Exhibit 10.15
-------------
WAIVER AGREEMENT
WAIVER AGREEMENT, dated as of March 28, 2001 (this "Agreement"), to the
Amended and Restated Credit Agreement dated as of July 9, 1999 (as amended,
restated or modified from time to time, the "Credit Agreement"), among XXXXXX
A.S.L., LTD., a Delaware corporation (the "Borrower"), the Guarantors named
therein, the financial institutions from time to time party thereto
(collectively, the "Lenders"), THE CHASE MANHATTAN BANK, as administrative and
collateral agent for the Lenders (in such capacity, the "Agent"), and THE CIT
GROUP/COMMERCIAL SERVICES, INC., as collateral monitor (in such capacity, the
"Collateral Monitor"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Credit Agreement.
WHEREAS, the Borrower has requested that the Lenders agree to waive certain
Defaults and Events of Defaults that have occurred and are continuing under the
Credit Agreement;
WHEREAS, the Lenders have agreed to waive certain Defaults and Events of
Defaults that have occurred and are continuing under the Credit Agreement as
described herein;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and subject to the fulfillment of the conditions
set forth below, the parties hereto agree as follows:
SECTION 1. WAIVERS OF DEFAULTS AND EVENTS OF DEFAULT
Upon the fulfillment of the conditions set forth in Section 3 below, the
following provisions of the Credit Agreement are hereby waived as follows:
1.1 The Lenders hereby agree to waive any Default or Event of Default which
has occurred and is continuing, or which may occur as a result of the Borrower's
failure to deliver its Fiscal Year end audited financial statements without any
qualification (except with respect to new accounting principles mandated by the
Financial Accounting Standards Board) as required by Section 6.05(a) of the
Credit Agreement.
1.2 The Lenders hereby agree to waive any Default or Event of Default which
has occurred and is continuing, as a result of the Borrower's failure (i) to
comply with the terms of Section 7.09 for the period ended December 31, 2000 and
(ii) to comply with the provisions of Section 7.10 for the periods ended
December 31, 2000 and January 31, 2001.
SECTION 2. CONFIRMATION OF LOAN DOCUMENTS
2.1 Each Loan Party, by its execution and delivery of this Agreement,
irrevocably and unconditionally ratifies and confirms in favor of the Agent and
the Lenders that (i) it consents to the terms and conditions of the Credit
Agreement as it has been amended by this Agreement and that notwithstanding this
Agreement, each Loan Document to which such Loan Party is a party shall continue
in full force and effect in accordance with its terms, as it has been amended by
this Agreement, and is and shall continue to be applicable to all of the
Obligations and (ii) it is truly and justly indebted to the Agent, the
Collateral Monitor and the Lenders, for all of the Obligations without defense,
offset or counterclaim of any kind whatsoever and hereby releases the Agent, the
Collateral Monitor and each of the Lenders from any and all claims, obligations,
acts, omissions, damages or causes of action arising out of, related or in any
way connected with any action or failure to act, prior to the execution of this
Agreement , in connection with the events or circumstances arising under or
otherwise related to the Credit Agreement or any other Loan Document.
SECTION 3. CONDITIONS PRECEDENT
This Agreement shall become effective upon the execution and delivery to
the Agent of counterparts hereof by the Borrower, each Guarantor and Lenders
constituting the Required Lenders and the fulfillment of the following
conditions:
3.1 The Agent shall have received a non-refundable waiver fee in the amount
of $50,000 to be distributed among the Lenders pro rata in accordance with their
Revolving Credit Commitments.
3.2 Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Agent, shall have received
payment in full for all legal fees charged, and all costs and expenses incurred
and invoiced, by such counsel through the date hereof and all legal fees
charged, and all costs and expenses incurred, by such counsel in connection with
the transactions contemplated under the Credit Agreement, this Agreement and the
other Loan Documents and instruments in connection herewith and therewith and
the Agent shall have received payment in full of any other fees and expenses of
the Agent, the Collateral Monitor, or any other professional retained by the
Agent which the Borrower is obligated to pay pursuant to the Credit Agreement
and the other Loan Documents.
3.3 All legal matters in connection with this Agreement shall be
satisfactory to the Agent and its counsel in their sole discretion.
3.4 The Agent shall have received a certificate signed by a Financial
Officer of the Borrower and each Guarantor stating that after giving effect to
this Agreement (i) all representations and warranties contained in this
Agreement and the Credit Agreement shall be true and correct in all material
respects with the same effect as though made on and as of the date on which the
conditions set forth in this Section 3 are fulfilled (except
insofar as such representations and warranties relate expressly to an earlier
date) and (ii) there exists no Default or Event of Default.
3.5 The Agent shall have received such other documents as the Agent or
Agent's counsel shall reasonably deem necessary.
SECTION 4. MISCELLANEOUS
4.1 Each of the Borrower and the Guarantors reaffirms and restates the
representations and warranties set forth in Article IV of the Credit Agreement,
and represents that after giving effect to this Agreement all such
representations and warranties shall be true and correct in all material
respects with the same effect as though made on and as of the date on which the
conditions set forth in Section 3 are fulfilled (except insofar as such
representations and warranties relate expressly to an earlier date). Each Loan
Party represents and warrants (which representations and warranties shall
survive the execution and delivery hereof) to the Lenders that:
(a) It has the corporate power and authority to execute, deliver and carry
out the terms and provisions of this Agreement hereby and has taken or
caused to be taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement;
(b) No consent of any other person (including, without limitation,
shareholders or creditors of any Loan Party), and no action of, or filing
with any governmental or public body or authority is required to authorize,
or is otherwise required in connection with the execution, delivery and
performance of this Agreement;
(c) This Agreement has been duly executed and delivered on behalf of each
Loan Party by a duly authorized officer, and constitutes a legal, valid and
binding obligation of each Loan Party enforceable in accordance with its
terms, subject to bankruptcy, reorganization, insolvency, moratorium and
other similar laws affecting the enforcement of creditors' rights generally
and the exercise of judicial discretion in accordance with general
principles of equity; and
(d) The execution, delivery and performance of this Agreement will not
violate any law, statute or regulation, or any order or decree of any court
or governmental instrumentality, or conflict with, or result in the breach
of, or constitute a default under any contractual obligation of any Loan
Party.
4.2 Except, as herein expressly amended, the Credit Agreement is ratified
and confirmed in all respects and shall remain in full force and effect in
accordance with its terms.
4.3 All references to the Credit Agreement in the Credit Agreement and the
other Loan Documents and the other documents and instruments delivered pursuant
to or in connection therewith shall mean the Credit Agreement as amended hereby
and as may in the future be amended, restated, supplemented or modified from
time to time.
4.4 This Agreement may be executed by the parties hereto individually or in
combination, in one or more counterparts, each of which shall be an original and
all of which shall constitute one and the same agreement.
4.5 Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
4.6 THIS AGREEMENT, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL
OBLIGATION LAW OF THE STATE OF NEW YORK, SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE
LAWS OF ANY OTHER JURISDICTION.
4.7 The parties hereto shall, at any time and from time to time following
the execution of this Agreement, execute and deliver all such further
instruments and take all such further actions as may be reasonably necessary or
appropriate in order to carry out the provisions of this Agreement.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the Borrower, Guarantors, the Agent, the Collateral
Monitor and the Lenders have caused this Waiver Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
XXXXXX A.S.L., LTD., as Borrower
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
A.S.L. RETAIL OUTLETS, INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
ASL/K LICENSING CORP., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
XXXXXX A.S.L. EUROPE, LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Treasurer
XXXXXX HOLDINGS INC., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
AKC ACQUISITION, LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Treasurer
LION LICENSING, LTD., as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Treasurer
ASIA EXPERT LIMITED, as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
TOMWELL LIMITED, as a Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
VIEWMON LIMITED, as a Guarantor
By:_____________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Lender
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Agent
By: /s/ Xxxxx X. Xxxx
-----------------
Name: Xxxxx X. Xxxx
Title: Vice President
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Lender
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Vice President
THE CIT GROUP/COMMERCIAL SERVICES,
INC., as Collateral Monitor
By: /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title: Vice President
LASALLE BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxxxx X. Kiss
-------------------
Name: Xxxxxxx X. Kiss
Title: Senior Vice President
FLEET CAPITAL CORPORATION, as Lender
By: /s/ Xxxxx X. Xxxxx
-------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
FINOVA CAPITAL CORPORATION, as Lender
By:_____________________________
Name:
Title:
ISRAEL DISCOUNT BANK OF NEW YORK, as
Lender
By:_____________________________
Name:
Title:
By:_____________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as
Lender
By: /s/ Xxxx X. Xxxxx
-----------------
Name: Xxxx X. Xxxxx
Title: Vice President
DEBIS FINANCIAL SERVICES, INC., as Lender
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President, Asset Based Lending Division
BANK LEUMI USA, as Lender
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
Title: Vice President
