WAIVER, RELEASE AND AMENDMENT
TO CREDIT AGREEMENT
THIS WAIVER, RELEASE AND AMENDMENT, dated as of March 19, 1998 (the
"Waiver and Amendment") relating to the Credit Agreement referenced below, by
and among XXXXX & LORD, INC., a Delaware corporation (the "Borrower"), XXXXX &
LORD INDUSTRIES, INC., a Delaware corporation (the "Company"), the additional
Guarantors listed on the signature pages hereto, each of those financial
institutions identified as Lenders on the signature pages hereto (together with
each of their successors and assigns, referred to individually as a "Lender"
and, collectively, as the "Lenders"), and FIRST UNION NATIONAL BANK, as agent
for the Lenders (in such capacity, the "Agent"). Terms used herein but not
otherwise defined herein shall have the meanings provided in the Credit
Agreement referenced below.
W I T N E S S E T H
WHEREAS, a $490,000,000 credit facility has been extended to the
Borrower pursuant to the terms of that certain Credit Agreement dated as of
January 29, 1998 (as amended, modified or otherwise supplemented, the "Credit
Agreement") among the Borrower, the Company, the Lenders and the Agent;
WHEREAS, the Borrower has requested that the Lenders waive certain
requirements contained in Sections 5.12 and 5.13 of the Credit Agreement, that
the Lenders release the Borrower and its Subsidiaries with respect to certain
provisions of the Credit Documents and that the Lenders amend the Credit
Agreement to provide for certain intercompany loans to Foreign Subsidiaries of
the Borrower and the Lenders are willing to accommodate such requests;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
(A) With respect to Foreign Subsidiaries which are not directly owned
by either the Borrower or a Domestic Subsidiary of the Borrower ("Second Tier
Foreign Subsidiaries"), the Agent, on behalf of the Lenders, hereby forever
waives the requirement set forth in Section 5.12(a) of the Credit Agreement that
each Credit Party shall cause 65% of the Capital Stock of such Second Tier
Foreign Subsidiaries to be subject to a first priority, perfected Lien in favor
of the Agent.
(B) The Agent, on behalf of the Lenders, hereby waives the following
requirements set forth in Section 5.13 of the Credit Agreement:
(i) The requirement that each Foreign Subsidiary enter into
the Foreign Subsidiary Pledge Agreement is forever waived;
(ii) With respect to Dominion Textile International (Asia)
Pte. Ltd., the requirements that the Borrower (A) deliver to
the Agent all stock certificates not delivered on the Closing
Date and (B) provide evidence that the security interest of
the Agent in such stock is perfected are hereby waived for a
period of 180 days following the date hereof; and
(iii) With respect to all other Foreign Subsidiaries of the
Borrower or its Domestic Subsidiaries which are not Second
Tier Foreign Subsidiaries, the requirements that the Borrower
or such Domestic Subsidiary (A) deliver to the Agent all stock
certificates not delivered on the Closing Date and (B) provide
evidence that the security interest of the Agent in such stock
is perfected are hereby waived for a period of 90 days
following the Closing Date.
(C) The Agent, on behalf of the Lenders, hereby releases and discharges
each of 3427808 Canada Limited and the Borrower from all of their respective
obligations under the Foreign Subsidiary Pledge Agreement.
(D) The Credit Agreement is hereby amended as follows:
(i) The definition of Consolidated Interest Expense is amended
by adding the term "Adjusted" immediately prior to the phrase
"Fixed Charge Coverage Ratio" the first time it appears in
such definition and the definition of "Fixed Charge Coverage
Ratio" is deleted in its entirety;
(ii) The definition of Foreign Credit Party is amended by
deleting all text immediately following "Foreign Subsidiary"
the first time it appears in such definition;
(iii) Clause (iii) of the definition of Permitted Investments
is amended by adding to the end of subclause (D) thereof the
phrase", except that such limitation shall not be applicable
to the intercompany loans deemed to have been made to the
Foreign Subsidiaries of the Borrower as a result of the G&L
Acquisition and the funding thereof";
(iv) The definition of Receivables immediately following the
definition of Purchasing Lenders is deleted in its entirety;
(v) Subclause (ii) of Section 2.7(b) is amended by deleting
the word "Term" the first time it appears in such subclause;
(vi) Section 2.12 is amended by (A) deleting from the fourth
sentence thereof the phrase "in accordance with Section 2.7
hereof" and (B) adding to the end thereof the following
sentence: "Notwithstanding the foregoing to the contrary, if
any scheduled principal payment on the Term Loans is due and
payable on a day other than a Business Day, such payment shall
be made on the immediately preceding Business Day";
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(vii) Section 6.1(d) is amended by adding to the end of the
second proviso thereof the phrase ", except that such
limitation shall not be applicable to the intercompany loans
deemed to have been made to the Foreign Subsidiaries of the
Borrower as a result of the G&L Acquisition and the funding
thereof";
(viii) All references in Section 4.1(w) to the DTA Credit
Agreement are amended to refer to the DTA Credit Facility;
(ix) The term "Investments" appearing in line one (1) of
Section 3.18 is replaced with the term "investments";
(x) The text of Section 5.6 immediately following the first
semi-colon appearing therein and ending immediately prior to
the parenthetical phrase appearing therein is amended and
replaced in its entirety as follows: "and permit the Agent or,
upon the occurrence of and during the continuance of an Event
of Default, any Lender, during regular business hours and upon
reasonable notice by the Agent or any such Lender, to visit
and inspect any of its properties and examine and make
abstracts from any of its books and records";
(xi) The term "commercial banking" appearing in line one (1)
of Sections 9.6(b) and 9.6(c) is replaced with the term
"lending";
(xii) Section 9.6(c) is further amended by (A) adding the
phrase "or any fund that invests in bank loans and is advised
or managed by an investment advisor to an existing Lender"
immediately following the phrase "any affiliate thereof"
appearing in line three (3) thereof and (B) adding the phrase
"or any affiliate thereof" immediately following the term
"Lender" appearing in the first proviso thereof;
(xiii) The text of Section 9.6(h) is amended and replaced in
its entirety as follows:
Nothing herein shall prohibit any Lender, without the
consent of the Agent or the Borrower, from pledging or
assigning any of its rights under this Agreement as collateral
security for its obligations, including without limitation,
any right to payment of principal and interest under any Note,
to (i) any Federal Reserve Bank in accordance with applicable
laws or (ii) in the case of any Lender which has made Term
Loans hereunder and is an investment fund, to the trustee
under the indenture to which such fund is a party in support
of its obligations to such trustee for the benefit of the
applicable trust beneficiaries; provided, however, that in
either case, (A) such Lender shall remain a "Lender" under
this Agreement and shall continue to be bound by all the terms
and conditions set forth in this Agreement and the other
Credit Documents and (B) any assignment to such trustee shall
be subject to the provisions of Section 9.6(c);
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(xiv) Clause (b) of Section 9.16 is amended by adding the
phrase "National Association of Insurance Commissioners or
the" immediately before the phrase "Federal Reserve Board";
and
(xv) Section 9.16 is further amended by adding to the end
thereof "or (f) to any Person listed on Schedule 9.2 hereto
(so long as such Person agrees to be bound by the provisions
of this Section 9.16)".
(E) Except as modified hereby, all of the terms and provisions of the
Credit Agreement (and Exhibits and Schedules thereto) remain in full force and
effect.
(F) This Waiver and Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and it shall not be necessary in making proof of this Waiver and
Amendment to produce or account for more than one such counterpart.
(G) This Waiver and Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of North Carolina.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Waiver and Amendment to be duly executed and delivered as of the date
first above written.
XXXXX & LORD, INC. FIRST UNION NATIONAL BANK,
as Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
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Title: Executive Vice President Title: Senior Vice President
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XXXXX & LORD INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
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G&L SERVICE COMPANY,
NORTH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: Vice President
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SWIFT XXXXXXXX XXX.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------
Title: Executive Vice President
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SWIFT DENIM XXXXXXXX XXX.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
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Title: Executive Vice President
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