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Exhibit 4(d)
FIFTH AMENDMENT TO THE CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO THE CREDIT AGREEMENT (this "Amendment") is
entered into as of July 20, 1999 among FRUIT OF THE LOOM, INC., a Delaware
corporation (the "Borrower"), Fruit of the Loom, Ltd., a Cayman Islands company
(the "Parent") and certain Subsidiaries of the Borrower as Guarantors, the
Lenders party hereto and BANK OF AMERICA, N.A. (f/k/a NationsBank, N.A.), as
Administrative Agent for the Lenders (the "Administrative Agent"). Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Credit Agreement (as defined below).
R E C I T A L S
---------------
WHEREAS, the Borrower, the Guarantors (other than the Parent), the
Lenders and the Administrative Agent entered into that certain Credit Agreement,
dated as of September 19, 1997 (as amended by that certain First Amendment to
the Credit Agreement dated as of March 26, 1998, that certain Second Amendment
to the Credit Agreement dated as of July 2, 1998, that certain Third Amendment
to the Credit Agreement dated as of December 31, 1998, that certain Fourth
Amendment to the Credit Agreement dated as of March 10, 1999 and as further
amended or otherwise modified from time to time, and to which the Parent was
added as a Guarantor and Credit Party pursuant to that certain Joinder Agreement
dated as of March 10, 1999, the "Credit Agreement");
WHEREAS, the Borrower has requested that the Lenders agree to amend
certain terms of the Credit Agreement; and
WHEREAS, the Required Lenders have agreed to such amendments to the
Credit Agreement as more fully set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
A G R E E M E N T
-----------------
1. Definitions.
(a) New Definitions. The following definition is added
to Section 1.1 of the Credit Agreement, in the appropriate
alphabetical order, to read as follows:
"CSFB Advantage Lease Financing" means, collectively,
(i) that certain lease financing arrangement among Union
Underwear Company, Inc. and certain of its Subsidiaries as
Lessees, The Chase Manhattan Bank (as successor to Chemical
Bank) as Owner Trustee, Credit Suisse First Boston as
Administrative Agent and the other parties thereto and (ii)
all leases, participation agreements, guarantees and other
operative documents therefor.
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"Equity Issuance" means any issuance by a Credit
Party to any Person (other than another Credit Party) of
shares of its capital stock, common shares of beneficial
interest or other equity interests, including pursuant to the
exercise of options or warrants or pursuant to the conversion
of any debt securities to equity.
"Real Estate Collateral" means those Real Properties
owned by the Credit Parties which are located within the
United States.
"Synthetic Lease Creditors" means the holders of the
Indebtedness guaranteed by the Borrower and certain of its
Subsidiaries pursuant to the guaranty agreement executed by
the Borrower and such subsidiaries in connection with CSFB
Advantage Lease Financing as set forth on Schedule 6.10.
(b) Change from "Borrower" to "Parent". Each of the following
definitions or parts thereof set forth in Section 1.1 of the Credit
Agreement is amended to delete the word "Borrower" in all of its
instances therein and to insert the word "Parent" in substitution
therefor:
(i) the definition of "Consolidated Net Tangible Assets";
(ii) the definition of "Consolidated Total Assets";
(iii) the definition of "Domestic Subsidiary";
(iv) the definition of "First Tier Foreign Subsidiary";
(v) the definition of "Foreign Subsidiaries";
(vi) clause (c) of the definition of "Funded Debt";
(vii) the definition of "Guarantor";
(viii) the definition of "Industrial Development Bonds";
(ix) the definition of "Material Subsidiary";
(x) the definition of "Permitted Accounts Receivable
Securitization";
(xi) the definition of "Permitted IDB Indebtedness";
(xii) the definition of "Receivables Facility Assets"; and
(xiii) the definition of "Receivables Subsidiary".
(c) Bond Pledge Agreement. The definition of "Bond Pledge
Agreement" set forth in Section 1.1 of the Credit Agreement is amended
to add the words "and the Synthetic Lease Creditors" to the end
thereof.
(d) Applicable Percentage. The definition of "Applicable
Percentage" set forth in Section 1.1 of the Credit Agreement is amended
and restated in its entirety to read as follows:
"Applicable Percentage" means the higher pricing
(i.e. the most expensive pricing) as determined by (a) the
appropriate applicable percentages corresponding to the lowest
Pricing Level available, as determined by the Unsecured Senior
Debt Rating in effect as of the most recent Calculation Date,
as shown in Pricing Grid A below or (b) the appropriate
applicable percentages corresponding to the Pricing
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Level as determined by the Leverage Ratio in effect as of
the most recent Calculation Date, as shown in Pricing
Grid B below.
PRICING GRID A
UNSECURED SENIOR DEBT RATING
----------------------------
Applicable Applicable
Percentage Applicable Percentage Applicable
for Applicable Percentage for Percentage
Unsecured Revolving-A Percentage for Letter Revolving for
Pricing Senior Eurocurrency for Term of A-Facility Base Rate
Level Debt Rating Loans Loans Credit Fees Fees Loans
----- ----------- ----- ----- ----------- ---- -----
I >BBB+ from .675% .875% .675% .20% 0%
-
S&P or Baa1
from Xxxxx'x
II >BBB from .775% 1.00% .775% .225% 0%
-
S&P or Baa2
from Xxxxx'x
but < BBB+
from S&P or
Baa1 from
Xxxxx'x
III >BBB- from 1.00% 1.25% 1.00% .25% 0%
-
S&P or Baa3
from Xxxxx'x
but < BBB
from S&P or
Baa2 from Xxxxx'x
IV >BB+ from 1.125% 1.50% 1.125% .375% 0%
-
S&P or Ba1
from Xxxxx'x
but < BBB-
from S&P or
Baa3 from
Xxxxx'x
V >BB from 1.375% 1.75% 1.375% .375% .25%
-
S&P or Ba2
from Xxxxx'x
but < BB+
from S&P or
Ba1 from
Xxxxx'x
VI 3.25 to 1.0 but 1.50% 2.00% 1.50% .50% .50%
-
<3.75 to 1.0
III >3.75 to 1.0 but 1.75% 2.25% 1.75% .50% .75%
-
<4.25 to 1.0
IV >4.25 to 1.0 but 2.00% 2.50% 2.00% .50% 1.00%
-
<4.75 to 1.0
V >4.75 to 1.0 2.25% 2.75% 2.25% .50% 1.25%
-
The Applicable Percentage for Loans, the Letter of
Credit Fees and the Facility Fees shall, in each case, be
determined and adjusted on the date (each a "Calculation
Date") five Business Days after (x) the date by which the
Borrower is required to provide the officer's certificate in
accordance with the provisions of Section 7.1(c) or (y) the
date there is a change in the Unsecured Senior Debt Rating;
provided that if the Borrower fails to timely provide the
officer's certificate required by Section 7.1(c) for any
fiscal quarter, the Applicable Percentage for Loans, the
Letter of Credit Fees and the Facility Fees shall be based on
the higher of the applicable percentages corresponding to the
then current Unsecured Senior Debt Rating or Pricing Level V
of Pricing Grid B, until such time that an appropriate
officer's certificate is provided whereupon the Pricing Level
shall be determined by the then current Leverage Ratio or
Unsecured Senior Debt Rating, as applicable. Each
determination of the Applicable Percentage shall be effective
from one Calculation Date until the next Calculation Date. Any
adjustment in the Applicable Percentage shall be applicable to
all existing Loans and Letters of Credit as well as any new
Loans made or Letters of Credit issued.
In the event the two Unsecured Senior Debt Ratings
would provide for two different Pricing Levels in Pricing Grid
A, the Pricing Level determined by reference to the Unsecured
Senior Debt Rating shall be the Pricing Level that is one
level lower (i.e. lower priced) than the highest (i.e. most
expensive) Pricing Level indicated by the two Unsecured Senior
Debt Ratings.
The Borrower shall promptly deliver to the
Administrative Agent, at the address set forth on Schedule
11.1 and at the Agency Services Address, information regarding
any change in the Unsecured Senior Debt Rating, as determined
by S&P and Xxxxx'x, or any change in the Leverage Ratio that
would change an existing Pricing Level pursuant to Pricing
Grid A or Pricing Grid B.
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(e) Collateral Documents. The definition of "Collateral
Documents" set forth in Section 1.1 of the Credit Agreement is amended
and restated in its entirety to read as follows:
"Collateral Documents" means the Pledge Agreements,
the Bond Pledge Agreement, the Security Agreement, all
instruments, reports and other documents with respect to Real
Estate Collateral executed by the Credit Parties and delivered
to the Collateral Agent in accordance with Section 7.14 and
such other documents executed and delivered in connection with
the attachment and perfection of the Collateral Agent's
security interest in the Collateral, including, without
limitation, UCC financing statements.
(f) Collateral Effective Date. Section 1.1 of the
Credit Agreement is amended to delete the definition of "Collateral
Effective Date" set forth therein in its entirety.
(g) Collateral Period. Section 1.1 of the Credit
Agreement is amended to delete the definition of "Collateral Period"
set forth therein in its entirety.
(h) Collateral Termination Date. Section 1.1 of the
Credit Agreement is amended to delete the definition of "Collateral
Termination Date" set forth therein in its entirety.
(i) Xxxxxx Creditors. The definition of "Xxxxxx
Creditors" set forth in Section 1.1 of the Credit Agreement is amended
and restated in its entirety to read as follows:
"Xxxxxx Creditors" means the holders of that certain
Indebtedness, in an aggregate amount up to $65 million, of
Xxxxxxx Xxxxxx that is unconditionally guaranteed in full by
the Borrower, the Parent and the Material Domestic
Subsidiaries of the Borrower.
(j) Permitted Investments. Clause (o) of the definition
of "Permitted Investments" set forth in Section 1.1 of the Credit
Agreement is amended to delete the amount "$25,000,000" therein and to
insert the amount "$20,000,000" in substitution therefor.
(k) Permitted Liens. That portion of the definition of
"Permitted Liens" set forth in Section 1.1 of the Credit Agreement
beginning with clause (m) thereof to the end of such definition is
amended and restated in its entirety to read as follows:
(m) pro rata Liens in favor of the Noteholders, the
Xxxxxx Creditors and the Synthetic Lease Creditors as set
forth in the terms of any Collateral Document executed and
delivered by the Credit Parties to the Collateral Agent, for
the benefit of the Lenders, the Noteholders, the Xxxxxx
Creditors and the Synthetic Lease Creditors and (n) Liens in
connection with Indebtedness permitted by Sections 8.1(l) and
(m) and (o) Liens in connection with that Indebtedness
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permitted by Section 8.1(c), repayment of which Indebtedness
is secured by a lien on any asset owned by any Foreign
Subsidiary.
(l) Pledge Agreements. The definition of "Pledge
Agreements" set forth in Section 1.1 of the Credit Agreement is
amended and restated in its entirety to read as follows:
"Pledge Agreements" means any Pledge Agreement (as
amended, modified, extended, renamed or restated from time to
time) executed and delivered by the Credit Parties in favor of
the Collateral Agent, for the benefit of the Lenders, the
Noteholders, the Xxxxxx Creditors and the Synthetic Lease
Creditors.
(m) Security Agreement. The definition of "Security
Agreement" set forth in Section 1.1 of the Credit Agreement is amended
and restated in its entirety to read as follows:
"Security Agreement" means any Security Agreement (as
amended, modified, extended, renewed or restated from time to
time) executed and delivered by the Credit Parties in favor of
the Collateral Agent for the benefit of the Lenders, the
Noteholders, the Xxxxxx Creditors and the Synthetic Lease
Creditors.
2. Change from "Borrower" to "Parent". The following Sections
or parts thereof set forth in the Credit Agreement are amended to delete the
word "Borrower" in all of its instances therein and to insert the word "Parent"
in substitution therefor:
(a) clauses (x) and (y) of Section 2.2(a);
(b) Section 6.11;
(c) Section 6.14;
(d) Section 6.17;
(e) Section 6.18(a); provided that, to the extent the phrase "to
the best knowledge of the Borrower" appears in such section,
such phrase is specifically retained in its current form;
(f) Sections 7.1(f)(b) and 7.1(g)(iii);
(g) Section 8.9(c);
(h) Section 8.11(d)(ii); and
(i) Sections 9.1(f), 9.1(g)(excluding clause (iii) thereof)
and 9.1(i).
3. Mandatory Prepayments. Section 3.3(b) of the Credit Agreement
is amended to add a new paragraph (ii) thereto, to read as follows:
(ii) Equity Issuance. Upon receipt by a Credit Party or
any of its Domestic Subsidiaries of the proceeds from an Equity
Issuance, the Borrower shall immediately forward to the Administrative
Agent an amount equal to (A) 100% of the gross proceeds from such
Equity Issuance minus (B) actual transaction costs payable to third
parties in
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connection therewith as a prepayment of the Loans (to be applied as set
forth in paragraph (iii) below).
4. Application of Prepayments. Paragraph (ii) of Section 3.3(b)
of the Credit Agreement shall become paragraph (iii) thereof, and is amended and
restated in its entirety to read as follows:
(iii) Application of Prepayments. All amounts required to
be paid pursuant to Section 3.3(b)(i)(A) shall be applied first to
Revolving-A Loans, second to Swing Line Loans and third to a cash
collateral account in respect of LOC Obligations. All amounts required
to be paid pursuant to Sections 3.3(b)(ii) shall be applied first to
the outstanding Term Loans (in direct order of Principal Amortization
Payments) until the Term Loans have been paid in full, second to
Revolving-A Loans (with a corresponding reduction in the Revolving-A
Committed Amount), third to Swing Line Loans and fourth to a cash
collateral account in respect of LOC Obligations. All amounts payable
under Section 3.3(b) shall be applied, to the extent applicable, first
to Base Rate Loans and then to Eurocurrency Loans in direct order of
Interest Period maturities.
5. Issuing Lender Fees. Clause (A) of paragraph (ii) of Section
3.4(b) of the Credit Agreement is amended and restated in its entirety to read
as follows:
(A) a fee equal to (x) if the definition of Applicable
Percentage provides that Pricing Grid A or Pricing Level I, II, III or
IV of Pricing Grid B is applicable on the date of issuance of the
Letter of Credit, one-eighth of one percent (.125%) per annum on the
total sum of all Letters of Credit issued by such Issuing Lender, or
(y) if the definition of Applicable Percentage provides that Pricing
Level V of Pricing Grid B is applicable on the date of issuance of the
Letter of Credit (as set forth in the definition of Applicable
Percentage), one-fifth of one percent (.20%) per annum on the total sum
of all Letters of Credit issued by such Issuing Lender, such fee to be
paid in arrears on the first day of each fiscal quarter of the Borrower
(as well as on the Revolving-A Loan Maturity Date) for the immediately
preceding fiscal quarter (or portion thereof) and
6. Remedies. The final sentence of Section 4.6 of the Credit
Agreement is amended and restated in its entirety to read as follows:
The Guarantors acknowledge and agree that their obligations
hereunder shall be secured in accordance with the terms of the
Collateral Documents and that the Lenders may exercise their remedies
thereunder in accordance with the terms thereof.
7. Subsidiaries. The second sentence of Section 6.15 of the
Credit Agreement is amended to delete the first eleven (11) words at the
beginning thereof and to insert the following words in substitution therefor:
"Information on Schedule 6.15 shall".
8. Collateral Documents. A new Section 6.26 of the Credit
Agreement is added to read as follows:
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6.26 COLLATERAL DOCUMENTS.
The Collateral Documents create valid security interests in,
and Liens on, the Collateral purported to be covered thereby, which
security interests and Liens are and will remain perfected security
interests and Liens, prior to all other Liens other than Permitted
Liens. Each of the representations and warranties made by the Credit
Parties and their Subsidiaries in the Collateral Documents is true and
correct in all material respects.
9. ERISA. Clause (ii) of Section 7.1(g) of the Credit Agreement
is amended and restated in its entirety to read as follows:
(ii) with respect to any Multiemployer Plan, the receipt
of notice as prescribed in ERISA or otherwise of any withdrawal
liability assessed against the Parent or any of its Subsidiaries or
ERISA Affiliates, or of a determination that any Multiemployer Plan is
in reorganization or insolvent (both within the meaning of Title IV of
ERISA);
10. Environmental. The final sentence of subparagraph (h)(i) of
Section 7.1 of the Credit Agreement shall be amended to delete the words "during
any Collateral Period".
11. Financial Covenants. Section 7.2 of the Credit Agreement is
amended and restated in its entirety to read as follows:
As of the end of each fiscal quarter set forth below, the
Leverage Ratio, Interest Coverage Ratio and Fixed Charge Coverage Ratio
shall satisfy the following minimum and maximum requirements:
Minimum Fixed
Minimum Interest Charge Coverage
Coverage Ratio Ratio
Maximum (for the twelve-month (for the twelve-month
Fiscal Quarter Ending: Leverage Ratio period ending on such date) period ending on such date)
---------------------- -------------- --------------------------- ---------------------------
June 30, 1999 6.0 to 1.0 1.0 to 1.0 1.40 to 1.0
September 30, 1999 6.0 to 1.0 1.0 to 1.0 1.40 to 1.0
December 31, 1999 5.0 to 1.0 1.0 to 1.0 1.50 to 1.0
March 31, 2000 3.25 to 1.0 2.25 to 1.0 2.25 to 1.0
June 30, 2000 3.25 to 1.0 2.25 to 1.0 2.25 to 1.0
September 30, 2000 3.0 to 1.0 2.50 to 1.0 2.25 to 1.0
December 31, 2000 3.0 to 1.0 2.50 to 1.0 2.25 to 1.0
and thereafter
12. Audits/Inspections. Clause (a) of Section 7.11 of the Credit
Agreement is amended and restated in its entirety to read as follows:
(a) so long as no Event of Default shall have occurred
and be continuing, (i) no verification of accuracy of information
shall include contacting the account debtors under any accounts
receivable of any Credit Party and (ii) such visits and inspections
shall not (A) disrupt the normal business operations of any Credit
Party, (B) be conducted by more than 5 Persons at any one time or (C)
occur more frequently than annually and
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13. Additional Credit Parties. Section 7.12 of the Credit
Agreement is amended and restated in its entirety to read as follows:
7.12 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Material Domestic Subsidiary
of a Credit Party, the Borrower shall so notify the Administrative
Agent and promptly thereafter (but in any event within 30 days after
the date thereof) shall (a) cause such Person to execute a Joinder
Agreement in substantially the same form as Exhibit 7.12, (b) cause
such Credit Party to execute an appropriate pledge agreement in
substantially the form of the Pledge Agreements and otherwise in a form
reasonably acceptable to the Collateral Agent, which pledge agreement
will obligate such Credit Party to cause all of the equity interests of
such Person to be delivered to the Collateral Agent (together with
undated stock powers, if applicable, signed in blank) and pledged to
the Collateral Agent, (c) if such Person has any Subsidiaries, cause
such Person to execute a pledge agreement in substantially the form of
the Pledge Agreements and otherwise in a form reasonably acceptable to
the Collateral Agent, which pledge agreement will obligate such Person
to cause all of the equity interests of its Domestic Subsidiaries and
65% of the equity interests of its Material First Tier Foreign
Subsidiaries to be delivered to the Collateral Agent (together with
undated stock powers, if applicable, signed in blank) and pledged to
the Collateral Agent, (d) cause such Person to execute a security
agreement in substantially the same form of the Security Agreements and
otherwise in a form reasonably acceptable to the Collateral Agent,
which security agreement will obligate such Person to cause all of its
personal property collateral to be pledged to the Collateral Agent, (e)
cause such Person to execute and deliver to the Collateral Agent all
such instruments, reports and other documents with respect to its Real
Estate Collateral as required by the terms of Section 7.14 and (f)
deliver, or cause such Person to deliver, such other documentation as
the Collateral Agent may reasonably request in connection with the
foregoing, including, without limitation, certified resolutions and
other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability
of the documentation referred to above) and all appropriate UCC-1
financing statements or other similar documents, in form, content and
scope reasonably satisfactory to the Collateral Agent, relating to the
Collateral.
14. Collateral. Section 7.13 of the Credit Agreement is amended
and restated in its entirety to read as follows:
7.13 COLLATERAL.
(a) If, subsequent to the Closing Date, a Credit Party
shall (i) acquire any real property, any patented, registered or
applied for intellectual property or any securities or (ii) acquire
any other personal property required to be delivered to the Collateral
Agent as Collateral hereunder or under any of the Collateral
Documents, the Borrower shall immediately notify the Collateral Agent
of same.
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(b) Each Credit Party shall take such action, as
reasonably requested by the Collateral Agent and at its own expense,
to ensure that the Lenders have a perfected Lien in all material
Collateral of the Credit Parties as set forth in the Collateral
Documents (whether now owned or hereafter acquired), subject only to
Permitted Liens. Such actions to be required by the Collateral Agent
may include, but are not limited to, delivery of UCC financing
statements or other similar documents, patent, trademark or copyright
filings, mortgage documents (in accordance with Section 7.14) and
legal opinions with respect thereto. No Credit Party shall change the
locations of its personal property except as permitted by the
Collateral Documents with appropriate notice to the Collateral Agent.
15. Real Estate Collateral. Section 7.14 of the Credit Agreement
is amended and restated in its entirety to read as follows:
7.14. REAL ESTATE COLLATERAL.
(a) With respect to the Real Estate Collateral not
listed on Schedule 7.14, on or before September 20, 1999, the Credit
Parties shall deliver to the Collateral Agent all such documents as
are reasonably requested by the Collateral Agent to evidence its lien
and encumbrance upon such Real Estate Collateral, in form and
substance acceptable to the Collateral Agent in its reasonable
discretion, such documents to include, without limitation:
(i) fully executed and notarized mortgages,
deeds of trust or deeds to secure debt (each a "Mortgage"
and collectively the "Mortgages") encumbering the fee
interest in such Real Estate Collateral (each a "Mortgaged
Property" and collectively the "Mortgaged Properties") in
compliance with all recording requirements of applicable
state law;
(ii) a title report obtained by the Credit
Parties in respect of each of the Mortgaged Properties;
(iii) an ALTA mortgagee title insurance policy in
form and substance, issued by such company, in such amounts
and with such assurances as are acceptable to the Collateral
Agent in its reasonable discretion;
(iv) evidence as to flood hazards, if any, with
respect to each of the Mortgaged Properties together with
copies of federal or other insurance policies or certificates
of insurance of the Credit Parties evidencing flood insurance
(if indicated by any such evidence of flood hazard) reasonably
satisfactory to the Collateral Agent and naming the
Administrative Agent as sole loss payee;
(v) maps or plats of an as-built survey of the
sites of the Mortgaged Properties certified to the
Collateral Agent and the applicable title insurance company
in a manner reasonably satisfactory to them, dated a date
satisfactory to each of the Collateral Agent and such title
insurance company by an independent
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professional licensed land surveyor reasonably satisfactory
to each of the Collateral Agent and such title insurance
company; and
(vi) all environmental inspections and reports
with respect to the Mortgaged Properties required by
applicable Environmental Laws or otherwise reasonably
requested by the Collateral Agent.
(b) With respect to Real Estate Collateral listed on
Schedule 7.14,
(i) on or before January 15, 2000, the Credit
Parties shall complete the sale of such Real Estate
Collateral in accordance with Section 8.5(j); or
(ii) if any such Real Estate Collateral is not
sold pursuant to subsection (b)(i) above, on or before
February 15, 2000, the Credit Parties shall deliver to the
Collateral Agent all such documents with respect to such
Real Estate Collateral required by subsection (a) above.
16. Indebtedness.
(a) The parenthetical set forth in Section 8.1(c) of the
Credit Agreement is amended to delete the words "to the holder of such
Indebtedness," therein and to insert the words "to all holders of such
Indebtedness" in substitution therefor.
(b) Section 8.1 of the Credit Agreement is amended to
add a new subsection (l) to read as follows:
(l) that certain Guaranty of Payment (the
"Xxxxxx Guaranty"), dated as of March 24, 1999, executed by
the Borrower, the Parent and certain Subsidiaries of the
Borrower in favor of NationsBank, N.A. as Administrative
Agent for the Xxxxxx Creditors for the benefit of Xxxxxxx
Xxxxxx (and renewals, refinancings, replacements or
extensions thereof on terms and conditions no more
favorable, in the aggregate, to the holders of such
Indebtedness, than such existing Indebtedness and in a
principal amount not in excess of that outstanding as of the
date of such renewal, refinancing, replacement or extension
plus any financed fees and expenses, including without
limitation prepayment premiums and break funding fees,
incurred by the applicable Credit Party in connection with
any such renewal, refinancing, replacement or extension;
provided, however, that, with respect to any Indebtedness
which is being renewed, refinanced, replaced or extended,
the principal amount thereof which is permitted to be
renewed, refinanced, replaced or extended pursuant to the
terms of this clause (l) shall be an amount equal to the
aggregate commitments of the lenders under the documents
evidencing the Indebtedness which is being so renewed,
refinanced, replaced or extended plus any financed fees and
expenses, including without limitation prepayment premiums
and break funding fees, incurred by the applicable Credit
Party in connection with any such renewal, refinancing,
replacement or extension); and
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(c) Subsection (l) of Section 8.1 of the Credit Agreement
shall become subsection (m) thereof, and is amended and restated in its
entirety to read as follows:
(m) other Indebtedness; provided, however, that
the aggregate amount of Indebtedness permitted under this
Section 8.1(m), when added (without duplication) to the
aggregate amount of sale leaseback transactions then
outstanding and permitted under Section 8.6, shall not
exceed $10,000,000 (it being understood that the calculation
of each such aggregate amount will not include Indebtedness
outstanding and permitted under Sections 8.1(a)-(l),
including Indebtedness listed on Schedule 6.10 and
refinancings thereof permitted pursuant to Section 8.1(c)
and the Xxxxxx Guaranty and refinancings thereof permitted
pursuant to Section 8.1(l)).
17. Consolidation and Merger. Clauses (b) and (c) of Section 8.4
of the Credit Agreement are amended and restated in their entirety to read as
follows:
(b) if the merger or consolidation involves a Credit
Party, the Person formed by such consolidation or into which a Credit
Party is merged shall either (i) be such Credit Party or (ii) be a
Domestic Subsidiary and shall expressly assume in writing all of the
obligations of such Credit Party under the Credit Documents; provided
that (A) if the transaction is between the Borrower and another Person
or the Parent and another Person, the Borrower or Parent, as
applicable, must be the surviving entity and (B) the Borrower and the
Parent may not merge into each other.
(c) if the merger or consolidation involves a Material
First Tier Foreign Subsidiary, the Lenders receive 65% of the Voting
Stock of the surviving Material First Tier Foreign Subsidiary, if any;
18. Sale or Lease of Assets. Section 8.5 of the Credit Agreement
is amended to add a paragraph to the end thereof to read as follows:
Upon a sale of assets permitted by this Section 8.5, the
Collateral Agent shall promptly deliver to the Borrower, upon the
Borrower's request and at the Borrower's expense, such documentation as
is reasonably necessary to evidence the release of the Lenders'
security interest in such assets, including, without limitation,
amendments or terminations of UCC financing statements.
19. Sale Leasebacks. That portion of Section 8.6 of the Credit
Agreement beginning with clause (b)(ii) thereof through the end of such
definition is amended and restated in its entirety to read as follows:
(ii) other sale leaseback transactions; provided,
however, that the aggregate amount of sale leaseback transactions
permitted under this clause (ii), when added (without duplication) to
the aggregate amount of Indebtedness then outstanding and permitted
under Section 8.1(m), shall not exceed $10,000,000 (it being
understood that
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the calculation of each such aggregate amount will not include
Indebtedness outstanding and permitted under Sections 8.1(a)-(l),
including Indebtedness listed on Schedule 6.10 and refinancings
thereof permitted pursuant to Section 8.1(c) and the Xxxxxx Guaranty
and refinancings thereof permitted pursuant to Section 8.1(l).
20. Restricted Payments.
(a) Clause (b)(i) of Section 8.8 of the Credit
Agreement is amended to add the word "and" at the end thereof.
(b) Clause (b)(ii) of Section 8.8 of the Credit
Agreement is amended to delete the words "$15 million per year"
therein and to insert the words "$4 million per year" in substitution
therefor and to delete the word "and" at the end thereof.
(c) Clause (b)(iii) of Section 8.8 of the Credit
Agreement is deleted in its entirety.
21. Notices. Schedule 11.1 to the Credit Agreement is replaced
in its entirety by the revised Schedule 11.1 attached hereto.
22. Further Assurances. Section 11.15 of the Credit Agreement is
amended and restated in its entirety to read as follows:
11.15 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of the Agents, to
promptly take such actions, as reasonably requested, as are necessary
to carry out the intent of this Credit Agreement and the other Credit
Documents, including, but not limited to, such actions as are necessary
to ensure that the Lenders have a perfected security interest in the
Collateral covered by such Collateral Document subject to no liens
other than Permitted Liens.
23. Collateral Termination Date. Section 11.20 of the Credit
Agreement is deleted in its entirety.
24. Conditions Precedent. The effectiveness of this Amendment is
subject to receipt by the Administrative Agent of the following:
(a) copies of this Amendment duly executed by the Credit
Parties and by the Required Lenders.
(b) an Amendment to the Security Agreement duly executed
by the Credit Parties, in form and substance acceptable to the
Required Lenders.
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(c) an Amendment to the Second Amended and Restated
Pledge Agreement duly executed by the Credit Parties, in form and
substance acceptable to the Required Lenders.
(d) an Amendment to the Bond Pledge Agreement duly
executed by the Credit Parties, in form and substance acceptable to
the Required Lenders.
(e) a certificate of the corporate secretary of each of
the Credit Parties certifying as to resolutions or authorization of
each Credit Party approving and adopting this Amendment, the Amendment
to the Security Agreement, the Amendment to the Second Amended and
Restated Pledge Agreement, the Amendment to the Bond Pledge Agreement
and the transactions contemplated herein and therein and authorizing
execution and delivery hereof and thereof.
(f) an opinion or opinions from counsel to the Credit
Parties, relating to this Amendment, the Amendment to the Security
Agreement, the Amendment to the Second Amended and Restated Pledge
Agreement, the Amendment to the Bond Pledge Agreement and the
transactions contemplated herein and therein, in form and substance
satisfactory to the Administrative Agent, addressed to the
Administrative Agent on behalf of the Lenders and dated as of the date
hereof.
(g) the execution and delivery of such UCC financing
statements and such patent, trademark and copyright filings or the
taking of such other actions as the Collateral Agent may reasonably
request in order to perfect the Lenders' security interest in the
Collateral.
(h) the payment of an amendment fee to each Lender who
executes this Amendment of one-quarter of one percent (.25% ) of its
current total Commitment and the payment of such other fees as agreed
to between the Borrower and the Administrative Agent.
(i) an agreement with the Synthetic Lease Creditors (or
an agent on their behalf) that the assets subject to the CSFB
Advantage Lease Financing will be liquidated and applied to the
balance outstanding under the CSFB Advantage Lease Financing prior to
any claim being made by such Synthetic Lease Creditors with respect to
the Collateral.
25. Ratification of Credit Agreement. The term "Credit Agreement"
as used in each of the Credit Documents shall hereafter mean the Credit
Agreement as amended by this Amendment. Except as herein specifically agreed,
the Credit Agreement is hereby ratified and confirmed and shall remain in full
force and effect according to its terms.
26. Authority/Enforceability. Each of the Credit Parties, the
Administrative Agent and the Lenders represents and warrants as follows:
(a) It has taken all necessary action to authorize the
execution, delivery and performance of this Amendment.
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(b) This Amendment has been duly executed and delivered
by such Person and constitutes such Person's legal, valid and binding
obligations, enforceable in accordance with its terms, except as such
enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Person of this Amendment.
27. No Default/Release. The Credit Parties represent and warrant
to the Lenders that (a) the representations and warranties of the Credit Parties
set forth in Section 6 of the Credit Agreement are true and correct as of the
date hereof, (b) no event has occurred and is continuing which constitutes a
Default or an Event of Default except as is being cured by the execution and
delivery of this Amendment and (c) they have no claims, counterclaims, offsets,
credits or defenses to their obligations under the Credit Documents or to the
extent they have any they are hereby released in consideration of the Required
Lenders entering into this Amendment.
28. Counterparts/Telecopy. This Amendment may be executed in
any number of counterparts, each of which when so executed and delivered shall
be an original, but all of which shall constitute one and the same instrument.
Delivery of executed counterparts by telecopy shall be effective as an original
and shall constitute a representation that an original will be delivered.
29. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER 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, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
BORROWER:
---------
FRUIT OF THE LOOM, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Treasurer
GUARANTORS:
-----------
FRUIT OF THE LOOM, LTD.,
a Cayman Islands company
UNION UNDERWEAR COMPANY, INC.,
a New York corporation
ALICEVILLE COTTON MILL, INC.,
an Alabama corporation
THE B.V.D. LICENSING CORPORATION,
a Delaware corporation
FAYETTE COTTON MILL, INC.,
an Alabama corporation
FOL CARIBBEAN CORPORATION,
a Delaware corporation
FRUIT OF THE LOOM ARKANSAS, INC.,
an Arkansas corporation
FRUIT OF THE LOOM CARIBBEAN, INC.,
a Delaware corporation
FRUIT OF THE LOOM, INC.,
a New York corporation
FRUIT OF THE LOOM TEXAS, INC.,
a Texas corporation
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FTL SALES COMPANY, INC.,
a New York corporation
GITANO FASHIONS LIMITED,
a Delaware corporation
GREENVILLE MANUFACTURING, INC.,
a Mississippi corporation
JET SEW TECHNOLOGIES, INC.,
a New York corporation
XXXXXX XXXXX, INC.,
a Louisiana corporation
PRO PLAYER, INC.,
a New York corporation
XXXXX APPAREL, INC.,
a Georgia corporation
XXXXXXX HOSIERY XXXXX, INC.,
a North Carolina corporation
SALEM SPORTSWEAR CORPORATION,
a Delaware corporation
XXXXXXX WAREHOUSE CORPORATION,
a Mississippi corporation
UNION SALES, INC.,
a Delaware corporation
UNION YARN XXXXX, INC.,
an Alabama corporation
XXXXXXXX MANUFACTURING, INC.,
a South Carolina corporation
XXXXXXXX XXXXXX MILL, INC.,
an Alabama corporation
FTL REGIONAL SALES COMPANY, INC.,
a Delaware corporation
LEESBURG YARN XXXXX, INC.,
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an Alabama corporation
SALEM SPORTSWEAR, INC.,
a New Hampshire corporation
FRUIT OF THE LOOM TRADING COMPANY,
a Delaware corporation
DEKALB KNITTING CORPORATION,
an Alabama corporation
By: /s/ Brain X. Xxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and a Financial
Officer of each of the foregoing
entities identified as a Xxxxxxxxx
00
00
LENDERS:
--------
BANK OF AMERICA, N.A. (F/K/A NATIONSBANK, N.A)
individually in its capacity as a Lender and in
its capacity as Administrative Agent and
Collateral Agent
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
BANKERS TRUST COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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21
SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE BANK OF NEW YORK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE CHASE MANHATTAN BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
ABN AMRO BANK N.V.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
BANK OF AMERICA NT & SA
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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27
SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CREDIT AGRICOLE INDOSEUZ
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CREDIT LYONNAIS CHICAGO BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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30
SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE FUJI BANK, LIMITED
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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32
SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
GULF INTERNATIONAL BANK B.S.C.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
HIBERNIA NATIONAL BANK
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
CO-PERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
SOCIETE GENERALE
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
UNION BANK OF CALIFORNIA, N.A.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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SIGNATURE PAGE TO FIFTH AMENDMENT TO
FRUIT OF THE LOOM CREDIT AGREEMENT
THE ASAHI BANK, LTD., NEW YORK BRANCH
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
41
