FOURTH AMENDMENT Exhibit 4.1
TO REVOLVING CREDIT AND
GUARANTY AGREEMENT
FOURTH AMENDMENT, dated as of April16, 2003 (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 Guarantors 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 amended by that certain First Amendment to Revolving
Credit and Guaranty Agreement, dated as of December 20, 2001, that certain
Second Amendment to Revolving Credit and Guaranty Agreement, dated as of March
13, 2002 and that certain Third Amendment to Revolving Credit and Guaranty
Agreement, dated as of September 24, 2002 (as the same may be further amended,
modified or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, the Borrower has requested that certain provisions of
the Credit Agreement be amended, as set forth herein.
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 inserting the
following definitions in appropriate alphabetical order:
"Adequate Protection Order" shall mean that certain Order
Approving Adequate Protection dated April __, 2003.
"Hedge Agreements" shall mean those certain pre-petition
interest rate protection and foreign exchange agreements
between the Borrower and BofA.
"BofA" shall mean Bank of America, N.A., in its capacity as
the Borrower's counterparty under the Hedge Agreements.
3. Section 6.01 of the Credit Agreement is hereby amended by: (i) deleting the
word "and" immediately preceding clause (vi) thereof and inserting a comma in
lieu thereof, and (ii) inserting at the end thereof the clause:
"and (vii) Liens in favor of BofA as adequate protection
granted pursuant to the Adequate Protection Order, which
Liens are junior to the Liens contemplated hereby in favor of
the Agent and the Banks and pari passu with the Liens
permitted by clause (ii) of this Section, provided that the
Adequate Protection Order provides that BofA shall not be
permitted to take any action to foreclose with respect to
such junior Liens so long as any amounts shall remain
outstanding hereunder or any Commitment shall be in effect."
4. Section 7.01(m) of the Credit Agreement is hereby amended in its entirety to
read as follows:
"(m) except as permitted by the Orders or as otherwise agreed
to by the Agent, the Borrower or the Guarantors shall make any
Pre-Petition Payment other than Pre-Petition Payments
authorized by the Bankruptcy Court (s) in accordance with
other "first day" orders reasonably satisfactory to the Agent,
(t) not in excess of $8,000,000 in respect of certain critical
vendors and service providers (and other matters reasonably
acceptable to the Agent and approved by the Bankruptcy Court),
(u) in connection with the assumption of executory contracts
and unexpired leases, (v) in respect of accrued payroll and
related expenses and employee benefits as of the Filing Date,
(w) (A) in connection with asset sales permitted by Section
6.11(vi) with a portion of the Net Proceeds thereof to be
applied in accordance with that certain Order Approving Third
Amendment to Revolving Credit and Guaranty Agreement dated
September 24, 2002 (the "Third Amendment Order") and (B)
additional adequate protection payments made to the Existing
Lenders in an aggregate amount not in excess of $33,700,000 in
accordance with the Third Amendment Order, (x) additional
adequate protection payments made to the Existing Lenders in
an aggregate amount not in excess of $50,000,000 in accordance
with the Adequate Protection Order, (y) adequate protection
payments made to BofA in the form of quarterly payments of
current post-petition interest on the Borrower's obligations
under the Hedging Agreements at a rate of three month LIBOR
plus 3.25% (with LIBOR being reset on the first business day
of each month), effective as of the termination date of each
of the Hedging Agreements, and (z) payments, in an aggregate
amount not to exceed $5,000,000, in respect of certain
settlements of pre-petition claims asserted against the
Borrower or the Guarantors which settlements are approved by
the Bankruptcy Court."
5. This Amendment shall not become effective (the "Effective Date") until the
date on which (i) this Amendment shall have been executed by the Borrower, the
Guarantors and the Required Banks, and the Agent shall have received evidence
satisfactory to it of such execution, (ii) the Bankruptcy Court shall have
entered the Adequate Protection Order, and the Adequate Protection Order shall
be satisfactory in form and substance to the Agent and (iii) the Agent shall
have notified the Borrower in writing that the Effective Date has occurred.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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:
-------------------------------------
Title:
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 MILLS CORPORATION
BURLINGTON MILLS, INC.
BURLINGTON WORLDWIDE INC.
BURLINGTON WORSTEDS INC.
DISTRIBUTEX, INC.
By:
Title:
- --------------------------------------------------------------------------------
JP MORGAN CHASE BANK,
Individually and as Agent
By: _______________________________
Name:
Title:
TRANSAMERICA BUSINESS
CAPITAL CORPORATION
By: _______________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: _______________________________
Name:
Title:
SUNTRUST BANK
By: _______________________________
Name:
Title:
BANK OF AMERICA, N.A.
By: _______________________________
Name:
Title:
WEBSTER BANK
By: _______________________________
Name:
Title:
ARK II CLO 2001-1, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: ___________________
Name:
Title: Manager
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: _______________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _______________________________
Name:
Title:
FOOTHILL CAPITAL CORPORATION
By: _______________________________
Name:
Title:
FLEET NATIONAL BANK
By: _______________________________
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK
By: _______________________________
Name:
Title:
LASALLE BUSINESS CREDIT, INC.
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK
By: _______________________________
Name:
Title: