Exhibit 10.69
AMENDMENT NO. 8 AND CONSENT
THIS AMENDMENT NO. 8 AND CONSENT (this "Amendment"), dated as of August
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9, 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 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
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defined herein or the context otherwise requires, the following
terms used in this Amendment No. 8, including its preamble and
recitals, have the following meanings:
"Amended Credit Agreement" means the Existing
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Credit Agreement as amended hereby.
"Amendment No. 8 Effective Date" is defined in
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Subpart 3.1.
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SUBPART 1.2. Other Definitions. Unless otherwise defined
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herein or the context otherwise requires, terms used in this
Amendment, including its preamble and recitals, have the meanings
provided in the Amended Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 8
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. Section 1.1.
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(a) The following definitions appearing in Section 1.1 of
the Existing Credit Agreement are amended and restated in their
entireties to read as follows:
"Applicable Percentage" shall mean, for any day, the rate
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per annum set forth below opposite the applicable Level then in
effect, it being understood that the Applicable Percentage for (i)
Revolving Loans which are Alternate Base Rate Loans shall be the
percentage set forth under the column "Alternate Base Rate Margin
for Revolving Loans", (ii) Revolving Loans which are LIBOR Rate
Loans shall be the percentage set forth under the column "LIBOR
Rate Margin for Revolving Loans and Letter of Credit Fee", (iii)
the Commitment Fee shall be the percentage set forth under the
column "Commitment Fee", (iv) Tranche B Term Loans which are
Alternate Base Rate Loans shall be the percentage set forth under
the column "Alternate Base Rate Margin for Tranche B Term Loans",
(v) Tranche B Term Loans which are LIBOR Rate Loans shall be the
percentage set forth under the column "LIBOR Rate Margin for
Tranche B Term Loans", (vi) Tranche C Term Loans which are
Alternate Base Rate Loans shall be the percentage set forth under
the column "Alternate Base Rate Margin for Tranche C Term Loans",
(vii) Tranche C Term Loans which are LIBOR Rate Loans shall be the
percentage set forth under the column "LIBOR Rate Margin for
Tranche C Term Loans" and (viii) the Letter of Credit Fee shall be
the percentage set forth under the column "LIBOR Rate Margin for
Revolving Loans and Letter of Credit Fee":
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LIBOR Rate Alternate
Alternate Margin for Base Rate LIBOR Rate Alternate Base LIBOR Rate
Base Rate Revolving Loans Margin for Margin for Rate Margin Margin for
Leverage Margin for and Letter of Commitment Tranche B Tranche B for Tranche C Tranche C
Level Ratio Revolving Loans Credit Fee Fee Term Loans Term Loans Term Loans Term Loans
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I ** 5.0 to 1.0 2.25% 3.50% 0.50% 2.75% 4.00% 3.00% 4.25%
II * 5.0 to 1.0 2.00% 3.25% 0.50% 2.50% 3.75% 2.75% 4.00%
but **4.5 to
1.0
III * 4.5 to 1.0 1.75% 3.00% 0.50% 2.50% 3.75% 2.75% 4.00%
but **4.0 to
1.0
IV * 4.0 to 1.0 1.50% 2.75% 0.375% 2.25% 3.50% 2.50% 3.75%
but **3.5 to
1.0
V * 3.5 to 1.0 1.25% 2.50% 0.375% 2.25% 3.50% 2.50% 3.75%
but **3.0 to
1.0
VI * 3.0 to 1.0 1.00% 2.25% 0.25% 2.00% 3.25% 2.25% 3.50%
* denotes less than
** denotes more than or equal to
The Applicable Percentage shall, in each case, be determined
and adjusted quarterly on the date five (5) Business Days after the
date on which the Agent has received from the Borrower the quarterly
financial information and certifications required to be delivered to
the Agent and the Lenders in accordance with the provisions of Sections
5.1(b) and 5.2(b) (each an "Interest Determination Date"). Such
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Applicable Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination Date.
Effective as of August 9, 2001, the Applicable Percentages shall be
based on Level I until the first Interest Determination Date occurring
after December 31, 2002. If the Borrower shall fail to provide the
quarterly financial information and certifications in accordance with
the provisions of Sections 5.1(b) and 5.2(b), the Applicable Percentage
from such Interest Determination Date shall, on the date five (5)
Business Days after the date by which the Borrower was so required to
provide such financial information and certifications to the Agent and
the Lenders, be based on Level I until such time as such information
and certifications are provided, whereupon the Level shall be
determined by the then current Leverage Ratio.
"Borrowing Base" shall mean, as of any day, an amount equal to
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the sum of (i) 85% of Eligible Receivables (excluding Bill and Hold
Receivables), (ii) 55% of Eligible Inventory not to exceed 60% of the
aggregate availability under the Borrowing Base, (iii) 60% of Bill and
Hold Receivables which are Eligible Receivables and (iv) the Klopman
Liquidity Adjustment, in each case, as set forth in the most recent
Borrowing Base Certificate delivered to the Agent and the Lenders in
accordance with the terms of Section 5.2(d) and subject to reserves
imposed by the Agent in its sole discretion.
"Consolidated Retained Earnings" shall mean total retained
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earnings of the Borrower and its Subsidiaries on a consolidated basis
(plus (i) any After-Tax Strategic Initiative Addbacks, (ii) any NOL
Impact, (iii) the addback of
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extraordinary charges in an aggregate amount not exceeding $1,500,000 on an
after-tax basis associated with the incurrence of Indebtedness permitted by
Section 6.1(j) and the related write-off of capitalized loan costs incurred in
connection with this Credit Agreement and (iv) losses (on an after-tax basis)
arising out of the Klopman Sale) as determined at a particular date in
accordance with GAAP applied on a consistent basis.
"Eligible Inventory" shall mean, as of any date of determination and
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without duplication, the lower of the aggregate book value (based on a FIFO or a
moving average cost valuation, consistently applied) or fair market value of all
raw materials and finished goods inventory and yarn and weaving in process owned
by the Borrower or any of its wholly-owned Subsidiaries less appropriate
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reserves determined in accordance with GAAP but excluding in any event (i)
inventory which is (a) not subject to a perfected, first priority Lien in favor
of the Agent to secure the Credit Party Obligations, except that, until the
earlier to occur of (1) the first date occurring subsequent to August 9, 2001
that the Klopman Entities incur Indebtedness pursuant to Section 6.1(j) and (2)
the Klopman Sale, up to $25,000,000 of the inventory of the Klopman Entities may
be included as Eligible Inventory regardless of perfection or priority in favor
of the Agent or (b) subject to any other Lien that is not a Permitted Lien
(other than a Permitted Lien which secures Indebtedness permitted by Section
6.1(j)), (ii) inventory which is not in good condition or fails to meet
standards for sale or use imposed by governmental agencies, departments or
divisions having regulatory authority over such goods, (iii) inventory which is
not useable or salable at prices approximating their cost in the ordinary course
of the business (including without duplication the amount of any reserves for
obsolescence, unsalability or decline in value), (iv) subject to clause (i)
above, inventory located outside of the United States, except that pursuant to
clause (i) above, up to $25,000,000 of the inventory of the Klopman Entities,
regardless of the location of such inventory, may be included as Eligible
Inventory, (v) inventory located at a leased location with respect to which the
Agent shall not have received a landlord's waiver satisfactory to the Agent
within 90 days of the Closing Date, (vi) inventory which is leased or on
consignment or held at third-party vendors, suppliers or contractors and (vii)
inventory which fails to meet such other specifications and requirements as may
from time to time be established by the Agent in its reasonable discretion.
"Eligible Receivables" shall mean, as of any date of determination and
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without duplication, the aggregate book value of all accounts receivable,
receivables, and obligations for payment created or arising from the sale of
inventory or the rendering of services in the ordinary course of business
(collectively, the "Receivables"), owned by or owing to the Borrower or any of
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its wholly-owned Subsidiaries, net of allowances and reserves for doubtful or
uncollectible accounts and sales adjustments consistent with such Person's
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internal policies and in any event in accordance with GAAP, but excluding in any
event (i) any Receivable which is (a) not subject to a perfected, first priority
Lien in favor for the Agent to secure the Credit Party Obligations, except that,
until the earlier to occur of (1) the first date occurring subsequent to August
9, 2001 that the Klopman Entities incur Indebtedness pursuant to Section 6.1(j)
and (2) the Klopman Sale, up to $35,000,000 of the Receivables of the Klopman
Entities may be included as Eligible Receivables regardless of perfection or
priority in favor of the Agent or (b) subject to any other Lien that is not a
Permitted Lien (other than a Permitted Lien which secures Indebtedness permitted
by Section 6.1(j)), (ii) Receivables which are more than 60 days past due or 120
days past invoice date (net of reserves for bad debts in connection with any
such Receivables), (iii) 50% of the book value of any Receivable not otherwise
excluded by clause (ii) above but owing from an account debtor which is the
account debtor on any existing Receivable then excluded by such clause (ii),
unless the exclusion by such clause (ii) is a result of a legitimate dispute by
the account debtor and the applicable Receivable is no more than 90 days past
due, (iv) Receivables evidenced by notes, chattel paper or other instruments,
unless such notes, chattel paper or instruments have been delivered to and are
in the possession of the Agent, (v) Receivables owing by an account debtor which
is not solvent or is subject to any bankruptcy or insolvency proceeding of any
kind, (vi) Receivables owing by an account debtor located outside of the United
States or Canada (unless payment for the goods shipped is secured by an
irrevocable letter of credit in a form and from an institution acceptable to the
Agent), except that pursuant to clause (i) above, up to $35,000,000 of the
Receivables of the Klopman Entities, regardless of the location of the account
debtor, may be included as Eligible Receivables, (vii) Receivables which are
contingent or subject to offset, deduction, counterclaim, dispute or other
defense to payment, in each case to the extent of such offset, deduction,
counterclaim, dispute or other defense, (viii) Receivables for which any direct
or indirect Subsidiary or any Affiliate is the account debtor, (ix) Receivables
representing a sale to the government of the United States of America or any
subdivision thereof unless the Federal Assignment of Claims Act has been
complied with to the satisfaction of the Agent with respect to the granting of a
security interest in such Receivable, with or other similar applicable law and
(x) Receivables which fail to meet such other specifications and requirements as
may from time to time be established by the Agent in its reasonable discretion.
"Excess Cash Flow" shall mean, with respect to any fiscal year period
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of the Borrower and its Subsidiaries on a consolidated basis, an amount equal to
(a) Consolidated EBITDA for such period minus (b) consolidated Capital
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Expenditures for such period actually paid in cash minus (c) Consolidated
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Interest Expense for such period minus (d) Federal, state and other income taxes
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actually paid in cash by the Borrower and its Subsidiaries on a consolidated
basis during such period minus (e) Consolidated Scheduled Funded Debt Payments
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made
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during such period minus (f) to the extent paid in cash, Strategic Initiative
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Addbacks during such period.
"Net Cash Proceeds" shall mean the aggregate cash proceeds received by
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the Borrower or any Subsidiary in respect of any Asset Disposition, Equity
Issuance or Debt Issuance, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof and (c) in the case
of any Asset Disposition, the amount necessary to retire any Indebtedness (other
than the Credit Party Obligations) encumbering the Property sold or owed by the
Person whose Capital Stock or Property was sold; it being understood that "Net
Cash Proceeds" shall include, without limitation, any cash received upon the
sale or other disposition of any non-cash consideration received by the Borrower
or any Subsidiary in any Asset Disposition, Equity Issuance or Debt Issuance.
"Strategic Initiative Addbacks" shall mean, (a) for any period
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occurring between September 1, 2000 and September 30, 2001, the writedown of
assets, severance, excess run-out cost, lease expense, equipment removal and
relocation and building carrying cost associated with the Strategic Initiatives
of the type described in clause (a) of the definition thereof in an aggregate
amount (excluding the writedown of assets) not to exceed $24,000,000 and (b) (i)
for any period occurring between July 27, 2001 and September 30, 2002, the
writedown of assets, severance, excess run-out cost, lease expense, equipment
removal and relocation, building carrying cost, and fees and expenses (which
cannot be capitalized into future Consolidated Interest Expense) and (ii) for
any period occurring after June 30, 2001 operating results and run-out costs of
G&L Service Company, North America, Inc., in each case, associated with the
Strategic Initiatives of the type described in clause (b) of the definition
thereof in an aggregate amount (excluding the writedown of assets) not to exceed
$26,000,000. Any reversal of reserves set up for these costs and expenses will
be deducted from the calculation of Strategic Initiative Addbacks.
"Strategic Initiatives" shall mean (a) the rationalization of (i) denim
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capacity, (ii) yarn capacity, (iii) staffing of the Klopman Entities, in each
case announced by the Borrower on or prior to January 31, 2001, and (b) the
rationalization of (i) staff reductions, (ii) the realignment of Greige Fabric
Manufacturing and (iii) the discontinuation of the operations of G&L Service
Company, North America, Inc., in each case announced by the Borrower on or after
July 27, 2001 and prior to September 30, 2001.
(b) The following new definitions are hereby added to Section 1.1 of
the Existing Credit Agreement in the appropriate alphabetical order to read as
follows:
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"Klopman Liquidity Adjustment" shall mean, with respect to any fiscal
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month of the Borrower ending after the incurrence of Indebtedness by the Klopman
Entities pursuant to Section 6.1(j) and prior to the Klopman Sale, an amount
equal to the product of (a) the sum of (i) 85% of Eligible Receivables
(excluding Bill and Hold Receivables) attributable to the Klopman Entities with
respect to the fiscal month ending immediately prior to the Klopman Sale, plus
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(ii) 55% of Eligible Inventory attributable to the Klopman Entities with respect
to the fiscal month ending immediately prior to the Klopman Sale (not to exceed
60% of the aggregate availability under the Borrowing Base for such fiscal
month) plus (iii) 60% of Bill and Hold Receivables which are Eligible
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Receivables attributable to the Klopman Entities with respect to the fiscal
month ending immediately prior to the Klopman Sale minus (iv) Klopman
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preferential claims minus (v) the amount of all permanent reductions of the
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Revolving Committed Amount required to be made as a result of the incurrence of
Indebtedness by the Klopman Entities, times (b) the percentage set forth which
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corresponds to the fiscal month of the Borrower set forth below:
Fiscal Month Percentage
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October, 2001 through May, 2002 100%
June, July and August, 2002 75%
September, October and November, 2002 50%
December, 2002, and January and February, 2003 25%
Thereafter 0%
"Klopman Sale" shall mean any Asset Disposition, or series of related
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Asset Dispositions, of all of the Capital Stock of, or all or substantially all
of the assets of, the Klopman Entities.
SUBPART 2.2. Accounting Terms. The third paragraph in Section 1.3 of
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the Existing Credit Agreement is amended and restated in its entirety to read as
follows:
Notwithstanding the above, the parties hereto acknowledge and agree that, for
purposes of all calculations made in determining compliance for any applicable
period with the financial covenants set forth in Sections 5.9(a), (d), (e) and
(f) hereof (including without limitation for purposes of the definition of
"Applicable Percentage" set forth in Section 1.1) for all calculation periods
ending subsequent to the Klopman Sale, income statement items (whether positive
or negative) attributable to the Klopman Entities shall be excluded in such
calculations to the extent relating to such applicable period. In furtherance of
the foregoing, the portion of Consolidated Interest Expense attributable to the
Klopman Entities shall be calculated by multiplying (i) the sum of the Net Cash
Proceeds from the
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Klopman Sale plus the proceeds from the Klopman Sale which are applied to
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repay Funded Debt (other than the Credit Party Obligations) times (ii) the
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average rate of interest paid on the Loans outstanding during the
applicable period (using a weighted average method acceptable to the
Agent). Furthermore, for purposes of calculating Excess Cash Flow for any
applicable period ending after the Klopman Sale, income statement items,
cash flow statement items and balance sheet items attributable to the
Klopman Entities shall be excluded in such calculations to the extent
relating to such applicable period.
SUBPART 2.3. Mandatory Reductions. Section 2.6(b) of the Existing
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Credit Agreement is amended and restated in its entirety to read as follows:
(b) Mandatory Reductions. (i) On any date that the Revolving
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Loans are required to be prepaid pursuant to the terms of Section
2.7(b) (ii), (iii), (iv)(A), (v), (vi) or (viii), the Revolving
Committed Amount shall be automatically permanently reduced by the
amount of such required prepayment and/or reduction.
(ii) On any date that the Term Loans are required to be prepaid
pursuant to the terms of Section 2.7(b)(iv)(B) or (vii), the Revolving
Committed Amount shall be automatically permanently reduced by an
amount equal to the product of (1) the ratio of (a) the Revolving
Committed Amount then in effect to (b) the sum of the then outstanding
principal amount of the Term Loans (immediately prior to giving effect
to such prepayment) plus the Revolving Committed Amount then in effect
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times (2) one-hundred percent (100%) of the Net Cash Proceeds (or, if
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greater, one-hundred percent (100%) of the commitment amount, in the
case of a Debt Issuance) of the Debt Issuance or Asset Disposition
triggering such prepayment of the Term Loans.
SUBPART 2.4. Mandatory Prepayments. Clauses (b)(iii), (b)(vii) and
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(b)(ix) appearing in Section 2.7 of the Existing Credit Agreement are amended
and restated in their entireties to read as follows:
(b) Mandatory Prepayments.
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(iii) Asset Dispositions. Promptly following any Asset
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Disposition (other than the Klopman Sale), the Borrower shall prepay
the Loans in an aggregate amount equal to the Net Cash Proceeds derived
from such Asset Disposition (such prepayment to be applied as set forth
in clause (ix) below).
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(vii) Klopman Sale. Promptly following the Klopman Sale,
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the Borrower shall reduce the Revolving Committed Amount as
described in Section 2.6(b)(ii)and shall prepay the Term Loans
in an aggregate amount equal to the product of (1) the ratio
of (a) the then outstanding principal amount of the Term Loans
(prior to such prepayment) to (b) the sum of the then
outstanding principal amount of the Term Loans (prior to such
prepayment) plus the Revolving Committed Amount then in effect
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times (2) one-hundred percent (100%) of the Net Cash Proceeds
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of the Klopman Sale to the Lenders (such prepayment to be
applied as set forth in clause (ix) below).
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(ix) Application of Mandatory Prepayments. All amounts
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required to be paid pursuant to this Section 2.7(b) shall be
applied as follows: (A) with respect to all amounts prepaid
pursuant to Section 2.7(b)(i), to Revolving Loans and (after
all Revolving Loans have been repaid) to a cash collateral
account in respect of LOC Obligations, (B) with respect to all
amounts prepaid pursuant to Sections 2.7(b)(ii), (iii),
(iv)(A), (v), (vi) and (viii), (1) first pro rata to the Term
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Loans (ratably to the remaining principal installments
thereof) and (2) second to the Revolving Loans and (after all
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Revolving Loans have been repaid) to a cash collateral account
in respect of LOC Obligations, and (C) with respect to all
amounts prepaid pursuant to Sections 2.7(b)(iv)(B) and (vii),
pro rata to the Term Loans (ratably to the remaining principal
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installments thereof). Within the parameters of the
applications set forth above, prepayments shall be applied
first to Alternate Base Rate Loans and then to LIBOR Rate
Loans in direct order of Interest Period maturities. All
prepayments under this Section 2.7(b) shall be subject to
Section 2.17 and be accompanied by interest on the principal
amount prepaid through the date of prepayment.
SUBPART 2.5. Financial Covenants. Sections 5.9(a), (c), (d)
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and (e) of the Existing Credit Agreement are amended and restated in
their entireties to read as follows:
Commencing on the day immediately following the Closing Date, the Borrower
shall, and shall cause each of its Subsidiaries to, comply with the following
financial covenants:
(a) Adjusted Leverage Ratio. As of the end of each fiscal
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quarter set forth in the table below, there shall be maintained an
Adjusted Leverage Ratio of not greater than the corresponding ratio
appearing in such table. The applicable period for purposes of
determining compliance herewith shall be for the period of four (4)
fiscal quarters ending on the applicable date set forth below.
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Period Ratio
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December 28, 2002 3.5 to 1.0
March 29, 2003 3.5 to 1.0
June 28, 2003 3.25 to 1.0
September 27, 2003 3.25 to 1.0
December 28, 2003 and thereafter 3.0 to 1.0
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(c) Capital Expenditures.
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(i) As of the end of the four fiscal quarter period ending on the
last day of each fiscal quarter set forth in the table below, Capital
Expenditures for such four fiscal quarter period then ended shall not exceed the
corresponding amount appearing in such table:
Period Amount
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September 29, 2001 $26,000,000
December 29, 2001 $26,000,000
March 30, 2002 $20,000,000
June 29, 2002 $18,000,000
September 28, 2002 $18,000,000
(ii) Beginning with the fiscal quarter ended December 28, 2002, the
Borrower and its Subsidiaries shall not, as a group, make or incur Capital
Expenditures in any fiscal year in excess of the amount shown below:
Fiscal year 2003 and
each fiscal year thereafter $25,000,000.
provided, that beginning with the fiscal year ended September 28, 2002, up to
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$10,000,000 of any such amount, if not expended in the fiscal year for which it
is permitted above may be carried over for expenditure in the next following
fiscal year.
For purposes of determining compliance with this Section 5.9(c), the Borrower
shall be permitted to exclude the aggregate amount of Investments made pursuant
to clause (iii)(G) of the definition of Permitted Investments from the
calculation of Capital Expenditures for the fiscal year during which such
Investments were made.
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(d) Adjusted Fixed Charge Coverage Ratio. As of the end of each fiscal
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quarter set forth in the table below, there shall be maintained an Adjusted
Fixed Charge Coverage Ratio of not less than the corresponding ratio
appearing in such table. The applicable period for such purposes of
determining compliance herewith shall be for the period of four (4) fiscal
quarters then ended.
Period Ratio
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December 28, 2002
and thereafter 1.1 to 1.0
Following the Klopman Sale, Consolidated Fixed Charges shall not
include Capital Expenditures attributable to the Klopman Entities during
the applicable period for purposes of determining compliance with this
Section 5.9(d).
(e) Minimum Consolidated EBITDA. As of the end of each fiscal quarter
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set forth in the table below, there shall be Consolidated EBITDA of not
less than the corresponding amount appearing in such table.
Period Amount* Amount**
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September 29, 2001/1/ $13,500,000 $13,500,000
December 29, 2001/2/ $32,000,000 $29,000,000
March 30, 2002/3/ $53,000,000 $47,000,000
June 29, 2002/4/ $76,000,000 $67,000,000
September 28, 2002/4/ $79,000,000 $68,000,000
* Applicable for any fiscal quarter ending prior to the Klopman
Sale.
** Applicable for any fiscal quarter ending subsequent to the
Klopman Sale.
/1/ Notwithstanding anything contained in this Credit Agreement to
the contrary, the applicable period for the purpose of
determining compliance herewith shall be the fiscal quarter
then ended.
/2/ Notwithstanding anything contained in this Credit Agreement to
the contrary, the applicable period for the purpose of
determining compliance herewith shall be the two fiscal
quarters then ended.
/3/ Notwithstanding anything contained in this Credit Agreement to
the contrary, the applicable period for the purpose of
determining compliance herewith shall be the three fiscal
quarters then ended.
/4/ Notwithstanding anything contained in this Credit Agreement to
the contrary, the applicable period for the purpose of
determining compliance herewith shall be the four fiscal
quarters then ended.
SUBPART 2.6. Indebtedness. Section 6.1(j) of the Existing Credit
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Agreement is amended and restated in its entirety to read as follows:
(j) other Indebtedness of Foreign Subsidiaries (excluding any
intercompany Indebtedness permitted to be incurred hereunder) incurred
in order to refinance, replace or otherwise restructure a portion of
the $490,000,000 principal amount of indebtedness which may have
originally been incurred under this Agreement, which Indebtedness may
be secured by the assets of such Foreign Subsidiaries located outside
of the United States provided that (i) in connection
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with the incurrence of such Indebtedness, the Revolving Committed
Amount is reduced pursuant to Section 2.6(b)(ii) and the Terms
Loans are prepaid pursuant to Section 2.7(b)(iv)(B), (ii) after
giving pro forma effect to the incurrence of such Indebtedness,
the reduction of the Revolving Committed Amount and the prepayment
of the Loans, the Borrower shall have at least $30,000,000 of
undrawn availability under both the Revolving Committed Amount and
the Borrowing Base, (iii) the interest rate on such Indebtedness
does not exceed the 90-day LIBOR Rate plus 3.25%, (iv) such
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Indebtedness does not contain cross-default or cross-acceleration
provisions with respect to this Credit Agreement and (v) the terms
and provisions of any such Indebtedness shall be otherwise
reasonably acceptable to the Agent.
SUBPART 2.7. Consents.
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(a) Klopman Sale. Notwithstanding anything to the contrary contained
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in the Credit Documents, including, without limitation, Section 6.5 thereof, the
Required Lenders hereby consent to the Klopman Sale so long as the sum of the
Net Cash Proceeds from the Klopman Sale plus the proceeds from the Klopman Sale
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which are applied to repay Funded Indebtedness (other than the Credit Party
Obligations) is at least $70,000,000.
(b) Discontinued Operations. Notwithstanding anything to the contrary
-----------------------
contained in the Credit Documents, including, without limitation, Section 6.5
thereof, the Required Lenders hereby consent to the discontinuation of
operations and dissolution of Greige Fabric Manufacturing and G&L Service
Company, North America, Inc.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 8 Effective Date. This Amendment
------------------------------
shall be and become effective as of the date hereof (the
"Amendment No. 8 Effective Date") when all of the conditions set
------------------------------
forth in this Part III shall have been satisfied, and thereafter
--------
this Amendment shall be known, and may be referred to, as
"Amendment No. 8."
----------------
SUBPART 3.2. Execution of Counterparts of Amendment. The
--------------------------------------
Agent shall have received counterparts (or other evidence of
execution, including telephonic message, satisfactory to the
Agent) of this Amendment, which collectively shall have been duly
executed on behalf of each of the Borrower, the Guarantors, the
Agent and the Required Lenders.
SUBPART 3.3. Amendment Fee. The Borrower shall pay to the
-------------
Agent, for the account of each Lender executing and delivering
this Amendment No. 8 to
12
the Agent on or before August 9, 2001, an amendment fee (the
"Amendment Fee") equal to 0.25% of such Lender's Commitment.
-------------
PART IV
MISCELLANEOUS
SUBPART 4.1. Cross-References. References in this Amendment
----------------
to any Part or Subpart are, unless otherwise specified, to such
Part or Subpart of this Amendment.
SUBPART 4.2. Instrument Pursuant to Existing Credit
--------------------------------------
Agreement. This Amendment is a Credit Document executed pursuant
---------
to the Existing Credit Agreement and shall (unless otherwise
expressly indicated therein) be construed, administered and
applied in accordance with the terms and provisions of the
Existing Credit Agreement.
SUBPART 4.3. References in Other Credit Documents. At such
------------------------------------
time as this Amendment No. 8 shall become effective pursuant to
the terms of Subpart 3.1, all references in the Existing Credit
-----------
Agreement to the "Agreement" and all references in the other
Credit Documents to the "Credit Agreement" shall be deemed to
refer to the Existing Credit Agreement as amended by this
Amendment.
SUBPART 4.4. Affirmation of Liens. The Borrower and the
--------------------
Guarantors, as 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 Guarantors hereby represent and warrant as follows:
(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
13
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 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 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 CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF
LAW PRINCIPLES THEREOF.
SUBPART 4.9. Successors and Assigns. This Amendment shall be
----------------------
binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
14
[Remainder of page intentionally left blank]
15
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.
- --------
By: /s/ Arthur C. Wiener
-------------------------------------
Title: Chairman, President & CEO
GUARANTORS: GALEY & LORD INDUSTRIES, INC.,
- ----------
By: /s/ Arthur C. Wiener
-------------------------------------
Title: Chairman, President & CEO
G&L SERVICE COMPANY, NORTH
AMERICA, INC., a Delaware corporation
By: /s/ Arthur C. Wiener
-------------------------------------
Title: President & CEO
SWIFT TEXTILES INC.,
a Delaware corporation
By: /s/ Arthur C. Wiener
-------------------------------------
Title: President & CEO
SWIFT DENIM SERVICES INC.,
a Delaware corporation
By: /s/ Arthur C. Wiener
-------------------------------------
Title: President & CEO
GALEY & LORD PROPERTIES, INC.
a Delaware corporation
By: /s/ Anthony J. Forman
----------------------------------
Title: Vice President & Treasurer
SWIFT DENIM PROPERTIES, INC.
a Delaware corporation
By: /s/ Anthony J. Forman
----------------------------------
Title: Vice President & Treasurer
LENDERS: FIRST UNION NATIONAL BANK
- ------- individually in its capacity as
a Lender and in its
capacity as Agent
By: /s/ Roger Pelz
--------------------------------------
Title: Senior Vice President
THE CIT GROUP/COMMERCIAL
SERVICES, INC.
By: /s/ William H. Skidmore
--------------------------------------
Title: Vice President
BANK ONE, NA
By: /s/ Michele L. Quentin
--------------------------------------
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ Deirdre B. Doyle
--------------------------------------
Title: Principal
SUNTRUST BANK, ATLANTA
By: /s/ David W. Penter
--------------------------------------
Title: Director Senior Relationship
Manager
By: /s/ Kim Willis
--------------------------------------
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Gary C. Gaskill
--------------------------------------
Title: Vice President
CIBC INC.
By: /s/ Ihor Zaluckj
---------------------------------
Title: Executive Director
NATIONAL BANK OF CANADA
By: /s/ Alex M. Council
---------------------------------
Title: Vice President
By: /s/ Dan Shaw
---------------------------------
Title: Vice President
BANK OF SCOTLAND
By: /s/ Joseph Fratus
---------------------------------
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Charles Greer
---------------------------------
Title: Authorized Signatory
NATIONAL CITY BANK
By: /s/ Peter W. Richer
---------------------------------
Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"Rabobank Nederland", New York Branch
By: /s/ Timothy J. Moore
---------------------------------
Title: Vice President
By: /s/ Ian Reece
---------------------------------
Title: Managing Director
PAM CAPITAL FUNDING, LP
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Steven J. Katz
---------------------------------------------
Title: Second Vice President and Associate
General Counsel
ML CBO IV (CAYMAN) LTD
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
ML CLO XIX STERLING
(CAYMAN) LTD.
By: Sterling Asset Manager, L.L.C., as its
Investment Advisor
By: /s/ Todd Travers
---------------------------------------------
Title: Senior Portfolio Manager
MT. MITCHELL CAPITAL FUNDING, LLC
By: /s/ Jeff Peskind
----------------------------------------------
Title: Managing Director
KZH CYPRESSTREE-1 LLC
By: /s/ Susan Lee
----------------------------------------------
Title: Authorized Agent
CYPRESSTREE INVESTMENT
PARTNERS I LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
----------------------------------------------
Title: Principal
CYPRESSTREE INVESTMENT
PARTNERS II LTD.
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By: /s/ Jeffrey W. Heuer
----------------------------------------------
Title: Principal
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Kurt Wegleitner
----------------------------------------------
Title: Senior Vice President
ARCHIMEDES FUNDING II
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: /s/ Kurt Wegleitner
----------------------------------------------
Title: Senior Vice President
VAN KAMPEN CLO I, LIMITED
By: Van Kampen Management, Inc.,
as Collateral Manager
By: /s/ Darvin D. Pierce
----------------------------------------------
Title: Principal
VAN KAMPEN CLO II, LTD.
By: Van Kampen Management, Inc.,
as Collateral Manager
By: /s/ Darvin D. Pierce
----------------------------------------------
Title: Principal
VAN KAMPEN SENIOR INCOME TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
----------------------------------------------
Title: Principal
VAN KAMPEN PRIME RATE INCOME
TRUST
By: Van Kampen Investment Advisory Corp.
By: /s/ Darvin D. Pierce
----------------------------------------------
Title: Principal
KZH HIGHLAND-2 LLC
By: /s/ Susan Lee
----------------------------------------------
Title: Authorized Agent
ELC (CAYMAN) LTD.
By: /s/ Amos N. Beason
-------------------------------------------
Title: Director
ELC (CAYMAN) LTD. 2000-1
By: /s/ Amos N. Beason
-------------------------------------------
Title: Director
ELC (CAYMEN) LTD. CDO SERIES 1999-I
By: /s/ Amos N. Beason
-------------------------------------------
Title: Director
APEX (IDM) CDO I, LTD.
By: /s/ Amos N. Beason
-------------------------------------------
Title: Director
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD. (AS ASSIGNEE)
By: Pilgrim Investments, Inc.,
as its Investment Manager
By: /s/ Michel Prince
-------------------------------------------
Title: Vice President
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Michel Prince
-------------------------------------------
Title: Vice President
SEQUILS PILGRIM I, LTD.
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Michel Prince
-------------------------------------------
Title: Vice President
PARIBAS
By: /s/ Edward V. Canale
-------------------------------------------
Title: Managing Director
NORTHWOODS CAPITAL, LIMITED
By: Angelo, Gordon & Co., L.P. as Collateral
Manager
By: /s/ John W. Fraser
-------------------------------------------
Title: Managing Director
AVALON CAPITAL LTD 2
By: INVESCO Senior Secured
Management, Inc. as Portfolio Manager
By: /s/ Gregory Stoeckle
-------------------------------------------
Title: Authorized Signatory
ARK CLO 2000-1, LIMITED
By: /s/ Lynn Tilton
-------------------------------------------
Title: Authorized Signatory
BoS (USA), INC.
(f/k/a IFA Incorporated)
By: Bank of Scotland as Administrative Agent
By: /s/ Joseph Fratus
-------------------------------------------
Title: Vice President
ELF FUNDING TRUST I
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/ Todd Travers
-------------------------------------------
Title: Senior Portfolio Manager
AIM FLOATING RATE FUND
By: INVESCO Senior Secured
Management, Inc. as Attorney in fact
By: /s/ Gregory Stoeckle
-------------------------------------------
Title: Authorized Signatory
PACIFICA PARTNERS I, LP
By: Imperial Credit Asset Management
as its Investment Advisor
By: /s/ Tom Colwell
-------------------------------------------
Title: Vice President
NORTHWOODS CAPITAL II, LTD.
By: Angelo, Gordon & Co., L.P. as Collateral
Manager
By: /s/ John W. Fraser
-------------------------------------------
Title: Managing Director