AMENDMENT NO. 4
THIS AMENDMENT NO. 4 (this "Amendment"), dated as of December 22, 1998,
is by and among XXXXX & LORD, INC., a Delaware corporation (the "Borrower"),
XXXXX & LORD INDUSTRIES, INC., a Delaware corporation ("G&L Industries"), the
other Domestic Subsidiaries of the Borrower (each a "Guarantor", and together
with G&L Industries, the "Guarantors"), the Lenders identified on the signature
pages hereto (the "Lenders") and FIRST UNION NATIONAL BANK, as Agent for the
Lenders (the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement dated as of January 29, 1998,
as amended from time to time prior to the date hereof (the "Existing Credit
Agreement") among the Borrower, the Guarantors, the Lenders and the Agent, the
Lenders have extended commitments to make certain credit facilities available to
the Borrower;
WHEREAS, the parties hereto have agreed to amend the Existing Credit
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms used in
this Amendment No. 4, including its preamble and recitals, have the
following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 4 Effective Date" is defined in
Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Amendment,
including its preamble and recitals, have the meanings provided in the
Amended Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 4
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II. Except as so amended, the Existing Credit Agreement shall
continue in full force and effect.
SUBPART 2.1 The table set forth in the definition of
Applicable Percentage is amended and replaced in its entirety as
follows:
LIBOR Rate Alternate Alternate
Alternate Margin for Base Rate LIBOR Rate Base Rate LIBOR Rate
Adjusted Base Rate Revolving Loans Margin for Margin for Margin for Margin for
Leverage Margin for and Letter of Commitment Tranche B Tranche B Tranche C Tranche C
Level Ratio Revolving Loans Credit Fee Fee Term Loans Term Loans Term Loans Term Loans
---------- --------------- --------------- ----------------- ----------- ------------ ------------ -------------- -------------
I > 5.0 to 1.0 1.25% 2.50% 0.50% 1.75% 3.00% 2.00% 3.25%
-
II < 5.0 to 1.0 but
> 4.5 to 1.0 1.00% 2.25% 0.50% 1.50% 2.75% 1.75% 3.00%
-
III < 4.5 to 1.0 but
> 4.0 to 1.0 0.75% 2.00% 0.50% 1.50% 2.75% 1.75% 3.00%
-
IV < 4.0 to 1.0 but
> 3.5 to 1.0 0.50% 1.75% 0.375% 1.25% 2.50% 1.50% 2.75%
-
V < 3.5 to 1.0 but
> 3.0 to 1.0 0.25% 1.50% 0.375% 1.25% 2.50% 1.50% 2.75%
-
VI < 3.0 to 1.0 0.00% 1.25% 0.25% 1.00% 2.25% 1.25% 2.50%
Notwithstanding the foregoing revisions to the table above, the Applicable
Percentages will be determined in accordance with the Existing Credit Agreement
prior to giving effect to this Amendment.
SUBPART 2.2 Clause (iii)(B) of the definition of Permitted
Investments in the Existing Credit Agreement is amended and replaced in
its entirety as follows:
(B) investments (excluding intercompany loans and trade receivables)
made by any Domestic Credit Party in any Foreign Subsidiaries or
foreign joint ventures not to exceed $10,000,000 in the aggregate at
any time outstanding (excluding from such dollar limitation the initial
investment in Foreign Subsidiaries acquired pursuant to the G&L
Acquisition and investments in Foreign Subsidiaries existing on or
prior to the Closing Date);
SUBPART 2.3 Clause (iii) of the definition of Permitted
Investments in the Existing Credit Agreement is amended by adding the
following clause (E) to the end thereof:
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(E) in addition to the loans permitted pursuant to clause (D)
immediately above, certain intercompany trade receivables, as more
fully described in Section 6.1(i) hereof;
SUBPART 2.4 The table set forth in Section 5.9(a) of the
Existing Credit Agreement is amended and replaced in its entirety as
follows:
Period Ratio
------ -----
June 27, 1998 5.50
October 3, 1998 5.50
January 2, 1999 5.50
April 3, 1999 5.50
July 3, 1999 5.50
October 2, 1999 5.60
January 1, 2000 5.50
April 1, 2000 5.25
July 1, 2000 5.25
September 30, 2000 5.00
December 30, 2000 5.00
March 31, 2001 4.75
June 30, 2001 4.50
September 29, 2001 4.25
December 29, 2001 4.25
March 30, 2002 3.75
June 29, 2002 3.75
September 28, 2002
and thereafter 3.50
SUBPART 2.5 The table set forth in Section 5.9(d) of the
Existing Credit Agreement is amended and replaced in its entirety as
follows:
Period Ratio
June 27, 1998 through January 1, 2000 1.10
April 1, 2000 through September 30, 2000 1.20
December 30, 2000
and thereafter 1.25
SUBPART 2.6 Section 6.1 of the Existing Credit Agreement is
amended by adding the following clause (i) to the end thereof:
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(i) in addition to any Indebtedness described in Section
6.1(d) hereof, any trade receivables owed to any Domestic Credit Party
by any Foreign Subsidiary evidencing the sale of goods or other
inventory, other than on terms and conditions substantially as
favorable as would be obtainable in a comparable arm's length
transaction with a Person other than an Affiliate, not to exceed
$15,000,000 in the aggregate at any time outstanding and having a
payment date of not more than 270 days from the date of origination.
SUBPART 2.7 Section 6.7 of the Existing Credit Agreement is
amended by adding the following language immediately after the term
"Permitted Investments" appearing in the first line thereof: ", in
Section 6.1(i) hereof".
SUBPART 2.8 Section 6.8 of the Existing Credit Agreement is
amended by deleting the proviso contained in the first sentence thereof
and replacing it with the following:
provided that any investment in, capitalization of or organizational
costs and expenses incurred in the formation and start-up of, any such
other Foreign Subsidiaries shall not, together with other Permitted
Investments in Foreign Subsidiaries (excluding intercompany loans and
trade receivables), exceed $10,000,000 in the aggregate at any one
time.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 4 Effective Date. This Amendment
shall be and become effective as of the date hereof (the "Amendment No.
4 Effective Date") when all of the conditions set forth in this Part
III shall have been satisfied, and thereafter this Amendment shall be
known, and may be referred to, as "Amendment No. 4."
SUBPART 3.2. Execution of Counterparts of Amendment. The Agent
shall have received counterparts (or other evidence of execution,
including telephonic message, satisfactory to the Agent) of this
Amendment, which collectively shall have been duly executed on behalf
of each of the Borrower, the Guarantors, the Agent and the Required
Lenders.
SUBPART 3.3. Amendment Fee. The Lenders entitled thereto shall
have received their pro rata portion of the Amendment Fee.
SUBPART 3.4. Legal Opinion. The Agent and the Lenders shall
have received a legal opinion of counsel to the Borrower as to the
enforceability of this Amendment.
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PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment to
any Part or Subpart are, unless otherwise specified, to such Part or
Subpart of this Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement.
This Amendment is a Credit Document executed pursuant to the Existing
Credit Agreement and shall (unless otherwise expressly indicated
therein) be construed, administered and applied in accordance with the
terms and provisions of the Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such
time as this Amendment No. 4 shall become effective pursuant to the
terms of Subpart 3.1, all references in the Existing Credit Agreement
to the "Agreement" and all references in the other Credit Documents to
the "Credit Agreement" shall be deemed to refer to the Existing Credit
Agreement as amended by this Amendment.
SUBPART 4.4. Representations and Warranties of the Borrower.
The Borrower hereby represents and warrants that (a) the
representations and warranties contained in Article III of the Existing
Credit Agreement (as amended by this Amendment) are correct in all
material respects on and as of the date hereof as though made on and as
of such date and after giving effect to the amendments contained herein
and (b) no Default or Event of Default exists under the Existing Credit
Agreement on and as of the date hereof and after giving effect to the
amendments contained herein.
SUBPART 4.5. Counterparts. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but
one and the same agreement.
SUBPART 4.6. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
SUBPART 4.7. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
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SUBPART 4.8. Amendment Fee. The Borrower shall pay to the
Agent, for the account of each Lender executing this Amendment No. 4 on
or before December 22, 1998, an amendment fee (the "Amendment Fee")
equal to 0.25% of such Lender's Commitment.
[Remainder of page intentionally left blank]
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Each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWER: XXXXX & LORD, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Executive Vice-President
GUARANTORS: XXXXX & LORD INDUSTRIES, INC.,
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Executive Vice-President
G&L SERVICE COMPANY, NORTH
AMERICA, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice-President
SWIFT XXXXXXXX XXX.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Executive Vice-President
SWIFT DENIM XXXXXXXX XXX.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Executive Vice-President
LENDERS: FIRST UNION NATIONAL BANK
individually in its capacity as
a Lender and in its
capacity as Agent
By: /s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
-----------------------------------------
Title: Senior Vice President
-----------------------------------------
THE CIT GROUP / COMMERCIAL
SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Title: Vice-President
THE CIT GROUP / EQUIPMENT
FINANCING, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Title: Asst. Vice-President
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
FLEET BANK, N.A.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Title: Senior Vice-President
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Title: Vice-President
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Title: Senior Vice President
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Title: Banking Officer
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Title: Senior Vice-President
BANKBOSTON, N.A.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Title: Vice-President
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
-----------------------------------------
Title: Executive Director
NATIONAL BANK OF CANADA
By: /s/ Xxxx X. Council IV
-----------------------------------------
Title: Vice President
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxx Tat
-----------------------------------------
Title: Senior Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
-----------------------------------------
Title: Vice President
NORSE CBO, LTD.
By: Xxxxxxxx Capital Management, LLC
as its Investment Advisor
By: Xxxxxxxx Capital Advisors, LLC,
its Manager and pursuant to delegated
authority
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Title: President
NATIONAL CITY BANK
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Title: Account Officer
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
By: /s/ Xxxxxxxx X. Xxx
-----------------------------------------
Title: Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
ALLIANCE CAPITAL MANAGEMENT
L.P., as Manager on behalf
of ALLIANCE CAPITAL
FUNDING, L.L.C.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of
Alliance Capital Management, L.P.
By: /s/ X.X. Xxxxxxx Alex
-----------------------------------------
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Title: Duly Authorized Signatory
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxx Xxx XxXxxxxx
-----------------------------------------
Title: Managing Director
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD
By: PILGRIM INVESTMENTS, INC.,
its Investment Manager
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Vice President
ALLSTATE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Title: Authorized Signatory
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
DELANO COMPANY
By: Pacific Investment Management Company
as its Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Second Vice President
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Second Vice President
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Title: Senior Vice President
KZH CRESCENT-2 LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Sr. Vice Pres & Director
XXX XXXXXX AMERICAN CAPITAL
SENIOR INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Sr. Vice Pres. & Director
KZH CNC LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
PRESIDENT & FELLOWS OF
HARVARD COLLEGE
By: /s/ X. Xxxxxxxx
-----------------------------------------
Title: Authorized Signatory
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Authorized Signatory
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
-----------------------------------------
Title: Vice President
ELC (CAYMAN) LTD.
By: /s/ E. A. Kratzaman, III
-----------------------------------------
Title: Managing Director
KZH SHOSHONE LLC
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Title: Authorized Agent
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD.
By: Pilgrim Investments, Inc.
As its Investment Manager
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------
Title: Vice President
