EXHIBIT 10.53
CONSENT
This CONSENT (the "CONSENT") is dated as of July 28, 2004, by and
among AVONDALE XXXXX, INC., an Alabama corporation, as the Borrower (in such
capacity, the "BORROWER") and as a Credit Party; AVONDALE XXXXX GRANITEVILLE
FABRICS, INC., a Delaware corporation, as a Credit Party (together with Avondale
Xxxxx, Inc., the "CREDIT PARTIES" and each a "CREDIT PARTY"), AVONDALE
INCORPORATED, a Georgia corporation ("HOLDINGS") and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as the sole Lender (in such capacity, the
"LENDER") and as agent (in such capacity, the "AGENT"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to such
terms in Annex A to the Credit Agreement referred to below.
RECITALS
WHEREAS, the Borrower, the Credit Parties, the Lender and the Agent
are parties to a Credit Agreement dated as of November 7, 2003 (as amended,
restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT");
WHEREAS, the Borrower has notified the Agent and the Lender that it
desires enter into certain agreements pursuant to which the Borrower will issue
floating rate notes due no earlier than July 1, 2012 (the "NEW NOTES") in
exchange for the retirement of certain of the Subordinated Notes (the "NOTE
EXCHANGES");
WHEREAS, the Borrower, Holdings and the Credit Parties have
requested that the Lender and the Agent consent to any violation of Section 6.2,
Section 6.13 or 6.16 of the Credit Agreement that may arise solely as a result
of the Note Exchanges or the Issuance of the New Notes; and
WHEREAS, the Lender and the Agent have agreed to grant such consent
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the continued performance by
Borrower and each Credit Party of their respective promises and obligations
under the Credit Agreement and the other Loan Documents, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower, the Credit Parties, Holdings, the Lender, and the
Agent hereby agree as follows:
1. Consent. Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2 below, each of
the Lender and the Agent hereby consent to any violation of Section 6.2, Section
6.13 or 6.16 of the Credit Agreement that may arise solely as a result of any
Note Exchange or the Issuance of the New Notes; provided, that (a) each of the
New Notes matures no earlier than July 1, 2012, (b) the aggregate principal
amount
of Subordinated Notes exchanged in connection with all of the Note Exchanges
does not exceed $66,000,000, (c) the sum of (i) the aggregate principal amount
of the New Notes and (ii) any other consideration paid to noteholders in
connection with the Note Exchanges is no greater than 75% of the aggregate
principal amount of the Subordinated Notes exchanged therefor, (d) each New Note
bears interest at an aggregate rate no greater than 11.75% per annum at any
time, (e) the Borrower supplements Schedule 6.3 to the Credit Agreement
reflecting any New Notes promptly after the consummation of such Note Exchange,
(f) no Default or Event of Default has occurred and is continuing at the time of
the consummation such Note Exchange, and (g) the documentation with respect to
such Note Exchange is in form and substance reasonably acceptable to the Agent.
2. Effectiveness of this Consent; Conditions Precedent. The
provisions of Paragraphs 1 of this Consent shall be deemed to have become
effective as of the date of this Consent, but such effectiveness shall be
expressly conditioned upon the Agent's receipt of a faxed counterpart of this
Consent executed and delivered by duly authorized officers of the Borrower, the
Credit Parties, Holdings and the Lender.
3. Miscellaneous.
(a) Headings. The various headings of this Consent are inserted
for convenience of reference only and shall not affect the meaning or
interpretation of this Consent or any provisions hereof.
(b) Counterparts. This Consent may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
Delivery of an executed counterpart of a signature page to this Consent by
facsimile transmission shall be effective as delivery of a manually executed
counterpart thereof.
(c) Interpretation. No provision of this Consent shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured, drafted or dictated such provision.
(d) Reaffirmation, Ratification and Acknowledgment; Reservation.
Each of the Borrower, the Credit Parties and Holdings hereby (a) ratifies and
reaffirms all of its payment and performance obligations, contingent or
otherwise, and each grant of security interests and liens in favor of the Agent
on behalf of the Lender, under each Loan Document to which it is a party, (b)
agrees and acknowledges that such ratification and reaffirmation is not a
condition to the continued effectiveness of such Loan Documents, and (c) agrees
that neither such ratification and reaffirmation, nor the Agent's, or the
Lender's solicitation of such ratification and reaffirmation, constitutes a
course of dealing giving rise to any obligation or condition requiring a similar
or any other ratification or reaffirmation from the Borrower, Holdings or such
Credit Party with respect to any subsequent modifications to the Credit
Agreement or the other Loan Documents. The Credit Agreement is in all respects
ratified and confirmed. Each of the Loan Documents shall remain in full force
and effect and are hereby ratified and confirmed. Except as set forth in Section
1 above, neither the execution, delivery nor effectiveness of this Consent
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shall operate as a waiver of any right, power or remedy of the Agent or the
Lender, or of any Default or Event of Default (whether or not known to the Agent
or the Lender), under any of the Loan Documents, all of which rights, powers and
remedies, with respect to any such Default or Event of Default or otherwise, are
hereby expressly reserved by the Agent and the Lender. This Consent shall
constitute a Loan Document for purposes of the Credit Agreement.
(e) Governing Law. THIS CONSENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF GEORGIA.
(f) Effect. Upon the effectiveness of this Consent, each reference
in the Credit Agreement to "this Consent," "hereunder," "hereof" or words of
like import shall mean and be a reference to the Credit Agreement as amended
hereby and each reference in the other Loan Documents to the Credit Agreement,
"thereunder," "thereof," or words of like import shall mean and be a reference
to the Credit Agreement as amended hereby. Except as expressly provided in this
Consent, all of the terms, conditions and provisions of the Credit Agreement and
the other Loan Documents shall remain the same. Each of the Borrower, the Credit
Parties and Holdings hereby represents and warrants to the Lender and the Agent
that all authorizations, consents and approvals of such Person's board of
directors and shareholders, and all other Persons, necessary to permit such
Person to execute and deliver this Consent and to perform its obligations
hereunder and under the Credit Agreement as amended hereby, and to permit the
Lender and the Agent to enforce such obligations, have been obtained.
(g) No Novation or Waiver. Except as specifically set forth in
this Consent the execution, delivery and effectiveness of this Consent shall not
(a) limit, impair, constitute a waiver by, or otherwise affect any right, power
or remedy of, the Agent or the Lender under the Credit Agreement or any other
Loan Document, (b) constitute a waiver of any provision in the Credit Agreement
or in any of the other Loan Documents or of any Default or Event of Default that
may have occurred and be continuing, or (c) alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or in any of the other Loan Documents, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect.
(h) Agent's Expenses. The Borrower hereby agrees to promptly
reimburse the Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals' fees, it has heretofore or
hereafter incurred or incurs in connection with the preparation, negotiation and
execution of this Consent.
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IN WITNESS WHEREOF, the parties hereto have executed this Consent as
of the day and year first above written.
GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and the sole Lender
By: ________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
AVONDALE XXXXX, INC., as the Borrower and
as a Credit Party
By: ________________________________________
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and Chief Financial
Officer
AVONDALE XXXXX GRANITEVILLE FABRICS,
INC., as a Credit Party
By: ________________________________________
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and Chief Financial
Officer
AVONDALE INCORPORATED
By: ________________________________________
Name: Xxxx X. Xxxxxxx, Xx.
Title: Vice Chairman and Chief Financial
Officer
Signature Page to Consent
