Exhibit 10.28
THIRD CONSENT AND AMENDMENT
This Third Consent and Amendment (the "Consent and Amendment") is
dated as of September 8, 2003, among GFSI, Inc., a Delaware corporation (the
"Borrower"), GFSI Holdings, Inc., a Delaware corporation ("Holdings"), each of
the financial institutions a party to thereto (such financial institutions,
together with their successors and assigns, are referred to in this Consent
and Amendment each individually as a "Lender" and collectively as the
"Lenders"), and Bank of America, N.A., as agent for the Lenders (in its
capacity as agent, the "Agent") and pertains to the Loan Documents, including,
without limitation:
(i) the Credit Agreement dated as of March 28, 2002, among
Borrower, Holdings, Lenders and the Agent (as it has been or may
hereafter be amended, restated, supplemented, extended or otherwise
modified, the "Credit Agreement"),
(ii) the Security Agreement dated as of March 28, 2002,
among Borrower, Event 1, Inc., CC Products, Inc. and Agent (as it has
been or may hereafter be amended, restated, supplemented, extended or
otherwise modified, the "Security Agreement"), and
(iii) the Pledge Agreement dated as of March 28, 2002,
between Holdings and the Agent (as it has been or may hereafter be
amended, restated, supplemented, extended or otherwise modified, the
"Holdings Pledge Agreement"), and
(iv) the Pledge Agreement dated as of March 28, 2002,
between Borrower and Agent (as it has been or may hereafter be
amended, restated, supplemented, extended or otherwise modified, the
"Borrower Pledge Agreement").
Recitals
1. Jefferies & Company ("Jefferies") is purchasing 11.375% Senior
Discount Notes of Holdings (the "Notes") with an aggregate principal amount at
maturity exceeding $40 million. In connection with these purchases, the
Indenture dated September 17, 1997, between Holdings and U.S. Bank, N.A. (as
successor to State Street Bank and Trust Company), as Trustee (as amended, the
"Indenture"), as amended by the First Supplemental Indenture dated as of
October 11, 1999, will be further amended by a Second Supplemental Indenture
(the "Second Supplemental Indenture"). Jefferies will then sell to Borrower
and Gearcap (as defined below), and Borrower and Gearcap will each purchase
from Jefferies, the Notes (as described in paragraphs 2 and 3 below).
2. Larry D. Graveel (a director and officer of Borrower and Holdings
and a beneficial stockholder of Holdings), Michael H. Gary (a director and
officer of Borrower and Holdings and a beneficial stockholder of Holdings) and
Barry Golden (a beneficial stockholder of Holdings) formed a Delaware limited
liability company called Gearcap LLC ("Gearcap"). Gearcap is being initially
capitalized with approximately $12.3 million in initial capital contributions
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by Messrs. Graveel, Gary and Golden and borrowings from Messrs. Golden and
Robert M. Wolff (a director and officer of Borrower and Holdings and a
beneficial stockholder of Holdings). Gearcap's repayment of these member loans
is being secured by Gearcap's pledge of the Holdings stock it acquires from
Holdings (as described in paragraph 4 below) to Messrs. Golden and Wolff.
Gearcap is using these funds to purchase Notes from Jefferies (as
described in paragraph 1 above) and to pay the 2003 Transaction Expenses (as
described in paragraph 9 below).
3. Borrower is borrowing up to $10 million from the Lenders under the
Credit Agreement. Borrower is using the proceeds of this loan to purchase
Notes from Jefferies (as described in paragraph 1 above) and pay the 2003
Transaction Expenses (as described in paragraph 9 below). Borrower will hold
these Notes as an investment and pledge them as additional Collateral under
the Credit Agreement.
4. Holdings and Gearcap will enter into an Exchange Agreement (the
"Exchange Agreement") under which they will agree to exchange newly authorized
stock of Holdings for Notes. Gearcap will exchange the Notes it purchases from
Jefferies for, and Holdings will issue to Gearcap in exchange for the Notes
being tendered:
(a) 8,250 shares of duly authorized and fully paid shares of
Series C common stock of Holdings (approximately 80% of the fully
diluted issued and outstanding common stock of Holdings and with
substantially the same attributes as Holdings' existing Series A and
B common stock), and
(b) 11,490 shares of duly authorized and fully paid shares
of Series E 10% Cumulative Preferred Stock of Holdings (approximately
78% of the fully diluted issued and outstanding preferred stock of
Holdings and with substantially the same attributes as Holdings'
existing Series A, B and C preferred stock).
After the exchange, the ownership (of record or beneficial) of
Holdings common stock will be approximately as follows:
========================================= =======================
Stockholder Percentage
Directly Held
----------------------------------------- -----------------------
Gearcap 80%
----------------------------------------- -----------------------
Management Stockholders 10%
----------------------------------------- -----------------------
Jordan Stockholders 10%
========================================= =======================
5. Borrower and Holdings will enter into a contribution agreement
(the "Contribution Agreement") under which Holdings will contribute the Notes
it receives from Gearcap to Borrower as a capital contribution. Borrower will
hold these Notes as an investment and pledge them as additional Collateral
under the Credit Agreement.
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6. Holdings and its shareholders (including Gearcap) will enter into
an agreement (the "Second Amended and Restated Stockholders Agreement") that
amends the existing Amended and Restated Subscription and Stockholders
Agreement dated as of December 19, 2000, among Holdings and its shareholders.
7. Holdings and Gearcap will enter into a management agreement (the
"2003 Management Agreement") with Gearcap under which Gearcap will provide
certain services to Holdings and its affiliates in return for the payment of
certain fees and expenses. The 2003 Management Agreement will have a 10 year
term and will be in addition to the TJC Amendment (as defined below).
8. Holdings and TJC Management Corporation will enter into an
agreement (the "TJC Amendment") that amends the existing Management Consulting
Agreement between them dated February 27, 1997, to reduce the amount payable
by Holdings to TJC Management Corporation from up to $1,000,000 annually to
$100,000 annually plus reasonable out of pocket expenses.
9. Gearcap, Holdings and Borrower will bear the transaction costs
relating to the 2003 Recapitalization Transactions (as defined below),
including, without limitation, commissions, trading fees and other fees of
Jefferies, the Amendment Fee (as defined below) and legal, accounting and tax
opinion fees and related expenses (collectively, the "2003 Transaction
Expenses").
10. The three directors of Holdings and Borrower representing the
Jordan shareholders will resign. The vacancies created by these resignations
will either be filled with new directors or eliminated by reducing the size of
the Boards of Directors, or both.
11. The Stated Termination Date under the Credit Agreement will be
extended to January 15, 2006 (or the date to which the Credit Agreement is
extended under Section 10.1 of the Credit Agreement), if Borrower and Gearcap
(or either of them) purchase, in the aggregate, Notes with an aggregate
principal amount at maturity exceeding $50,000,000 on or before December 31,
2003.
12. Messrs. Graveel, Gary and Peterson will cease being employed by
Holdings and become employed by Gearcap.
13. The Articles of Incorporation of Holdings will be amended (the
"Articles Amendment").
14. The transactions and related matters described above in these
Recitals and as more fully described in Indenture (as amended by the Second
Supplemental Indenture), the Exchange Agreement, the Contribution Agreement,
the Second Amended and Restated Stockholders Agreement, the 2003 Management
Agreement, the TJC Agreement Amendment, the Articles Amendment and the
documents and instruments referred to or delivered by Borrower, Holdings or
Gearcap under them (collectively, the "Recapitalization Documents") are
collectively referred to in this Consent and Amendment as the "2003
Recapitalization Transactions." In connection with these transactions,
Borrower has requested that the Lenders and Agent execute and deliver this
Consent and Amendment.
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Agreement
Therefore, in consideration of the mutual execution of this Consent
and Amendment and other good and valuable consideration, the parties to this
Consent and Amendment agree as follows:
1. Definitions. Capitalized terms that are used in this Consent and
Amendment but are not otherwise defined in this Consent and Amendment have the
meanings ascribed to them in the Credit Agreement.
2. Amendment Fee. Borrower will pay to Agent, for the ratable benefit
of Lenders, an amendment fee in an amount equal to $150,000 (the "Amendment
Fee"), which fee will be fully earned on the date of this Consent and
Amendment and payable on the date on which Borrower purchases its portion of
the Notes. The Agent and the Lenders agree that Borrower's obligation to pay
this Amendment Fee will be waived if Borrower fails to purchase any Notes on
or before December 31, 2003.
Notwithstanding the foregoing, if the Stated Termination Date is
extended to January 15, 2006, and Borrower has not otherwise paid the
Amendment Fee because Borrower has not purchased any Notes, Borrower
acknowledges and agrees:
(a) that it will immediately pay an extension fee in an
amount that is mutually acceptable to Borrower, Agent and Lenders,
and
(b) that the extension will not become effective until
Borrower pays this fee.
3. Loan Document Consents. Upon satisfaction of the conditions set
forth in Section 5 of this Consent and Amendment, Agent and Lenders agree as
set forth below in this Paragraph 3. These agreements are not effective as to
any Note purchases or 2003 Transaction Expenses occurring after December 31,
2003.
(a) Lenders and Agent agree that this Consent and Amendment
satisfies any duty of Borrower or its Subsidiaries to give notice to
Lenders or Agent under the Loan Documents, including under Section
5.3(j) of the Credit Agreement and Section 4 of the Security
Agreement, of the location of the Collateral or the relocation of the
Collateral, but only with respect to Notes and only to the extent
that the Notes constitute Collateral.
(b) Notwithstanding the provisions of Sections 6.22 and 7.25
of the Credit Agreement that limit Borrower's use of the proceeds of
the Loans to certain specified uses, Lenders and Agent consent and
agree to Borrower's use of proceeds of the Loans in an aggregate
amount not to exceed $10,000,000 for Borrower's purchase of Notes and
for the payment of the 2003 Transaction Expenses; provided, that:
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(i) Borrower's use of the proceeds of the Loans to
purchase the Notes occurs no later than December 31, 2003,
and
(ii) Borrower is responsible for no more than 50%
of the total funds that Borrower and Gearcap, in the
aggregate, use to purchase Notes and pay 2003 Transaction
Expenses in connection with the 2003 Recapitalization
Transactions.
(c) Notwithstanding the provisions of Section 7.10 of the
Credit Agreement that prohibit certain Restricted Investments,
Lenders and Agent consent and agree to Borrower's purchase of Notes
from Jefferies, and Holdings' acquisition of Notes from Gearcap and
subsequent contribution of Notes to Borrower. Lenders and Agent
acknowledge that Borrower may purchase additional Notes,
notwithstanding the limitations set forth in this paragraph (c), with
Gearcap funding, with the written consent and agreement of Lenders
and Agent after the date of this Consent and Amendment.
(d) Notwithstanding the provisions of Section 7.13 of the
Credit Agreement and Section 6(d) of the Holdings Pledge Agreement,
Lenders and Agent consent and agree that Holdings has no obligation
to pledge, and will not pledge, the Notes that it receives from
Gearcap under the Exchange Agreement and contributes to Borrower
under the Contribution Agreement.
(e) Notwithstanding the provisions of Section 7.15 of the
Credit Agreement that prohibit Borrower from investing in an
Affiliate, purchasing indebtedness of an Affiliate, paying the
expenses of an Affiliate, or engaging in certain other transactions,
Lenders and Agent consent and agree to:
(i) Borrower's purchase of Notes, provided that:
(A) such Note purchases occur no later
than December 31, 2003,
(B) Borrower uses no more than $10,000,000
in the aggregate of the proceeds of the Loans to
acquire such Notes and pay 2003 Transaction
Expenses, and
(C) Borrower is responsible for no more
than 50% of the total funds that Borrower and
Gearcap, in the aggregate, use to purchase Notes
and pay 2003 Transaction Expenses in connection
with the 2003 Recapitalization Transactions,
(ii) Borrower's payment of the 2003 Transaction
Expenses, and
(iii) Borrower's and Holdings' execution and
delivery of the Contribution Agreement and the consummation
of the transactions contemplated under it.
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(f) Notwithstanding the provisions of Section 7.15 of the
Credit Agreement that prohibit Borrower and its Subsidiaries from
transferring, purchasing or repurchasing any stock or indebtedness of
any Affiliate, and engaging in certain other transactions, Agent and
Lenders consent and agree to Borrower's and Holdings' execution and
delivery of the Contribution Agreement and the consummation of the
transactions contemplated under it.
(g) Notwithstanding the provisions of Section 7.17 of the
Credit Agreement that prohibit Borrower from engaging in any business
other than the business it was engaged in the date of the Credit
Agreement, Lenders and Agent consent and agree to Borrower's:
(i) purchase or receipt of Notes, and
(ii) subsequent holding of the Notes as an
investment.
(h) Notwithstanding the provisions of Section 9.1(p) of the
Credit Agreement under which a Change of Control is an Event of
Default, the Lenders and Agent consent to the Change of Control
otherwise caused by the 2003 Recapitalization Transactions and waive
any resulting Event of Default. Lenders and Agent acknowledge and
agree that Holdings and Borrower may replace the Jordan Directors
and/or reduce the size of their respective Boards of Directors.
(i) Agent and Lenders agree that they will, at any time and
from time to time, at Borrower's reasonable request and at Borrower's
expense, execute and deliver to Borrower all other instruments that
are reasonably necessary to effectuate the 2003 Recapitalization
Transactions.
(j) Notwithstanding any other provision of any of the Loan
Documents, and without limitation by the specific consents and
amendments granted or made in this Consent and Amendment, the Lenders
and Agent consent to the 2003 Recapitalization Transactions, as
described in the Recitals and more fully described in the
Recapitalization Documents.
4. Amendments. The Loan Documents are amended as follows:
(a) Schedule 6.4 to the Credit Agreement ("Corporate Name;
Prior Transactions") is amended in its entirety by substituting the
revised Schedule 6.4 that is attached to this Consent and Amendment
as Exhibit A.
(b) Schedule 6.5 to the Credit Agreement ("Subsidiaries and
Affiliates") is amended in its entirety by substituting the revised
Schedule 6.5 that is attached to this Consent and Amendment as
Exhibit B.
(c) Section 6.7(b) of the Credit Agreement is amended in its
entirety so that, as amended, it reads as follows:
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"(b) Holdings' authorized common capital stock
consists of:
(i) 1,000 shares of Series A common stock,
par value $.01 per share of which 1,000 shares are
validly issued and outstanding or held as treasury
stock, fully paid and non-assessable,
(ii) 1,000 shares of Series B common
stock, par value $.01 per share, of which 1,000
shares are validly issued and outstanding, fully
paid and non-assessable and; in each case, are
owned beneficially and of record by the parties
listed on Schedule 6.7, and
(iii) 12,000 shares of Series C common
stock, par value $.01 per share, of which 8,250
shares are validly issued and outstanding, fully
paid and non-assessable and are owned of record by
Gearcap."
(d) Schedule 6.7 to the Credit Agreement ("Capitalization")
is amended in its entirety so that, as amended, it reads as set forth
on the attached Exhibit C.
(e) Schedule 6.26 to the Credit Agreement ("Material
Agreements") is amended in its entirety by substituting the revised
Schedule 6.26 that is attached to this Consent and Amendment as
Exhibit D.
(f) The proviso at the end of the definition of "Affiliate"
in the Credit Agreement is amended so that as amended, it reads as
follows:
"provided, however, that the term "Affiliate" specifically
excludes JZ Equity Partners PLC and Gearcap."
(g) The definition of "Change of Control" in the Credit
Agreement is amended to read as follows:
"Change of Control" means any event, transaction or
occurrence as a result of which:
(a) the Management Stockholders
collectively cease to own and control, whether
directly of record or through ownership of units of
Gearcap, all of the economic and voting rights
associated with ownership of at least fifty-five
percent (55%) of the outstanding common stock of
Holdings,
(b) Holdings ceases to own and control all
of the economic and voting rights associated with
all of the outstanding capital stock of Borrower,
or
(c) Borrower ceases to own and control all
of the economic and voting rights associated with
all of the outstanding capital stock of any of its
Subsidiaries.
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For purposes of this definition, ownership of any
percentage of the equity units of Gearcap is deemed to be
ownership of the same percentage of the shares of common
stock of Holdings then held by Gearcap.
(h) The definition of "ERISA Affiliate" in the Credit
Agreement is amended by adding at the end of the definition the
following proviso:
"provided, however, that the term "ERISA Affiliate"
specifically excludes Gearcap."
(i) The definition of "Jordan Stockholders" in the Credit
Agreement is deleted in its entirety.
(j) The definition of "Management Stockholders" in the
Credit Agreement is amended so that as amended, it reads as follows:
"Management Stockholders" means Robert Wolff, Larry
Graveel, Mike Gary, J. Craig Peterson, Jason Krakow, Carl
Allard, Jim Malseed and their family members and trusts for
the benefit of any of the foregoing."
(k) The definition of "Permitted Holdings Payments" in the
Credit Agreement is amended in its entirety by substituting the
revised definition that is attached to this Consent and Amendment as
Exhibit E.
(l) The definition of "Stated Termination Date" in the
Credit Agreement is amended so that, as amended, it reads as follows:
"Stated Termination Date" means January 15, 2005,
or the date to which this Agreement is extended pursuant to
Section 10.1; provided that if Borrower and Gearcap (or
either of them) purchase, in the aggregate, Holdings'
11.375% Senior Discount Notes with an aggregate principal
amount at maturity exceeding $50,000,000 on or before
December 31, 2003, then "Stated Termination Date" will mean
January 15, 2006, or the date to which this Agreement is
extended pursuant to Section 10.1.
(m) Section 6(a) of the Security Agreement is amended so
that, as amended, it reads as follows:
"such Grantor has rights in and the power to transfer all of
the Collateral free and clear of all Liens whatsoever,
except for Permitted Liens and except for the limitations
and restrictions imposed on the transfer of securities
(including the Notes) by applicable federal and state law."
(n) Schedule I to the Borrower Pledge Agreement is amended
in its entirety by substituting the revised Schedule I that is
attached to this Consent and Amendment as Exhibit F.
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(o) The definition of "Fixed Charges" is amended in its
entirety so that as amended, it reads as follows:
"Fixed Charges" means, with respect to any fiscal
period of Holdings on a consolidated basis, without
duplication, interest expense paid in cash, scheduled
principal payments of Debt, scheduled amortization of the
Fixed Asset Amount, Federal, state, local and foreign income
taxes (net of any tax benefits with respect to such taxes),
excluding deferred taxes, but including all such taxes paid
by or refunded to, Holdings and its Subsidiaries on a
consolidated basis and without duplication of amounts
deductible in the calculation of EBITDA, all Distributions
paid in cash by Holdings and the borrower, plus the
difference between:
(i) any Distribution paid in cash
permitted pursuant to clause (e) or (i) of the
definition of Permitted Holdings Payments, minus
(ii) an amount equal to the cash proceeds
received by Holdings from stock issuances, stock
reissuances or the exercise of stock options to the
extent such proceeds are distributed or contributed
to the Borrower,
but "Fixed Charges" does not include:
(A) Borrower's payment of funds to
Holdings for use in paying interest or other
payments under the Notes that Borrower holds, and
Holdings' payment to Borrower of interest or other
payments under the Notes that Borrower holds, but
in each case only to the extent that Borrower
receives the interest or other payments,
(B) Borrower's deemed payment of funds to
Holdings for use in paying interest or other
payments under the Notes that Borrower holds, and
Holdings' deemed payment to Borrower of interest or
other payments under the Notes that Borrower holds,
but in each case only to the extent that Borrower
is credited with the deemed interest or other
payments, and
(C) Borrower's assignment to Holdings of
its right to receive interest or other payments
under the Notes that Borrower holds, subject to the
rights of Agent and Lenders under the Loan
Documents with respect to Collateral upon the
occurrence of an Event of Default.
(p) Annex A to the Credit Agreement is amended by adding the
following new definitions:
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"Consent and Amendment" means the Third Consent and
Amendment to this Credit Agreement.
"Gearcap" means Gearcap LLC, a Delaware limited
liability company.
"2003 Transaction Expenses" means the transaction
costs relating to the recapitalization transactions
described in the Consent and Amendment, including, without
limitation, commissions, trading fees and other fees of
Jefferies & Company, the amendment fee paid by Borrower in
connection with the Consent and Amendment and legal,
accounting and tax opinion fees and related expenses
5. Conditions to Effectiveness.
(a) Except as set forth in subparagraph (b) below, this
Consent and Amendment will become effective when each of the
following conditions precedent has been met or waived in writing by
Agent:
(i) Consent and Amendment. Agent, Borrower,
Holdings, Event 1, Inc. CC Products, Inc. and Lenders will
have delivered to the others duly executed counterparts to
this Consent and Amendment.
(ii) Reaffirmation of Guaranty. Holdings will have
executed and delivered to Agent the Reaffirmation of
Guaranty attached to this Consent and Amendment.
(b) Assuming that the conditions precedent set forth in
clause (a) above have been satisfied:
(i) Clauses (b), (d), (g) and (i) of Paragraph 4
("Amendments") of this Consent and Amendment will become
effective upon the consummation of the related transactions,
as the case may be, contemplated by the Exchange Agreement
or other Recapitalization Documents.
(ii) To the extent that clause (c) of Paragraph 4
("Amendments") of this Consent and Amendment pertains to the
authorized capital stock of Holdings, it will become
effective upon the filing of the Articles Amendment. The
remainder of this clause (c) will become effective upon the
consummation of the related transactions, contemplated by
the Exchange Agreement or other Recapitalization Documents.
(iii) To the extent clause (k) of Paragraph 4
("Amendments") of this Consent and Amendment pertains to
subparagraph (a) of the "Permitted Holdings Payments"
definition found on Exhibit E, it will become effective upon
the execution and delivery of the TJC Amendment.
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(iv) Clause (n) of Paragraph 4 ("Amendments") of
this Consent and Amendment will become effective upon the
earlier of (A) the consummation of the related transactions
contemplated by the Contribution Agreement, and (B)
Borrower's purchase of Notes or other Recapitalization
Documents.
6. Acknowledgment and Deliveries. Borrower affirms its obligation
under the Loan Documents to pledge the Notes it acquires from Jefferies and
the Notes it acquires from Holdings to Agent (for itself and for the benefit
of the Lenders), and will do so promptly after acquiring the Notes.
Borrower will deliver fully executed copies of the Recapitalization
Documents to Agent, certified as complete and accurate by an officer of
Borrower, promptly upon the execution and delivery of the Recapitalization
Documents.
7. Costs and Expenses. As provided in Section 13.7 of the Credit
Agreement, Borrower will reimburse Agent for all reasonable costs and expenses
that Agent incurs (including reasonable attorneys' costs) in connection with
the preparation, execution, delivery and administration of this Consent and
Amendment (and the other documents to be delivered in connection with this
Consent and Amendment).
8. Miscellaneous. Except to the extent compliance with this Consent
and Amendment is expressly waived or consents are granted under this Consent
and Amendment, the Credit Agreement will remain unchanged and in full force
and effect. This Consent and Amendment may be executed in any number of
counterparts, all of which taken together will constitute one and the same
amendatory instrument. Any of the parties to this Consent and Amendment may
execute this Consent and Amendment by signing any such counterpart and sending
it by telecopier, mail messenger or courier to the Agent or the Agent's
counsel. The parties intend that this Consent and Amendment be interpreted,
and the rights and liabilities of the parties to this Consent and Amendment be
determined, under the internal laws (as opposed to the conflict of laws
provisions) of Illinois; but the Agent and the Lenders retain all rights
arising under federal law. The attached Exhibits A through F are incorporated
into this Consent and Amendment by this reference.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties to this Consent and Amendment have
caused it to be duly executed as of the day and year first above written.
"BORROWER"
GFSI, Inc.
By: /s/ Larry Graveel
-----------------------------------
Larry Graveel, President
"HOLDINGS"
GFSI Holdings, Inc.
By: /s/ Larry Graveel
-----------------------------------
Larry Graveel, President
[This is one of the signature pages to the Third Consent and Amendment dated
as of September 8, 2003.]
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EVENT 1, INC.
By:/s/ Larry Graveel
--------------------------------
Name: Larry Graveel
------------------------------
Title: President and CEO
-----------------------------
CC PRODUCTS, INC.
By:/s/ Larry Graveel
--------------------------------
Name: Larry Graveel
------------------------------
Title: President and CEO
-----------------------------
[This is one of the signature pages to the Third Consent and Amendment dated
as of September 8, 2003.]
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"AGENT"
BANK OF AMERICA, N.A., as the Agent
By: /s/Dan Jelaca
--------------------------------
Dan Jelaca, Vice President
"LENDERS"
BANK OF AMERICA, N.A., as a Lender
By: /s/ Dan Jelaca
--------------------------------
Dan Jelaca, Vice President
[This is one of the signature pages to the Third Consent and Amendment dated
as of September 8, 2003.]
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THE CIT GROUP/COMMERCIAL
SERVICES, INC., as a Lender
By: /s/ James K. Harris
-------------------------------
James K. Harris, Vice President
[This is one of the signature pages to the Third Consent and Amendment dated
as of September 8, 2003.]
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U.S. BANK NATIONAL
ASSOCIATION, as a Lender
By: /s/ Thomas Visconti
-------------------------------
Thomas Visconti, Vice President
[This is one of the signature pages to the Third Consent and Amendment dated
as of September 8, 2003.]
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Reaffirmation of Guaranty
The undersigned Guarantor acknowledges receipt of a copy of this
Third Consent and Amendment, and reaffirms the Guaranty dated March 28, 2002,
between GFSI Holdings, Inc. and Agent.
GFSI Holdings, Inc.
By:/s/ Larry Graveel
--------------------------------
Name: Larry Graveel
------------------------------
Title: President and CEO
-----------------------------
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EXHIBIT A
---------
Schedule 6.4 to the Credit Agreement
(Corporate Name; Prior Transactions)
Borrower and its Subsidiaries have been known by or used the following
corporate or fictitious names within the past five (5) years:
o GFSI, Inc.
o Event 1, Inc.
o CC Products, Inc
o Gear Canada ULC .
o Champion Custom Products
o CC Products-Champion
o GEAR For Sports
o Any of the trademarks listed on Schedule 6.12.
Borrower and/or its Subsidiaries, however, do not receive payments under all
of the trade names.
In the past five (5) years Borrower and/or its Subsidiaries have been a party
to the following transactions:
o GFSI Holdings, Inc. ("Holdings") on February 27, 1997, acquired all
of the issued and outstanding capital stock of Winning Ways, Inc. and
immediately thereafter merged Winning Ways, Inc. with and into GFSI,
Inc. ("GFSI") with GFSI as the surviving entity. All of the capital
stock of Winning Ways, Inc. acquired by Holdings in connection with
the acquisition was contributed to GFSI along with the balance of
equity contributions.
o On January 29, 1998, GFSI, Inc. established a wholly owned
subsidiary, Event 1, Inc. ("Event 1").
o On June 25, 2001, GFSI, Inc. through a series of corporate
transactions and mergers effectively acquired 100% of the stock of
Champion Products, Inc. ("Champion"). Through these corporate
transactions and mergers, CC Products, Inc. became the successor to
Champion Products, Inc.
o On June 29, 2001, GFSI, Inc. sold its Tandem Marketing business.
o During 2002, GFSI, Inc. constructed a screen print decoration
facility in Chillicothe, Missouri.
o As of December 31, 2002, GFSI, Inc. ("GFSI") entered into an Exchange
Agreement with Jefferies Company, Inc., under which GFSI engaged in
an exchange of $24,000,000 in aggregate maturity of Notes with a note
holder, involving GFSI's issuance of approximately $9,900,000
(aggregate principal amount) of Senior Subordinated Notes pursuant to
its Indenture dated as of December 31, 2002 for Series A & B 9 5/8%
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Senior Subordinated Notes due 2007 with State Street Bank and Trust
Company (now succeeded by U.S. Bank, N.A.), as trustee. This
transaction is referred to in the Consent and Amendment Agreement.
o On August 22, 2003, GFSI, Inc. ("GFSI") entered into a purchase
contract, lease agreement, commercial lease and related documents
with Lackman-Lenexa 110, L.L.C. and Crow-Spaulding #4, L.L.C., as the
case may be, regarding the various sale and relocation transactions
by which GFSI sold its facility at 16002 W. 110th Street, Lenexa,
Kansas, and leased property at 9700 Lackman, Lenexa, Kansas. This
transaction is referred to in the Second Consent and Amendment
Agreement.
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EXHIBIT B
Schedule 6.5 to the Credit Agreement
(Subsidiaries and Affiliates)
- ------------------------ ---------------------------- -------------------------
Name Relationship to Borrower Place of Formation
- ------------------------ ---------------------------- -------------------------
Parent corporation
GFSI Holdings, Inc. of Borrower Delaware
- ------------------------ ---------------------------- -------------------------
Event 1, Inc. Subsidiary to Borrower Kansas
- ------------------------ ---------------------------- -------------------------
CC Products, Inc. Subsidiary to Borrower Delaware
- ------------------------ ---------------------------- -------------------------
Gear Canada ULC Subsidiary to Borrower Nova Scotia, Canada
- ------------------------ ---------------------------- -------------------------
Shareholders of record or beneficial shareholders of GFSI Holdings, Inc.
(other than Gearcap) listed on Schedule 6.7 that may be Affiliates.
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EXHIBIT C
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Schedule 6.7 to the Credit Agreement
(Capitalization)
Series A Common Stock Shareholders of GFSI Holdings, Inc.:
Robert M Wolff, Trustee 60.0
under that certain Trust
Agreement dated 5/7/79
Martin Becker, Trustee of 30.0
the Barry S. Golden Trust
UTA dated 10/7/96
Larry Douglas Graveel, Trustee of 225.0
the Larry D. Graveel Revocable
Trust dated 8/30/91, as amended
from time to time thereafter, and
to his successors in trust
Michael H. Gary, Trustee of the 205.0
Michael H. Gary Revocable Trust
dated 3/10/93
UMB Bank, NA, Trustee for J. Craig 25.0
Peterson IRA 52-3786-02-8
UMB Bank, NA, Custodian for J. 25.0
Craig Peterson IC 51-1329-01-3
Randall D. Stabenow 20.0
Greg M. Johnson 10.0
John Joerger 5.0
Paul Craig Whitener 10.0
James R. Malseed 40.0
Christopher Lee Young 10.0
David Churchman 15.0
Jason A. Krakow 45.0
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Carl Allard 15.0
John White 5.0
Darlene D. Gary, Trustee of the 10.0
Michael R. Gary Irrevocable Trust
UTA dated 12/23/96
Darlene D. Gary, Trustee of the 10.0
Matthew R. Gary Irrevocable Trust
UTA dated 12/31/96
Series B Common Stock Shareholders of GFSI Holdings, Inc.:
Leucadia Investors, Inc. 125.0
David W. Zalaznick 78.3125
Jonathan F. Boucher 67.125
A. Richard Caputo, Jr. 50.0
Adam E. Max 50.0
John R. Lowden 22.5
James E. Jordan, Jr. Profit 1.25
Sharing Plan & Trust
Douglas Zych 7.5
Paul R. Rodzevik 5.0
The Lowden Family Trust 15.0
John W. Jordan, II Revocable Trust 68.3125
Thomas H. Quinn 10.0
JZ Equity Partners PLC 500.0
Series C Common Stock Shareholders of GFSI Holdings, Inc.:
Gearcap 8,250.0
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EXHIBIT D
---------
Schedule 6.26 to the Credit Agreement
(Material Agreements)
After giving effect to the making of the Revolving Loans under the Credit
Agreement with Bank of America, N.A., as Agent, to be made on the Closing
Date, set forth below is a list of "material" agreements and contracts (as
each may be amended from time to time) to which the Borrower or any of its
Subsidiaries is a party or is bound:
o Indenture, dated February 27, 1997, between GFSI, Inc. and Fleet
National Bank, as Trustee as amended by the First Supplemental
Indenture dated as of June 22, 2001, by the Second Supplemental
Indenture dated as of February 28, 2002, and by the Third
Supplemental Indenture dated as of June 11, 2002.
o Indemnification Agreements between GFSI Holdings, Inc. and its
director and executive officers dated February 27, 1997.
o Tax Sharing Agreement, dated February 27, 1997, between GFSI, Inc.
and GFSI Holdings, Inc.
o Management Consulting Agreement, dated February 27, 1997, between
GFSI Holdings, Inc. and TJC Management Corporation, as amended by the
TJC Amendment.
o Employment Agreement, dated February 27, 1997, between GFSI, Inc.
and Robert M. Wolff.
o Noncompetition Agreement, dated February 27, 1997, between GFSI
Holdings, Inc. and Robert M. Wolff.
o Indenture, dated September 17, 1997, between GFSI Holdings, Inc. and
State Street Bank and Trust Company (now succeeded by U.S. Bank,
N.A.), as Trustee, as amended by the First Supplemental Indenture
dated as of October 11, 1999.
o Embroidery Strategic Partnership Agreement among GEAR For Sports,
Impact Design and Kansas Custom dated July 1, 2000.
o Screen Print Sourcing Agreement between GEAR For Sports and Impact
Design dated April 30, 2001, as amended.
o CEBA Loan Agreement, dated April 28, 1998, by and among the Iowa
Department of Economic Development, the City of Bedford and GFSI,
Inc.
o License Agreement, dated October 27, 1998, by and between GFSI,
Inc. and Bonmax Co., Ltd.
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o Employment Agreement, dated as of April 1, 2001, by and between
GFSI, Inc. and Robert G. Shaw.
o Non-competition Agreement, dated as of April 1, 2001, by and
between GFSI, Inc. and Robert G. Shaw.
o Gear For Sports Distributor Agreement for Corporate Market between
GFSI, Inc. and Zouire, L.L.C. dated June 29, 2001.
o Supply Agreement between GFSI, Inc. and Zouire, L.L.C. dated
June 29, 2001.
o Department of Economic Development CDBG Industrial Infrastructure
Program Company Participation Agreement dated November 27, 2001 with
the City of Chillicothe, Missouri as Applicant.
o Management Agreement between Gear Canada ULC and Fletcher Leisure
Group, Inc.
o Stock Option Agreements between GFSI Holdings, Inc. and certain of
the employees of GFSI, Inc. or Gearcap, with various execution dates.
o License Agreement by and between Sara Lee Corporation, CC
Products, Inc., CCP Acquisition, Inc. and GFSI, Inc. dated June 25,
2001.
o Stock Purchase Agreement by and among Sara Lee Corporation,
Champion Products, Inc. and GFSI, Inc. dated as of April 20, 2001, as
amended by the First Amendment to Stock Purchase Agreement by and
among Sara Lee Corporation, Champion Products, Inc. and GFSI, Inc.
dated June 25, 2001.
o Champion Art Management System License Agreement by and among Sara
Lee Corporation, CC Products, Inc., CCP Acquisition, Inc. and GFSI,
Inc. dated July 25, 2001.
o Champion Art Management Software Agreement by and among Sara Lee
Corporation, CC Products, Inc., CCP Acquisition, Inc. and GFSI, Inc.
dated July 25, 2001.
o On-Site Supplemental Agreement between GFSI, Inc. and PGA TOUR
Licensed Properties, Inc. dated January 7, 2002.
o Supplemental Employment Agreement, dated March 31, 2002 between
GFSI, Inc. and Robert M. Wolff.
o Indenture, dated as of December 31, 2002 between GFSI, Inc. and
State Street Bank and Trust Company (now succeeded by U.S. Bank,
N.A.), as Trustee.
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o Consent and Amendment, dated as of December 31, 2002, to the
Credit Agreement, dated March 28, 2002.
o Lease Agreement dated August 22, 2003 between Crow-Spaulding #4,
L.L.C., as landlord, and GFSI, Inc., as tenant.
o Commercial Lease dated August 22, 2003 between Lackman-Lenexa 110,
L.L.C., as landlord, and GFSI, Inc., as tenant.
o Purchase Contract dated August 21, 2003 between GFSI, Inc., as
seller, and Lackman-Lenexa 110, L.L.C., as Buyer.
o Second Consent and Amendment, dated as of August 12, 2003, to the
Credit Agreement dated March 28, 2002.
o Management Agreement between GFSI Holdings, Inc. and Gearcap, when
executed and delivered.
o Second Amended and Restated Shareholders Agreement by and among
GFSI Holdings, Inc. and its investors, when executed and delivered.
o Amendment to Management Consulting Agreement between GFSI
Holdings, Inc., and TJC Management Corporation, when executed and
delivered.
o Contribution Agreement between GFSI, Inc., and GFSI Holdings,
Inc., when executed and delivered.
o See contracts and agreements described in Schedules 6.9, 6.11 and
6.12.
Several agreements, including concessionaire agreements, which have been
entered into by Borrower and/or its Subsidiaries in the ordinary course of
business have not been included in the foregoing list.
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EXHIBIT E
---------
"Permitted Holdings Payments" means any Distribution by the Borrower
or its Subsidiaries to Holdings at any time other than after and during the
occurrence of an Event of Default (except for purposes of any Distribution
described in clause (b) of this definition) for the purpose of:
(a) enabling Holdings to pay the fees due under the
Management Consulting Agreement dated February 27, 1997, as amended,
in an amount not to exceed $100,000 per annum in quarterly
installments, plus reasonable out of pocket expenses.
(b) meeting obligations with respect to tax obligations
under the Tax Sharing Agreement dated as of February 27, 1997,
between Holdings and the Borrower,
(c) enabling Holdings to pay the fees due under the
Management Agreement to be executed and delivered between Holdings
and Gearcap, provided, that any such fees shall include only interest
on the $6,500,000 loan to Gearcap by Robert M. Wolff and Barry Golden
to enable Gearcap to purchase the Notes and pay the 2003 Transaction
Expenses, reasonable business expenses of Gearcap and its employees
(including, without limitation, life and other insurance, payroll,
payroll taxes, employment benefits, accounting fees and related
expenses, tax related fees and related expenses, and general
administrative expenses), salaries, bonuses and other related
compensation amounts for employee members of Gearcap to the extent
that such employee members were employees of Holdings or Borrower
immediately before the effectiveness of this Consent and Amendment,
(d) enabling Holdings to contribute the 11.375% Senior
Discount Notes of Holdings to Borrower under the Contribution
Agreement to be executed and delivered between Holdings and Borrower,
(e) making payments and stock repurchases under the Second
Amended and Restated Stockholders Agreement, as amended from time to
time, or any related agreements (including payments on any debt
relating thereto) in an aggregate amount not to exceed $1,000,000 per
annum,
(f) enabling Holdings to pay the costs of accounting, legal,
administrative, directors, franchise tax, governmental and other
ordinary course fees (including payments on any debt relating
thereto), expenses and indemnities, in an aggregate amount not to
exceed $500,000 per annum,
(g) enabling Holdings to pay the 2003 Transaction Expenses,
(h) enabling Holdings to pay scheduled payments or other
amounts due on and after March 15, 2005, under the Notes, or
otherwise due under the Indenture dated September 17, 1997, between
Holdings and U.S. Bank, N.A. (as successor to State Street Bank and
Trust Company), as Trustee, as amended and supplemented and as in
effect on the date of this Consent and Amendment,
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(i) enabling Holdings to purchase Holdings capital stock
from current or former executives, management and employees of the
Borrower or its Subsidiaries of up to a maximum of $500,000 in the
aggregate per year,
(j) enabling Holdings to make any payments required in
connection with that certain Noncompetition Agreement dated as of
February 27, 1997 by and between Holdings and Robert M. Wolff in an
amount not to exceed $250,000 per annum,
and any assignment by Borrower to Holdings of Borrower's rights to receive
interest and other payments from Holdings under the Notes, or otherwise due
under Indenture dated September 17, 1997, between Holdings and U.S. Bank, N.A.
(as successor to State Street Bank and Trust Company), as Trustee, as amended
and supplemented and as in effect on the date of this Consent and Amendment.
Notwithstanding anything in this Agreement to the contrary, if
Holdings sells any capital stock repurchased under clause (e) or (i) above, an
amount equal to the proceeds of such sales shall be deemed to reduce the
amounts previously applied against the respective maximum amounts set forth in
such clause(s); provided that the proceeds of such sales are distributed to
the Borrower.
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EXHIBIT F
Schedule I to Borrower Pledge Agreement
PART A
------
PLEDGED SHARES
- ---------------------- ----------------------- --------------------- ---------------------- ----------------------
Stock Certificate Percentage of
Pledged Entity Class of Capital Stock Number(s) Number of Shares Outstanding Shares
- ---------------------- ----------------------- --------------------- ---------------------- ----------------------
Events 1, Inc. Common 1 1,000 100%
- ---------------------- ----------------------- --------------------- ---------------------- ----------------------
CC Products, Inc. Common 1 100 100%
- ---------------------- ----------------------- --------------------- ---------------------- ----------------------
PART B
------
PLEDGED INDEBTEDNESS
- ------------------ ---------------- ------------------ ------------------- ------------------ -------------------
Pledged Entity Face Amount Outstanding Issue Date Maturity Date Interest Rate
Balance as of
Closing Date
- ------------------ ---------------- ------------------ ------------------- ------------------ -------------------
CC Products, Inc. $10,000,000 $3,509,469.24 3/28/2002 Demand n/a
- ------------------ ---------------- ------------------ ------------------- ------------------ -------------------
Senior Discount [___________] $[__________] ____, 2003 ________ 11.375%
Notes of GFSI
Holdings, Inc.
- ------------------ ---------------- ------------------ ------------------- ------------------ -------------------
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