EXHIBIT 10.1
FOURTH AMENDMENT
OF
SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT
This Fourth Amendment, dated effective as of August 1, 2003, by and
among CROWN CRAFTS, INC. (the "COMPANY"), and BANC OF AMERICA STRATEGIC
SOLUTIONS, INC. (ASSIGNEE OF BANK OF AMERICA, N.A.), THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA, and WACHOVIA BANK, NATIONAL ASSOCIATION (SUCCESSOR BY MERGER
TO WACHOVIA BANK, N.A.) (collectively, the "PURCHASERS").
WHEREAS, the parties hereto have executed and delivered that certain
Subordinated Note and Warrant Purchase Agreement dated as of July 23, 2001, as
amended by First Amendment of Subordinated Note and Warrant Purchase Agreement
dated as of September 28, 2001, Second Amendment of Subordinated Note and
Warrant Purchase Agreement dated as of February 10, 2003 and Global Amendment
Agreement dated as of April 29, 2003 (as so amended, the "PURCHASE AGREEMENT");
WHEREAS, the Company has requested a modification of, among other
things, the covenants under the Purchase Agreement;
WHEREAS, the Purchasers are willing to enter into this Amendment
subject to the satisfaction of conditions and terms set forth herein;
WHEREAS, capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Purchase Agreement; and
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO PURCHASE AGREEMENT.
lA. SECTION 1.01 OF THE PURCHASE AGREEMENT. Section 1.01 of the
Purchase Agreement is amended by deleting the definitions of "Foreign Stock
Pledge Agreement" and "Obligations" and substituting the following therefor
"Foreign Stock Pledge Agreement" shall mean, collectively, (i)
the Foreign Stock Pledge Agreement, substantially in the form of
Exhibit E, executed by the Company (and, pursuant to Section 7.07, any
other Obligor creating or acquiring a Direct Foreign Subsidiary), and
(ii) and if requested by the Required Holders, 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 Company and each other Obligor
which owns any Direct Foreign Subsidiaries, pledging to the agent
pursuant thereto, for the ratable benefit of the Required Holders
subject to the Lien of the Senior Lenders, 65% of the capital stock of
all Direct Foreign Subsidiaries, to secure the payment of all of the
Obligations, as any of the foregoing may be amended or supplemented
from time to time.
"Obligations" shall mean all Debts, indebtedness, liabilities,
covenants, duties and other obligations of the Obligors: (i) to the
Collateral Agent, any of the Purchasers, or any of their respective
successors, permitted transferees or permitted assigns, included or
arising from time to time under this Agreement or any other Transaction
Document, whether evidenced by any note or other writing, whether
arising from the extension of credit, opening of a letter of credit,
acceptance or loan guaranty, including, without limitation, principal,
interest, Yield-Maintenance Amount, fees, costs, attorney's fees and
indemnification amounts and any and all extensions or renewals thereof
in whole or in part, direct or indirect, absolute or contingent, due or
to become due, primary or secondary, or joint or several; (ii) to any
Purchaser or Affiliate thereof arising under any Interest Rate
Protection Agreement with any such Purchaser or Affiliate, including,
without limitation, any premature termination or breakage or other
costs with respect thereto; (iii) to any Purchaser and its Affiliates,
arising in connection with any banking or related transactions,
services or functions provided to the Company in connection with the
conduct of the Company's business (excluding extensions of credit
giving rise to any Debt for money borrowed not related to this
Agreement or any of the other Transaction Documents).
lB. SECTION 8.01(a) OF THE PURCHASE AGREEMENT. Section 8.01(a) of
the Purchase Agreement is amended by deleting it in its entirety and
substituting the following therefor:
(a) Minimum EBITDA. Consolidated EBITDA shall not be less
than, for each Fiscal Quarter set forth below and the 3 immediately
preceding Fiscal Quarters, the amount set forth below corresponding to
such Fiscal Quarter:
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FISCAL QUARTER ENDING MINIMUM EBITDA
- ------------------------------------------------------------------
December 29, 2002 through March 28, 2004 $6,885,000
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June 27, 2004 through March 27, 2005 $7,000,000
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June 26, 2005 through April 2, 2006 $7,200,000
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July 2, 2006 and each Fiscal Quarter thereafter $7,400,000
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lC. SECTION 2.04 OF THE PURCHASE AGREEMENT. Section 2.04 of the
Purchase Agreement is amended by deleting it in its entirety and substituting
the following therefor:
SECTION 2.04. INTEREST ON THE NOTE.
(i) RATE AND PAYMENT. Interest shall accrue at a rate per
annum equal to 10% payable in immediately available
funds and 1.65% payable by delivery on July 31 of
each year of a promissory note in substantially the
form of Exhibit A-2 hereto (a "PIK NOTE"). Interest
at the rate of 10% shall be payable (i) on the last
Business Day of each calendar month, commencing on
July 31, 2001 and continuing thereafter until the
Notes have been paid in full, (ii) upon any
prepayment of any Note to the date of prepayment on
the amount prepaid, and (iii) at maturity of the
Note, whether by acceleration or otherwise.
Notwithstanding anything else contained in this
Section 2.04(a), the Company shall make payments with
respect to the Notes in immediately available funds
at such times and in such minimum amounts as are
necessary for the Notes not to have "significant
original issue discount" as that term is defined in
Section 163(i) of the Code. For this purpose,
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the issue price of the Notes shall be computed by
assuming that the fair market value of the Warrant is
as set forth on the Purchaser Schedule hereto.
(ii) DEFAULT RATE. After maturity, whether by acceleration
or otherwise, interest shall accrue on the Notes at
the Default Rate set forth in Section 3.05 below, all
of which shall be paid in immediately available
funds.
lD. SECTION 8.01(b) OF THE PURCHASE AGREEMENT. Section 8.01(b) of
the Purchase Agreement is amended by deleting it in its entirety and
substituting the following therefor:
(b) Debt/EBITDA Ratio. The Debt/EBITDA Ratio will not
exceed, at the end of each Fiscal Quarter set forth below, calculated
as to Debt as of such Fiscal Quarter and calculated as to Consolidated
EBITDA for such Fiscal Quarter and the 3 immediately preceding Fiscal
Quarters, the ratio set forth below corresponding to such Fiscal
Quarter :
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FISCAL QUARTER ENDING MAXIMUM DEBT/EBITDA RATIO
- -------------------------------------------------------------------------
December 29, 2002 through March 28, 2004 4.75 to 1.00
- -------------------------------------------------------------------------
June 27, 2004 through September 26, 2004 4.25 to 1.00
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December 26, 2004 through March 27, 2005 4.00 to 1.00
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June 26, 2005 through September 25, 2005 3.75 to 1.00
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December 25, 2005 through July 2, 2006 3.50 to 1.00
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October 1, 2006 through December 31, 2006 3.25 to 1.00
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April 1, 2007 and each Fiscal Quarter thereafter 3.00 to 1.00
- -------------------------------------------------------------------------
2. CONDITIONS OF EFFECTIVENESS. This Amendment shall be effective
as of August 1, 2003 (the "EFFECTIVE DATE"), upon the satisfaction of
the following conditions:
(a) the Purchasers shall have received executed originals of this
Amendment and the Fifth Amendment, satisfactory to the
Required Holders in all respects, to the Credit Agreement,
dated as of July 23, 2001, among the Company, Churchill
Weavers, Inc., Hamco, Inc. and Crown Crafts Infant Products,
Inc., as borrowers, Wachovia Bank, National Association
(successor by merger to Wachovia Bank, N.A.), as agent, and
Wachovia Bank, National Association (successor by merger to
Wachovia Bank, N.A.), Banc of America Strategic Solutions,
Inc. (assignee of Bank of America, N.A.) and The Prudential
Insurance Company of America, as
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lenders, each agreement being dated the Effective Date, in
form and substance satisfactory to the Purchasers.
(b) The Company shall have paid all costs and expenses (including
attorney's fees and expenses) incurred by any Purchaser
through the Effective Date, pursuant to statements submitted
to the Company (which statements may include estimates of time
and expenses to be incurred on and after the dates of posting
of actual time and expenses set forth therein, which estimated
amounts shall be subject to subsequent adjustment to reflect
actual time and expenses subsequently posted).
(c) The representations and warranties contained herein shall be
true on and as of the date hereof; there shall exist on the
date hereof, after giving effect to this Amendment, no Event
of Default or Default; there shall exist no material adverse
change in the business, properties, prospects, operations or
condition, financial or otherwise, of the Company or its
Subsidiaries since March 31, 2003 other than as reported by
the Company in its quarterly reports on Form 10-Q filed with
the Securities and Exchange Commission for quarterly periods
subsequent to March 31, 2003; and the Company shall have
delivered to the Purchasers a certificate signed by a senior
officer of the Company to such effect.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) The Company hereby restates and renews each of the
representations and warranties made by it in the Purchase
Agreement, as amended hereby, as though made on and as of the
date hereof, with each reference therein to "this Agreement",
"hereof', "hereunder", "thereof', "thereunder" and words of
like import being deemed to be a reference to the Purchase
Agreement as amended hereby.
(b) The Company further represents and warrants as follows:
(i) The execution, delivery and performance by the
Company of this Amendment are within its corporate
powers, have been duly authorized by all necessary
corporate action and do not contravene (A) its
charter or by-laws, (B) law or (C) any legal or
contractual restriction binding on or affecting the
Company; and such execution, delivery and performance
do not or will not result in or require the creation
of any Lien upon or with respect to any of the
properties of the Company or any of its Subsidiaries.
(ii) No governmental approval is required for the due
execution, delivery and performance by the Company of
this Amendment, except for such governmental
approvals as have been duly obtained or made and
which are in full force and effect on the date hereof
and not subject to appeal.
(iii) Each of this Amendment and the Notes constitutes the
legal, valid and binding obligations of the Company
enforceable against the Company in accordance with
their respective terms.
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(iv) There are no pending or threatened actions, suits or
proceedings affecting the Company or any of its
Subsidiaries or the properties of the Company or any
of its Subsidiaries before any court, governmental
agency or arbitrator, that may, if adversely
determined, materially adversely effect the financial
condition, properties, business, operations or
prospects of the Company and it Subsidiaries,
considered as a whole, or affect the legality,
validity or enforceability of the Purchase Agreement,
as amended by this Amendment.
4. MISCELLANEOUS.
4A. REFERENCE TO AND EFFECT ON THE PURCHASE AGREEMENT. (a) Upon
the effectiveness of this Amendment, on and after the date hereof each reference
in the Purchase Agreement to "this Agreement", "hereunder", "hereof' or words of
like import referring to the Purchase Agreement, and each reference in any other
document to "the Purchase Agreement", "thereunder", "thereof' or words of like
import referring to the Purchase Agreement, shall mean and be a reference to the
Purchase Agreement, as amended hereby.
(b) Except as specifically amended above, the Purchase Agreement,
and all other related documents, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any holder of a Note under the Purchase Agreement or
the Notes, nor constitute a waiver of any provision of any of the foregoing.
4B. COSTS AND EXPENSES. The Company agrees to pay on demand all
costs and expenses incurred by the Purchasers or any other holder of a Note in
connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel. The Company further agrees to pay on demand all costs and expenses, if
any (including, without limitation, reasonable counsel fees and expenses of
counsel), incurred by the Purchasers or any other any holder of a Note in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment, including, without limitation, counsel fees and
expenses in connection with the enforcement of rights under this paragraph 4B.
4C. EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
4D. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
4E. NO DEFAULT OR CLAIMS. To induce the Purchasers to enter into
this Amendment, the Company 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, (ii) no right of offset,
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recoupment, defense, counterclaim, claim or objection in favor of the Company
arising out of or with respect to any of the Notes or other obligations of the
Company owed to any holder of a Note, and (iii) each Purchaser has acted in good
faith and has conducted its relationships with the Company in a commercially
reasonable manner in connection with the negotiations, execution and delivery of
this Amendment and in all respects in connection with the Purchase Agreement,
the Company hereby waiving and releasing any such claims to the contrary that
may exist as of the date of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CROWN CRAFTS, INC.
By /s/ E. RANDALL CHESTNUT
---------------------------------
Name: E. Randall Chestnut
Title: President and CEO
BANC OF AMERICA STRATEGIC
SOLUTIONS, INC. (ASSIGNEE OF BANK OF
AMERICA, N.A.)
By /s/ JOHN F. REGISTER
---------------------------------
Name: John F. Register
Title: Principal
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By /s/ PAUL G. PRICE
---------------------------------
Name: Paul G. Price
Title: Vice President
WACHOVIA BANK, NATIONAL
ASSOCIATION (SUCCESSOR BY MERGER TO
WACHOVIA BANK, N.A.)
By /s/ MONICA H. COLE
--------------------------------
Name: Monica H. Cole
Title: Vice President
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