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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:
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.
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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.”
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.
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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.
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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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