Execution Copy
AMENDMENT NO. 4 AND WAIVER
This AMENDMENT NO. 4 AND WAIVER dated as of May 15, 2002 (this
"Amendment and Waiver"), among Warnaco Inc., a Delaware corporation, as debtor
and debtor in possession under chapter 11 of the Bankruptcy Code (the
"Borrower"), The Warnaco Group, Inc. ("Group") and the Domestic Subsidiaries (as
defined in the Credit Agreement referred to below) of Group, as debtors and
debtors in possession under chapter 11 of the Bankruptcy Code (the "Subsidiary
Guarantors" and, together with Group, the "Guarantors"), the Lenders (as defined
in the Credit Agreement referred to below) party hereto and the Administrative
Agent (as defined below) amends certain provisions of the Senior Secured
Super-Priority Debtor In Possession Revolving Credit Agreement dated as of June
11, 2001, as amended by the Amendment and Waiver, dated as of August 27, 2001,
Amendment No. 2 dated as of December 21, 2001, and Amendment No. 3 and Waiver
dated as of February 5, 2002, in each case among the Borrower, Group and the
Subsidiary Guarantors, the Lenders, the Issuers (as defined therein), Citibank,
N.A., as administrative agent for the Lenders and the Issuers (in such capacity,
the "Administrative Agent"), and Xxxxxxx Xxxxx Xxxxxx Inc., The Bank of Nova
Scotia and X.X. Xxxxxx Securities, Inc. as joint lead arrangers (such agreement,
the "Credit Agreement").
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the Lenders, the Issuers and the
Administrative Agent are parties to the Credit Agreement and the undersigned
Lenders constitute the Requisite Lenders;
WHEREAS, the Borrower has requested the Requisite Lenders and the
Administrative Agent agree, and the Requisite Lenders and the Administrative
Agent have agreed to amend the Credit Agreement to (a) permit the incurrence of
Indebtedness by Group or one of its Subsidiaries for the sole purposes of
financing insurance premiums payable by Group or such Subsidiary and the
granting of Liens in connection therewith, which incurrence of Indebtedness and
granting of such Lien would otherwise be prohibited by the terms of the Credit
Agreement; and (b) permit the incurrence by Group or certain of its Subsidiaries
of Indebtedness and Liens under certain Approved Sales Agent's Contracts (as
defined below), in each case on the terms and as more fully set forth herein;
WHEREAS, pursuant to Section 13.1 (Amendments, Waiver, Etc.) of the
Credit Agreement, the consent of the Requisite Lenders is required to amend the
provisions of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and obligations herein set forth and other good and valuable consideration, the
adequacy and receipt of which are hereby acknowledged, and in reliance upon the
representations, warranties and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
Section 1. Definitions. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the Credit
Agreement.
Section 2. Amendments to Credit Agreement. Effective as of the
Effective Date and subject to the terms and conditions set forth herein the
Credit Agreement is hereby amended as follows:
(a) Section 1.1 is amended by inserting the following definition in the
correct alphabetical order:
"Approved Sales Agent's Contract" means a contract
entered into by and between Group and/or any Subsidiaries
thereof and a third party agent to conduct certain Asset Sales
permitted under the terms of this Agreement and pursuant to
which: (a) the Sales Agent agrees to sell assets on behalf of
Group and/or any Subsidiary thereof, (b) prior to any such
sale the Sales Agent is obligated to pay to Group or such
Subsidiary consideration for such assets that is, in the case
of assets that are a component of the Borrowing Base, an
amount that is not less than the product of the Advance Rate
for such asset and the value of such asset (valued at the
lower of cost and market on a first-in, first out basis), and
(c) not later than 20 days after the sale thereof, the Sales
Agent is obligated to pay to Group and/or such Subsidiary the
balance of the consideration for such assets such that the
aggregate consideration paid in cash to Group and/or its
Subsidiaries is not less than the aggregate fair market value
of such assets.
"Insurance Assets" means sums payable to the insured
under an insurance policy, including, any gross unearned
premiums and any payment on account of loss which results in a
reduction of unearned premium with respect to the underlying
policy.
"Sales Agent" means a Person that is not an Affiliate
of Group or any of its Subsidiaries and that has entered into
an Approved Sales Agent's Contract with Group and/or any of
its Subsidiaries.
(b) Section 8.1 (Indebtedness) is amended by inserting the following as
new clauses (j) and (k) immediately after clause (i):
(j) Indebtedness incurred by Group or one of its
Subsidiaries for the sole purpose of financing the payment of
insurance premiums payable by Group or such Subsidiary in an
aggregate amount not to exceed $15,000,000 at any one time
outstanding; and
(k) Indebtedness incurred by Group and/or any of its
Subsidiaries pursuant to Approved Sales Agent's Contracts in
an aggregate amount not to exceed the amount actually received
by Group and/or any of its Subsidiaries pursuant to such
Approved Sales Agent's Contracts at the time of the incurrence
of such Indebtedness up to a maximum aggregate amount of
$30,000,000 at any one time outstanding.
(c) Section 8.2 (Liens, Etc.) is amended by inserting the following as
new clauses (j) and (k) immediately after clause (i):
(j) Liens securing Indebtedness incurred under clause
(j) of Section 8.1; provided that such Liens shall only
encumber Insurance Assets of Group or any of its Subsidiaries
that relate directly to the Indebtedness such assets secure
and that have an aggregate value not in excess of $15,000,000;
and
(k) Liens in favor of a Sales Agent securing
Indebtedness permitted to be incurred under clause (k) of
Section 8.1; provided that (i) the proposed sale of such
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assets is otherwise permitted under this Agreement, (ii) the
Lien is solely with respect to assets that are the subject of
the related Approved Sales Agent's Contract, the proceeds
thereof and the insurance proceeds with respect thereto, (iii)
all assets that are subject to such Lien and that would have
otherwise formed part of the Borrowing Base shall no longer be
calculated as part of the Borrowing Base, and (iv) all
consideration required to be paid by the Sales Agent to Group
and/or one of its Subsidiaries in respect of such assets has
been received by Group and/or one of its Subsidiaries and such
amounts have been applied to partially prepay the Loans in
accordance with the terms of the Credit Agreement.
Section 3. Waiver and Consent.
(a) The Lenders constituting the Requisite Lenders hereby acknowledge
and agree that the sales of inventory pursuant to an Approved Sales Agent's
Contract constitute a permitted Asset Sale within the meaning of clause (a) of
Section 8.4 of the Credit Agreement.
(b) The Lenders constituting the Requisite Lenders hereby consent to
the release of such portion of the Collateral in respect of which a Lien is
granted pursuant to Section 2(c) above solely to the extent and for the period
in which the applicable third party has a Lien on such assets (to the extent
hereby consented to by the Requisite Lenders); provided, however, that at any
time such assets or any portion thereof are no longer subject to the Lien
permitted by this Amendment and Waiver and have not otherwise been disposed of
pursuant to the terms of the Credit Agreement, Group shall, and shall cause each
of its Subsidiaries to take any actions or execute any documents deemed
reasonably necessary by the Administrative Agent to perfect a security interest
in such assets.
(c) The Lenders constituting the Requisite Lenders hereby waive any
Default or Event of Default that may have been caused by the failure of Group to
deliver its annual Financial Statements for the Fiscal Year ended December 2001
prior to the 95th day following such Fiscal Year end as required by Section
6.1(d) of the Credit Agreement; provided, however, that if, as of June 30, 2002,
Group has not delivered its Financial Statements for the Fiscal Year ended
December 2001 in full compliance with Section 6.1(d) of the Credit Agreement,
the waiver contained in this clause (c) shall be deemed null and void and shall
cease to be of any further force or effect as of the date of this Amendment and
Waiver.
Section 4. Authorization of Administrative Agent. The Requisite Lenders
hereby direct the Administrative Agent to execute and deliver to Group and/or
any of its Subsidiaries all releases or other documents that the Administrative
Agent deems reasonably necessary to effect the transactions contemplated and
consented to hereby, in each case at the request and sole expense of the Loan
Parties, including, but not limited to, and in each case in the sole discretion
of the Administrative Agent:
(i) providing instructions to certain Restricted Banks to
deviate from the terms of the standing Restricted
Account Letter to the extent necessary to pay over
proceeds of Asset Sales that are due and owing to a
Sales Agent pursuant to an Approved Sales Agent's
Contract, to such Sales Agent; and
(ii) consenting to the name of a Sales Agent appearing on the
face of the insurance policy or such other documentation
in order to reflect such Sales Agent's interest in the
insurance that relates to the assets which are the
subject of the related Approved Sales Agent's Contract.
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Section 5. Conditions Precedent to the Effectiveness of this Amendment
and Waiver. This Amendment and Waiver and shall become effective as of the date
when the following conditions precedent have been satisfied (the "Effective
Date"):
(a) Certain Documents. The Administrative Agent shall have received on
or before the Effective Date all of the following, all of which shall be in form
and substance satisfactory to the Administrative Agent:
(i) in sufficient executed copies for each of the Lenders,
this Amendment and Waiver executed by the Borrower, the
Guarantors and the Lenders constituting the Requisite
Lenders; and
(ii) evidence satisfactory to the Administrative Agent that
all other consents and approvals necessary in connection
the matters contemplated hereby, including, without
limitation, the consent required under the Prepetition
Credit Facilities or from the Bankruptcy Court, shall
have been obtained and be in effect.
(b) Representations and Warranties. Each of the representations and
warranties made by the Borrower or any Guarantor in or pursuant to the Credit
Agreement and the other Loan Documents to which the Borrower or any Guarantor is
a party or by which the Borrower, or any Guarantor is bound, shall be true and
correct in all material respects, after giving effect to the terms of this
Amendment and Waiver, on and as of the Effective Date (other than
representations and warranties in any such Loan Document which expressly speak
as of a different date).
(c) No Events of Default. No Event of Default or Default shall have
occurred and be continuing on the Effective Date after giving effect to the
terms of this Amendment and Waiver.
Section 6. Representations and Warranties. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that as of
the date hereof, after giving effect to the terms of this Amendment and Waiver,
(x) no Event of Default or Default under the Credit Agreement shall have
occurred and be continuing and (y) all of the representations and warranties of
the Loan Parties contained in Article IV of the Credit Agreement and in any
other Loan Document continue to be true and correct as of the date of execution
hereof in all material respects, as though made on and as of such date (other
than representations and warranties in any such Loan Document which expressly
speak as of a different date).
Section 7. Costs and Expenses. The Borrower agrees to pay on demand in
accordance with the terms of Section 13.3 of the Credit Agreement all costs and
expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment and Waiver and all other
Loan Documents entered into in connection herewith, including the reasonable
fees, expenses and disbursements of Weil, Gotshal & Xxxxxx LLP, counsel for the
Administrative Agent with respect thereto.
Section 8. Reference to and Effect on the Loan Documents.
(a) Upon the effectiveness of this Amendment and Waiver, on and after
the date hereof, each reference in the Credit Agreement to "this Agreement",
"hereunder", "hereof" or words of like import, and each reference in each other
Loan Document, shall mean and be a reference to the Credit Agreement as amended
hereby.
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(b) Except as specifically amended hereby, all of the terms of the
Credit Agreement and all other Loan Documents shall remain unchanged and in full
force and effect.
(c) The execution, delivery and effectiveness of this Amendment and
Waiver shall not, except as expressly provided herein, operate as a amendment or
waiver of any right, power or remedy of any Lender, any Issuer or the
Administrative Agent under the Credit Agreement or any of the Loan Documents,
nor constitute an amendment or waiver of any provision of the Credit Agreement
or any of the Loan Documents.
(d) This Amendment and Waiver is a Loan Document.
Section 9. Titles. The Section titles contained in this Amendment and
Waiver are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
Section 10. Execution in Counterparts. This Amendment and Waiver may be
executed and delivered in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which taken together shall constitute one
and the same original agreement.
Section 11. Notices. All communications and notices to the
Administrative Agent hereunder shall be given as provided in the Credit
Agreement.
Section 12. Severability. If any term or provision set forth in this
Amendment and Waiver shall be invalid or unenforceable, the remainder of this
Amendment and Waiver, or the application of such terms or provisions to persons
or circumstances, other than those to which it is held unenforceable, shall not
in any way be affected or impaired thereby.
Section 13. Successors. The terms of this Amendment and Waiver shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective successors or assigns.
Section 14. Governing Law. This Amendment and Waiver shall be
interpreted, and the rights and liabilities of the parties determined, in
accordance with the internal law of the State of New York.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Waiver to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
WARNACO INC.,
as Borrower
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: SVP-CFO
CITIBANK, N.A.,
as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name:
Title:
Lenders
CITIBANK, N.A.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
THE CHASE MANHATTAN BANK,
as a Lender
By:
----------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Duly Authorized Signatory
THE CIT GROUP/COMMERCIAL
SERVICES, INC.,
as a Lender
By:
----------------------------------
Name:
Title:
SOCIETE GENERALE,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
FLEET NATIONAL BANK,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. Vice President
THE BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxxx Xxxxx Jr.
----------------------------------
Name: Xxxxxx Xxxxx Jr.
Title: SVP
FIRST UNION NATIONAL BANK,
as a Lender
By:
----------------------------------
Name:
Title:
XXXXXX FINANCIAL, INC.,
as a Lender
By:
----------------------------------
Name:
Title:
TEXTRON FINANCIAL CORPORATION,
as a Lender
By:
----------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS
L.P.,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
BANK OF SCOTLAND,
as a Lender
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
THE PROVIDENT BANK,
as a Lender
By: /s/ Xxxx Xxxxxxxxx
----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Portfolio Manager, AVP
SPECIAL SITUATIONS INVESTING GROUP,
INC.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY.
Each of the undersigned Guarantors hereby consents to the
terms of the foregoing Amendment and Waiver in its capacity as a guarantor under
the Credit Agreement and agrees that the terms of such agreement shall not
affect in any way its obligations and liabilities under its guaranty, all of
which obligations and liabilities shall remain in full force and effect and each
of which is hereby reaffirmed.
THE WARNACO GROUP INC.,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name:
Title:
000 XXXXXX XXXXXX INC.
A.B.S. CLOTHING COLLECTION, INC.
ABBEVILLE MANUFACTURING COMPANY
AEI MANAGEMENT CORPORATION
AUTHENTIC FITNESS CORPORATION
AUTHENTIC FITNESS ON-LINE, INC.
AUTHENTIC FITNESS PRODUCTS INC.
AUTHENTIC FITNESS RETAIL INC.
XXXXXXX INC.
CCC ACQUISITION CORP.
CCC ACQUISITION REALTY CORP.
X.X. XXXXXXXX COMPANY
XXXXXX XXXXX JEANSWEAR COMPANY
CKJ HOLDINGS, INC.
CKJ SOURCING, INC.
DESIGNER HOLDINGS LTD.
JEANSWEAR HOLDINGS, INC.
KAI JAY MANUFACTURING COMPANY
MYRTLE AVENUE, INC.
OUTLET HOLDINGS, INC.
OUTLET STORES, INC.
RIO SPORTSWEAR, INC.
UBERTECH PRODUCTS, INC.
VENTURES LTD.
WARMANA LIMITED
WARNACO INTERNATIONAL INC.
SCHEDULE 5.2
WARNACO MEN'S SPORTSWEAR, INC.
WARNACO PUERTO RICO, INC.
WARNACO SOURCING INC.
WARNACO U.S., INC.
WARNACO VENTURES LTD.
WARNER'S DE COSTA RICA INC.
WARNACO INTERNATIONAL, L.L.C.
as Guarantors
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name:
Title:
XXXXXXX STREET, INC.
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name:
Title:
PENHALIGON'S BY REQUEST, INC.
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name:
Title:
