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AMENDMENT NO. 6, CONSENT AND WAIVER TO CREDIT AGREEMENT OF AMERICAN APPAREL (USA), LLC

Waiver Agreement

AMENDMENT NO. 6, CONSENT AND WAIVER TO CREDIT AGREEMENT OF AMERICAN APPAREL (USA), LLC | Document Parties: AMERICAN APPAREL, INC | AAI Acquisition LLC | AMERICAN APPAREL (USA), LLC | AMERICAN APPAREL RETAIL, INC | AMERICAN APPAREL, LLC | FINISHING, INC | FRESH AIR FREIGHT, INC | KCL KNITTING, LLC | SOF Investments, LP You are currently viewing:
This Waiver Agreement involves

AMERICAN APPAREL, INC | AAI Acquisition LLC | AMERICAN APPAREL (USA), LLC | AMERICAN APPAREL RETAIL, INC | AMERICAN APPAREL, LLC | FINISHING, INC | FRESH AIR FREIGHT, INC | KCL KNITTING, LLC | SOF Investments, LP

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Title: AMENDMENT NO. 6, CONSENT AND WAIVER TO CREDIT AGREEMENT OF AMERICAN APPAREL (USA), LLC
Governing Law: New York     Date: 5/16/2008
Industry: Misc. Financial Services     Sector: Financial

AMENDMENT NO. 6, CONSENT AND WAIVER TO CREDIT AGREEMENT OF AMERICAN APPAREL (USA), LLC, Parties: american apparel  inc , aai acquisition llc , american apparel (usa)  llc , american apparel retail  inc , american apparel  llc , finishing  inc , fresh air freight  inc , kcl knitting  llc , sof investments  lp
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Exhibit 10.27

AMENDMENT NO. 6, CONSENT AND WAIVER TO CREDIT AGREEMENT OF

AMERICAN APPAREL (USA), LLC

This AMENDMENT NO. 6, CONSENT AND WAIVER (this “ Amendment ”), dated as of May 15, 2008, is among American Apparel (USA), LLC (f/k/a AAI Acquisition LLC (successor by merger to American Apparel, Inc.)), a California limited liability company (the “ Borrower ”), the Facility Guarantors thereto (the “ Guarantors ”) and SOF Investments, L.P.—Private IV, as lender (the “ Lender ”), parties to the Credit Agreement dated as of January 18, 2007 (as amended by that certain Amendment No. 1 and Waiver to Credit Agreement of American Apparel, Inc. dated as of July 2, 2007, that certain Amendment No. 2 and Waiver to Credit Agreement of American Apparel, Inc. dated as of November 9, 2007, that certain Amendment No. 3 and Waiver to Credit Agreement of American Apparel, Inc. dated as of November 28, 2007, that certain Amendment No. 4 and Waiver to Credit Agreement of American Apparel, Inc. dated as of December 12, 2007 and that certain Amendment No. 5 and Waiver to Credit Agreement of American Apparel (USA), LLC dated as of February 29, 2008, the “ Credit Agreement ”). Capitalized terms used herein but not defined herein are used as defined in the Credit Agreement.

WITNESSETH:

WHEREAS, the Borrower has notified Lender that (a) the Borrower breached paragraph (a) of Section 6.11 (Financial Covenants) of the Credit Agreement (the “ Fixed Charge Coverage Ratio Covenant ”) by failing to maintain a Consolidated Fixed Charge Coverage Ratio of 1.05 to 1.00 for the four Fiscal Quarter period ended on March 31, 2008 (the “ Fixed Charge Coverage Ratio Default ”), (b) the Borrower breached paragraph (b) of Section 6.12 (Capital Expenditures) of the Credit Agreement (the “ Capital Expenditures Covenant ”) by incurring, or by permitting any of its Subsidiaries to incur, Capital Expenditures in excess of $5,000,000 during the Fiscal Quarter ending March 31, 2008 (the “ Capital Expenditures Default ”), (c) the Borrower breached Section 6.04 (Investments, Loans, Advances, Guarantees and Acquisitions) of the Credit Agreement by entering into the Asset Purchase Agreement dated as of April 8, 2008 (the “ Dye House Purchase Agreement ”, an executed copy of which is attached on Schedule A ) by and between the Borrower and USDF, a California corporation (the “ Dye House Default ”), (d) the Borrower breached Section 6.01 (Indebtedness and Other Obligations) of the Credit Agreement by permitting American Apparel Japan Yugen Kaisha to incur Indebtedness on the terms set forth on Schedule B (the “ Japanese Indebtedness Default ”), (e) the Borrower breached Section 6.04 (Investments, Loans, Advances, Guarantees and Acquisitions) and Section 6.08 (Transactions with Affiliates) of the Credit Agreement by making intercompany loans and other transfers of cash to certain Foreign Subsidiaries as described on Part A of Schedule C , which Investments are not Permitted Investments (the “ March Investments Default ”) and by making further intercompany loans and other transfers of cash to certain Foreign Subsidiaries as described on Part B of Schedule C , which Investments are not Permitted Investments (the “ May Investments Default ” and, together with the March Investments Default, the “ Investments Default ”), and (f) an Event of Default exists under Section 7.01(q) (Events of Default) for Borrower’s failure to comply with certain provisions of the Existing First Lien Credit Agreement, which constitutes Events of Default under Sections 7.01(d), (e) and (r) of the Existing First Lien Credit Agreement (the “ Cross-Default ” and, together with the Fixed Charge Coverage Ratio Default, the Capital Expenditures Default, the Dye House Default, the Japanese Indebtedness Default and the Investments Default, the “ Specified Events of Defaults ”);

WHEREAS, the Borrower has requested that the Lender waive the Specified Events of Defaults and compliance with the Fixed Charge Coverage Ratio Covenant for the four Fiscal Quarter period ended on March 31, 2008 and with the Capital Expenditures Covenant for the Fiscal Quarter ending March 31, 2008 and further amend the Credit Agreement as set forth herein;

WHEREAS, the Borrower has also requested that the Lender consent to the acquisition of certain assets of USDF on the terms set forth in the Dye House Purchase Agreement; and

 


A MENDMENT N O . 6, C ONSENT AND W AIVER

OF A MERICAN A PPAREL (USA), LLC

 

WHEREAS, the Lender agrees, subject to the limitations and conditions set forth herein, (a) to waive the Specified Events of Defaults and compliance with the Fixed Charge Coverage Ratio Covenant for the four Fiscal Quarter period ended on March 31, 2008 and with the Capital Expenditures Covenant for the Fiscal Quarter ending March 31, 2008, (b) to amend the Credit Agreement as set forth herein and (c) to consent to the acquisition of certain assets of USDF on the terms set forth in the Dye House Purchase Agreement.

NOW, THEREFORE, in consideration of the premises and the covenants and obligations contained herein the parties hereto agree as follows:

 

  Section 1. Waiver

Effective as of the Amendment Effective Date and subject to the satisfaction (or due waiver) of the conditions set forth in Section 4 (Conditions Precedent to the Effectiveness of this Amendment) hereof, the Lender waives the following: (a) the Fixed Charge Coverage Ratio Default, the Capital Expenditures Default, the Japanese Indebtedness Default, the March Investments Default and the Cross-Default (only with respect to those Events of Default under the Existing First Lien Credit Agreement which occurred on or before March 31, 2008), each as of March 31, 2008, (b) the Dye House Default, the May Investments Default and the Cross-Default (with respect to those Events of Default under the Existing First Lien Credit Agreement which occurred after March 31, 2008), each as of the Amendment Effective Date, and (c) compliance with the Fixed Charge Coverage Ratio Covenant for the four Fiscal Quarter period ending on March 31, 2008 and with the Capital Expenditures Covenant for the Fiscal Quarter ending March 31, 2008, each as of March 31, 2008; provided, however , that the waiver set forth in this paragraph shall not constitute a consent or waiver with respect to any failure to comply after the Amendment Effective Date with the Credit Agreement as amended hereby.

 

  Section 2. Amendment to the Credit Agreement

Effective as of the Amendment Effective Date and subject to the satisfaction (or due waiver) of the conditions set forth in Section 4 (Conditions Precedent to the Effectiveness of this Amendment ) hereof, clause (b) of Section 6.12 (Capital Expenditures) of the Credit Agreement is hereby amended by deleting”$18,000,000” in the first line thereof and replacing it with “$21,000,000.”

 

  Section 3. Consent

The Lender consents to the acquisition of certain assets of USDF on the terms set forth in the Dye House Purchase Agreement and further agrees that such Investment shall not be included in the calculation of any Permitted Investment. For the purposes of Section 6.12 of the Credit Agreement, such Investment shall not constitute Capital Expenditures.

 

  Section 4. Conditions Precedent to the Effectiveness of this Amendment

This Amendment shall become effective as of the date first written above when, and only when, each of the following conditions precedent shall have been satisfied (the “ Amendment Effective Date ”) or duly waived by the Lender:

(a) Certain Documents . The Administrative Agent shall have received the following documents, each in form and substance satisfactory to the Lender, which satisfaction shall be evidenced by the execution and delivery by the Lender of this Amendment, and dated the Amendment Effective Date (when applicable):

(i) this Amendment, duly executed by the Borrower, each Guarantor and the Lender; and

(ii) an executed copy of the Waiver and Consent to Credit Agreement with respect to the Existing First Lien Credit Agreement.

 

2

 


A MENDMENT N O . 6, C ONSENT AND W AIVER

OF A MERICAN A PPAREL (USA), LLC

 

(b) Corporate and Other Proceedings . All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Amendment shall be satisfactory in all respects to the Lender, which satisfaction shall be evidenced by the execution and delivery by the Lender of this Amendment.

(c) Representations and Warranties . Each of the representations and warranties contained in Section 5 (Representations and Warranties) below are true and correct.

(d) No Default or Event of Defa


 
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