Execution Copy
FIFTH AMENDMENT
This Fifth Amendment (the "Amendment") is dated as of March 1, 2005
among GFSI, Inc., a Delaware corporation (the "Borrower"), GFSI Holdings,
Inc., a Delaware corporation ("Holdings"), Event 1, Inc., a Kansas corporation
("Event 1") and CC Products, Inc., a Delaware corporation ("CCP"), each of the
financial institutions party thereto (such financial institutions, together
with their successors and assigns, are referred to herein each individually as
a "Lender" and collectively as the "Lenders"), and Bank of America, N.A., as
agent for the Lenders (in its capacity as agent, the "Agent").
Recitals
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Borrower, Holdings, Lenders and Agent have entered into that certain
Credit Agreement dated as of March 28, 2002 (as it has been and may hereafter
be amended, restated, supplemented, extended or otherwise modified, the
"Credit Agreement"), and
Borrower, Event 1, CCP and Agent have entered into that certain
Security Agreement dated as of March 28, 2002 (as it has been and may
hereafter be amended, restated, supplemented, extended or otherwise modified,
the "Security Agreement"), and
Borrower, Holdings, Agent and Lenders have agreed to amend certain
provisions of the Credit Agreement as set forth herein, and
Borrower, Event 1, CCP and Agent have agreed to amend certain
provisions of the Security Agreement as set forth herein.
Agreement
---------
Therefore, in consideration of the mutual execution of this
Amendment and other good and valuable consideration, the parties to this
Amendment agree as follows:
1. Definitions. Capitalized terms that are used in this Amendment
but are not otherwise defined in this Amendment have the meanings ascribed to
them in the Credit Agreement.
2. Amendments to Credit Agreement.
(a) Section 5.2(k) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
"(k) (x) As soon as available, but in any event within
twenty (20) days after the end of each fiscal month (for such month)
a Borrowing Base Certificate supporting the information required to
be provided monthly in accordance with Section 5.4 and (y) as soon
as available, but in any event within three (3) Business Days after
the end of each week (or such longer time as the Agent shall permit
in its sole discretion) in respect of such week a Borrowing Base
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Certificate updating only the information reported on lines one
through eight of the Borrowing Base Certificate; provided, that at
any time after an Activation Event occurs and before the Borrower
can demonstrate (i) in the case of an Activation Event resulting
from the occurrence of an Event of Default, that such Event of
Default has been waived or cured and no other Event of Default has
occurred and is continuing or (ii) in the case of an Activation
Event resulting from Availability being less than $10,000,000, that
the Borrower has maintained Availability of not less than
$12,500,000 for any period of sixty (60) consecutive days following
such Activation Event, Agent may require more frequent collateral
reporting."
(b) Section 5.4 of the Credit Agreement is hereby amended by
adding the following new sentence at the end thereof:
"Without limiting the foregoing, (i) whenever a Default or
Event of Default exists and before such Default or Event of Default
has been waived or cured and no other Default or Event of Default
has occurred and is continuing, (ii) at any time if below referenced
appraisals of any or all of the Collateral and updates thereof are
prepared at Lenders' expense and (iii) at such other times not more
frequently than once per each twelve month period as the Agent
requests, the Borrower shall, at its expense (other than in the case
of appraisals and updates thereof requested pursuant to clause (ii)
above) and upon the Agent's request, provide the Agent with
appraisals of any or all of the Collateral or updates thereof from
an appraiser, and prepared on a basis, satisfactory to the Agent,
such appraisals and updates to include, without limitation,
information required by applicable law and regulation and by the
internal policies of the Lenders; provided that, without limiting
the foregoing, at any time after Availability is less than
$10,000,000 and before the Borrower can demonstrate that the
Borrower has maintained Availability of not less than $12,500,000
for any period of sixty (60) consecutive days following such event,
Agent may at any time require that Borrower, at its expense, provide
the Agent with an appraisal of Inventory from an appraiser, and
prepared on a basis, satisfactory to the Agent, and such appraisals
to include, without limitation, information required by applicable
law and regulation and by the internal policies of the Lenders."
(c) Section 7.23 of the Credit Agreement is hereby amended by
amending and restating such Section to read in its entirety as follows:
"7.23 Fixed Charge Coverage Ratio. At any time after an
Activation Event resulting from Availability being less than
$10,000,000 occurs and before the Borrower can demonstrate that the
Borrower has maintained Availability of not less than $12,500,000
for any period of sixty (60) consecutive days following such
Activation Event, Holdings and its consolidated Subsidiaries will
maintain a Fixed Charge Coverage Ratio for each period of twelve
consecutive fiscal months ended on the last day of each fiscal month
of not less than 1:05:1."
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(d) Section 7.24 of the Credit Agreement is hereby amended by
replacing the amount "$2,500,000" found in such Section with "$5,000,000".
(e) Annex A of the Credit Agreement is hereby amended by
amending and restating the definition of "Applicable Margin" to read in its
entirety as follows:
"Applicable Margin" means
(i) with respect to Base Rate Revolving Loans and all other
Obligations (other than LIBOR Rate Loans), .375%;
(ii) with respect to LIBOR Revolving Loans, 2.50%;
(iii) with respect to commercial/documentary Letters of Credit,
1.375%;
(iv) with respect to the Unused Line Fee, .250%; and
(v) with respect to standby Letters of Credit, 2.50%
The Applicable Margins shall be adjusted (up or down)
prospectively on a quarterly basis on the first day of each January,
April, July and October as determined on such dates on the basis of
the Average Quarterly Availability, commencing on March 1, 2005.
Adjustments in Applicable Margins shall be determined by reference
to the following grids:
-------------------------------------------------------------------------------
If Average Quarterly Availability | Level of Applicable Margins:
(Measured in Millions) is: |
-------------------------------------|-----------------------------------------
> $40 | Level I
-------------------------------------| ----------------------------------------
> $30, but <= $40 | Level II
-------------------------------------| ----------------------------------------
> $20, but <= $30 | Level III
-------------------------------------| ----------------------------------------
> $10, but <= $20 | Level IV
-------------------------------------|-----------------------------------------
| Applicable Margins
|-----------------------------------------
|Level I Level II Level III Level IV
------------------------------------ |-------- ---------- ----------- ---------
Base Rate Revolving Loans | .250% .250% .375% .50%
and all other Obligations |
(except as otherwise |
specifically provided in this |
grid) |
------------------------------------ |--------- ---------- ----------- --------
LIBOR Revolving Loans | 2.00% 2.25% 2.50% 2.75%
and standby Letters of |
Credit |
------------------------------------ |--------- ---------- ----------- --------
Unused Line Fee | .375% .250% .250% .250%
------------------------------------ |--------- ---------- ----------- --------
commercial/documentary Letters of | 1.125% 1.250% 1.375% 1.50%
Credit |
------------------------------------ |--------- ---------- ----------- --------
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If a Default or Event of Default has occurred and is
continuing at the time any reduction in the Applicable Margins is to
be implemented, no reduction may occur until the first day of the
first calendar month following the date on which such Default or
Event of Default is waived or cured."
(f) The definition of the term "Borrowing Base" is hereby
amended by replacing at the end thereof the phrase ", and, in any case, at any
time Availability is less than $12,500,000, in Agent's sole discretion, Agent
can adjust the advance rate for Eligible Inventory and Eligible In-Transit
Inventory to an amount equal to 85% of the net orderly liquidation value of
Eligible Inventory and Eligible In-Transit Inventory as determined by
appraisals" with the phrase ", and, in any case, in Agent's sole discretion,
Agent can at any time adjust the advance rate for Eligible Inventory and
Eligible In-Transit Inventory to an amount equal to 85% of the net orderly
liquidation value of Eligible Inventory and Eligible In-Transit Inventory as
determined by the most recent appraisals provided in accordance with Section
5.4".
(g) Annex A to the Credit Agreement is hereby amended by
adding the followingnew definition thereto in alphabetical order:
"Average Quarterly Availability" means, as of any
adjustment date pursuant to the definition of "Applicable Margin",
average Availability for the immediately preceding fiscal quarter as
determined by Agent in its commercially reasonable discretion;
provided that notwithstanding the foregoing, as of the adjustment
date March 1, 2005, "Average Quarterly Availability" shall mean
average Availability for the period of the immediately preceding
sixty (60) consecutive days as determined by Agent in its
commercially reasonable discretion."
3. Amendment to Security Agreement. Section 7 of the Security
Agreement is hereby amended by amending and restating such Section to read in
its entirety as follows:
"(i) Whenever a Default or Event of Default exists and
before such Default or Event of Default has been waived or cured and
no other Default or Event of Default has occurred and is continuing,
(ii) at any time if below referenced appraisals of any or all of the
Collateral and updates thereof are prepared at Lenders' expense and
(iii) at such other times not more frequently than once per each
twelve month period as the Agent requests, each Grantor shall, at
its expense (other than in the case of appraisals and updates
thereof requested pursuant to clause (ii) above) and upon the
Agent's request, provide the Agent with appraisals of any or all of
the Collateral or updates thereof from an appraiser, and prepared on
a basis, satisfactory to the Agent, such appraisals and updates to
include, without limitation, information required by applicable law
and regulation and by the internal policies of the Lenders; provided
that, without limiting the foregoing, at any time after Availability
is less than $10,000,000 and before the Borrower can demonstrate
that the Borrower has maintained Availability of not less than
$12,500,000 for any period of sixty (60) consecutive days following
such event, Agent may at any time require that each Grantor, at its
expense, provide the Agent with an appraisal of Inventory from an
appraiser, and prepared on a basis, satisfactory to the Agent, and
such appraisals to include, without limitation, information required
by applicable law and regulation and by the internal policies of the
Lenders."
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4. Conditions to Effectiveness. This Amendment shall become effective
when each of the following conditions precedent has been met:
(a) Amendment. Each of Agent, Borrower, Holdings, Event 1,
CCP and Lenders shall have delivered to Agent duly executed counterparts to this
Amendment;
(b) Amendment Fee. Borrower shall have paid to Agent, for the
ratable benefit of the Lenders, an amendment fee of $65,000 ("Amendment Fee"),
which Amendment Fee shall be fully earned and payable on the date hereof; and
(c) Reaffirmation of Guaranty. Holdings shall have executed
and delivered to Agent the Reaffirmation of Guaranty attached to this Amendment.
5. Representations and Warranties. In order to induce the Agent and
each Lender to enter into this Amendment, each of Borrower, Holdings, Event 1
and CCP hereby represents and warrants to the Agent and each Lender, which
representations and warranties shall survive the execution and delivery of
this Amendment, that:
(a) all of the representations and warranties contained in
the Credit Agreement, the Security Agreement and in each Loan Document to which
any of Borrower, Holdings, Event 1 and CCP is a party are true and correct as
of the date hereof after giving effect to this Amendment (determined as if all
references to "Closing Date" were references to March 1, 2005), except to the
extent that any such representations and warranties expressly relate to an
earlier date;
(b) (x) the execution, delivery and performance by Borrower,
Holdings, Event 1 and CCP of this Amendment has been duly authorized by all
necessary corporate action required on its part, and (y) this Amendment is the
legal, valid and binding obligation of Borrower, Holdings, Event 1 and CCP, the
Credit Agreement is the legal, valid and binding obligation of Borrower and
Holdings and the Security Agreement is the legal, valid and binding obligation
of Borrower, Event 1 and CCP, in each case enforceable against such parties in
accordance with its terms, except as its enforceability may be affected by the
effect of bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights or remedies
of creditors generally;
(c) neither the execution, delivery and performance of this
Amendment by Borrower, Holdings, Event 1 and CCP, the performance by Borrower
and Holdings of the Credit Agreement, the performance by Borrower, Event 1 and
CCP of the Security Agreement nor the consummation of the transactions
contemplated hereby does or shall contravene, result in a breach of, or
violate (i) any provision of Borrower's, Holdings', Event 1's or CCP's
certificate or articles of incorporation or bylaws or other similar documents,
or agreements, (iii) any law or regulation, or any order or decree of any
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court or government instrumentality, or (iii) any indenture, mortgage, deed of
trust, lease, agreement or other instrument to which Borrower, Holdings, Event
1, CCP or any of their Subsidiaries is a party or by which Borrower, Holdings,
Event 1, CCP or any of their Subsidiaries or any of their property is bound,
except in any such case to the extent such conflict or breach has been waived
herein or by a written waiver document, a copy of which has been delivered to
Agent on or before the date hereof; and
(d) no Default or Event of Default has occurred and is
continuing.
6. Reference to and Effect Upon the Credit Agreement.
(a) Except as specifically set forth above, the Credit
Agreement, the Security Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed; and
(b) The amendments set forth herein is effective solely for
the purposes set forth herein and shall be limited precisely as written, and
shall not be deemed to (i) be a consent to any amendment, waiver or
modification of any other term or condition of the Credit Agreement, the
Security Agreement or any other Loan Document, (ii) operate as a waiver or
otherwise prejudice any right, power or remedy that the Agent or the Lenders
may now have or may have in the future under or in connection with the Credit
Agreement, the Security Agreement or any other Loan Document or (iii)
constitute a waiver of any provision of the Credit Agreement, the Security
Agreement or any Loan Document, except as specifically set forth herein. Upon
the effectiveness of this Amendment, each reference in the Credit Agreement to
"this Agreement", "herein", "hereof" and words of like import and each
reference in the Credit Agreement and the Loan Documents to the Credit
Agreement shall mean the Credit Agreement as amended hereby. This Amendment
shall be construed in connection with and as part of the Credit Agreement.
Upon the effectiveness of this Amendment, each reference in the Security
Agreement to "this Security Agreement", "herein", "hereof" and words of like
import and each reference in the Credit Agreement and the Loan Documents to
the Security Agreement shall mean the Security Agreement as amended hereby.
7. Costs and Expenses. As provided in Section 13.7 of the Credit
Agreement, Borrower will reimburse Agent for all reasonable costs and expenses
that Agent incurs (including reasonable attorneys' costs) in connection with
the preparation, execution, delivery and administration of this Amendment (and
the other documents to be delivered in connection with this Amendment).
8. GOVERNING LAW. THIS AMENDMENT SHALL BE INTERPRETED AND THE RIGHTS
AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE
INTERNAL LAWS (AS OPPOSED TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS; PROVIDED THAT THE AGENT AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
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9. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute part of this
Amendment for any other purposes.
10. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts shall constitute one and the same instrument.
[The remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties to this Amendment have caused it to be
duly executed as of the day and year first above written.
GFSI, INC.
By: /s/ J. Xxxxx Xxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxx
------------------------------------
Title: CFO
------------------------------------
GFSI HOLDINGS, INC.
By: /s/ J. Xxxxx Xxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxx
------------------------------------
Title: CFO
------------------------------------
EVENT 1, INC.
By: /s/ J. Xxxxx Xxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxx
------------------------------------
Title: CFO
------------------------------------
CC PRODUCTS, INC.
By: /s/ J. Xxxxx Xxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxx
------------------------------------
Title: CFO
------------------------------------
S-1
[Signature Page to the Fifth Amendment]
BANK OF AMERICA, N.A., as the Agent
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
------------------------------------
Title: Vice President
------------------------------------
S-2
[Signature Page to the Fifth Amendment]
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------
Title: Sr. Vice President
------------------------------------
S-3
[Signature Page to the Fifth Amendment]
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
------------------------------------
Title: Vice President
------------------------------------
S-4
[Signature Page to the Reaffirmation of Guaranty]
Reaffirmation of Guaranty
The undersigned Guarantor (i) hereby acknowledges the receipt
of the Amendment, (ii) acknowledges and reaffirms all of Guarantor's obligations
and undertakings under the Guaranty, dated as of March 28, 2002, between the
undersigned and Agent (as amended, restated or otherwise modified from time to
time, the "Guaranty"), and (iii) acknowledges and agrees that subsequent to, and
taking into account such Amendment and the transactions contemplated thereby,
the Guaranty is and shall remain in full force and effect in accordance with the
terms thereof.
GFSI HOLDINGS, INC.
By: /s/ J. Xxxxx Xxxxxxxx
------------------------------------
Name: J. Xxxxx Xxxxxxxx
------------------------------------
Title: CFO
------------------------------------
S-5
[Signature Page to the Reaffirmation of Guaranty]
