As filed with the Securities and Exchange Commission on April 7, 1998
Registration No. 333-49503
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
Amendment No. 1
to
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
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<S> <C> <C> <C>
GALEY & LORD, INC. Delaware 2211 56-1593207
GALEY & LORD INDUSTRIES, INC. Delaware 2211 56-1593208
G&L SERVICE COMPANY, NORTH Delaware 2325 56-1976012
AMERICA, INC.
SWIFT TEXTILES, INC. Delaware 2211 58-1189307
SWIFT DENIM SERVICES, INC. Delaware 2211 13-3898788
(Exact Name of Each Registrant (State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
as Specified in its Charter) Incorporation or Organization) Classification Code Number) Identification Number)
</TABLE>
980 Avenue of the Americas
New York, NY 10018
(212) 465-3000
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Each Registrants' Principal Executive Offices)
---------------
Arthur C. Wiener, Chairman of the Board
980 Avenue of the Americas
New York, NY 10018
(212) 465-3000
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent For Service)
Copy to:
Howard S. Jacobs, Esq.
Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022
---------------
Approximate date of commencement of proposed sale to the public: As soon
as practicable after the Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
----
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
----
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Galey & Lord, Inc. (the "Company"), Galey & Lord Industries, Inc.
("Industries"), G&L Service Company, North America, Inc. ("G&L Service
Company"), Swift Textiles, Inc. ("Textiles") and Swift Denim Services, Inc.
("Denim Services") are all incorporated in Delaware. Under Section 145 of the
General Corporation Law of the State of Delaware, a Delaware corporation has
the power, under specified circumstances, to indemnify its directors, officers,
employees and agents in connection with actions, suits or proceedings brought
against them by a third party or in the right of the corporation, by reason of
the fact that they were or are such directors, officers, employees or agents,
against expenses incurred in any action, suit or proceeding. Article Eighth of
the Restated Certificate of Incorporation and Article X of the Amended and
Restated By-laws of the Company, Article VIII of the By-laws of Industries,
Article VII of the By-laws of G&L Service Company, Article 8 of the By-laws of
Textiles and Article VII of the By-laws of Denim Services all provide for
indemnification of directors and officers to the fullest extent permitted by
the General Corporation Law of the State of Delaware.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 (relating to liability for unauthorized acquisitions or
redemptions of, or dividends on, capital stock) of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. Article Ninth of the Company's Restated
Certificate of Incorporation, Article 10 of Industries' Restated Certificate of
Incorporation, and Article Eighth of G&L Service Company's Certificate of
Incorporation contain such a provision.
The Company, Industries, G&L Service Company, Textiles and Denim Services
all have directors' and officers' liability insurance covering certain
liabilities incurred by the directors and officers of the Company, Industries,
G&L Service Company, Textiles and Denim Services, respectively, in connection
with the performance of their respective duties.
Item 21. Exhibits and Financial Statement Schedules.
(a) See the Exhibit Index included immediately preceding the exhibits to
this Registration Statement.
(b) See the Schedule Index included immediately preceding the Exhibit
Index to this Registration Statement.
Item 22. Undertakings.
Each of the undersigned Registrants hereby undertakes:
(1) To file, during any period in which offers or sales are made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof), which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
II-1
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
Each of the undersigned Registrants hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, as amended (the
"Securities Act"), each filing of the Registrants' annual reports pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as
amended, that is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, each of the
Registrants has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a
Registrant of expenses incurred or paid by a director, officer or controlling
person of such Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person of a
Registrant in connection with the securities being registered, such Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnifciation by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby undertakes to respond to
requests for information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this Form, within one business day of
receipt of such request, and to send the incorporated documents by first class
mail or other equally prompt means. This includes information contained in
documents filed subsequent to the effective date of the registration statement
through the date of responding to the request.
Each of the undersigned Registrants hereby undertakes to supply by means
of a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Galey & Lord, Inc. has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the city of New
York, state of New York, on April 7, 1998.
GALEY & LORD, INC.
By: *
--------------------------------
Arthur C. Wiener
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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Signature Title Date
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* Chairman of the Board, President April 7, 1998
-------------------------------------
Arthur C. Wiener and Chief Executive Officer
(Principal Executive Officer)
/s/ MICHAEL R. HARMON Executive Vice President, April 7, 1998
-------------------------------------
Michael R. Harmon Chief Financial Officer,
Treasurer and Secretary
(Principal Financial and
Accounting Officer)
* Director April 7, 1998
-------------------------------------
Lee Abraham
* Director April 7, 1998
-------------------------------------
Paul G. Gillease
* Director April 7, 1998
-------------------------------------
William deR. Holt
* Director April 7, 1998
-------------------------------------
Howard S. Jacobs
* Director April 7, 1998
-------------------------------------
William M.R. Mapel
* Director April 7, 1998
-------------------------------------
David F. Thomas
*By /s/ Michael R. Harmon
---------------------
Michael R. Harmon
Attorney-in-Fact
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II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Galey & Lord Industries, Inc. has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the city
of New York, state of New York, on April 7, 1998.
GALEY & LORD INDUSTRIES, INC.
By: *
--------------------------------
Arthur C. Wiener
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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Signature Title Date
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* Chairman of the Board, President April 7, 1998
-------------------------------------
Arthur C. Wiener and Chief Executive Officer
(Principal Executive Officer)
/s/ MICHAEL R. HARMON Executive Vice President, Chief April 7, 1998
-------------------------------------
Michael R. Harmon Financial Officer, Treasurer,
Secretary and Director
(Principal Financial and
Accounting Officer)
* Executive Vice President of April 7, 1998
-------------------------------------
Charles A. Blalock Manufacturing and Director
* Executive Vice President and April 7, 1998
-------------------------------------
John Heldrich Director
* Executive Vice President and April 7, 1998
-------------------------------------
Robert McCormack President -- Woven Division,
Apparel Marketing Group and
Director
* Director April 7, 1998
-------------------------------------
Lee Abraham
* Director April 7, 1998
-------------------------------------
Paul G. Gillease
* Director April 7, 1998
-------------------------------------
William deR. Holt
*By /s/ Michael R. Harmon
-----------------------
Michael R. Harmon
Attorney-in-Fact
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II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
G&L Service Company, North America, Inc. has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of New York, state of New York, on April 7, 1998.
G&L SERVICE COMPANY, NORTH AMERICA, INC.
By: *
--------------------------------
Arthur C. Wiener
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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Signature Title Date
- --------------------------------------- ---------------------------------- --------------
<S> <C> <C>
* Chairman of the Board, President April 7, 1998
-------------------------------------
Arthur C. Wiener and Chief Executive Officer
(Principal Executive Officer)
/s/ MICHAEL R. HARMON Vice President, Treasurer, April 7, 1998
-------------------------------------
Michael R. Harmon Secretary and Director
(Principal Financial and
Accounting Officer)
* Director April 7, 1998
-------------------------------------
Paul G. Gillease
* Director April 7, 1998
-------------------------------------
Howard S. Jacobs
*By /s/ Michael R. Harmon
---------------------
Michael R. Harmon
Attorney-in-Fact
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II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Swift Textiles, Inc. has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of New
York, state of New York, on April 7, 1998.
SWIFT TEXTILES, INC.
By: *
--------------------------------
Arthur C. Wiener
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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Signature Title Date
- --------------------------------------- ---------------------------------- --------------
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* Chairman of the Board, President April 7, 1998
-------------------------------------
Arthur C. Wiener and Chief Executive Officer
(Principal Executive Officer)
/s/ MICHAEL R. HARMON Executive Vice President, April 7, 1998
-------------------------------------
Michael R. Harmon Treasurer, Secretary and
Director (Principal Financial
and Accounting Officer)
* Director April 7, 1998
-------------------------------------
Howard S. Jacobs
*By /s/ Michael R. Harmon
----------------------
Michael R. Harmon
Attorney-in-Fact
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Swift Denim Services, Inc. has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the city
of New York, state of New York, on April 7, 1998.
SWIFT DENIM SERVICES, INC.
By: *
--------------------------------
Arthur C. Wiener
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
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Signature Title Date
- --------------------------------------- ----------------------------------- --------------
<S> <C> <C>
* Chairman of the Board, President, April 7, 1998
-------------------------------------
Arthur C. Wiener and Chief Executive Officer
(Principal Executive Officer)
/s/ MICHAEL R. HARMON Executive Vice President, April 7, 1998
-------------------------------------
Michael R. Harmon Treasurer, Secretary and
Director (Principal Financial
and Accounting Officer)
* Director April 7, 1998
-------------------------------------
Howard S. Jacobs
*By /s/ Michael R. Harmon
----------------------
Michael R. Harmon
Attorney-in-Fact
</TABLE>
II-7
<PAGE>
FINANCIAL STATEMENT SCHEDULE INDEX
Schedule II Valuation and qualifying accounts for the years ended September 27,
1997, September 28, 1996 and September 30, 1995 (incorporated by reference to
the Annual Report on Form 10-K for the fiscal year ended September 27, 1997).
II-8
<PAGE>
EXHIBIT INDEX
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Exhibit Sequential
Number Description Page No.
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2.1 -- Master Separation Agreement, dated as of January 29, 1998,
among Polymer Group, Inc., Galey & Lord, Inc. and DT
Acquisition Inc., Dominion Textile Inc. and other parties named
therein (incorporated by reference to Exhibit 2 to the
Company's Current Report on Form 8-K filed with the
Commission on February 9, 1998).
4.1 -- Indenture, dated as of February 24, 1998, among the Company,
Industries, G&L Service Company, Textiles and Denim Services
and SunTrust Bank, Atlanta (as Trustee) (incorporated by
reference to Exhibit 2 to the Company's Current Report on
Form 8-K filed with the Commission on March 10, 1998).
4.2 -- Registration Rights Agreement, dated as of February 24, 1998,
by and among the Company, Industries, G&L Service
Company, Textiles, Denim Services and First Union Capital
Markets, a division of Wheat First Securities, Inc.
4.3 -- Form of Global 9 1/8% Senior Subordinated Note Due 2008.
4.4 -- Form of Certificated 9 1/8% Senior Subordinated Note Due 2008.
5.1 -- Opinion of Rosenman & Colin LLP.
12.1 -- Calculation of Earnings to Fixed Charges Ratio.
23.1 -- Consent of Rosenman & Colin LLP (included in Exhibit 5.1).
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of Deloitte & Touche.
23.4 -- Consent of KPMG.
24.1 -- Power of attorney (included on signature pages at II-3, II-4,
II-5, II-6 and II-7).
25.1 -- Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of SunTrust Bank, Atlanta as Trustee.
99.1 -- Form of Letter of Transmittal for Initial Notes.
99.2 -- Form of Notice of Guaranteed Delivery for Initial Notes.
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EXHIBIT 4.2
GALEY & LORD, INC.
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
New York, New York
February 24, 1998
First Union Capital Markets
As Initial Purchaser under the Purchase Agreement
301 South College Street, TW-10
Charlotte, NC 28288-0606
Ladies and Gentlemen:
This Registration Rights Agreement (the "Agreement") is dated
as of February 24, 1998, by and among Galey & Lord, Inc., a Delaware corporation
(the "Issuer"), Galey & Lord Industries, Inc. ("Industries"), G&L Service
Company, North America, Inc. ("Service Company"), Swift Textiles, Inc. and Swift
Denim Services, Inc., each a Delaware corporation (the "Guarantors"), and First
Union Capital Markets, a division of Wheat First Securities, Inc. (the "Initial
Purchaser").
This Agreement is being entered into in connection with a
certain purchase agreement, dated February 19, 1998, among the Issuer, the
Initial Purchaser and the Guarantors (the "Purchase Agreement"), which provides
for the issuance and sale (the "Initial Placement") by the Issuer to the Initial
Purchaser of $300,000,000 aggregate principal amount of the Issuer's 9 1/8%
Senior Subordinated Notes Due 2008 (the "Notes"). The Notes are to be
unconditionally guaranteed, on an unsecured and subordinated basis (the "Note
Guarantees"), by the Guarantors. In order to induce the Initial Purchaser to
enter into the Purchase Agreement, the Issuer has agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchaser and its direct and indirect transferees. The execution and delivery of
this Agreement is a condition to the obligation of the Initial Purchaser to
purchase the Notes under the Purchase Agreement. The parties hereby agree as
follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
<PAGE>
"Affiliate" means, with respect to any specified person, any
other person that, directly or indirectly, is in control of, is controlled by,
or is under common control with, such specified person. For purposes of this
definition, control of a person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such person whether by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of Charlotte, North Carolina
or New York, New York or is a day on which banking institutions therein located
are authorized or required by law or other governmental action to close.
"Closing Date" has the meaning set forth in the Purchase
Agreement.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 2(c)(ii) hereof, (c) the Issuer's acceptance for exchange of
all Registrable Notes duly tendered and not validly withdrawn pursuant to the
Registered Exchange Offer and (d) the delivery by the Issuer to the Registrar
under the Indenture of Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Registrable Notes tendered by Holders thereof
pursuant to the Registered Exchange Offer. The term "Consummation" has a meaning
correlative to the foregoing.
"Credit Agreement" means the senior subordinated credit
agreement among the Galey & Lord Industries, Inc., the Issuer and Service
Company as guarantors, and First Union Corporation, as lender and agent, dated
December 19, 1997, as amended by Amendment No. 1, dated January 29, 1998, among
Industries, the Issuer, Service Company, First Union Corporation as agent and
the lenders named therein and by Amendment No. 2, dated January 29, 1998, among
the Issuer, the Guarantors, First Union Corporation as agent and the lenders
named therein
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Issuer identical
in all material respects to the Notes (except that the Liquidated Damages
provisions and the transfer restrictions pertaining to the Notes will be
modified or eliminated, as appropriate), to be issued under the Indenture.
2
<PAGE>
"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement; provided, however,
that in the event that all resales of Exchange Notes (including, subject to the
time periods set forth herein, any resales by Exchanging Dealers) covered by
such Exchange Offer Registration Statement have been made, the Exchange Offer
Registration Statement need not thereafter remain continuously effective for
such period.
"Exchange Offer Registration Statement" means a registration
statement of the Issuer on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchanging Dealer" means any Holder (which may include the
Initial Purchaser) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other trading
activities for Exchange Notes.
"Final Memorandum" has the meaning set forth in the Purchase
Agreement.
"Guarantors" has the meaning set forth in the preamble hereto.
"Holder" means any holder from time to time of Registrable
Notes or Exchange Notes (including the Initial Purchaser).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, to be dated as of the Closing Date, among the Issuer, the
Guarantors and SunTrust Bank, Atlanta as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof. It shall include the provisions of the Trust Indenture Act
that are deemed to be part of and govern the indenture.
"Initial Placement" has the meaning set forth in the preamble
hereto.
"Initial Purchaser" has the meaning set forth in the preamble
hereto.
"Issuer" has the meaning set forth in the preamble hereto.
"Liquidated Damages" has the meaning set forth in Section 4
hereto.
"Losses" has the meaning set forth in Section 7(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Registrable Notes registered under a Registration
Statement.
3
<PAGE>
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Note Guarantees" has the meaning set forth in the preamble
hereto.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Notes covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
principal amount of Exchange Notes.
"Registrable Notes" means each Note upon original issuance of
the Notes and at all times subsequent thereto, each Exchange Note as to which
clauses (iii), (iv) or (v) of the first paragraph of Section 3 hereof are
applicable upon original issuance and at all times subsequent thereto, until in
the case of any such Note or Exchange Note, as the case may be, the earliest to
occur of (i) a Registration Statement (other than, with respect to any Exchange
Note as to which clauses (iii), (iv) or (v) of the first paragraph of Section 3
hereof are applicable, the Exchange Registration Statement) covering such Note
or Exchange Note, as the case may be, has been declared effective by the SEC and
such Note (unless such Note was not tendered for exchange by the Holder thereof)
or Exchange Note, as the case may be, has been disposed of in accordance with
such effective Registration Statement, (ii) such Note or Exchange Note, as the
case may be, is sold in compliance with Rule 144, or (iii) such Note or Exchange
Note, as the case may be, ceases to be outstanding for purposes of the
Indenture.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Notes (including any Note Guarantees of each thereof) pursuant to the provisions
of this Agreement, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all material incorporated by
reference therein.
"Shelf Registration" means a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Issuer pursuant to the provisions of Section 3 hereof, which
covers some or all of the Registrable Notes,
4
<PAGE>
as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Shelf Registration Trigger Date" means the date on which the
filing of a Shelf Registration is requested or required under Section 3 hereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
"Underwriter" means any underwriter of Registrable Notes in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Notes by
Exchanging Dealers; Private Exchange. (a) The Issuer and the Guarantors shall
prepare and, not later than 75 days from the date of original issuance of the
Notes (or, if such 75th day is not a Business Day, by the first Business Day
thereafter), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Issuer and the
Guarantors shall use their best efforts (i) to cause the Exchange Offer
Registration Statement to be declared effective under the Act within 135 days
from the date of original issuance of the Notes (or, if such 135th day is not a
Business Day, by the first Business Day thereafter), and (ii) to Consummate the
Registered Exchange Offer within 30 Business Days from the date the Exchange
Offer Registration Statement becomes effective (or, if such 30th day is not a
Business Day, by the first Business Day thereafter).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer and the Guarantors shall promptly commence and Consummate
the Registered Exchange Offer. The objective of such Registered Exchange Offer
is to enable each Holder electing to exchange Registrable Notes for Exchange
Notes (assuming that such Holder (x) is not an "affiliate" of the Issuer or the
Guarantors within the meaning of the Act, (y) is not a broker-dealer that
acquired the Registrable Notes in a transaction other than as a part of its
market-making or other trading activities and (z) if such Holder is not a
broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or understandings with any person to participate
in the distribution of the Exchange Notes) to resell such Exchange Notes from
and after their receipt without any limitations or restrictions under the Act
and without material restrictions under the securities laws of a substantial
proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Issuer and the Guarantors shall:
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(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance
for not less than 20 Business Days after the date notice thereof is
mailed to the Holders;
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York; and
(iv) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Issuer and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any three-month period or for
three periods not to exceed an aggregate of 90 days in any twelve-month period
for valid business reasons, to be determined by the Issuer and the Guarantors in
their sole reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided that the Issuer and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Issuer and the Guarantors shall cause the Trustee
promptly to authenticate and deliver to each Holder Exchange Notes equal in
principal amount to the Registrable Notes of such Holder so accepted for
exchange.
(f) The Initial Purchaser, the Issuer and the Guarantors
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Exchanging Dealer is required to deliver a Prospectus in connection with a
sale of any Exchange Notes received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Registrable Notes acquired for its own
account as a result of market-making activities or other trading activities.
Accordingly, the Issuer and the Guarantors shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus forming a part of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus forming
a part of the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery of the prospectus
included therein by Exchanging Dealers in connection with
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sales of Exchange Notes received pursuant to the Registered Exchange
Offer, as contemplated by Section 5(h) below.
(g) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Registrable Notes constituting any portion of an unsold
allotment, upon the effectiveness of the Shelf Registration Statement as
contemplated by Section 3 hereof and at the request of the Initial Purchaser,
the Issuer and the Guarantors shall issue and deliver to the Initial Purchaser,
or to the party purchasing Registrable Notes registered under the Shelf
Registration Statement from the Initial Purchaser, in exchange for such
Registrable Notes, a like principal amount of Exchange Notes. The Issuer and the
Guarantors shall use their best efforts to cause the CUSIP Service Bureau to
issue the same CUSIP number for such Exchange Notes as for Exchange Notes issued
pursuant to the Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, any of the Issuer
or the Guarantors determines upon advice of its outside counsel that it is not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) the Registered Exchange Offer is not Consummated within 30
Business Days from the date the Exchange Offer Registration Statement becomes
effective (or, if such 30th day is not a Business Day, by the first Business Day
thereafter), or (iii) the Initial Purchaser so requests with respect to
Registrable Notes held by it as a result of the purchase of such Registrable
Note directly from the Issuer and the Guarantors following Consummation of the
Registered Exchange Offer and the Initial Purchaser is not eligible to receive
Exchange Notes pursuant to the Registered Exchange Offer in respect of such
Registrable Securities, or (iv) any Holder (other than the Initial Purchaser) is
not eligible to participate in the Registered Exchange Offer or the Exchange
Notes such Holder would receive in the Registered Exchange Offer could only be
reoffered and resold by such Holder upon compliance with the registration and
prospectus delivery requirements of the Act and the delivery of the Prospectus
contained in the Exchange Offer Registration Statement, as appropriately
amended, is not a legally available alternative, or (v) in the case where the
Initial Purchaser participates in the Registered Exchange Offer or acquires
Exchange Notes pursuant to Section 2(g) hereof, the Initial Purchaser does not
receive freely tradable Exchange Notes in exchange for Notes constituting any
portion of an unsold allotment (it being understood that, for purposes of this
Section 3, (x) the requirement that the Initial Purchaser deliver a Prospectus
containing the information required by Items 507 and/or 508 of Regulation S-K
under the Act in connection with sales of Exchange Notes acquired in exchange
for such Registrable Notes shall result in such Exchange Notes being not "freely
tradable" and (y) the requirement that an Exchanging Dealer deliver a Prospectus
in connection with sales of Exchange Notes acquired in the Registered Exchange
Offer in exchange for Registrable Notes acquired as a result of market-making
activities or other trading activities shall not result in such Exchange Notes
being not "freely tradable"), the following provisions shall apply:
(a) The Issuer and the Guarantors shall prepare, and not later
than 75 days following the Shelf Registration Trigger Date (or, if such 75th day
is not a Business Day, by the first Business Day thereafter), shall file with
the Commission and thereafter, but not later than
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135 days following the Shelf Registration Trigger Date (or, if such 135th day is
not a Business Day, by the first Business Day thereafter), shall use their best
efforts to cause to be declared effective under the Act a Shelf Registration
Statement relating to the offer and sale of the Registrable Notes by the Holders
from time to time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement, provided, that with
respect to Exchange Notes received by the Initial Purchaser in exchange for
Notes constituting any portion of an unsold allotment, the Issuer and the
Guarantors may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Regulation S-K Items 507 and/or
508, as applicable, in satisfaction of their obligations under this paragraph
(a) with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(b) The Issuer and the Guarantors shall use their best efforts
to keep such Shelf Registration Statement continuously effective in order to
permit the Prospectus forming a part thereof to be usable by Holders until the
earliest of (i) the second anniversary of the date on which the filing of a
Shelf Registration Statement was required or requested pursuant to this Section
3, (ii) the date on which the Registrable Notes may be sold pursuant to Rule
144(k) (or any successor provision) promulgated by the Commission under the Act
and (iii) such date as of which all the Registrable Notes have been sold
pursuant to the Shelf Registration Statement (in any such case, such period
being called the "Shelf Registration Period"). The Issuer and the Guarantors
shall be deemed not to have used their best efforts to keep the Shelf
Registration Statement effective during the requisite period if any of them
voluntarily takes any action that would result in Holders of Registrable Notes
covered thereby not being able to offer and sell such notes during that period,
unless such action is (x) required by applicable law or (y) pursuant to Section
3(c) hereof, and, in either case, so long as the Issuer or the Guarantors
promptly thereafter comply with the requirements of Section 5(k) hereof, if
applicable.
(c) The Issuer and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any three-month period or for
three periods not to exceed an aggregate of 90 days in any twelve-month period
for valid business reasons, to be determined by the Issuer and the Guarantors in
their sole reasonable judgment (not including avoidance of their obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, public filings with the Commission, pending corporate developments and
similar events; provided that the Issuer and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(d) No Holder of Registrable Notes may include any of its
Registrable Notes in any Shelf Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Issuer in writing, within 20
Business Days after receipt of a request therefor, such information as the
Issuer may reasonably request for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder of
Registrable Notes shall be entitled to Liquidated Damages pursuant to Section 4
hereof unless and until such Holder shall have used its best efforts to provide
all such reasonably requested
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information. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Issuer all information required to be
disclosed in order to make the information previously furnished to the Issuer by
such Holder not misleading.
4. Liquidated Damages.
(a) The parties hereto agree that the Holders of the Exchange
Notes or the Registrable Notes, as the case may be, will suffer damages, and
that it would not be feasible to ascertain the extent of such damages with
precision, if (i) either the Exchange Offer Registration Statement or the Shelf
Registration Statement has not been filed on or prior to the date specified for
such filing in this Agreement, (ii) the Exchange Offer Registration Statement or
the Shelf Registration Statement has not been declared effective under the Act
on or prior to the target date specified for such effectiveness in this
Agreement (the "Effectiveness Target Date"), (iii) the Registered Exchange Offer
has not been Consummated within 30 Business Days after the Effectiveness Target
Date with respect to the Exchange Offer Registration Statement, (iv) prior to
the end of the Exchange Offer Registration Period or the Shelf Registration
Period, the Commission shall have issued a stop order suspending the
effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, or proceedings have been initiated
with respect to the Registration Statement under Section 8(d) or 8(e) of the
Act, (v) the aggregate number of days in any one such suspension period exceeds
the period permitted pursuant to Section 2(d) or 3(c) hereof, as each may be
applicable, or (vi) the number of suspension periods exceeds the number
permitted pursuant to Section 2(d) or 3(c) hereof, as each may be applicable
(each of the events of a type described in any of the foregoing clauses (i)
through (vi) are individually referred to herein as an "Event;" and the date
specified for the filing of the Registration Statement in the case of clause
(i), the target date specified for the declaration of the effectiveness of the
Registration Statement in the case of clause (ii), the date specified for the
Consummation of the Registered Exchange Offer in the case of clause (iii), the
date on which the effectiveness of a Registration Statement has been suspended
or proceedings with respect to the Registration Statement under Section 8(d) or
8(e) of the Act have been commenced in the case of clause (iv), the date on
which the duration of a suspension period exceeds the periods permitted by
Section 2(d) or 3(c) hereof, as each may be applicable, in the case of clause
(v), and the date of the commencement of a suspension period that causes the
limit on the number of suspension periods under Section 2(d) or 3(c) hereof, as
each may be applicable, to be exceeded in the case of clause (vi), are referred
to herein as an "Event Date"). Events shall be deemed to continue until the date
of the termination of such Event, which shall be the following date with respect
to the respective types of Events: the date the Registration Statement is filed
in the case of an Event of the type described in clause (i), the date the
Registration Statement is declared effective under the Act in the case of an
Event described in clause (ii), the date a Registered Exchange Offer is
Consummated in the case of an Event described in clause (iii), the date that all
stop orders suspending effectiveness of the Registration Statement have been
removed and the proceedings initiated with respect to the Registration Statement
under Section 8(d) or 8(e) of the Act have terminated, as the case may be, in
the case of Events of the types described in clause (iv), termination of the
suspension period which caused the aggregate number of days in any one
suspension period to exceed the number permitted by Section 2(d) or 3(c) to be
exceeded in the case of Events of the type described in clause (v), and
termination of the suspension period the
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<PAGE>
commencement of which caused the number of suspension periods permitted by
Section 2(d) or 3(c) to be exceeded in the case of Events of the type described
in clause (vi).
(b) Accordingly, upon the occurrence of any Event and until
such time as there are no Events which have occurred and have not terminated (a
"Damages Accrual Period"), commencing on the Event Date on which such Damages
Accrual Period began, the Borrower and the Guarantors jointly and severally
agree to pay to each Holder, as liquidated damages (the "Liquidated Damages"),
and not as a penalty, with respect to the first 90-day period immediately
following the Event Date, an additional amount equal to $0.05 per week per
$1,000 principal amount of Exchange Notes or Registrable Notes held by such
Holder. The amount of the liquidated damages shall increase by an additional
$0.05 per week per $1,000 principal amount of notes with respect to each
subsequent 90-day period until such Event have terminated, up to a maximum
amount of liquidated damages of $0.30 per week per $1,000 principal amount of
notes. Notwithstanding the foregoing, no Liquidated Damages shall accrue after
the expiration of the Registration Period.
(c) Liquidated Damages due on any Exchange Note or Registrable
Note, as the case may be, shall be payable on each date falling during the
Damage Accrual Period on which interest is due on such notes, and on the date
immediately following (or which would have followed) the termination of such
Period on which interest is due on the notes (the "Damages Payment Dates"). The
Issuer shall pay the Liquidated Damages due on any Registrable Notes or Exchange
Notes by depositing with the Trustee under the appropriate Indenture, in trust,
for the benefit of the Holders of Exchange Notes or Registrable Notes, as the
case may be, entitled thereto, at least one Business Day prior to the applicable
Damages Payment Date, sums sufficient to pay the Liquidated Damages accrued or
accruing since the last preceding Damages Payment Date to such Damages Payment
Date. The Trustee shall be entitled, on behalf of the Holders of Exchange Notes
or Registrable Notes, as the case may be, to seek any available remedy for the
enforcement of this Agreement, including for the payment of such Liquidated
Damages. Notwithstanding the foregoing, the parties agree that the sole remedy
payable for a violation of the terms of this Agreement with respect to which
Liquidated Damages are expressly provided shall be such Liquidated Damages.
Nothing shall preclude a Holder of Exchange Notes or Registrable Notes from
pursuing or obtaining specific performance or other equitable relief with
respect to any violation of this Agreement for which liquidated damages are not
expressly provided by this Agreement.
(d) All of the Issuer's and Guarantors' obligations set forth
in this Section 4 which are outstanding with respect to any Exchange Note or
Registrable Note at the time such note ceases to be covered by an effective
Registration Statement shall survive until such time as all such obligations
with respect to such security have been satisfied in full (notwithstanding
termination of the Agreement).
5. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
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(a) The Issuer and the Guarantors shall furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use their best
efforts to reflect in each such document, when so filed with the Commission,
such comments as the Initial Purchaser reasonably may propose.
(b) The Issuer and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Act;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such Prospectus,
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
provided that no representation or agreement is made hereby with respect to
information with respect to the Initial Purchaser, any Underwriter or any Holder
required to be included in any Registration Statement or Prospectus pursuant to
the Act or the rules and regulations thereunder or provided by the Initial
Purchaser, any Holder or any Underwriter specifically for inclusion in any
Registration Statement or Prospectus.
(c) (1) The Issuer and the Guarantors shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders of
Registrable Notes covered thereby, and, if requested by the Initial Purchaser or
any such Holder, confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Issuer and the Guarantors shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the Holders of
Registrable Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in writing to
the Issuer a telephone or facsimile number and address for notices, and, if
requested by the Initial Purchaser or any such Holder or Exchanging Dealer,
confirm such advice in writing:
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(i) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(ii) of the receipt by the Issuer or the Guarantors of any
notification with respect to the suspension of the qualification of the
Registrable Notes included in any Registration Statement for sale in
any jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(iii) of the suspension of the use of the Prospectus pursuant
to Section 5(c) hereof or of the happening of any event that requires
the making of any changes in the Registration Statement or the
Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the case
of the Prospectus, in light of the circumstances under which they were
made) not misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite
changes have been made).
(d) The Issuer and the Guarantors shall use their best efforts
to obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement at the earliest possible time and in any event shall
within 30 days of any such order (or, if such 30th day is not a Business Day, by
the first Business Day thereafter) amend the Registration Statement covering all
of the Registrable Notes (whereupon references herein to the Registration
Statement shall be deemed to include reference to such additional filing).
(e) The Issuer and the Guarantors shall furnish to each Holder
of Registrable Notes included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing, all
exhibits thereto (including those incorporated by reference).
(f) The Issuer and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Registrable Notes included within
the coverage of any Shelf Registration Statement, without charge, as many copies
of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Issuer and the Guarantors consent to the use of
the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Notes in connection with the offering and sale of the
Registrable Notes covered by the Prospectus or any amendment or supplement
thereto.
(g) The Issuer and the Guarantors shall furnish to each
Exchanging Dealer that so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, any documents incorporated by
reference therein and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including those incorporated by reference).
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(h) The Issuer and the Guarantors shall, during the Exchange
Offer Registration Period, deliver to each Exchanging Dealer, without charge, as
many copies of the Prospectus (including each preliminary Prospectus) included
in such Exchange Offer Registration Statement and any amendment or supplement
thereto as such Exchanging Dealer may reasonably request; and the Issuer and the
Guarantors consent to the use of the Prospectus or any amendment or supplement
thereto by any such Exchanging Dealer in connection with the offering and sale
of the Exchange Notes, as provided in Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other
offering of Registrable Notes pursuant to any Registration Statement, the Issuer
and the Guarantors shall register, qualify or cooperate with the Holders of
Registrable Notes included therein and their respective counsel in connection
with the registration or qualification of such Registrable Notes for offer and
sale under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Registrable Notes covered by such Registration Statement; provided, however,
that none of the Issuer or Guarantors will be required to qualify generally to
do business in any jurisdiction in which any of them is not then so qualified,
to file any general consent to service of process or to take any action which
would subject any of them to general service of process or to taxation in any
such jurisdiction where it is not then so subject.
(j) The Issuer and the Guarantors shall cooperate with the
Holders to facilitate the timely preparation and delivery of certificates
representing Registrable Notes to be sold pursuant to any Registration Statement
free of any restrictive legends and in denominations and registered in such
names as Holders may request prior to sales of Registrable Notes pursuant to
such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 5, the Issuer and the Guarantors shall promptly
prepare and file a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or any other required document
so that, as thereafter delivered to purchasers of the Registrable Notes included
therein, the Prospectus will not include an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) The Issuer and the Guarantors shall use their best efforts
to cause The Depository Trust Company ("DTC") on the first Business Day
following the effective date of any Registration Statement hereunder or as soon
as possible thereafter to remove (i) from any existing CUSIP number assigned to
the Registrable Notes or Exchange Notes, as the case may be, any designation
indicating that such notes are "restricted securities," which efforts shall
include delivery to DTC of a letter executed by the Issuer substantially in the
form of Annex E hereto and (ii) any other stop or restriction on DTC's system
with respect to the Registrable Notes or Exchange Notes, as the case may be. In
the event the Issuer and the Guarantors are unable to cause DTC to take actions
described in the immediately preceding sentence, the Issuer and the Guarantors
shall take such actions as the Initial Purchaser may reasonably request to
provide, as soon as practicable, a CUSIP number for the Registrable Notes or
Exchange Notes
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registered under such Registration Statement and to cause such CUSIP number to
be assigned to the Registrable Notes or Exchange Notes (or to the maximum
aggregate principal amount of the securities to which such number may be
assigned). Upon compliance with the foregoing requirements of this Section 5(l),
the Issuer shall provide the Trustee with global certificates for such
Registrable Notes or Exchange Notes, in a form eligible for deposit with The
Depository Trust Company.
(m) The Issuer and the Guarantors shall use their best efforts
to comply with all applicable rules and regulations of the Commission and shall
make generally available to their security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Act and Rule 158
promulgated thereunder.
(n) The Issuer and the Guarantors shall cause the Indenture to
be qualified under the Trust Indenture Act in a timely manner.
(o) The Issuer and the Guarantors may require each Holder of
Registrable Notes to be sold pursuant to any Shelf Registration Statement to
furnish to the Issuer such information regarding the Holder and the distribution
of such Registrable Notes as may, from time to time, be reasonably required by
the Act and the rules and regulations promulgated thereunder, and the
obligations of the Issuer and the Guarantors to any Holder hereunder shall be
expressly conditioned on the compliance of such Holder with such request.
(p) The Issuer and the Guarantors shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement (i) such information as the Majority Holders
provide or, if the Registrable Notes are being sold in an underwritten offering,
as the Managing Underwriters and the Majority Holders reasonably agree should be
included therein and provide to the Issuer or Guarantors in writing for
inclusion in the Shelf Registration Statement or Prospectus, and (ii) such
information as a Holder may provide from time to time to the Issuer or
Guarantors in writing for inclusion in a Prospectus or any Shelf Registration
Statement concerning such Holder and the distribution of such Holder's
Registrable Notes and, in either case, shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after
being notified in writing of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Issuer and the Guarantors shall enter into such agreements (including
underwriting agreements) and take all other customary and appropriate actions as
may be reasonably requested in order to expedite or facilitate the registration
or the disposition of any Registrable Notes, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 (or such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 7 from Holders of Exchange Notes to the Issuer
and the Guarantors).
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(r) In the case of any Shelf Registration Statement, the
Issuer and the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Registrable Notes to be registered thereunder, any Underwriter
participating in any disposition pursuant to such Shelf Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such Underwriter, all relevant financial and other
records, pertinent corporate documents and properties of the Issuer,
the Guarantors and their subsidiaries;
(ii) cause the Issuer's and the Guarantors' officers,
directors and employees to supply all relevant information reasonably
requested by the Holders or any such Underwriter, attorney, accountant
or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however,
that any information that is designated in writing by the Issuer or the
Guarantors, in their sole discretion, as confidential at the time of
delivery of such information shall be kept confidential by the Holders
or any such Underwriter, attorney, accountant or agent, unless
disclosure thereof is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally through the Issuer or the Guarantors or through a third party
without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders
of Registrable Notes registered thereunder and the Underwriters, if
any, in form, substance and scope as are customarily made by issuers to
Underwriters and covering matters including, but not limited to, those
set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuer and the
Guarantors and updates thereof (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer and the
Guarantors (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuer or the Guarantors or of any
business acquired by the Issuer and the Guarantors for which financial
statements and financial data are, or are required to be, included in
the Registration Statement), addressed to each selling Holder of the
Registrable Notes covered by such Shelf Registration Statement
(provided such Holder furnishes the accountants with such
representations as the accountants customarily require in similar
situations) and the Underwriters, if any, in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence
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compliance with Section 5(i) and with any customary conditions
contained in the underwriting agreement or other agreement entered into
by the Issuer and the Guarantors.
(vii) The foregoing actions set forth in clauses (iii), (iv),
(v) and (vi) of this Section 5(r) shall be performed at (A) the
effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required
thereunder.
(s) The Issuer shall, if and to the extent required under the
Act and/or the Trust Indenture Act and the rules and regulations thereunder in
order to register the Registrable Notes (including the Note Guarantees, if any)
under the Act and qualify the Indenture under the Trust Indenture Act, cause
each Guarantor, if any, to sign any Registration Statement and take all other
action necessary to register the Note Guarantees, if any, under the applicable
Registration Statement.
6. Registration Expenses. The Issuer and the Guarantors shall
bear all expenses incurred in connection with the performance of their
obligations under Sections 2, 3, 4 and 5 hereof (other than brokers', dealers'
and underwriters' discounts and commissions and brokers', dealers' and
underwriters' counsel fees) and shall reimburse the Holders for the reasonable
fees and disbursements of one firm or counsel designated by the Majority Holders
to act as counsel for the Holders in connection therewith.
7. Indemnification and Contribution.
(a) (i) In connection with any Registration Statement, the
Issuer and the Guarantors jointly and severally agree to indemnify and
hold harmless each Holder of Registrable Notes covered thereby, the
directors, officers, employees and agents of each such Holder and each
person who controls any such Holder within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof, in any
preliminary Prospectus or Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agree to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Issuer and the Guarantors will not
be liable in any case to the extent that any such loss, claim, damage
or liability arises out of or is based upon (A) any such untrue
statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written
information furnished to the Issuer or the Guarantors by or on behalf
of any such Holder specifically for inclusion therein, (B) use of a
Registration Statement or the related Prospectus during
16
<PAGE>
a period when a stop order has been issued in respect of such
Registration or any proceedings for that purpose have been initiated or
use of a Prospectus when use of such Prospectus has been suspended
pursuant to Section 5(c); provided, further, in each case, that Holders
received prior notice of such stop order, initiation of proceedings or
suspension or (C) if the Holder fails to deliver a Prospectus or the
then current Prospectus. This indemnity agreement will be in addition
to any liability which the Issuer or the Guarantors may otherwise have.
(ii) The Issuer and the Guarantors also agree to indemnify or
contribute to Losses, as provided in Section 7(d), of any Underwriters
of Registrable Notes registered under a Registration Statement, their
officers and directors and each person who controls such Underwriters
on substantially the same basis as that of the indemnification of the
selling Holders provided in this Section 7(a) and shall, if requested
by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 5(q) hereof.
(b) Each Holder of Registrable Notes covered by a Registration
Statement severally agrees to indemnify and hold harmless (i) the Issuer, (ii)
each Guarantor, (iii) each of their respective directors, (iv) each of their
respective officers who signs such Registration Statement and (v) each person
who controls the Issuer or any Guarantor within the meaning of either the Act or
the Exchange Act to the same extent as the foregoing indemnity from the Issuer
and the Guarantors to each such Holder, but only with reference to written
information relating to such Holder furnished to the Issuer and the Guarantors
by or on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
17
<PAGE>
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall have authorized the indemnified party to employ
separate counsel at the expense of the indemnifying party; provided further,
that the indemnifying party shall not be responsible for the fees and expenses
of more than one separate counsel (together with appropriate local counsel)
representing all the indemnified parties under paragraph (a)(i), paragraph
(a)(ii) or paragraph (b) above. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such Losses; provided, however, that in no case shall any
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Registrable Notes purchased by such Underwriter
under the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Issuer and the Guarantors shall be
deemed to be equal to the sum of (x) the aggregate principal amount of the Notes
and (y) the total amount of Liquidated Damages which the Issuer was not required
to pay as a result of registering the Registrable Notes covered by the
Registration Statement which resulted in such Losses. Benefits received by any
Holder shall be deemed to be equal to the value of receiving Registrable Notes
registered under the Act. Benefits received by any Underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take
18
<PAGE>
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls a
Holder within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of such Holder shall have the same rights
to contribution as such Holder, and each person who controls the Issuer or any
Guarantor within the meaning of either the Act or the Exchange Act, each officer
of the Issuer or any Guarantor who shall have signed the Registration Statement
and each director of the Issuer or any Guarantor shall have the same rights to
contribution as the Issuer or such Guarantor, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Issuer or any Guarantor or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive the sale by a Holder
of Registrable Notes covered by a Registration Statement.
8. Rules 144 and 144A
The Issuer covenants that it will file the reports required to
be filed by it under the Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner in accordance with the
requirements of the Act and the Exchange Act and, if at any time the Issuer is
not required to file such reports, it will, upon the request of any Holder of
Registrable Notes, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of
the Exchange Act. The Issuer further covenants, for so long as any Registrable
Notes remain outstanding, to make available to any Holder or beneficial owner of
Registrable Notes in connection with any sale thereof and any prospective
purchaser of such Registrable Notes from such Holder or beneficial owner the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Registrable Notes pursuant to Rule 144A.
9. Miscellaneous.
(a) No Inconsistent Agreements. None of the Issuer or the
Guarantors has, as of the date hereof, entered into nor shall any of them, on or
after the date hereof, enter into any agreement that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuer and the Guarantors have
obtained the written consent of the Majority Holders. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Registrable Notes are being sold pursuant to a Shelf Registration Statement or
whose Notes are being exchanged pursuant to an Exchange Offer Registration
Statement, as the case may be, and which does not directly or
19
<PAGE>
indirectly affect the rights of other Holders may be given by such Holders,
determined on the basis of notes being sold rather than registered; and,
furthermore, the signatories hereto may make any amendment that does not, in the
good faith opinion of the board of directors of the Issuer (as evidenced by a
resolution of such board) materially affect any Holder. Notwithstanding any of
the foregoing, no amendment, modification, supplement, waiver or consents to any
departure from the provisions of Section 7 hereof shall be effective as against
any Holder of Registrable Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
First Union Capital Markets
301 South College Street, TW-10
Charlotte, NC 28288-0606
Attention: Corporate Finance Department
(ii) if to any other Holder, at the most current address given
by such Holder to the Issuer in accordance with the provisions of this
Section 9(c), which address initially is, with respect to each Holder,
the address of such Holder maintained by the registrar under the
Indenture, with a copy in like manner to the Initial Purchaser; and
(iii) if to the Issuer, as follows:
Galey & Lord, Inc.
7736 McCloud Road
One Triad Center, Suite 300
Greensboro, NC 27409
Attention: Michael R. Harmon
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Issuer by notice to the others may designate additional or
different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Issuer or any Guarantor thereto, subsequent Holders. The Issuer and the
Guarantors hereby agree to extend the benefits of this Agreement to any
20
<PAGE>
Holder and any such Holder may specifically enforce the provisions of this
Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number
of counterparts and by the 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 one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State, without regard to the
conflicts of law rules thereof.
(h) Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Notes Held by the Issuer, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Registrable
Notes or Exchange Notes is required hereunder, Registrable Notes or Exchange
Notes held by the Issuer, the Guarantors or their Affiliates (other than
subsequent Holders of Registrable Notes or Exchange Notes if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
notes) shall not be counted in determining whether such consent or approval was
given by the Holders of such required percentage.
21
<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement between the Issuer and the Initial Purchaser.
Very truly yours,
GALEY & LORD, INC.
By:/s/ Michael R. Harmon
---------------------
Name: Michael R. Harmon
Title: Executive Vice President
GALEY & LORD INDUSTRIES, INC.
By: /s/ Michael R. Harmon
----------------------
Name: Michael R. Harmon
Title: Executive Vice President
G & L SERVICE COMPANY, NORTH AMERICA, INC.
By: /s/ Michael R. Harmon
----------------------
Name: Michael R. Harmon
Title: Vice President
SWIFT TEXTILES, INC.
By: /s/ Michael R. Harmon
---------------------
Name: Michael R. Harmon
Title: Executive Vice President
SWIFT DENIM SERVICES, INC.
By: /s/ Michael R. Harmon
-----------------------
Name: Michael R. Harmon
Title: Executive Vice President
<PAGE>
The foregoing Agreement is hereby
accepted as of the date first above written.
FIRST UNION CAPITAL MARKETS
A DIVISION OF WHEAT FIRST SECURITIES, INC.
By: /s/ Steven J. Taylor
---------------------
Name: Steven J. Taylor
Title: Senior Director
<PAGE>
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account pursuant to
the Registered Exchange Offer must acknowledge that it will deliver a prospectus
in connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Notes received in exchange for Notes where such Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the Expiration Date and
ending on the close of business one year after the Expiration Date, it will make
this Prospectus available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution."
A-1
<PAGE>
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in exchange
for Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange Notes.
See "Plan of Distribution."
B-1
<PAGE>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Notes for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Notes. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until ____________, 1999, all dealers effecting transactions in the
Exchange Notes may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of
Exchange Notes by broker-dealers. Exchange Notes received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Notes or
a combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Notes. Any broker-dealer that resells Exchange Notes that were received
by it for its own account pursuant to the Registered Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Notes may
be deemed to be an "underwriter" within the meaning of the Act and any profit
from any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a broker-dealer will not be deemed to
admit that it is an "underwriter" within the meaning of the Act.
For a period of one year after the Expiration Date, the
Company will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Registered Exchange Offer (including the expenses of
one counsel for the holders of the Notes) other than dealers' and brokers'
discounts, commissions and counsel fees) and will indemnify the holders of the
Notes (including any broker-dealers) against certain liabilities, including
liabilities under the Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
C-1
<PAGE>
ANNEX D
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO. [ ]
Name:
--------------------------
Address:
-----------------------
-----------------------
The undersigned represents that it is not an affiliate of the
Company, that any Exchange Notes to be received by it will be acquired in the
ordinary course of business and that at the time of the commencement of the
Registered Exchange Offer it had no arrangement with any person to participate
in a distribution of the Exchange Notes.
In addition, if the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and does not intend to engage
in, a distribution of Exchange Notes. If the undersigned is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes, it
represents that the Notes to be exchanged for Exchange Notes were acquired by it
as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
<PAGE>
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, NY 10004
Re: 9 1/8% Senior Subordinated Notes Due 2008 (the "Notes")
of Galey & Lord, Inc.
Ladies and Gentlemen:
Please be advised that the Securities and Exchange Commission
has declared effective a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, with regard to all of the Notes referenced above.
Accordingly, there is no longer any restriction as to whom such Notes may be
sold and any restrictions on the CUSIP designation are no longer appropriate and
may be removed. I understand that upon receipt of this letter, DTC will remove
any stop or restriction on its system with respect to this issue.
As always, please do not hesitate to call if we can be of
further assistance.
Very truly yours,
Authorized Officer
D-1
FORM OF GLOBAL NOTE
FACE OF GLOBAL NOTE
GALEY & LORD, INC.
No. __ CUSIP No. ___________
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO GALEY & LORD, INC. OR A SUCCESSOR THEREOF
OR THE REGISTRAR FOR REGISTRATION OF TRANSFER OR EXCHANGE AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER ENTITY AS
HAS BEEN REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS HAS BEEN REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFER OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
AND NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE.
<PAGE>
GLOBAL NOTE
REPRESENTING 9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
Galey & Lord, Inc., a Delaware corporation, for value
received, hereby promises to pay to Cede & Co., or its registered assigns, the
principal sum indicated on Schedule A hereof, on March 1, 2008.
Interest Payment Dates: March 1 and September 1, commencing
September 1, 1998.
Record Dates: February 15 and August 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
2
<PAGE>
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purposes.
IN WITNESS WHEREOF, Galey & Lord, Inc. has caused this Note to
be duly executed.
GALEY & LORD, INC.
By: ________________________________
Name:
Title:
Attest:______________________
Dated:______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
SUNTRUST BANK, ATLANTA,
as Trustee, certifies that this is one of
the Notes referred to in the Indenture.
By:
------------------------------
Authorized Signatory
3
<PAGE>
REVERSE SIDE OF GLOBAL NOTE
GALEY & LORD, INC.
GLOBAL NOTE
REPRESENTING 9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
1. Indenture.
This Note is one of a duly authorized issue of debt securities
of the Company (as defined below) designated as its "9 1/8% Senior Subordinated
Notes Due 2008" (herein called the "Notes") limited in aggregate principal
amount to $300,000,000, issued under an indenture dated as of February 24, 1998
(as amended or supplemented from time to time, the "Indenture") among the
Company, as issuer, and Galey & Lord Industries, Inc., G&L Service Company,
North America, Inc., Swift Textiles, Inc. and Swift Denim Services, Inc. as
guarantors (collectively, the "Note Guarantors"), and SunTrust Bank, Atlanta, as
trustee (the "Trustee," which term includes any successor trustee under the
Indenture). The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders of Notes are referred to the Indenture and such Act
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Note Guarantors, the Trustee and each
Holder and of the terms upon which the Notes are, and are to be, authenticated
and delivered. The summary of the terms of this Note contained herein does not
purport to be complete and is qualified by reference to the Indenture. To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control. All capitalized terms used in this Note which are not
defined herein shall have the meanings assigned to them in the Indenture.
The Indenture restricts, among other things, the Company's
ability to incur additional indebtedness, pay dividends or make certain other
restricted payments, incur liens to secure pari passu or subordinated
indebtedness, sell stock of Restricted Subsidiaries, apply net proceeds from
certain asset sales, merge or consolidate with any other person, sell, assign,
transfer, lease, convey or otherwise dispose of substantially all of the assets
of the Company, enter into certain transactions with affiliates or incur
indebtedness that is subordinate in right of payment to any Senior Indebtedness
and senior in right of payment to the Notes. The Indenture permits, under
certain circumstances, Restricted Subsidiaries of the Company to be deemed
Unrestricted Subsidiaries and thus not subject to the restrictions of the
Indenture.
2. Principal and Interest.
Galey & Lord, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay the principal amount set
forth on Schedule A of this Note to the Holder hereof on March 1, 2008.
4
<PAGE>
The Company shall pay interest at a rate of 9 1/8% per annum,
from the Issue Date or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually in arrears on
March 1 and September 1 of each year, commencing on September 1, 1998, in cash,
to the Holder hereof until the principal amount hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the Note in
exchange or substitution for which this Note was issued) is registered at the
close of business on the Record Date for interest payable on such Interest
Payment Date. The Record Date for any interest payment is the close of business
on February 15 or August 15, as the case may be, whether or not a Business Day,
immediately preceding the Interest Payment Date on which such interest is
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") shall forthwith cease to be payable to the Holder on such
Record Date and shall be paid as provided in Section 2.11 of the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such Interest Payment
Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Note is issued pursuant to a Registered Exchange Offer
on or prior to the Record Date for the first Interest Payment Date following
such exchange, accrued and unpaid interest, if any, on the equivalent principal
amount of the Initial Note in exchange for which this Note was issued, up to but
not including the date of issuance of this Note, shall be paid on the first
Interest Payment Date for this Note to the Holder of this Note on the first
Record Date with respect to this Note. If this Note is issued pursuant to a
Registered Exchange Offer subsequent to the Record Date for the first Interest
Payment Date following such exchange but on or prior to such Interest Payment
Date, then any such accrued and unpaid interest with respect to the equivalent
principal amount of the Initial Note in exchange for which this Note was issued
and any accrued and unpaid interest on this Note, through the day before such
Interest Payment Date, shall be paid on such Interest Payment Date to the Holder
of such Initial Note on such Record Date.
To the extent lawful, the Company shall pay interest on
overdue principal, overdue premium, Defaulted Interest and overdue Liquidated
Damages (without regard to any applicable grace period) at the interest rate
borne on this Note. The Company's obligation pursuant to the previous sentence
shall apply whether such overdue amount is due at its maturity, as a result of
the Company's obligations pursuant to Section 3.05, Section 4.11 or Section 4.14
of the Indenture, or otherwise.
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<PAGE>
3. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Note to the registered Holder of this Note, as provided above. The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest and Liquidated
Damages, if any, in money of the United States of America that at the time of
payment is legal tender for payment of all debts public and private. Principal,
premium, if any, and interest and Liquidated Damages, if any, shall be paid by
check mailed to the registered Holders at their registered addresses; provided
that all payments with respect to Notes the Holders of which have given wire
transfer instructions to the Company will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
4. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar
under the Indenture. The Company may, upon written notice to the Trustee,
appoint and change any Paying Agent or Registrar. The Company or any of its
Affiliates may act as Paying Agent or Registrar, provided that if the Company or
such Affiliate is acting as Paying Agent, the Company or such Affiliate shall
segregate all funds held by it as Paying Agent and hold them in trust for the
benefit of the Holders or the Trustee.
5. Note Guarantees.
This Note is initially entitled to the benefits of the Note
Guarantees made by Galey & Lord Industries, Inc., G&L Service Company, North
America, Inc., Swift Textiles, Inc. and Swift Denim Services, Inc., and may
thereafter be entitled to Note Guarantees made by other Note Guarantors for the
benefit of the Holders of Notes. Each present Note Guarantor has, and each
future Note Guarantor will, irrevocably and unconditionally, jointly and
severally, guarantee on a senior subordinated basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, interest or Liquidated Damages, if
any, on the Notes, expenses, indemnification or otherwise. A Note Guarantor
shall be released from its Note Guarantee upon the terms and subject to the
conditions set forth in the Indenture.
6. Subordination.
This Note and the Note Guarantees are subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full of all
existing and future Senior Indebtedness. Each of the Company and the Note
Guarantors agrees, and each Holder by accepting a Note agrees, to the
subordination provisions set forth in the Indenture, authorizes the Trustee to
give them effect and appoints the Trustee as attorney-in-fact for such purpose.
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<PAGE>
7. Redemption.
Except as set forth in the following paragraph, the Notes are
not redeemable at the option of the Company prior to March 1, 2003. Thereafter,
the Notes will be subject to redemption at the option of the Company, in whole
or in part, on at least 30 calendar days' but not more than 60 calendar days'
prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, and
Liquidated Damages, if any, to the applicable Redemption Date (subject to the
right of each Holder of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), if redeemed during the twelve-month
period beginning March 1 of the years indicated below:
Year Percentage
2003 104.563%
2004 103.042%
2005 101.521%
2006 and thereafter 100.000%
In addition, at any time and from time to time prior to March
1, 2001 the Company, at its option, may redeem in the aggregate up to 35.0% of
the original principal amount of the Notes with the Net Cash Proceeds of one or
more Public Equity Offerings following which there is a Public Market, at a
redemption price (expressed as a percentage of principal amount) of 109.125% of
the aggregate principal amount so redeemed, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date); provided, however, that at least 65.0% of the
original principal amount of the Notes must remain outstanding after each such
redemption; and provided, further, that each such redemption shall occur within
60 days of the date of closing of the related Public Equity Offering.
8. Notice of Redemption.
At least 20 calendar days but not more than 60 calendar days
before a Redemption Date, the Company shall deliver to the Trustee and send, by
first-class mail, postage prepaid, to Holders of Notes to be redeemed at the
addresses of such Holders as they appear in the Note Register, a notice of
redemption.
If fewer than all the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed pro rata or by lot or by a
method that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in accordance
with methods generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding Notes not
previously called for redemption; provided that the Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the
principal of Notes that have denominations larger than $1,000 (Notes in
denominations of $1,000 or less may be redeemed only in whole). If any
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<PAGE>
Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
any accrued interest will be paid on such Interest Payment Date to the Holder of
the Note on such Record Date. If money in an amount sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the applicable
Redemption Date and certain other conditions are satisfied, interest on the
Notes or portions thereof to be redeemed on the applicable Redemption Date will
cease to accrue.
9. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder shall
have the right in accordance with the terms hereof and the Indenture to require
the Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1,000, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest and Liquidated
Damages, if any, to the Change of Control Payment Date.
Within 30 calendar days following any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder with a copy to the
Trustee. The Holder of this Note may elect to have this Note or a portion hereof
in an authorized denomination purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Change of Control Offer. Unless the Company defaults in the payment of the
Change of Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control Offer will cease
to accrue interest from and after the Change of Control Payment Date.
Prior to complying with the provisions of the Indenture
governing Change of Control Offers, but in any event within 30 calendar days
following a Change of Control, the Company shall either repay all outstanding
Senior Indebtedness or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Indebtedness to permit the repurchase of
Notes required by the provisions of the Indenture governing Change of Control
Offers.
10. Repurchase at the Option of Holders upon Asset Sale.
If at any time the Company or any Restricted Subsidiary
engages in any Asset Sale, as a result of which the aggregate amount of Excess
Proceeds exceeds $5.0 million, the Company shall, within 30 calendar days of the
date the amount of Excess Proceeds exceeds $5.0 million, use the then-existing
Excess Proceeds to make an offer to purchase from all Holders of Notes, on a pro
rata basis, Notes in an aggregate principal amount equal in amount to the
then-existing Excess Proceeds, at a purchase price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest thereon
and Liquidated Damages to the Asset Sale Purchase Date (subject to the right of
each Holder of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date). Upon completion of an Asset Sale Offer
(including payment of the Asset Sale Purchase Price for accepted Notes), any
surplus
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<PAGE>
Excess Proceeds that were the subject of such offer shall cease to be Excess
Proceeds, and the Company may then use such amounts for general corporate
purposes.
Within 30 calendar days of the date the amount of Excess
Proceeds exceeds $5.0 million, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Asset Sale Offer to
each Holder. The Holder of this Note may elect to have this Note or a portion
hereof in an authorized denomination purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below and tendering this Note
pursuant to the Asset Sale Offer. Unless the Company defaults in the payment of
the Asset Sale Purchase Price with respect thereto, all Notes or portions
thereof selected for payment pursuant to the Asset Sale Offer will cease to
accrue interest from and after the Asset Sale Purchase Date.
11. The Global Note.
So long as this Global Note is registered in the name of the
Depositary or its nominee, members of, or participants in, the Depositary
("Agent Members") shall have no rights under the Indenture with respect to this
Global Note held on their behalf by the Depositary or the Trustee as its
custodian, and the Depositary may be treated by the Company, the Note
Guarantors, the Trustee and any agent of the Company, the Note Guarantors or the
Trustee as the absolute owner of this Global Note for all purposes.
Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the
Note Guarantors, the Trustee or any agent of the Company, the Note Guarantors or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or (ii) impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder.
The Holder of this Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests in this Global Note through Agent Members, to take any action which a
Holder is entitled to take under the Indenture or the Notes.
Whenever, as a result of optional redemption by the Company, a
Change of Control Offer, an Asset Sale Offer, a Registered Exchange Offer or an
exchange for Certificated Notes, this Global Note is redeemed, repurchased or
exchanged in part, this Global Note shall be surrendered by the Holder thereof
to the Trustee who shall cause an adjustment to be made to Schedule A hereof so
that the principal amount of this Global Note will be equal to the portion not
redeemed, repurchased or exchanged and shall thereafter return this Global Note
to such Holder; provided that this Global Note shall be in a principal amount of
$1,000 or an integral multiple of $1,000.
12. Transfer and Exchange.
A Holder may transfer or exchange Notes as provided in the
Indenture and subject to certain limitations therein set forth. The Registrar
may require a Holder, among other things,
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<PAGE>
to furnish appropriate endorsements or transfer documents and to pay any taxes,
fees and expenses required by law or permitted by the Indenture.
13. Denominations.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and integral multiples thereof of principal amount.
14. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of the obligations of the Company and the Note Guarantors
under the Notes, the Note Guarantees and the Indenture if the Company
irrevocably deposits in trust with the Trustee cash or U.S. Government
Obligations for the payment of principal, premium, if any, interest and
Liquidated Damages, if any, on the Notes to redemption or maturity, as the case
may be.
15. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes
(which consent may, but need not, be given in connection with any tender offer
or exchange offer for the Notes) and (ii) any past Default and its consequences
or any compliance with any provisions of the Indenture may be waived with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Notes (i) to evidence the succession of another Person to the
Company and the assumption by such successor of the covenants of the Company
under the Indenture and contained in the Notes; (ii) to add to the covenants of
the Company, for the benefit of the Holders of all of the Notes, or to surrender
any right or power conferred on the Company under the Indenture; (iii) to
provide for uncertificated Notes in addition to or in place of Certificated
Notes; (iv) to secure the Notes; (v) to cure any ambiguity, omission, defect or
inconsistency in the Indenture, provided that such actions shall not adversely
affect the interests of the Holders of Notes in any material respect; (vi) to
comply with the requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA; or (vii) to evidence the agreement
or acknowledgment of a Restricted Subsidiary that it is a Note Guarantor for all
purposes under the Indenture (including, without limitation, Article 12
thereof).
16. Defaults and Remedies.
Under the Indenture, Events of Default include: (i) a default
for 30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes (whether or not prohibited by the subordination provisions
of the Indenture); (ii) a default in the payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by the subordination
provisions of the Indenture); (iii) failure by the Company to observe or perform
certain covenants, conditions, agreements or other provisions of the Indenture
or this Note (and,
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<PAGE>
in the case of certain covenants, agreements or other provisions, such failure
has continued for 30 calendar days after written notice by the Trustee or the
Holders of at least 25% in principal amount of the Notes); (iv) a default in the
payment of Indebtedness of the Company or any of its Significant Subsidiaries
within any applicable grace period after final maturity or acceleration of such
Indebtedness in an amount in excess of $10.0 million in the aggregate; (v)
certain events of bankruptcy or insolvency with respect to the Company or any of
its Significant Subsidiaries; (vi) certain undischarged judgments in excess of
$10.0 million against the Company or any of its Significant Subsidiaries; or
(vii) the Note Guarantee of any Note Guarantor ceasing for any reason to be in
full force and effect (other than in accordance with the terms of the Indenture)
or any Note Guarantor denying or disaffirming its obligations under its Note
Guarantee.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Notes, subject to
certain limitations, may declare all the Notes to be immediately due and
payable. Certain events of bankruptcy or insolvency shall result in the Notes
being immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Notes may direct the Trustee in its exercise of any trust or power under the
Indenture. The Holders of a majority in principal amount of the then outstanding
Notes, by written notice to the Trustee and the Company, may rescind any
declaration of acceleration and its consequences if the rescission would not
conflict with any judgment or decree, and if all existing Events of Default have
been cured or waived, except nonpayment of principal, interest, premium or
Liquidated Damages that has become due solely because of acceleration. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
17. Individual Rights of Trustee.
Subject to certain limitations imposed by the TIA, the Trustee
or any Paying Agent or Registrar, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company,
the Note Guarantors or their Affiliates with the same rights it would have if it
were not Trustee, Paying Agent or Registrar, as the case may be, under the
Indenture.
18. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company or any Note Guarantor, as such, shall have any liability for any
obligations of the Company or such Note Guarantor under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company or
such Note Guarantor. By accepting a Note, each Holder waives and releases all
such liability (but only such liability) as part of the consideration for
issuance of such Note to such Holder.
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<PAGE>
19. Authentication.
This Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
22. Governing Law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to:
Galey & Lord, Inc.
7736 McCloud Road
One Triad Center, Suite 300
Greensboro, North Carolina 27409
Attention: Chief Financial Officer
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<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be $____________.
The following decreases/increase in the principal amount in denominations of
$1,000 or integral multiples thereof at maturity of this Note have been made:
<TABLE>
<CAPTION>
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
<S> <C> <C> <C> <C>
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
- ------------ ----------- ----------- ------------- ---------
</TABLE>
13
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- -----------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- ------------------------------------------------------------------------------
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint ________________________________ Attorney to
transfer this Note on the Note Register, with full power of substitution.
Dated: _______________
- ----------------------------- --------------------------------
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
|_| In connection with the Change of Control Offer made pursuant to Section
4.14 of the Indenture, the undersigned hereby elects to have
|_| the entire principal amount
|_| $________________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or __________________________ an amount in
cash equal to 101% of the principal amount indicated in the preceding
sentence plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the Change of Control Payment Date.
|_| In connection with the Asset Sale Offer made pursuant to Section 4.11
of the Indenture, the undersigned hereby elects to have
|_| the entire principal amount
|_| $________________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or __________________________ an amount in
cash equal to 100% of the principal amount indicated in the preceding
sentence plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the Asset Sale Purchase Date.
Dated: _______________
- ----------------------------- -----------------------------
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
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<PAGE>
EXHIBIT 4.4
FORM OF CERTIFICATED NOTE
FACE OF CERTIFICATED NOTE
GALEY & LORD, INC.
No. __ CUSIP No.__________
9 1/8% SENIOR SUBORDINATED NOTE DUE 2008
Galey & Lord, Inc., a Delaware corporation, for value
received, hereby promises to pay to __________________, or its registered
assigns, the principal amount of _______________, on March 1, 2008.
Interest Payment Dates: March 1 and September 1, commencing
September 1, 1998.
Record Dates: February 15 and August 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
<PAGE>
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purposes.
IN WITNESS WHEREOF, Galey & Lord, Inc. has caused this Note to
be duly executed.
GALEY & LORD, INC.
By: __________________________________________
Name:
Title:
Attest:______________________
Dated:______________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
SUNTRUST BANK, ATLANTA,
as Trustee, certifies that this is one of
the Notes referred to in the Indenture.
By:
------------------------------------
Authorized Signatory
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<PAGE>
REVERSE SIDE OF CERTIFICATED NOTE
GALEY & LORD, INC.
9 1/8% SENIOR SUBORDINATED NOTE DUE 2008
1. Indenture.
This Note is one of a duly authorized issue of debt securities
of the Company (as defined below) designated as its "9 1/8% Senior Subordinated
Notes Due 2008" (herein called the "Notes") limited in aggregate principal
amount to $300,000,000, issued under an indenture dated as of February 24, 1998
(as amended or supplemented from time to time, the "Indenture") among the
Company, as issuer, and Galey & Lord Industries, Inc., G&L Service Company,
North America, Inc., Swift Textiles, Inc. and Swift Denim Services, Inc. as
guarantors (collectively, the "Note Guarantors"), and SunTrust Bank, Atlanta, as
trustee (the "Trustee," which term includes any successor trustee under the
Indenture). The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code ss.ss. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders of Notes are referred to the Indenture and such Act
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Note Guarantors, the Trustee and each
Holder and of the terms upon which the Notes are, and are to be, authenticated
and delivered. The summary of the terms of this Note contained herein does not
purport to be complete and is qualified by reference to the Indenture. To the
extent permitted by applicable law, in the event of any inconsistency between
the terms of this Note and the terms of the Indenture, the terms of the
Indenture shall control. All capitalized terms used in this Note which are not
defined herein shall have the meanings assigned to them in the Indenture.
The Indenture restricts, among other things, the Company's
ability to incur additional indebtedness, pay dividends or make certain other
restricted payments, incur liens to secure pari passu or subordinated
indebtedness, sell stock of Restricted Subsidiaries, apply net proceeds from
certain asset sales, merge or consolidate with any other person, sell, assign,
transfer, lease, convey or otherwise dispose of substantially all of the assets
of the Company, enter into certain transactions with affiliates or incur
indebtedness that is subordinate in right of payment to any Senior Indebtedness
and senior in right of payment to the Notes. The Indenture permits, under
certain circumstances, Restricted Subsidiaries of the Company to be deemed
Unrestricted Subsidiaries and thus not subject to the restrictions of the
Indenture.
2. Principal and Interest.
Galey & Lord, Inc., a Delaware corporation (such corporation,
and its successors and assigns under the Indenture hereinafter referred to,
being herein called the "Company"), promises to pay the principal amount set
forth on Schedule A of this Note to the Holder hereof on March 1, 2008.
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<PAGE>
The Company shall pay interest at a rate of 9 1/8% per annum,
from the Issue Date or from the most recent Interest Payment Date thereafter to
which interest has been paid or duly provided for, semiannually in arrears on
March 1 and September 1 of each year, commencing on September 1, 1998, in cash,
to the Holder hereof until the principal amount hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note (or the Note in
exchange or substitution for which this Note was issued) is registered at the
close of business on the Record Date for interest payable on such Interest
Payment Date. The Record Date for any interest payment is the close of business
on February 15 or August 15, as the case may be, whether or not a Business Day,
immediately preceding the Interest Payment Date on which such interest is
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") shall forthwith cease to be payable to the Holder on such
Record Date and shall be paid as provided in Section 2.11 of the Indenture.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
Each payment of interest in respect of an Interest Payment
Date will include interest accrued through the day before such Interest Payment
Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the
next succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, and no additional interest will accrue as a result of
such delayed payment.
If this Note is issued pursuant to a Registered Exchange Offer
on or prior to the Record Date for the first Interest Payment Date following
such exchange, accrued and unpaid interest on the equivalent principal amount of
the Initial Note in exchange for which this Note was issued, up to but not
including the date of issuance of this Note, shall be paid on the first Interest
Payment Date for this Note to the Holder of this Note on the first Record Date
with respect to this Note. If this Note is issued pursuant to a Registered
Exchange Offer subsequent to the Record Date for the first Interest Payment Date
following such exchange but on or prior to such Interest Payment Date, then any
such accrued and unpaid interest with respect to the equivalent principal amount
of the Initial Note in exchange for which this Note was issued and any accrued
and unpaid interest on this Note through the day before such Interest Payment
Date shall be paid on such Interest Payment Date to the Holder of such Initial
Note on such Record Date.
To the extent lawful, the Company shall pay interest on
overdue principal, overdue premium, Defaulted Interest and overdue Liquidated
Damages (without regard to any applicable grace period) at the interest rate
borne on this Note. The Company's obligation pursuant to the previous sentence
shall apply whether such overdue amount is due at its maturity, as a result of
the Company's obligations pursuant to Section 3.05, Section 4.11 or Section 4.14
of the Indenture, or otherwise.
4
<PAGE>
3. Method of Payment.
The Company, through the Paying Agent, shall pay interest on
this Note to the registered Holder of this Note, as provided above. The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest and Liquidated
Damages, if any, in money of the United States of America that at the time of
payment is legal tender for payment of all debts public and private. Principal,
premium, if any, and interest and Liquidated Damages, if any, shall be paid by
check mailed to the registered Holders at their registered addresses; provided
that all payments with respect to Notes the Holders of which have given wire
transfer instructions to the Company will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof.
4. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar
under the Indenture. The Company may, upon written notice to the Trustee,
appoint and change any Paying Agent or Registrar. The Company or any of its
Affiliates may act as Paying Agent or Registrar, provided that if the Company or
such Affiliate is acting as Paying Agent, the Company or such Affiliate shall
segregate all funds held by it as Paying Agent and hold them in trust for the
benefit of the Holders or the Trustee.
5. Note Guarantees.
This Note is initially entitled to the benefits of the Note
Guarantees made by Galey & Lord Industries, Inc., G&L Service Company, North
America, Inc., Swift Textiles, Inc. and Swift Denim Services, Inc., and may
thereafter be entitled to Note Guarantees made by other Note Guarantors for the
benefit of the Holders of Notes. Each present Note Guarantor has, and each
future Note Guarantor will, irrevocably and unconditionally, jointly and
severally, guarantee on a senior subordinated basis the punctual payment when
due, whether at Stated Maturity, by acceleration, in connection with a Change of
Control Offer, an Asset Sale Offer or redemption, or otherwise, of all
obligations of the Company under the Indenture and this Note, whether for
payment of principal of, premium, if any, interest or Liquidated Damages, if
any, on the Notes, expenses, indemnification or otherwise. A Note Guarantor
shall be released from its Note Guarantee upon the terms and subject to the
conditions set forth in the Indenture.
6. Subordination.
This Note and the Note Guarantees are subordinated in right of
payment, as set forth in the Indenture, to the prior payment in full of all
existing and future Senior Indebtedness. Each of the Company and the Note
Guarantors agrees, and each Holder by accepting a Note agrees, to the
subordination provisions set forth in the Indenture, authorizes the Trustee to
give them effect and appoints the Trustee as attorney-in-fact for such purpose.
5
<PAGE>
7. Redemption.
Except as set forth in the following paragraph, the Notes are
not redeemable at the option of the Company prior to March 1, 2003. Thereafter,
the Notes will be subject to redemption at the option of the Company, in whole
or in part, on at least 30 calendar days' but not more than 60 calendar days'
prior notice, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any, and
Liquidated Damages, if any, to the applicable Redemption Date (subject to the
right of each Holder of record on the relevant Record Date to receive interest
due on the relevant Interest Payment Date), if redeemed during the twelve-month
period beginning March 1 of the years indicated below:
Year Percentage
2003 104.563%
2004 103.042%
2005 101.521%
2006 and thereafter 100.000%
In addition, at any time and from time to time prior to March
1, 2001 the Company, at its option, may redeem in the aggregate up to 35.0% of
the original principal amount of the Notes with the Net Cash Proceeds of one or
more Public Equity Offerings following which there is a Public Market, at a
redemption price (expressed as a percentage of principal amount) of 109.125% of
the aggregate principal amount so redeemed, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the redemption date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date); provided, however, that at least 65.0% of the
original principal amount of the Notes must remain outstanding after each such
redemption; and provided, further, that each such redemption shall occur within
60 days of the date of closing of the related Public Equity Offering.
8. Notice of Redemption.
At least 20 calendar days but not more than 60 calendar days
before a Redemption Date, the Company shall deliver to the Trustee and send, by
first-class mail, postage prepaid, to Holders of Notes to be redeemed at the
addresses of such Holders as they appear in the Note Register, a notice of
redemption.
If fewer than all the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed pro rata or by lot or by a
method that complies with applicable legal and securities exchange requirements,
if any, and that the Trustee considers fair and appropriate and in accordance
with methods generally used at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the selection from outstanding Notes not
previously called for redemption; provided that the Trustee may select for
redemption portions (equal to $1,000 or any integral multiple thereof) of the
principal of Notes that have denominations larger than $1,000 (Notes in
denominations of $1,000 or less may be redeemed only in whole). If any
6
<PAGE>
Note is redeemed subsequent to a Record Date with respect to any Interest
Payment Date specified above and on or prior to such Interest Payment Date, then
any accrued interest will be paid on such Interest Payment Date to the Holder of
the Note on such Record Date. If money in an amount sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent on or before the applicable
Redemption Date and certain other conditions are satisfied, interest on the
Notes or portions thereof to be redeemed on the applicable Redemption Date will
cease to accrue.
9. Repurchase at the Option of Holders upon Change of Control.
Upon the occurrence of a Change of Control, each Holder shall
have the right in accordance with the terms hereof and the Indenture to require
the Company to purchase such Holder's Notes, in whole or in part, in a principal
amount that is an integral multiple of $1,000, pursuant to a Change of Control
Offer, at a purchase price in cash equal to 101% of the principal amount of such
Notes (or portions thereof) plus accrued and unpaid interest and Liquidated
Damages, if any, to the Change of Control Payment Date.
Within 30 calendar days following any Change of Control, the
Company shall send, or cause to be sent, by first-class mail, postage prepaid, a
notice regarding the Change of Control Offer to each Holder with a copy to the
Trustee. The Holder of this Note may elect to have this Note or a portion hereof
in an authorized denomination purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below and tendering this Note pursuant to
the Change of Control Offer. Unless the Company defaults in the payment of the
Change of Control Purchase Price with respect thereto, all Notes or portions
thereof accepted for payment pursuant to the Change of Control Offer will cease
to accrue interest from and after the Change of Control Payment Date.
Prior to complying with the provisions of the Indenture
governing Change of Control Offers, but in any event within 30 calendar days
following a Change of Control, the Company shall either repay all outstanding
Senior Indebtedness or obtain the requisite consents, if any, under all
agreements governing outstanding Senior Indebtedness to permit the repurchase of
Notes required by the provisions of the Indenture governing Change of Control
Offers.
10. Repurchase at the Option of Holders upon Asset Sale.
If at any time the Company or any Restricted Subsidiary
engages in any Asset Sale, as a result of which the aggregate amount of Excess
Proceeds exceeds $5.0 million, the Company shall, within 30 calendar days of the
date the amount of Excess Proceeds exceeds $5.0 million, use the then-existing
Excess Proceeds to make an offer to purchase from all Holders of Notes, on a pro
rata basis, Notes in an aggregate principal amount equal in amount to the
then-existing Excess Proceeds, at a purchase price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest thereon
and Liquidated Damages to the Asset Sale Purchase Date (subject to the right of
each Holder of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date). Upon completion of an Asset Sale Offer
(including payment of the Asset Sale Purchase Price for accepted Notes), any
surplus
7
<PAGE>
Excess Proceeds that were the subject of such offer shall cease to be Excess
Proceeds, and the Company may then use such amounts for general corporate
purposes.
Within 30 calendar days of the date the amount of Excess
Proceeds exceeds $5.0 million, the Company shall send, or cause to be sent, by
first-class mail, postage prepaid, a notice regarding the Asset Sale Offer to
each Holder. The Holder of this Note may elect to have this Note or a portion
hereof in an authorized denomination purchased by completing the form entitled
"Option of Holder to Elect Purchase" appearing below and tendering this Note
pursuant to the Asset Sale Offer. Unless the Company defaults in the payment of
the Asset Sale Purchase Price with respect thereto, all Notes or portions
thereof selected for payment pursuant to the Asset Sale Offer will cease to
accrue interest from and after the Asset Sale Purchase Date.
11. Transfer and Exchange.
A Holder may transfer or exchange Notes as provided in the
Indenture and subject to certain limitations therein set forth. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes, fees and expenses required by law or
permitted by the Indenture. The Registrar need not register the transfer or
exchange of Certificated Notes or portions thereof selected for redemption
(except, in the case of a Certificated Note to be redeemed in part, the portion
of such Certificated Note not to be redeemed) or any Certificated Notes for a
period of 15 calendar days before a selection of Notes to be redeemed.
12. Denominations.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and integral multiples thereof of principal amount.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of the obligations of the Company and the Note Guarantors
under the Notes, the Note Guarantees and the Indenture if the Company
irrevocably deposits in trust with the Trustee cash or U.S. Government
Obligations for the payment of principal, premium, if any, interest and
Liquidated Damages, if any, on the Notes to redemption or maturity, as the case
may be.
14. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Notes
(which consent may, but need not, be given in connection with any tender offer
or exchange offer for the Notes) and (ii) any past Default and its consequences
or any compliance with any provisions of the Indenture may be waived with the
written consent of the Holders of at least a majority in principal amount of the
outstanding Notes. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Notes (i) to evidence the succession of another
8
<PAGE>
Person to the Company and the assumption by such successor of the covenants of
the Company under the Indenture and contained in the Notes; (ii) to add to the
covenants of the Company, for the benefit of the Holders of all of the Notes, or
to surrender any right or power conferred on the Company under the Indenture;
(iii) to provide for uncertificated Notes in addition to or in place of
Certificated Notes; (iv) to secure the Notes; (v) to cure any ambiguity,
omission, defect or inconsistency in the Indenture, provided that such actions
shall not adversely affect the interests of the Holders of Notes in any material
respect; (vi) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA; or (vii) to evidence
the agreement or acknowledgment of a Restricted Subsidiary that it is a Note
Guarantor for all purposes under the Indenture (including, without limitation,
Article 12 thereof).
15. Defaults and Remedies.
Under the Indenture, Events of Default include: (i) a default
for 30 days in the payment when due of interest on, or Liquidated Damages with
respect to, the Notes (whether or not prohibited by the subordination provisions
of the Indenture); (ii) a default in the payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by the subordination
provisions of the Indenture); (iii) failure by the Company to observe or perform
certain covenants, conditions, agreements or other provisions of the Indenture
or this Note (and, in the case of certain covenants, agreements or other
provisions, such failure has continued for 30 calendar days after written notice
by the Trustee or the Holders of at least 25% in principal amount of the Notes);
(iv) a default in the payment of Indebtedness of the Company or any of its
Significant Subsidiaries within any applicable grace period after final maturity
or acceleration of such Indebtedness in an amount in excess of $10.0 million in
the aggregate; (v) certain events of bankruptcy or insolvency with respect to
the Company or any of its Significant Subsidiaries; (vi) certain undischarged
judgments in excess of $10.0 million against the Company or any of its
Significant Subsidiaries; or (vii) the Note Guarantee of any Note Guarantor
ceasing for any reason to be in full force and effect (other than in accordance
with the terms of the Indenture) or any Note Guarantor denying or disaffirming
its obligations under its Note Guarantee.
If an Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the Notes, subject to
certain limitations, may declare all the Notes to be immediately due and
payable. Certain events of bankruptcy or insolvency shall result in the Notes
being immediately due and payable upon the occurrence of such Events of Default
without any further act of the Trustee or any Holder.
Holders of Notes may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Notes unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in principal amount of the
Notes may direct the Trustee in its exercise of any trust or power under the
Indenture. The Holders of a majority in principal amount of the then outstanding
Notes, by written notice to the Trustee and the Company, may rescind any
declaration of acceleration and its consequences if the rescission would not
conflict with any judgment or decree, and if all existing Events of Default have
been cured or waived, except nonpayment of principal, interest,
9
<PAGE>
premium or Liquidated Damages that has become due solely because of
acceleration. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
16. Individual Rights of Trustee.
Subject to certain limitations imposed by the TIA, the Trustee
or any Paying Agent or Registrar, in its individual or any other capacity, may
become the owner or pledgee of Notes and may otherwise deal with the Company,
the Note Guarantors or their Affiliates with the same rights it would have if it
were not Trustee, Paying Agent or Registrar, as the case may be, under the
Indenture.
17. No Recourse Against Certain Others.
No director, officer, employee, incorporator or stockholder of
the Company or any Note Guarantor, as such, shall have any liability for any
obligations of the Company or such Note Guarantor under the Notes, the Note
Guarantees or the Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a director, officer, employee, incorporator or stockholder of the Company or
such Note Guarantor. By accepting a Note, each Holder waives and releases all
such liability (but only such liability) as part of the consideration for
issuance of such Note to such Holder.
18. Authentication.
This Note shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Note.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Notes and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders of Notes. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
21. Governing Law.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
10
<PAGE>
YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to:
Galey & Lord, Inc.
7736 McCloud Road
One Triad Center, Suite 300
Greensboro, North Carolina 27409
Attention: Chief Financial Officer
11
<PAGE>
ASSIGNMENT
(To be executed by the registered Holder
if such Holder desires to transfer this Note)
FOR VALUE RECEIVED ___________________________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
TAX IDENTIFYING NUMBER OF TRANSFEREE
- -----------------------------------------
- ----------------------------------------- --------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------------
this Note, together with all right, title and interest herein, and does hereby
irrevocably constitute and appoint ________________________________ Attorney to
transfer this Note on the Note Register, with full power of substitution.
Dated: _______________
- ----------------------------- --------------------------------
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing Assignment must correspond to the Name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever.
12
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
(check as appropriate)
|_| In connection with the Change of Control Offer made pursuant to
Section 4.14 of the Indenture, the undersigned hereby elects to have
|_| the entire principal amount
|_| $________________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or __________________________ an amount in
cash equal to 101% of the principal amount indicated in the preceding
sentence plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the Change of Control Payment Date.
|_| In connection with the Asset Sale Offer made pursuant to Section 4.11
of the Indenture, the undersigned hereby elects to have
|_| the entire principal amount
|_| $________________ ($1,000 in principal amount or an integral
multiple thereof) of this Note
repurchased by the Company. The undersigned hereby directs the Trustee
or Paying Agent to pay it or __________________________ an amount in
cash equal to 100% of the principal amount indicated in the preceding
sentence plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the Asset Sale Purchase Date.
Dated: _______________
- ----------------------------- --------------------------------
Signature of Holder Signature Guaranteed:
NOTICE: The signature to the foregoing must correspond to the Name as written
upon the face of this Note in every particular, without alteration or any change
whatsoever.
13
Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022
April 6, 1998
E-MAIL ADDRESS
[email protected]
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We have acted as counsel to Galey & Lord, Inc. (the "Company"), a Delaware
corporation, in connection with the registration statement (the "Registration
Statement") on Form S-4 filed with the Securities and Exchange Commission on
April 6, 1998 in connection with the registration of $300,000,000 aggregate
principal amount of 9 1/8% Senior Subordinated Notes Due 2008 (the "Notes") of
the Company.
In rendering this opinion, we have examined (i) the Indenture between the
Company, Galey & Lord Industries, Inc., G&L Service Company, North America,
Inc., Swift Textiles, Inc. and SunTrust Bank, Atlanta, dated February 24, 1998,
pursuant to which the Notes will be issued; (ii) the Notes; (iii) the
Registration Statement; (iv) the Restated Certificate of Incorporation of the
Company; (v) the Amended and Restated By-laws of the Company; (vi) resolutions
of the Board of Directors of the Company, dated December 15, 1997 and (vii) such
other documents, and made such inquiries as to questions of law, as we have
deemed necessary.
Based upon the foregoing, it is our opinion that when (i) the Notes have been
(a) duly authenticated in accordance with the Indenture and (b) issued,
exchanged, and delivered in the manner and for the consideration stated in the
Indenture, the Prospectus and the Letter of Transmittal, which have been, or
forms of which have been, filed as part of, or as exhibits to, the Registration
Statement; (ii) the Registration Statement has become effective under the
Securities Act of 1933, as amended, and (iii) the Notes have been qualified as
required under the laws of those jurisdictions in which they are to be issued
and exchanged, the Notes will be legally issued, fully paid and non-assessable
and valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar laws, now or
hereafter in effect, and equitable considerations of any court before which
enforcement may be sought.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name in the Registration
Statement, including the Prospectus constituting a part thereof, and any
amendments or supplements thereto, under the caption "Legal Matters."
Very truly yours,
ROSENMAN & COLIN LLP
By: /s/ David H. Landau
--------------------------
A Partner
EXHIBIT 12.1
GALEY LORD, INC.
CALCULATION OF EARNINGS TO FIXED CHARGES RATIO
(Dollars in Thousands)
<TABLE>
<CAPTION>
3 Months 3 Months
Ended Ended
December 28, December 27,
1993 1994 1995 1996 1997 1996 1997
------------ ------------ ------------ ------------ ------------ -------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes ..... $ 21,425 $ 30,689 $ 8,742 $ 15,460 $ 22,027 $ 5,737 $ (636)
Fixed charges .................... 7,198 9,109 14,070 13,012 14,159 3,505 4,027
-------- -------- -------- -------- -------- ------- ------
Earnings as adjusted (A) ........ $ 28,623 $ 39,798 $ 22,812 $ 28,472 $ 36,186 $ 9,242 $3,391
======== ======== ======== ======== ======== ======= ======
Fixed Charges:
Interest expense ................. $ 6,465 $ 8,276 $ 13,103 $ 11,579 $ 12,326 $ 3,052 $3,500
Interest component of rent
expense (Note 1) ................ 733 833 967 1,433 1,833 453 527
-------- -------- -------- -------- -------- ------- ------
Fixed charges as
adjusted (B) .................. $ 7,198 $ 9,109 $ 14,070 $ 13,012 $ 14,159 $ 3,505 $4,027
======== ======== ======== ======== ======== ======= ======
Ratio of earnings to fixed
charges (A) divided by (B) ....... 3.98 4.37 1.62 2.19 2.56 2.64 *
========= ========= ========= ========= ========= ======== ======
</TABLE>
<TABLE>
<CAPTION>
1993 1994 1995
------------ ------------ ------------
<S> <C> <C> <C>
Earnings:
Earnings before income taxes ..... $ 26,586 $ 34,184 $ 25,604
Fixed charges .................... 33,209 29,020 30,110
-------- -------- --------
Earnings as adjusted (A) ........ $ 59,795 $ 63,204 $ 55,714
======== ======== ========
Fixed Charges:
Interest expense ................. $ 31,957 $ 27,625 $ 28,732
Interest component of rent
expense (Note 1) ................ 1,252 1,395 1,378
-------- -------- --------
Fixed charges as
adjusted (B) ................... $ 33,209 $ 29,020 $ 30,110
======== ======== ========
Ratio of earnings to fixed
charges (A) divided by (B) ....... 1.80 2.18 1.85
========= ========= =========
<CAPTION>
6 Months 6 Months
Ended Ended
December 31, December 31,
1996 1997 1996 1997
------------ ------------- -------------- -------------
<S> <C> <C> <C> <C>
Earnings:
Earnings before income taxes ..... $ 1,180 $ (24,290) ($ 2,162) $ (10,038)
Fixed charges .................... 20,187 18,827 9,824 9,363
-------- --------- ------- ---------
Earnings as adjusted (A) ........ $ 21,367 $ (5,463) $ 7,662 $ (675)
======== ========= ======= =========
Fixed Charges:
Interest expense ................. $ 18,737 $ 17,413 $ 9,122 $ 8,693
Interest component of rent
expense (Note 1) ................ 1,450 1,414 702 670
-------- --------- ------- ---------
Fixed charges as
adjusted (B) ................... $ 20,187 $ 18,827 $ 9,824 $ 9,363
======== ========= ======= =========
Ratio of earnings to fixed
charges (A) divided by (B) ....... 1.06 * * *
========= ========= ======= =========
</TABLE>
- ----------
Note 1: Approximately one-third of rent expense which management believes is
representative of the interest component.
* Computation of ratio is less than one indicating that earnings are
insufficient to cover fixed charges.
<PAGE>
GALEY LORD, INC.
CALCULATION OF EARNINGS TO FIXED CHARGES RATIO
(Dollars in Thousands)
<TABLE>
<CAPTION>
Galey & Acquired Galey & Acquired
Lord Business Pro Forma Lord Business Pro Forma
------------ ------------- ----------- ---------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes ............ $ 22,027 $ (24,290) $ (9,086) $ (636) $ (14,635) $ (4,799)
Fixed charges ........................... 14,159 18,827 61,743 4,027 4,621 16,380
-------- --------- -------- ------ --------- --------
Earnings as adjusted (A) .............. $ 36,186 $ (5,463) $ 52,657 $3,391 $ (10,014) $ 11,581
======== ========= ======== ====== ========= ========
Fixed Charges:
Interest expense ........................ $ 12,326 $ 17,413 $ 58,815 $3,500 $ 4,269 $ 15,591
Interest component of rent expense
(Note 1) .............................. 1,833 1,414 2,928 527 352 789
-------- --------- -------- ------ --------- --------
Fixed charges as adjusted (B) ......... $ 14,159 $ 18,827 $ 61,743 $4,027 $ 4,621 $ 16,380
======== ========= ======== ====== ========= ========
Ratio of earnings to fixed charges (A)
divided by (B) .......................... 2.56 * * 0.84 * *
========= ========= ======== ======= ========= ========
</TABLE>
- ----------
Note 1: Approximately one-third of rent expense which management believes is
representative of the interest component.
* Computation of ratio is less than one indicating that earnings are
insufficient to cover fixed charges.
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated October 30, 1997, except for Notes B and E as to
which the date is November 19, 1997 and for the last paragraph of Note J as to
which the date is December 16, 1997, in the Registration Statement (Form S-4)
and related Prospectus of Galey & Lord, Inc. for the registration of
$300,000,000 of Senior Subordinated Notes due 2008 and to the incorporation by
reference therein of our report dated October 30, 1997, with respect to the
consolidated financial schedules of Galey & Lord, Inc. included in its Annual
Report (Form 10-K) for the year ended September 27, 1997.
ERNST & YOUNG LLP
Greensboro, North Carolina
April 2, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use in this Registration Statement of Galey & Lord, Inc.
on Form S-4 of our report dated January 29, 1998, with respect to the combined
financial statements of the Apparel Fabrics Business of Dominion Textile Inc.
for the year ended June 30, 1997 ("our Report"), appearing in the Prospectus,
which is part of this Registration Statement.
We also consent to the reference to us under the headings "Experts" in
such Prospectus.
DELOITTE & TOUCHE
Chartered Accountants
Montreal, Quebec
April 2, 1998
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to
the use of our report dated 21 May 1997, with respect to the financial
statements of Swift Textiles Europe Limited (not included separately herein)
for the year ended 31 March 1997 in the Registration Statement (Form S-4) and
related Prospectus of Galey & Lord, Inc. for the registration of $300,000,000
of Senior Subordinated Notes due 2008.
KPMG
Dublin, Ireland
2 April, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM T-1
-------------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) _____
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SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
25 Park Place, N.E.
Suite 1100
Atlanta, Georgia 30303
58-0466330
(Address of principal executive offices) (Zip Code) (I.R.S. employer
identification no.)
-------------------
David M. Kaye
Suntrust Bank, Atlanta
58 Edgewood Avenue, N.E.
Atlanta, Georgia 30303
(404) 588-8060
(Name, address and telephone number of agent for service)
-------------------
GALEY & LORD, INC.
GALEY & LORD INDUSTRIES, INC.
G&L SERVICE COMPANY, NORTH AMERICA, INC.
SWIFT TEXTILES, INC.
SWIFT DENIM SERVICES, INC.
(Exact name of co-obligor as specified in its charter)
Delaware 56-1593207
Delaware 56-1593208
Delaware 56-1976012
Delaware 58-1189307
Delaware 13-3898788
(State or other (IRS employer
jurisdiction of incorporation identification no.)
or organization)
980 Avenue of the Americas New York, New York 10018
(Address of principal executive offices) (Zip Code)
-------------------
9 1/8% Senior Subordinated Notes Due 2008
(Title of the indenture securities)
<PAGE>
(1) The following subsidiaries of the Registrant: Galey & Lord Industries, Inc.,
G&L Service Company, North America, Inc., Swift Textiles, Inc. and Swift Denim
Services, Inc., have each guaranteed the Notes being registered pursuant hereto
on an unsecured senior subordinated basis.
1. General information.
Furnish the following information as to the trustee--
Name and address of each examining or supervising authority to
which it is subject.
Department of Banking and Finance,
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility; exhibits identified in parentheses are filed with the Commission
and are incorporated herein by reference as exhibits hereto pursuant to Rule
7a-29 under the Trust Indenture Act of 1939, as amended, and Rule 24 of the
Commission's Rules of Practice.
(1) A copy of the Articles of Amendment and Restated Articles of
Association of the trustee as now in effect. (Exhibit 1 to Form T-1,
Registration No. 333-25463.)
(2) A copy of the certificate of authority of the trustee to commence
business. (included in Exhibit 1.)
(3) A copy of the authorization of the trustee to exercise corporate
trust powers. (included in Exhibit 1.)
<PAGE>
(4) A copy of the existing by-laws of the trustee. (included in Exhibit
4 to Form T-1, Registration No. 333-25463.)
(6) The consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority as
of the close of business on December 31, 1997.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Suntrust Bank, Atlanta, a banking corporation organized and existing
under the laws of the State of Georgia, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Atlanta and the State of Georgia,
on the 25th day of March, 1998.
SUNTRUST BANK, ATLANTA
By: /s/ David M. Kaye
-------------------------
David M. Kaye
Group Vice President
EXHIBIT 1 TO FORM T-1
ARTICLES OF ASSOCIATION
OF
SUNTRUST BANK, ATLANTA
EXHIBIT 2 TO FORM T-1
CERTIFICATE OF AUTHORITY
OF
SUNTRUST BANK, ATLANTA
TO COMMENCE BUSINESS
EXHIBIT 3 TO FORM T-1
<PAGE>
AUTHORIZATION
OF
SUNTRUST BANK, ATLANTA
TO EXERCISE CORPORATE TRUST POWERS
EXHIBIT 4 TO FORM T-1
BY-LAWS
OF
SUNTRUST BANK, ATLANTA
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issuance of Senior Subordinated
Notes of Galey & Lord, Inc., Suntrust Bank, Atlanta hereby consents that reports
of examinations by Federal, State, Territorial or District Authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
SUNTRUST BANK, ATLANTA
By:/s/ David M. Kaye
------------------------
David M. Kaye
Group Vice President
EXHIBIT 7 TO FORM T-1
REPORT OF CONDITION
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<PAGE>
SUNTRUST BANK ATLANTA Call Date: 12/31/97 State # 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert # 00867 RC-1
ATLANTA, GA 30302 Transit #: 61000104
[11]
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC-Balance Sheet
C400
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
a. Noninterest-bearing balances and currency and coin (1) 0081 1,275,142 1.a
----------
b. Interest-bearing balances (2) 0071 11,228 1.b
----------
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a
----------
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 3,041,872 2.b
----------
3. Federal funds sold and securities purchased under agreements to resell 1350 1,464,776 3
----------
4. Loans and lease financing receivables: RCFD
a. Loans and leases, net of unearned income
(from Schedule RC-C) 2122 10,608,129 4.a
----------
b. LESS: Allowance for loan and lease losses 3123 134,063 4.b
----------
c. LESS: Allocated transfer risk reserve 3128 0 4.c
----------
d. Loans and leases, net of unearned income, RCFD
allowance, and reserve (item 4.a minus 4.b and 4.c) 2125 10,474,066 4.d
----------
5. Trading assets (from Schedule RC-D) 3545 86,555 5.
----------
6. Premises and fixed assets (including capitalized leases) 2145 101,729 6.
----------
7. Other real estate owned (from Schedule RC-M) 2150 1,502 7.
----------
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 2130 12,664 8.
----------
9. Customers liability to this bank on acceptances outstanding 2155 478,706 9.
----------
10. Intangible assets (from Schedule RC-M) 2143 16,754 10.
----------
11. Other assets (from Schedule RC-F) 2160 144,745 11.
----------
12. Total assets (sum of items 1 through 11) 2170 17,109,739 12.
----------
</TABLE>
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
SUNTRUST BANK ATLANTA Call Date: 12/31/97 State # 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert # 00867 RC-2
ATLANTA, GA 30302 Transit #: 61000104
[12]
Schedule RC-Continued
<TABLE>
<CAPTION>
Dollar Amounts in Thousands
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part I) RCON 2200 6,565,195 13.a
----------
(1) Noninterest-bearing (1) 6631 2,594,131 13.a.1
---------
(2) Interest-bearing 6636 3,971,064 13.a.2
---------
b. In foreign offices, Edge and Agreement subsidiaries, RCFN
and IBFs (from Schedule RC-E, part II) RCFN 2200 2,566,946 13.b
----------
(1) Noninterest-bearing 6631 0 13.b1
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(2) Interest-bearing 6636 2,566,946 RCFD 13.b2
---------
14. Federal funds purchased and securities sold under
agreements to repurchase 2800 3,169,134 14.
----------
RCON
15.a. Demand notes issued to the U.S. Treasury 2840 15.a
RCFD
b. Trading liabilities (from Schedule RC-D) 3548 6,588 15.b
----------
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less 2332 614,659 16.a
----------
b. With a remaining maturity of more than one year through
three years A547 2,521 16.b
----------
c. With a remaining maturity of more than three years A548 0 16.c
----------
17. Not applicable
18. Bank's liability on acceptances executed and outstanding 2920 478,706 18.
----------
19. Subordinated notes and debentures (2) 3200 250,000 19.
----------
20. Other liabilities (from Schedule RC-G) 2930 1,113,549 20.
----------
21. Total liabilities (sum of items 13 through 20) 2948 14,787,298 21.
----------
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838 0 23.
----------
24. Common stock 3230 21,601 24.
----------
25. Surplus (exclude all surplus related to preferred stock) 3839 573,406 25.
----------
26. a. Undivided profits and capital reserves 3632 708,207 26.a
----------
b. Net unrealized holding gains (losses) on
available-for-sale securities 8434 1,039,227 26.b
----------
27. Cumulative foreign currency translation adjustments 3284 0 27.
----------
28. Total equity capital (sum of items 23 through 27) 3210 2,342,441 28.
----------
29. Total liabilities and equity capital (sum of items 21 and 28) 3300 17,109,739 29.
----------
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed RCFD Number
for the bank by independent external auditors as of any date during 1996 6724 N/A M.1
</TABLE>
1=Independent audit of the bank conducted in accordance with generally accepted
auditing standards by a certified public accounting firm which submits a
report on the bank
2=Independent audit of the bank's parent holding company conducted in accordance
with generally accepted auditing standards by a certified public accounting
firm which submits a report on the consolidated holding company (but not on
the bank separately)
3=Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4=Directors' examination of the bank performed by other external auditors (may
be required by state chartering authority)
5=Review of the bank's financial statements by external auditors
6=Compilation of the bank's financial statements by external auditors
7=Other audit procedures (excluding tax preparation work)
8=No external audit work
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(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
LETTER OF TRANSMITTAL EXHIBTI 99.1
OFFER TO EXCHANGE
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
FOR ANY AND ALL OUTSTANDING
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
OF
GALEY & LORD, INC.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON [ ], 1998, UNLESS EXTENDED BY
GALEY & LORD, INC. (THE "EXPIRATION DATE").
-------------------------
THE EXCHANGE AGENT
FOR THE EXCHANGE OFFER IS:
SUNTRUST BANK, ATLANTA
BY HAND OR OVERNIGHT COURIER:
SUNTRUST BANK, ATLANTA
C/O FIRST CHICAGO TRUST COMPANY
14 WALL STREET - 8TH FLOOR
NEW YORK, NEW YORK 10005
ATTENTION: DAVID M. KAYE, CORPORATE TRUST DIVISION
BY MAIL:
SUNTRUST BANK, ATLANTA
58 EDGEWOOD AVENUE - 4TH FLOOR ANNEX
ATLANTA, GEORGIA 30303
ATTENTION: DAVID M. KAYE, CORPORATE TRUST DIVISION
OR
BY FACSIMILE:
SUNTRUST BANK, ATLANTA
ATTENTION: DAVID M. KAYE, CORPORATE TRUST DIVISION
FACSIMILE NUMBER: (404) 332-3966
----------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THE
INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
<PAGE>
This Letter of Transmittal is to be used either if certificates of
Initial Notes are to be forwarded herewith to the Exchange Agent or if delivery
of Initial Notes is to be made by book-entry transfer to an account maintained
by the Exchange Agent at The Depository Trust Company ("DTC"), pursuant to the
procedures set forth in the section of the Prospectus entitled "The Exchange
Offer - Book-Entry Transfer." Delivery of documents to the Book-Entry Transfer
Facility does not constitute delivery to the Exchange Agent.
The term "Holder" with respect to the Exchange Offer means any person
in whose name Initial Notes are registered on the books of the Company or any
other person who has obtained a properly completed bond power from the
registered Holder or any person whose Initial Notes are held of record by DTC.
Holders whose Initial Notes are not immediately available or who cannot
deliver their Initial Notes and all other documents required hereby to the
Exchange Agent on or prior to the Expiration Date may tender their Initial Notes
according to the guaranteed delivery procedure set forth in the Prospectus under
the caption "The Exchange Offer - Guaranteed Delivery Procedure."
The undersigned must check the appropriate boxes at page 7 below and
sign this Letter of Transmittal to indicate the action the undersigned desires
to take with respect to the Exchange Offer.
-2-
<PAGE>
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned acknowledges receipt of the Prospectus dated [ ], 1998
(the "Prospectus") of Galey & Lord, Inc. (the "Company"), and this Letter of
Transmittal (the "Letter of Transmittal"), which together describe the Company's
offer (the "Exchange Offer") to exchange $1,000 in principal amount of 9 1/8%
Senior Subordinated Notes Due 2008 (the "Exchange Notes"), for each $1,000 in
principal amount of outstanding 9 1/8% Senior Subordinated Notes Due 2008 (the
"Initial Notes"). The terms of the Exchange Notes are substantially identical in
all respects (including principal amount, interest rate and maturity) to the
terms of the Initial Notes for which they may be exchanged pursuant to the
Exchange Offer, except that the Exchange Notes are freely transferable by
Holders thereof (except as provided herein or in the Prospectus) and are issued
without any right to registration under the Securities Act of 1933, as amended
(the "Securities Act"). Capitalized terms used herein but not defined herein
have the meanings ascribed to them in the Prospectus.
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of the Initial
Notes indicated in Box 1, below. The undersigned is the registered owner of all
the Initial Notes, and the undersigned represents that it has received from each
beneficial owner of tendered Initial Notes ("Beneficial Owner(s)") a duly
completed and executed form of "Instructions to Registered Holder from
Beneficial Owner" accompanying this Letter of Transmittal, instructing the
undersigned to take the action described in this Letter of Transmittal.
Subject to, and effective upon, the acceptance for exchange of the
Initial Notes tendered herewith, the undersigned hereby irrevocably exchanges,
assigns and transfers to, or upon the order of, the Company all right, title and
interest in and to such Initial Notes. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that said Exchange
Agent acts as the agent of the Company in connection with the Exchange Offer) to
cause the Initial Notes to be assigned, transferred and exchanged. The
undersigned agrees that acceptance of any and all validly tendered Initial Notes
by the Company and the issuance of Exchange Notes in exchange therefor shall
constitute performance in full by the Company of its obligations under the
Registration Rights Agreement and that the Company and the Note Guarantors shall
have no further obligations or liabilities thereunder.
The undersigned hereby represents and warrants that the undersigned
accepts the terms and conditions of the Exchange Offer and has full power and
authority to tender, exchange, assign and transfer the Initial Notes tendered
hereby and to acquire Exchange Notes issuable upon the exchange of such tendered
Initial Notes, and that, when such tendered Initial Notes are accepted for
exchange, the Company will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not subject to
any adverse claim. The undersigned and each Beneficial Owner will, upon request,
execute and deliver any additional documents deemed by the Exchange Agent or the
Company to be necessary or desirable to complete and give effect to the
transactions contemplated hereof.
The undersigned represents that it and each Beneficial Owner
acknowledge that the Exchange Offer is being made in reliance on an
interpretation by the staff of the Securities and Exchange Commission (the
"SEC"), not issued in connection with the Company or the Exchange Offer, to the
effect that the Exchange Notes issued pursuant to the Exchange Offer in exchange
for the Initial Notes may be offered for resale, resold and otherwise
transferred by Holders thereof (other than any such Holder which is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without compliance with the registration and prospectus delivery provisions
of the Securities Act of 1993, as amended (the "Securities Act"), provided that
such Exchange Notes are acquired in the ordinary course of such Holders'
business and such Holders have no arrangement or understanding with any person
to participate in the distribution of such Exchange Notes, and as to
broker-dealer prospectus delivery requirements, subject to the provisions of the
paragraph below. See "Shearman & Sterling," SEC No-Action Letter (available July
2, 1993). Any Holder who tenders in the Exchange Offer for the purpose of
participating in a distribution of the
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<PAGE>
Exchange Notes cannot rely on such interpretation by the staff of the SEC and
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction. See "Morgan
Stanley & Co., Inc." SEC No-Action Letter (available June 5, 1991), and "Exxon
Capital Holdings Corporation," SEC No-Action Letter (available May 13, 1988).
The undersigned hereby represents and warrants that (i) the Exchange
Notes or interests therein received by the undersigned and any Beneficial
Owner(s) pursuant to the Exchange Offer are being acquired by the undersigned
and any Beneficial Owner(s) in the ordinary course of business of the
undersigned and any Beneficial Owner(s) receiving such Exchange Notes, (ii)
neither the undersigned nor any Beneficial Owner(s) is participating, intends to
participate or has an arrangement or understanding with any person to
participate in the distribution of such Exchange Notes, (iii) the undersigned
and any Beneficial Owner(s) acknowledge that any person who is a broker-dealer
under the Exchange Act or is participating in the Exchange Offer for the purpose
of distributing the Exchange Notes must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with a
secondary resale of the Exchange Notes and any interest therein acquired by such
person and cannot rely on the position of the Staff of the SEC set forth in the
no-action letters that are discussed above, (iv) the undersigned and each
Beneficial Owner understand that a secondary resale transaction described in the
preceding clause (iii) and any resale of the Exchange Notes and any interest
therein obtained by the undersigned and in exchange for the Initial Notes
originally acquired by the undersigned directly from the Company should be
covered by an effective registration statement containing the selling security
holder information required by Item 507 and 508, as applicable, of Regulation
S-K of the SEC and (v) neither the undersigned nor any Beneficial Owner(s) is an
"affiliate," as defined in Rule 405 under the Securities Act, of the Company, or
if either the undersigned or any Beneficial Owner(s) is an affiliate, that the
undersigned and any such Beneficial Owner(s) will comply with the prospectus
delivery requirements of the Securities Act in connection with the disposition
of any Exchange Notes to the extent applicable. If the undersigned or any
Beneficial Owner(s) is a broker-dealer, the undersigned further represents that
(x) it and any such Beneficial Owner(s) acquired Initial Notes for the
undersigned's and any such Beneficial Owner's own account as a result of
market-making activities or other trading activities, (y) neither the
undersigned nor any Beneficial Owner(s) has entered into any arrangement or
understanding with the Company or any "affiliate" of the Company (within the
meaning of Rule 405 under the Securities Act) to distribute the Exchange Notes
to be received in the Exchange Offer and (z) the undersigned and any Beneficial
Owner(s) acknowledge that the undersigned and any Beneficial Owner(s) will
deliver a copy of a prospectus meeting the requirements of the Securities Act in
connection with any resale of Exchange Notes. By so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. The Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with the resales of Exchange Notes received in exchange for
Initial Notes where Initial Notes were acquired by such broker-dealer as a
result of market-making activities or other trading activities. The Company
intends to make the Prospectus (as it may be amended or supplemented) available
to any broker-dealer for use in connection with any such resale for a period of
180 days after the expiration date of the Exchange Offer.
The Exchange Offer is not being made to, nor will tenders be accepted
from or on behalf of, Holders of the Initial Notes in any jurisdiction in which
the making of the Exchange Offer or acceptance thereof would not be in
compliance with the laws of such jurisdiction or would otherwise not be in
compliance with any provision of any applicable security law. For purposes of
compliance with state blue sky laws, the undersigned represents and warrants to
the Company that the state in which each Beneficial Owner's principal business
office is located or the state of each Beneficial Owner's principal residence is
one of the states which is listed on Schedule A attached hereto. The undersigned
hereby represents and warrants that the information set forth in Box 2 is true
and correct.
The Exchange Offer is subject to certain conditions as set forth in the
Prospectus under the caption "The Exchange - Certain Conditions to the Exchange
Offer." The undersigned recognizes that as a result of these conditions (which
may be waived, in whole or in part, by the Company), as more particularly set
forth in the Prospectus, the Company may not be required to exchange any of the
Initial Notes rendered hereby, and in such event, the Initial Notes not
exchanged will be returned to the undersigned at the address indicated below.
The undersigned acknowledges that prior to the Exchange Offer, there has been no
public market for the Initial Notes or
-4-
<PAGE>
the Exchange Notes. The Company does not intend to list the Exchange Notes on a
national securities exchange. There can be no assurance that an active market
for the Exchange Notes will develop. The undersigned understands and
acknowledges that the Company reserves the right in its sole discretion to
purchase or make offers for any Initial Notes that remain outstanding subsequent
to the Expiration Date and, to the extent permitted by applicable law, purchase
Initial Notes in the open market, in privately negotiated transactions or
otherwise.
The undersigned understands that tenders of the Initial Notes pursuant
to any one of the procedures described in the Prospectus under the caption "The
Exchange Offer" and in the instructions hereto will constitute a binding
agreement between the undersigned and the Company in accordance with the terms
and subject to the conditions of the Exchange Offer.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Letters of Transmittal or Initial Notes tendered for
exchange, and of withdrawal of the tendered Initial Notes, will be determined by
the Company in its sole discretion, which determination shall be final and
binding. The Company reserves the absolute right to reject any and all tenders
of any particular Initial Notes not properly tendered or if, in the sole
judgment of the Company, (i) the Exchange Offer would violate any law, statute,
rule or regulation or an interpretation thereof of the SEC staff or (ii) any
governmental approval has not been obtained, which approval the Company deems
necessary for the consummation of the Exchange Offer. The Company also reserves
the absolute right to waive any defects of irregularities as to any particular
Initial Notes or conditions of the Exchange Offer either before or after the
Expiration Date (including the right to waive the ineligibility of any Holder
who seeks to tender Initial Notes in the Exchange Offer). The interpretation of
the terms and conditions of the Exchange Offer by the Company shall be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Initial Notes to exchange must be cured within such
reasonable period of time as the Company shall determine. None of the Company,
the Note Guarantors, the Exchange Agent nor any other person shall be under any
duty to give notification of any defect or irregularity with respect to any
tender of Initial Notes for exchange, nor shall any of them incur any liability
for failure to give such notification. Tenders of Initial Notes will not be
deemed to have been made until such irregularities have been cured or waived.
Any Initial Notes received by the Exchange Agent that are not properly tendered
and as to which the defects or irregularities have not been cured or waived will
be returned without cost to such Holder by the Exchange Agent to the tendering
Holders of Initial Notes, as soon as practicable following the Expiration Date.
All authority herein conferred or agreed to be conferred shall not be
affected by, and shall survive, the death or incapacity of the undersigned and
any Beneficial Owner(s), and every obligation of the undersigned or any
Beneficial Owner(s) shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned and any Beneficial Owner(s). The
undersigned also agrees that except as provided in the Prospectus and set forth
in Instruction 3 below, the Initial Notes tendered hereby cannot be withdrawn.
Certificates for all Exchange Notes delivered in exchange for tendered
Initial Notes and any Initial Notes delivered herewith but not exchanged, and
registered in the name of the undersigned, shall be delivered to the undersigned
at the address shown below the signature of the undersigned, unless otherwise
indicated on page 7.
-5-
<PAGE>
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF INITIAL
NOTES TENDERED HEREWITH" BELOW AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE
TENDERED THE INITIAL NOTES AND MADE THE REPRESENTATIONS DESCRIBED HEREIN AND IN
THE PROSPECTUS.
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
- ------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Signature(s) of Holder(s)
Date: , 1998
------------------
(Must be signed by registered Holder(s) exactly as name(s) appear(s) on
certificate(s) of Initial Notes. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, officer of a corporation, or other
person acting in a fiduciary or representative capacity, please set forth the
full title of such person.) See Instruction 4.
Name(s):
--------------------------------------------------------------------
- ----------------------------------------------------------------------------
(Please Print)
Capacity (full title):
---------------------------------------------------
Address:
------------------------------------------------------------------
- --------------------------------------------------------------------------
(Including Zip Code)
Area Code and Telephone No.:
----------------------------------------
Taxpayer Identification No.:
-----------------------------------------
GUARANTEE OF SIGNATURE(S)
(If Required - See Instruction 4)
Authorized Signature:
-------------------------------------------------------
Name:
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Title:
-----------------------------------------------------------------------
Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
Name of Firm:
-----------------------------------------------------------------
Area Code and Telephone No.:
-------------------------------------------------
Date: , 1998
----------
-6-
<PAGE>
[ ] CHECK HERE IF YOU ARE TENDERING INITIAL NOTES IN CERTIFICATED FORM AND
WISH TO RECEIVE AN INTEREST IN THE GLOBAL EXCHANGE NOTE AND COMPLETE THE
FOLLOWING:
Account Number:
-----------------------------------------------------
Transaction Code Number:
---------------------------------------------
[ ] CHECK HERE IF YOU ARE TENDERING INITIAL NOTES IN CERTIFICATED FORM AND
WISH TO RECEIVE EXCHANGE NOTES IN CERTIFICATED FORM.
[ ] CHECK HERE IF TENDERED INITIAL NOTES ARE ENCLOSED HEREWITH.
[ ] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE
BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution: [ ] The Depository Trust Company
----------
Account Number:
------------------------------------------------------
Transaction Code Number:
----------------------------------------------
[ ] CHECK HERE IF TENDERED INITIAL NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s):
----------------------------------------
Name of Eligible Institution that Guaranteed Delivery:
-----------------
If Delivered by Book-Entry Transfer:
-----------------------------------
Account Number:
---------------------------------------------------
[ ] CHECK HERE ONLY IF EXCHANGE NOTES OR UNEXCHANGED INITIAL NOTES DELIVERED
HEREWITH ARE TO BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED, OR TO THE
UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail Exchange Notes to:
Name:
-----------------------------------------------------------------
(Please Print)
Address:
-------------------------------------------------------------
-------------------------------------------------------------
Tax Identification Number:
-----------------------------------------
Social Security No.:
------------------------------------------------
-7-
<PAGE>
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
------------------------------------------------------------------
Address:
---------------------------------------------------------------
-8-
<PAGE>
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS
CAREFULLY BEFORE CHECKING ANY BOX BELOW
YOUR BANK OR BROKER CAN ASSIST YOU IN COMPLETING THIS FORM. THE
INSTRUCTIONS INCLUDED WITH THIS LETTER OF TRANSMITTAL MUST BE FOLLOWED.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THE PROSPECTUS
AND THIS LETTER OF TRANSMITTAL MAY BE DIRECTED TO THE EXCHANGE AGENT.
A Holder that is a participant in The Depository Trust Company's system
may utilize The Depository Trust Company's Automated Tender Offer Program to
tender Initial Notes.
List in Box 1 the Initial Notes to which this Letter of Transmittal
relates. If the space provided below is inadequate, information should be listed
on a separate signed schedule affixed hereto.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
BOX 1
DESCRIPTION OF INITIAL NOTES TENDERED HEREWITH
- ---------------------------------------- ------------------------ ------------------------ -------------------------
NAME(S) AND ADDRESS(ES) AGGREGATE PRINCIPAL
OF REGISTERED HOLDER(S) CERTIFICATE AMOUNT REPRESENTED PRINCIPAL AMOUNT
(PLEASE FILL IN) NUMBER(S)* BY INITIAL NOTES* TENDERED**
- ---------------------------------------- ------------------------ ------------------------ -------------------------
- ---------------------------------------- ------------------------ ------------------------ -------------------------
- ---------------------------------------- ------------------------ ------------------------ -------------------------
- ---------------------------------------- ------------------------ ------------------------ -------------------------
- ---------------------------------------- ------------------------ ------------------------ -------------------------
- ---------------------------------------- ------------------------ ------------------------ -------------------------
Total
- --------------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry Holders
** Unless otherwise indicated, the Holder will be deemed to have tendered the full aggregate principal amount
represented by such Initial Notes. See Instruction 3.
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
BOX 2
BENEFICIAL OWNERS(S)
- ------------------------------------------------------------ -----------------------------------------------------
<S> <C>
STATE OF PRINCIPAL RESIDENCE OR PRINCIPAL PLACE OF BUSINESS PRINCIPAL AMOUNT OF TENDERED INITIAL NOTES HELD
OF EACH BENEFICIAL OWNER OF TENDERED INITIAL NOTES FOR ACCOUNT OF BENEFICIAL OWNER
- ------------------------------------------------------------ -----------------------------------------------------
- ------------------------------------------------------------ -----------------------------------------------------
- ------------------------------------------------------------ -----------------------------------------------------
- ------------------------------------------------------------ -----------------------------------------------------
- ------------------------------------------------------------ -----------------------------------------------------
- ------------------------------------------------------------ -----------------------------------------------------
- ------------------------------------------------------------ -----------------------------------------------------
</TABLE>
-9-
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED
DELIVERY PROCEDURES.
Certificates for all physically delivered Initial Notes or confirmation
of any book-entry transfer to the Exchange Agent's account at the Book-Entry
Transfer Facility of Initial Notes tendered by book-entry transfer, as well as a
properly completed and duly executed copy of this Letter of Transmittal or
facsimile thereof, and any other documents required by this Letter of
Transmittal, must be received by the Exchange Agent at any of its addresses set
forth on the front page of this Letter of Transmittal prior to 5:00 p.m., New
York City time, on the Expiration Date (as defined in the Prospectus).
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE INITIAL NOTES
AND ANY OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE HOLDER, AND
EXCEPT AS OTHERWISE PROVIDED BELOW, THE DELIVERY WILL BE DEEMED MADE ONLY WHEN
ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, IT IS
SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED BE USED, PROPER
INSURANCE BE OBTAINED AND THE MAILING BE MADE SUFFICIENTLY IN ADVANCE OF THE
EXPIRATION DATE TO PERMIT DELIVERY TO THE EXCHANGE AGENT ON OR BEFORE THE
EXPIRATION DATE.
Holders who wish to tender their Initial Notes but whose Initial Notes
are not immediately available or who cannot deliver their Initial Notes and all
other required documents to the Exchange Agent prior to 5:00 p.m., New York City
time, on the Expiration Date or comply with book-entry transfer procedures on a
timely basis may tender their Initial Notes pursuant to the guaranteed delivery
procedure set forth in the Prospectus under "The Exchange Offer-Guaranteed
Delivery Procedure." Such Holders' tender may be effected if:
(a) such tender is made by or through an Eligible Institution
(as defined below);
(b) on or prior to the Expiration Date, the Exchange Agent has
received from such Eligible Institution (a) either a properly completed
and duly executed Letter of Transmittal (or a facsimile thereof) or a
properly transmitted Agent's Message and (b) a Notice of Guaranteed
Delivery, substantially in the form provided by the Company, by hand or
mail, or facsimile transmission (receipt confirmed by telephone and an
original delivered by guaranteed overnight courier) setting forth the
name and address of such Holder of Initial Notes and the amount of
Initial Notes tendered, stating that the tender is being made thereby
and guaranteeing that within three business days (as defined in the
Prospectus) after the Expiration Date, that the Initial Notes in proper
form for transfer or a Book-Entry Confirmation and all other documents
required by this Letter of Transmittal will be deposited by the
Eligible Institution with the Exchange Agent; and
(c) a Book-Entry Confirmation or the certificates relating to
the Initial Notes in registered form and all other documents required
by this Letter of Transmittal, are received by the Exchange Agent
within three business days (as defined in the Prospectus) after the
Expiration Date.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering Holders, by execution of this Letter of Transmittal (or
facsimile thereof), shall waive any right to receive notice of the acceptance of
the Initial Notes for exchange.
2. BENEFICIAL OWNER INSTRUCTIONS TO REGISTERED HOLDERS. Only a Holder in whose
name tendered Initial Notes are registered on the books of the registrar (or the
legal representative or attorney-in-fact of such registered Holder) may execute
and deliver this Letter of Transmittal. Any Beneficial Owner of tendered Initial
Notes who is not the registered Holder must arrange promptly with the registered
Holder to execute and deliver this Letter of Transmittal on his or her behalf
through the execution and delivery to the registered Holder of the "Instructions
to Registered Holder from Beneficial Owner" form accompanying this Letter of
Transmittal.
-10-
<PAGE>
3. PARTIAL TENDER; WITHDRAWALS.
If less than the entire principal amount of Initial Notes evidenced by
a submitted certificate is tendered, the tendering Holder should fill in the
principal amount tendered in the box entitled "Principal Amount Tendered." A
newly issued certificate for the principal amount of Initial Notes submitted but
not tendered will be sent to such Holder as soon as practicable after the
Expiration Date. All Initial Notes delivered to the Exchange Agent will be
deemed to have been tendered unless otherwise indicated.
Initial Notes tendered pursuant to the Exchange Offer may be withdrawn
at any time prior to the Expiration Date. For a withdrawal to be effective, a
written notice of withdrawal sent by telegram, facsimile transmission (receipt
confirmed by telephone and an original delivered by guaranteed overnight
courier) or letter must be received by the Exchange Agent at the address set
forth herein prior to the Expiration Date. Any such notice of withdrawal must
(i) specify the name of the person having tendered the Initial Notes to be
withdrawn (the "Depositor"), (ii) identify the Initial Notes to be withdrawn
(including the certificate number or numbers of such Initial Notes and the
principal amount of each such Initial Note), (iii) specify the principal amount
of Initial Notes to be withdrawn, (iv) include a statement that such Holder is
withdrawing his election to have such Initial Notes exchanged, (v) be signed by
the Holder in the same manner as the original signature on the Letter of
Transmittal by which such Initial Notes were tendered or as otherwise described
in the Prospectus (including any required signature guarantees) or be
accompanied by documents of transfer sufficient to have the Trustee under the
Indenture register the transfer of such Initial Notes into the name of the
person withdrawing the tender and (vi) specify the name in which any such
Initial Notes are to be registered, if different from that of the Depositor. The
Exchange Agent will return the properly withdrawn Initial Notes promptly
following receipt of notice of withdrawal. If Initial Notes have been tendered
pursuant to the procedure for book-entry transfer, any notice of withdrawal must
specify the name and number of the account at the Book-Entry Transfer Facility
to be credited with the withdrawn Initial Notes or otherwise comply with the
Book-Entry Transfer Facility procedure. All questions as to the validity, form
and eligibility of such notices of withdrawals, including time of receipt, will
be determined by the Company and such determination will be final and binding on
all parties.
4. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND
ENDORSEMENTS; GUARANTEE OF SIGNATURES.
If this Letter of Transmittal is signed by the registered Holder(s) of
the Initial Notes tendered Hereby, the signature must correspond with the
name(s) as written on the face of the certificates without alteration or any
change whatsoever.
If any of the Initial Notes tendered hereby are owned of record by two
or more joint owners, all such owners must sign this Letter of Transmittal.
If any of the Initial Notes tendered hereby are registered in several
names, it will be necessary to complete, sign and submit as many separate copies
of this Letter of Transmittal as there are different registrations of Initial
Notes.
When this Letter of Transmittal is signed by the registered Holder or
Holders (which term, for the purposes described herein, shall include the
Book-Entry Transfer Facility whose name appears on a security listing as the
owner of the Initial Notes) of Initial Notes listed and tendered hereby, no
endorsements of certificates or separate written instruments of transfer or
exchange are required.
If this Letter of Transmittal is signed by a person other than the
registered Holder or Holders of the Initial Notes listed, such Initial Notes
must be endorsed or accompanied by separate written instruments of transfer or
exchange in form satisfactory to the Company and duly executed by the registered
Holder, in either case signed exactly as the name or names of the registered
Holder or Holders appear(s) on the Initial Notes.
-11-
<PAGE>
If this Letter of Transmittal or any certificates or separate written
instruments of transfer or exchange are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporation or others
acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
Endorsements on certificates or signatures on separate written
instruments of transfer or exchange required by this Instruction 4 must be
guaranteed by an Eligible Institution.
Signatures on this Letter of Transmittal or notice of withdrawal need
not be guaranteed by an Eligible Institution, provided the Initial Notes are
tendered: (i) by a registered Holder of such Initial Notes or (ii) for the
account of an Eligible Institution.
For purposes of this Letter of Transmittal, an "Eligible Institution"
shall mean any bank, broker, dealer, credit union, savings association, clearing
agency or other institution that is a member of a recognized signature guarantee
medallion program within the meaning of Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended.
5. TRANSFER TAXES.
The Company will pay all transfer taxes, if any, applicable to the
exchange of Initial Notes pursuant to the Exchange Offer. If, however,
certificates representing Exchange Notes or Initial Notes for principal amounts
not tendered or accepted for exchange are to be delivered to, or are to be
issued in the name of, any person other than the registered Holder of the
Initial Notes tendered, or if tendered Initial Notes are registered in the name
of any person other than the person signing the Letter of Transmittal, or if a
transfer tax is imposed for any reason other than the exchange of Initial Notes
pursuant to the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered Holder or any other persons) will be payable
by the tendering Holder. If satisfactory evidence of payment of such taxes or
exemption therefrom is not submitted with the Letter of Transmittal, the amount
of such transfer taxes will be billed directly to such tendering Holder.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Initial Notes listed in this Letter of
Transmittal.
6. MUTILATED, LOST, STOLEN OR DESTROYED INITIAL NOTES.
Any Holder whose Initial Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions.
7. ACCEPTANCE OF TENDERED INITIAL NOTES AND ISSUANCE OF EXCHANGE NOTES; RETURN
OF INITIAL NOTES.
Subject to the terms and conditions of the Exchange Offer, the Company
will accept for exchange all validly tendered Initial Notes promptly after the
Expiration Date and will issue Exchange Notes therefor promptly after acceptance
of the Initial Notes. For purposes of the Exchange Offer, the Company shall be
deemed to have accepted tendered Initial Notes when, as and if the Company has
given written or oral notice thereof to the Exchange Agent. If any tendered
Initial Notes are not exchanged pursuant to the Exchange Offer for any reason,
such unexchanged Initial Notes will be returned, without expense, to the
undersigned at the address indicated above.
-12-
<PAGE>
8. SUBSTITUTE FORM W-9.
Each Holder of Initial Notes whose Initial Notes are accepted for
exchange (or any other such payee) is required to provide the Exchange Agent
with a correct taxpayer identification number ("TIN"), generally the Holder's
Social Security or federal employer identification number, and certain other
information, on a Substitute Form W-9, a form of which accompanies this Letter
of Transmittal, and to certify that the Holder (or other payee) is not subject
to backup withholding. Failure to provide the information on the Substitute Form
W-9 may subject the Holder (or other payee) to a penalty imposed by the Internal
Revenue Service and 31% federal income tax backup withholding on payments made
in connection with the Exchange Notes. The box in Part 3 of the Substitute Form
W-9 may be checked if the surrendering Holder of Initial Notes (or other payee)
has not been issued a TIN and has applied for a TIN or intends to apply for a
TIN in the near future. If the box in part 3 is checked, the Holder of Initial
Notes (or other payee) must also complete the Certificate of Awaiting Taxpayer
Identification Number accompanying this Letter of Transmittal in order to avoid
backup withholding. Notwithstanding that the box in part 3 is checked and the
Certificate of Awaiting Taxpayer Identification Number is completed, the
Exchange Agent will withhold 31% of all payments made prior to the time a
properly certified TIN is provided to the Exchange Agent.
The Holder of Initial Notes is required to give the Exchange Agent the
TIN (e.g., social security number or employer identification number) of the
record owner of the Initial Notes. If the Initial Notes are in more than one
name or are not in the name of the beneficial owner, consult the enclosed
"Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
Certain Holders of Initial Notes (or other payees) (including, among
others, all corporations and certain foreign individuals) are not subject to
these backup withholding and reporting requirements. However, exempt Holders of
Initial Notes (or other payees) should indicate their exempt status on
Substitute Form W-9. For example, a corporation must complete the Substitute
Form W-9, providing its TIN and indicating that it is exempt from backup
withholding. In order for a foreign individual to qualify as an exempt
recipient, the Holder (or other payee) must submit a Form W-8, signed under
penalties of perjury, attesting to that individual's exempt status. A Form W-8
can be obtained from the Exchange Agent. See the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for more
instructions.
-13-
<PAGE>
Schedule A
California
Colorado
Connecticut
Florida
Georgia
Illinois
Kansas
Massachusetts
Minnesota
New Hampshire
New Jersey
New York
Ohio
Pennsylvania
South Carolina
Texas
Wisconsin
<PAGE>
INSTRUCTIONS TO REGISTERED HOLDER
FROM BENEFICIAL OWNER
OF
GALEY & LORD, INC.
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
The undersigned hereby acknowledges receipt of the Prospectus dated [
], 1998 (the "Prospectus") of Galey & Lord, Inc. (the "Company"), and the
accompanying Letter of Transmittal (the "Letter of Transmittal"), that together
constitute the Company's offer (the "Exchange Offer") to exchange $1,000 in
principal amount of its 9 1/8% Senior Subordinated Notes Due 2008 (the "Exchange
Notes") for each $1,000 in principal amount of its outstanding 9 1/8% Senior
Subordinated Notes Due 2008 (the "Initial Notes"). Capitalized terms used herein
but not defined herein have the meaning ascribed to them in the Prospectus.
This will instruct you, the registered Holder, as to the action to be
taken by you relating to the Exchange Offer with respect to the Initial Notes
held by you for the account of the undersigned.
The aggregate face amount of the Initial Notes held by you for the
account of the undersigned is (FILL IN AMOUNT):
$ of the 9 1/8% Senior Subordinated
------------------------
Notes Due 2008.
With respect to the Exchange Offer, the undersigned hereby instructs
you (CHECK APPROPRIATE BOX):
[ ] To TENDER the following Initial Notes held by you for the
account of the undersigned (INSERT PRINCIPAL AMOUNT OF INITIAL
NOTES TO BE TENDERED,* IF ANY):
$ of the 9 1/8% Senior Subordinated
------------------------
Notes Due 2008.
* The minimum permitted tender is $1,000 in principal amount
of Initial Notes. All other tenders must be in integral
multiples of $1,000 of principal amount.
[ ] NOT to TENDER any Initial Notes held by you for the account
of the undersigned.
If the undersigned instructs you to tender the Initial Notes held by
you for the account of the undersigned, it is understood that you are authorized
(a) to make, on behalf of the undersigned (and the undersigned, by its signature
below, hereby makes to you), the representations and warranties contained in the
Letter of Transmittal that are to be made with respect to the undersigned as a
Beneficial Owner (as defined in the Letter of Transmittal), including, but not
limited to, representations to the effect that (i) the undersigned's principal
residence or principal business office is in the state of (FILL IN STATE)
which is listed on Schedule A attached to the
Letter of Transmittal, (ii) the undersigned is acquiring the Exchange Notes
or interests therein in the ordinary course of business of the undersigned,
(iii) the undersigned is not participating, does not intend to participate, and
has no arrangement or understanding with any person to participate, in the
distribution of the Exchange Notes, (iv) the undersigned acknowledges that any
person who is a broker-dealer registered under the Securities Exchange Act of
1934, as amended, or is participating in the Exchange Offer for the purpose of
distributing the Exchange Notes must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with a secondary
resale of the Exchange Notes or any interest therein acquired by such person and
cannot rely on the position of the Staff of the Securities and Exchange
Commission ("SEC") set forth in the no-action letters that are discussed in the
section of the Prospectus entitled "The Exchange Offer" and the Letter of
Transmittal; (v) the undersigned understands that a secondary resale transaction
described in clause (iv) above and any resale of the Exchange Notes and any
interest therein obtained by the undersigned in exchange for the Initial Notes
originally acquired by the undersigned directly from the Company should be
covered by an effective registration statement containing the selling security
holder information required by Items 507 and 508, as applicable, of Regulation
S-K of the SEC, and (vi) except as otherwise disclosed in writing herewith, the
undersigned is not an "affiliate," as defined in Rule 405 under the Securities
Act of 1933, as amended, (the "Securities Act") of the Company; (b) to agree, on
behalf of the undersigned, as set forth in the Letter of Transmittal and (c) to
take such other action as may be necessary under the Prospectus or the Letter of
Transmittal to effect the valid tender of such Initial Notes. If the undersigned
is a broker-dealer, the undersigned further (x) represents that it acquired
Initial Notes for the undersigned's own account as a result of market-making
activities or other trading activities, (y) represents that it has not entered
into any arrangement or understanding with the Company or any "affiliate" of the
Company (within the meaning of Rule 405 under the Securities Act) to distribute
the Exchange Notes to be received in the Exchange Offer and (z) acknowledges
that it will deliver a copy of a Prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes.
SIGN HERE
<PAGE>
Name of Beneficial Owner(s):
--------------------------------------------------
Signature(s):
-------------------------------------------------------------
Name(s) (PLEASE PRINT):
---------------------------------------------------
Address:
--------------------------------------------------------------------
--------------------------------------------------------------------
Telephone Number:
-----------------------------------------------------------
Taxpayer Identification or Social Security Number:
--------------------------
Date:
-----------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
PAYOR'S NAME: SunTrust Bank, Atlanta, as Exchange Agent
====================================================================================================================
SUBSTITUTE FORM W-9 Part 1 Social Security number(s) Employer
PLEASE PROVIDE YOUR TIN IN THE BOX Identification Number
Department of the Treasury Internal AT RIGHT AND CERTIFY BY SIGNING AND
Revenue Service DATING BELOW ____________________________
---------------------------------------------------------------------------
Payor's Request for Taxpayer Part 2
Identification Number ("TIN") CERTIFICATION: Under penalties of perjury, I certify that:
(1) The number shown on this form
is my correct taxpayer
identification number (or I am
waiting for a number to be
issued for me), and
(2) I am not subject to backup
withholding because: (a) I am
exempt from backup
withholding, or (b) I have not
been notified by the Internal
Revenue Service (IRS) that I
am subject to backup
withholding as a result of a
failure to report all interest
or dividends, or (c) the IRS
has notified me that I am no
longer subject to backup
withholding.
CERTIFICATION INSTRUCTIONS: You must cross out item (2) above if you
have been notified by the IRS that you are currently subject to backup
withholding because of underreporting interest or dividends on your tax
return.
---------------------------------------------------------------------------
Signature Part 3
Date_______________ Awaiting TIN 9
==============================================================================================================
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50 PENALTY
IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP WITHHOLDING OF 31%
OF ANY CASH PAYMENTS MADE TO YOU. PLEASE REVIEW THE ENCLOSED GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM
W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (i) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (ii)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable cash payments made to me thereafter will be withheld until I
provide a taxpayer identification number.
------------------------------- -----------------
Signature Date
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO
GUIDE THE PAYER. -- Social Security Numbers have nine digits separated by two
hyphens: i.e. 000-00-0000. Employer Identification Numbers have nine digits
separated by only one hyphen: i.e. 00-0000000. The table below will help
determine the number to give the payer.
<TABLE>
<CAPTION>
<S> <C> <C>
====================================================================================================================
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF --
- -----------------------------------------------------------------------------------------------------------------------------------
1. An individual's account The individual
- ----------------------------------------------------------------------------------------------------------------------------------
2. Two or more individuals (joint account) The actual owner of the account or, if combined
funds, any one of the individuals (1)
- ----------------------------------------------------------------------------------------------------------------------------------
3. Custodian account of a minor The minor (2)
- ------------------------------------------------------------------------------------------------------------------==
4. (a) The usual revocable savings trust The grantor-trustee (1)
account (grantor is also trustee)
(b) So-called trust account that is not a The actual owner (1)
legal or valid trust under State law.
- ----------------------------------------------------------------------------------------------------------------------
5. Sole proprietorship account The owner (3)
- ---------------------------------------------------------------------------------------------------------------------
6. A valid trust, estate, or pension trust The legal entity (Do not furnish the identifying
number of the personal representative or trustee
unless the legal entity itself is not designated
in the account title.)(4)
- ---------------------------------------------------------------------------------------------------------------------------
7. Corporate account The corporation
- --------------------------------------------------------------------------------------------------------------------------
8. Religious, charitable, or educational organization The organization
account
- -----------------------------------------------------------------------------------------------------------------------------
9. Partnership The partnership
- -----------------------------------------------------------------------------------------------------------------------------
10. Association, club or other tax-exempt organization The organization
- ------------------------------------------------------------------------------------------------------------------------
11. A broker or registered nominee The broker or nominee
- --------------------------------------------------------------------------------------------------------------------------
12. Account with the Department of Agriculture in the The public entity
name of a public entity (such as a State or local
government, school district, or prison) that receives
agricultural program payments
====================================================================================================================
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's Social Security Number.
(3) Show the name of the owner. You may also enter your business name. You may
use your Social Security Number or Employer Identification Number.
(4) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
OBTAINING A NUMBER
If you don't have a Taxpayer Identification Number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on broker transactions
include the following:
<TABLE>
<CAPTION>
<S> <C>
(i) A corporation.
(ii) A financial institution.
(iii) An organization exempt from tax under Section 501(a), or an individual retirement plan.
(iv) The United States or any agency or instrumentality thereof.
(v) A State, the District of Columbia, a possession of the United States, or any subdivision or
instrumentality thereof.
(vi) A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof.
(vii) An international organization or any agency or instrumentality thereof.
(viii) A registered dealer in securities or commodities registered in the
United States or a possession of the United States.
(ix) A real estate investment trust.
(x) A common trust fund operated by a bank under Section 584(a). (xi) An entity
registered at all times under the Investment Company Act of 1940.
(xii) A foreign central bank of issue.
(xiii) A person registered under the Investment Advisors Act of 1940 who regularly acts as a broker.
Payments of interest not generally subject to backup withholding include the
following:
(i) Payments to nonresident aliens subject to withholding under Section 1441.
(ii) Payments to partnerships not engaged in a trade or business in the
United States and which have at least one nonresident partner.
(iii) Payments made by certain foreign organizations.
</TABLE>
Exempt payees described above should file Substitute Form W-9 to avoid possible
erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR
TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, SIGN AND
DATE THE FORM AND RETURN IT TO THE PAYER.
PRIVACY ACT NOTICE -- Section 6109 requires most recipients of dividend,
interest, or other payments to give Taxpayer Identification Numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 31%
of taxable interest, dividend, and certain other payments to a payee who does
not furnish a Taxpayer Identification Number to a payer. Certain penalties may
also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER -- If you
fail to furnish your Taxpayer IDENTIFICATION NUMBER to a payer, you are
subject to a penalty of $50 for each such failure unless your failure
is due to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING -- If
you make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
<PAGE>
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION -- Falsifying
certifications or affirmations may subject you to criminal penalties
including fines and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR
TAX CONSULTANT OR THE IRS.
NOTICE OF GUARANTEED DELIVERY EXHIBIT 99.2
WITH RESPECT TO
GALEY & LORD, INC.
9 1/8% SENIOR SUBORDINATED NOTES DUE 2008
This form must be used by a Holder of the 9 1/8% Senior Subordinated
Notes Due 2008 (the "Initial Notes") of Galey & Lord, Inc. (the "Company"), who
wishes to tender Initial Notes to the Exchange Agent pursuant to the guaranteed
delivery procedures described in "The Exchange Offer B Guaranteed Delivery
Procedure" of the Prospectus dated _________, 1998 (the "Prospectus") and in
Instruction 1 to the Letter of Transmittal. Any Holder who wishes to tender
Initial Notes pursuant to such guaranteed delivery procedures must ensure that
the Exchange Agent receives this Notice of Guaranteed Delivery prior to the
Expiration Date of the Exchange Offer. Capitalized terms not defined herein have
the meanings ascribed to them in the Prospectus or the Letter of Transmittal.
To: SunTrust Bank, Atlanta - Exchange Agent
BY HAND OR OVERNIGHT COURIER:
SunTrust Bank, Atlanta
c/o First Chicago Trust Company
14 Wall Street - 8th Floor
New York, New York 10005
Attention: David M. Kaye, Corporate Trust Division
BY MAIL:
SunTrust Bank, Atlanta
58 Edgewood Avenue - 4th Floor Annex
Atlanta, Georgia 30303
Attention: David M. Kaye, Corporate Trust Division
BY FACSIMILE:
SunTrust Bank, Atlanta
Facsimile Number: (404) 332-3966
Attention: David M. Kaye, Corporate Trust Division
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. PLEASE READ THE ACCOMPANYING
INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and
subject to the conditions set forth in the Prospectus and the related Letter of
Transmittal, receipt of which is hereby acknowledged, the principal amount of
Initial Notes specified below pursuant to the guaranteed delivery procedures set
forth in the Prospectus and in Instruction 1 of the Letter of Transmittal. The
undersigned hereby tenders the Initial Notes listed below:
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CERTIFICATE NUMBER(S) (IF KNOWN) AGGREGATE PRINCIPAL
OF INITIAL NOTES AMOUNT TENDERED
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Name of Tendering Holder:
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Signature(s):
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Name(s)(PLEASE PRINT):
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Address:
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Telephone Number:
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Date: , 1998
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GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a bank, broker, dealer, credit union, savings
association, clearing agency or other institution that is a member of a
recognized signature guarantee medallion program or is otherwise an
"eligible guarantor institution" within the meaning of Rule 17Ad-15
under the Securities Exchange Act of 1934, as amended, guarantees
deposit with the Exchange Agent of the Letter of Transmittal, together
with the Initial Notes tendered hereby, in proper form for transfer and
any other required documents, all by 5:00 p.m., New York City time,
before the third business day (as defined in the Prospectus) following
the Expiration Date.
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SIGN HERE
Name of firm (PLEASE PRINT):
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Authorized Signature:
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Name (PLEASE PRINT):
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Address:
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Telephone Number:
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Date:
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DO NOT SEND TENDERED INITIAL NOTES WITH THIS FORM. ACTUAL DELIVERY OF TENDERED
INITIAL NOTES MUST BE MADE IN ACCORDANCE WITH, AND BE ACCOMPANIED BY, AN
EXECUTED LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS.
INSTRUCTIONS FOR NOTICE OF GUARANTEED DELIVERY
1. DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY. A properly completed
and duly executed copy of this Notice of Guaranteed Delivery and any other
documents required by this Notice of Guaranteed Delivery must be received by the
Exchange Agent at its address set forth herein prior to the Expiration Date. The
method of delivery of this Notice of Guaranteed Delivery and any other required
documents to the Exchange Agent is at the election and risk of the Holder, and
the delivery will be deemed made only when actually received by the Exchange
Agent. If delivery is by mail, registered mail with return receipt requested,
properly insured, is recommended. Instead of delivery by mail, it is recommended
that the Holder use an overnight or hand delivery service. Facsimile
transmission is permissible, provided, however, that receipt is confirmed by
telephone and an original is delivered by guaranteed overnight courier. In all
cases, sufficient time should be allowed to assure timely delivery. For a
description of the guaranteed delivery procedure, see the section set forth in
the Prospectus entitled "The Exchange Offer - Guaranteed Delivery Procedure" and
Instruction 1 of the Letter of Transmittal.
2. SIGNATURES ON THIS NOTICE OF GUARANTEED DELIVERY. If this Notice of
Guaranteed Delivery is signed by the registered Holder(s) of the tendered
Initial Notes referred to herein, the signature must correspond with the name(s)
written on the face of the tendered Initial Notes without alteration or any
change whatsoever.
If this Notice of Guaranteed Delivery is signed by a person other than
the registered Holder(s) of any tendered Initial Notes listed, this Notice of
Guaranteed Delivery must be accompanied by appropriate bond powers, signed as
the name of the registered Holder(s) appears on the tendered Initial Notes.
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If this Notice of Guaranteed Delivery is signed by a trustee, executor,
administrator, guardian, attorney-in-fact, office of a corporation, or other
person acting in a fiduciary or representative capacity, such person should so
indicate when signing, and, unless waived by the Company, proper evidence
satisfactory to the Company of their authority so to act must be submitted.
3. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus may be
directed to the Exchange Agent at the address specified in the Prospectus.
Holders also may contact their broker, dealer, commercial bank, trust company,
or other nominee for assistance concerning the Exchange Offer.
