EXHIBIT 4.1
Conformed Copy
FIRST AMENDMENT
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FIRST AMENDMENT, dated as of December 20, 2001 (the
"Amendment"), to the REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of
November 15, 2001, among BURLINGTON INDUSTRIES, INC., a Delaware corporation
(the "Borrower"), a debtor and debtor-in-possession under Chapter 11 of the
Bankruptcy Code, the Guarantors named therein (the "Guarantors"), each of which
Guarantor is a debtor and debtor-in-possession in a case pending under Chapter
11 of the Bankruptcy Code, JPMORGAN CHASE BANK, a New York banking corporation
("JPMorgan Chase"), each of the other financial institutions party thereto
(together with JPMorgan Chase, the "Banks") and JPMORGAN CHASE BANK, as Agent
for the Banks (in such capacity, the "Agent"):
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Banks and the Agent
are parties to that certain Revolving Credit and Guaranty Agreement, dated as of
November 15, 2001 (as the same may be amended, modified or supplemented from
time to time, the "Credit Agreement"); and
WHEREAS, X.X. Xxxxxx Securities, Inc. acted as book manager
and lead arranger under the Credit Agreement; and
WHEREAS, the Company has requested that certain provisions of
the Credit Agreement be amended, as set forth herein; and
WHEREAS, Section 10.03(b) of the Credit Agreement provides
that each Bank may assign to one or more Banks or Eligible Assignees all or a
portion of its interests, rights and obligations under the Credit Agreement
(including, without limitation, all or a portion of its Commitment and the same
portion of the related Loans at the time owing to it) by executing and
delivering with such Bank or Eligible Assignee an Assignment and Acceptance in
substantially the form of Exhibit D to the Credit Agreement (a copy of which is
annexed hereto as Exhibit A); and
WHEREAS, JPMorgan Chase wishes to assign to each of the
financial institutions (other than JPMorgan Chase) that is named on Annex A
hereto (such financial institutions other than JPMorgan Chase, collectively the
"New Banks"), and each of the New Banks wishes to assume, a pro rata portion of
JPMorgan Chase's interests, rights and obligations under the Credit Agreement;
and
WHEREAS, the Borrower, the Guarantors, JPMorgan Chase, the New
Banks and the Agent have determined that the execution and delivery of this
Amendment to effectuate a reallocation of the Total Commitment among JPMorgan
Chase and the New Banks will be more expeditious and administratively efficient
than the execution and delivery of separate Assignment and Acceptances between
JPMorgan Chase and each of the New Banks; and
WHEREAS, upon the occurrence of the Effective Date (as
hereinafter defined) of this Amendment, each of the New Banks shall become a
party to the Credit Agreement as a Bank and shall have the rights and
obligations of a Bank thereunder, and the respective Commitment of JPMorgan
Chase and each of the New Banks under the Credit Agreement shall be in the
amount set forth opposite its name on Annex A hereto, as the same may be reduced
from time to time pursuant to Section 2.10 of the Credit Agreement;
WHEREAS, upon and after the Effective Date, Wachovia
Securities, Inc. will act as syndication agent and Bank of America, N.A. will
act as documentation agent.
NOW, THEREFORE, it is agreed:
1. As used herein all terms that are defined in the Credit Agreement shall have
the same meanings herein.
2. Section 1.01 of the Credit Agreement is hereby amended by:
(a) amending the definition of "Borrowing Base" by inserting the phrase
"calculated inclusive of
Eligible Equipment" at the end of the proviso contained in the first
sentence thereof;
(b) amending the definition of the term "Eligible Accounts Receivables"
by deleting the first sentence thereof and inserting in lieu thereof the
following:
"Eligible Accounts Receivable" shall mean, at the time of any
determination, the gross outstanding balance at such time,
determined in accordance with GAAP and stated on a basis
consistent with the historical practices of the Borrower as of
the date hereof, of Accounts of the Borrower less, as
applicable and without duplication, the aggregate amount of
(i) all accrued rebates, (ii) all finance agreements, (iii)
all trade discounts, (iv) all finance charges, late fees and
other fees that are unearned, (v) all reserves for service
fees and such other fees or commissions or similar amounts
that the Borrower has agreed to pay, (vi) all cash received in
respect of Accounts but not yet applied by the Borrower to
reduce the amount of the Accounts, (vii) any other Accounts
deemed ineligible at the reasonable discretion of the Agent
and (viii) any Account deemed ineligible for inclusion in the
calculation of the Borrowing Base pursuant to any of clauses
(a) through (r) below or otherwise deemed by the Agent in its
reasonable discretion to be ineligible for inclusion in the
calculation of the Borrowing Base as described below.
(c) amending the definition of "Eligible Equipment" by deleting the
text thereof in its entirety and inserting in lieu thereof the following:
"Eligible Equipment" shall mean, at any time of any
determination, an amount equal to the lesser of (i) (a) 25% of
the orderly liquidation value of certain machinery and
equipment owned by the Borrower at the Stonewall Plant, Hurt
Plant, Reidsville Weaving Plant, and Sheffield Plant, plus (b)
65% of the liquidation value in place of certain machinery and
equipment owned by the Borrower at the Glasgow Carpet Plant;
based on the most recent appraisal performed by an independent
appraisal firm acceptable to the Administrative Agent, or (ii)
$19,000,000. If any of the equipment in these plants is sold
or rendered unsaleable, the applicable appraised values must
be reduced by a reserve equal to (i) the net book value of the
sold or unsaleable equipment at the applicable plant divided
by (ii) the net book value of all the equipment appraised in
the applicable plant multiplied by (iii) the appraised value
of all the equipment appraised for the applicable plant.
(d) amending the definition of the term "Inventory Reserves" by
deleting the word "or" after each subparagraph appearing therein and inserting
in lieu thereof the word "and".
(e) amending the definition of the term "Foreign Factoring Agreement"
by deleting the text thereof in its entirety and inserting in lieu thereof the
following:
"Foreign Factoring Agreements" shall mean (i) that certain
Factoring Agreement, dated as of July 20, 1993 between the
Borrower and GMAC Commercial Credit LLC or its permitted
successors and assigns, as amended, restated or replaced from
time to time on terms reasonably satisfactory to the Agent,
and (ii) that certain Export Receivables Agreement, dated as
of September 9, 1997, between the Borrower and GMAC Commercial
Credit LLC or its permitted successors and assigns, as
amended, restated or replaced from time to time on terms
reasonably satisfactory to the Agent.
(d) amending the definition of the term "Foreign Factoring Receivables"
by deleting the use of the defined term "Foreign Factoring Agreement" appearing
therein and inserting in lieu thereof the defined term "Foreign Factoring
Agreements".
3. Exhibit E to the Credit Agreement is hereby replaced in its entirety by
Exhibit B attached hereto.
4. Annex A to the Credit Agreement is hereby replaced in its entirety by Annex A
hereto.
5. The signature pages of the Credit Agreement are hereby amended to conform to
the signature pages hereto.
6. By its execution and delivery hereof, JPMorgan Chase shall be deemed to have
made each of the statements set forth in clauses (i) and (ii) of paragraph 2 of
the Assignment and Acceptance as if such statements were fully set forth herein
at length.
7. By its execution and delivery hereof, each of the New Banks shall be deemed
to have made each of the statements set forth in clauses (i), (ii), (iii), (iv)
and (v) of paragraph 3 of the Assignment and Acceptance as if such statements
were fully set forth herein at length.
8. On the Effective Date, (i) each New Bank will pay to the Agent (for the
account of JPMorgan Chase) such amount as represents such New Bank's pro rata
portion of the aggregate principal amount of the Loans, if any, that are
outstanding on the Effective Date and such New Bank's pro rata portion of the
aggregate amount of the then unreimbursed drafts, if any, that were theretofore
drawn under Letters of Credit, and (ii) the Agent shall pay to each of the New
Banks such fees as have been previously agreed to between the Agent and such New
Bank. Promptly following the occurrence of the Effective Date, and in accordance
with Section 10.03(e) of the Credit Agreement, the Agent shall record in the
Register the names and addresses of each New Bank and the principal amount equal
to such Bank's Commitment reflected on Annex A hereto.
9. By its execution and delivery hereof, each of the New Banks (i) agrees that
any interest, Commitment Fees and Letter of Credit Fees (pursuant to Sections
2.08, 2.20 and 2.21 of the Credit Agreement) that accrued prior to the Effective
Date shall not be payable to such New Bank and authorizes and directs the Agent
to deduct such amounts from any interest, Commitment Fees or Letter of Credit
Fees paid after the date hereof and to pay such amounts to JPMorgan Chase (it
being understood that interest, Commitment Fees and Letter of Credit Fees
respecting the Commitment of JPMorgan Chase and each New Bank which accrue on or
after the Effective Date shall be payable to such Bank in accordance with its
Commitment), (ii) acknowledges that if such New Bank is organized under the laws
of a jurisdiction outside of the United States, such New Bank has heretofore
furnished to the Agent the forms prescribed by the Internal Revenue Service of
the United States certifying as to such New Bank's exemption from United States
withholding taxes with respect to any payments to be made to such New Bank under
the Credit Agreement (or such other documents as are necessary to indicate that
all such payments are subject to such tax at a rate reduced by an applicable tax
treaty) and (iii) acknowledges that such New Bank has heretofore supplied to the
Agent the information requested on the administrative questionnaire which is
attached to the Assignment and Acceptance as Exhibit A.
10. This Amendment shall not become effective (the "Effective Date") until (i)
the date on which this Amendment shall have been executed by the Borrower, the
Guarantors, JPMorgan Chase, the New Banks and the Agent, and the Agent shall
have received evidence satisfactory to it of such execution and (ii) the
payments provided for in clauses (i) and (ii) of paragraph 8 hereof shall have
been made.
11. Except to the extent hereby amended, the Credit Agreement and each of the
Loan Documents remain in full force and effect and are hereby ratified and
affirmed.
12. The Borrower agrees that its obligations set forth in Section 10.05 of the
Credit Agreement shall extend to the preparation, execution and delivery of this
Amendment, including the reasonable fees and disbursements of special counsel to
the Agent.
13. This Amendment shall be limited precisely as written and shall not be deemed
(a) to be a consent granted pursuant to, or a waiver or modification of, any
other term or condition of the Credit Agreement or any of the instruments or
agreements referred to therein or (b) to prejudice any right or rights which the
Agent or the Banks may now have or have in the future under or in connection
with the Credit Agreement or any of the instruments or agreements referred to
therein. Whenever the Credit Agreement is referred to in the Credit Agreement or
any of the instruments, agreements or other documents or papers executed or
delivered in connection therewith, such reference shall be deemed to mean the
Credit Agreement as modified by this Amendment.
14. This Amendment may be executed in any number of counterparts and by the
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
15. This Amendment shall be governed by, and construed in accordance with, the
laws of the State of New York.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
BORROWER:
BURLINGTON INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxxx
Title: Treasurer
GUARANTORS:
B. I. TRANSPORTATION, INC.
------------------------------------------
BH/M-II INC.
BI PROPERTIES INC.
BI PROPERTIES I INC.
BII MEXICO HOLDINGS I, INC.
BII MEXICO HOLDINGS II, INC.
BII MEXICO LAUNDRY HOLDING CO.
BII MEXICO YARNS HOLDING CO.
BURLINGTON APPAREL SERVICES COMPANY
BURLINGTON FABRICS INC.
BURLINGTON FABRITEX USA, INC.
BURLINGTON INDUSTRIES I, LLC
BURLINGTON INDUSTRIES II, LLC
BURLINGTON INDUSTRIES III, LLC
BURLINGTON INDUSTRIES IV, LLC
BURLINGTON INDUSTRIES V, LLC
BURLINGTON INTERNATIONAL SERVICES COMPANY
BURLINGTON INVESTMENT INC.
BURLINGTON INVESTMENT II INC.
BURLINGTON XXXXX CORPORATION
BURLINGTON XXXXX, INC.
BURLINGTON WORLDWIDE INC.
BURLINGTON WORSTEDS INC.
DISTRIBUTEX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx III
Title: Secretary
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XX XXXXXX CHASE BANK,
Individually and as Agent
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
TRANSAMERICA BUSINESS
CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxx XxXxxxxx
-------------------
Name: Xxxxxx XxXxxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxx Mamilovoich
Name: Xxxxx Xxxxxxxxxx
Title: Director
BANK OF AMERICA, N.A.
By: /s/ Xxx X. Xxxxxxxxxxx
----------------------
Name: Xxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXXX BANK
By: /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title: Vice President
ARK II CLO 2001-1, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: /s/ Xxxx Xxxxxx
---------------------
Name:
Title: Manager
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx Xx.
----------------------
Name: Xxxxx X. Xxxxx Xx.
Title: Duly Authorized Signatory
FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ISRAEL DISCOUNT BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: First Vice President
By: _/s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
LASALLE BUSINESS CREDIT, INC.
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx X. Rio
--------------------
Name: Xxxxxxxxx X. Rio
Title: Vice President
