AMENDMENT NO. 2
THIS AMENDMENT NO. 2 (this "Amendment"), dated as of March 27, 1998, is
by and among XXXXX & LORD, INC., a Delaware corporation (the "Borrower"), XXXXX
& LORD INDUSTRIES, INC., a Delaware corporation ("G&L Industries"), the other
Domestic Subsidiaries of the Borrower (each a "Guarantor", and together with G&L
Industries, the "Guarantors"), THE PERSON IDENTIFIED AS AN "EXISTING LENDER" ON
THE SIGNATURE PAGES HERETO (the "Existing Lender"), THE PERSONS IDENTIFIED AS
"NEW LENDERS" ON THE SIGNATURE PAGES HERETO (the "New Lenders" and, together
with the Existing Lender, 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 (the "Existing Credit Agreement") among the Borrower, the Guarantors,
the Existing Lender and the Agent, the Existing Lender has extended commitments
to make certain credit facilities available to the Borrower; and
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, including its preamble and recitals, have the following
meanings:
"Amended Credit Agreement" means the Existing Credit
Agreement as amended hereby.
"Amendment No. 2 Effective Date" is defined in
Subpart 4.1.
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. 2
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. Amendments to Schedule 2.1(a). Schedule 2.1(a) of
the Existing Credit Agreement is hereby deleted in its entirety and a
new schedule in the form of Schedule 2.1(a) attached hereto is
substituted therefor.
SUBPART 2.2. Amendments to Schedule 9.2. Schedule 9.2 of the
Existing Credit Agreement is hereby deleted in its entirety and a new
schedule in the form of Schedule 9.2 attached hereto is substituted
therefor.
PART III
ASSIGNMENTS AND ASSUMPTIONS
The Existing Lender hereby sells and assigns, without recourse, to the
New Lenders, and the New Lenders hereby purchase and assume, without recourse,
from the Existing Lender, effective as of the Amendment No. 2 Effective Date,
such interests in the Existing Lender's rights and obligations under the
Existing Credit Agreement (including, without limitation, the Commitments of the
Existing Lender on the Amendment No. 2 Effective Date and the Revolving Loans
and the portions of the Term Loans owing to the Existing Lender which are
outstanding on the Amendment No. 2 Effective Date) as shall be necessary in
order to give effect to the reallocations of the Revolving Committed Amount, the
Revolving Commitment Percentages, the Tranche B Term Loan Committed Amount, the
Tranche B Term Loan Commitment Percentages, the Tranche C Term Loan Committed
Amount and the Tranche C Term Loan Commitment Percentages effected by the
amendment to Schedule 2.1(a) to the Existing Credit Agreement pursuant to
Subpart 2.1. The Existing Lender hereby represents and warrants that it is the
lawful owner of the interests being assigned hereby, free and clear of any
adverse claim. The New Lenders shall make payment in exchange for such interests
in the Existing Lender's rights and obligations under the Existing Credit
Agreement on March 27, 1998, in the amounts and in accordance with the
instructions of the Agent. Each New Lender (a) represents and warrants that it
is legally authorized to enter into this Amendment; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements referred to in Section 3.1 thereof, the financial statements
delivered pursuant to Section 5.1 thereof, if any, and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (c) agrees that it will, independently
and without reliance upon the Existing Lender, the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement, the other Credit Documents or any other instrument
or document furnished pursuant hereto or thereto; (d) appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers
and discretion under
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the Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the Agent by
the terms thereof, together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit Agreement and will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
if it is organized under the laws of a jurisdiction outside the United States,
its obligations pursuant to subsection 2.18 of the Credit Agreement. The
Existing Lender shall, to the extent of the interests assigned hereby,
relinquish its rights and be released from its obligations under the Existing
Credit Agreement. The Agent shall maintain in its internal records and record in
the Register the information relating to the assignments and assumptions
effected pursuant to this Part III and as required by Section 9.6(d). The Agent
hereby agrees (i) that no transfer fee shall be payable under Section 9.6(e) of
the Existing Credit Agreement or otherwise in connection with the assignments
effected pursuant to this Part III and (ii) to pay to each New Lender its
portion of the upfront fee as set forth in the CONFIDENTIAL INFORMATION
MEMORANDUM DATED FEBRUARY, 1998.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1. Amendment No. 2 Effective Date. This Amendment
shall be and become effective as of the date hereof (the "Amendment No.
2 Effective Date") when all of the conditions set forth in this Part IV
shall have been satisfied, and thereafter this Amendment shall be
known, and may be referred to, as "Amendment No. 2."
SUBPART 4.2. 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 Lenders.
SUBPART 4.3. Execution and Delivery of New Notes. Each Lender
shall have received a new Note or Notes, as the case may be, each in
the principal amount of its respective Commitments and duly executed on
behalf of the Borrower.
PART V
MISCELLANEOUS
SUBPART 5.1. Cross-References. References in this Amendment to
any Part or Subpart are, unless otherwise specified, to such Part or
Subpart of this Amendment.
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SUBPART 5.2. 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 5.3. References in Other Credit Documents. At such
time as this Amendment No. 2 shall become effective pursuant to the
terms of Subpart 4.1, 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 5.4. Representations and Warranties of the Borrower.
The Borrower hereby represents and warrants that (a) the conditions
precedent to the initial Loans were satisfied as of the Closing Date
(assuming satisfaction or waiver, if applicable, of all requirements in
such conditions that an item be in form and/or substance reasonably
satisfactory to the Agent or any Lenders or that any event or action
have been completed or performed to the reasonable satisfaction of the
Agent or any Lenders), (b) the representations and warranties contained
in Article III of the Existing Credit Agreement (as amended by this
Amendment) are correct in all material respects on and as of the date
hereof as though made on and as of such date and after giving effect to
the amendments contained herein and (c) no Default or Event of Default
exists under the Existing Credit Agreement on and as of the date hereof
and after giving effect to the amendments contained herein.
SUBPART 5.5. Representations and Warranties of the New
Lenders. Each of the New Lenders hereby represents and warrants to the
Borrower that at least one of the following statements is an accurate
representation as to the source of funds to be used by such New Lender
in connection with the financing under the Credit Agreement:
(a) no part of such funds constitutes assets allocated to any
separate account maintained by such Lender in which any employee
benefit plan (or its related trust) has any interest;
(b) to the extent that any part of such funds constitutes
assets allocated to any separate account maintained by such Lender,
such Lender has disclosed to the Borrower the name of each employee
benefit plan whose assets in such account exceed 10% of the total
assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans maintained
by the same employer or employee organization are deemed to be a single
plan);
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(c) to the extent that any part of such funds constitutes
assets of an insurance company's general account, there is no employee
benefit plan or group of plans maintained by the same employee
organization with respect to which the amount of such insurance
company's general account reserves (as determined under Code Section
807(d)) for all contracts held by or on behalf of such plan or plans
exceeds 10% of the total liabilities of such insurance company's
general account, and such insurance company is relying on Prohibited
Transaction Class Exemption 95-60 (issued July 12, 1995);
(d) to the extent that any part of such funds constitutes
assets of an insurance company's general account, such insurance
company has complied with all of the requirements of the regulations
issued under Section 401(c)(1)(A) of ERISA; or
(e) such funds constitute assets of one or more specific
benefit plans which such Lender has identified in writing to the
Borrower.
As used in this Subpart 5.5, the terms "employee benefit plan" and
"separate account" shall have the respective meanings assigned to such
terms in Section 3 of ERISA.
SUBPART 5.6. 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 5.7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF.
SUBPART 5.8. Successors and Assigns. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
[The remainder of this page has been left blank intentionally]
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Each of the parties hereto has caused a counterpart of this Amendment to be duly
executed and delivered as of the date first above written.
BORROWER: XXXXX & LORD, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President
GUARANTORS: XXXXX & LORD INDUSTRIES, INC.,
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Title: Executive Vice President
G&L SERVICE COMPANY, NORTH
AMERICA, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Title: Vice President
SWIFT XXXXXXXX XXX.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Title: Executive Vice President
SWIFT DENIM XXXXXXXX XXX.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President
[SIGNATURES CONTINUED]
EXISTING LENDER: FIRST UNION NATIONAL BANK
individually in its capacity as an
Existing Lender, a Lender and in its
capacity as Agent
By: /s/ Xxxxx Xxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxx
-----------------------
Title: Senior Vice President
------------------------
[SIGNATURES CONTINUED]
NEW LENDERS: THE CIT GROUP / COMMERCIAL SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
--------------------
Xxxxx X. Xxxxxx
Vice President
[SIGNATURES CONTINUED]
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxx Xxxxxxxx
---------------------
Title: Authorized Agent
[SIGNATURES CONTINUED]
FLEET BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Xxxxxx X. Xxxxxxx
Vice President
[SIGNATURES CONTINUED]
NATIONSBANK, N.A.
By: /s/ X. Xxxxxx Xxxxx
------------------------
Title: Senior Vice President
[SIGNATURES CONTINUED]
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Title: Banking Officer
By: signature on original is illegible
Title:
[SIGNATURES CONTINUED]
WACHOVIA BANK, N.A.
By: /s/ Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx
Title: Vice President
[SIGNATURES CONTINUED]
BANKBOSTON, N.A.
By: /s/ Xxxx X. Xxxx
--------------------
Xxxx X. Xxxx
Title: Director
[SIGNATURES CONTINUED]
CIBC INC.
By: /s/Xxxxx Xxxxxx
--------------------------------
Title: Executive Director, CIBC
Xxxxxxxxxxx Corp. As Agent
[SIGNATURES CONTINUED]
NATIONAL BANK OF CANADA
By: /s/ C Collie
-------------------------------
Title: Vice-President & Manager
By: /s/ Xxxx X. Council III
------------------------------
Title: Vice President
[SIGNATURES CONTINUED]
BANK OF SCOTLAND
By: /s/ Xxxxx Xxxx Tat
--------------------
Title: Vice President
[SIGNATURES CONTINUED]
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: signature on original is illegible
------------------------------------
Title:
[SIGNATURES CONTINUED]
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxxxxx
---------------------------
Title: Vice President
[SIGNATURES CONTINUED]
NATIONAL CITY BANK
By: signature on original is illegible
-------------------------------------
Title:
[SIGNATURES CONTINUED]
PNC BANK, NATIONAL ASSOCIATION
By: Xxxx X. Xxxxx
-----------------
Title: Vice President
Xxxx X. Xxxxx
[SIGNATURES CONTINUED]
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
By: /s/ Xxx Xxxxx
------------------------
Title: Senior Credit Officer
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------
Title: Vice President
[SIGNATURES CONTINUED]
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Xxxxx X. Page
-------------------
Title: Vice President
[SIGNATURES CONTINUED]
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
[SIGNATURES CONTINUED]
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxx Xxxxxxx
-------------------
Title: Director
[SIGNATURES CONTINUED]
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx X. Xxxxx
Title: Duly Authorized Signatory
[SIGNATURES CONTINUED]
XXXXXX PREMIER INCOME TRUST
By: /s/ Xxxxxx Viraui
---------------------
Title: Vice-President
[SIGNATURES CONTINUED]
XXXXXX DIVERSIFIED INCOME TRUST
By: /s/ Xxxxxx Viraui
-------------------
Title: Vice-President
[SIGNATURES CONTINUED]
XXXXXX HIGH YIELD TRUST
By: /s/ Xxxxxx Viraui
-------------------
Title: Vice-President
[SIGNATURES CONTINUED]
MELLONBANK, N.A., SOLELY IN ITS CAPACITY AS TRUSTEE
FOR THE GENERAL MOTORS CASH MANAGEMENT MASTER
TRUST, INC. (AS DIRECTED BY XXXXXXXX CAPITAL
MANAGEMENT, INC.) AND NOT IN ITS INDIVIDUAL
CAPACITY, AS ASSIGNEE
By: /s/ Xxxxxxxxxx Xxxx
--------------------------
Title: Authorized Signatory
[SIGNATURES CONTINUED]
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------
Title: Vice President
[SIGNATURES CONTINUED]
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxx Xxx XxXxxxxx
-----------------------
Title: Managing Director
[SIGNATURES CONTINUED]
ML CLO XII PILGRIM AMERICA (CAYMAN) LTD
BY: PILGRIM AMERICA INVESTMENTS, INC.,
ITS INVESTMENT MANAGER
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Title: Vice President
[SIGNATURES CONTINUED]
ALLSTATE INSURANCE COMPANY
By: signatures on original are illegible
-------------------------------------
Title:
[SIGNATURES CONTINUED]
ARES LEVERAGED INVESTMENT
FUND, L.P.
By: ARES Management, L.P.
By: ARES Operating Member, LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
--------------------
Title: Vice President
[SIGNATURES CONTINUED]
CYPRESS TREE BOSTON PARTNERS
By: signature on original is illegible
-------------------------------------
Title:
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment Xx. 0
XXXXXXX XXXXXXXX (XXXXX), INC.
By: /s/ Xxxxx X. Xxxxxx
---------------------
Title: Vice President
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
KZH HOLDING CORPORATION III
By: /s/ Xxxxxxxx Xxxxxx
-------------------------
Title: Authorized Agent
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
DELANO COMPANY
By: Pacific Investment Management Company
as its Investment Advisor
By: /s/ Xxxxxxx Xxxxxxx
---------------------
Title: Vice President
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: Second Vice President
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Title: Second Vice President
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
OSPREY INVESTMENTS PORTFOLIO
By: Citibank, N.A., as Manager
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------
Title: Vice President
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Xxxxx X. Xxxx
---------------------------
Title: AVP & Portfolio Manager
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
KZH-CRESCENT-2 CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
---------------------
Title: Authorized Agent
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Director
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
BANKERS LIFE & CASUALTY
INSURANCE COMPANY
By: signature on original is illegible
------------------------------------
Title:
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment Xx. 0
XXXXXXXXX & XXXXXXX XX
XXXXXXX COLLEGE
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Authorized Signatory
By: signature on original is illegible
-------------------------------------
Title:
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar. L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx Xxxxx
--------------------
Xxxxx Xxxxx
Vice President
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
KZH-SOLEIL-2 CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
------------------------------
Title: Authorized Agent
[SIGNATURES CONTINUED]
Xxxxx & Lord
Signature Pages to
Amendment No. 2
DEEPROCK & COMPANY
By: Xxxxx Xxxxx Management
as Investment Advisor
By: /s/ Xxxxx X. Page
-------------------
Xxxxx X. Page
Vice President
