Exhibit 10.68
AMENDMENT NO. 7, CONSENT & RELEASE
THIS AMENDMENT NO. 7, CONSENT & RELEASE (this "Amendment"), dated as of
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March 30, 2001, is by and among GALEY & LORD, INC., a Delaware corporation (the
"Borrower"), GALEY & LORD INDUSTRIES, INC., a Delaware corporation ("G&L
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Industries"), the other Domestic Subsidiaries of the Borrower (each a
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"Guarantor", and together with G&L Industries, the "Guarantors"), the Lenders
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identified on the signature pages hereto (the "Lenders") and FIRST UNION
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NATIONAL BANK, as Agent for the Lenders (the "Agent").
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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
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Agreement") among the Borrower, the Guarantors, the Lenders and the Agent, the
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Lenders have extended commitments to make certain credit facilities available to
the Borrower;
WHEREAS, the Borrower desires to reorganize its ownership of certain of
its Foreign Subsidiaries and certain Existing Joint Ventures (the "Foreign
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Subsidiary Reorganization") through a series of related non-cash transactions,
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including but not limited to the following:
(a) the Borrower will form two new direct wholly-owned Foreign
Subsidiaries ("NewLux" and "H29", respectively);
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(b) all of the Capital Stock of Galey & Lord International SARL
("OldLux") will be transferred directly or indirectly to NewLux;
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(c) all of the Capital Stock of Swift Textiles Europe Ltd. will
be transferred directly or indirectly to H29; and
(d) in connection with the foregoing steps, intercompany notes
owing to the Borrower will be created.
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
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or the context otherwise requires, the following terms used in this
Amendment No. 7, including its preamble and recitals, have the
following meanings:
"Amended Credit Agreement" means the Existing Credit
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Agreement as amended hereby.
"Amendment No. 7 Effective Date" is defined in Subpart 3.1.
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SUBPART 1.2. Other Definitions. Unless otherwise defined herein
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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. 7
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. NOL Impact. The definition of NOL Impact in Section
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1.1 of the Existing Credit Agreement is amended and restated in its
entirety to read as follows:
"NOL Impact" shall mean, for any period prior to the first
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fiscal quarter of fiscal year 2002, the amount of domestic net
operating loss carry-forwards that arise from the Foreign
Subsidiary Reorganization (as defined in the Amendment No. 7 and
Release dated as of March 30, 2001 among the Credit Parties, the
Required Lenders and the Agent); provided that the aggregate
amount of NOL Impact shall not exceed $15,400,000.
SUBPART 2.2. Recovery Events. The definition of Recovery Event in
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Section 1.1 of the Existing Credit Agreement is amended and restated in
its entirety to read as follows:
"Recovery Event" shall mean the receipt by the Borrower or
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any of its Subsidiaries of any cash insurance proceeds or
condemnation award payable by reason of theft, loss, physical
destruction or damage, taking or similar event with respect to
any of their respective property or assets (other than, solely
for purposes of Section 2.7(b)(vi), property or assets of a
Foreign Subsidiary which are subject to a Lien of the type
described in clause (xi) of the definition of "Permitted Liens").
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SUBPART 2.3. Ownership of Subsidiaries. Section 6.8(b) of the
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Existing Credit Agreement is amended and restated in its entirety to
read as follows:
(b) The Borrower will not (i) have any liabilities other
than (A) the liabilities under the Credit Documents, (B) tax
liabilities in the ordinary course of business, (C) loans and
advances permitted under this Agreement and (D) corporate,
administrative and operating expenses in the ordinary course of
business and (ii) engage in any business other than (A) owning
the Capital Stock of its Subsidiaries and activities incidental
or related thereto and (B) acting as the Borrower hereunder and
pledging its assets to the Agent, for the benefit of the Lenders,
pursuant to the Security Documents to which it is a party.
SUBPART 2.4. Consent. Notwithstanding anything in the Credit
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Documents to the contrary, the Required Lenders hereby consent to the
Foreign Subsidiary Reorganization so long as the Agent shall have
received all items required by Sections 5.10 and 5.12 of the Credit
Agreement, including, without limitation, a pledge of all intercompany
promissory notes payable to any Credit Party; provided, however, that
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the Borrower shall not be required to deliver a pledge of 65% of the
Capital Stock of NewLux or H29 until 120 days from the date of
formation of NewLux or H29, respectively.
SUBPART 2.5. Release. The Agent and the Required Lenders agree
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that in connection with the Foreign Subsidiary Reorganization, they
will release their Lien on 65% of the Capital Stock of OldLux on the
later of (i) the date that is 90 days after the Agent receives a pledge
of 65% of the Capital Stock of NewLux and H29 and (ii) the date that
OldLux ceases to be a direct Foreign Subsidiary of any Credit Party.
The Required Lenders authorize the Agent to take such action as
appropriate in order to effectuate such release, including, without
limitation, the return of stock certificates.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 7 Effective Date. This Amendment shall
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be and become effective as of the date hereof (the "Amendment No. 7
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Effective Date") when all of the conditions set forth in this Part III
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shall have been satisfied, and thereafter this Amendment shall be
known, and may be referred to, as "Amendment No. 7."
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SUBPART 3.2. Execution of Counterparts of Amendment. The Agent
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shall have received counterparts (or other evidence of execution,
including
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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 Borrower shall pay to the Agent, for
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the account of each Lender executing and delivering this Amendment No. 7 to the
Agent on or before noon (Eastern time) on Friday, March 30, 2001, an amendment
fee (the "Amendment Fee") equal to $2,500; provided, however, with respect
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Lenders which are funds which invest in bank loans and are advised or managed by
the same investment advisor, only one such Amendment Fee shall be payable to the
investment advisor for such Lenders.
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment to any Part
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or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Credit Agreement. This
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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
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Amendment No. 7 shall become effective pursuant to the terms of Subpart 3.1, all
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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
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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
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Guarantors hereby represent and warrant as follows:
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(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 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 as
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
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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
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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
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CONTRACT MADE UNDER AND GOVERNED BY THE
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INTERNAL LAWS OF THE STATE OF NORTH CAROLINA WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
SUBPART 4.9. Successors and Assigns. This Amendment shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[Remainder of page intentionally left blank]
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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: GALEY & LORD, INC.
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By: /s/ Leonard F. Ferro
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Title: Vice President, Secretary & Treasurer
GUARANTORS: GALEY & LORD INDUSTRIES, INC.,
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By: /s/ Leonard F. Ferro
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Title: Vice President, Secretary & Treasurer
G&L SERVICE COMPANY, NORTH
AMERICA, INC., a Delaware corporation
By: /s/ Leonard F. Ferro
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Title: Vice President, Secretary & Treasurer
SWIFT TEXTILES INC.,
a Delaware corporation
By: /s/ Leonard F. Ferro
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Title: Vice President, Secretary & Treasurer
SWIFT DENIM SERVICES INC.,
a Delaware corporation
By: /s/ Leonard F. Ferro
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Title: Vice President, Secretary & Treasurer
GALEY & LORD PROPERTIES, INC.
a Delaware corporation
By: /s/ Nicholas S. Hood
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Title: President
SWIFT DENIM PROPERTIES, INC.
a Delaware corporation
By: /s/ Nicholas S. Hood
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Title: President
LENDERS: FIRST UNION NATIONAL BANK
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individually in its capacity as
a Lender and in its
capacity as Agent
By: /s/ Roger Pelz
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Title: Senior Vice President
THE CIT GROUP / COMMERCIAL
SERVICES, INC.
By: /s/ William H. Skidmore
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Title: Vice President
BANK ONE, NA
By: /s/ Michele L. Quentin
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Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ Deirdre B. Doyle
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Title: Principal
SUNTRUST BANK, ATLANTA
By: /s/ David W. Penter
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Title: Director Senior Relationship Manager
By: /s/ Jeff Howard
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Title: Director
WACHOVIA BANK, N.A.
By: /s/ Gary C. Gaskill
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Title: Vice President
NATIONAL BANK OF CANADA
By: /s/ Alex M. Council IV
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Title: Vice President
By: /s/ Bill Handley
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Title: Vice President & Manager
BANK OF SCOTLAND
By: /s/ Joseph Fratus
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Title: Vice President
NORSE CBO, LTD.
By: Regiment Capital Management, LLC
As its Investment Advisor
By: Regiment Capital Advisors, LLC
Its Manager and pursuant to delegated
authority
By: /s/ Timothy Peterson
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Title: President
PRESIDENT & FELLOWS OF HARVARD COLLEGE
By: Regiment Capital Management, LLC
As its Investment Advisor
By: Regiment Capital Advisors, LLC
Its Manager and pursuant to delegated
authority
By: /s/ Timothy Peterson
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Title: Vice President
NATIONAL CITY BANK
By: /s/ Peter W. Richer
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Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
By: /s/ Timothy J. Moore
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Title: Vice President
By: /s/ W. Jeffrey Vollack
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Title: Senior Credit Officer
Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ William S. Richardson
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Title: Duly Authorized Signatory
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/ Steven J. Katz
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Title: Second Vice President and
Associate General Counsel
ML CLO XIX STERLING (CAYMAN) LTD.
By Sterling Asset Manager, L.L.C., as its
Investment Advisor
By: /s/ Louis Pispecchia
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Title: Executive Vice President
KZH CYPRESSTREE-1 LLC
By: /s/ Kimberly Rowe
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Title: Authorized Agent
CYPRESSTREE INVESTMENT PARTNERS I LTD.
By: CypressTree Investment Manangement
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
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Title: Principal
CYPRESSTREE INVESTMENT
PARTNERS II LTD.
By: CypressTree Investment Manangement
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
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Title: Principal
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Kurt Wegleitner
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Title: Senior Vice President
ARCHIMEDES FUNDING II
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Kurt Wegleitner
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Title: Senior Vice President
VAN KAMPEN CLO I, LIMITED
By: Van Kampen
Management, Inc.,
as Collateral Manager
By: /s/ Darvin D. Pierce
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Title: Principal
VAN KAMPEN CLO II, LTD.
By: Van Kampen
Management, Inc.,
as Collateral Manager
By: /s/ Darvin D. Pierce
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Title: Principal
VAN KAMPEN
SENIOR INCOME TRUST
By: /s/ Darvin D. Pierce
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Title: Principal
VAN KAMPEN PRIME
RATE INCOME TRUST
By: /s/ Darvin D. Pierce
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Title: Principal
KZH PAMCO LLC
By: /s/ Kimberly Rowe
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Title: Authorized Agent
KZH HIGHLAND-2 LLC
By: /s/ Kimberly Rowe
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Title: Authorized Agent
ELC (CAYMAN) LTD.
By: /s/ Amos N. Beason
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Title: Director
ELC (CAYMAN) LTD. 2000-1
By: /s/ Amos N. Beason
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Title: Director
ELC (CAYMEN) LTD. CDO SERIES 1999-I
By: /s/ Amos N. Beason
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Title: Director
APEX (IDM) CDO I, LTD.
By: /s/ Amos N. Beason
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Title: Director
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD. (AS ASSIGNEE)
By: Pilgrim Investments, Inc.,
as its Investment Manager
By: /s/ Michel Prince, CFA
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Title: Vice President
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Michel Prince, CFA
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Title: Vice President
SEQUILS PILGRIM I, LTD.
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Michel Prince, CFA
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Title: Vice President
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By: /s/ Katie J. Saunders
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Title: Senior Credit Analyst
PARIBAS
By: /s/ Edward V. Canale
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Title: Managing Director
AVALON CAPITAL LTD
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Gregory Stoeckle
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Title: Authorized Signatory
AVALON CAPITAL LTD 2
By: INVESCO Senior Secured Management, Inc.
As Portfolio Advisor
By: /s/ Gregory Stoeckle
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Title: Authorized Signatory
ARK CLO 2000-1
By: /s/ Lynn Tilton
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Title: Authorized Signatory
IFA, INCORPORATED
By: /s/ Joseph Fratus
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Title: Vice President
Bank of Scotland
As Administrative Agent
For IFA, Inc.
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Todd Travers
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Title: Senior Portfolio Manager
NORTH AMERICAN SENIOR FLOATING
RATE FUND
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
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Title: Principal
CHARTER VIEW PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Investment Advisor
By: /s/ Gregory Stoeckle
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Title: Authorized Signatory
AIM FLOATING RATE PORTFOLIO
By: INVESCO Senior Secured Management, Inc.
As Attorney in fact
By: /s/ Gregory Stoeckle
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Title: Authorized Signatory
PACIFICA PARTNERS I, LP
By: Imperial Credit Asset Management
As Investment Advisor
By: /s/ Tom Colwell
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Title: Vice President