CONSENT AND AMENDMENT NO. 7 TO TERM LOAN AGREEMENT
Exhibit 10.4
EXECUTION COPY
CONSENT AND AMENDMENT NO. 7 TO TERM LOAN AGREEMENT
This CONSENT AND AMENDMENT NO. 7 TO TERM LOAN AGREEMENT (this “Amendment”) is entered into as of March 4, 2011 by and among BURLINGTON ▇▇▇▇▇▇▇, ▇.▇ DE C.V., a Mexican stock limited liability corporation (the “Borrower”), the other Credit Parties signatory hereto, GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, for itself and as Agent (“Agent”), and the other Lenders signatory hereto. Unless otherwise specified herein, capitalized terms used in this Amendment shall have the meanings ascribed to them in the Term Loan Agreement (as hereinafter defined).
R E C I T A L S:
WHEREAS, Borrower, the Agent and the Lenders entered into the Term Loan Agreement dated as of December 29, 2006 (as amended, supplemented, restated or otherwise modified from time to time, the “Term Loan Agreement”);
WHEREAS, the Borrower has requested that the Lenders to the Term Loan Agreement consent to a specified asset sale as set forth herein; and
WHEREAS, the parties to the Term Loan Agreement have agreed to an amendment to the Term Loan Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1 Consent and Authorization. Each of the Lenders signatory hereto hereby (i) consents to the sale by ITG or any Subsidiary to Bank of America, N.A. pursuant to that certain SCF Supplier Receivables Purchase Agreement (U.S.) dated on or about the date hereof (the “Specified Receivables Purchase Agreement”) of U.S. dollar denominated receivables originated by ITG or any Subsidiary and due from VF Corporation or one of its Scheduled Affiliates (as defined in the Specified Receivables Purchase Agreement), (ii) acknowledges and agrees that the Borrower is not required to repay the Obligations from the proceeds of such asset sales by ITG and its Subsidiaries (other than Borrower and its Subsidiaries) and (iii) authorizes and directs the Agent to execute and deliver or to direct the execution and delivery of, as applicable, a release in connection with such asset sales in form and substance reasonably satisfactory to the Agent.
2 Amendments to the Credit Agreement.
2.1 Section 1.116 of the Term Loan Agreement is hereby amended by (i) deleting the word “and” at the end of clause (h) thereof, (ii) deleting the “.” at the end of clause (i) thereof and replacing it with “; and” and (iii) inserting the following new clause (j) thereto immediately at the end thereof:
“(j) Liens on the Specified Receivables solely to the extent the sale and purchase of such Specified Receivables pursuant to the Specified Receivables Purchase Agreement is deemed to be a financing arrangement between the parties thereto or if for any reason ownership of the Specified Receivables is deemed to be vested in Borrower or any of its Subsidiaries.”
2.2 Section 1 of the Term Loan Agreement is hereby amended by inserting therein the following defined terms in proper alphabetical order:
““Specified Receivables” means U.S. dollar denominated receivables originated by Borrower or any Subsidiary and due from VF Corporation or one of its Scheduled Affiliates (as defined in the Specified Receivables Purchase Agreement).”
““Specified Receivables Purchase Agreement” means that certain SCF Supplier Receivables Purchase Agreement (U.S.), dated as of March 4, 2011, among ITG, certain of its Subsidiaries and Bank of America, N.A., as such agreement may be amended from time to time in a manner not adverse to the Agent and the Lenders.”
2.3 Section 7.2 of the Term Loan Agreement is hereby amended by appending the following proviso to the end of the first sentence thereof:
“; provided further that the sale to Bank of America, N.A. of Specified Receivables pursuant to and in accordance with the Specified Receivables Purchase Agreement shall be permitted hereunder if the Net Cash Proceeds of each such sale shall be delivered by the Borrower to the Agent, for distribution to the Lenders as a prepayment of the Term Loans owing by the Borrower, which prepayment shall be applied in accordance with subsection 2.10 hereof.”
3 Representations and Warranties. In order to induce Agent and the Lenders to enter into this Amendment, Borrower and each other Credit Party represents and warrants to Agent and each Lender (which representations and warranties shall survive the execution and delivery of this Amendment), that:
(a) the execution, delivery and performance by each Credit Party of this Amendment has been duly authorized by all necessary corporate and partnership action and this Amendment is a legal, valid and binding obligation of such Credit Party enforceable against such Credit Party in accordance with its terms; and
(b) upon the effectiveness of this Amendment, all of the representations and warranties contained in the Term Loan Agreement and in the other Loan Documents (other than those which speak expressly only as of an earlier date) are true and correct in all material respects on and as of the date of the effectiveness of this Amendment after giving effect to this Amendment and the transactions contemplated hereby.
4 Conditions to Effectiveness. This Amendment shall be effective on the date when this Amendment shall have been duly executed and delivered by Borrower, each other Credit Party party hereto, Agent and the Required Lenders.
5 Miscellaneous.
5.1 Effect; Ratification.
(a) Except as specifically set forth above, the Term Loan Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed. Without limiting the generality of the foregoing, each Credit Party reaffirms its guaranty of the Obligations and the Liens securing those guaranties.
(b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Agent or any Lender under the Term Loan Agreement or any other Loan Document, nor constitute amendment of any provision of the Term Loan Agreement or any other Loan Document, except as specifically set forth herein. Upon the effectiveness of this Amendment, each reference in the Term Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Term Loan Agreement, as amended hereby.
(c) Borrower acknowledges and agrees that the amendments and waivers set forth herein are effective solely for the purposes set forth herein and that the execution and delivery by Agent of this Amendment shall not be deemed (i) except as expressly provided in this Amendment, to be a consent to any amendment, waiver or modification of any term or condition of the Term Loan Agreement or of any other Loan Document, (ii) to create a course of dealing or otherwise obligate Agent or Lenders to forbear, waive, consent or execute similar amendments under the same or similar circumstances in the future, or (iii) to amend, prejudice, relinquish or impair any right of Agent or Lenders to receive any indemnity or similar payment from any Person or entity as a result of any matter arising from or relating to this Amendment.
5.2 Counterparts and Signatures by Fax. This Amendment may be executed in any number of counterparts, each such counterpart constituting an original but all together one and the same instrument. Any party delivering an executed counterpart of this Amendment by fax shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Amendment.
5.3 Severability. In case any provision in or obligation under this Amendment shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
5.4 Loan Document. This Amendment shall constitute a Loan Document.
5.5 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL, IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
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BORROWER:
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| BURLINGTON ▇▇▇▇▇▇▇, ▇.▇ DE C.V. | |||
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By:
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/s/▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| Title: | Vice President | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]
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OTHER CREDIT PARTIES:
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| PARRAS CONE DE MÉXICO, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
| ADMINISTRACIÓN PARRAS CONE, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
| MANUFACTURAS PARRAS CONE, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
| BURLINGTON YECAPIXTLA, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
| CONE DENIM YECAPIXTLA, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
| CASIMIRES BURLMEX, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
| SERVICIOS BURLMEX, S.A. DE C.V. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]
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APPAREL FABRICS PROPERTIES, INC.
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| BURLINGTON INDUSTRIES V, LLC | |||
| CONE ADMINISTRATIVE AND SALES LLC | |||
| CONE INTERNATIONAL HOLDINGS II, INC. | |||
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INTERNATIONAL TEXTILE GROUP
ACQUISITION GROUP LLC
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| BURLINGTON WORLDWIDE INC. | |||
| CONE DENIM WHITE OAK LLC | |||
| CONE INTERNATIONAL HOLDINGS, INC. | |||
| CONE ACQUISITION LLC | |||
| WLR CONE ▇▇▇▇▇ IP, INC. | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
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VALENTEC ▇▇▇▇▇, LLC
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By: International Textile Group, Inc.,
its sole member
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]
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INTERNATIONAL TEXTILE GROUP, INC.
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| BURLINGTON INDUSTRIES LLC | |||
| CONE JACQUARDS LLC | |||
| CONE DENIM LLC | |||
| CARLISLE FINISHING LLC | |||
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SAFETY COMPONENTS FABRIC
TECHNOLOGIES, INC.
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
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NARRICOT INDUSTRIES LLC
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| By: International Textile Group, Inc., its sole member | |||
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By:
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/s/▇▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Vice President & Treasurer | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]
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AGENT AND LENDERS:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as the Agent and a Lender
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By:
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/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |
| Title: | Its Duly Authorized Signatory | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]
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UBS AG, STAMFORD BRANCH, as a Lender
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By:
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/s/▇▇▇▇ ▇. ▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇ | ||
| Title: | Associate Director | ||
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By:
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/s/▇▇▇▇ ▇. ▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇. ▇▇▇▇ | ||
| Title: | Associate Director | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]
| BANK OF AMERICA, NA, as a Lender | |||
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By:
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/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | ||
| Title: | Senior Vice President | ||
[Signature Page to Consent and Amendment No. 7 to Term Loan Agreement]