Any property
comprising part of the Pledged Collateral required to be delivered to the
Collateral Agent pursuant to this Agreement shall be accompanied by proper
instruments of assignment duly executed by each of the Pledgors and by such
other instruments or documents as the Collateral Agent may reasonably request.
Section 14. Securities Laws. In view of the position of the Pledgors in
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
55
hereafter in effect, or any similar applicable law hereafter enacted analogous
in purpose or effect, whether foreign or domestic (such Act and any such similar
applicable law as from time to time in effect being called the "Securities
Laws") with respect to any disposition of the Pledged Collateral permitted
hereunder. Each of the Pledgors understands that compliance with the Securities
Laws might very strictly limit the course of conduct of the Collateral Agent if
the Collateral Agent were to attempt to dispose of all or any part of the
Pledged Collateral in accordance with the terms hereof, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral in accordance with the terms
hereof under applicable Blue Sky or other state securities laws or similar
applicable law analogous in purpose or effect. The Pledgor recognizes that in
light of the foregoing restrictions and limitations the Collateral Agent may,
with respect to any sale of the Pledged Collateral, limit the purchasers to
those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment, and not with a view to the distribution or
resale thereof. Each of the Pledgors acknowledges and agrees that in light of
the foregoing restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, may, in accordance with applicable law, (a) proceed to
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) approach and negotiate with a single
potential purchaser to effect such sale. Each of the Pledgors acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Collateral in accordance
with the terms hereof at a price that the Collateral Agent, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
will apply notwithstanding the existence of public or private market upon which
the quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
Section 15. Indemnification. Each of the Pledgors agrees to indemnify and
hold the Collateral Agent and any corporation controlling, controlled by, or
under common control with, the Collateral Agent and any officer, attorney,
director, shareholder, agent or employee of the Collateral Agent or any such
corporation (each an "Indemnified Person"), harmless from and against any claim,
loss, damage, action, cause of action, liability, cost and expense or suit of
any kind or nature whatsoever (collectively, "Losses"), brought against or
incurred by an Indemnified Person, in any manner arising out of or, directly or
indirectly, related to or connected with this Agreement, including without
limitation, the exercise by the Collateral Agent of any of its rights and
remedies under this Agreement or any other action taken by the Collateral Agent
pursuant to the terms of this Agreement; provided, however, the Pledgor shall
not be liable to an Indemnified Person for any Losses to the extent that such
Losses result from the gross negligence or willful misconduct of such
Indemnified Person. The Pledgor's obligations under this section shall survive
the termination of this Agreement and the payment in full of the Secured
Obligations.
Section 16. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until it terminates in accordance with its terms. Each of the
Pledgors and the Collateral Agent hereby agree that the security interest
56
created by this Agreement in the Pledged Collateral shall not terminate and
shall continue and remain in full force and effect notwithstanding the transfer
to any of the Pledgors or any person designated by it of all or any portion of
the Pledged Collateral.
Section 17. Security Interest Absolute. All rights of the Collateral Agent
hereunder, the grant of a security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Intercreditor
Agreement, the Credit Agreement or any other Loan Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of the
payment of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the
Intercreditor Agreement, the Credit Agreement, any other Loan Document, or any
other agreement or instrument relating to any of the foregoing, (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Secured Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any of the
Pledgors in respect of the Secured Obligations or in respect of this Agreement
(other than the indefeasible payment in full of all the Secured Obligations).
Section 18. No Waiver. Neither the failure on the part of the Collateral
Agent to exercise, nor the delay on its part in exercising any right, power or
remedy hereunder, nor any course of dealing between the Collateral Agent and any
of the Pledgors shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power, or remedy hereunder preclude any
other or the further exercise thereof or the exercise of any other right, power
or remedy.
Section 19. Notices. Notices, requests and other communications required or
permitted hereunder shall be given in accordance with the applicable terms of
the Credit Agreement.
Section 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 21. Amendments. No amendment or waiver of any provision of this
Agreement nor consent to any departure by any of the Pledgors herefrom shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 22. Binding Agreement; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that none of the Pledgors shall be permitted to
assign this Agreement or any interest herein or in the Pledged Collateral, or
any part thereof, or any cash or property held by the Collateral Agent as
collateral under this Agreement.
Section 23. Termination. Upon indefeasible payment in full of all of the Bank
Obligations, and termination of all Commitments under the Credit Agreement, this
Agreement shall terminate. Upon termination of this Agreement in accordance with
its terms the Collateral Agent agrees to take such actions as the Company may
reasonably request, and at the sole cost and expense of the Company, (a) to
return the Pledged Collateral to the applicable Pledgor, and (b) to evidence the
termination of this Agreement, including, without limitation, the filing of any
releases or any termination statements under the Uniform Commercial Code.
Section 24. Additional Pledgors; Release of Pledgors. Section 5.21 of the
Credit Agreement provides that Domestic Subsidiaries which own or acquire a
Domestic Subsidiary and which are not Pledgors must become Pledgors by, among
other things, executing and delivering to the Agent a counterpart to this
57
Agreement. Any Domestic Subsidiary which executes and delivers to the Agent a
counterpart of this Agreement shall be a Pledgor for all purposes hereunder.
Under certain circumstances described in paragraph (b) of Section 5.21 of the
Credit Agreement, a Pledgor which is to be sold may obtain from the Collateral
Agent a written release from this Agreement pursuant to the provisions of such
paragraph and upon obtaining such written release, any such former Pledgor shall
no longer be a Pledgor hereunder. Each other Pledgor consents and agrees to any
such release and agrees that no such release shall affect its obligations
hereunder.
Section 25. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
Section 26. Headings. Section headings used herein are for convenience only
and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
Section 27. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute but one agreement.
[Signatures on Next Page]
58
IN WITNESS WHEREOF, each of the Pledgors has executed and delivered this
Agreement under seal as of this the date first written above.
XXXXXXXX XXXXX, INC. (SEAL)
By:________________________________________________
Name:
Title:
GOLD XXXXX, INC. (SEAL)
a Delaware corporation
By:________________________________________________
Name:
Title:
GFD SERVICES, INC. (SEAL)
a Delaware corporation
By:________________________________________________
Name:
Title:
ADVISORY RESEARCH SERVICES,
INC., a North Carolina corporation (SEAL)
By:________________________________________________
Name:
Title:
By:________________________________________________
Name:
Title:
59
Agreed to, accepted and acknowledged as of the date first written
above.
WACHOVIA BANK, N.A., as Collateral Agent
By:____________________________
Title:
60
EXHIBIT A
PLEDGED COLLATERAL
PLEDGOR: XXXXXXXX XXXXX, INC.
--------------------
ISSUER NO. OF SECURITIES CERTIFICATE NOS.
------ ----------------- ----------------
Curtains and Fabrics, Inc. 376 A2
Gold Xxxxx, Inc. 12,250 1, 2, 7, 11, 12, 13, 14,
15, 16, 17, 18, 22, 23, 28, 31, 32,
33, 34,
Raschel Fashion Interknitting, Ltd. 200 1
Mexican Industries of North Carolina, Inc. 100 1
GMI Computer Sales, Inc. 100 1
Guilford Airmont, Inc. 100 1
Xxxxxxxx Xxxxx (Michigan), Inc. 100 1
Advisory Research Services, Inc. 1 1
Guilford International, Inc. 1000 1
Xxxxxxx Laces, Ltd. 200 1
GFD Services, Inc. 100 1
PLEDGOR: GOLD XXXXX, INC.
----------------
ISSUER NO. OF SECURITIES CERTIFICATES NOS.
------ ----------------- -----------------
Gold Xxxxx Farms, Inc. 200 2
PLEDGOR: GFD SERVICES, INC.
------------------
ISSUER NO. OF SECURITIES CERTIFICATES NOS.
------ ----------------- -----------------
GFD Fabrics, Inc. 100 1
61
PLEDGOR: ADVISORY SERVICES, INC.
-----------------------
ISSUER NO. OF SECURITIES CERTIFICATES NOS.
------ ----------------- -----------------
Twin Rivers Textile None-Pledgor owns a 50% None-Pledgor owns a 50%
Printing & Finishing partnership interest partnership interest
62
EXHIBIT B
---------
PLEDGORS
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Federal I.D. No. 00-0000000
Gold Xxxxx, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxxxx 00000
Federal I.D. No. 00-0000000
GFD Services, Inc.
9th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Federal I.D. No. 00-0000000
Advisory Research Services, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Federal I.D. No. 00-0000000
63
EXHIBIT K
---------
AMENDED AND RESTATED GUARANTY
-----------------------------
THIS AMENDED AND RESTATED GUARANTY (this "Guaranty") is made
as of November 6, 2000, by each of the undersigned corporations respectively
organized under the laws of the states set forth on the signature pages below
their names (collectively the "Guarantors", which term shall include any
Domestic Subsidiary of Xxxxxxxx Xxxxx, Inc. which becomes a Guarantor pursuant
to Section 16 hereof and Section 5.21 of the Credit Agreement referred to
below), in favor of the Administrative Agent, for the ratable benefit of the
Banks, under the Credit Agreement referred to below;
W I T N E S S E T H
WHEREAS, XXXXXXXX XXXXX, INC., a Delaware corporation (the
"Borrower"), and WACHOVIA BANK, N.A., as Administrative Agent (the
"Administrative Agent"), First Union National Bank, as Syndication Agent and
Bank One, NA, as Documentation Agent, and certain other Banks from time to time
party thereto have entered into a certain Credit Agreement dated as of May 26,
2000, as amended by First Amendment to Credit Agreement of even date herewith
(as it may be amended or modified further from time to time, the "Credit
Agreement"), providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Banks to the Borrower which will the
benefit the Guarantors;
WHEREAS, it is required by Section 3.01(g) of the Credit
Agreement, that the Guarantors execute and deliver this Guaranty whereby they
Guarantee the payment when due of all principal, interest and other amounts that
shall be at any time payable by the Borrower under the Credit Agreement, the
Notes and the other Loan Documents;
WHEREAS, in consideration of the financial and other support
that the Borrower has provided, and such financial and other support as the
Borrower may in the future provide, to the Guarantors, whether directly or
indirectly, and in order to induce the Banks and the Administrative Agent to
enter into the Credit Agreement, the Guarantors are willing to guarantee the
obligations of the Borrower under the Credit Agreement, the Notes, and the other
Loan Documents; and
WHEREAS, certain of the undersigned Guarantors executed a
Guaranty dated as of May 26, 2000, and this Amended and Restated Guaranty is an
amendment and restatement of and supersedes such Guaranty;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement
and not otherwise defined herein have, as used herein, the respective meanings
provided for therein.
64
SECTION 2. Representations and Warranties. The Guarantors
incorporate herein by reference as fully as if set forth herein all of the
representations and warranties pertaining to the Guarantors (whether stated in
their capacity as Guarantors or as Subsidiaries) contained in Article IV of the
Credit Agreement (which representations and warranties shall be deemed to have
been renewed by the Guarantors upon each Borrowing under the Credit Agreement).
SECTION 3. Covenants. The Guarantors covenant that, so long as
any Bank has any Commitment outstanding under the Credit Agreement or any amount
payable under the Credit Agreement or any Note shall remain unpaid, the
Guarantors will fully comply with those covenants set forth in Article V of the
Credit Agreement pertaining to the Guarantors (whether stated in their capacity
as Guarantors or as Subsidiaries), and the Guarantors incorporate herein by
reference as fully as if set forth herein all of such covenants.
SECTION 4. The Guaranty. The Guarantors hereby unconditionally
and jointly and severally guarantee the full and punctual payment (whether at
stated maturity, upon acceleration or otherwise) of the principal of and
interest on each Note issued by the Borrower pursuant to the Credit Agreement,
and the full and punctual payment of all other amounts payable by the Borrower
under the Credit Agreement (including, without limitation, all Syndicated Loans
and Swing Loans and interest thereon, all Cash Management Services Obligations,
all Hedge Obligations, all Bank Letter of Credit Obligations and all
compensation and indemnification amounts and fees payable pursuant to the Credit
Agreement and the Administrative Agent's Letter Agreement (all of the foregoing
obligations being referred to collectively as the "Guaranteed Obligations").
Upon failure by the Borrower to pay punctually any such amount, each of the
Guarantors agrees that it shall forthwith on demand pay the amount not so paid
at the place and in the manner specified in the Credit Agreement, the relevant
Note or the relevant Loan Document, as the case may be.
SECTION 5. Guaranty Unconditional. The obligations of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the Borrower under
the Credit Agreement, any Note, or any other Loan Document, by
operation of law or otherwise or any obligation of any other guarantor
of any of the Guaranteed Obligations;
(ii) any modification or amendment of or supplement
to the Credit Agreement, any Note, or any other Loan Document;
(iii) any release, nonperfection or invalidity of any
direct or indirect security for any obligation of the Borrower under
the Credit Agreement, any Note, any Loan Document, or any obligations
of any other guarantor of any of the Guaranteed Obligations;
(iv) any change in the corporate structure or
ownership of the Borrower or corporate structure or ownership of any
other Guarantor or any other guarantor of any of the Guaranteed
Obligations, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting the Borrower, or any other Guarantor or
any other guarantor of the Guaranteed Obligations, or its assets or any
65
resulting release or discharge of any obligation of the Borrower, or
any other Guarantor or any other guarantor of any of the Guaranteed
Obligations;
(v) the existence of any claim, setoff or other
rights which the Guarantors may have at any time against the Borrower,
any other Guarantor or any other guarantor of any of the Guaranteed
Obligations, the Administrative Agent, any Bank or any other Person,
whether in connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such claim by
separate suit or compulsory counterclaim;
(vi) any law, regulation, order, decree or directive
(whether or not having the force of law) or any interpretation thereof,
now or hereafter in effect in any jurisdiction, that purports to modify
any of the terms of or rights of any Bank with respect to any
Guaranteed Obligation or under the Credit Agreement or any other Loan
Document or this Guaranty, including without limitation any law,
regulation, order, decree or directive or interpretation thereof that
purports to require or permit the satisfaction of any Guaranteed
Obligation other than strictly in accordance with the terms of the
Credit Agreement or any other Loan Document (such as by the tender of a
currency other than the relevant Foreign Currency) or that restricts
the procurement of the Foreign Currency by any Borrower or the
Guarantor, or any agreement, whether or not signed by or on behalf of
any Bank, in connection with the restructuring or rescheduling of
public or private obligations in any Borrower's country, whether or not
such agreement is stated to cause or permit the discharge of the
Guaranteed Obligations prior to the final payment in full of the
Guaranteed Obligations in the relevant Foreign Currency in strict
accordance with the Credit Agreement or other Loan Documents;
(vii) any invalidity or unenforceability relating to
or against the Borrower, or any other Guarantor or any other guarantor
of any of the Guaranteed Obligations, for any reason related to the
Credit Agreement, any other Loan Document, or any other Guaranty, or
any provision of applicable law or regulation purporting to prohibit
the payment by the Borrower, or any other Guarantor or any other
guarantor of the Guaranteed Obligations, of the principal of or
interest on any Note or any other amount payable by the Borrower under
the Credit Agreement, the Notes, or any other Loan Document; or
(viii) any other act or omission to act or delay of
any kind by the Borrower, any other Guarantor or any other guarantor of
the Guaranteed Obligations, the Administrative Agent, any Bank or any
other Person or any other circumstance whatsoever which might, but for
the provisions of this paragraph, constitute a legal or equitable
discharge of the Guarantors' obligations hereunder.
SECTION 6. Discharge Only Upon Payment In Full; Reinstatement
In Certain Circumstances. The Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full and the Commitments under the Credit Agreement shall have terminated or
expired. If at any time any payment of the principal of or interest on any Note
or any other amount payable by the Borrower under the Credit Agreement or any
other Loan Document is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
66
Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 7. Waiver of Notice by the Guarantors. The Guarantors
irrevocably waive acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower, any other Guarantor or any other guarantor of the Guaranteed
Obligations, or any other Person.
SECTION 8. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by the Principal under the Credit Agreement,
any Note or any other Loan Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, any Note or any other Loan
Document shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by the Administrative Agent made at the request of the Required Banks.
SECTION 9. Notices. All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied or mailed or delivered to the intended recipient at
its address or telecopier number set forth on the signature pages hereof or such
other address or telecopy number as such party may hereafter specify for such
purpose by notice to the Administrative Agent in accordance with the provisions
of Section 9.01 of the Credit Agreement. Except as otherwise provided in this
Guaranty, all such communications shall be deemed to have been duly given when
transmitted by telecopier, or personally delivered or, in the case of a mailed
notice, 3 Domestic Business Days after such communication is deposited in the
mails with first class postage prepaid, in each case given or addressed as
aforesaid.
SECTION 10. No Waivers. No failure or delay by the
Administrative Agent or any Banks in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Credit Agreement, the Notes, and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies provided by law.
SECTION 11. Successors and Assigns. This Guaranty is for the
benefit of the Administrative Agent and the Banks and their respective
successors and assigns and in the event of an assignment of any amounts payable
under the Credit Agreement, the Notes, or the other Loan Documents, the rights
hereunder, to the extent applicable to the indebtedness so assigned, may be
transferred with such indebtedness. This Guaranty may not be assigned by the
Guarantors without the prior written consent of the Administrative Agent and the
Required Banks, and shall be binding upon the Guarantors and their respective
successors and permitted assigns.
SECTION 12. Changes in Writing. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Guarantors and the Administrative Agent, with the
consent of the Required Banks.
SECTION 13. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER
OF JURY TRIAL. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
67
WITH THE LAW OF THE STATE OF GEORGIA. EACH OF THE GUARANTORS AND THE
ADMINISTRATIVE AGENT HEREBY SUBMITS TO THE NONEXCLUSIVE PERSONAL JURISDICTION IN
THE STATE OF GEORGIA, THE COURTS THEREOF AND THE UNITED STATES DISTRICT COURTS
SITTING THEREIN AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
EACH OF THE GUARANTORS AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 14. Taxes, etc. All payments required to be made by
the Guarantors hereunder shall be made without setoff or counterclaim and free
and clear of and without deduction or withholding for or on account of, any
present or future taxes, levies, imposts, duties or other charges of whatsoever
nature imposed by any government or any political or taxing authority pursuant
and subject to the provisions of Section 2.11(d) of the Credit Agreement, the
terms of which are incorporated herein by reference as to the Guarantors as
fully as if set forth herein, and for such purposes, the rights and obligations
of the Borrower under such Section shall devolve to the Guarantors as to
payments required to be made by the Guarantors hereunder.
SECTION 15. Additional Guarantors; Release of Guarantors.
Section 5.21 of the Credit Agreement provides that Domestic Subsidiaries which
are acquired or created after the First Amendment Effective Date must become
Guarantors, by, among other things, executing and delivering to the
Administrative Agent a counterpart of this Guaranty and the Contribution
Agreement. Any Domestic Subsidiary which executes and delivers to the
Administrative Agent a counterpart of this Guaranty and the Contribution
Agreement (or a joinder agreement with respect thereto) shall be a Guarantor for
all purposes hereunder. Under certain circumstances described in paragraph (b)
of Section 5.21 of the Credit Agreement, a Guarantor which is to be sold may
obtain from the Administrative Agent a written release from this Guaranty
pursuant to the provisions of such paragraph and upon obtaining such written
release, any such former Guarantor shall no longer be a Guarantor hereunder.
Each other Guarantor consents and agrees to any such release and agrees that no
such release shall affect its obligations hereunder.
SECTION 16. Failure to Pay in Foreign Currency. If any the
Guarantor is unable for any reason to effect payment in a relevant Foreign
Currency as required by this Guaranty or if the Guarantor shall default in the
Foreign Currency, each Bank may, through the Administrative Agent, require such
payment to be made in Dollars in the Dollar Equivalent amount of such payment.
In any case in which the Guarantor shall make such payment in Dollars, the
Guarantor agrees to hold the Banks harmless from any loss incurred by the Banks
arising from any change in the value of Dollars in relation to such Foreign
Currency between the date such payment became due and the date of payment
thereof.
SECTION 17. Judgment Currency. If for the purpose of obtaining
judgment in any court or enforcing any such judgment it is necessary to convert
any amount due in any Foreign Currency into any other currency, the rate of
68
exchange used shall be the Administrative Agent's spot rate of exchange for the
purchase of the Foreign Currency with such other currency at the close of
business on the Foreign Currency Business Day preceding the date on which
judgment is given or any order for payment is made. The obligation of the
Guarantor in respect of any amount due from it hereunder shall, notwithstanding
any judgment or order for a liquidated sum or sums in respect of amounts due
hereunder or under any judgment or order in any other currency or otherwise be
discharged only to the extent that on the Foreign Currency Business Day
following receipt by the Administrative Agent of any payment in a currency other
than the relevant Foreign Currency the Administrative Agent is able (in
accordance with normal banking procedures) to purchase the relevant Foreign
Currency with such other currency. If the amount of the relevant Foreign
Currency that the Administrative Agent is able to purchase with such other
currency is less than the amount due in the relevant Foreign Currency,
notwithstanding any judgment or order, the Guarantor shall indemnify the Banks
for the shortfall.
SECTION 18. Subrogation. The Guarantor hereby agrees that it
will not exercise any rights which it may acquire by way of subrogation under
this Guaranty, by any payment made hereunder or otherwise, unless and until all
of the Guaranteed Obligations shall have been paid in full. If any amount shall
be paid to the Guarantor on account of such subrogation rights at any time when
all of the Guaranteed Obligations shall not have been paid in full, such amount
shall be held in trust for the benefit of the Administrative Agent and the Banks
and shall forthwith be paid to the Administrative Agent to be credited and
applied upon the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of the Credit Agreement.
69
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly
executed, under seal, by its respective authorized officer as of the date first
above written.
GOLD XXXXX, a Delaware corporation (SEAL)
RASCHEL FASHION INTERKNITTING, LTD.,
a New York corporation (SEAL)
CURTAINS AND FABRICS, INC.,
a New York corporation (SEAL)
GUILFORD INTERNATIONAL, INC.,
a U.S. Virgin Islands 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)
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 By:_____________________________________________________
Attention: Xxxx Xxxx Title:_______________________________________________
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Services, Inc.
Address: c/o Xxxxxxxx Xxxxx, Inc. a General Partner
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx By:__________________________
Telecopier number: 000-000-0000 Title: _____________________
Confirmation number: 000-000-0000
70
EXHIBIT L
---------
AMENDED AND RESTATED CONTRIBUTION AGREEMENT
THIS AMENDED AND RESTATED CONTRIBUTION AGREEMENT (this
"Agreement") is entered into as of November 6, 2000 by and among XXXXXXXX XXXXX,
INC. (the "Borrower"), and each of the undersigned corporations respectively
organized under the laws of the states set forth on the signature pages below
their names (collectively, the "Subsidiary Guarantors", which term shall include
any Domestic Subsidiary of the Borrower which becomes a Guarantor pursuant to
the last paragraph hereof, Section 15 of the Guaranty referred to below and
Section 5.21 of the Credit Agreement referred to below, all of whom collectively
are the Subsidiary Guarantors). The Borrower and each of the Subsidiary
Guarantors are sometimes hereinafter referred to individually as a "Contributing
Party" and collectively as the "Contributing Parties".
W I T N E S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as
of even date herewith among the Borrower, the Banks party thereto, Wachovia
Bank, N.A., as Administrative Agent, First Union National Bank, as Syndication
Agent and Bank One, NA, as Documentation Agent, as amended by First Amendment to
Credit Agreement of even date herewith (such agreement, as so amended and as the
same may from time to time hereafter be amended, modified, restated or extended,
being hereinafter referred to as the "Credit Agreement"; capitalized terms used
herein shall have the meanings ascribed thereto in the Credit Agreement), the
Banks have agreed to extend financial accommodations to the Borrower;
WHEREAS, as a condition, among others, to the willingness of
the Administrative Agent and the Banks to enter into the Credit Agreement, they
have required that each Subsidiary Guarantor, execute and deliver that certain
Guaranty, dated as of even date herewith (such agreement, as the same may from
time to time be amended, modified, restated or extended, being hereinafter
referred to as the "Guaranty"), pursuant to which, among other things, the
Subsidiary Guarantors have jointly and severally agreed to guarantee the
"Guaranteed Obligations" (as defined in the Guaranty);
WHEREAS, each Subsidiary Guarantor is a direct or indirect
subsidiary of the Borrower and is engaged in businesses related to those of the
Borrower and each other Subsidiary Guarantor, and each of the Subsidiary
Guarantors will derive direct or indirect economic benefit from the
effectiveness and existence of the Credit Agreement; and
WHEREAS, certain of the undersigned Subsidiary Guarantors
executed a Contribution Agreement dated as of May 26, 2000, and this Amended and
Restated Contribution Agreement is an amendment and restatement of and
supersedes such Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and the
covenants hereinafter contained, and to induce each Subsidiary Guarantor to
enter into the Guaranty, it is agreed as follows:
71
To the extent that any Subsidiary Guarantor shall, under the
Guaranty, make a payment (a "Subsidiary Guarantor Payment") of a portion of the
Guaranteed Obligations, then, without limiting its rights of subrogation against
the principal, such Subsidiary Guarantor shall be entitled to contribution and
indemnification from, and be reimbursed by, each of the other Contributing
Parties in an amount, for each such Contributing Party other than the Borrower,
equal to a fraction of such Subsidiary Guarantor Payment, the numerator of which
fraction is such Contributing Party's Allocable Amount and the denominator of
which is the sum of the Allocable Amounts of all of the Contributing Parties.
As of any date of determination, the "Allocable Amount" of
each Contributing Party shall be equal to the maximum amount of liability which
could be asserted against such Contributing Party hereunder with respect to the
applicable Subsidiary Guarantor Payment without (i) rendering such Contributing
Party "insolvent" within the meaning of Section 101(31) of the Federal
Bankruptcy Code (the "Bankruptcy Code") or Section 2 of either the Uniform
Fraudulent Transfer Act (the "UFTA") or the Uniform Fraudulent Conveyance Act
(the "UFCA"), (ii) leaving such Contributing Party with unreasonably small
capital, within the meaning of Section 548 of the Bankruptcy Code or Section 4
of the UFTA or Section 5 of the UFCA, or (iii) leaving such Contributing Party
unable to pay its debts as they become due within the meaning of Section 548 of
the Bankruptcy Code or Section 4 of the UFTA or Section 6 of the UFCA.
This Agreement is intended only to define the relative rights
of the Contributing Parties, and nothing set forth in this Agreement is intended
to or shall impair the obligations of the Subsidiary Guarantors, jointly and
severally, to pay any amounts, as and when the same shall become due and payable
in accordance with the terms of the Guaranty.
The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets in favor of each
Subsidiary Guarantor to which such contribution and indemnification is owing.
This Agreement shall become effective upon its execution by
each of the Contributing Parties and shall continue in full force and effect and
may not be terminated or otherwise revoked by any Contributing Party until all
of the Guaranteed Obligations shall have been indefeasibly paid in full (in
lawful money of the United States of America) and discharged and the Credit
Agreement and financing arrangements evidenced and governed by the Credit
Agreement shall have been terminated. Each Contributing Party agrees that if,
notwithstanding the foregoing, such Contributing Party shall have any right
under applicable law to terminate or revoke this Agreement, and such
Contributing Party shall attempt to exercise such right, then such termination
or revocation shall not be effective until a written notice of such revocation
or termination, specifically referring hereto and signed by such Contributing
Party, is actually received by each of the other Contributing Parties and by the
Administrative Agent at its notice address set forth in the Credit Agreement.
Such notice shall not affect the right or power of any Contributing Party to
enforce rights arising prior to receipt of such written notice by each of the
other Contributing Parties and the Administrative Agent. If any Bank grants
additional loans to the Borrower or takes other action giving rise to additional
Guaranteed Obligations after any Contributing Party has exercised any right to
terminate or revoke this Agreement but before the Administrative Agent receives
such written notice, the rights of each other Contributing Party to contribution
and indemnification hereunder in connection with any Subsidiary Guarantor
72
Payments made with respect to such loans or Guaranteed Obligations shall be the
same as if such termination or revocation had not occurred.
Section 5.21 of the Credit Agreement provides that Domestic
Subsidiaries acquired or created after the First Amendment Effective Date must
become Guarantors, by, among other things, executing and delivering to the
Administrative Agent a counterpart of the Guaranty and of this Contribution
Agreement. Any Subsidiary which executes and delivers to the Administrative
Agent a counterpart of the Guaranty and of this Contribution Agreement shall be
a Subsidiary Guarantor for all purposes hereunder. Under certain circumstances
described in paragraph (b) of Section 5.21 of the Credit Agreement, Guarantors
which are to be sold may obtain from the Administrative Agent a written release
from the Guaranty pursuant to the provisions of such sentence, and upon
obtaining such written release, any such former Guarantor shall no longer be a
Subsidiary Guarantor or Contributing Party hereunder, and such release shall
automatically and without further action constitute a release by each other
Contributing Party of all obligations of such Subsidiary hereunder. The Borrower
and each other Subsidiary Guarantor consents and agrees to any such release and
agrees that no such release shall affect its obligations hereunder, except as to
the former Guarantor so released.
IN WITNESS WHEREOF, each Contributing Party has executed and delivered this
Agreement, under seal, as of the date first above written.
Xxxxxxxx Xxxxx, Inc. XXXXXXXX XXXXX, INC. (SEAL)
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 By:___________________________________
Attention: Xxxx Xxxx Title:_____________________________
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
73
GOLD XXXXX, a Delaware corporation (SEAL)
RASCHEL FASHION INTERKNITTING, LTD.,
a New York corporation (SEAL)
CURTAINS AND FABRICS, INC.,
a New York corporation (SEAL)
GUILFORD INTERNATIONAL, INC.,
a U.S. Virgin Islands 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)
Address: c/o Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 By:_____________________________________________________
Attention: Xxxx Xxxx Title:_______________________________________________
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
TWIN RIVERS TEXTILE PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Services, Inc.
Address: c/o Xxxxxxxx Xxxxx, Inc. a General Partner
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxx By: __________________________
Telecopier number: 000-000-0000 Title: _____________________
Confirmation number: 000-000-0000
74
EXHIBIT M
---------
AMENDED AND RESTATED FOREIGN STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED FOREIGN STOCK PLEDGE AGREEMENT (this
"Agreement") dated as of November 6, 2000 by and between XXXXXXXX XXXXX, INC., a
Delaware corporation, (the "Company") and each of the undersigned corporations
respectively organized under the laws of the states set forth on the signature
pages below their names (collectively, the "Pledgor Subsidiaries", which term
shall refer to any Domestic Subsidiary of the Company which becomes a Pledgor
Subsidiary pursuant to Section 24 hereof and Section 5.22 of the Credit
Agreement referred to below; the Company and the Pledgor Subsidiaries being
collectively referred to as the "Pledgors" and individually as a "Pledgor" and
WACHOVIA BANK, N.A., a national banking association (in its individual capacity,
"Wachovia") organized under the laws of the United States of America, as
collateral agent (in such capacity, together with its successors and assigns,
"Collateral Agent") for itself, and for (i) The Prudential Insurance Company of
America, The Variable Annuity Life Insurance Company, American General Annuity
Insurance Company, Massachusetts Mutual Life Insurance Company and C.M. Life
Insurance Company (collectively, together with any other holders of Senior
Notes, as defined below, from time to time pursuant to the Note Purchase
Agreements, as defined below, the "Senior Note Holders") and (ii) Wachovia,
First Union National Bank, Bank One, NA and Branch Banking and Trust Company
(collectively, together with any other Banks parties from time to time to the
Credit Agreement defined below, the "Banks"; the Senior Note Holders and the
Banks being collectively referred to, together with any Cash Management Services
Provider, with respect to Cash Management Services Obligations, any Bank
providing hedge arrangements giving rise to Hedge Obligations or Bank Letter of
Credit Obligations (as those terms are defined in the Intercreditor Agreement),
and Wachovia Bank, N.A., with respect to the A-Advanced Guaranty Obligations (as
defined in the Intercreditor Agreement) as "Secured Parties"), in connection
with that certain Amended and Restated Intercreditor Agreement by and among the
Company, the Collateral Agent and the Secured Parties dated as of October 13,
2000 (as amended or otherwise modified from time to time, the "Intercreditor
Agreement", which Intercreditor Agreement amends and restates an Intercreditor
Agreement dated as of May 26, 2000).
W I T N E S S E T H:
WHEREAS, the Company, the Banks, Wachovia, as Administrative Agent,
First Union National Bank, as Syndication Agent, and Bank One, NA, as
Documentation Agent, have entered into that certain Credit Agreement dated as of
May 26, 2000, as amended by First Amendment to Credit Agreement dated as of the
date hereof (as so amended and as it may hereafter be amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms,
the "Credit Agreement"; capitalized terms used herein without definition have
the meanings set forth in the Credit Agreement), pursuant to which the Banks
have agreed, subject to the terms thereof, to make available to the Borrowers
certain financial accommodations;
WHEREAS, Pursuant to the Intercreditor Agreement, the Secured Parties
have agreed that the Secured Obligations shall be equally and ratably secured
pursuant to this Agreement and any other Security Documents; the Secured Parties
have appointed Wachovia as the Collateral Agent to act on behalf of all Secured
75
Parties regarding the Pledged Collateral, all as more fully provided in the
Intercreditor Agreement; and the Secured Parties have entered into the
Intercreditor Agreement to, among other things, further define the rights,
duties, authority and responsibilities of the Collateral Agent and the
relationship between the Secured Parties regarding their interests in the
Pledged Collateral, and
WHEREAS, certain of the undersigned Pledgors executed a Foreign Stock
Pledge Agreement dated as of May 26, 2000 (the "Original Agreement"), and this
Amended and Restated Foreign Stock Pledge Agreement is an amendment and
restatement of and supersedes such Original Agreement, and the parties hereto
intend that the security interests and liens granted pursuant to the Original
Agreement by the Pledgors parties thereto shall continue uninterrupted and
without break in perfection from the date of the Original Agreement and
perfection thereunder;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section 1. The Pledge. Each of the Pledgors hereby pledges,
hypothecates, assigns, transfers, sets over and delivers unto the Collateral
Agent, and grants to the Collateral Agent, for the ratable benefit of the
Secured Parties, a security interest in all of each Pledgor's right, title and
interest in, to and under the following (collectively, the "Pledged
Collateral"): (a) all of the shares of common stock, equity interests and other
securities (collectively, "Securities") of the respective Direct Foreign
Subsidiaries held by such Pledgor as set forth on Exhibit A attached hereto
(collectively, the "Issuers"); provided, however, that the Securities pledged
pursuant hereto shall not include (i) Securities owned by any of the Pledgors in
excess of Securities evidencing 65% of the voting power of each class of capital
stock owned by such Pledgor or (ii) to the extent that applicable law requires
that the applicable Issuer issue directors' qualifying shares, such qualifying
shares; (b) subject to the provisions of Section 5(b) hereof, any additional
Securities of any of the Issuers as may from time to time be issued to the
respective Pledgor or otherwise acquired by such Pledgor; (c) any additional
Securities of the Issuer as may hereafter at any time be delivered to the
Collateral Agent by or on behalf of the Pledgor; (d) any cash or additional
Securities or other property at any time and from time to time receivable or
otherwise distributable in respect of, in exchange for, or in substitution of,
any of the property referred to in any of the immediately preceding clauses (a)
through (c); and (e) any and all products and proceeds of any of the foregoing,
together with all other rights, titles, interests, powers, privileges and
preferences pertaining to said property.
Section 2. Obligations Secured. This Agreement is made, and the
security interest created hereby is granted to the Collateral Agent, to secure
the prompt performance and payment in full of the Secured Obligations (as
defined in the Intercreditor Agreement).
Section 3. Representations and Warranties. Each of the Pledgors,
jointly and severally, hereby represents and warrants to the Collateral Agent as
follows:
(a) Validly Issued, etc. All of the Securities of each Issuer have been
validly issued and are fully paid and nonassessable.
76
(b) Title and Liens. Each Pledgor is, and, except as permitted by the
Credit Agreement, will at all times continue to be, the legal and beneficial
owner of the applicable Pledged Collateral and none of the Pledged Collateral is
subject to any Lien, except for the Lien granted hereby.
(c) Name; Chief Executive Office; Taxpayer ID Number. The correct
corporate name of each Pledgor, the chief executive office and principal place
of business of each Pledgor, the location of each Pledgor's books and records
relating to the respective Pledged Collateral, and the Federal Identification
number of each Pledgor is set forth on Exhibit B attached hereto. None of the
Pledgors has any offices or places of business other than as set forth on
Exhibit B.
(d) Authority, etc. Each of the Pledgors (i) has the power and
authority to pledge the Pledged Collateral in the manner hereby done or
contemplated and (ii) will defend its title or interest thereto or therein
against any and all Liens (other than the Lien created by this Agreement),
however arising, of all persons.
(e) No Approval. No consent or approval of any Governmental Authority
or any securities exchange was or is necessary to the validity of the pledges
effected hereby.
(f) Outstanding Shares. The Securities pledged by each of the Pledgors
hereunder constitute 65% of the issued and outstanding Shares of the respective
Direct Foreign Subsidiary owned by each of the Pledgors.
Section 4. Covenants. Each of the Pledgors hereby unconditionally
covenants and agrees as follows:
(a) No Liens; No Sale of Pledged Collateral. None of the Pledgors will
create, assume, incur or permit or suffer to exist or to be created, assumed or
incurred, any Lien on any of the Securities, and will not, except as otherwise
permitted by the Credit Agreement, without the prior written consent of the
Collateral Agent (which consent shall not be unreasonably withheld), sell,
lease, assign, transfer or otherwise dispose of all or any portion of the
Securities (or any interest therein).
(b) Change of Locations, Name, Etc. Without giving the Collateral Agent
30 days prior written notice, none of the Pledgors will (i) change such
Pledgor's chief executive office, principal place of business, or the location
of its books and records relating to any of the Pledged Collateral or (ii)
change such Pledgor's name, identity or structure.
Section 5. Additional Shares.
(a) During the period this Agreement is in effect, without the consent
of the Collateral Agent, none of the Pledgors shall permit any of the Issuers to
issue any additional shares of capital stock or other equity securities or
interests, unless such additional shares have been delivered and pledged to the
Collateral Agent. Further, without the consent of the Collateral Agent, none of
the Pledgors shall permit any of the Issuers to amend or modify its respective
articles or certificate of incorporation (or other analogous organizational
document) in a manner which would materially adversely affect the voting,
liquidation, preference or other rights of a holder of the shares of stock
pledged hereunder.
77
(b) Each of the Pledgors agrees that, until this Agreement has
terminated in accordance with its terms, any additional Securities of any of the
Issuers at any time issued to any of the Pledgors or otherwise acquired by any
of the Pledgors shall be promptly delivered or otherwise transferred to the
Collateral Agent as additional Pledged Collateral and shall be subject to the
Lien of, and the terms and conditions of, this Agreement; provided that if
compliance with this Section 5(b) would result in more than 65% of the voting
power of any class of such capital stock of an Issuer being included in the
Pledged Collateral, the Pledgor shall pledge only such portion of such capital
stock as shall result in 65% of the voting power of such class of capital stock
owned by the Pledgor being included in the Pledged Collateral.
Section 6. Registration in Nominee Name, Denominations. The Collateral
Agent shall have the right (in its sole and absolute discretion) to hold the
Pledged Collateral in its own name as pledgee, the name of its nominee (as
Collateral Agent or as sub-agent) or the name of the applicable Pledgor,
endorsed or assigned in blank pursuant to a separate blank stock power or in
favor of the Collateral Agent or (where applicable) registered in the name of
the Collateral Agent in the relevant stock registry. Each of the Pledgors will
promptly give to the Collateral Agent copies of any notices or other
communications received by it with respect to Pledged Collateral registered in
the name of such Pledgor. The Collateral Agent shall at all times have the right
to exchange the certificates representing Pledged Collateral for certificates of
smaller or larger numbers of shares for any purpose consistent with this
Agreement.
Section 7. Voting Rights; Dividends, etc. So long as no Event of
Default shall have occurred and be continuing, with respect to any Securities:
(a) each of the Pledgors shall be entitled to exercise any and all
voting and/or consensual rights and powers accruing to an owner of the Pledged
Collateral or any part thereof for any purpose not inconsistent with the terms
and conditions of this Agreement or any agreement giving rise to or otherwise
relating to any of the Secured Obligations; provided, however, that none of the
Pledgors shall exercise, or refrain from exercising, any such right or power if
any such action would have a materially adverse effect on the value of such
Pledged Collateral in the reasonable judgment of the Collateral Agent;
(b) each of the Pledgors shall be entitled to retain and use any and
all cash dividends, interest and principal paid on the Pledged Collateral, but
any and all stock and/or liquidating dividends, other distributions in property,
return of capital or other distributions made on or in respect of Pledged
Collateral, whether resulting from a subdivision, combination or
reclassification of outstanding Securities of any of the Issuers which are
pledged hereunder or received in exchange for the respective Pledged Collateral
or any part thereof or as a result of any merger, consolidation, acquisition or
other exchange of assets or on the liquidation, whether voluntary or
involuntary, of any of the Issuers, or otherwise, shall be and become part of
the Pledged Collateral pledged hereunder and, if received by any of the
Pledgors, shall forthwith be delivered to the Collateral Agent to be held as
collateral subject to the terms and conditions of this Agreement.
(c) The Collateral Agent agrees to execute and deliver to each of the
Pledgors, or cause to be executed and delivered to each of the Pledgors, as
appropriate, at the sole cost and expense of such Pledgor, all such proxies,
powers of attorney, dividend orders and other instruments as such Pledgor may
reasonably request for the purpose of enabling such Pledgor to exercise the
voting and/or consensual rights and powers which such Pledgor is entitled to
78
exercise pursuant to clause (a) above and/or to receive the dividends which such
Pledgor is authorized to retain pursuant to subsection (b) above.
(d) Upon the occurrence and during the continuance of an Event of
Default, all rights of each the Pledgors to exercise the voting and/or
consensual rights and powers which such Pledgor is entitled to exercise pursuant
to subsection (a) above and/or to receive the dividends, interest and principal
that such Pledgor is authorized to receive and retain pursuant to subsection (b)
above shall cease, and all such rights thereupon shall become immediately vested
in the Collateral Agent, which shall have, to the extent permitted by law, the
sole and exclusive right and authority to exercise such voting and/or consensual
rights and powers which each of the Pledgors shall otherwise be entitled to
exercise pursuant to subsection (a) above and/or to receive and retain the
dividends which each of the Pledgors shall otherwise be authorized to retain
pursuant to subsection (b) above. Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
subsection (b) shall be retained by the Collateral Agent as additional
collateral hereunder and shall be applied in accordance with the provisions of
Section 10. If any of the Pledgors shall receive any dividends or other property
which it is not entitled to receive under this Section, such Pledgor shall hold
the same in trust for the Collateral Agent, without commingling the same with
other funds or property of or held by such Pledgor, and shall promptly deliver
the same to the Collateral Agent upon receipt by such Pledgor in the identical
form received, together with any necessary endorsements.
Section 8. Event of Default Defined. For purposes of this Agreement,
"Event of Default" shall mean:
(a) any of the Pledgors shall fail to observe or perform any covenant
or agreement contained in Sections 4(a), 5, or 7(b) hereof;
(b) any of Pledgors shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by the
immediately preceding subsection (a)) for a period of 30 days after written
notice thereof has been given to such Pledgor by the Collateral Agent; and
(c) an Event of Default under and as defined in each of the Credit
Agreement and the Intercreditor Agreement shall occur and be continuing.
Section 9. Remedies upon Default.
(a) In addition to any right or remedy that the Collateral Agent may
have under the Intercreditor Agreement, the Credit Agreement, the other Loan
Documents or otherwise under applicable law, if an Event of Default shall have
occurred and be continuing, the Collateral Agent may exercise any and all the
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any applicable jurisdiction (the "Code") and may otherwise sell,
assign, transfer, endorse and deliver the whole or, from time to time, any part
of the Pledged Collateral at a public or private sale or on any securities
exchange, for cash, upon credit or for other property, for immediate or future
delivery, and for such price or prices and on such terms as the Collateral Agent
in its discretion shall deem appropriate. The Collateral Agent shall be
authorized at any sale (if it deems it advisable to do so) to restrict the
prospective bidders or purchasers to Persons who will represent and agree that
they are purchasing the Pledged Collateral for their own account in compliance
79
with the Securities Act and upon consummation of any such sale the Collateral
Agent shall have the right to assign, transfer, endorse and deliver to the
purchaser or purchasers thereof the Pledged Collateral so sold. Each purchaser
at any sale of Pledged Collateral shall take and hold the property sold
absolutely free from any claim or right on the part of any of the Pledgors, and
each of the Pledgors hereby waives (to the fullest extent permitted by
applicable law) all rights of redemption, stay and/or appraisal which any of the
Pledgors now has or may at any time in the future have under any applicable law
now existing or hereafter enacted. Each of the Pledgors agrees that, to the
extent notice of sale shall be required by applicable law, at least ten days'
prior written notice to the applicable Pledgor of the time and place of any
public sale or the time after which any private sale is to be made shall
constitute reasonable notification, but notice given in any other reasonable
manner or at any other reasonable time shall constitute reasonable notification.
Such notice, in case of public sale, shall state the time and place for such
sale, and, in the case of sale on a securities exchange, shall state the
exchange on which such sale is to be made and the day on which the respective
Pledged Collateral, or portion thereof, will first be offered for sale at such
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix and shall state in the notice or publication (if any) of such sale. At any
such sale, the applicable Pledged Collateral, or portion thereof to be sold, may
be sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may determine in its sole and absolute discretion. The Collateral Agent
shall not be obligated to make any sale of any of the Pledged Collateral if it
shall determine not to do so regardless of the fact that notice of sale of the
Pledged Collateral may have been given. The Collateral Agent may, without notice
or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case the sale of all or any part of the
Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Collateral Agent until the sale price
is paid by the purchaser or purchasers thereof, but the Collateral Agent shall
not incur any liability to any of the Pledgors in case any such purchaser or
purchasers shall fail to take up and pay for the Pledged Collateral so sold and,
in case of any such failure, such Pledged Collateral may be sold again upon like
notice. At any public sale made pursuant to this Agreement, the Collateral Agent
or any Secured Party (in accordance with Section 8 of the Intercreditor
Agreement), to the extent permitted by applicable law, may bid for or purchase,
free from any right of redemption, stay and/or appraisal on the part of any of
the Pledgors (all said rights being also hereby waived and released to the
extent permitted by applicable law), any part of or all the Pledged Collateral
offered for sale and may make payment on account thereof by using any claim then
due and payable to the Collateral Agent from any of the Pledgors as a credit
against the purchase price, and the Collateral Agent may, upon compliance with
the terms of sale and to the extent permitted by applicable law, hold, retain
and dispose of such property without further accountability to any of the
Pledgors therefor. For purposes hereof, a written agreement to purchase all or
any part of the Pledged Collateral shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and none of the Pledgors shall be entitled to the return of any Pledged
Collateral subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default may have
been remedied or the Secured Obligations may have been paid in full as herein
provided. Each of the Pledgors hereby waives any right to require any marshaling
of assets and any similar right.
80
(b) In addition to exercising the power of sale herein conferred upon
it, the Collateral Agent shall also have the option to proceed by suit or suits
at law or in equity to foreclose this Agreement and sell the Pledged Collateral
or any portion thereof pursuant to judgment or decree of a court or courts
having competent jurisdiction.
(c) In addition to the foregoing, the Collateral Agent shall have all
other rights, powers and remedies which are available to it under any applicable
laws.
(d) The rights and remedies of the Collateral Agent under this
Agreement are cumulative and not exclusive of any rights or remedies which it
would otherwise have.
Section 10. Application of Proceeds of Sale and Cash. The Company
agrees to pay to the Collateral Agent all Enforcement Costs paid or incurred by
the Collateral Agent. This agreement in this Section 10 shall survive the
termination of this Agreement and the Lien on the Pledged Collateral. All
Enforcement Costs, together with interest thereon from the date of any demand
therefor until paid in full at a per annum rate of interest equal at all times
to the Default Rate, shall be paid by the Company to the Collateral Agent
whenever demanded by the Collateral Agent.
Any proceeds of the collection of the sale or other disposition of the
Collateral will be applied by the Collateral Agent in accordance with the terms
of Section 12 of the Intercreditor Agreement. If the sale or other disposition
of the Collateral fails to satisfy all of the Secured Obligations, the Debtors
shall remain liable to the Collateral Agent and the Secured Parties for any
deficiency. Any surplus from the sale or disposition of the Pledged Collateral
shall be paid to the respective Debtor or to any other party entitled thereto or
shall otherwise be paid over in a manner permitted by law after payment in full
of all Secured Obligations and the Enforcement Costs related to any such
payment.
As used herein, the term "Enforcement Costs" means all reasonable
expenses, charges, costs and fees whatsoever (including, without limitation,
reasonable attorneys' fees and expenses) of any nature whatsoever paid or
incurred by or on behalf of the Collateral Agent in connection with (a) the
collection or enforcement of any or all of the Secured Obligations or this
Agreement (including, without limitation, reasonable attorneys fees incurred
prior to the institution of any suit or other proceeding), (b) the creation,
perfection, collection, maintenance, preservation, defense, protection,
realization upon, disposition, sale or enforcement of all or any part of the
Collateral, (c) the monitoring, inspection, administration, processing,
servicing of any or all of the Secured Obligations and/or the Collateral, (d)
the preparation of this Agreement, the Security Documents, and the preparation
and review of lien and record searches, reports, certificates, and/or other
documents or information relating from time to time to the taking, perfection,
inspection, preservation, protection and/or release of a Lien on the Collateral,
the value of the Collateral, or otherwise relating to the Collateral Agent's or
any Secured Party's rights, powers and remedies under this Agreement or with
respect to the Collateral, and (e) all filing and/or recording taxes or fees and
all stamp and other similar taxes and fees payable or determined to be payable
in connection with the execution and delivery of this Agreement and any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees, the Pledgors hereby agreeing to indemnify and save the
Collateral Agent and the Secured Parties harmless from and against such
liabilities
81
Section 11. Collateral Agent Appointed Attorney-in-Fact. From and after
the occurrence and during the existence of an Event of Default, each of the
Pledgors hereby constitutes and appoints the Collateral Agent as the
attorney-in-fact of each Pledgor with full power of substitution either in the
Collateral Agent's name or in the name of each of the Pledgors to do any of the
following with respect to any Securities and the related Pledged Collateral: (a)
to perform any obligation of any of the Pledgors hereunder in such Pledgor's
name or otherwise; (b) to ask for, demand, xxx for, collect, receive, receipt
and give acquittance for any and all moneys due or to become due under and by
virtue of any Pledged Collateral; (c) to prepare, execute, file, record or
deliver notices, assignments, financing statements, continuation statements,
applications for registration or like papers to perfect, preserve or release the
Collateral Agent's security interest in the Pledged Collateral or any of the
documents, instruments, certificates and agreements described in Section 13(b);
(d) to verify facts concerning the Pledged Collateral in its own name or a
fictitious name; (e) to endorse checks, drafts, orders and other instruments for
the payment of money payable to any of the Pledgors, representing any interest
or dividend or other distribution payable in respect of the Pledged Collateral
or any part thereof or on account thereof and to give full discharge for the
same; (f) to exercise all rights, powers and remedies which any of the Pledgors
would have, but for this Agreement, under the Pledged Collateral; and (g) to
carry out the provisions of this Agreement and to take any action and execute
any instrument which the Collateral Agent may deem necessary or advisable to
accomplish the purposes hereof, and to do all acts and things and execute all
documents in the name of each of the Pledgors or otherwise, deemed by the
Collateral Agent as necessary, proper and convenient in connection with the
preservation, perfection or enforcement of its rights hereunder. Nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by it, or to present or file any claim or notice, or to
take any action with respect to the Pledged Collateral or any part thereof or
the moneys due or to become due in respect thereof or any property covered
thereby, and no action taken by the Collateral Agent or omitted to be taken with
respect to the Pledged Collateral or any part thereof shall give rise to any
defense, counterclaim or offset in favor of the Pledgor or to any claim or
action against the Collateral Agent. The power of attorney granted herein is
irrevocable and coupled with an interest.
Section 12. Reimbursement of Collateral Agent. The Company agrees to
pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees disbursements and other charges of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or any sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of the Collateral Agent hereunder, or (iv) the failure by any of the
Pledgors to perform or observe any of the provisions hereof. Any such amounts
payable as provided hereunder shall be additional obligations secured hereby and
by the other Security Documents.
Section 13. Further Assurances. Each of the Pledgors shall, at its sole
cost and expense, take all action that may be necessary or desirable in the
Collateral Agent's sole discretion, so as at all times to maintain the validity,
perfection, enforceability and priority of the Collateral Agent's security
interest in the Pledged Collateral, or to enable the Collateral Agent to
exercise or enforce its rights hereunder, including without limitation (a)
delivering to the Collateral Agent, endorsed or accompanied by such instruments
of assignment as the Collateral Agent may specify, any and all chattel paper,
82
instruments, letters of credit and all other undertakings of guaranty and
documents evidencing or forming a part of the Pledged Collateral and (b)
executing and delivering financing statements, pledges, designations, notices
and assignments, in each case in form and substance satisfactory to the
Collateral Agent, relating to the creation, validity, perfection, priority or
continuation of the security interest granted hereunder. Subject to the
foregoing, each of the Pledgors agrees to take, and authorizes the Collateral
Agent to take on such Pledgor's behalf, any or all of the following actions with
respect to any Pledged Collateral as the Collateral Agent shall deem necessary
to perfect the security interest and pledge created hereby or to enable the
Collateral Agent to enforce its rights and remedies hereunder: (i) to register
in the name of the Collateral Agent any Pledged Collateral in certificated or
uncertificated form; (ii) to endorse in the name of the Collateral Agent any
Pledged Collateral issued in certificated form; and (iii) by book entry or
otherwise, identify as belonging to the Collateral Agent a quantity of
securities that constitutes all or part of the Pledged Collateral registered in
the name of the Collateral Agent. Notwithstanding the foregoing each of the
Pledgors agrees that Pledged Collateral which is not in certificated form or is
otherwise in book-entry form shall be held for the account of the Collateral
Agent. Each of the Pledgors hereby authorizes the Collateral Agent to execute
and file in all necessary and appropriate jurisdictions (as determined by the
Collateral Agent) one or more financing or continuation statements (or any other
document or instrument referred to in the immediately preceding clause (b)) in
the name of the applicable Pledgor and to sign such Pledgor's name thereto. Each
of the Pledgors authorizes the Collateral Agent to file any such financing
statement, document or instrument without the signature of such Pledgor to the
extent permitted by applicable law. To the extent permitted by applicable law, a
carbon, photographic, xerographic or other reproduction of this Agreement or any
financing statement is sufficient as a financing statement. Any property
comprising part of the Pledged Collateral required to be delivered to the
Collateral Agent pursuant to this Agreement shall be accompanied by proper
instruments of assignment duly executed by each of the Pledgors and by such
other instruments or documents as the Collateral Agent may reasonably request.
Section 14. Securities Laws. In view of the position of the Pledgors in
relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar applicable law hereafter enacted analogous
in purpose or effect, whether foreign or domestic (such Act and any such similar
applicable law as from time to time in effect being called the "Securities
Laws") with respect to any disposition of the Pledged Collateral permitted
hereunder. Each of the Pledgors understands that compliance with the Securities
Laws might very strictly limit the course of conduct of the Collateral Agent if
the Collateral Agent were to attempt to dispose of all or any part of the
Pledged Collateral in accordance with the terms hereof, and might also limit the
extent to which or the manner in which any subsequent transferee of any Pledged
Collateral could dispose of the same. Similarly, there may be other legal
restrictions or limitations affecting the Collateral Agent in any attempt to
dispose of all or part of the Pledged Collateral in accordance with the terms
hereof under applicable Blue Sky or other state securities laws or similar
applicable law analogous in purpose or effect. The Pledgor recognizes that in
light of the foregoing restrictions and limitations the Collateral Agent may,
with respect to any sale of the Pledged Collateral, limit the purchasers to
those who will agree, among other things, to acquire such Pledged Collateral for
their own account, for investment, and not with a view to the distribution or
resale thereof. Each of the Pledgors acknowledges and agrees that in light of
the foregoing restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, may, in accordance with applicable law, (a) proceed to
83
make such a sale whether or not a registration statement for the purpose of
registering such Pledged Collateral or part thereof shall have been filed under
the Federal Securities Laws and (b) approach and negotiate with a single
potential purchaser to effect such sale. Each of the Pledgors acknowledges and
agrees that any such sale might result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions. In
the event of any such sale, the Collateral Agent shall incur no responsibility
or liability for selling all or any part of the Pledged Collateral in accordance
with the terms hereof at a price that the Collateral Agent, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
will apply notwithstanding the existence of public or private market upon which
the quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
Section 15. Indemnification. Each of the Pledgors agrees to indemnify
and hold the Collateral Agent and any corporation controlling, controlled by, or
under common control with, the Collateral Agent and any officer, attorney,
director, shareholder, agent or employee of the Collateral Agent or any such
corporation (each an "Indemnified Person"), harmless from and against any claim,
loss, damage, action, cause of action, liability, cost and expense or suit of
any kind or nature whatsoever (collectively, "Losses"), brought against or
incurred by an Indemnified Person, in any manner arising out of or, directly or
indirectly, related to or connected with this Agreement, including without
limitation, the exercise by the Collateral Agent of any of its rights and
remedies under this Agreement or any other action taken by the Collateral Agent
pursuant to the terms of this Agreement; provided, however, the Pledgor shall
not be liable to an Indemnified Person for any Losses to the extent that such
Losses result from the gross negligence or willful misconduct of such
Indemnified Person. The Pledgor's obligations under this section shall survive
the termination of this Agreement and the payment in full of the Secured
Obligations.
Section 16. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until it terminates in accordance with its terms. Each of the
Pledgors and the Collateral Agent hereby agree that the security interest
created by this Agreement in the Pledged Collateral shall not terminate and
shall continue and remain in full force and effect notwithstanding the transfer
to any of the Pledgors or any person designated by it of all or any portion of
the Pledged Collateral.
Section 17. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Intercreditor
Agreement, the Credit Agreement or any other Loan Document, any agreement with
respect to any of the Obligations or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of the
payment of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to any departure from the
Intercreditor Agreement, the Credit Agreement, any other Loan Document, or any
other agreement or instrument relating to any of the foregoing, (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Secured Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any of the
84
Pledgors in respect of the Secured Obligations or in respect of this Agreement
(other than the indefeasible payment in full of all the Secured Obligations).
Section 18. No Waiver. Neither the failure on the part of the
Collateral Agent to exercise, nor the delay on its part in exercising any right,
power or remedy hereunder, nor any course of dealing between the Collateral
Agent and any of the Pledgors shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power, or remedy hereunder
preclude any other or the further exercise thereof or the exercise of any other
right, power or remedy.
Section 19. Notices. Notices, requests and other communications
required or permitted hereunder shall be given in accordance with the applicable
terms of the Credit Agreement.
Section 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 21. Amendments. No amendment or waiver of any provision of this
Agreement nor consent to any departure by any of the Pledgors herefrom shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 22. Binding Agreement; Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that none of the Pledgors shall be permitted to
assign this Agreement or any interest herein or in the Pledged Collateral, or
any part thereof, or any cash or property held by the Collateral Agent as
collateral under this Agreement.
Section 23. Termination. Upon indefeasible payment in full of all of
the Bank Obligations, and termination of all Commitments under the Credit
Agreement, this Agreement shall terminate. Upon termination of this Agreement in
accordance with its terms the Collateral Agent agrees to take such actions as
the Company may reasonably request, and at the sole cost and expense of the
Company, (a) to return the Pledged Collateral to the applicable Pledgor, and (b)
to evidence the termination of this Agreement, including, without limitation,
the filing of any releases or any termination statements under the Uniform
Commercial Code.
Section 24. Additional Pledgors; Release of Pledgors. Section 5.22 of
the Credit Agreement provides that Domestic Subsidiaries which own or acquire a
Direct Foreign Subsidiary and which are not Pledgors must become Pledgors by,
among other things, executing and delivering to the Agent a counterpart to this
Agreement. Any Domestic Subsidiary which executes and delivers to the Agent a
counterpart of this Agreement shall be a Pledgor for all purposes hereunder.
Under certain circumstances described in paragraph (b) of Section 5.22 of the
Credit Agreement, a Pledgor which is to be sold may obtain from the Collateral
Agent a written release from this Agreement pursuant to the provisions of such
paragraph and upon obtaining such written release, any such former Pledgor shall
no longer be a Pledgor hereunder. Each other Pledgor consents and agrees to any
such release and agrees that no such release shall affect its obligations
hereunder.
85
Section 25. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provisions shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provisions or the remaining provisions of this Agreement.
Section 26. Headings. Section headings used herein are for convenience
only and are not to affect the construction of or be taken into consideration in
interpreting this Agreement.
Section 27. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and all of which
shall constitute but one agreement.
[Signatures on Next Page]
86
IN WITNESS WHEREOF, each of the Pledgors has executed and delivered
this Agreement under seal as of this the date first written above.
XXXXXXXX XXXXX, INC. (SEAL)
By:____________________________________
Name:
Title:
GUILFORD AIRMONT, INC. (SEAL
MEXICAN INDUSTRIES OF NORTH
..CAROLINA, INC. (SEAL))
By:____________________________________
Name:
Title:
Agreed to, accepted and acknowledged as of
the date first written above.
WACHOVIA BANK, N.A., as Collateral Agent
By:_____________________________________
Title:
87
EXHIBIT A
---------
PLEDGED COLLATERAL
SHARES OWNED BY XXXXXXXX XXXXX, INC.
---------------------------------------- -------------------------------------- --------------------------------------
ISSUER NO. OF SHARES CERTIFICATE NOS.
------ ------------- ----------------
---------------------------------------- -------------------------------------- --------------------------------------
Xxxxxxxx Xxxxx Xxxxxxx* 0,000 0
(Xxxxxx Xxxxxxx)
---------------------------------------- -------------------------------------- --------------------------------------
Grupo Ambar, S.A. de C.V. 7,338,067 6, 11, 12, 14, 17, 21, 23, 24, 26,
28, 29, 31, 33, 35, 36, 41, 43, 44,
(Mexico) 45,
---------------------------------------- -------------------------------------- --------------------------------------
Guilford de Tamaulipas, S.A. de C.V.* 49,999 1
(Mexico)
---------------------------------------- -------------------------------------- --------------------------------------
Guilford de Altamira, S.A. de C.V.* 49,999 1
(Mexico)
---------------------------------------- -------------------------------------- --------------------------------------
Xxxxxxxx Xxxxx do Brazil Ltda. 990 uncertificated--this is a limited
liability company
(Brazil)
---------------------------------------- -------------------------------------- --------------------------------------
Industries Mexicanas xx Xxxxxxx, X.X. 5,000 2
de C.V.
Mexico
---------------------------------------- -------------------------------------- --------------------------------------
Industrias Globales de Mexico, S.A. de 49,999 1
C.V.
Mexico
---------------------------------------- -------------------------------------- --------------------------------------
----------
* The description of the Securities set forth on this exhibit for each of these
companies represents 100% of the issued and outstanding Securities of such
companies, however, only 65% of such Securities is pledged pursuant to this
Agreement.
88
---------------------------------------- -------------------------------------- --------------------------------------
Nustart, S.A. de C.V. 100 Series B-3 3
13,980 Series B-1 1
(Mexico) 100 Series B-3 2
13,980 Series B-2 9
200 Series B-2 8
---------------------------------------- -------------------------------------- --------------------------------------
89
SHARES OWNED BY GUILFORD AIRMONT, INC.
---------------------------------------- -------------------------------------- --------------------------------------
Xxxxxxxx Xxxxx do Brazil Ltda. 10 uncertificated--this is a limited
liability company
(Brazil)
---------------------------------------- -------------------------------------- --------------------------------------
Nustart, S.A. de C.V. 200 Series B-1 1
(Mexico)
---------------------------------------- -------------------------------------- --------------------------------------
SHARES OWNED BY MEXICAN INDUSTRIES OF NORTH CAROLINA, INC.
---------------------------------------- -------------------------------------- --------------------------------------
Industries Mexicanas xx Xxxxxxx, X.X. 45,000 1
de C.V.
Mexico
---------------------------------------- -------------------------------------- --------------------------------------
90
EXHIBIT B
---------
PLEDGORS
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Federal Identification number: 00-0000000
Guilford Airmont, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Mexican Industries of North Carolina, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
91
EXHIBIT N
---------
AMENDED AND RESTATED INTERCREDITOR AGREEMENT
AMENDED AND RESTATED INTERCREDITOR AGREEMENT, dated as of October 13,
2000, among Wachovia Bank, N.A., in its capacity as collateral agent hereunder
(the "COLLATERAL AGENT"), each of the holders of the Senior Notes specified on
the signature pages hereof (together with any of its affiliates, any Transferee,
successor or assign, subject to Section 22(e) hereof, the "SENIOR NOTE HOLDERS")
and each bank specified on the signature pages hereof (collectively, together
with any such bank's successors or assigns, subject to Section 22(e) hereof,
referred to as the "BANKS").
WHEREAS, Xxxxxxxx Xxxxx, Inc. (the "COMPANY") entered into Note
Purchase Agreements, each dated December 18, 1998, as each is expected to be
amended by amendments dated on or about November 6, 2000, with the Senior Note
Holders (as so amended and as any of them may hereafter be amended, modified,
supplemented, refinanced or replaced from time to time, the "NOTE PURCHASE
AGREEMENTS");
WHEREAS, pursuant to the Note Purchase Agreements, the Company is
obligated to the Senior Note Holders with respect to, without limitation, the
obligations, indebtedness and liabilities of the Company incurred or arising
from time to time under the Senior Notes (whether in respect of principal,
interest, Make-Whole Amount and Make-Whole Excess Amount, without regard to
whether such Make-Whole Amount and Make-Whole Excess Amount is currently due and
owing, or otherwise) and the obligations under the Note Purchase Agreements
(collectively the "SENIOR NOTE OBLIGATIONS");
WHEREAS, the Company, Wachovia Bank, N.A., as Administrative Agent (in
such capacity, and any successor in such capacity appointed pursuant to Section
7.10 of the Credit Agreement, the "BANK AGENT"), First Union National Bank, as
Syndication Agent, Bank One, NA, as Documentation Agent, and each of the Banks
have entered into a Credit Agreement dated as of May 26, 2000, which is expected
to be amended by a First Amendment to Credit Agreement to be dated on or about
November 6, 2000 (as so amended, and as it may be amended, modified,
supplemented, refinanced or replaced from time to time the "CREDIT AGREEMENT")";
WHEREAS, the Company is obligated to the Bank Agent and the Banks with
respect to, without limitation, all indebtedness, liabilities and obligations of
the Company to the Bank Agent and the Banks incurred or arising from time to
time under the Credit Agreement and each of the Loan Documents (collectively the
"BANK OBLIGATIONS);
WHEREAS, the Company and/or certain Subsidiaries owning the capital
stock of Direct Foreign Subsidiaries have entered into the Foreign Stock Pledge
Agreement (which has been amended and restated as of the date hereof) with
respect to the Foreign Pledged Stock to secure the Secured Obligations on a pro
rata basis;
92
WHEREAS, the Company and/or certain Subsidiaries owning Intercompany
Notes have pledged and will pledge such Intercompany Notes to the Collateral
Agent pursuant to the Security Agreement (which has been amended and restated as
of the date hereof) to secure the Secured Obligations on a pro rata basis.
WHEREAS, pursuant to the Security Documents, the Collateral Agent has a
security interest in, security title to and Lien upon the following other
property of the Company and the Guarantors, to secure the Secured Obligations on
a pro rata basis, including (i) the Domestic Pledged Stock and (if applicable,
the Receivables Subsidiary Pledged Stock, subject to the release provisions of
Section 9.19 of the Credit Agreement, but in such event including the
Receivables Subsidiary Pledged Stock, (ii) the Foreign Pledged Stock, (iii) the
personal property described in the Security Agreement, and (iv) all of the
Plants and Other Real Property described in each Mortgage (such property,
together with the Foreign Pledged Stock, and together with any guarantee and all
other real and personal property in or upon which the Company or other Person
grants from time to time to the Secured Parties or to any Secured Party a lien,
security interest or other encumbrance to secure the Secured Obligations, being
collectively referred to as the "COLLATERAL").
WHEREAS, the Senior Note Holders and the Banks (sometimes collectively
referred to herein, together with any Cash Management Service Provider, with
respect to Cash Management Services Obligations, and any Bank or Affiliate
thereof providing hedge arrangements giving rise to Hedge Obligations or Bank
Letter of Credit Obligations, as well as Wachovia Bank, N.A. with respect to the
A-Advanced Guaranty Obligations, as the "SECURED PARTIES", and individually
referred to as a "SECURED PARTY") and the Collateral Agent desire to set forth
certain additional provisions regarding the Secured Obligations;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition have
the meanings set forth in the Credit Agreement, unless otherwise expressly
indicated. In addition, the following terms have the following meanings.
"A-ADVANCED" means A-Advanced Mini Storage, LLC, a limited liability
company in which the Company owns 50% of the membership interests and two
individuals not otherwise affiliated with the Company each own the other 25%.
"A-ADVANCED GUARANTY" means the unconditional guaranty of payment
executed and delivered by the Company and the other members of A-Advanced in
favor of Wachovia Bank, N.A,, guaranteeing payment of the principal, interest,
fees, costs and other amounts arising in connection with to revolving and term
loan obligations of A-Advanced to Wachovia Bank, N.A. in the maximum principal
amount of $2,550,000 incurred to construct mini-xxxx houses on land owned by the
Company and leased to A-Advanced.
"A-ADVANCED GUARANTY OBLIGATIONS" means the obligations of the Company
to Wachovia Bank, N.A. under the A-Advanced Guaranty.
"ACTIONABLE DEFAULT" means both (a) an Event of Default shall have
occurred in respect of one or more of a Secured Party's Transaction Documents
and (b) all of the Secured Obligations of such Secured Party owing thereunder
shall have become due and payable.
93
"ACCOUNT MAINTENANCE CHARGES" means the normal and customary activity
fees and charges owed by the Company or any of the Guarantors in connection with
any account maintained by it with the Collateral Agent or any Secured Party
pertaining to the Collateral.
"ADDITIONAL LIEN" has the meaning set forth in Section 5 hereof.
"APPROVED DEPOSITORY" has the meaning set forth in the Security
Agreement.
"BANK" has the meaning set forth in the introductory paragraphs hereof.
"BANK AGENT" has the meaning set forth in the introductory paragraphs
hereof.
"BANK LETTER OF CREDIT OBLIGATIONS" means all reimbursement obligations
and all other obligations, including interest, fees, costs and indemnification
amounts, incurred or arising from any standby or trade letters of credit issued
by any Bank or Affiliate thereof for the account of the Company or any
Subsidiary.
"BANK NOTES" means, collectively, the Notes, as such term is defined in
the Credit Agreement.
"BANKRUPTCY PROCEEDING" means the voluntary or involuntary dissolution,
winding up, liquidation, arrangement, reorganization, adjustment, protection,
relief or composition of the Company or its debts, whether in any bankruptcy,
insolvency, arrangement, reorganization, receivership, relief or similar
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of the assets and liabilities of the Company or a Guarantor or
otherwise.
"BANKS" has the meaning set forth in the introductory paragraphs
hereof.
"BANK AGENT" has the meaning set forth in the introductory paragraphs
hereof.
"BANK GUARANTY" means the Guaranty, as defined in the Credit Agreement.
"BANK OBLIGATIONS" has the meaning set forth in the introductory
paragraphs hereof.
"BUSINESS DAY" means any day except a Saturday, Sunday or any other day
on which commercial banks in Georgia and New York are authorized by law to
close.
"CASH COLLECTIONS" has the meaning set forth in the Security Agreement.
"CASH DEPOSITS" has the meaning set forth in the Security Agreement.
"CASH MANAGEMENT AGREEMENTS" shall mean, individually and collectively,
as the context shall require any agreements between the Company, on the one
hand, and any Cash Management Service Provider, on the other hand, whether now
or hereafter in effect, pursuant to which such Cash Management Service Provider
provides Cash Management Services, and all amendments thereto, supplements
thereof, and replacements therefor.
"CASH MANAGEMENT SERVICES" shall mean cash management services for
operating, collection, payroll and trust accounts of the Company and/or its
Subsidiaries provided by any Cash Management Services Provider and/or its
Affiliates, including, without limitation, automatic clearing house services,
94
control disbursement services, electronic funds transfer services, information
reporting services, lockbox services, stop payment services, and wire transfer
services.
"CASH MANAGEMENT SERVICES OBLIGATIONS" shall mean any and all
obligations of the Company and/or any of its Subsidiaries to any Cash Management
Services Provider and/or any of its Affiliates under any of the Cash Management
Agreements or otherwise relating to any of the Cash Management Services,
including, without limitation, Account Maintenance Charges.
"CASH MANAGEMENT SERVICES PROVIDER" means any Bank or Affiliate thereof
which provides Cash Management Services to the Company and/or any of its
Affiliates under any of the Cash Management Agreements or otherwise relating to
any of the Cash Management Services, in its capacity as the provider of such
services.
"COLLATERAL" has the meaning set forth in the introductory paragraphs
hereof, but also includes any Additional Lien, as contemplated in Section 5
hereof.
"COLLATERAL AGENT" has the meaning set forth in the introductory
paragraphs hereof; provided, that if any successor is appointed as Collateral
Agent pursuant to Section 20 hereof, it shall mean such successor.
"COLLATERAL RESERVE ACCOUNT" has the meaning set forth in the Security
Agreement.
"COMPANY" has the meaning set forth in the introductory paragraphs
hereof.
"CREDIT AGREEMENT" has the meaning set forth in the introductory
paragraphs hereof.
"DEFAULT NOTICE" has the meaning set forth in Section 9(a) hereof.
"DISPUTED PAYMENT" shall have the meaning set forth in Section 4
hereof.
"ENFORCEMENT COSTS" means all reasonable out-of-pocket costs and
expenses incurred by the Collateral Agent or any Secured Party in connection
with the enforcement and collection of the Secured Obligations pursuant to the
Security Documents, including, without limitation, all reasonable attorneys fees
and disbursements actually incurred, and all other such costs and expenses
described in and incurred pursuant to any of the Security Documents, including,
without limitation, all "Enforcement Costs", as defined in the Security
Agreement, and similar costs incurred in enforcing any of the Mortgages or other
Security Documents, as well as any costs or other amounts indemnified by the
Company pursuant to Section 18 hereof.
"EVENT OF DEFAULT" means an Event of Default as such term is defined in
or pursuant to any of the Note Purchase Agreements or the Credit Agreement, as
the case may be.
"GUARANTOR" means any guarantor under the Bank Guaranty, the Senior
Note Guaranty or any Third Party Guarantee.
"HEDGE OBLIGATIONS" means all obligations of such Person with respect
to interest rate protection agreements, foreign currency exchange agreements or
other hedging arrangements (valued at the termination value thereof computed in
accordance with a method approved by the International Swap Dealers Association
95
and agreed to by such Person in the applicable hedging agreement, if any, and in
any case net of any benefits of such Person).
"MAJORITY SENIOR NOTE HOLDERS" means Senior Note Holders holding a
majority in the aggregate principal amount of the Senior Note Obligations.
"MAKE-WHOLE AMOUNt" means, for all purposes under this Agreement, the
"Make-Whole Amount", as defined in the Note Purchase Agreements; provided,
however, that any increase in the amount of the Make-Whole Amount as a result of
the Senior Note Pricing Increases shall be limited to $2,550,000.
"MAKE-WHOLE EXCESS AMOUNt" means, for all purposes under this
Agreement, the amount of any increase in the amount of the Make-Whole Amount as
a result of the Senior Note Pricing Increases in excess of $2,550,000.
"NON-AVAILABLE PROCEEDS" shall have the meaning set forth in Section 3
hereof.
"NOTE PURCHASE AGREEMENTS" has the meaning set forth in the
introductory paragraphs hereof.
"PERCENTAGE INTEREST" with respect to a Secured Party shall mean that
percentage which is the equivalent of a fraction, the numerator of which is the
then aggregate amount (including but not limited to principal, interest and
premium, if any) outstanding of the Secured Obligations (other than any
Make-Whole Excess Amount) owing to such Secured Party, and the denominator of
which is the total of the amounts described in the numerator for all Secured
Parties.
"PERSON" means and includes an individual, a partnership, a joint
venture, a corporation, a limited liability corporation or partnership, a trust,
limited liability company, an unincorporated organization and a government or
any department or agency thereof.
"RECORDING EXPENSES" has the meaning set forth in Section 5.25 of the
Credit Agreement.
"REMEDIES DEMAND" has the meaning set forth in Section 11 hereof.
"REQUIRED SECURED PARTIES" means the Required Banks and the Majority
Senior Note Holders.
"RETURNING SECURED PARTY" shall have the meaning set forth in Section 4
hereof.
"SECURED OBLIGATIONS" means (i) the aggregate principal amount
outstanding from time under the Senior Notes, up to a maximum amount of
$145,000,000, and the other Senior Note Obligations, as the amount of such
Secured Obligations may be increased or decreased as a result of the making or
receiving by such Secured Party of any Sharing Payment or True Up Payment,
including the amount of any True Up Reimbursement Obligation; (ii) the aggregate
principal amount outstanding from time to time under the Bank Notes, up to a
maximum amount of $150,000,000, and the other Bank Obligations, as the amount of
such Secured Obligations may be increased or decreased as a result of the making
or receiving by such Secured Party of any Sharing Payment or True Up Payment,
(iii) all costs and expenses incurred by the Bank Agent pursuant to the Credit
Agreement; (iv) all Recording Expenses incurred by the Collateral Agent pursuant
96
to Section 5.25 of the Credit Agreement; (v) all Cash Management Services
Obligations, limited, however, as to this clause (v) to a maximum aggregate
amount of $3,000,000 as to all Cash Management Services Providers (prorated
among them, if there are more than one at the time of determination), and
excluding from this clause (v) any amounts arising from any failure of any Cash
Management Services Provider and/or any of its Affiliates to comply in any
material respect with the Guide to the Federal Reserve's Payments System Risk
Policy as in effect from time to time; (vi) all Hedge Obligations with any Bank
or Affiliate thereof, limited, however, as to this clause (vi) to a maximum
aggregate amount of $5,000,000; (vii) all Bank Letter of Credit Obligations with
any Bank or Affiliate thereof, limited, however, as to this clause (vii) to a
maximum aggregate amount of $5,000,000, (viii) all Enforcement Costs, (ix)
without duplication, all indemnification amounts under this Agreement, and all
fees and expenses of the Collateral Agent hereunder and (x) all A-Advanced
Guaranty Obligations.
"SECURED PARTIES" has the meaning set forth in the introductory
paragraphs hereof.
"SECURITY AGREEMENT" means the Security Agreement described in the
Credit Agreement.
"SENIOR NOTE GUARANTY" means the Guaranty, as defined in the Note
Purchase Agreements.
"SENIOR NOTE OBLIGATIONS" has the meaning set forth in the introductory
paragraphs hereof.
"SENIOR NOTE PRICING INCREASES" means the amount by which the
applicable contract interest rate on the Senior Notes and fees payable under the
Note Purchase Agreements are increased after October 12, 2000.
"SENIOR NOTES" means, collectively, any Note issued under any of the
Note Purchase Agreements and each promissory note delivered in substitution or
exchange for any such Note.
"SHARING PAYMENT" shall mean any and all amounts received by any
Secured Party (i) as a result of any exercise of any right of set off or
banker's lien (whether by law, contract or otherwise), including, without
limitation, as a result of any Secured Party's claim being deemed a secured
claim under Section 506 of Title 11 of the United States Code, or other security
interest arising from, or in lieu of, such secured claim, (ii) otherwise from or
in respect of a Third Party Guarantee, the Bank Guaranty or the Senior Note
Guaranty or any proceeds thereof or (iii) any payment received from the Company
under any Transaction Document after an Actionable Default, other than payments
which have given rise to a True Up Payment pursuant to Section 24; provided,
however, that (a) no payment or receipt of Account Maintenance Charges, Cash
Management Services Obligations, Hedge Obligations, Bank Letter of Credit
Obligations, A-Advanced Guaranty Obligations or pursuant to a Receivables
Securitization Program, in each of the foregoing cases that is made or received
when no Actionable Default has occurred and is continuing shall constitute a
"SHARING PAYMENt" hereunder, and (b) so long as no Actionable Default has
occurred or is continuing, but subject to Section 8 hereof, no repayment,
scheduled or unscheduled, nor prepayment, in whole or in part, by the Company
under the Note Purchase Agreements or the Credit Agreement, as the case may be,
from funds received other than pursuant to clauses (i) or (ii) above, shall
constitute a "SHARING PAYMENT" hereunder.
"THIRD PARTY GUARANTEE" shall have the meaning set forth in Section 5
hereof.
97
"TRANSACTION DOCUMENTS" means (i) as to the Senior Note Holders, the
Note Purchase Agreements, the Senior Notes, the Senior Note Guaranty and any
Third Party Guarantee, and (ii) as to the Banks, the Credit Agreement, the Bank
Notes, the Bank Guaranty and any Third Party Guarantee.
"TRUE UP OBLIGEE" shall have the meaning set forth in Section 24
hereof.
"TRUE UP OBLIGOR" shall have the meaning set forth in Section 24
hereof.
"TRUE UP PAYMENT" shall have the meaning set forth in Section 24
hereof.
"TRUE UP RATABLE SHARE" shall have the meaning set forth in Section 24
hereof.
"TRUE UP REIMBURSEMENT OBLIGATION" shall have the meaning set forth in
Section 24 hereof.
"TRUE UP SETTLEMENT STATEMENT" shall have the meaning set forth in
Section 24 hereof.
2. SHARING PAYMENTS. If a Secured Party obtains a Sharing Payment, such
Secured Party shall promptly purchase from each other Secured Party
participations in (or, if and to the extent specified by such other Secured
Parties, direct interests in) the Secured Obligations (other than any Make-Whole
Excess Amount) owing to each such other Secured Party, and shall make such other
adjustments from time to time as shall be equitable, to the end that all Secured
Parties shall share the benefit of such Sharing Payment as set forth in Section
3 hereof.
3. APPLICATION OF SHARING PAYMENTS. Any Sharing Payment shall be
applied and distributed as follows:
First, to the payment of any unpaid Account Maintenance Charges, and
all reasonable out-of-pocket costs and expenses (including reasonable attorneys
fees and disbursements actually incurred) incurred by any Secured Party in
collecting such Sharing Payment, of which Secured Party shall have notified,
with reasonable specificity, the other Secured Parties;
Second, to the Secured Parties pro rata in proportion to each Secured
Party's Percentage Interest then in effect in the Secured Obligations (excluding
any Make-Whole Excess Amount) owing to the Secured Parties (regardless of
whether or not the maturity of any such Secured Party's Secured Obligations
shall have been accelerated) until all amounts owing in respect of the Senior
Note Obligations and the Bank Obligations are paid in full;
Third, the balance, if any, to the Senior Note Holders, until any
Make-Whole Excess Amount is paid in full; and
Fourth, the balance, if any, to any such Person as shall be entitled
thereto.
Non-cash Sharing Payments and Sharing Payments which, due to a
restraining order or otherwise, are not permitted to be applied to the Secured
Obligations, or because the receiving Secured Party determined it to be
impracticable to divide and apply such amounts to the payment of any of the
Secured Obligations owed to the Secured Parties (herein referred to as
"NON-AVAILABLE PROCEEDS") shall be held by the Secured Party so receiving such
Non-available Proceeds as agent for the Secured Parties. At such time as such
Non-available Proceeds are later converted to cash or such Non-available
98
Proceeds are later permitted to be applied, or later become practical to divide
and may otherwise be applied, against any of the Secured Obligations, such
Non-available Proceeds shall promptly be divided and paid at such time in
accordance herewith.
Each Secured Party shall distribute all Sharing Payments, other than
Non-available Proceeds, to the other Secured Parties pursuant to clause Second
above. Prior to making such distribution, such Secured Party may apply such
Sharing Payments pursuant to clause First above, with respect to any reasonable
out-of-pocket costs and expenses of such Secured Party for amounts then known,
and may retain as a reserve such portion of such Sharing Payments as it may
reasonably determine to be sufficient to cover such costs and expenses that have
not yet been determined. As soon as it determines that any portion of such
Sharing Payments are no longer required to be held in such reserve, such Secured
Party shall distribute the same to the other Secured Parties.
Each Secured Party agrees that any sums and amounts received by such
Secured Party pursuant to this Section shall be applied to the payment of the
Secured Obligations held by such Secured Party as such Secured Party shall
determine in its sole discretion.
4. PAYMENT INVALIDATED. If, during the course of, or pursuant to, any
Bankruptcy Proceeding, a Secured Party (the "RETURNING SECURED PARTY") is
required by a court or other tribunal of competent jurisdiction to disgorge,
refund, rebate or otherwise return any distribution of any Sharing Payments
received by such Secured Party pursuant to Section 2 hereof (such Returning
Secured Party's portion of such payment or distribution referred to herein as a
"DISPUTED PAYMENT") received by such Returning Secured Party to any trustee
presiding over such Bankruptcy Proceeding or to any other Person (whether by
reason of the fact that such Disputed Payment constituted or was alleged to
constitute a preference, a fraudulent conveyance or for such other reason as
such court or tribunal shall specify), each other Secured Party shall
immediately pay to the Returning Secured Party its pro rata share of such
Disputed Payment from amounts actually received by such other Secured Party. For
purposes of this Section 4, such pro rata share shall be calculated as of the
date the Returning Secured Party is required to make such payment to any such
trustee or other Person.
5. ADDITIONAL COLLATERAL. Each of the Secured Parties hereby covenants
and agrees that (i) such Secured Party will not accept from any Person on behalf
of the Company or any Subsidiary any guarantee (a "THIRD-PARTY GUARANTEE") of
any of the Secured Obligations or any other obligations owing to such Secured
Party under any of the Transaction Documents unless such Guarantor also
guarantees substantially contemporaneously, by the same or separate instrument,
the payment of all of the Secured Obligations owing to all Secured Parties (or,
if such Third-Party Guarantee guarantees only a portion thereof owing to such
Secured Party, such Secured Party will not accept such Third-Party Guarantee
unless such Guarantor simultaneously guarantees the same proportion of Secured
Obligations owing to the other Secured Parties) and (ii) such Secured Party will
not take, accept or obtain any security interest in, or lien or encumbrance upon
(an "ADDITIONAL LIEN"), any assets of any of the Company or any Subsidiary or
any other Person (other than assets which, if obtained by the Secured Party,
would constitute a Sharing Payment) to secure the payment and performance of the
Secured Obligations or any other obligations owed to such Secured Party under
any of the Transaction Documents except by virtue of the Collateral Agent's
being granted a security interest in, or lien upon, such assets, in either case,
99
pursuant to documents in form and substance satisfactory to all of the Secured
Parties, to secure the Secured Obligations pro rata.
6. TURNOVER OF SHARING PAYMENTS. If a Secured Party acquires custody,
control or possession of any Sharing Payments other than pursuant to the terms
of this Agreement, such Secured Party shall hold such Sharing Payments in trust
for the parties entitled thereto until such time as such Secured Party shall
have complied with the provisions of Section 2 hereof
7. APPOINTMENT OF COLLATERAL AGENT.
Each Secured Party designates and appoints Wachovia Bank, N.A. to serve
as the Collateral Agent under this Agreement and under the Security Documents.
Each Secured Party authorizes the Collateral Agent to act as agent for the
Secured Parties for the purposes of executing and delivering on behalf of the
Secured Parties the Security Documents and, subject to the provisions of this
Agreement, enforcing the Secured Parties' rights, powers and remedies in respect
of the Collateral and the Secured Obligations under the Security Documents,
together with such other powers as are reasonably incidental thereto.
8. RIGHTS OF SECURED PARTIES UNDER TRANSACTION DOCUMENTS.
Each of the Secured Parties may exercise its rights, remedies and
powers under those Transaction Documents to which it is a party, including,
without limitation, declare a default and accelerate such Secured Party's
Secured Obligations and pursue any of the following remedies against the
Company: (i) a judgment; (ii) binding mediation; or (iii) binding arbitration;
provided, however, notwithstanding anything contained in this Section 8 to the
contrary, except as expressly provided in this Agreement, none of the Secured
Parties may take any action against the Collateral, including, without
limitation, bidding at foreclosure sales, UCC sales or other similar sales,
except after obtaining the prior written consent of the Required Secured
Parties. The Collateral Agent and each of the Secured Parties agree that the
liens and security interests granted to the Collateral Agent under the Security
Documents shall at all times be shared by the Secured Parties as expressly
provided herein.
Notwithstanding anything to the contrary contained in any Transaction
Document or in any other document pertaining to the subject matters of this
Agreement and notwithstanding any priority in time of creation, recordation,
attachment or perfection of any lien or security interest in favor of any
Secured Party, each Secured Party agrees that, at all times, whether before,
after or during the pendency of any Bankruptcy Proceeding, each Secured Party
shall be pari passu with each other Secured Party with respect to the priority
of liens on and security interests in the Collateral and with respect to the
proceeds of the Collateral, as provided in Section 12 and the order of
application of moneys contained therein.
9. NOTIFICATION OF EVENT OF DEFAULT.
(a) Each Secured Party shall deliver to the Collateral Agent,
to each other Secured Party (or, as to the Banks, to the Bank Agent, which will
then distribute it to the Banks), and to the Company, a notice in writing of any
Event of Default and the nature thereof promptly (and in any event within 3
Business Days) after it learns of the occurrence thereof (any such notice being
a "DEFAULT NOTICE").
100
(b) Any Secured Party which has given a Default Notice shall
also give prompt (in any event within 3 Business Days) notice to the Collateral
Agent, to each other Secured Party (or, as to the Banks, to the Bank Agent,
which will then distribute it to the Banks) and to the Company, upon learning of
any cure of any such Event of Default or upon any waiver thereof.
(c) No Secured Party shall be held liable for any good faith
failure to provide copies of any notice sent to the Collateral Agent to all
other Secured Parties (or, as to the Banks, to the Bank Agent) or to the Company
as provided in Section 9(a) or 9(b).
10. ACTIONABLE DEFAULT. Each Secured Party shall deliver to the
Collateral Agent, the Company and each other Secured Party (or, as to the Banks,
to the Bank Agent, which will then distribute it to the Banks) a notice in
writing of any Actionable Default and the nature thereof promptly (and in any
event within 1 Business Day) after the occurrence of an Actionable Default. Such
notice of Actionable Default may be included in a Default Notice given pursuant
to Section 9(a) hereof. Any Secured Party which has given a notice of an
Actionable Default shall be entitled to withdraw it in accordance with the terms
of the applicable Transaction Documents if the Actionable Default no longer
exists by delivering a written notice of withdrawal to the Collateral Agent,
with copies sent simultaneously to the other Secured Parties (or, as to the
Banks, to the Bank Agent, which will then distribute it to the Banks); provided,
that no such withdrawal may be made after the delivery of a Remedies Demand by
the Required Secured Parties. Any notice of the occurrence or withdrawal of an
Actionable Default given by any Secured Party or the Collateral Agent pursuant
hereto may be included in a Default Notice or notice of a withdrawal of an Event
of Default given pursuant to Section 9(b). No Secured Party shall be held liable
for any good faith failure to provide copies of any notice sent to the
Collateral Agent to all other Secured Parties (or, as to the Banks, to the Bank
Agent) or to the Company as provided in this Section 10.
11. REMEDIES UPON ACTIONABLE DEFAULT. If and only if the Collateral
Agent shall have received a notice of an Actionable Default, and during such
time as such notice of an Actionable Default shall not have been withdrawn in
accordance with the provisions of Section 10, the Required Secured Parties may
send to the Collateral Agent in writing, with copies sent simultaneously to each
of the other Secured Parties (or, as to the Banks, to the Bank Agent, which will
then distribute it to the Banks) and the Company, a demand for the exercise by
the Collateral Agent, subject to the provisions of this Section 11, of rights,
powers and remedies hereunder and under the Security Documents (a "REMEDIES
DEMAND"). A Remedies Demand may be included in a notice of Actionable Default or
Notice of Default which also is a notice of Actionable Default. Upon the
issuance of a Remedies Demand, all of the Secured Obligations shall become due
and payable. After receipt of a Remedies Demand, the Collateral Agent shall
exercise such of the rights, powers and remedies available to it hereunder and
in the Security Documents as it is instructed to exercise by the Required
Secured Parties in writing directed to the Collateral Agent, with copies to the
other Secured Parties (which instructions may be included in the Remedies
Demand) and the Company. The date the Collateral Agent is so directed to
exercise any remedies pursuant to this Section 11 is the "Remedies Date";
provided, however, that with respect to any rights, powers and remedies
pertaining to the Cash Collections, the Cash Deposits, and/or notification to
Account Debtors pursuant to 9-502(1) of the applicable Uniform Commercial Code,
the Collateral Agent may (i) prohibit the withdrawal by the Company of any
Collateral maintained with any Secured Party or of any Cash Deposits, and (ii)
101
require the Company to deposit all Cash Collections either with the Collateral
Agent or an Approved Depository, and/or direct all Approved Depositories to
remit Cash Deposits to the Collateral Agent, pursuant to Section 3.1.11(b) of
the Security Agreement, if it determines in good faith that such prohibition
and/or requirement will promote and protect the interests of the Secured Parties
and maximize both the value of such Collateral and the present value of the
ratable recovery by each of the Secured Parties on the Secured Obligations;
provided, further, that (1) the Secured Parties agree that none of them may
instruct the Collateral Agent to refrain from exercising any rights, powers or
remedies expressly authorized by the Required Secured Parties pursuant to this
Section, and any instruction in violation of this provision shall be of no force
or effect and shall be disregarded by the Collateral Agent, (2) if and to the
extent that the instructions of the Secured Parties are in conflict, then the
Collateral Agent shall exercise the rights, powers and remedies required by the
instructions which it determines, in good faith, will promote and protect the
interests of the Secured Parties and maximize both the value of the Collateral
and the present value of the recovery by each of the Secured Parties on the
Secured Obligations, and (3) once instructions have been received from the
Required Secured Parties, as required by and in accordance with this Section 11,
the actions of the Collateral Agent shall be governed thereby and the Collateral
Agent shall not take any further action which would be contrary thereto, except
as provided in subclause (2) above.
12. APPLICATION.
(a) The Collateral Agent, for the benefit of the Secured
Parties, shall establish the Collateral Reserve Account under the circumstance
provided in Section 3.1.11(b) of the Security Agreement, and thereafter maintain
the Collateral Reserve Account in accordance with the Security Agreement, which
shall bear a designation clearly indicating that funds deposited therein are
held for the benefit of the Secured Parties.
(b) Following a Remedies Demand, all monies held by the
Collateral Agent, constituting proceeds of Collateral shall, upon receipt by the
Collateral Agent be distributed by the Collateral Agent on a weekly basis on a
Business Day fixed by the Collateral Agent for the distribution of said monies,
commencing on the earlier of (i) 10 Business Days after the receipt of a notice
of Actionable Default pursuant to Section 10, or (ii) the date the aggregate
balance in the Collateral Reserve Accounts exceeds $250,000, and the balance of
which monies held from time to time by the Collateral Agent shall so long as any
amounts in excess of $250,000 remain in the Collateral Reserve Account, be
distributed on the corresponding date (or, if such corresponding date is not a
Business Day, the next succeeding Business Day) in each calendar week
thereafter, as follows:
FIRST: To the payment of all Account Maintenance
Charges, Enforcement Costs and other costs, expenses, liabilities and advances
made or incurred by the Collateral Agent or the Secured Parties, or any of them,
in connection with the administration, collection and enforcement of the Secured
Obligations and the sale or other realization upon the Collateral, including
reasonable attorneys' fees and expenses actually incurred of the Collateral
Agent and the customary fees of the Collateral Agent, which fees, costs,
expenses, liabilities and advances are unpaid as of such date of distribution;
SECOND: To each of the Secured Parties to the extent
of its Secured Obligations (other than any Make-Whole Excess Amount), calculated
on the date of distribution (as if all Secured Obligations had been accelerated,
regardless of whether such Secured Obligations have matured, by acceleration or
102
otherwise), for application to their respective Secured Obligations(other than
any Make-Whole Excess Amount), in an amount equal to its Percentage Interest in
the funds available for distribution as of the date of receipt of a Remedies
Demand, without priority of any one over any other, until the Secured
Obligations have been paid in full;
THIRD, the balance, if any, to the Senior Note
Holders, until any Make-Whole Excess Amount is paid in full; and
FOURTH: Any surplus then remaining shall be paid to
the Company or a Guarantor, as applicable, as its interests may appear, or as a
court of competent jurisdiction may direct.
(c) All monies received and held by the Collateral Agent in
the Collateral Reserve Account at any time shall be held by the Collateral Agent
in the Collateral Reserve Account for distribution to the Secured Parties
pursuant to this Section 12.
(d) In determining the amount of the Secured Obligations of
any Secured Party, the Collateral Agent shall be entitled to rely on a written
statement from each Secured Party sent to the Collateral Agent, with a copy sent
simultaneously to each of the Secured Parties and the Company, stating the
amounts which said Secured Party in good faith reasonably believes to be its
Secured Obligations (which statement shall be calculated as if all Secured
Obligations had been accelerated and shall itemize the various components
thereof, such as interest, principal, fees, etc., including, without limitation,
an itemization of the various components included in the calculation of any
Make-Whole Amount included in its Secured Obligations). Such statements shall be
conclusive or binding on any Secured Party which has failed to object to the
statement within 5 Business Days of receipt of a copy of said statement. Each
Secured Party agrees to give such a statement as to the amount of its Secured
Obligations: (i) as of the date of a Remedies Demand (which statement (x) from
or on behalf of the Secured Parties sending a notice of Actionable Default shall
accompany or be included in such notice, and (y) from or on behalf of the other
Secured Parties shall be given within 5 Business Days after receipt of a copy of
such notice); and (ii) as of the date of receipt of any written request of the
Collateral Agent, within 5 Business Days of receipt of such request. Prior to
making any distribution hereunder, the Collateral Agent shall make a request to
each Secured Party for a statement of Secured Obligations in accordance with
Clause (ii) of the immediately preceding sentence if the most recent statements
of Secured Obligations then in the possession of the Collateral Agent are more
than 30 days old. In addition to the foregoing, each Secured Party agrees that
it will from time to time provide such information that is available to it to
the Collateral Agent as may be necessary to enable the Collateral Agent to make
any calculation hereunder or otherwise required for any purpose hereof.
13. INSURANCE PROCEEDS; OTHER AMOUNTS.
(a) Following the occurrence of an Actionable Default, all
insurance proceeds (net of costs incurred in obtaining payment of such proceeds)
received, directly or indirectly, by the Collateral Agent pursuant to the
Security Documents, and all other amounts received by the Collateral Agent
constituting proceeds of Collateral, shall be deposited in the Collateral
Reserve Account and shall be held by the Collateral Agent as additional security
103
for the Secured Obligations and be deposited in the Collateral Reserve Account
and shall be held as cash collateral and not transmitted to the Company, except
as permitted by Section 3.1.11(b) of the Security Agreement.
(b) After a Remedies Demand, subject to the provisions of
Section 6, all amounts held in the Collateral Reserve Account shall be applied
as set forth in Section 12.
14. RELEASE OF COLLATERAL. The Collateral Agent will not release
Collateral from the Liens created by the Security Documents except that the
Collateral Agent shall (i) release Collateral disposed of pursuant to and in
accordance with Section 3.1.10 of the Security Agreement, (ii) release amounts
from the Collateral Reserve Account expressly authorized by Section 3.1.11 of
the Security Agreement, (iii) release Collateral as expressly authorized by
Sections 5.05, 5.21(b), 5.22(b), 5.23 and 9.19 of the Credit Agreement or any of
provision of any of the Security Documents, (iv) release of all of the
Collateral upon termination of this Agreement pursuant to Section 22(i), in each
case set forth in clauses (i) through (iv), without any further consent of any
Secured Party, and (v) release any Collateral with the consent, or upon the
direction, of all of the Secured Parties. Upon any release of Collateral
pursuant to this Agreement or any Loan Document, the Collateral Agent will
deliver appropriate UCC-3's or other appropriate documents to the Company
confirming the release of such Collateral.
15. INVESTMENT OF FUNDS HELD BY COLLATERAL AGENT. The Collateral Agent
shall invest and reinvest monies held by it constituting proceeds of Collateral
from time to time in repurchase agreements with any major national brokerage
firm or bank (which may include the commercial banking department of the
Collateral Agent or any bank or trust company under common control with the
Collateral Agent) fully secured by obligations issued or guaranteed by the
United States, and subject at all times to the liens and security interests
granted by the Security Documents. All such investments and the interest and
income received thereon and therefrom and the net proceeds realized upon the
sale thereof shall be held by the Collateral Agent in the Collateral Reserve
Account, to be held and remitted pursuant to Section 3.1.11(b) of the Security
Agreement or distributed pursuant to Section 12, as applicable.
16. COVENANTS OF THE SECURED PARTIES. Each of the Secured Parties
hereby covenants and agrees that:
(a) It will give notice immediately to the Collateral Agent
and each other Secured Party(or, as to the Banks, to the Bank Agent, which will
then distribute it to the Banks) of its receipt of any Sharing Payment or a
Third-Party Guarantee or its desire for an Additional Lien.
(b) It will cooperate with the Collateral Agent in the
enforcement of the Security Agreement and otherwise in order to accomplish the
purposes of this Agreement.
17. ACTION ON INSTRUCTIONS OF SECURED PARTIES.
(a) Except as otherwise provided in this Agreement, and in
accordance with the provisions of Section 11, the Collateral Agent agrees to
make only such demands and give only such notices under the Security Documents
as it is instructed in writing to give, and to take only such action to enforce
the Security Documents and to only collect and/or dispose of the Collateral or
any portion thereof as it is instructed in writing to take, collect or dispose
of any of the Collateral pursuant to the applicable Uniform Commercial Code, by
the requisite Secured Parties. The Collateral Agent agrees not to release the
104
Collateral or any portion thereof except in accordance with Section 14. The
Collateral Agent shall not grant any consent or waiver in connection with,
execute any amendment to or modification of, or exercise any discretion granted
to it under any of the Security Documents, except in accordance with Section 11.
Notwithstanding anything herein to the contrary, the Collateral Agent shall not
be required to take any action that is in its opinion contrary to law or to the
terms of this Agreement or any of the Security Documents or would in its
reasonable opinion subject it or any of its agents, officers, employees or
directors to personal liability.
(b) The Collateral Agent may at any time request directions
from the Secured Parties as to any course of action or other matter relating
hereto. The Collateral Agent shall be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by (1)
as to any matters expressly provided for by this Agreement, the requisite
Secured Parties expressly provided in the relevant provisions hereof (including,
without limitation, Section 11, subject to the provisions of the second proviso
contained in Section 11 hereof, and paragraph (a) of this Section 17) and (2) as
to any matters not expressly provided for by this Agreement, in accordance with
instructions signed by the Required Secured Parties, and in all such cases, any
action taken or failure to act pursuant thereto shall be binding on all of the
Secured Parties.
18. RIGHTS, DUTIES AND RESPONSIBILITIES OF THE COLLATERAL AGENT.
(a) Prior to the receipt of a Notice of Default, the
Collateral Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement.
(b) In the absence of the Collateral Agent's bad faith, the
Collateral Agent may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Collateral Agent conforming to the requirements of this
Agreement.
(c) After receipt of a Notice of Default and during the
continuance of an Event of Default, the Collateral Agent shall use the same
degree of care and skill in its exercise as a prudent Person would exercise or
use under the circumstances when acting on behalf of another Person in the
conduct of such other Person's affairs.
(d) No provision of this Agreement shall be construed to
relieve the Collateral Agent from liability for its own gross negligence or its
own willful misconduct, except that:
(i) this subsection shall not be construed to limit
the effect of paragraph (c) of this Section 18;
(ii) the Collateral Agent shall not be liable for any
error of judgment made in good faith by an officer of the Collateral Agent
unless the Collateral Agent was grossly negligent in ascertaining the pertinent
facts; and
(iii) the Collateral Agent shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the requisite Secured Parties, if and as
expressly required by and provided in this Agreement, unless (a) such omission
to act has been directed by the requisite Secured Parties in violation of the
105
second proviso contained in Section 6, in which case such direction shall be
disregarded by the Collateral Agent, as provided in such proviso, and in such
event the Collateral Agent shall not be liable for disregarding such direction,
or (b) such action or omission to act is expressly required by this Agreement to
be taken only in accordance with the direction of the Required Secured Parties
or all of the Secured Parties, and in either such event, the Collateral Agent
shall not be liable with respect to any action taken or omitted to be taken by
it in good faith in accordance with the direction of the Required Secured
Parties or all of the Secured Parties, as applicable.
(e) No provision of this Agreement shall require the
Collateral Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(f) (i) The Company shall indemnify the Collateral Agent, the
Secured Parties and their respective directors, officers, employees and agents
from, and hold each of them harmless against, any and all losses, liabilities,
claims or damages to which any of them may become subject, or which the
Collateral Agent may reasonably incur as a result of the execution, delivery or
performance under the Security Documents, or as a result of the Collateral
Agent's serving as such thereunder (including, without limitation, the fees and
expenses set forth in Section 12, reasonable counsel fees and disbursements and
environmental liabilities arising from or related to any of the properties
described in the Security Documents), (ii) each Secured Party severally agrees
to indemnify the Collateral Agent, to the extent the Collateral Agent shall not
have been reimbursed by the Company, ratably in accordance with its Percentage
Interest, for any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses which the Collateral Agent may incur
as a result of the execution, delivery or performance under the Security
Documents or as a result of the Collateral Agent's serving as such thereunder
(including, without limitation, reasonable counsel fees and disbursements and
environmental liabilities arising from or related to any of the properties
described in the Security Documents and any actions taken by the Collateral
Agent, at the direction of the requisite Secured Parties, in each case if and as
expressly required and provided by this Agreement, to enforce any of the
Security Documents), and any disregard by the Collateral Agent of any directions
given to it in violation of the provisions of the second proviso contained in
Section 11, but in all such cases excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence, willful
misconduct or bad faith of the Collateral Agent and excluding the normal
administrative costs and expenses incident to the performance of its agency
duties hereunder.
(g) The Collateral Agent shall not be responsible for any
recitals, statements, representations or warranties herein or in any of the
Security Documents or for insuring or inspecting the Collateral or for paying or
discharging any tax, assessment, governmental charge or lien affecting the
Collateral, nor shall the Collateral Agent be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions or agreements of
the Company contained herein or in any of the Security Documents, including but
not limited to agreements by the Company to maintain insurance and pay taxes;
provided, however, that nothing in this subsection (g) shall relieve the
Collateral Agent of the performance of any of its duties specifically set forth
in this Agreement.
106
(h) The Collateral Agent makes no representation or warranty
as to the validity, sufficiency or enforceability of this Agreement or any of
the Security Documents or Transaction Documents against any other Person, as to
the value, title, condition, fitness for use of, or otherwise with respect to
the Collateral or as to the perfection or priority of the liens or security
interests created thereby.
(i) The Collateral Agent may rely upon and shall be protected
in acting or refraining from acting upon and, absent a request by the Required
Secured Parties, shall not be bound to investigate the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, note or other paper or document
reasonably believed by it to be genuine and to have been signed or presented by
the proper party or parties.
(j) The Collateral Agent may consult with counsel, appraisers,
engineers, accountants and other skilled persons to be selected by the
Collateral Agent and which are reasonably acceptable to the Required Secured
Parties and the written advice of any thereof shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reasonable reliance thereon.
19. COMPENSATION OF THE COLLATERAL AGENT.
Wachovia shall be entitled to compensation as Collateral Agent as
provided in a separate letter agreement with the Company. Any Collateral Agent
other than Wachovia which may hereafter be appointed (an "OTHER COLLATERAL
AGENT") shall be entitled to reasonable compensation for all services rendered
hereunder, as set forth below, and Wachovia and any Other Collateral Agent shall
also be entitled to reimbursement for all reasonable expenses, disbursements and
advances incurred or made by it, in and about the administration of the matters
herein provided for and in and about the foreclosure, enforcement or other
protection of this Agreement, the Collateral or the liens and security interests
provided in the Security Documents. The compensation of any Other Collateral
Agent shall be in accordance with a fee schedule to be agreed to from time to
time by the Company and the Other Collateral Agent, plus expenses and
disbursements. Any Other Collateral Agent shall provide a copy of any such
schedule to the Secured Parties and, upon any modification of the fee schedule,
the Collateral Agent shall give prompt written notice thereof to the Company and
to each Secured Party. Compensation and reimbursement of the Collateral Agent
pursuant to this Section 19 shall be paid by the Company upon demand.
20. RESIGNATION; REMOVAL; APPOINTMENT OF SUCCESSOR COLLATERAL AGENT.
The Collateral Agent may resign at any time by giving at least 30 days'
prior notice thereof to the Secured Parties (such resignation to take effect
upon the acceptance of a successor collateral agent as hereinafter provided).
The Collateral Agent may be removed as Collateral Agent hereunder for or without
cause, at any time by the Required Secured Parties. In the event of any such
resignation or removal of the Collateral Agent, the Required Secured Parties
shall thereupon have the right to appoint a successor Collateral Agent. If no
acceptable successor Collateral Agent shall have been so appointed by the
Required Secured Parties and shall have accepted such appointment within 30 days
after the retiring Collateral Agent's giving of notice of resignation or its
removal, the retiring Collateral Agent shall, on behalf of the Secured Parties,
appoint a successor collateral agent. Any successor collateral agent appointed
by the Collateral Agent pursuant to this Section 20 shall be a commercial bank
107
organized under the laws of the United States of America or any state thereof
and having a combined capital and surplus of at least $200,000,000. Upon the
acceptance of any appointment as collateral agent hereunder by a successor
collateral agent, such successor collateral agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
or removed Collateral Agent, and the retiring or removed Collateral Agent shall
thereupon be discharged from its duties and obligations hereunder. After any
retiring or removed Collateral Agent's resignation or removal hereunder as
collateral agent, the provisions of this Agreement shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the collateral agent.
21. CO-AGENTS.
The Collateral Agent, with the consent of the Required Secured Parties,
shall have power to appoint one or more persons to act as co-agent or co-agents,
jointly with the Collateral Agent, or separate agent or separate agents, of all
or any part of the Collateral, and to vest in such person or persons, in such
capacity, such title to the Collateral or any part thereof, and such rights,
powers, duties, trusts or obligations as the Collateral Agent, with the consent
of the Required Secured Parties, may consider necessary or desirable in any case
only for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Collateral may at the time be located. Absent any specific
agreement to the contrary, any co-agent or co-agents appointed hereunder shall,
to the extent applicable, have the rights, obligations and duties of the
Collateral Agent hereunder.
22. MISCELLANEOUS.
(a) Each of the Secured Parties is hereby authorized to demand
specific performance of this Agreement at any time when any party shall have
failed to comply with any of the provisions of this Agreement applicable to it.
Each of the Secured Parties hereby irrevocably waives any defense based on the
adequacy of a remedy at law, which might be asserted as a bar to such remedy of
specific performance.
(b) All notices, requests, consents and other communications
made pursuant to the provisions hereof shall be in writing and shall be
delivered personally or mailed by first class registered or certified mail,
postage prepaid or by Federal Express or by telex or telecopier or by telephone
(if confirmed in writing as aforesaid) at the address specified on the signature
pages or such other address as may be furnished in writing by the Collateral
Agent or a Secured Party to the Collateral Agent and each other Secured Party
(or, as to the Banks, to the Bank Agent, which will then distribute it to the
Banks).
(c) This Agreement may be modified or waived only by an
instrument or instruments in writing signed by each of the Required Secured
Parties; provided, that, without the consent of the Company, no modification
shall (i) increase any of the obligations of the Company hereunder or (ii)
change the provisions of Sections 14 or 22(i) hereof.
(d) This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement and any of the parties hereto may execute this Agreement by signing
any such counterpart.
108
(e) All of the terms of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective parties hereto
and their respective successors and assigns, and shall be binding upon and inure
to the benefit of and be enforceable by any holder or holders at any time of the
Obligations owed to a Secured Party, or any part thereof. No Secured Party may
assign or otherwise transfer any of its rights with respect to this Agreement or
any of the Secured Obligations, nor may any Bank assign or transfer or have
assumed any of its Commitments under the Loan Agreement, unless prior thereto
the assignee, transferee or assuming party executes such documents as the
Required Secured Parties may require in order that the assignee, transferee or
assuming party shall become a party to this Agreement as a Secured Party (but
the execution of an Assignment and Acceptance in the form attached to the Credit
Agreement shall satisfy the foregoing requirement as to any new Bank). Each
Senior Note Holder and the Bank Agent (as to the Banks) shall notify the
Collateral Agent of any such assignment and of the identity and notice address
of each transferee. Any Secured Party may obtain the current names and notice
addresses of the Secured Parties from the Collateral Agent upon request.
(f) The provisions of this Agreement are not intended, nor
shall they be construed to confer upon, or give the Company or any Guarantor or
any Person other than the Secured Parties and their respective successors and
assigns, any rights, remedies or claims hereunder or by reason hereof, and
except that the Company shall have the benefit of the provisions of Sections 14,
22(c) and 22(i) hereof.
(g) To the extent that there is a conflict or inconsistency
with terms of this Agreement and an agreement between any Secured Party and the
Company, or any amendment or modification of any such agreement, this Agreement
shall control as between the parties hereto.
(h) Each Secured Party shall execute and deliver such other
documents and instruments, in form and substance reasonably satisfactory to the
Required Secured Parties, and shall take such other action as the Required
Secured Parties may reasonably request, to effectuate and carry out the
provisions of this Agreement.
(i) This Agreement shall terminate with respect to the Senior
Note Holders automatically upon the indefeasible payment in full of all of the
Secured Obligations owed to them and, with respect to all Secured Parties, upon
the indefeasible payment in full of all of the Secured Obligations plus the
termination of all Commitments to lend under the Credit Agreement, and in the
latter event, the Collateral Agent shall release the Collateral pursuant to
Section 14. The Senior Note Holders hereby agree that in the event the
Collateral Agent resigns pursuant to Section 20 hereof following any payment in
full of all of the Bank Obligations and the termination of all Commitments to
lend under the Credit Agreement at a time when Senior Note Obligations remain
outstanding, the Senior Note Holders shall promptly (having due regard for the
need for a reasonable transition period for accomplishing the replacement)
appoint a successor Collateral Agent pursuant to Section 20 hereof.
(j) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remainder of such provision or the remaining provisions hereof or affecting
the validity or enforceability of such provision in any other jurisdiction and
the parties hereto shall use their best efforts to replace such provision.
109
(k) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(l) All personal pronouns used in this Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural, and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement.
(m) THE PARTIES HERETO ACKNOWLEDGE THAT ANY DISPUTE ARISING
OUT OF THIS AGREEMENT WILL BE BASED ON DIFFICULT AND COMPLEX FACTS. ACCORDINGLY,
EACH OF THE PARTIES HERETO HEREBY, TO THE FULLEST EXTENT PERMITTED BY LAW,
WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY DISPUTE, CONTROVERSY, SUIT, HEARING OR
OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE OBLIGATIONS, DUTIES AND
RIGHTS OF THE SECURED PARTIES AS SET FORTH HEREIN.
23. MANDATORY PREPAYMENTS.
Pursuant to amendments to the Transaction Documents on the First
Amendment Effective Date, but subject to the exercise by any Senior Note Holder
of its contractual right to decline any mandatory prepayments, certain mandatory
prepayments are required to be made ratably (based on the aggregate outstanding
principal amount under the Bank Notes and under the Senior Notes) to (x) the
Bank Agent, for the ratable benefit of the Banks and (y) ratably to the Senior
Note Holders, and such amendments to the Credit Agreement also provide that the
"Commitments" under the Credit Agreement shall be ratably reduced by the amount
of all such prepayments received by the Bank Agent pursuant to such provisions.
Capitalized terms which are used below without definition have the meanings set
forth in the Credit Agreement. Such provisions for mandatory prepayments to be
made ratably on the Bank Notes and Senior Notes are as follows:
(a) Within 30 days of the end of each Fiscal Quarter in which
the Company or any Domestic Subsidiary receives Net Proceeds of Asset
Dispositions from any Receivables Securitization Program, the Company shall
certify to the Bank Agent the amount of Net Proceeds of Asset Dispositions so
received and the current amount of Maximum Available Proceeds under such
Receivables Securitization Program and prepay the outstanding Bank Notes and
Senior Notes in an aggregate principal amount equal to 85% of such Net Proceeds
of Asset Dispositions, but including such Net Proceeds of Asset Dispositions
only to the extent they are derived from sales of Receivables in an aggregate
amount in excess of the highest level of aggregate sales of Receivables for
which Net Proceeds of Asset Dispositions have previously been paid pursuant to
this paragraph (a).
(b) After the First Amendment Effective Date, as to all Asset
Dispositions (other than in connection with a Receivables Securitization Program
or Permitted Factoring Arrangement) with respect to which the Net Proceeds of
Asset Disposition are equal to or greater than $100,000 (each a "Material Asset
Disposition"), within 3 Domestic Business Days after the Company or any Domestic
Subsidiary receives Net Proceeds of Asset Dispositions therefrom, the Company
shall certify to the Bank Agent the amount of Net Proceeds of Asset Dispositions
so received from such Material Asset Disposition, and prepay the outstanding
Bank Notes and Senior Notes by an aggregate principal amount equal to 100% of
110
such Net Proceeds of Asset Dispositions in excess of $1,000,000 received from
Material Asset Dispositions after the First Amendment Effective Date.
(c) After the First Amendment Effective Date, within 5
Domestic Business Days after any Foreign Subsidiary receives Net Proceeds of
Asset Dispositions from any Foreign Sale-Leaseback Transaction, the Company
shall certify to the Bank Agent the amount of Net Proceeds of Asset Dispositions
so received and prepay the outstanding Bank Notes and Senior Notes in an
aggregate principal amount equal to 65% of the amount of such Net Proceeds of
Asset Dispositions.
(d) After the First Amendment Effective Date, within 3
Domestic Business Days after the Company or any Domestic Subsidiary receives Net
Proceeds of Debt in excess of $250,000, the Company shall certify to the Bank
Agent the amount of Net Proceeds of Debt so received and prepay the outstanding
Bank Notes and Senior Notes in an aggregate principal amount equal to 100% of
the amount by which such Net Proceeds of Debt exceeds an aggregate amount of Net
Proceeds of Debt so received since the First Amendment Effective Date of
$250,000.
(e) After the First Amendment Effective Date, within 5
Domestic Business Days after any Foreign Subsidiary receives Net Proceeds of
Debt or incurs any obligations under a Foreign Capital Lease, the Company shall
certify to the Bank Agent the amount of Net Proceeds of Debt pertaining thereto
and prepay the outstanding Bank Notes and Senior Notes in an aggregate principal
amount equal to 65% of the amount of such Net Proceeds of Debt, or, in the case
of a Foreign Capital Lease, the present value (using a discount rate equal to
the implicit interest rate of such Foreign Capital Lease) of the aggregate
amount of basic rent (excluding taxes, insurance and similar other charges)
required to be paid during the term of such Foreign Capital Lease (excluding any
renewal term, but including any payment required to be made at the end of the
term as a result of failure to renew or purchase the property).
(f) After the First Amendment Effective Date, within 3
Domestic Business Days after the Company or any Consolidated Subsidiary receives
any Net Proceeds of Capital Stock (excluding Net Proceeds of Capital Stock
issued in connection with the exercise of any management or employee stock
option, so long as the Company or such Consolidated Subsidiary does not incur
any net cash cost in connection with the exercise of such option), the Company
shall certify to the Bank Agent the amount of Net Proceeds of Capital Stock
pertaining thereto and prepay the outstanding Bank Notes and Senior Notes in an
aggregate principal amount equal to 100% of the amount of such Net Proceeds of
Capital Stock.
Each Secured Party hereby agrees that any payment received by it
pursuant to this Section 23 shall, for all purposes under this Agreement,
including, without limitation, the calculation of distributions of additional
mandatory prepayments under this Section 23, be deemed to have been applied
solely to the outstanding principal balance under its Bank Note or Senior Note,
as the case may be (but each Secured Party reserves the right to actually apply
such payment to other components of its Secured Obligations).
24. TRUE UP AGREEMENT.
111
(a) For purposes of this Section 24 and determining the amount
of True Up Payments and True Up Ratable Shares only, the aggregate outstanding
principal amount owed to the Secured Parties and the percentage which each
Secured Party's outstanding principal amount bears to the aggregate outstanding
principal amount of all Secured Parties (its "True Up Ratable Share") as of
October 13, 2000 (the "First Measuring Date") is set forth in the table below:
------------------------------------------------------------ ------------------------------- ----------------------
SECURED PARTY OUTSTANDING PRINCIPAL TRUE UP RATABLE SHARE
------------------------------------------------------------ ------------------------------- ----------------------
The Prudential Insurance Company of America $100,000,000 40.144520%
------------------------------------------------------------ ------------------------------- ----------------------
The Variable Annuity Life Insurance Company of America $10,000,000 4.014452%
------------------------------------------------------------ ------------------------------- ----------------------
American General Annuity Insurance Company $15,000,000 6.021678%
------------------------------------------------------------ ------------------------------- ----------------------
Massachusetts Mutual Life Insurance Company $19,000,000 7.627459%
------------------------------------------------------------ ------------------------------- ----------------------
C.M. Life Insurance Company $1,000,000 0.4014452%
------------------------------------------------------------ ------------------------------- ----------------------
Banks (aggregate) $104,100,000 41.790446%
------------------------------------------------------------ ------------------------------- ----------------------
TOTALS $249,100,000 100%
------------------------------------------------------------ ------------------------------- ----------------------
Each Secured Party agrees that if, on the date the Collateral Agent
receives a notice of Actionable Default pursuant to Section 10 hereof (the
"Second Measuring Date") the principal amount of its Secured Obligations under
its Senior Note or Bank Note, as the case may be, is less than its True Up
Ratable Share of the aggregate outstanding principal amount owed to all of the
Secured Parties under the Senior Notes and the Bank Notes on the Second
Measuring Date, without giving effect to any Sharing Payments or mandatory
prepayments made pursuant to Sections 2 and 23 hereof (the "Aggregate Ending
Principal Amount"), such Secured Party (each a "True Up Obligor") will make a
payment (a "True Up Payment") to each Secured Party the principal amount of
whose Secured Obligations under its Senior Note or Bank Note, as the case may
be, on the Second Measuring Date is greater than its True Up Ratable Share of
the Aggregate Ending Principal Amount (each a "True Up Obligee") in such amount
as is necessary so that, after each True Up Obligor has paid its True Up Payment
to each True Up Obligee, the principal amount of the Secured Obligations under
the Senior Note or Bank Note, as the case may be, of each Secured Party
constitutes its True Up Ratable Share of the Aggregate Ending Principal Amount.
(b) Promptly after the Second Measuring Date occurs, the
Collateral Agent shall notify each of the Secured Parties thereof, and within 5
Business Days after receipt of such notice, each Secured Party shall send to the
Collateral Agent a written statement of the amount of its Secured Obligations
under its Senior Note or Bank Note, as the case may be, as of the Second
Measuring Date. The Collateral Agent shall, based on the foregoing statements,
calculate the amount of the True Up Payments owed by each True Up Obligor to
each True Up Obligee pursuant to Section 24 hereof and send to each Secured
Party, with a copy to the Company, a written statement of all such amounts (a
"True Up Settlement Statement") (which True Up Settlement Statement shall be
conclusive and binding on the Company and each Secured Party unless the Company
or such Secured Party, as the case may be, has objected to it within 5 Business
Days of receipt thereof). Each True Up Obligor shall make each True Up Payment
for which it is obligated, as set forth in the True Up Settlement Statement sent
112
by the Collateral Agent pursuant to hereto, within 5 Business Days of receipt of
such True Up Settlement Statement. Each True Up Obligee shall, within 5 Business
Days of receipt of all such True Up Payments to which it is entitled as set
forth in the True Up Settlement Statement, confirm such fact in writing to the
Collateral Agent.
(c) The Company agrees that, immediately upon the making of
any True Up Payment by each True Up Obligor, it will reimburse to such True Up
Obligor the amount thereof (each such reimbursement obligation being a "True Up
Reimbursement Obligation"), and until repaid, the amount of such True Up
Reimbursement Obligation shall bear interest at the rate provided for the
Secured Obligations held by such True Up Obligor and/or the applicable
Transaction Documents, and such amount and interest thereon at such rate shall
constitute part of the claim of each True Up Obligor against the Company and
shall constitute Secured Obligations for all purposes under each of the
documents granting a lien on, security interest in or security title to the
Collateral, and each of the Guarantors agrees that all such True Up
Reimbursement Obligations of the Company, together with interest thereon at such
rate, shall constitute part of the "Guaranteed Obligations" under the Guaranty,
payment of which is guaranteed thereunder. Each Secured Party agrees that its
claim against the Company, and its Secured Indebtedness, as well as its claim
for "Guaranteed Obligations" against the Guarantors under the Guaranty, shall be
reduced by the amount of any True Up Payment which it receives. If the Company
or any Guarantor becomes a debtor in any case under 11 U.S.C. xx.xx. 101 et
seq., as amended from time to time (a "Bankruptcy Case"), and any plan confirmed
by the bankruptcy court, or any distribution to creditors, in the Bankruptcy
Case fails to give effect to the foregoing true up provisions, by calculation of
the relevant claim in the Bankruptcy Case (the "Bankruptcy Claim") to exclude
the amount of any True Up Payment from the Bankruptcy Claim of the True Up
Obligor which made such payment, and such Plan or distribution includes the
amount of such True Up Payment in the Bankruptcy Claim of the such True Up
Obligee, then such True Up Obligee shall assign to such True Up Obligor a
portion its Bankruptcy Claim in an amount equal to such True Up Payment.
25. CONDITIONS PRECEDENT. This Agreement shall be effective upon (i)
execution and delivery of a counterpart hereof by each party hereto and of the
Acknowledgment and Agreement at the end hereof by the parties thereto and (ii)
execution of the First Amendment to Credit Agreement and the amendments to the
Note Purchase Agreements contemplated in the recitals hereto, in each case
satisfactory to all Secured Parties, which is anticipated to occur on or about
November 6, 2000.
113
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
COLLATERAL AGENT:
WACHOVIA BANK, N.A.
By: __________________________________________
Name:
Title:
Information for Notices:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
BANKS:
WACHOVIA BANK, N.A.
By: __________________________________________
Name:
Title:
Information for Notices:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Syndications Group
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
114
FIRST UNION NATIONAL BANK
By: ______________________________________________
Name:
Title:
Information for Notices:
First Union National Bank
One First Union Center
000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx Xxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
115
BANK ONE, NA
(MAIN OFFICE CHICAGO)
By: _____________________________________________
Name:
Title:
Information for Notices:
Bank One, NA
0 Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
116
BRANCH BANKING AND TRUST COMPANY
By: ______________________________________________
Name:
Title:
Information for Notices:
Branch Banking and Trust Company
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
117
NOTEHOLDERS:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By: ______________________________________________
Name:
Title:
Information for Notices:
c/o Prudential Capital Group
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Managing Director
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
with a copy to:
c/o Prudential Capital Group
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Law Department
Telecopier: (000) 000-0000
118
THE VARIABLE ANNUITY LIFE
INSURANCE COMPANY
By: ______________________________________________
Name:
Title:
Information for Notices:
The Variable Annuity Life Insurance Company
x/x Xxxxx Xxxxxx Xxxx and Trust Company
Insurance Services WES2S
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier number: 000-000-0000
Confirmation number: 781-___-____
and
The Variable Annuity Life Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Overnight Mail: 0000 Xxxxx Xxxxxxx, X0000
Xxxxxxx, Xxxxx 0000-0000
Telecopier number: 000-000-0000
Tax I.D. Number 00-0000000
119
AMERICAN GENERAL ANNUITY
INSURANCE COMPANY
By: ______________________________________________
Name:
Title:
Information for Notices:
American General Annuity Insurance Company
and WEIB
c/o State Street Bank and Trust Company
Insurance Services WES2S
000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Telecopier number: 000-000-0000
Confirmation number: 781-___-____
and
American General Annuity Insurance Company
c/o American General Corporation
Attn: Investment Xxxxxxxx Xxxxxxxxxx, X00-00
X.X. Xxx 0000
Overnight Mail: 0000 Xxxxx Xxxxxxx, X0000
Xxxxxxx, Xxxxx 0000-0000
Telecopier number: 000-000-0000
Tax I.D. Number 00-0000000
120
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Adviser
By: ______________________________________________
Name:
Title:
Information for Notices:
Massachusetts Mutual Life Insurance Company
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
121
C. M. LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as
Investment Sub-Adviser
By: ______________________________________________
Name:
Title:
Information for Notices:
C.M. Life Insurance Company
c/o Xxxxx X. Xxxxxx & Company Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx Xx
Telecopier number: 000-000-0000
Confirmation number: 000-000-0000
122
ACKNOWLEDGMENT AND AGREEMENT
The undersigned, although not a party hereto, acknowledges and, to the
extent required, consents to the terms and conditions of the Amended and
Restated Intercreditor Agreement to which this Acknowledgment and Agreement is
attached (the "Intercreditor Agreement"). As contemplated in Section 22(c) of
the Intercreditor Agreement, without the consent of the Company, no modification
to the Intercreditor Agreement shall (i) increase any of the obligations of the
Company thereunder or (ii) change the provisions of Sections 14 or 22(i)
thereof. Further, the undersigned agrees to (i) indemnify the Collateral Agent
in accordance with Section 18(f)(i) thereof, (ii) reimburse to the Collateral
Agent all Enforcement Costs and all Recording Expenses", and (iii) to pay to the
Collateral Agent the compensation provided in Section 19 thereof.
The undersigned shall execute and deliver such other documents and
instruments, in form and substance reasonably satisfactory to the Required
Secured Parties, and shall take such other action as the Required Secured
Parties may reasonably request, to effectuate and carry out the provisions of
the foregoing Intercreditor Agreement.
IN WITNESS WHEREOF, the party below has caused this Acknowledgment and
Agreement 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:
123
RASCHEL FASHION INTERKNITTING, LTD.
By: ________________________________
Name:
Title:
GUILFORD INTERNATIONAL, INC.,
a U.S. Virgin Islands corporation
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
124
By: Advisory Services, Inc.
a General Partner
By: __________________________
Title: _____________________
125
EXHIBIT O
---------
AMENDED AND RESTATED SECURITY AGREEMENT
---------------------------------------
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement") is made
as of November 6, 2000, by and among XXXXXXXX XXXXX, INC., a Delaware
corporation (the "Company"), each of the undersigned corporations respectively
organized under the laws of the states set forth on the signature pages below
their names (collectively, the "Debtor Subsidiaries", which term shall refer to
any Domestic Subsidiary of the Company which becomes a Debtor pursuant to
Section 5.12 hereof and Section 5.21 of the Credit Agreement; the Company and
the Debtor Subsidiaries being collectively referred to as the "Debtors") and
WACHOVIA BANK, N.A., a national banking association (in its individual capacity,
"Wachovia") organized under the laws of the United States of America, as
collateral agent (in such capacity, together with its successors and assigns,
"Collateral Agent") for itself, and for (i) The Prudential Insurance Company of
America, The Variable Annuity Life Insurance Company, American General Annuity
Insurance Company, Massachusetts Mutual Life Insurance Company and C.M. Life
Insurance Company (collectively, together with any other holders of Senior
Notes, as defined below, from time to time pursuant to the Note Purchase
Agreements, as defined below, the "Senior Note Holders") and (ii) Wachovia,
First Union National Bank, Bank One, NA and Branch Banking and Trust Company
(collectively, together with any other Banks party from time to time to the
Credit Agreement defined below, the "Banks"; the Senior Note Holders and the
Banks being collectively referred to, together with any Cash Management Services
Provider, with respect to Cash Management Services Obligations, as defined in
the Intercreditor Agreement described below, and any Bank providing hedge
arrangements giving rise to Hedge Obligations or Bank Letter of Credit
Obligations (as those terms are defined in the Intercreditor Agreement), and
Wachovia Bank, N.A., with respect to the A-Advanced Guaranty Obligations (as
defined in the Intercreditor Agreement) as "Secured Parties"), in connection
with that certain Amended and Restated Intercreditor Agreement by and among the
Debtors, the Collateral Agent and the Secured Parties dated as of October 13,
2000, which is amends and restated an Intercreditor Agreement dated as of May
26, 2000 (as amended or otherwise modified from time to time, the "Intercreditor
Agreement").
RECITALS:
---------
A. In order to secure the Secured Obligations, but subject to the
provisions of Section 5.25 of the Credit Agreement, the Debtors have executed
this Agreement, which grants to the Collateral Agent a perfected and first
priority security interest in the Collateral owned by them, subject to the terms
of this Agreement and of the Intercreditor Agreement;
B. certain of the undersigned Debtors executed a Security Agreement
dated as of May 26, 2000 (the "Original Agreement"), and this Amended and
Restated Security Agreement is an amendment and restatement of and supersedes
such Original Agreement, and the parties hereto intend that the security
interests and liens granted pursuant to the Original Agreement by the Debtors
parties thereto shall continue uninterrupted and without break in perfection
from the date of the Original Agreement and perfection thereunder; and
126
C. Pursuant to the Intercreditor Agreement, the Secured Parties have
agreed that the Secured Obligations shall be equally and ratably secured
pursuant to this Agreement and any other Security Documents; the Secured Parties
have appointed Wachovia as the Collateral Agent to act on behalf of all Secured
Parties regarding the Collateral, all as more fully provided in the
Intercreditor Agreement; and the Secured Parties have entered into the
Intercreditor Agreement to, among other things, further define the rights,
duties, authority and responsibilities of the Collateral Agent and the
relationship between the Parties regarding their interests in the Collateral.
AGREEMENTS:
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which the parties
hereto hereby acknowledge, the parties hereto agree as follows:
DEFINITIONS
In addition to the definitional provisions contained in Section 5.10
hereof, as used in this Agreement, the terms defined in the Preamble and
Recitals hereto shall have the respective meanings specified therein, and the
following terms shall have the following meanings:
"A-Advanced" means A-Advanced Mini Storage, LLC, a limited
liability company in which the Company owns 50% of the membership interests and
two individuals not otherwise affiliated with the Company each own the other
25%.
"A-Advanced GuarantY" means the unconditional guaranty of
payment executed and delivered by the Company and the other members of
A-Advanced in favor of Wachovia, guaranteeing payment of the principal,
interest, fees, costs and other amounts arising in connection with to revolving
and term loan obligations of A-Advanced to Wachovia in the maximum principal
amount of $2,550,000 incurred to construct mini-xxxx houses on land owned by the
Company and leased to A-Advanced.
"A-Advanced Guaranty Obligations" means the obligations of the
Company to Wachovia under the A-Advanced Guaranty.
"Account Debtor" means the Person who is obligated with
respect to payment on any of the Collateral.
"Actionable Default" has the meaning set forth in the
Intercreditor Agreement.
"Approved Depositary" means either (a) the Collateral Agent or
(b) another depositary bank which is acceptable to the Collateral Agent, with
whom the Collateral Agent has entered into an agreement satisfactory to it and
pursuant to which, among other things, the Approved Depositary: (i) agrees to
waive any right of setoff with respect to the Collateral, the Cash Collections
and the Cash Deposits; (ii) acknowledges and agrees that the Collateral Agent
has a security interest in the Collateral, and that it is the bailee of the
Collateral Agent with respect thereto; and (iii) agrees that, upon notice from
the Collateral Agent of an Actionable Default, it will act strictly in
accordance with the instructions of the Collateral Agent with respect to deposit
balances of the Debtors held by it, including, without limitation, any
instructions of the Collateral Agent to remit such balances to it, and not in
accordance with any instructions of any of the Debtors, or any other Person.
127
"Bank Agent" has the meaning set forth in the Intercreditor
Agreement.
"Bank Letter of Credit Obligations" means all reimbursement
obligations and all other obligations, including interest, fees, costs and
indemnification amounts, incurred or arising from any standby or trade letters
of credit issued by any Bank or Affiliate thereof for the account of the
Borrower or any Subsidiary.
"Bank Obligations" means all indebtedness, liabilities and
obligations of the Company to the Administrative Agent (as defined in the Credit
Agreement) and the Banks incurred or arising from time to time under the Credit
Agreement and each of the Loan Documents (as defined in the Credit Agreement),
including principal, interest, fees, costs and indemnification amounts, and any
extensions or renewals thereof in whole or in part.
"Cash Collections" means all cash, checks, drafts, items and
other instruments for the payment of money received by the Debtors from proceeds
of Collateral.
"Cash Deposits" means all deposits of Cash Collections with
depository banks, including with the Approved Depositaries.
"Cash Management Services Obligations" has the meaning set
forth in the Intercreditor Agreement.
"Cash Management Services Provider" has the meaning set forth
in the Intercreditor Agreement.
"Closing Date" means May 26, 2000.
"Collateral" means and includes, with respect to the Debtors,
all of their presently existing or hereafter acquired or created accounts,
accounts receivable, contract rights, notes, Intercompany Notes, letters of
credit, drafts, instruments, acceptances, chattel paper, general intangibles,
investment property, leases, writings evidencing a monetary obligation or a
security interest in or a lease of goods, equipment, inventory and all other
goods and personal property of all items and types; all rights to receive the
payment of money or other consideration under present or future contracts
(including, without limitation, all rights to receive payments under presently
existing or hereafter acquired or created letters of credit), or by virtue of
merchandise sold, leased, licensed, assigned or otherwise disposed of, services
rendered or to be rendered, loans and advances made or other considerations
given, by or set forth in or arising out of any present or future chattel paper,
note, draft, lease, acceptance, writing, bond, insurance policy, instrument,
document or general intangible, and all extensions and renewals of any thereof;
all rights under or arising out of present or future contracts, agreements or
general interests in merchandise which gave rise to any or all of the foregoing,
including all goods; all claims (including commercial tort claims) or causes of
action now existing or hereafter arising in connection with or under any
agreement or document or by operation of law or otherwise; all collateral
security of any kind (including real property) given by any person with respect
to any of the foregoing; all returned, rejected or repossessed goods, the sale
or lease of which shall have given or shall give rise to any of the foregoing
and together with all returned or repossessed goods and all books, records,
computer tapes, computer programs, computer hardware, and ledger books arising
therefrom or relating thereto, all whether now owned or hereafter acquired or
arising; and all cash and non-cash proceeds and products of the foregoing;
provided, however, that "Collateral" shall not include rolling stock, vehicles,
128
trailers or any assets which are subject to a Lien which is permitted under
Section 5.16 of the Credit Agreement, if the agreement creating or relating to
such Lien prohibits junior Liens.
"Collateral Agent" has the meaning set forth in the Recitals.
"Collateral Reserve Account" means any non-interest bearing,
demand deposit account which the Debtors may be required to open and maintain
with the Collateral Agent pursuant to the requirements of Section 3.1.11.
"Credit Agreement" means that that certain Credit Agreement by
and among the Company, the Banks, Wachovia, as Administrative Agent, First Union
National Bank, as Syndication Agent, and Bank One, NA, as Documentation Agent,
dated May 26, 2000, as amended by First Amendment to Credit Agreement dated as
of November 6, 2000, and as it may thereafter be amended or supplemented from
time to time.
"Debtor" has the meaning set forth in the Recitals.
"Default Rate" means the highest rate of interest charged
under the Credit Agreement after the occurrence of a "default" or "event of
default" thereunder.
"Domestic Business Day" has the meaning set forth in the
Credit Agreement.
"Enforcement Costs" means all reasonable expenses, charges,
costs and fees whatsoever (including, without limitation, reasonable attorneys'
fees and expenses) of any nature whatsoever paid or incurred by or on behalf of
the Collateral Agent in connection with (a) the collection or enforcement of any
or all of the Secured Obligations or this Agreement (including, without
limitation, reasonable attorneys fees incurred prior to the institution of any
suit or other proceeding), (b) the creation, perfection, collection,
maintenance, preservation, defense, protection, realization upon, disposition,
sale or enforcement of all or any part of the Collateral, (c) the preparation of
this Agreement, the Security Documents, and the preparation and review of lien
and record searches, reports, certificates, and/or other documents or
information relating from time to time to the taking, perfection, inspection,
preservation, protection and/or release of a Lien on the Collateral, the value
of the Collateral, or otherwise relating to the Collateral Agent's or any
Secured Party's rights, powers and remedies under this Agreement or with respect
to the Collateral, and (d) all filing and/or recording taxes or fees and all
stamp and other similar taxes and fees payable or determined to be payable in
connection with the execution and delivery of this Agreement and any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes or fees, the Debtors hereby agreeing to indemnify and save the
Collateral Agent and the Secured Parties harmless from and against such
liabilities.
"Event of Default" has the meaning set forth in the
Intercreditor Agreement.
"Governmental Authority" means any nation or government, any
state or other political subdivision or agency thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Hedge Obligations" means all obligations of such Person with
respect to interest rate protection agreements, foreign currency exchange
agreements or other hedging arrangements (valued at the termination value
129
thereof computed in accordance with a method approved by the International Swap
Dealers Association and agreed to by such Person in the applicable hedging
agreement, if any, and in any case net of any benefits of such Person).
"Identified Accounts" has the meaning set forth in the Credit
Agreement.
"Intercompany Note" means any intercompany note which is
executed by the Borrower or any Subsidiary in favor of any Debtor.
"Intercreditor Agreement" has the meaning set forth in the
Recitals.
"Laws" means all ordinances, statutes, rules, regulations,
orders, injunctions, writs, or decrees of any Governmental Authority.
"Lien" means, with respect to any asset, any mortgage, deed to
secure debt, deed of trust, lien, pledge, charge, security interest, security
title, preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of any indebtedness or any
guarantee, whether by consensual agreement or by operation of statute or other
law, or by any agreement, contingent or otherwise, to provide any of the
foregoing. For the purposes of this Agreement, each Debtor shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Material Adverse Effect" means, with respect to any event,
act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singly or in conjunction with any other event or events,
act or acts, condition or conditions, occurrence or occurrences, whether or not
related, a material adverse change in, or a material adverse effect upon, any of
(a) the financial condition, operations, business or properties of the Company
and its Subsidiaries, taken as a whole, (b) the rights and remedies of the
Secured Parties or the Collateral Agent under any of the Transaction Documents
or Security Documents or the ability of any Debtor to perform its respective
obligations under any of the Transaction Documents or Security Documents, or (c)
the legality, validity or enforceability of any of the Transaction Documents or
Security Documents.
"Non-Factored Accounts" has the meaning set forth in the
Credit Agreement.
"Note Purchase Agreements" means, individually and
collectively, as the context shall require, the Note Purchase Agreements, each
dated as of December 18, 1998 and amended as of the date hereof, executed by the
Borrower with (i) The Prudential Insurance Company of America, (ii) The Variable
Annuity Life Insurance Company and American General Annuity Insurance Company,
(iii) Massachusetts Mutual Life Insurance Company, and (iv) C.M. Life Insurance
Company, as so amended and as any of them may hereafter be amended or
supplemented from time to time.
"Person" means and includes an individual, a corporation, a
limited liability company, a partnership, an unincorporated association, a trust
or any other entity or organization, including, but not limited to, a
Governmental Authority.
130
"Recording Expenses" has the meaning set forth in the Credit
Agreement.
"Secured ObligationS" means (i) the aggregate principal amount
outstanding from time under the Senior Notes, up to a maximum amount of
$145,000,000, and the other Senior Note Obligations, (ii) the aggregate
principal amount outstanding from time to time under the Bank Notes, up to a
maximum amount of $150,000,000, and the other Bank Obligations, (iii) all costs
and expenses incurred by the Bank Agent pursuant to the Credit Agreement; (iv)
all Recording Expenses incurred by the Collateral Agent pursuant to Section 5.25
of the Credit Agreement; (v) all Cash Management Services Obligations, limited,
however, as to this clause (v) to a maximum aggregate amount of $3,000,000 as to
all Cash Management Services Providers (prorated among them, if there are more
than one at the time of determination), and excluding from this clause (v) any
amounts arising from any failure of any Cash Management Services Provider and/or
any of its Affiliates to comply in any material respect with the Guide to the
Federal Reserve's Payments System Risk Policy as in effect from time to time;
(vi) all Hedge Obligations with any Bank or Affiliate thereof, limited, however,
as to this clause (vi) to a maximum aggregate amount of $5,000,000; (vii) all
Bank Letter of Credit Obligations with any Bank or Affiliate thereof, limited,
however, as to this clause (vii) to a maximum aggregate amount of $5,000,000,
(viii) all Enforcement Costs, , (ix) without duplication, all indemnification
amounts under the Intercreditor Agreement, and all fees and expenses of the
Collateral Agent hereunder and (x) all A-Advanced Guaranty Obligations.
"Secured Parties" has the meaning set forth in the Recitals.
"Security Documents" has the meaning set forth in the Credit
Agreement.
"Senior Note Holders" has the meaning set forth in the
Recitals.
"Senior Note Obligations" means all obligations, indebtedness
and liabilities of the Company to the Senior Note Holders with respect to,
without limitation, all of the obligations, indebtedness and liabilities of the
Company incurred or arising from time to time under the Senior Notes (whether in
respect of principal, interest, Yield Maintenance Amounts, as defined in the
Note Purchase Agreements, without regard to whether such Yield Maintenance
Amount is currently due and owing, or otherwise) and the obligations under the
Note Purchase Agreements
"Senior Notes" means, collectively, Senior Notes issued
pursuant to the Note Purchase Agreements to the Senior Note Holders, in the
following original amounts: (i) the $3,000,000 7.06% Senior Note and $97,000,000
7.06% Senior Note executed by the Borrower in favor of The Prudential Insurance
Company of America; (ii) the $10,000,000 7.06% Senior Note executed by the
Borrower in favor of The Variable Annuity Life Insurance Company; (iii) the
$15,000,000 7.06% Senior Note executed by the Borrower in favor of American
General Annuity Insurance Company; (iv) the $8,500,000 7.06% Senior Note, the
$5,600,000 7.06% Senior Note and the $4,900,000 7.06% Senior Note executed by
the Borrower in favor of Massachusetts Mutual Life Insurance Company; and (v)
the $1,000,000 7.06% Senior Note executed by the Company in favor of C. M. Life
Insurance Company, all such Senior Notes being dated as of December 18, 1998,
together with any amendments, supplements, renewals, replacements or
substitutions of any of such Senior Notes.
"Subsidiary" has the meaning set forth in the Credit
Agreement.
131
"Transaction Documents" has the meaning set forth in the
Intercreditor Agreement.
"UCC" means the New York Uniform Commercial Code.
ARTICLE 1
SECTION 1.1 Grant of Security Interest. As security for the Secured
Obligations, each of the Debtors hereby assigns, pledges and grants to the
Collateral Agent, for the ratable benefit of the Secured Parties, and agrees
that the Collateral Agent shall have a first priority (except as expressly
provided herein or under the Transaction Documents or other Security Documents)
perfected and continuing security interest in, all of the Collateral.
SECTION 1.2 Delivery of Letters of Credit. Contemporaneously with the
execution and delivery of this Agreement, each Debtor which is a beneficiary of
a letter of credit shall deliver such letter of credit to the Collateral Agent
in pledge hereunder.
SECTION 1.3 Pledge of Intercompany Notes. (a) As further security for
the Secured Obligations, each of the Debtors which owns Intercompany Notes
hereby assigns and pledges to and with the Collateral Agent, for the ratable
benefit of the Secured Parties, and grants to the Collateral Agent, for the
ratable benefit of the Secured Parties, a security interest in the Intercompany
Notes owned by it, and all of such Debtor's respective rights and privileges
with respect to the Intercompany Notes, and all income and profits thereon, and
all interests, dividends and other payments and distributions with respect
thereto, and all proceeds of the foregoing.
(b) Contemporaneously with the execution and delivery of each
Intercompany Note to a Debtor subsequent to the date hereof, such Debtor shall
deliver such Intercompany Note to the Collateral Agent in pledge hereunder. All
Intercompany Notes shall be delivered to the Collateral Agent by the relevant
Debtor pursuant hereto endorsed to the order of the Collateral Agent and
accompanied by any required transfer tax stamps, all in form and substance
satisfactory to the Collateral Agent.
SECTION 1.4 Release. The Collateral Agent will not release Collateral
from the Liens created by this Agreement or the other Security Documents except
that the Collateral Agent shall (i) release Collateral disposed of pursuant to
and in accordance with Section 3.1.10 hereof, (ii) release amounts from the
Collateral Reserve Account expressly authorized by Section 3.1.11 hereof, (iii)
release Collateral as expressly authorized by Sections 5.05, 5.21(b), 5.22(b),
5.23 and 9.19 of the Credit Agreement or any of provision of any of the Security
Documents, (iv) release of all of the Collateral upon termination of the
Intercreditor Agreement pursuant to Section 22(i) thereof, and (v) release any
of the Collateral with the consent, or upon the direction, of all of the Secured
Parties, pursuant to the Intercreditor Agreement. Upon any release of Collateral
pursuant to this Agreement or any Loan Document, the Collateral Agent will
deliver appropriate UCC-3's or other appropriate documents to the Debtor
confirming the release of such Collateral.
132
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
SECTION 2.1 Representations and Warranties. Each Debtor, jointly and
severally, represents and warrants to the Collateral Agent as follows:
2.1.1 Place(s) of Business and Location of Collateral. Set forth on
Exhibit A attached hereto and made a part hereof are (i) the address of each of
the Debtor's chief executive office and principal place of business, (ii) each
of the Debtor's other places of business, (iii) each place owned or leased by
any Debtor where the Collateral or any books or records relating thereto are
located, and (iv) each Debtor's Federal Identification number.
2.1.2 Corporate Existence and Power. Each Debtor is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, except where the failure to qualify would not have or reasonably be
expected to cause a Material Adverse Effect, and has all corporate powers and
all governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted, except where the failure to have any
such licenses, authorizations, consents and approvals could not have or
reasonably be expected to cause a Material Adverse Effect.
2.1.3 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each Debtor of this Agreement (i) are
within each Debtor's corporate powers, (ii) have been duly authorized by all
necessary corporate action, (iii) require no action by or in respect of or
filing with any Governmental Authority, other than the filing of UCC-1 financing
statements and any similar filings required to perfect or protect the Lien
granted hereunder, (iv) do not contravene, or constitute a material default
under, any provision of applicable Laws or of the certificate or articles of
incorporation or by-laws of any Debtor or of any agreement, judgment,
injunction, order, decree or other instrument binding upon any Debtor, and (v)
do not result in the creation or imposition of any Lien on any asset of any
Debtor, other than under this Agreement or any of the Security Documents.
2.1.4 Binding Agreements. This Agreement constitutes the valid and
binding agreement of each Debtor enforceable in accordance with its terms
provided that the enforceability hereof is subject to general principles of
equity and to bankruptcy, insolvency and similar laws affecting the enforcement
of creditors' rights generally.
2.1.5 Title to Collateral. Each Debtor has good and marketable title to
its respective properties and assets which are included among or give rise to
the Collateral. Each Debtor has legal, enforceable and uncontested rights to use
freely such respective properties and assets, and such properties and assets are
subject to no Lien of any kind, except for (i) the Liens of the Collateral Agent
pursuant to this Agreement and the Security Documents, (ii) Liens on
Non-Factored Accounts and Identified Accounts pursuant to and subject to the
limitations contained in Section 5.23 of the Credit Agreement, and (iii) Liens
set forth on Exhibit B attached hereto; provided that such Exhibit B is based on
lien search reports received by the Collateral Agent as of the Closing Date,
and, to the extent lien search reports ordered on behalf of the Collateral Agent
have not been received as of the Closing Date, Exhibit B shall be modified after
all such lien search reports have been received to include additional permitted
Liens reasonably acceptable to the Collateral Agent based on such additional
lien search reports.
133
2.1.6 Bona Fide Rights of Payment. Each right of payment in the nature
of an account constituting a part of the Collateral arises or will arise under a
contract between one of the Debtors and an Account Debtor, or from the bona fide
sale or delivery of goods to or performance of services for, such Account
Debtor. No Governmental Authority is an Account Debtor with respect to any
portion of the Collateral.
2.1.7 Title to Intercompany Notes. For each Intercompany Note payable
to a Debtor, each Debtor owns such Intercompany Note, free and clear of any
Liens except for Liens of the Collateral Agent pursuant to this Agreement and
the Security Documents. None of the Debtors is or will become a party to or
otherwise bound by any agreement, other than this Agreement, the Intercreditor
Agreement and the Credit Agreement, which restricts in any manner the rights of
any present or future holders of any of the Intercompany Notes with respect
thereto.
2.1.8 Recitals. The Recitals to this Agreement are true, accurately
reflect the matters set forth herein and are hereby incorporated into and made a
part of this Agreement.
SECTION 2.2 Survival of Representations and Warranties. All
representations and warranties contained in or made under or in connection with
this Agreement shall survive the execution of this Agreement and the incurring
of any particular Secured Obligations.
ARTICLE 3
COVENANTS AND AGREEMENTS OF THE DEBTORS
SECTION 3.1 Covenants. So long as any of the Secured Obligations (or
commitments therefor, if any) shall be outstanding, each Debtor agrees with the
Collateral Agent, for itself and the Secured Parties, as follows:
3.1.1 Conduct of Business and Maintenance of Existence, Compliance with
Laws, Etc. Except as otherwise permitted under the Credit Agreement, each Debtor
will (i) do or cause to be done all things necessary to preserve and to keep in
full force and effect its corporate existence and material rights and its
franchises, trade names, patents, trademarks and permits which are necessary for
the continuance of its business, and (ii) comply with all applicable Laws and
observe the valid requirements of Governmental Authorities, the noncompliance
with or the nonobservance of which would materially interfere with the
performance of its obligations hereunder or the Collateral Agent's interest in
the Collateral.
3.1.2 Business Names and Addresses. Within the previous 5 years, no
Debtor has conducted business under or been legally known by any name and,
except as permitted in Section 3.1.3, will not change its name to any other name
other than those disclosed on Exhibit A attached hereto and made a part hereof.
3.1.3 Certain Notices. The Company will notify the Collateral Agent and
each Secured Party: (a) not less than 30 days prior to (i) any change in the
name or corporate structure under which any Debtor conducts its business, and
(ii) the opening of any new place of business or any change in any of the places
where the books and records concerning the Collateral, or any part thereof, are
kept (and will provide to the Collateral Agent prior to any such change all
financing statements requested by it in connection with such new place of
business or location of books and records, as well as any other security
instrument that the Collateral Agent may require be executed by any Debtor in
134
order to constitute a Lien upon any new Collateral that may be located (as
permitted under Section 3.1.9 hereof) in said new place of business or books and
records); and (b) promptly, of (i) the commencement of any litigation affecting
any of the Collateral or the title thereto or rights therein, if it arises out
of disputes pertaining to the Collateral in an aggregate amount in excess of
$200,000 not covered by insurance, or (ii) the occurrence of any material
casualty or other loss affecting any material portion of the Collateral.
3.1.4 Maintenance of the Collateral; Insurance. Each Debtor will
maintain the Collateral in good working order, saving and excepting ordinary
wear and tear, and will not permit anything to be done to the Collateral which
may materially impair the value or use thereof. The Collateral Agent and each
Secured Party, or representatives designated by the Collateral Agent or such
Secured Party, respectively, shall be permitted to enter the premises of any
Debtor and examine, audit and inspect the Collateral at any reasonable time and
from time to time with reasonable prior notice. Each Debtor will promptly
furnish to the Collateral Agent and each Secured Party all such additional
information regarding the Collateral as the Collateral Agent or such Secured
Party may from time to time reasonably request. Each Debtor shall maintain
insurance on the Collateral consisting of goods with reputable companies, in
such amounts and against such risks as are consistent with industry standards,
with loss payable to the Collateral Agent as its interests may appear. Such
insurance shall not be cancelable by any Debtor, unless with the prior written
consent of the Collateral Agent, or by such Debtor's insurer, unless with at
least (i) 10 Domestic Business Days advance written notice to the Collateral
Agent in the event of a cancellation for nonpayment of premiums or other
amounts, or (ii) 30 days advance written notice to the Collateral Agent in all
other events.
3.1.5 Recordings and Filings. Each Debtor shall: (a) execute and
deliver all financing documents (including, without limitation, UCC-1 and UCC-3
statements) required to be filed, registered or recorded in order to create, in
favor of the Collateral Agent, a first priority (subject to the express
provisions hereof), perfected Lien in the Collateral, to the extent such Lien
can be perfected under the UCC, in form and in sufficient number for filing,
registration, and recording in each office in each jurisdiction in which such
filings, registrations and recordations are required, and (b) deliver such
evidence as the Collateral Agent may deem satisfactory that all necessary filing
fees and all recording and other similar fees, and all taxes and other expenses
related to such filings, registrations and recordings will be or have been paid
in full.
3.1.6 Defense of Title and Further Assurances. At its own expense, each
of the Debtors will defend the title to the Collateral (or any part thereof),
and promptly upon request execute, acknowledge and deliver any financing
statement, renewal, affidavit, assignment, continuation statement, security
agreement, certificate, or other document the Collateral Agent may reasonably
require in order to perfect, preserve, maintain, continue, protect and/or extend
the Lien granted to the Collateral Agent under this Agreement and its priority
under the UCC. Each Debtor will (i) comply in all material respects with all
license agreements relating to any Collateral and, upon the request of the
Collateral Agent, use commercially reasonable efforts to obtain and furnish to
the Collateral Agent any consents from licensors to effect the purposes of this
Agreement, (ii) deliver to the Collateral Agent in pledge all instruments
evidencing the obligation to pay any of the Collateral not maintained or pledged
with the Collateral Agent, and (iii) from time to time do whatever the
Collateral Agent may reasonably request by way of obtaining, executing,
delivering, and/or filing financing statements, and other notices and amendments
and renewals thereof, and will take any and all steps and observe such
135
formalities as the Collateral Agent may reasonably request, in order to create
and maintain a valid Lien upon the Collateral, subject to no other Liens, except
as permitted hereby or by the Transaction Documents or other Security Documents.
Each Debtor agrees that a photocopy of a fully executed financing statement
shall be sufficient to satisfy for all purposes the requirements of a financing
statement as set forth in Article 9 of the applicable Uniform Commercial Code.
Each Debtor will comply in all material respects with all federal, state and
local laws and regulations affecting the Collateral.
3.1.7 Security, etc. Each Debtor agrees that the Collateral Agent may
at any time take such steps as the Collateral Agent deems reasonably necessary
to protect the Collateral Agent's Lien upon and interest in, and to preserve the
Collateral, whether at the business premises of any Debtor or elsewhere.
3.1.8 Other Liens. None of the Debtors will permit any Liens on or with
respect to all or any part of the Collateral, except as expressly permitted
hereby and by the Transaction Documents.
3.1.9 Location of Collateral. Except as expressly permitted elsewhere
in this Agreement or except as may be permitted by the Transaction Documents,
without prior written consent of the Collateral Agent, none of the Debtors will
transfer or permit the transfer of any of the Collateral except (i) to a
location for which the security interest in favor of the Collateral Agent
therein shall remain perfected, (ii) to any other location so long as such
Debtor shall give the Collateral Agent written notice thereof and deliver
executed financing statements as reasonably requested by the Collateral Agent in
connection therewith within 30 days of such transfer, or (iii) for Collateral
with a book value of less than $50,000 to another location.
3.1.10 Disposition of Collateral. Without the prior written consent of
the Collateral Agent, acting at the direction of the requisite Secured Parties
pursuant to Section 11 of the Intercreditor Agreement, none of the Debtors will
sell, discount, allow credits or allowances, transfer, assign, extend the time
for payment on, convey, lease, assign, transfer or otherwise dispose of the
Collateral, or any part thereof, except, prior to an Event of Default, (i) sales
of inventory, discounts, co-op advertising, credits or credit allowances and
payment extensions in the ordinary course of business in accordance with the
customary business practices of such Debtor in effect on the date hereof, and
(ii) as otherwise expressly permitted by the Transaction Documents. Upon the
permitted sale, exchange or other disposition of any of the Collateral, the Lien
created and provided for herein, without break in continuity and without further
formality or act, shall continue in and attach to any proceeds thereof,
including, without limitation, any accounts, contract rights, general
intangibles, shipping documents, documents of title, bills of lading, warehouse
receipts, dock warrants, dock receipts, equipment and cash or non-cash proceeds,
and in the event of any unauthorized sale, shall continue in the Collateral
itself.
3.1.11 Depository Accounts; Collections. (a) Promptly after receipt of
notice from the Collateral Agent following the occurrence of an Event of Default
(regardless of whether it is an Actionable Default), each Debtor will use its
best efforts to cause all depositary banks in which Cash Collections are
deposited to become Approved Depositaries.
(b) With respect to all Account Debtors, promptly after receipt of
notice from the Collateral Agent following the occurrence of an Event of Default
(regardless of whether it is an Actionable Default): (i) each Debtor shall (x)
deposit all Cash Collections either with the Collateral Agent or an Approved
136
Depositary and (y) cause each Account Debtor to remit all cash, checks, drafts,
items and other instruments for the payment of money which it now has or may at
any time hereafter receive as proceeds of the Collateral to the Collateral
Agent; and (ii) the Collateral Agent shall have the right in its sole discretion
to direct all Approved Depositaries to remit all Cash Deposits held by them to
the Collateral Agent as often as the Collateral Agent may require and the
Approved Depositaries are hereby authorized and directed to do so by each of the
Debtors upon the Collateral Agent's direction. All amounts received by the
Collateral Agent under this Section 3.1.11(b) shall be deposited in a Collateral
Reserve Account established by the respective Debtor upon the request of the
Collateral Agent. During the existence of an Event of Default, none of the
Debtors shall be entitled to draw on the funds held by any Approved Depositary
without the prior written consent of the Collateral Agent. Any Cash Collections
received by any of the Debtors after receipt of the notices set forth in this
Section 3.1.11(b) shall be deemed to be held in trust for the benefit of the
Collateral Agent and the Secured Parties as a part of the Collateral until
forwarded to the Collateral Agent for deposit in the Collateral Reserve Accounts
as required above. Unless and until an Actionable Default is in existence and
subject to the provisions of Section 11 of the Intercreditor Agreement, the
Collateral Agent will transfer on each Business Day collected amounts in the
Collateral Reserve Accounts to the respective Debtor's operating account. During
the existence of an Actionable Default, and subject to the provisions of Section
11 of the Intercreditor Agreement, (1) the Collateral Agent will apply collected
amounts in the Collateral Reserve Accounts to the Secured Obligations pursuant
to Section 12 of the Intercreditor Agreement, and (2) the Collateral Agent may,
additionally, at any time in its sole discretion or if requested in writing by
the requisite Secured Parties pursuant to Section 11 of the Intercreditor
Agreement, direct Account Debtors to make payments on the Collateral, or
portions thereof, directly to the Collateral Agent, and such Account Debtors are
hereby authorized and directed to do so by each of the Debtors upon the
Collateral Agent's direction, and the funds so received shall be also deposited
in the respective Collateral Reserve Account, or, at the election of the
Collateral Agent, upon its receipt thereof, be applied directly to repayment of
the Secured Obligations as set forth in the Intercreditor Agreement.
ARTICLE 4
RIGHTS AND REMEDIES UPON DEFAULT
SECTION 4.1 Rights and Remedies, etc.
4.1.1 General Rights and Remedies. If any Actionable Default is in
existence, then, in each and every such case, the Collateral Agent may, at its
option exercised from time to time, and at the written direction of the
requisite Secured Parties will, subject to and as provided in Section 11 of the
Intercreditor Agreement, at any time thereafter while such Actionable Default is
continuing, exercise any rights, powers and remedies available to the Collateral
Agent under this Agreement, the Intercreditor Agreement and applicable Laws.
4.1.2 Enforcement Costs; Application of Proceeds. The Company agrees to
pay to the Collateral Agent all Enforcement Costs paid or incurred by the
Collateral Agent. This agreement in this Section 4.1.2 shall survive the
termination of this Agreement and the Lien on the Collateral. All Enforcement
Costs, together with interest thereon from the date of any demand therefor until
paid in full at a per annum rate of interest equal at all times to the Default
137
Rate, shall be paid by the Company to the Collateral Agent whenever demanded by
the Collateral Agent.
Any proceeds of the collection of the sale or other disposition of the
Collateral will be applied by the Collateral Agent in accordance with the terms
of Section 12 of the Intercreditor Agreement. If the sale or other disposition
of the Collateral fails to satisfy all of the Secured Obligations, the Debtors
shall remain liable to the Collateral Agent and the Secured Parties for any
deficiency. Any surplus from the sale or disposition of the Collateral shall be
paid to the respective Debtor or to any other party entitled thereto or shall
otherwise be paid over in a manner permitted by law after payment in full of all
Secured Obligations and the Enforcement Costs related to any such payment.
4.1.3 Uniform Commercial Code and Other Remedies. Upon the occurrence
of an Event of Default (and in addition to all of its rights, powers and
remedies under this Agreement), the Collateral Agent shall have all of the
rights, powers and remedies of a secured party under the New York Uniform
Commercial Code, the Uniform Commercial Code in effect in any other applicable
State, and other applicable laws. Upon such occurrence and demand by the
Collateral Agent, each Debtor shall assemble the Collateral and make it
available to the Collateral Agent, at a place reasonably convenient for such
purpose as designated by the Collateral Agent. Upon an Actionable Default, the
Collateral Agent or its agents may enter upon each Debtor's premises to take
possession of the Collateral, to remove it, to render it unusable, or to sell or
otherwise dispose of it. Any written notice of the sale, disposition or other
intended action by the Collateral Agent with respect to the Collateral which is
sent by regular mail, postage prepaid, to the Debtors at the addresses set forth
for notices herein, or such other address of the Debtors which may from time to
time be shown on the Collateral Agent's records, at least 10 days prior to such
sale, disposition or other action, shall constitute reasonable notice to each
such Debtor.
4.1.4 Power of Attorney. Each Debtor hereby irrevocably designates and
appoints the Collateral Agent its true and lawful attorney either in the name of
the Collateral Agent or in the name of each respective Debtor, effective upon
the occurrence and during the existence of an Actionable Default, to ask for,
demand, xxx for, collect, compromise, compound, receive, receipt for and give
acquittance for any and all sums owing or which may become due upon any part of
the Collateral or under any insurance maintained in accordance with the Security
Documents and, in connection therewith, to take any and all actions as the
Collateral Agent may deem necessary or desirable in order to realize upon the
Collateral or under any insurance maintained in accordance with the Security
Documents, including, without limitation, power to endorse in the name of each
Debtor on any checks, drafts, notes or other instruments received in payment of
or on account of the Collateral or under any insurance maintained in accordance
with the Security Documents, or to sign each Debtor's name on any invoice or
xxxx of lading relating to the Collateral, on notices of assignment, on public
records, on verifications of Collateral and on notices to Account Debtors, or on
any proof of claim in bankruptcy proceeding against an Account Debtor and any
other obligor with respect to the Collateral, to send requests for verification
from Account Debtors, to notify the post office authorities to change the
address for delivery of each Debtor's mail to an address designated by the
Collateral Agent and to receive, open and dispose of all mail addressed to each
Debtor. Notwithstanding the foregoing, the Collateral Agent shall not be under
any duty to any Debtor to exercise any such authority or power or in any way be
responsible for the collection of the Collateral or under any insurance
maintained in accordance with the Security Documents. The foregoing power of
attorney, being coupled with an interest, is irrevocable until the Secured
138
Obligations have been fully satisfied and any commitments therefor terminated.
The Collateral Agent may file one or more financing statements disclosing its
Lien in any or all of the Collateral without any Debtor's signature appearing
thereon. Each Debtor also hereby grants to the Collateral Agent a power of
attorney to execute any such financing statement, or amendments and supplements
to financing statements, on behalf of such Debtor without notice thereof to such
Debtor, which power of attorney is coupled with an interest and is irrevocable
until the Secured Obligations have been fully satisfied and this Agreement
terminated.
ARTICLE 5
MISCELLANEOUS
SECTION 5.1 Course of Dealing; Amendment. No course of dealing between
any Debtor and the Collateral Agent shall be effective to amend, modify or
change any provision of this Agreement, and this Agreement may not be amended,
modified, or changed in any respect except by an agreement in writing signed by
the Collateral Agent (at the direction of the requisite Secured Parties as
required by the Intercreditor Agreement) and each Debtor. The Collateral Agent
shall have the right at all times, subject to the rights of the Secured Parties
under the Intercreditor Agreement, to enforce the provisions of this Agreement
in strict accordance with the terms hereof and thereof, notwithstanding any
conduct or custom on the part of the Collateral Agent in refraining from so
doing at any time or times. The failure or delay of the Collateral Agent at any
time or times to enforce the rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a custom in
any way or manner contrary to specific provisions of this Agreement or as having
in any way or manner modified or waived the same.
SECTION 5.2 Waiver, Cumulative Remedies. Subject to the rights of the
Secured Parties under the Intercreditor Agreement and the applicable Debtor
under the Security Documents and the Transaction Documents, the Collateral Agent
may, on behalf of the Secured Parties:
(a) at any time and from time to time, execute and deliver to the
Debtors a written instrument waiving, on such terms and conditions as the
Collateral Agent may specify in such written instrument, any of the requirements
of this Agreement or any Event of Default hereunder and its consequences,
provided, that any such waiver shall be for such period and subject and limited
to such conditions as shall be specified in any such instrument and to the
instance for which the waiver is given. In the case of any such waiver, each of
the Debtor and the Collateral Agent shall be restored to their former positions
prior to such Event of Default and shall have the same rights as they had
hereunder. The rights, powers and remedies provided in this Agreement are
cumulative, may be exercised concurrently or separately, may be exercised from
time to time and in such order as the Collateral Agent shall determine, and are
in addition to, and not exclusive of, rights, powers and remedies provided by
applicable Laws.
(b) proceed against any of the Collateral without proceeding against
the Debtors or other Persons obligated under any of the Secured Obligations;
139
(c) without reducing or impairing the Secured Obligations of the
Debtors and without notice, release or compromise with any guarantor or other
Person liable for all or any part of the Secured Obligations;
(d) without reducing or impairing the Secured Obligations of the
Debtors and without notice thereof: (i) fail to perfect the Lien in any or all
Collateral or to release any or all the Collateral or to accept substitute
Collateral, (ii) allow all or any of the Secured Obligations to arise after the
date of this Agreement, (iii) waive any provision of this Agreement, (iv)
exercise or fail to exercise rights of set-off or other rights, (v) accept
partial payments or extend from time to time the maturity of all or any part of
the Secured Obligations, and (vi) take or fail to take any action under this
Agreement or against any one or more Persons obligated under the Secured
Obligations.
Each of the Debtors hereby waives and releases all claims and defenses
against the Collateral Agent and the Secured Parties and/or with respect to the
payment of or the enforcement of the Secured Obligations and the Collateral
Agent's rights in the Collateral on account of any of the foregoing, except as
to the Collateral Agent's and the Secured Parties' gross negligence or willful
misconduct.
SECTION 5.3 Notices. All notices, requests and demands to or upon the
parties to this Agreement shall be deemed to have been given or made when so
given or made in accordance with the Intercreditor Agreement.
SECTION 5.4 Management and Administration by Collateral Agent. The
Collateral Agent shall not have any duty to any of the Debtors to pay for
insurance, taxes, or other charges incurred in the custody, preservation, use or
operation of, or in connection with the management of, any Collateral on which a
Lien is granted in connection with this Agreement; provided, however, that the
Collateral Agent may (in its sole discretion) pay such expenses. All such
payments shall be part of the Secured Obligations and shall bear interest
payable on demand by the Company from the date of any demand therefor until paid
in full at the Default Rate.
SECTION 5.5 Waiver of Jury Trial; Consent to Jurisdiction. EACH OF THE
DEBTORS (A) AND THE COLLATERAL AGENT IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF THIS AGREEMENT TO THE EXTENT PERMITTED BY LAW, (B) SUBMITS TO THE
NONEXCLUSIVE PERSONAL JURISDICTION IN XXXXXX COUNTY, GEORGIA, OF THE COURTS
THEREOF AND THE UNITED STATES DISTRICT COURTS FOR THE NORTHERN DISTRICT OF
GEORGIA, FOR THE ENFORCEMENT OF THIS AGREEMENT, (C) WAIVES ANY AND ALL PERSONAL
RIGHTS UNDER THE LAW OF ANY JURISDICTION TO OBJECT ON ANY BASIS (INCLUDING,
WITHOUT LIMITATION, INCONVENIENCE OF FORUM) TO JURISDICTION OR VENUE WITHIN THE
STATE OF GEORGIA FOR THE PURPOSE OF LITIGATION TO ENFORCE THIS AGREEMENT, AND
(D) AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN THE MANNER PRESCRIBED
IN THE INTERCREDITOR AGREEMENT FOR THE GIVING OF NOTICE TO THE COMPANY. NOTHING
HEREIN CONTAINED, HOWEVER, SHALL PREVENT THE COLLATERAL AGENT FROM BRINGING ANY
ACTION OR EXERCISING ANY RIGHTS AGAINST ANY COLLATERAL AND AGAINST ANY OF THE
140
DEBTORS PERSONALLY, AND AGAINST ANY ASSETS OF THE DEBTORS, WITHIN ANY OTHER
STATE OR JURISDICTION.
SECTION 5.6 Severability. In case one or more provisions contained in
this Agreement shall be invalid, illegal or unenforceable in any respect under
any Laws, the validity, legality and enforceability of the remaining provisions
contained herein shall remain effective and binding on the parties thereto and
shall not be affected or impaired thereby.
SECTION 5.7 Assignment, Etc. The Collateral Agent shall have the right
to divulge to any actual or potential purchaser, assignee, transferee or
participant of the Collateral and/or the Secured Obligations, or any part
thereof, all information, reports, financial statements and documents obtained
in connection with this Agreement or otherwise. Notwithstanding anything
contained herein, any confidentiality restriction agreed to by any person shall
continue to be binding upon such person.
SECTION 5.8 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each of the Debtors and the Collateral Agent and their
respective successors and assigns, except that the none of the Debtors shall
have the right to assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Collateral Agent.
SECTION 5.9 APPLICABLE LAW. EACH OF THE DEBTORS ACKNOWLEDGES AND AGREES
THAT THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 5.10 Definitional Provisions. Unless otherwise defined herein,
as used in this Agreement and in any certificate, report or other document made
or delivered pursuant hereto, accounting terms not otherwise defined herein, and
accounting terms only partly defined herein, to the extent not defined, shall
have the respective meanings given to them under generally accepted United
States accounting principles consistently applied to the Debtors. Unless
otherwise defined herein, all terms used herein which are defined by the New
York Uniform Commercial Code shall have the same meanings as assigned to them by
the New York Uniform Commercial Code unless and to the extent varied by this
Agreement. The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and article, section,
subsection, schedule and exhibit references are references to articles, sections
or subsections of, or schedules or exhibits to, as the case may be, this
Agreement unless otherwise specified. The captions, headings and titles to this
Agreement and its sections, subsections and other parts are only for the
convenience of the parties and are not part of this Agreement. As used herein,
the singular number shall include the plural, the plural the singular and the
use of the masculine, feminine or neuter gender shall include all genders, as
the context may require. Reference to this Agreement or to any one or more of
the instruments, agreements or documents previously, simultaneously or hereafter
executed and delivered by any of the Debtors, any guarantor and/or any other
Person, singly or jointly with another Person or Persons, evidencing, securing,
guarantying or otherwise in connection with any of the Secured Obligations
and/or in connection with this Agreement shall mean the same as the foregoing
may from time to time be amended, restated, substituted, extended, renewed,
supplemented or otherwise modified.
141
SECTION 5.11 Continuing Enforcement of the Transaction Documents. If,
after receipt of any payment of all or any part of the Secured Obligations of
the Debtors to the Collateral Agent or any of the Secured Parties, the
Collateral Agent is or any such Secured Parties are compelled or agree, for
settlement purposes, to surrender such payment to any person or entity for any
reason, then this Agreement and the other Security Documents, and the applicable
Transaction Documents shall continue in full force and effect or be reinstated,
as the case may be. The provisions of this Section 5.11 shall survive the
termination of this Agreement, the other Security Documents and the Transaction
Documents and shall be and remain effective notwithstanding the payment of the
Secured Obligations, the cancellation of the Security Agreement, any other
Security Documents or the Transaction Documents, the release of any security
interest, lien or encumbrance securing the Secured Obligations or any other
action which the Collateral Agent or any of the Secured Parties may have taken
in reliance upon its receipt of such payment.
SECTION 5.12 Additional Debtors. Section 5.21 of the Credit Agreement
provides that Domestic Subsidiaries which are created or acquired after the
First Amendment Effective Date must become Guarantors, by, among other things,
executing and delivering to the Collateral Agent a counterpart of this
Agreement. Any Domestic Subsidiary which executes and delivers to the Collateral
Agent a counterpart of this Agreement shall be a Debtor for all purposes
hereunder.
[SIGNATURES COMMENCE ON THE NEXT PAGE]
142
IN WITNESS WHEREOF, each of the Debtors has executed and delivered this
Agreement as of the day and year first written above.
"DEBTORS"
XXXXXXXX XXXXX, INC. (SEAL)
By: _______________________________________________
Name:
Title:
CURTAINS AND FABRICS, INC.,
a New York corporation (SEAL)
GOLD XXXXX, INC.,
a Delaware corporation (SEAL)
RASCHEL FASHION INTERKNITTING,
LTD., a New York corporation (SEAL)
GUILFORD INTERNATIONAL, INC.,
a U.S. Virgin Islands 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:________________________________________
Title:__________________________________
000
XXXX XXXXXX XXXXXXX PRINTING AND FINISHING,
a North Carolina general partnership
By: Advisory Services, Inc.
a General Partner
By: __________________________
Title: _____________________
144
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST WRITTEN ABOVE:
WACHOVIA BANK, N.A., (SEAL)
as Collateral Agent for the Secured Parties
By: _______________________________________
Name:
Title:
145
EXHIBIT A
I. Chief Executive Office/Principal Place of Business of the Debtors
-----------------------------------------------------------------
Xxxxxxxx Xxxxx, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
(Guilford County)
Gold Xxxxx, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
(Schuykill County)
Raschel Fashion Interknitting, Ltd.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(Herkimer County)
Curtains and Fabrics, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Schoharie County)
Guilford International, Inc.
Upper Level Drake's Passage
Suites A and AN
Post Office 12440
Charlotte Amalie
St. Xxxxxx, U.S. Virgin Islands 00801
(Island of St. Xxxxxx)
Gold Xxxxx Farms, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Guilford County)
Guilford Airmont, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Guilford County)
Advisory Research Services, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Guilford County)
146
Xxxxxxxx Xxxxx (Michigan), Inc.
Suite 200
00000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxxx, XX 00000
(Oakland County)
Xxxxxxx Laces, Ltd.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(Herkimer County)
GFD Services, Inc.
9th Floor
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(New Castle County)
GFD Fabrics, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Guilford County)
Twin Rivers Textile Printing & Finishing
000 Xxxx Xxxxxx
Buildings 316, 318, 322 and 324
Xxxxxxxxxxx, XX 00000
(Schenectady County)
GMI Computer Sales, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Guilford County)
Mexican Industries of North Carolina, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(Guilford County)
147
II. PLACES OF BUSINESS AND COLLATERAL LOCATIONS
-------------------------------------------
XXXXXXXX XXXXX, INC.:
---------------------
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXXXX PLANT
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXXXXXX PLANT
----------------------------------- ----------------------------- ----------------------------------------------
LUMBERTON, NC XXXXXXX LUMBERTON CIRCULAR KNIT PLANT
----------------------------------- ----------------------------- ----------------------------------------------
LOS ANGELES, CA LOS ANGELES APPAREL SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
NEW YORK, NY NEW YORK 000 0XX XXXXXX XX
----------------------------------- ----------------------------- ----------------------------------------------
SAN FRANCISCO, CA SAN FRANCISCO APPAREL SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
SKOKIE, IL XXXX COUNTY APPAREL SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD FRIENDSHIP - APPAREL WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
LUMBERTON, NC XXXXXXX APPAREL WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
HIGH POINT, NC GUILFORD APPAREL/HF HIGH POINT SHOWROOM
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD FRIENDSHIP
----------------------------------- ----------------------------- ----------------------------------------------
WALLACE, NC XXXXXX XXXXXXX - WEAVING
----------------------------------- ----------------------------- ----------------------------------------------
KENANSVILLE, NC DUPLIN GUILFORD EAST AUTOMOTIVE PLANT
----------------------------------- ----------------------------- ----------------------------------------------
KENANSVILLE, NC DUPLIN AUTO WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
PLANO, TX COLLIN HOME FASHIONS SALES OFFICE
----------------------------------- ----------------------------- ----------------------------------------------
FUQUAY-VARINA, NC WAKE FUQUAY-VARINA FIBER PLANT
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXXXXX WARPING PLANT
----------------------------------- ----------------------------- ----------------------------------------------
ANGIER, NC HARNETT FIBERS WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
WASHINGTON, DC DISTRICT OF COLUMBIA WASHINGTON LIASON
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC XXXXXXXX XXXXX BUILDING
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD HR & PURCHASING WENDOVER
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD HR TRAINING FACILITY WENDOVER
----------------------------------- ----------------------------- ----------------------------------------------
GREENSBORO, NC GUILFORD IFD BUILDING
----------------------------------- ----------------------------- ----------------------------------------------
RASCHEL FASHION INTERKNITTING, LTD.:
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
COBLESKILL, NY SCHOHARIE NORTH PLANT - COBLESKILL
----------------------------------- ----------------------------- ----------------------------------------------
COBLESKILL, NY SCHOHARIE SOUTH PLANT - COBLESKILL
----------------------------------- ----------------------------- ----------------------------------------------
COBLESKILL, NY SCHOHARIE WAREHOUSE - COBLESKILL
----------------------------------- ----------------------------- ----------------------------------------------
XXXXX CAVE, NY SCHOHARIE GFD NORTH (BRAMANVILLE) WAREHOUSE
----------------------------------- ----------------------------- ----------------------------------------------
GOLD XXXXX, INC.:
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Pine Grove, PA Schuylkill Pine Grove Knitting, Dyeing
----------------------------------- ----------------------------- ----------------------------------------------
CURTAINS AND FABRICS, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Bedding Plant
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Curtain Plant
----------------------------------- ----------------------------- ----------------------------------------------
148
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Maint/Waste Plants
----------------------------------- ----------------------------- ----------------------------------------------
Amherst, NY Erie Amherst Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
Burlington, NC Alamance Burlington Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Herkimer Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
Latham, NY Albany Latham Outlet Store
----------------------------------- ----------------------------- ----------------------------------------------
GUILFORD INTERNATIONAL, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
St. Xxxxxx, VI Guilford Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
GOLD XXXXX FARMS, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Greensboro, NC Guilford Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
GUILFORD AIRMONT, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Greensboro, NC Guilford Warehouse
----------------------------------- ----------------------------- ----------------------------------------------
ADVISORY RESEARCH SERVICES, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Greensboro, NC Guilford Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
XXXXXXXX XXXXX (MICHIGAN), INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Madison Heights, MI Oakland Sales office
----------------------------------- ----------------------------- ----------------------------------------------
XXXXXXX LACES, LTD.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Herkimer, NY Herkimer Manufacturing facility (home furnishings)
----------------------------------- ----------------------------- ----------------------------------------------
New York, NY New York Manufacturing facility (home furnishings)
----------------------------------- ----------------------------- ----------------------------------------------
Plano, Tx Collin Manufacturing facility (home furnishings)
----------------------------------- ----------------------------- ----------------------------------------------
GFD SERVICES, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Wilmington, DE New Castle Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
149
GFD FABRICS, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Greensboro, NC Guilford Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
TWIN RIVERS TEXTILE PRINTING AND FINISHING
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Schenectady, NY Schenectady Printing facility
----------------------------------- ----------------------------- ----------------------------------------------
GMI COMPUTER SALES, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Greensboro, NC Guilford Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
MEXICAN INDUSTRIES OF NORTH CAROLINA, INC.
----------------------------------- ----------------------------- ----------------------------------------------
LOCATION COUNTY FACILITY
----------------------------------- ----------------------------- ----------------------------------------------
Greensboro, NC Guilford Administrative Office
----------------------------------- ----------------------------- ----------------------------------------------
III. FEDERAL IDENTIFICATION NUMBERS
------------------------------
XXXXXXXX XXXXX, INC.
Tax I.D. #: 00-0000000
CURTAINS AND FABRICS, INC.
Tax I.D. #00-0000000
GOLD XXXXX, INC.
Tax I.D. #: 00-0000000
RASCHEL FASHION INTERKNITTING, LTD.
Tax I.D. #: 00-0000000
GUILFORD INTERNATIONAL, INC.
Tax I.D. # 00-0000000
GOLD XXXXX FARMS, INC.
Tax I.D. # 00-0000000
GUILFORD AIRMONT, INC.
Tax I.D. # 00-0000000
ADVISORY RESEARCH SERVICES, INC.
Tax I.D. # 00-0000000
XXXXXXX LACES, LTD..
Tax I.D. # 00-0000000
150
GFD SERVICES, INC.
Tax I.D. # 00-0000000
GFD FABRICS, INC.
Tax I.D. # 00-0000000
TWIN RIVERS TEXTILE PRINTING AND FINISHING
Tax I.D. # 00-0000000
GMI COMPUTER SALES, INC.
Tax I.D. # 00-0000000
MEXICAN INDUSTRIES OF NORTH CAROLINA, INC.
Tax I.D. # 00-0000000
IV. OTHER BUSINESS NAMES
--------------------
On May 31, 1995, Cobleskill Novelty Fibers, Inc. merged with and into
Raschel Fashion Interknitting, Ltd.
Curtains and Fabrics, Inc. has used the names Guilford Home Fashions
and Hofmman Laces.
Xxxxxxx Laces, Ltd. has done business under the names Xxxxxxx Home
Fashions and Guilford Home Fashions
151
REVISED JUNE 5, 2000
EXHIBIT B
---------
PERMITTED LIENS8
(Capitalized terms used herein without definition shall have the meanings
ascribed thereto in the Security Agreement to which this Exhibit is attached.)
XXXXXXXX XXXXX, INC.:
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
North Carolina Secretary of State Citicorp Dealer Finance 5/15/95 Specific equipment
1225662 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxxxxx Recycling, Inc. 6/20/95 Specific equipment
1236442 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxxx Xxxxxxxxxxx 9/29/95 Specific equipment
1267845 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Citicorp Dealer Finance 5/15/95 Specific equipment
1225662 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxxxxx Recycling, Inc. 6/20/95 Specific equipment
1236442 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Citicorp Dealer Finance 2/19/96 Specific equipment
1310452 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxxx Xxxxxxxxxxx 7/17/96 Specific equipment
1360554 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 6/4/97 Specific equipment
assignee of Western Carolina 001469081 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 6/27/97 Specific equipment
assignee of Western Carolina 001477535 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/17/97 Specific equipment
assignee of Western Carolina 001511956 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/17/97 Specific equipment
assignee of Western Carolina 001511959 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/20/97 Specific equipment
assignee of Western Carolina 001512543 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/20/97 Specific equipment
assignee of Western Carolina 001512544 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/20/97 Specific equipment
assignee of Western Carolina 001512545 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/20/97 Specific equipment
assignee of Western Carolina 001512546 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/5/97 Specific equipment
assignee of Western Carolina 001519099 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
----------
8 Exhibit B shall be modified after all lien search reports have been received
by the Collateral Agent to include additional permitted Liens reasonably
acceptable to the Collateral Agent based on such additional lien search reports.
152
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/5/97 Specific equipment
assignee of Western Carolina 001519100 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525184 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525185 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525186 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525187 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525188 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525189 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525190 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525191 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/25/97 Specific equipment
assignee of Western Carolina 001525192 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Western Carolina 001533815 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Western Carolina 001533816 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Western Carolina 001533817 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Western Carolina 001533818 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 1/26/98 Specific equipment
assignee of Western Carolina 001542291 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 1/26/98 Specific equipment
assignee of Western Carolina 001542292 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Crown Credit Company 1/30/98 Specific equipment
00154422 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 2/23/98 Specific equipment
assignee of Western Carolina 001552011 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/12/98 Specific equipment
assignee of Western Carolina 1683 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/12/98 Specific equipment
assignee of Western Carolina 1684 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/13/98 Specific equipment
assignee of Western Carolina 2440 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/25/98 Specific equipment
assignee of Western Carolina 6469 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
153
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 4/21/98 Specific equipment
assignee of Western Carolina 19980016288 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 4/21/98 Specific equipment
assignee of Western Carolina 19980016289 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 5/7/98 Specific equipment
assignee of Western Carolina 19980022236 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 5/28/98 Specific equipment
assignee of Western Carolina 19980029576 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Toyota Motor Credit Corp., 6/30/98 Specific equipment
assignee of Xxxxx MHE, Inc. 19980040966 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 7/2/98 Specific equipment
assignee of Western Carolina 19980041576 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 8/13/98 Specific equipment
assignee of Western Carolina 19980055747 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 8/13/98 Specific equipment
assignee of Western Carolina 19980055748 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 9/15/98 Specific equipment
assignee of Western Carolina 19980066486 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/2/98 Specific equipment
assignee of Western Carolina 19980071886 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/2/98 Specific equipment
assignee of Western Carolina 19980071887 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/2/98 Specific equipment
assignee of Western Carolina 19980078255 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/21/98 Specific equipment
assignee of Western Carolina 19980078256 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/15/98 Specific equipment
assignee of Western Carolina 19980086336 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/4/98 Specific equipment
assignee of Western Carolina 19980092128 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/4/98 Specific equipment
assignee of Western Carolina 19980092129 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/16/98 Specific equipment
assignee of Western Carolina 19980096020 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/21/98 Specific equipment
assignee of Western Carolina 19980097322 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
IBM Credit Corporation 3/16/99 Specific equipment
1999025446 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Associates Leasing, Inc. 4/19/99 Specific equipment
19990037688 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Associates Leasing, Inc. 4/19/99 Specific equipment
1999003789 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxx Corporation 1/10/00 Specific equipment
20000003619 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxx Corporation 2/23/00 Specific equipment
20000019191 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
154
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
Duplin County, North Carolina Nissan Motor Acceptance Corp., 4/20/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 00-0000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 9/16/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 00-0000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/17/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 00-0000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Guilford County, North Carolina Xxxxxx Xxxxxxxxxxx 10/2/95 Specific equipment
440858 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxxx Xxxxxxxxxxx 7/.22/96 Specific equipment
451939 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 6/5/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 6/27/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/15/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/15/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/17/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/17/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/17/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/17/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/4/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/4/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
155
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/26/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/29/97 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 1/23/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 1/23/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 2/2/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 2/20/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/10/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/10/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/10/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 3/25/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 4/21/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 5/6/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 5/26/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 6/30/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Toyota Motor Credit Corp., 6/30/98 Specific equipment
assignee of Xxxxx MHE, Inc. 476365 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 8/13/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 8/13/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/21/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
156
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/21/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 11/13/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/7/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/7/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 12/21/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Associates Leasing, Inc. 4/19/99 Specific equipment
485490 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Associates Leasing, Inc. 4/19/99 Specific equipment
485492 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxx Corporation 1/10/00 Specific equipment
493180 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Xxxxx Corporation 2/23/00 Specific equipment
494352 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Banc One Leasing Corporation, 5/15/00 Specific equipment
assignee of XXX Xxxxxxxxxxx 496702 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Harnett County, North Carolina Nissan Motor Acceptance Corp., 10/6/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Nissan Motor Acceptance Corp., 10/6/98 Specific equipment
assignee of Xxxxxxx Xxxxxxxx 000000 described as of the
Forklift, Inc. Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
GOLD XXXXX, INC:
NONE
RASCHEL FASHION INTERKNITTING, INC.:
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
New York Secretary of State Chemical Bank 12/19/90 Machinery and equipment
270463 (Debtor and/or
Cont. 10/18/95 Cobleskill Novelty
Finishing, Inc.0
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 12/19/90 Machinery and equipment
270471 (Debtor and/or American
Cont. 10/18/95 Rehers Zwirne, Limited
Partnership)
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 7/5/95 Specific equipment
135835 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 7/17/95 Specific equipment
143548 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 10/10/95 Specific equipment
203607 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 10/17/95 Specific equipment
209220 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Schoharie County, New York Chemical Bank 12/10/90 Machinery and equipment
900947-7 (Debtor and/or American
Cont. 10/16/95 Rehers Zwirne, Limited
Partnership)
------------------------------------- ---------------------------------- ------------------------- -------------------------
157
------------------------------------- ---------------------------------- ------------------------- -------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 12/20/90 Machinery and equipment
900953-3
Cont. 10/16/95
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 12/20/90 [Exhibit to UCC missing
900955-7 from court file]
Cont. 10/16/95
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 7/3/95 Specific equipment
95-297 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 7/18/95 Specific equipment
95-326 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 10/10/95 Specific equipment
950450-7 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
Chemical Bank 10/16/95 Specific equipment
950459-3 described as of the
Closing Date
------------------------------------- ---------------------------------- ------------------------- -------------------------
CURTAINS AND FABRICS, INC.:
------------------------------------- ---------------------------------- ------------------------ --------------------------
LOCATION UCC - SECURED PARTY UCC UCC COLLATERAL
DATE FILED/
FILE NUMBER
------------------------------------- ---------------------------------- ------------------------ --------------------------
New York Secretary of State Chemical Bank 12/19/90 Machinery and equipment
270465 (Debtor and/or
Cont. 10/18/95 Cobleskill Novelty
Finishing, Inc.)
------------------------------------- ---------------------------------- ------------------------ --------------------------
Chemical Bank 12/19/90 Machinery and equipment
270472 (Debtor and/or American
Cont. 10/18/95 Rehers Zwirne, Limited
Partnership)
------------------------------------- ---------------------------------- ------------------------ --------------------------
GOLD MILL FARMS, INC.:
NONE
GUILFORD AIRMONT, INC.
----------------------------------------- ----------------------------------- ----------------------- ----------------------
LOCATION UCC UCC UCC
SECURED PARTY DATE FILED/ COLLATERAL
FILE NUMBER
----------------------------------------- ----------------------------------- ----------------------- ----------------------
North Carolina Secretary of State GMAC Commercial Credit LLC, 1/25/1990 Accounts, contract
assignee of BNY Financial 0643184 rights, notes,
Corporation, assignee of Cont. 8/30/1994 general intangibles
BancBoston Financial Co. Cont. 8/31/1999
----------------------------------------- ----------------------------------- ----------------------- ----------------------
Guilford County, North Carolina GMAC Commercial Credit LLC, 1/24/1990 Accounts, contract
assignee of BNY Financial 357453 rights, notes,
Corporation, assignee of Cont. 8/29/1994 general intangibles
BancBoston Financial Co. Cont. 9/2/1999
----------------------------------------- ----------------------------------- ----------------------- ----------------------
ADVISORY RESEARCH SERVICES, INC.
NONE
GMI COMPUTER SALES, INC.
NONE
000
XXXXXXX XXXXXXXXXX XX XXXXX XXXXXXXX, INC.
NONE
XXXXXXXX XXXXX (MICHIGAN), INC.
NONE
XXXXXXX LACES, LTD.
----------------------------------------- ----------------------------------- ----------------------- ----------------------
LOCATION UCC UCC UCC
SECURED PARTY DATE FILED/ COLLATERAL
FILE NUMBER
----------------------------------------- ----------------------------------- ----------------------- ----------------------
New York Secretary of State Chemical Bank 12/19/1990 Machinery and
270461 equipment and all
Cont. 10/18/1995 attachments and
proceeds
----------------------------------------- ----------------------------------- ----------------------- ----------------------
Key Bank of New York 10/15/1995 Equipment, accounts,
217384 contract rights,
general intangibles,
documents,
instruments and
chattel paper
----------------------------------------- ----------------------------------- ----------------------- ----------------------
New York County, New York Key Bank of New York 12/6/1995 Equipment, accounts,
95PN51655 contract rights,
general intangibles,
documents,
instruments and
chattel paper
GFD SERVICES, INC.
NONE
GUILFORD INTERNATIONAL, INC.
----------------------------------------- ----------------------------------- ----------------------- ----------------------
LOCATION UCC UCC UCC
SECURED PARTY DATE FILED/ COLLATERAL
FILE NUMBER
----------------------------------------- ----------------------------------- ----------------------- ----------------------
U.S. Virgin Islands [TO FOLLOW-LIEN SEARCH REPORT NOT
YET RECEIVED]
----------------------------------------- ----------------------------------- ----------------------- ----------------------
----------------------------------------- ----------------------------------- ----------------------- ----------------------
GFD FABRICS, INC.
----------------------------------------- ----------------------------------- ----------------------- ----------------------
LOCATION UCC UCC UCC
SECURED PARTY DATE FILED/ COLLATERAL
FILE NUMBER
----------------------------------------- ----------------------------------- ----------------------- ----------------------
North Carolina Secretary of State9 The CIT Group/Commercial 9/28/1995 Accounts,
Services, Inc. 1267510 instruments,
documents, chattel
paper, general
intangibles and
proceeds
TWIN RIVERS TEXTILE PRINTING AND FINISHING
NONE
----------
9 There was no listing for GFD Fabrics, however, there was a similar listing for
GFD, division of Goldtex, Inc.
159
EXHIBIT P
---------
AMENDED AND RESTATED PATENT COLLATERAL ASSIGNMENT
IT IS HEREBY AGREED as of November 6, 2000 among XXXXXXXX XXXXX, INC., a
Delaware corporation (the "Company"), GFD FABRICS, INC., a North Carolina
corporation, both with their executive offices at 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000 (collectively, the "Assignors" and each
individually, an "Assignor", which term shall refer to any Significant Domestic
Subsidiary (as defined in the Credit Agreement described below) which becomes an
Assignor pursuant to Paragraph 12 hereof and Section 5.21 of the Credit
Agreement) and WACHOVIA BANK, N.A., a national banking association (in its
individual capacity, "Wachovia") organized under the laws of the United States
of America, as collateral agent (in such capacity, together with its successors
and assigns, "Collateral Agent") for itself, and for (i) The Prudential
Insurance Company of America, The Variable Annuity Life Insurance Company,
American General Annuity Insurance Company, Massachusetts Mutual Life Insurance
Company and C.M. Life Insurance Company (collectively, together with any other
holders of Senior Notes, as defined in and from time to time pursuant to the
Note Purchase Agreements, as defined in the Intercreditor Agreement described
below, the "Senior Note Holders") and (ii) Wachovia, First Union National Bank,
Bank One, NA and Branch Banking and Trust Company (collectively, together with
any other Banks parties from time to time to the Credit Agreement dated as of
May 26, 2000, as amended by First Amendment to Credit Agreement dated as of even
date herewith (as so amended, and as it may hereafter be amended or supplemented
from time to time, the "Credit Agreement") among the Company, Wachovia, as
Administrative Agent, First Union National Bank, as Syndication Agent, Bank One,
NA, as Documentation Agent, and the Banks listed therein, the "Banks"; the
Senior Note Holders and the Banks being collectively referred to, together with
any Cash Management Services Provider (as defined in the Intercreditor
Agreement), with respect to Cash Management Services Obligations (as defined in
the Intercreditor Agreement), and any Bank providing hedge arrangements giving
rise to Hedge Obligations or Bank Letter of Credit Obligations (as those terms
are defined in the Intercreditor Agreement) and Wachovia Bank, N.A., with
respect to the A-Advanced Guaranty Obligations (as defined in the Intercreditor
Agreement), as "Secured Parties"), in connection with that certain Intercreditor
Agreement by and among the Company, the Collateral Agent and the Secured Parties
dated as of May 26, 2000 (as amended or otherwise modified from time to time,
the "Intercreditor Agreement") as follows:
1. As collateral security for, and to secure the prompt payment in full of
the Secured Obligations (as defined in the Intercreditor Agreement), each of the
Assignors hereby grants, assigns, and conveys to the Collateral Agent, for the
ratable benefit of the Secured Parties, the entire right, title, and interest in
and to the respective patent applications and patents listed in Exhibit "A"
attached hereto, including, without limitation, all proceeds thereof (such as,
by way of example, license royalties and proceeds of infringement suits), the
right to xxx for past, present, and future infringements, all rights
corresponding thereto throughout the world, and all reissues, divisions,
continuations, renewals, extensions, and continuations-in-part thereof
(collectively, the "Patents").
2. Each of the Assignors, jointly and severally, covenants and warrants that:
160
(a) The Patents (other than patent applications) are
subsisting and have not been adjudged invalid or unenforceable, in
whole or in part;
(b) Each of the Patents (other than patent applications) is
valid and enforceable;
(c) Except as set forth on Schedule 2(c), each of the
Assignors is the sole and exclusive owner of the entire and
unencumbered right, title, and interest in and to each of the
respective Patents as set forth on Exhibit "A", free and clear of any
liens, charges, and encumbrances, including, without limitation,
licenses, shop rights, and covenants by any Assignor not to xxx third
persons; and
(d) Each Assignor has the unqualified right to enter into this
Agreement and perform its terms.
3. Each Assignor agrees that, until all of the Secured Obligations shall have
been satisfied in full, it will not enter into any agreement (for example, a
license agreement) which is inconsistent with such Assignor's obligations under
this Agreement without the Collateral Agent's prior written consent, except as
permitted under the Credit Agreement.
4. If, before the Secured Obligations shall have been satisfied in full, any
Assignor shall obtain rights to any new patentable inventions, or become
entitled to the benefit of any patent application or patent for any reissue,
division, continuation, renewal, extension, or continuation-in-part of any
patent or any improvement of any Patent, the provisions of Paragraph 1 shall
automatically apply thereto and such Assignor shall give to the Collateral Agent
prompt notice thereof in writing.
5. Each Assignor authorizes the Collateral Agent to modify this Agreement by
amending Exhibit "A" to include any future patents and patent applications which
are Patents under Paragraph 4 or Paragraph 12 hereof.
6. Unless and until there shall have occurred and be continuing an Event of
Default (as defined in the Intercreditor Agreement), the Collateral Agent hereby
grants to each Assignor the exclusive, nontransferable right and license to
make, have made, use, and sell the inventions disclosed and claimed in the
Patents and to collect and use the proceeds thereof and exercise all rights
assigned hereby for such Assignor's and any Subsidiary's (as defined in the
Credit Agreement) own benefit and account and for none other. Except as
permitted under the Credit Agreement, each Assignor agrees not to sell or assign
its interest in, or grant any sublicense under, the license granted to such
Assignor in this Paragraph 6, without the prior written consent of the
Collateral Agent.
7. If any Event of Default shall have occurred, each Assignor's license under
the Patents as set forth in Paragraph 6 shall terminate upon written notice from
the Collateral Agent, and the Collateral Agent shall have, in addition to all
other rights and remedies given it by this Agreement, those allowed by law and
the rights and remedies of a secured party under the Uniform Commercial Code as
enacted in any jurisdiction in which the Patents may be located and, without
limiting the generality of the foregoing, the Collateral Agent may immediately,
without demand of performance and without other notice (except as set forth next
below) or demand whatsoever to Assignors, all of which are hereby expressly
waived, and without advertisement, sell at public or private sale or otherwise
161
realize upon, in the State of Georgia, or elsewhere, the whole or from time to
time any part of the Patents, or interest which any of the Assignors may have
therein, and after deducting from the proceeds of sale or other disposition of
the Patents all expenses (including all reasonable expenses for broker's fees
and legal services), shall apply the residue of such proceeds toward the payment
of the Secured Obligations pursuant to the Intercreditor Agreement. Any
remainder of the proceeds after payment in full of the Secured Obligations
pursuant to the Intercreditor Agreement shall be paid over to the Company.
Notice of any sale or other disposition of the Patents shall be given to the
applicable Assignor at least ten (10) days before the time of any intended
public or private sale or other disposition of the Patents is to be made, which
each Assignor hereby agrees shall be reasonable notice of such sale or other
disposition. At any such sale or other disposition, the Collateral Agent may, to
the extent permissible under applicable law, purchase the whole or any part of
the Patents sold, free from any right of redemption on the part of the
Assignors, which right is hereby waived and released.
8. At such time as the Company shall completely satisfy all of the Secured
Obligations in accordance with the Intercreditor Agreement, the Collateral Agent
shall execute and deliver to the applicable Assignor all deeds, assignments, and
other instruments as may be necessary or proper to revest in such Assignor full
title to the applicable Patents, subject to any disposition thereof which may
have been made by the Collateral Agent pursuant hereto.
9. Any and all fees, costs, and expenses, of whatever kind or nature,
including the reasonable attorneys' fees and legal expenses, incurred by the
Collateral Agent in connection with the preparation of this Agreement and all
other documents relating hereto and the consummation of this transaction, the
filing or recording of any documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes, counsel
fees, maintenance fees, encumbrances, or otherwise protecting, maintaining,
preserving the Patents, or in defending or prosecuting any actions or
proceedings arising out of or related to the Patents after the license granted
pursuant to Paragraph 6 hereof is terminated pursuant to Paragraph 7, shall be
borne and paid by the Company on demand by the Collateral Agent and until so
paid shall be added to the principal amount of the Secured Obligations and shall
bear interest at the Default Rate (as defined in the Credit Agreement).
10. Each Assignor shall have the duty, through counsel acceptable to the
Collateral Agent in its reasonable discretion, to prosecute diligently any
applicable patent application of the Patents pending as of the date of this
Agreement or thereafter until the Secured Obligations shall have been paid in
full, to make application on the respective Assignor's unpatented but patentable
inventions and to preserve and maintain all applicable rights in patent
applications and patents of the Patents in accordance with customary business
practice and industry standards, in each case, to the extent reasonably deemed
prudent by the respective Assignor. Any expenses incurred in connection with
such an application shall be borne by the respective Assignor.
11. After the license granted pursuant to Paragraph 6 hereof is terminated
pursuant to Paragraph 7, the Collateral Agent shall have the rights but shall in
no way be obligated to bring suit in its own name to enforce the Patents and any
license hereunder, in which event the relevant Assignor shall at the request of
the Collateral Agent do any and all lawful acts and execute any and all proper
documents required by the Collateral Agent in aid of such enforcement, and the
Company shall promptly, upon demand, reimburse and indemnify the Collateral
162
Agent for all reasonable costs and expenses incurred by the Collateral Agent in
the exercise of its rights under this Paragraph 11.
12. Section 5.21 of the Credit Agreement provides that Significant Domestic
Subsidiaries which are not Guarantors (as defined in the Credit Agreement) must
become Guarantors by, among other things, executing and delivering to the
Collateral Agent a counterpart of this Agreement; provided, however, that any
Guarantor that does not own Patents shall not be required to execute a
counterpart to this Agreement. Any Guarantor which is not a party to this
Agreement that obtains Patents subsequent to the date hereof shall likewise be
required to execute and deliver to the Collateral Agent a counterpart of this
Agreement. Any Guarantor which executes and delivers to the Collateral Agent a
counterpart of this Agreement shall be an Assignor for all purposes hereunder.
13. No course of dealing between any Assignor and the Collateral Agent, nor
any failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent, any right, power, or privilege hereunder or under the Credit
Agreement or the Intercreditor Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, power, or privilege hereunder
or thereunder preclude any other or future exercise thereof or the exercise of
any other right, power, or privilege.
14. All of the Collateral Agent's rights and remedies with respect to the
Patents, whether established hereby or by the Credit Agreement or the
Intercreditor Agreement, or by any other agreements or by law shall be
cumulative and may be exercised singularly or concurrently.
15. The provisions of this Agreement are severable, and if any clause or
provision shall be held invalid and unenforceable, in whole or in part, in any
jurisdiction, then such invalidity or unenforceability shall affect only such
clause or provision, or part hereof, in such jurisdiction and shall not in any
manner affect such clause or provision in any other jurisdiction, or any other
clause or provision of this Agreement in any jurisdiction.
16. This Agreement is subject to modification only by a writing signed by the
parties, except as provided in Paragraph 5.
17. Upon indefeasible payment in full of all of the Bank Obligations (as
defined in the Intercreditor Agreement), and termination of all Commitments
under the Credit Agreement, this Agreement shall terminate. Upon termination of
this Agreement in accordance with its terms the Collateral Agent agrees to take
such actions as the Company may reasonably request, and at the sole cost and
expense of the Company, to evidence the termination of this Agreement,
including, without limitation, the filing of any releases or any termination
statements under the Uniform Commercial Code.
18. The benefits and burdens of this Agreement shall inure to the benefit of
and be binding upon the respective successors and the permitted assigns of the
parties, except that none of the Assignors shall be permitted to assign this
Agreement or any interest herein or in the Patents, or any part thereof.
19. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
20. Except as otherwise provided herein, any notice required hereunder shall
be given in accordance with the applicable terms of the Credit Agreement.
163
[Signatures Contained on the Next Page]
164
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement and have caused their corporate seals to be affixed hereto on the date
first above written.
WACHOVIA BANK, N.A.,
as Collateral Agent
By:
----------------------------------
Title:
ATTEST: XXXXXXXX XXXXX, INC.
By: By:
--------------------------- ----------------------------------
Secretary Title:
(Corporate Seal)
ATTEST: GFD FABRICS, INC.
By: By:
--------------------------- ----------------------------------
Secretary Title:
(Corporate Seal)
165
STATE OF )
---------------------------
)
COUNTY OF )
--------------------------
BEFORE ME, the undersigned Notary Public, on this day personally appeared
_________________________________ of Xxxxxxxx Xxxxx, Inc., a Delaware
corporation, and _________________________________ of GFD Fabrics, Inc., a North
Carolina corporation, proved to me to be the persons and officers whose names
are subscribed to the foregoing instrument and acknowledged to me that the same
was the act of said corporations, and that each executed the same as the act of
said corporation for the purpose and consideration therein expressed and in the
capacity therein stated:
GIVEN UNDER MY HAND AND OFFICIAL SEAL this ____ day of ____________, 2000.
----------------------------------
Notary Public in and for the State
of _______________
(SEAL)
My Commission Expires:
------------------
166
