EXHIBIT 10.15
SIXTH AMENDMENT AND WAIVER TO THE
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of March 16, 2000
SIXTH AMENDMENT AND WAIVER TO THE THIRD AMENDED AND RESTATED
CREDIT AGREEMENT (this "Amendment and Waiver") among Glenoit Corporation (the
"Borrower"), the Lenders named in the Credit Agreement (defined below) (the
"Lenders"), Banque Nationale de Paris (the "Agent"), as Agent, Arranger, Issuing
Bank and Swing Line Bank, Fleet National Bank, as Syndication Agent, and LaSalle
National Bank, as Documentation Agent.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders, the Agent, the Arranger, the
Issuing Bank, the Swing Line Bank, the Syndication Agent and the Documentation
Agent have entered into a Third Amended and Restated Credit Agreement, dated as
of February 12, 1999 (as the same may be amended and modified from time to time,
the "Credit Agreement"). Capitalized terms not otherwise defined in this
Amendment and Waiver have the same meanings as specified in the Credit Agreement
as amended hereby.
(2) Section 2.06(b)(ii) of the Credit Agreement provides that
the Borrower is obligated to prepay an aggregate principal amount of Working
Capital Advances, Swing Line Advances and Letter of Credit Advances in an amount
by which such Advances plus the Available Amount of all Letters of Credit then
outstanding (together with such Advances, the "Outstanding Amount") exceeds the
Loan Value of Eligible Collateral, based upon the most recent Borrowing Base
Certificate.
(3) On February 23, 2000, Borrower delivered to the Agent a
Borrowing Base Certificate dated February 23, 2000 (the "February BB
Certificate") reflecting that the Outstanding Amount exceeded the Loan Value of
Eligible Collateral. The Borrower was then obligated under Section 2.06(b)(ii)
of the Credit Agreement to make a principal prepayment in the approximate amount
of $2,000,000, which the Borrower failed to make.
(4) The failure of the Borrower to make the principal
prepayment required by Section 2.06(b)(ii) of the Credit Agreement as aforesaid
constitutes on Event of Default under Section 6.01(a) of the Credit Agreement
(the "Section 2.06(b)(ii) Event of Default"), which the Borrower has
acknowledged by its letter to the Agent, dated February 23, 2000.
(5) The Lenders are prepared to waive the aforesaid Section
2.06(b)(ii) Event of Default on the conditions, for the limited period and for
the limited purposes hereinafter set forth.
SECTION 1. Waivers. Subject to the conditions precedent set
forth in Section 3 hereof, the Lenders hereby waive the Section 2.06(b)(ii)
Event of Default, solely for the purposes of Sections 6.01 and 3.02 of the
Credit Agreement, which waiver shall be effective only for the period beginning
on the date hereof and ending on April 10, 2000 (the "Waiver Period"); provided,
however, that (a) the aggregate Available Amount of all Letters of Credit then
outstanding shall not at any time exceed an amount equal to $48.314 million less
the sum of (x) the Working Capital Advances, (y) the Swing Line Advances, and
(z) the Letter of Credit Advances at the time outstanding and (b) Working
Capital Advances shall not at any time exceed $45 million. The foregoing waiver
shall not be effective for purposes of any other provision of the Credit
Agreement or any other Default or Event of Default thereunder, now existing or
arising in the future, including, without limitation, any other payment at any
time due under Section 2.06(b)(ii) of the Credit Agreement, and the Borrower
concedes that, notwithstanding the effectiveness of this Amendment and Waiver,
after the Waiver Period, the Lenders remain under no obligation to make any
Advances by reason of the Section 2.06(b)(ii) Event of Default.
SECTION 2. Amendments.
(a) During the Waiver Period, Section 5.01(m) of the Credit
Agreement shall be amended by replacing all references to "15 days",
"30 days" and "60 days" therein to "10 days".
(b) During the Waiver Period, Section 2.01(e) shall be amended
by adding the following language at the end of such Section:
Anything to the contrary set forth in the Loan
Documents notwithstanding, (i) no Standby Letters of Credit
shall be issued hereunder and issuance of Letters of Credit
shall be limited solely to Trade Letters of Credit, and (ii)
two Business Days prior to the issuance of any Trade Letter of
Credit, the Borrower shall provide, with respect to such Trade
Letter of Credit, documentation to the Agent describing the
recipient, amount and purpose of such Trade Letter of Credit,
including, without limitation, the customer for whose benefit
the Inventory (the payment for which is to be secured by the
proposed Trade Letter of Credit) is being ordered.
SECTION 3. Conditions of Effectiveness of Amendment and
Waiver. This Amendment and Waiver shall become effective as of the date first
above written when, and only when, the following conditions precedent shall have
been satisfied:
(a) The Agent shall have received counterparts of this
Amendment and Waiver executed by the Borrower, the Agent and the
required number of Lenders.
(b) The Borrower shall have reimbursed or otherwise paid all
reasonable costs and expenses of the Agent paid or incurred in
connection with the Borrower or the Credit Agreement, including,
without limitation, in connection with the preparation, execution,
delivery and administration of this Amendment and Waiver (including,
without limitation, (a) all outstanding fees and disbursements of
Shearman & Sterling and ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP in their
capacity as counsel to the Agent, and (b) a retainer in the amount of
[$75,000] to Zolfo ▇▇▇▇▇▇ LLP, in its capacity as consultant to the
Agent's counsel ("Zolfo ▇▇▇▇▇▇")).
(c) The Borrower shall have agreed to be bound by the terms of
a retention agreement (the "Retention Agreement"), in form reasonably
satisfactory to the Agent,
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pursuant to which Zolfo ▇▇▇▇▇▇ shall be retained as consultant to the
Agent's counsel in respect of the Credit Agreement.
SECTION 4. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization.
(b) The execution, delivery and performance by the Borrower of
this Amendment and Waiver and the Loan Documents, as amended hereby, to
which it is or is to be a party, is within the Borrower's corporate
powers, has been duly authorized by all necessary corporate action and
does not (i) contravene the Borrower's charter or by-laws, (ii) violate
any law (including, without limitation, the Securities Exchange Act of
1934, as amended, and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970), rule
or regulation (including, without limitation, Regulation X of the Board
of Governors of the Federal Reserve System), or any order, writ,
judgment, injunction, decree, determination or award, binding on or
affecting the Borrower or any of its Subsidiaries or any of their
properties, (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting the Borrower, any of its Subsidiaries or any of their
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of the Borrower or any of
its Subsidiaries.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery,
recordation, filing or performance by the Borrower of this Amendment
and Waiver or any of the Loan Documents, as amended hereby, to which it
is or is to be a party.
(d) With the exception of the Section 2.06(b)(ii) Event of
Default described herein, there are no other Defaults or Events of
Default by Borrower as of the date hereof.
(e) This Amendment and Waiver has been duly executed and
delivered by the Borrower. This Amendment and Waiver and each of the
Loan Documents, as amended hereby, to which the Borrower is a party are
legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting
creditors' rights or by equitable principles generally.
(f) There is no action, suit, investigation, litigation or
proceeding affecting the Borrower or any of its Subsidiaries
(including, without limitation, any Environmental Action) pending or
threatened before any court, governmental agency or arbitrator that (i)
would be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect
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the legality, validity or enforceability of this Amendment and Waiver
or any of the Loan Documents, as amended hereby.
SECTION 5. Covenants of the Borrower. In consideration of the
waiver granted hereby by the Lenders, the Borrower covenants and agrees as
follows:
(a) Both during and after the Waiver Period, the Borrower
shall, and shall cause each other Loan Party to, fully cooperate with
Zolfo ▇▇▇▇▇▇ in ▇▇▇▇▇ ▇▇▇▇▇▇'▇ performance of its duties under the
Retention Agreement; offer Zolfo ▇▇▇▇▇▇ reasonable access to its
facilities, books and records; furnish promptly to Zolfo ▇▇▇▇▇▇ all
information concerning its business, properties, personnel and
financial performance as Zolfo ▇▇▇▇▇▇ shall reasonably request; and
make available to Zolfo ▇▇▇▇▇▇ such of its personnel and its
professional advisors as Zolfo ▇▇▇▇▇▇ shall reasonably request for the
understanding of the business, property, personnel and financial
performance of the Borrower and the other Loan Parties.
(b) During the Waiver Period, the Borrower shall, and shall
cause each other Loan Party to, conduct its business, only in the
regular and ordinary course of business consistent with past practice.
(c) Both during and after the Waiver Period, in addition to
any and all reporting by the Borrower required by the Loan Documents,
until otherwise directed by the Agent, the Borrower shall furnish to
the Agent as of the end of each calendar week not later than five
Business Days after the end of such calendar week, a summary of cash
disbursements and deposits for such week, as well as an accounts
receivable aging report as of the end of such week.
(d) The covenants contained in this Section 5 are in addition
to, and not in derogation or limitation of, any other covenants,
agreements or obligations of the Loan Parties under the Loan Documents.
SECTION 6. Reference to and Effect on the Credit Agreement and
the Loan Documents. (a) On and after the effectiveness of this Amendment and
Waiver, each reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Credit Agreement, and each
reference in the Notes and each of the other Loan Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement, as
amended by this Amendment and Waiver.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment and Waiver, are
and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described
therein do and shall continue to secure the payment of all Obligations
of the Loan Parties under the Loan Documents, in each case as amended
by this Amendment and Waiver.
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(c) The Borrower hereby agrees that (i) the Borrower is truly
and justly indebted to the Secured Parties, without defense,
counterclaim or offset of any kind in the full amount of the Secured
Obligations and (ii) the Secured Obligations are secured by valid,
perfected, enforceable and unavoidable first priority Liens and
security interests upon the Collateral senior to all other security
interests and liens upon the Collateral (except as set forth in the
Third Amended and Restated Security Agreement and the Credit
Agreement), granted by the Loan Parties to the Agent for the ratable
benefit of the Secured Parties.
(d) The execution, delivery and effectiveness of this
Amendment and Waiver shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender Party
or the Agent under any of the Loan Documents, nor constitute a waiver
of any provision of any of the Loan Documents.
SECTION 7. Fees; Costs and Expenses. The Borrower agrees to
pay on demand all reasonable costs and expenses of the Agent in connection with
the preparation, execution, delivery and administration, modification and
amendment of this Amendment and Waiver and the other instruments and documents
to be delivered hereunder (including, without limitation, the reasonable fees
and disbursements of counsel and financial advisor to the Agent) in accordance
with the terms of Section 8.04 of the Credit Agreement.
SECTION 8. Execution in Counterparts. This Amendment and
Waiver may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute but one and
the same agreement. Delivery of an executed counterpart of a signature page to
this Amendment and Waiver by telecopier shall be effective as delivery of a
manually executed counterpart of this Amendment and Waiver.
SECTION 9. Governing Law. This Amendment and Waiver shall be
governed by, and construed in accordance with, the laws of the State of New
York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
GLENOIT CORPORATION
By s/s ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: President and Chief Executive Officer
AGENT
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BANQUE NATIONALE DE PARIS,
as Agent and as a Lender
By s/s ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By s/s ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Associate
LENDERS
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BOEING CAPITAL CORPORATION
By
Name:
Title:
CENTURA BANK
By s/s ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Bank Officer
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COMERICA
By s/s ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: First Vice President
DEUTSCHE FINANCIAL SERVICES
By s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FIRST SOURCE FINANCIAL LLP,
By First Source Financial, Inc., as its
Agent/Manager
By s/s ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FLEET BANK, N.A.
By s/s ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
FLOATING RATE PORTFOLIO
INVESCO Senior Secured Management
Inc., as attorney in fact
By s/s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
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LASALLE BANK NATIONAL ASSOCIATION
By s/s ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Corporate Banking Officer
Leveraged Finance
KZH ING-1 LLC
By
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Name:
Title:
KZH ING-2 LLC
By
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Name:
Title:
KHZ ING-3 LLC
By
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Name:
Title:
METROPOLITAN LIFE
INSURANCE COMPANY
By
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Name:
Title:
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▇▇▇ ▇▇▇▇▇▇ SENIOR FLOATING
RATE FUND
By
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Name:
Title:
▇▇▇ ▇▇▇▇▇▇ PRIME RATE
INCOME TRUST
By
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Name:
Title:
FLEET BUSINESS CREDIT CORPORATION
By s/s ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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