Exhibit 2
AMENDMENT NO. 5
THIS AMENDMENT NO. 5 (this "Amendment"), dated as of July 3, 1999, 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. 5, including its preamble and recitals, have the
following meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 5 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. 5
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. Adjusted Leverage Ratio. The definition of
Adjusted Leverage Ratio in the Existing Credit Agreement is amended and
restated in its entirety to read as follows:
"Adjusted Leverage Ratio" shall mean, as of any date
of determination, the ratio of (i) Consolidated Funded Debt
less the sum of the principal amount of Senior Secured Debt
and Subordinated Debt then outstanding to (ii) Consolidated
EBITDA, including any Permitted G&L Acquisition Cost Savings.
SUBPART 2.2. Applicable Percentage. Notwithstanding anything
to the contrary contained in the Existing Credit Agreement or any other
Credit Document, for the period from and including the Amendment No. 5
Effective Date to and including the Interest Determination Date
immediately following the fiscal quarter of the Borrower ending
December 30, 2000, the Applicable Percentage shall be as set forth
below:
LIBOR Rate Alternate Alternate
Alternate Margin for Base Rate LIBOR Rate Base Rate LIBOR Rate
Base Rate Revolving Loans Margin for Margin for Margin for Margin for
Margin for and Letter of Commitment Tranche B Tranche B Tranche C Tranche C
Revolving Loans Credit Fee Fee Term Loans Term Loans Term Loans Term Loans
------------------ ------------------ ------------- --------------- --------------- -------------- --------------
1.75% 3.00% 0.50% 2.25% 3.50% 2.50% 3.75%
Commencing with the receipt by the Agent of the quarterly financial
information and certifications required to be delivered to the Agent
and the Lenders on the Interest Determination Date immediately
following the fiscal quarter of the Borrower ending December 30, 2000,
the Applicable Percentage shall be determined in accordance with the
definition thereof as set forth in the Existing Credit Agreement.
SUBPART 2.3. Consolidated Fixed Charges. Clause (iii) of the
definition of Consolidated Fixed Charges in the Existing Credit
Agreement is amended and restated in its entirety to read as follows:
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(iii) consolidated Capital Expenditures (excluding the
aggregate amount of Investments made pursuant to clause
(iii)(F) of the definition of Permitted Investments) for such
period (without duplication of items in clause (ii)) of the
Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP applied on a consistent
basis.
SUBPART 2.4. Consolidated Retained Earnings. The following
definition is hereby added to Section 1.1 of the Existing Credit
Agreement in the appropriate alphabetical order and shall read as
follows:
"Consolidated Retained Earnings" shall mean total
retained earnings of the Borrower and its Subsidiaries on a
consolidated basis as determined at a particular date in
accordance with GAAP applied on a consistent basis.
SUBPART 2.5. Interest Coverage Ratio. The following
definition is hereby added to Section 1.1 of the Existing Credit
Agreement in the appropriate alphabetical order and shall read as
follows:
"Interest Coverage Ratio" shall mean, for any fiscal
quarter of the Borrower, the ratio of Consolidated EBITDA for
such fiscal quarter to Consolidated Interest Expense for such
fiscal quarter.
SUBPART 2.6. Mortgaged Properties. The following definitions
are hereby added to Section 1.1 of the Existing Credit Agreement in the
appropriate alphabetical order and shall read as follows:
"Darlington Leased Property" shall mean the "LEASED
PROPERTY" described in the Lease Purchase Agreement by and
between Darlington County, South Carolina, as Lessor, and
Xxxxx & Lord Industries, Inc., as Lessee, dated as of December
1, 1997.
"Leased Properties" shall mean, collectively or
individually, as the context may require, the Darlington
Leased Property and the Muscogee Leased Property.
"Mortgage Instruments" shall mean fully executed and
notarized mortgages, deeds of trust or deeds to secure debt
(each, as the same may be amended, modified, restated or
supplemented from time to time) encumbering the fee interest
(and leasehold interests in the case of the Leased Properties)
of any Credit Party in the Mortgaged Properties and securing
the Credit Party Obligations.
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"Mortgaged Property" shall mean each real property
asset located in the United States owned (or leased in the
case of the Leased Properties) by the Credit Parties.
"Muscogee Leased Property" shall mean the LEASED LAND
described in the Lease Agreement by and between Development
Authority of Columbus, Georgia, Lessor, and Swift Textiles,
Inc., Lessee, dated as of December 1, 1980 and in the Lease
Agreement by and between Development Authority of Columbus,
Georgia, Issuer, and Swift Textiles, Inc., Lessee, dated as of
August 1, 1988.
SUBPART 2.7. Permitted Investments. Clause (iii) of the
definition of Permitted Investments in the Existing Credit Agreement is
amended by adding the following clauses (F) and (G) to the end thereof:
(F) in addition to the investments permitted pursuant to
clause (B) above, investments in Foreign Subsidiaries or
investments in foreign joint ventures which are at least 50%
owned by the Borrower or any of its Subsidiaries, as permitted
by Section 6.5(a)(vi) hereof; and
(G) in addition to the investments permitted pursuant to
clauses (B) and (F) above, investments by the Borrower of up
to $35,000,000 with the Net Cash Proceeds received from the
issuance of the Senior Secured Debt by the Borrower in one or
more Foreign Subsidiaries or foreign joint ventures provided
that each such Foreign Subsidiary or foreign joint venture
will engage in manufacturing operations in Mexico and provided
that any such foreign joint venture is at least 50% owned by
the Borrower or any of its Subsidiaries;
SUBPART 2.8. Permitted Liens. The definition of Permitted
Liens in the Existing Credit Agreement is amended by adding the
following clauses (xii) and (xiii) to the end thereof:
(xii) Liens securing the Senior Secured Debt in
accordance with the definition thereof; and
(xiii) easements, rights-of-way, restrictions
(including zoning restrictions), minor defects or
irregularities in title and other similar charges or
encumbrances not impairing, in any material respect, the use
of such for its intended purposes or interfering, in any
material respect, with the ordinary conduct of business of the
Credit Parties.
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SUBPART 2.9. Restricted Payment. Clause (d) appearing in the
definition of Restricted Payment in the Existing Credit Agreement is
amended and restated in its entirety to read as follows:
(d) any payment or prepayment of principal of,
premium, if any, or interest on, redemption, purchase,
retirement, defeasance, sinking fund or similar payment with
respect to, the Subordinated Debt or the Senior Secured Debt.
SUBPART 2.10. Senior Secured Debt. The following definitions
are hereby added to Section 1.1 of the Existing Credit Agreement in the
appropriate alphabetical order and shall read as follows:
"Senior Secured Debt" shall mean senior indebtedness
incurred by the Borrower in order to refinance, replace or
otherwise restructure a portion of the $490,000,000 principal
amount of indebtedness which may have originally been incurred
under this Agreement and owed to the Senior Secured Lender in
accordance with the following terms:
(a) the principal amount of such indebtedness shall
not exceed $35,000,000; provided, however, that the aggregate
principal amount of such indebtedness, plus the maximum
aggregate principal amount of all indebtedness which may be
incurred under this Agreement shall not exceed $490,000,000;
(b) there shall be no amortization of the principal
amount of such indebtedness prior to October 1, 2006;
(c) the outstanding principal balance of such
indebtedness shall bear interest at a rate no greater than 15%
per annum and interest calculated at the foregoing rate shall
not be payable more frequently than quarterly;
(d) the documentation evidencing and governing such
indebtedness shall not contain financial covenants, shall not
contain a cross-default to the Credit Party Obligations, shall
contain only such other covenants as are not more restrictive
than the covenants contained in this Credit Agreement and
shall not contain any other terms, conditions or other
provisions which have or could reasonably be expected to have
a material adverse effect on the interests of the Lenders
under this Credit Agreement;
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(e) such indebtedness shall be secured solely by a
second Lien on the same Collateral securing the Credit Party
Obligations subject only to the first priority Lien of the
Agent and the Lenders therein; provided, however, that the
Senior Secured Lender shall have no rights or remedies to
proceed against, or foreclose on, any of such Collateral until
all Credit Party Obligations have been paid in full and the
Commitments under this Agreement shall have terminated;
(f) First Union (or any other successor agent
appointed under the Security Agreement, if First Union is no
longer serving as the agent thereunder and as Agent under this
Agreement) shall act as Collateral Agent for the Lenders and
the Senior Secured Lender pursuant to a collateral agency
agreement reasonably satisfactory to the Agent and the Senior
Secured Lender and such agreement shall provide that the
Required Lenders shall have the sole and exclusive right to
direct the Collateral Agent with respect to all actions
involving the Collateral (except for the release of all or
substantially all of the Collateral, which shall require the
consent of all Lenders and the Senior Secured Lender);
provided, however, that such agreement will not otherwise
grant in favor of the Collateral Agent any rights greater than
or materially different from the rights granted by the Lenders
to the Agent under the Security Agreement;
(g) prior to the incurrence of such indebtedness
(which incurrence shall not occur until after the Interest
Determination Date for the fiscal quarter ending January 1,
2000), the Borrower and its Subsidiaries shall have
demonstrated compliance with the financial covenants contained
in Section 5.9 for the fiscal quarter ending immediately prior
to the incurrence of such indebtedness (for purposes of
determining compliance with Section 5.9(f) for such fiscal
quarter, interest expense attributable to the Senior Secured
Debt shall be included in the calculation of Consolidated
Interest Expense on a pro forma basis as if the Senior Secured
Debt had been incurred on the first day of such fiscal
quarter); and
(h) after giving effect to the incurrence of such
indebtedness, no Default or Event of Default shall have
occurred and be continuing.
"Senior Secured Debt Documentation" shall mean the
agreements, indentures, notes and other documentation and
instruments evidencing the Senior Secured Debt.
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"Senior Secured Lender" shall mean any Person or
Persons providing the Senior Secured Debt.
SUBPART 2.11. Security Documents. The definition of Security
Documents in the Existing Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"Security Documents" shall mean the Security
Agreement, the Pledge Agreement, any Mortgage Instrument and
such other documents executed and delivered in connection with
the attachment and perfection of the Agent's security
interests and liens arising thereunder, including, without
limitation, UCC financing statements and patent and trademark
filings.
SUBPART 2.12. Revolving Committed Amount. The second sentence
contained in Section 2.1(a) of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as follows:
For purposes hereof, the aggregate amount available hereunder
shall be TWO HUNDRED MILLION DOLLARS ($200,000,000) (as such
aggregate maximum amount may be reduced from time to time as
provided in Section 2.6, the "Revolving Committed Amount").
SUBPART 2.13. Mandatory Prepayments. A new second sentence is
hereby added to Section 2.7(b)(iv) of the Existing Credit Agreement and
shall read as follows:
Notwithstanding the foregoing, the Net Cash Proceeds received
by the Borrower from the issuance of the Senior Secured Debt
shall not be required to be prepaid pursuant to this clause
(iv).
SUBPART 2.14. Adjusted Leverage Ratio. The Required Lenders
hereby agree to waive compliance by the Borrower and its Subsidiaries
with Section 5.9(a) of the Amended Credit Agreement for each of the six
fiscal quarters beginning with the fiscal quarter ending July 3, 1999
through and including the fiscal quarter ending September 30, 2000.
Thereafter, commencing with the fiscal quarter of the Borrower ending
December 30, 2000, the table set forth in Section 5.9(a) of the
Existing Credit Agreement shall be amended and replaced in its entirety
as follows:
Period Ratio
------- -----
December 30, 2000 3.25 to 1.0
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March 31, 2001 3.25 to 1.0
June 30, 2001
and thereafter 3.0 to 1.0
SUBPART 2.15. Consolidated Net Worth. Section 5.9(b) of the
Existing Credit Agreement is amended and replaced in its entirety as
follows:
(b) Consolidated Retained Earnings. As of the end of any
fiscal quarter, commencing with the fiscal quarter ending July 3, 1999,
Consolidated Retained Earnings of the Borrower and its Subsidiaries
shall be greater than or equal to the sum of (i) $57,100,000, plus (ii)
50% of cumulative quarterly Consolidated Net Income, commencing on
October 2, 1999 (without deduction for any quarterly losses).
SUBPART 2.16. Capital Expenditures. Section 5.9(c) of the
Existing Credit Agreement is amended and replaced in its entirety as
follows:
(c) Capital Expenditures.
(i) As of the end of the four fiscal quarter period
ending on the last day of each fiscal quarter set forth in the
table below, Capital Expenditures for such four fiscal quarter
period then ended shall not exceed the corresponding amount
appearing in such table:
Period Amount
------ ------
July 3, 1999 $40,000,000
October 2, 1999 $40,000,000
January 1, 2000 $35,000,000
April 1, 2000 $30,000,000
July 1, 2000 $25,000,000
September 30, 2000 $25,000,000
(ii) Beginning with the fiscal quarter ended December
30, 2000, the Borrower and its Subsidiaries shall not, as a
group, make or incur Capital Expenditures in any fiscal year
in excess of the amount shown below:
Fiscal year 2001 $45,000,000
Fiscal year 2002
and each fiscal
year thereafter $50,000,000
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provided, that up to $10,000,000 of any such amount, if not expended in
the fiscal year for which it is permitted above may be carried over for
expenditure in the next following fiscal year.
For purposes of determining compliance with this Section 5.9(c), the
Borrower shall be permitted to exclude the aggregate amount of
Investments made pursuant to clause (iii)(G) of the definition of
Permitted Investments from the calculation of Capital Expenditures for
the fiscal year during which such Investments were made.
SUBPART 2.17. Adjusted Fixed Charge Coverage Ratio. The
Required Lenders hereby agree to waive compliance by the Borrower and
its Subsidiaries with Section 5.9(d) of the Amended Credit Agreement
for each of the six fiscal quarters beginning with the fiscal quarter
ending July 3, 1999 through and including the fiscal quarter ending
September 30, 2000. Thereafter, commencing with the fiscal quarter of
the Borrower ending December 30, 2000, the table set forth in Section
5.9(d) of the Existing Credit Agreement shall be amended and replaced
in its entirety as follows:
Period Ratio
------ ------
December 30, 2000
and thereafter 1.1 to 1.0
SUBPART 2.18. Minimum Consolidated EBITDA. A new Section
5.9(e) is hereby added to the Existing Credit Agreement which shall
read as follows:
(e) Minimum Consolidated EBITDA. As of the end of
each fiscal quarter set forth in the table below, there shall
be Consolidated EBITDA for the fiscal quarter then ended of
not less than the corresponding amount appearing in such
table.
Period Amount
------ ------
July 3, 1999 $17,000,000
October 2, 1999 $13,500,000
January 1, 2000 $22,000,000
April 1, 2000 $25,000,000
July 1, 2000 $25,000,000
September 30, 2000 $24,000,000
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For purposes of determining compliance with this Section 5.9(e), the
Borrower shall be permitted to exclude the effect of severance payments
in an aggregate amount not to exceed $1,800,000 made or accrued during
the fiscal quarter ended July 3, 1999.
SUBPART 2.19. Interest Coverage Ratio. A new Section 5.9(f)
is hereby added to the Existing Credit Agreement which shall read as
follows:
(f) Interest Coverage Ratio. As of the end of the
fiscal quarter ending immediately prior to the issuance of the
Senior Secured Debt and each fiscal quarter ending thereafter
through and including the fiscal quarter ending September 30,
2000, there shall be maintained an Interest Coverage Ratio of
not less than 1.25 to 1.0; provided, that notwithstanding
anything contained in this Credit Agreement to the contrary,
the applicable period for the purpose of determining
compliance herewith shall be the fiscal quarter then ended;
and provided, further, that this Section 5.9(a) shall be of no
force and effect unless and until the Senior Secured Debt
shall have been issued.
SUBPART 2.20. Pledged Assets. The second sentence appearing
in Section 5.12(b) of the Existing Credit Agreement is hereby amended
and restated in its entirety to read as follows:
Each Credit Party shall, and shall cause each of its
Subsidiaries to, take such action at its own expense as
requested by the Agent (including, without limitation, any of
the actions described in Section 4.1(d) hereof) to ensure that
the Agent has a first priority perfected Lien to secure the
Credit Party Obligations in (i) all personal property of the
Credit Parties located in the United States, (ii) all real
property of the Credit Parties located in the United States,
and (iii) to the extent deemed to be material by the Agent or
the Required Lenders in its or their sole reasonable
discretion, all other personal and real property of the Credit
Parties, subject in each case only to Permitted Liens.
SUBPART 2.21. Indebtedness. Clause (a) appearing in Section
6.1 of the Existing Credit Agreement is hereby amended and restated in
its entirety to read as follows:
(a) Indebtedness arising or existing under this
Agreement and the other Credit Documents, the Subordinated
Debt and the Senior Secured Debt;
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SUBPART 2.22. Indebtedness. Clause (d) appearing in Section
6.1 of the Existing Credit Agreement is hereby amended by adding the
following parenthetical clause to the end thereof:
(excluding from the calculation of such $25,000,000
limitation, any loans or investments permitted to be made to
Foreign Subsidiaries pursuant to subclauses (F) or (G) of
clause (iii) of the definition of Permitted Investments).
SUBPART 2.23. Sale of Assets. Section 6.5(a) of the Existing
Credit Agreement is amended and replaced in its entirety as follows:
SECTION 6.5 CONSOLIDATION, MERGER, SALE OR PURCHASE OF
ASSETS, ETC.
The Borrower will not, nor will it permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, sell,
transfer, lease or otherwise dispose of its property or assets
or agree to do so at a future time except the following,
without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other
disposition of property or assets to an unrelated
party not in the ordinary course of business (other
than Specified Sales), where and to the extent that
they are the result of a Recovery Event or otherwise
and the net proceeds therefrom are used to repair or
replace damaged property or to purchase or otherwise
acquire new assets or property, provided that such
purchase or acquisition is consummated within 180
days of such receipt;
(iii) the sale, lease or transfer of
property or assets from a Domestic Credit Party to
another Domestic Credit Party;
(iv) the sale and lease of G&L Industries'
property permitted pursuant to Section 6.13 hereof;
(v) the sale, lease or transfer of property
or assets having a fair market value not in excess of
$15,000,000 in the aggregate; and
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(vi) after the Interest Determination Date
for the fiscal quarter ending January 1, 2000, the
sale, lease or transfer of property or assets having
a fair market value not in excess of $15,000,000 in
the aggregate from a Domestic Credit Party to a
Foreign Subsidiary or to a foreign joint venture
which is at least 50% owned by the Borrower or any of
its Subsidiaries, provided that (A) the Borrower and
its Subsidiaries shall have demonstrated compliance
with the financial covenants contained in Section 5.9
for the fiscal quarter ending immediately prior to
such sale, lease or transfer, (B) such property or
assets shall not be subsequently sold, leased or
transferred to any Person which is not a Subsidiary
of the Borrower or a foreign joint venture which is
at least 50% owned by the Borrower or any of its
Subsidiaries (other than any such sale, lease or
transfer constituting a Specified Sale), and (C)
before and after giving effect to such sale, lease or
transfer, no Default or Event of Default shall have
occurred and be continuing.
provided, that in each case (except with respect to clauses
(iii) and (vi) above) at least 75% of the consideration
received therefor by the Borrower or any such Subsidiary is in
the form of cash or Cash Equivalents.
SUBPART 2.24. Ownership of Subsidiaries; Restrictions.
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, plus an additional amount of up to $35,000,000 in the
aggregate from the Net Cash Proceeds received from the
issuance of the Senior Secured Debt and any investments in the
nature of a contribution of assets to any such other Foreign
Subsidiaries shall not consist of assets having a fair market
value in excess of $15,000,000 in the aggregate.
SUBPART 2.25. Limitation on Restricted Actions. Section 6.10
of the Existing Credit Agreement is amended by adding the following
clause (vi) to the end thereof:
(vi) the Senior Secured Debt.
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SUBPART 2.26. Prepayments of Indebtedness, Etc.. Section 6.12
of the Existing Credit Agreement is amended by adding the following
clause (c) to the end thereof:
(c) make (or give any notice with respect thereto) any
voluntary or optional payment or prepayment, redemption,
acquisition for value or defeasance of (including without
limitation, by way of depositing money or securities with the
trustee with respect thereto before due for the purpose of
paying when due), refund, refinance or exchange of any Senior
Secured Debt, except that so long as there is no Default or
Event of Default then in existence and subject to the terms
and provisions of the Senior Secured Debt Documentation, the
Borrower shall be entitled to pay interest thereon in
accordance with the terms of the Senior Secured Debt
Documentation.
SUBPART 2.27. Events of Default.
(a) Subclauses (i)(A) and (ii)(A) appearing in clause
(d) of Section 7.1 of the Existing Credit Agreement are each
amended and restated in their entireties to read as follows:
(A) the Subordinated Debt or the Senior Secured
Debt
(b) Clause (k) appearing in Section 7.1 of the
Existing Credit Agreement is hereby amended and restated in
its entirety to read as follows:
(k) (i) There shall occur and be continuing
any Event of Default under and as defined in the (A)
indenture or other document evidencing the
Subordinated Debt or (B) the Senior Secured Debt
Documentation or (ii) any of the Credit Party
Obligations for any reason shall cease to be
designated as senior indebtedness under the indenture
or other document evidencing the Subordinated Debt.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 5 Effective Date. This Amendment
shall be and become effective as of the date hereof (the "Amendment No.
5 Effective Date") when all of the conditions set forth in this Part
III shall have
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been satisfied, and thereafter this Amendment shall be known, and may
be referred to, as "Amendment No. 5."
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. Prepayment of Term Loans. The Borrower shall make
a prepayment of the Term Loans in an amount of $25,000,000, which
prepayment shall be made from proceeds of Revolving Loans made on the
Amendment No. 5 Effective Date and shall be applied in the manner set
forth in Section 2.7(b)(ix)(B)(1) of the Amended Credit Agreement.
SUBPART 3.5. Real Property Collateral. The Agent shall have
received, in form and substance satisfactory to the Agent:
(i) Mortgage Instruments encumbering the fee interest
(and the leasehold interests in the case of the Leased
Properties) of any Credit Party in each Mortgaged Property
identified on Schedule 3.19(a);
(ii) in the case of the leasehold interests in the
Leased Properties, (a) such estoppel letters, consents and
waivers from the landlord on such real property as may be
required by the Agent, which estoppel letters shall be in form
and substance reasonably satisfactory to the Agent and (b)
evidence that the applicable lease, a memorandum of lease with
respect thereto, or other evidence of such lease in form and
substance reasonably satisfactory to the Agent, has been or
will be recorded in all places to the extent necessary or
desirable, in the reasonable judgment of the Agent, so as to
enable the Mortgage Instrument encumbering such leasehold
interest to effectively create a valid and enforceable first
priority lien (subject to Permitted Liens) on such leasehold
interest in favor of the Agent (or such other Person as may be
required or desired under local law) for the benefit of
Lenders;
(iii) ALTA mortgagee title insurance policies issued
by Chicago Title Insurance Company (the "Mortgage Policies"),
in amounts reasonably satisfactory to the Agent with respect
to any particular Mortgaged Property, assuring the Agent that
each of the Mortgage
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Instruments creates a valid and enforceable first priority
mortgage lien on the applicable Mortgaged Property (other than
the Mortgaged Property located in Columbus, Georgia, which
mortgage shall be a junior lien), free and clear of all
defects and encumbrances except Permitted Liens, which
Mortgage Policies shall be in form and substance reasonably
satisfactory to the Agent and shall provide for affirmative
insurance and such reinsurance as the Agent may reasonably
request, all of the foregoing in form and substance reasonably
satisfactory to the Agent;
(iv) evidence as to (A) whether any Mortgaged
Property is in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards
(a "Flood Hazard Property") and (B) if any Mortgaged Property
is a Flood Hazard Property, (1) whether the community in which
such Mortgaged Property is located is participating in the
National Flood Insurance Program, (2) the applicable Credit
Party's written acknowledgment of receipt of written
notification from the Agent (a) as to the fact that such
Mortgaged Property is a Flood Hazard Property and (b) as to
whether the community in which each such Flood Hazard Property
is located is participating in the National Flood Insurance
Program and (3) copies of insurance policies or certificates
of insurance of the Borrower and its Subsidiaries evidencing
flood insurance satisfactory to the Agent and naming the Agent
as sole loss payee on behalf of the Lenders;
(v) maps or plats of an as-built survey of the sites
of the Mortgaged Properties certified to the Agent and the
Title Insurance Company in a manner reasonably satisfactory to
them, dated a date satisfactory to each of the Agent and the
Title Insurance Company by an independent professional
licensed land surveyor reasonably satisfactory to each of the
Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be sufficient to
delete any standard printed survey exception contained in the
applicable title policy and be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys
jointly established and adopted by the American Land Title
Association and the American Congress on Surveying and Mapping
in 1992, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps,
plats or surveys the following: (A) the locations on such
sites of all the buildings, structures and other improvements
and the established building setback lines; (B) the lines of
streets abutting the sites and width thereof; (C) all access
and other easements appurtenant to the sites necessary to use
the sites; (D) all roadways, paths, driveways, easements,
encroachments and overhanging projections and similar
encumbrances affecting the site,
15
whether recorded, apparent from a physical inspection of the
sites or otherwise known to the surveyor; (E) any
encroachments on any adjoining property by the building
structures and improvements on the sites; and (F) if the site
is described as being on a filed map, a legend relating the
survey to said map. To the extent any such surveys are not
available on the Amendment No. 5 Effective Date, the Credit
Parties shall have an additional period of ninety (90) days
commencing on the Amendment No. 5 Effective Date to deliver
such surveys to the Agent; and
(vi) evidence satisfactory to the Agent that each of
the Mortgaged Properties, and the uses of the Mortgaged
Properties, are in compliance in all material respects with
all applicable laws, regulations and ordinances including
without limitation health and environmental protection laws,
erosion control ordinances, storm drainage control laws, doing
business and/or licensing laws, zoning laws (the evidence
submitted as to zoning should include the zoning designation
made for each of the Mortgaged Properties, the permitted uses
of each such Mortgaged Properties under such zoning
designation and zoning requirements as to parking, lot size,
ingress, egress and building setbacks) and laws regarding
access and facilities for disabled persons including, but not
limited to, the federal Architectural Barriers Act, the Fair
Housing Amendments Act of 1988, the Rehabilitation Act of 1973
and the Americans with Disabilities Act of 1990.
SUBPART 3.6. Environmental Reports. The Agent shall have
received satisfactory environmental reports, including Phase I reports
of a recent date relating to the Mortgaged Properties addressed to the
Agent and the Lenders or accompanied by a satisfactory reliance letter
from the environmental consultant that prepared such reports. To the
extent any such environmental reports are not available on the
Amendment No. 5 Effective Date, the Credit Parties shall have an
additional period of ninety (90) days commencing on the Amendment No. 5
Effective Date to deliver such reports to the Agent. The Borrower
shall, at the same time such reports are delivered to the Agent,
furnish a copy of each such environmental report to Xxxxx & Xxx Xxxxx,
PLLC, attention: Xxxxx XxXxxx, 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
SUBPART 3.7. Legal Opinion. The Agent shall have received (i)
a legal opinion of general counsel to the Borrower as to the
enforceability of this Amendment and (ii) legal opinions of special
local counsel for the Credit Parties for each state in which any
Mortgaged Property is located, in each case in form and substance
reasonably satisfactory to the Agent.
16
SUBPART 3.8. Resolutions. The Agent shall have received copies
of resolutions of the board of directors of each of the Credit Parties
authorizing the transactions contemplated by this Amendment and
certified as true and correct by a Responsible Officer of each such
Credit Party.
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. 5 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. Affirmation of Liens. The Borrower and the
Guarantors, as applicable, affirm the liens and security interests
created and granted in the Existing Credit Agreement and the Credit
Documents and agree that this Amendment shall in no manner adversely
affect or impair such liens and security interests.
SUBPART 4.5. Representations and Warranties. The Borrower and
the Guarantors hereby represent and warrant as follows:
(i) Each Credit Party has taken all necessary action
to authorize the execution, delivery and performance of this
Amendment.
(ii) This Amendment has been duly executed and
delivered by the Credit Parties and constitutes each of the
Credit Parties' 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
17
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).
(iii) 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 any
Credit Party of this Amendment (except for such filings as are
required or necessary in connection with the perfection of the
Liens on the Mortgaged Properties and as otherwise required
pursuant to the Credit Agreement).
(iv) The representations and warranties of the Credit
Parties set forth in Article III of the Amended Credit
Agreement are true and correct in all material respects as of
the date hereof.
(v) No Default or Event of Default exists under the
Existing Credit Agreement on and as of the date hereof after
giving effect to the amendments contained herein.
(vi) No Credit Party, to the best of its knowledge,
has any counterclaims, offsets, credits or defenses to the
Credit Documents and the performance of its obligations
thereunder.
SUBPART 4.6. Acknowledgment. The Guarantors (i) acknowledge
and consent to all of the terms and conditions of this Amendment, (ii)
affirm all of their obligations under the Credit Documents and (iii)
agree that this Amendment and all documents executed in connection
herewith do not operate to reduce or discharge the Guarantors'
obligations under the Amended Credit Agreement or the other Credit
Documents.
SUBPART 4.7. 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 4.8. 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.
18
SUBPART 4.9. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SUBPART 4.10. Amendment Fee. The Borrower shall pay to the
Agent, for the account of each Lender executing and delivering this
Amendment No. 5 to the Agent on or before noon (Eastern time) on
Tuesday, July 13, 1999, an amendment fee (the "Amendment Fee") equal to
0.375% of such Lender's Commitment, as reduced after giving effect to
the execution and delivery of this Amendment. The Borrower shall pay
the Amendment Fee to the Agent, for the account of the applicable
Lenders, on the Business Day next following the later of July 13, 1999
or the date the conditions set forth in Subparts 3.2, 3.4, 3.5, 3.6,
3.7 and 3.8 are satisfied.
[Remainder of page intentionally left blank]
19
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
XXXXX & LORD PROPERTIES, INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Title: Vice President
SWIFT DENIM PROPERTIES, INC.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Title: Vice President
LENDERS: FIRST UNION NATIONAL BANK
individually in its capacity as
a Lender and in its
capacity as Agent
By: /s/ Xxxxx Xxxx
----------------------------
Title: Senior Vice President
THE CIT GROUP / COMMERCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Title: Vice President
FLEET BANK, N.A.
By: /s/ Xxxxxx Bonsantini
-------------------------------
Title: Senior Vice President
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Title: Principal
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxx Xxxxxx
--------------------------------
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Title: Assistant Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Xxxxx 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 & Manager
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxxx
----------------------------------
Title: Assistant Vice President
NORSE CBO, LTD.
By: Xxxxxxxx Capital Management, LLC
as its Investment Advisor
By: Xxxxxxxx Capital Advisors, LLC, it
Manager and pursuant to delegated
authority
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Xxxxxxxx X. Xxx
------------------------------------
Title: Vice President
By: /s/W. Xxxxxxx Xxxxxxx
------------------------------------
Title: Senior Vice President
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By /s/ Xxxxxxx Xxxxxxxx
-------------------------------------
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
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/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President
KZH CYPRESSTREE-1 LLC
By: /s/ Xxxxx Xxxx
----------------------------------
Title: Authorized Agent
DELANO COMPANY
By: Pacific Investment Management Company
as its Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Title: Sr. 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/ Xxxxx X. Xxxx
---------------------------------
Title: Vice President & Portfolio
Manager
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx
Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Senior Vice President & Director
XXX XXXXXX
SENIOR INCOME TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Title: Senior Vice President & Director
KZH CNC LLC
By: /s/ Xxxxx Xxxx
-------------------------
Title: Authorized Agent
PRESIDENT & FELLOWS OF
HARVARD COLLEGE
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Title: Authorized Signatory
By: /s/ Xxxx X. Xxxxx
----------------------------------
Title:
XXXXX XXXXX INSTITUTIONAL
SENIOR LOAN FUND
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/Xxxxxxx Xxxxxxxx
--------------------------------------
Title: Vice President
ELC (CAYMAN) LTD.
By: /s/ X.X. Xxxxxxxx, III
-----------------------------------
Title: Managing Director
KZH SHOSHONE LLC
By: /s/ Xxxxx Xxxx
-------------------------------------
Title: Authorized Agent
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD. (AS ASSIGNEE)
By: Pilgrim Investments, Inc.,
as its Investment Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Senior Vice President
THE CIT GROUP / EQUIPMENT
FINANCING, INC.
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Title: Assistant Vice President
BLACK DIAMOND CLO 1998-1 LTD
By: /s/ Xxxxx Xxxxx
------------------------------
Title: President
NORTHWOODS CAPITAL, LIMITED
BY: XXXXXX, XXXXXX & CO., L.P. AS
COLLATERAL MANAGER
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Title: Managing Director
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Title: Senior Vice President
KZH PAMCO LLC
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------
Title: Authorized Agent
CHANCELLOR/TRITON CBO, LIMITED
BY: INVESCO SENIOR SECURED MANAGEMENT
INC., AS COLLATERAL MANAGER
By: /s/ Xxxx X. XxXxxxxx
----------------------------------
Title: Authorized Signatory
