SECOND AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
SECOND AMENDMENT, dated as of March 22, 2002 (the "Amendment"), to the
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REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of February 20, 2002, among
XXXXX & LORD, INC., a Delaware corporation (the "Borrower"), a debtor and
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debtor-in-possession under Chapter 11 of the Bankruptcy Code, the Guarantors
named therein (the "Guarantors"), FIRST UNION NATIONAL BANK, a national banking
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corporation ("FUNB"), each of the other financial institutions from time to time
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party thereto (together with FUNB, the "Banks") and FIRST UNION NATIONAL BANK,
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as Agent for the Banks (in such capacity, the "Agent"):
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W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent are
parties to that certain Revolving Credit and Guaranty Agreement, dated as of
February 20, 2002 (as amended by that certain First Amendment, dated as of March
13, 2002 and as the same may be further amended, modified or supplemented from
time to time, the "Credit Agreement"); and
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WHEREAS, Wachovia Securities, Inc. acted as book manager and lead
arranger under the Credit Agreement; and
WHEREAS, certain provisions of the Credit Agreement shall be amended,
as set forth herein; and
WHEREAS, Section 10.03(b) of the Credit Agreement provides that each
Bank may assign to one or more Banks or Eligible Assignees all or a portion of
its interests, rights and obligations under the Credit Agreement (including,
without limitation, all or a portion of its Commitment and the same portion of
the related Loans at the time owing to it) by executing and delivering with such
Bank or Eligible Assignee an Assignment and Acceptance in substantially the form
of Exhibit D to the Credit Agreement (a copy of which is annexed hereto as
Exhibit A); and
WHEREAS, FUNB wishes to assign to each of the financial institutions
(other than FUNB) that is named on Annex A hereto (such financial institutions
other than FUNB, collectively the "New Banks"), and each of the New Banks wishes
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to assume, a pro rata portion of FUNB's interests, rights and obligations under
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the Credit Agreement; and
WHEREAS, the Borrower, the Guarantors, FUNB, the New Banks and the
Agent have determined that the execution and delivery of this Amendment to
effectuate a reallocation of the Total Commitment among FUNB and the New Banks
will be more expeditious and administratively efficient than the execution and
delivery of separate Assignment and Acceptances between FUNB and each of the New
Banks;
WHEREAS, upon the occurrence of the Effective Date (as hereinafter
defined) of this Amendment, each of the New Banks shall become a party to the
Credit Agreement as a Bank and shall have the rights and obligations of a Bank
thereunder, and the respective Commitment of FUNB and each of the New Banks
under the Credit Agreement shall be in the amount set forth opposite its name on
Annex A hereto, as the same may be reduced from time to time pursuant to Section
2.10 of the Credit Agreement; and
WHEREAS, upon and after the Effective Date, General Electric Capital
Corporation, The CIT/Group Commercial Services, LaSalle Business Credit, Inc.
and Foothill Capital Corporation will each act as documentation agent.
NOW, THEREFORE, it is agreed:
1. As used herein all terms that are defined in the Credit
Agreement shall have the same meanings herein.
2. Section 10.10(a) of the Credit Agreement is hereby amended by
(A) inserting the following text immediately following the phrase
"Super-majority Banks" appearing in clause (1) of the proviso therein:
"increase the percentage advance rates set
forth in the definition of the term "Borrowing
Base" or"
; and (B) deleting the word "or" at the end of clause (3)(iii) appearing in the
proviso therein, inserting in lieu thereof a "," and inserting the following new
clause (v) at the end of clause (3)(iv) of the proviso therein:
"or (v) increase the Total Commitment."
3. Annex A to the Credit Agreement is hereby replaced in its
entirety by Annex A hereto.
4. The signature pages of the Credit Agreement are hereby amended
to conform to the signature pages hereto.
5. By its execution and delivery hereof, FUNB shall be deemed to
have made each of the statements set forth in clauses (i) and (ii) of paragraph
2 of the Assignment and Acceptance as if such statements were fully set forth
herein at length.
6. By its execution and delivery hereof, each of the New Banks
shall be deemed to have made each of the statements set forth in clauses (i),
(ii), (iii), (iv) and (v) of paragraph 3 of the Assignment and Acceptance as if
such statements were fully set forth herein at length.
7. On the Effective Date, (i) each New Bank will pay to the Agent
(for the account of FUNB) such amount as represents such New Bank's pro rata
portion of the aggregate principal amount of the Loans, if any, that are
outstanding on the
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Effective Date and such New Bank's pro rata portion of the aggregate amount of
the then unreimbursed drafts, if any, that were theretofore drawn under Letters
of Credit, and (ii) the Agent shall pay to each of the New Banks such fees as
have been previously agreed to between the Agent and such New Bank. Promptly
following the occurrence of the Effective Date, and in accordance with Section
10.03(e) of the Credit Agreement, the Agent shall record in the Register the
names and addresses of each New Bank and the principal amount equal to such
Bank's Commitment reflected on Annex A hereto.
8. Nothing in this paragraph shall increase the amount of fees
the Borrower is obligated to pay pursuant to the Credit Agreement. By its
execution and delivery hereof, each of the New Banks (i) agrees that any
interest, Commitment Fees and Letter of Credit Fees (pursuant to Sections 2.08,
2.20 and 2.21 of the Credit Agreement) that accrued prior to the Effective Date
shall not be payable to such New Bank and authorizes and directs the Agent to
deduct such amounts from any interest, Commitment Fees or Letter of Credit Fees
paid after the date hereof and to pay such amounts to FUNB (it being understood
that interest, Commitment Fees and Letter of Credit Fees respecting the
Commitment of FUNB and each New Bank which accrue on or after the Effective Date
shall be payable to such Bank in accordance with its Commitment), (ii)
acknowledges that if such New Bank is organized under the laws of a jurisdiction
outside of the United States, such New Bank has heretofore furnished to the
Agent the forms prescribed by the Internal Revenue Service of the United States
certifying as to such New Bank's exemption from United States withholding taxes
with respect to any payments to be made to such New Bank under the Credit
Agreement (or such other documents as are necessary to indicate that all such
payments are subject to such tax at a rate reduced by an applicable tax treaty)
and (iii) acknowledges that such New Bank has heretofore supplied to the Agent
the information requested on the administrative questionnaire which is attached
to the Assignment and Acceptance as Exhibit A.
9. This Amendment shall not become effective (the "Effective
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Date") until (i) the date on which this Amendment shall have been executed by
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the Borrower, the Guarantors, FUNB, the New Banks and the Agent, and the Agent
shall have received evidence satisfactory to it of such execution and (ii) the
payments provided for in clauses (i) and (ii) of paragraph 7 hereof shall have
been made.
10. Except to the extent hereby amended, the Credit Agreement and
each of the Loan Documents remain in full force and effect and are hereby
ratified and affirmed.
11. The Borrower agrees that its obligations set forth in Section
10.05 of the Credit Agreement shall extend to the preparation, execution and
delivery of this Amendment, including the reasonable fees and disbursements of
special counsel to the Agent.
12. This Amendment shall be limited precisely as written and shall
not be deemed (a) to be a consent granted pursuant to, or a waiver or
modification of, any other term or condition of the Credit Agreement or any of
the instruments or agreements
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referred to therein or (b) to prejudice any right or rights which the Agent or
the Banks may now have or have in the future under or in connection with the
Credit Agreement or any of the instruments or agreements referred to therein.
Whenever the Credit Agreement is referred to in the Credit Agreement or any of
the instruments, agreements or other documents or papers executed or delivered
in connection therewith, such reference shall be deemed to mean the Credit
Agreement as modified by this Amendment.
13. This Amendment may be executed in any number of counterparts
and by the 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.
14. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
BORROWER:
XXXXX & LORD, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President, Secretary and Treasurer
GUARANTORS:
XXXXX & LORD INDUSTRIES, INC.
G&L SERVICE COMPANY,
NORTH AMERICA, INC.
SWIFT TEXTILES, INC.
SWIFT DENIM SERVICES, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
Title: Vice President, Secretary and Treasurer
XXXXX & LORD PROPERTIES, INC.
SWIFT DENIM PROPERTIES, INC.
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Manager
GREENSBORO TEXTILE
ADMINISTRATION LLC
BRIGHTON WEAVING LLC
FLINT SPINNING LLC
SOCIETY HILL FINISHING LLC
XXXXXXXX WEAVING LLC
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Manager
FIRST UNION NATIONAL BANK
Individually and as Agent
By: /s/ XXXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxxx X. Xxxxxxxx
Title: Vice President
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THE CIT/GROUP COMMERCIAL SERVICES,
INC.
By: /s/ XXXXXXX X. XXXXXXX
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Duly Authorized Signatory
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FOOTHILL CAPITAL CORPORATION
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Vice President
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LASALLE BUSINESS CREDIT, INC.
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: First Vice President/Counsel
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ANNEX A
Commitment Commitment
Bank Amount Percentage
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First Union National Bank $26,400,000.00 26.4%
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
The CIT/Group Commercial Services $18,400,000.00 18.4%
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx Xxx
General Electric Capital Corporation $18,400,000.00 18.4%
00 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx
00000-0000
Attn: Xxxxxx Xxxxxxxxxx
Foothill Capital Corporation $18,400,000.00 18.4%
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Eunnie Xxx
XxXxxxx Business Credit, Inc. $18,400,000.00 18.4%
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxx
Total $100,000,000.00 100%
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