===========================================================================
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
dated as of October 15, 1998,
by and among
XXXXX APPAREL GROUP, INC.
(and other parties which may from time to time become an Additional
Obligor or the Borrower, as applicable, under the terms hereof),
the Lenders referred to herein,
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
===========================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................1
SECTION 1.1 Definitions..............................................1
SECTION 1.2 General.................................................14
SECTION 1.3 Other Definitions and Provisions........................14
ARTICLE II REVOLVING CREDIT FACILITY..................................14
SECTION 2.1 Revolving Credit Loans..................................14
SECTION 2.2 Procedure for Advances of Revolving Credit Loans........15
SECTION 2.3 Repayment of Revolving Credit Loans.....................15
SECTION 2.4 Revolving Credit Notes..................................16
SECTION 2.5 Permanent Reduction of the Revolving Credit Commitment..16
SECTION 2.6 Termination of Revolving Credit Facility................17
ARTICLE III LETTER OF CREDIT FACILITY.................................18
SECTION 3.1 L/C Commitment..........................................18
SECTION 3.2 Procedure for Issuance of Letters of Credit.............18
SECTION 3.3 Fees and Other Charges..................................19
SECTION 3.4 L/C Participations......................................19
SECTION 3.5 Reimbursement Obligation of the Borrower................20
SECTION 3.6 Obligations Absolute....................................20
SECTION 3.7 Effect of Application...................................21
ARTICLE IV [RESERVED].................................................21
ARTICLE V GENERAL LOAN PROVISIONS.....................................21
SECTION 5.1 Interest................................................21
SECTION 5.2 Notice and Manner of Conversion or Continuation of
Revolving Credit Loans................................23
SECTION 5.3 Fees....................................................24
SECTION 5.4 Manner of Payment.......................................24
SECTION 5.5 Crediting of Payments and Proceeds......................25
SECTION 5.6 Adjustments.............................................25
SECTION 5.7 Nature of Obligations of Lenders Regarding Extensions
of Credit; Assumption by the Administrative Agent.......25
SECTION 5.8 Changed Circumstances...................................26
SECTION 5.9 Indemnity...............................................29
SECTION 5.10 Capital Requirements....................................29
SECTION 5.11 Taxes...................................................29
ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING...............32
SECTION 6.1 Closing.................................................32
SECTION 6.2 Conditions to Closing and Initial Revolving Credit
Loans and Letters of Credit...........................32
SECTION 6.3 Conditions to All Extensions of Credit..................35
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES......35
SECTION 7.1 Representations and Warranties..........................35
SECTION 7.2 Survival of Representations and Warranties, Etc.........41
ARTICLE VIII FINANCIAL INFORMATION AND NOTICES........................41
SECTION 8.1 Financial Statements and Projections....................41
SECTION 8.2 Officer's Compliance Certificate........................42
SECTION 8.3 Accountants' Certificate................................42
SECTION 8.4 Other Reports...........................................42
SECTION 8.5 Notice of Litigation and Other Matters..................43
SECTION 8.6 Accuracy of Information.................................43
ARTICLE IX AFFIRMATIVE COVENANTS......................................43
SECTION 9.1 Preservation of Corporate Existence and
Related Matters.........................................44
SECTION 9.2 Maintenance of Property.................................44
SECTION 9.3 Insurance...............................................44
SECTION 9.4 Accounting Methods and Financial Records................44
SECTION 9.5 Payment and Performance of Obligations..................44
SECTION 9.6 Compliance With Laws and Approvals......................44
SECTION 9.7 Environmental Laws......................................44
SECTION 9.8 Compliance with ERISA...................................45
SECTION 9.9 Conduct of Business.....................................45
SECTION 9.10 Visits and Inspections..................................45
SECTION 9.11 Use of Proceeds.........................................46
SECTION 9.12 Year 2000 Compatibility.................................46
ARTICLE X FINANCIAL COVENANT..........................................46
SECTION 10.1 Interest Coverage Ratio.................................46
SECTION 10.2 Minimum Net Worth.......................................46
ARTICLE XI NEGATIVE COVENANTS.........................................46
SECTION 11.1 Limitations on Debt and Guaranty Obligations............46
SECTION 11.2 [Reserved]..............................................48
SECTION 11.3 Limitations on Liens....................................48
SECTION 11.4 Limitations on Loans, Advances, Investments and
Acquisitions..........................................50
SECTION 11.5 Limitations on Mergers and Liquidation..................51
SECTION 11.6 Limitations on Sale or Transfer of Assets...............51
SECTION 11.7 Limitations on Dividends and Distributions..............52
SECTION 11.8 Transactions with Affiliates............................53
SECTION 11.9 Changes in Fiscal Year End..............................53
SECTION 11.10 Amendments; Payments and Prepayments of Material Debt
and Subordinated Debt.................................53
ARTICLE XII DEFAULT AND REMEDIES......................................53
SECTION 12.1 Events of Default.......................................53
SECTION 12.2 Remedies................................................55
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc.........56
ARTICLE XIII THE ADMINISTRATIVE AGENT.................................57
SECTION 13.1 Appointment.............................................57
SECTION 13.2 Delegation of Duties....................................57
SECTION 13.3 Exculpatory Provisions..................................57
SECTION 13.4 Reliance by the Administrative Agent....................57
SECTION 13.5 Notice of Default.......................................58
SECTION 13.6 Non-Reliance on the Administrative Agent and Other
Lenders...............................................58
SECTION 13.7 Indemnification.........................................59
SECTION 13.8 The Administrative Agent in Its Individual Capacity.....59
SECTION 13.9 Resignation of the Administrative Agent; Successor
Administrative Agent..................................59
ARTICLE XIV MISCELLANEOUS.............................................60
SECTION 14.1 Notices.................................................60
SECTION 14.2 Expenses; Indemnity.....................................61
SECTION 14.3 Set-off.................................................62
SECTION 14.4 Governing Law...........................................62
SECTION 14.5 Consent to Jurisdiction.................................62
SECTION 14.6 Binding Arbitration; Waiver of Jury Trial...............62
SECTION 14.7 Reversal of Payments....................................63
SECTION 14.8 Injunctive Relief; Punitive Damages.....................64
SECTION 14.9 Accounting Matters......................................64
SECTION 14.10 Successors and Assigns; Participations..................64
SECTION 14.11 Amendments, Waivers and Consents........................68
SECTION 14.12 Performance of Duties...................................68
SECTION 14.13 All Powers Coupled with Interest........................68
SECTION 14.14 Survival of Indemnities.................................68
SECTION 14.15 Titles and Captions.....................................69
SECTION 14.16 Severability of Provisions..............................69
SECTION 14.17 Counterparts............................................69
SECTION 14.18 Term of Agreement.......................................69
SECTION 14.19 Inconsistencies with Other Documents; Independent
Effect of Covenants...................................69
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT, dated as of the
15th day of October, 1998, by and among XXXXX APPAREL GROUP, INC., a
Pennsylvania corporation, other parties which may from time to time become
an Additional Obligor (as defined below) or the Borrower, as applicable,
under the terms hereof, the Lenders who are or may become a party to this
Agreement, and FIRST UNION NATIONAL BANK, as Administrative Agent for the
Lenders.
STATEMENT OF PURPOSE
The Borrower (as defined below) has requested and the Lenders
have agreed to amend and restate the Prior Credit Agreement (as defined
below) as set forth herein to provide for, among other things, (i) the
Asset Drop-Down (as defined below), (ii) the termination of the Term Loan
Facility (as defined in the Prior Credit Agreement) and (iii) the addition
of the other Credit Parties as of the Asset Drop-Down Effective Date, all
on the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Additional Debt Securities" shall have the meaning set forth in
Section 11.1(e).
"Additional Obligors" means, from and after the Asset Drop-Down
Effective Date, the collective reference to Xxxxx Apparel Group, and Xxxxx
Apparel Group Holdings in their capacities as guarantors under the Guaranty
Agreements or co-obligors under this Agreement.
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed
pursuant to Section 13.9.
"Administrative Agent's Office" means the office of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 14.1(c).
"Affiliate" means, with respect to any Person, any other Person
(other than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such first Person or any of its Subsidiaries. The term "control"
means the possession, directly or indirectly, of any power to direct or
cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"Agreement" means this Amended and Restated 364-Day Credit
Agreement, as amended, restated, supplemented or otherwise modified.
"Applicable Law" means all applicable provisions of
constitutions, laws, statutes, ordinances, rules, treaties, regulations,
permits, licenses, approvals, interpretations and orders of courts or
Governmental Authorities and all orders and decrees of all courts and
arbitrators.
"Applicable Margin" means, for purposes of calculating (a) the
Base Rate and LIBOR Rate for purposes of Section 5.1(a), (b) the L/C Fee
for purposes of Section 3.3(a) or (c) the Facility Fee for purposes of
Section 5.3(a), the corresponding rate set forth below for the applicable
rating of the senior, unsecured, long-term debt of the Credit Parties, on a
collective basis (the "Debt Rating") publicly announced by Standard &
Poor's Ratings Group ("S&P") and Xxxxx'x Investors Service, Inc. ("Moody's)
as follows:
S&P Moody's Applicable Margin Per Annum
Level Rating Rating LIBOR Rate Base Rate L/C Fee Facility Fee
1 >A- > A3 0.350% 0.000% 0.150% 0.100%
- -
2 > BBB+ > Baa1 0.475% 0.000% 0.200% 0.125%
- -
3 > BBB > Baa2 0.600% 0.000% 0.225% 0.150%
- -
4 < BBB- < Baa3 0.800% 0.000% 0.300% 0.200%
- -
provided, that if both Moody's and S&P shall not have in effect a Debt
Rating (other than by reason of the circumstances referred to in the last
sentence of this definition), then such Debt Rating shall be deemed to be
Level 4. In the event that the corresponding Debt Ratings publicly
announced by S&P and Moody's listed above differ by (a) one level, the
Applicable Margin shall be based on the higher of the two ratings, and (b)
two or more levels, the Applicable Margin shall be based on the rating one
rating below the higher of the two ratings. Any change in the Applicable
Margin shall be effective as of the Business Day on which the applicable
rating is announced or is publicly available. If the rating system of
Moody's and S&P shall change, or if both of such rating agencies shall
cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of
ratings from such rating agencies and, pending the effectiveness of any
such amendment, the Applicable Margin shall be determined by reference to
the rating most recently in effect prior to such change or cessation.
"Application" means an application, in the form specified by any
Issuing Lender from time to time, requesting such Issuing Lender to issue a
Letter of Credit.
"Asset Drop-Down" means the collective reference to the proposed
corporate reorganization more fully described on Schedule 11.6 hereto.
"Asset Drop-Down Effective Date" means the effective date of the
Asset Drop-Down, as determined by the Borrower; provided that, all of the
conditions set forth in Section 11.6(e) have been satisfied or waived.
"Assignment and Acceptance" shall have the meaning assigned
thereto in Section 14.10.
"Base Rate" means, at any time, the higher of (a) the Prime Rate
and (b) the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each
change in the Base Rate shall take effect simultaneously with the
corresponding change or changes in the Prime Rate or the Federal Funds
Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based
upon the Base Rate as provided in Section 5.1(a).
"Borrower" means (a) prior to the Asset Drop-Down Effective Date,
Xxxxx Apparel Group and (b) after the Asset Drop-Down Effective Date, Xxxxx
Apparel Group USA.
"Business Day" means (a) any day other than a Saturday, Sunday or
legal holiday on which banks in Charlotte, North Carolina, Philadelphia,
Pennsylvania and New York, New York, are not authorized or required by law
to remain closed for the conduct of their commercial banking business, and
(b) with respect to all notices and determinations in connection with, and
payments of principal and interest on, any LIBOR Rate Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
trading in Dollar deposits in the London interbank market.
"Capital Lease" means, with respect to the Credit Parties and
their Subsidiaries, any lease of any property that should, in accordance
with GAAP, be classified and accounted for as a capital lease on a
Consolidated balance sheet of the Credit Parties and their Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in
Section 12.1(h).
"Closing Date" means the date of this Agreement or such later
Business Day upon which each condition described in Section 6.1 and Section
6.2 shall be satisfied or waived in all respects.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified
from time to time.
"Consolidated" means, when used with reference to financial
statements or financial statement items of the Credit Parties and their
Subsidiaries, such statements or items on a consolidated basis in
accordance with applicable principles of consolidation under GAAP.
"Credit Facility" means the collective reference to the Revolving
Credit Facility and the L/C Facility.
"Credit Parties" means the Borrower or, after the Asset Drop-Down
Effective Date, each of the Additional Obligors and the Borrower. It is
expected that, after the Asset Drop-Down Effective Date, all payments in
respect of the Obligations and the Additional Debt Securities will be made
by Xxxxx Apparel Group USA.
"Debt" means, with respect to the Credit Parties and their
Subsidiaries at any date and without duplication, the sum of the following
calculated in accordance with GAAP: (a) all liabilities, obligations and
indebtedness, in each case for borrowed money including but not limited to
obligations evidenced by bonds, debentures, notes or other similar
instruments of any such Person, (b) all obligations to pay the deferred
purchase price of property or services of any such Person, except trade
payables arising in the ordinary course of business, (c) all obligations of
any such Person as lessee under Capital Leases, (d) all Debt of any other
Person secured by a Lien on any asset of any such Person, (e) all Guaranty
Obligations of any such Person, (f) all obligations, contingent or
otherwise, of any such Person relative to the amount of drawn letters of
credit not reimbursed as required by the terms thereof, including without
limitation any Reimbursement Obligation not reimbursed as required by the
terms hereof, and banker's acceptances issued for the account of any such
Person, and (g) all obligations incurred by any such Person pursuant to
Hedging Agreements.
"Default" means any of the events specified in Section 12.1 which
with the passage of time, the giving of notice or any other condition,
would constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in
lawful currency of the United States.
"EBITDAR" means, with respect to the Credit Parties and their
Subsidiaries on a Consolidated basis for any period, the sum of (a) Net
Income for such period, plus (b) the sum of the following to the extent
deducted in the determination of Net Income: (i) income and franchise
taxes, (ii) Interest Expense, (iii) amortization, depreciation,
extraordinary non-cash losses and any other non-cash charges (including
amortization of goodwill, transaction expenses, covenants not to compete
and other intangible assets) and (iv) Rental Expense less (c) any items of
extraordinary gain which were included in determining Net Income.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at
the time of such assignment (a) a commercial bank organized under the laws
of the United States or any state thereof, having combined capital and
surplus in excess of $500,000,000, (b) a commercial bank organized under
the laws of any other country that is a member of the Organization of
Economic Cooperation and Development, or a political subdivision of any
such country, having combined capital and surplus in excess of
$500,000,000, (c) a finance company, insurance company or other financial
institution which in the ordinary course of business extends credit of the
type extended hereunder and that has total assets in excess of
$1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender) or an
Affiliate of a Lender hereunder, (e) the successor (whether by transfer of
assets, merger or otherwise) to all or substantially all of the commercial
lending business of the assigning Lender, or (f) any other
Person that has been approved in writing as an Eligible Assignee by the
Borrower and the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within
the meaning of Section 3(3) of ERISA which (a) is maintained for employees
of the Borrower or any ERISA Affiliate or (b) has at any time within the
preceding six years been maintained for the employees of the Borrower or
any current or former ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local
laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, binding interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation
or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of
1974, and the rules and regulations thereunder, each as amended,
supplemented or otherwise modified from time to time.
"ERISA Affiliate" means any Person who together with the Borrower
is treated as a single employer within the meaning of Section 414(b), (c),
(m) or (o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the
percentage (expressed as a decimal and rounded upwards, if necessary, to
the next higher 1/100th of 1%) which is in effect for such day as
prescribed by the Federal Reserve Board (or any successor) for determining
the maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) in respect of eurocurrency liabilities
or any similar category of liabilities for a member bank of the Federal
Reserve System in New York City.
"Event of Default" means any of the events specified in Section
12.1, provided that any requirement for passage of time, giving of notice,
or any other condition, has been satisfied.
"Existing Loans" shall have the meaning assigned thereto in
Section 6.2(f).
"Extensions of Credit" means, as to any Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all
Revolving Credit Loans made by such Lender then outstanding and (b) such
Lender's Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding.
"Facility Fee" shall have the meaning assigned thereto in Section
5.3(a).
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards,
if necessary, to the next higher 1/100th of 1%) representing the daily
effective federal funds rate as quoted by the
Administrative Agent and confirmed in Federal Reserve Board Statistical
Release H.15 (519) or any successor or substitute publication selected by
the Administrative Agent. If, for any reason, such rate is not available,
then "Federal Funds Rate" shall mean a daily rate which is determined, in
the opinion of the Administrative Agent, to be the rate at which federal
funds are being offered for sale in the national federal funds market at
9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be the
same as the rate for the most immediate preceding Business Day.
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of the Credit Parties and
their Subsidiaries ending on December 31.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located.
For purposes of this definition, the United States of America, each state
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles, as
recognized by the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board, consistently applied and
maintained on a consistent basis for the Credit Parties and their
Subsidiaries throughout the period indicated.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all Governmental Authorities.
"Governmental Authority" means any nation, province, state or
political subdivision thereof, and any government or any Person exercising
executive, legislative, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty Agreements" means the collective reference to the
unconditional and unlimited guaranty agreements, each in form and substance
reasonably satisfactory to the Administrative Agent, executed by each of
the Additional Obligors in favor of the Administrative Agent, for the
ratable benefit of itself and the Lenders, to guarantee the Obligations of
the Borrower hereunder.
"Guaranty Obligation" means, with respect to the Credit Parties
and their Subsidiaries, without duplication, any obligation, contingent or
otherwise, of any such Person pursuant to which such Person has directly or
indirectly guaranteed any Debt or other obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of any such Person (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Debt
or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement condition or
otherwise) or (b) entered into for the purpose of assuring in any other
manner the obligee of such Debt or other obligation
of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part); provided, that the term Guaranty Obligation
shall not include (i) endorsements for collection or deposit in the
ordinary course of business or (ii) a contractual commitment by one Person
to invest in another Person for so long as such investment is expected to
constitute a permitted investment under Section 11.4.
"Hazardous Materials" means any substances or materials (a) which
are or become defined as hazardous wastes, hazardous substances,
pollutants, contaminants, chemical substances or mixtures or toxic
substances under any Environmental Law, (b) which are toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or
otherwise harmful to human health or the environment and are or become
regulated by any Governmental Authority, (c) the presence of which require
investigation or remediation under any Environmental Law, (d) the discharge
or emission or release of which requires a permit or license under any
Applicable Law or other Governmental Approval, or (e) which contain,
without limitation, asbestos, polychlorinated biphenyls, urea formaldehyde
foam insulation, petroleum hydrocarbons, petroleum derived substances or
waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an
interest rate swap, collar, cap, floor or forward rate agreement or other
agreement regarding the hedging of interest rate risk exposure executed in
connection with hedging the interest rate exposure of any Credit Party, and
any confirming letter executed pursuant to such hedging agreement, all as
amended, restated or otherwise modified from time to time.
"Interest Expense" means, for any period, total interest expense
(including, without limitation, interest expense attributable to Capital
Leases) determined on a consolidated basis, without duplication, for the
Credit Parties and their Subsidiaries in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in
Section 5.1(b).
"Issuing Lender" means First Union and The Chase Manhattan Bank,
each in its capacity as issuer of any Letter of Credit, and any other
Lender mutually acceptable and on terms satisfactory to the Borrower and
the Administrative Agent and Issuing Lenders means all such Lenders.
"Xxxxx Apparel Group" means Xxxxx Apparel Group, Inc., a
Pennsylvania corporation.
"Xxxxx Apparel Group Holdings" means the Delaware corporation to
be formed in connection with the Asset Drop-Down; provided, however, the
actual corporate name may differ from the defined term.
"Xxxxx Apparel Group USA" means the Pennsylvania corporation to
be formed in connection with the Asset Drop-Down; provided, however, the
actual corporate name may differ from the defined term.
"L/C Commitment" means Three Hundred Million Dollars
($300,000,000).
"L/C Facility" means the letter of credit facility established
pursuant to Article III hereof.
"L/C Fee" shall have the meaning assigned thereto in Section
3.3(a).
"L/C Obligations" means at any time, an amount equal to the sum
of (a) the aggregate undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit which have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the
Lenders having a Revolving Credit Commitment other than the applicable
Issuing Lender.
"Lender" means each Person executing this Agreement as a Lender
set forth on the signature pages hereto and each Person that hereafter
becomes a party to this Agreement as a Lender pursuant to Section 14.10
other than any party hereto that ceases to be a party hereto pursuant to
any Assignment and Acceptance.
"Lending Office" means, with respect to any Lender, the office of
such Lender maintaining such Lender's Revolving Credit Commitment
Percentage of the Revolving Credit Loans.
"Letters of Credit" shall have the meaning assigned thereto in
Section 3.1 and, on the Closing Date, shall also include the Outstanding
Letters of Credit and the Outstanding Sun Letters of Credit (which shall be
deemed to have been issued hereunder for the account of the Borrower).
"LIBOR" means the rate of interest per annum determined on the
basis of the rate for deposits in Dollars in minimum amounts of at least
$5,000,000 for a period equal to the applicable Interest Period which
appears on the Dow Xxxxx Market Screen 3750 (or on any successor or
substitute page of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided
on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first day of the applicable Interest Period (rounded upward, if necessary,
to the nearest one hundredth of one percent (1/100%)). If, for any reason,
such rate does not appear on Dow Xxxxx Market Screen 3750, then "LIBOR"
shall be determined by the Administrative Agent to be the arithmetic
average (rounded upward, if necessary, to the nearest one-hundredth of one
percent (1/100%)) of the rate per annum at which deposits in Dollars would
be offered by the Reference Group in the London interbank market to the
Administrative Agent as of approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period for
a period equal to such Interest Period and in an amount substantially equal
to the amount of the applicable Revolving Credit Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) determined by the
Administrative Agent pursuant to the following formula:
LIBOR Rate = LIBOR
------------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Revolving Credit Loan bearing
interest at a rate based upon the LIBOR Rate as provided in Section 5.1(a).
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, a Person shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to
the interest of a vendor or lessor under any conditional sale agreement,
Capital Lease or other title retention agreement relating to such asset.
"Loan Documents" means, collectively, this Agreement, the
Revolving Credit Notes, the Applications and each other document,
instrument and agreement executed and delivered by any Credit Party, its
Subsidiaries or their counsel in connection with this Agreement or
otherwise referred to herein or contemplated hereby, all as may be amended,
restated or otherwise modified.
"Material Adverse Effect" means, with respect to the Credit
Parties or any of their Subsidiaries, a material adverse effect on the
business, assets, operations or financial condition of the Credit Parties
and their Subsidiaries taken as a whole or the ability of any such Person
to perform its obligations under the Loan Documents, in each case to which
it is a party.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Xxxxx Apparel Group or any ERISA
Affiliate is making, or is accruing an obligation to make, contributions
within the preceding six years.
"Net Cash Proceeds" means, as applicable, with respect to any
issuance of Debt, the gross cash proceeds received by a Credit Party or any
of its Subsidiaries therefrom less all legal, underwriting and other fees
and expenses incurred in connection therewith.
"Net Income" means, with respect to the Credit Parties and their
Subsidiaries for any period, the Consolidated net income (or loss) of the
Credit Parties and their Subsidiaries for such period determined in
accordance with GAAP; provided, that there shall be excluded from net
income (or loss): the income (or loss) of any Person (other than a
Subsidiary of such Person) in which such Person has an ownership interest
unless received by such Person in a cash distribution.
"Net Worth" means, with respect to the Credit Parties and their
Subsidiaries, as of any date, the total shareholders' equity that would
appear on a Consolidated balance sheet of the Credit Parties and their
Subsidiaries prepared as of such date in accordance with GAAP.
"Non-Consenting Lenders" shall have the meaning assigned thereto
in Section 2.6.
"Notice of Account Designation" shall have the meaning assigned
thereto in Section 2.2(b).
"Notice of Revolving Credit Borrowing" shall have the meaning
assigned thereto in Section 2.2(a).
"Notice of Conversion/Continuation" shall have the meaning
assigned thereto in Section 5.2.
"Notice of Prepayment" shall have the meaning assigned thereto in
Section 2.3(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the
Revolving Credit Loans, (b) the L/C Obligations, (c) all payment and other
obligations owing by the Credit Parties to any Lender or Affiliate of a
Lender or the Administrative Agent under any Hedging Agreement with any
Lender or Affiliate of a Lender (which such Hedging Agreement is permitted
hereunder), and (d) all other fees and commissions (including attorney's
fees), charges, indebtedness, loans, liabilities, financial accommodations,
obligations, covenants and duties owing by the Credit Parties to the
Lenders or the Administrative Agent, of every kind, nature and description,
direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not
evidenced by any note, in each case under or in respect of this Agreement,
any Revolving Credit Note, any Letter of Credit or any of the other Loan
Documents.
"Officer's Compliance Certificate" shall have the meaning
assigned thereto in Section 8.2.
"Operating Lease" shall mean, as to any Person, as determined in
accordance with GAAP, any lease of property (whether real, personal or
mixed) by such Person as lessee which is not a Capital Lease.
"Other Taxes" shall have the meaning assigned thereto in Section
5.11(b).
"Outstanding Letters of Credit" means each letter of credit
described on Schedule 1.1(b) and outstanding as of the Closing Date.
"Outstanding Sun Letters of Credit" means each letter of credit
described on Schedule 1.1(c) and outstanding as of the Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA or any successor agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA
or Section 412 of the Code.
"Permitted Lines of Business" shall have the meaning assigned
thereto in Section 9.9.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust, business trust, joint venture,
joint stock company, pool, syndicate, sole proprietorship, unincorporated
organization, Governmental Authority or any other form of entity or group
thereof.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by First Union as its prime rate in
effect at its principal office in Charlotte, North Carolina. Each change in
the Prime Rate shall be effective as of the opening of business on the day
such change in the Prime Rate occurs. The parties hereto acknowledge that
the rate announced publicly by First Union as its Prime Rate is an index or
base rate and shall not necessarily be its lowest or best rate charged to
its customers or other banks.
"Prior Credit Agreement" means the 364-Day Credit Agreement dated
as of October 2, 1998, by and among the Borrower, the Prior Lenders and
First Union, as Administrative Agent.
"Prior Lenders" means, collectively, the lenders party to the
Prior Credit Agreement.
"Reference Group" shall mean the Lenders party to this Agreement
on the Closing Date.
"Register" shall have the meaning assigned thereto in Section
14.10(d).
"Reimbursement Obligation" means the obligation of the Borrower
to reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Rental Expense" means, all obligations of the Credit Parties or
any of their Subsidiaries for payments under Operating Leases.
"Required Lenders" means, at any date, any combination of Lenders
whose Revolving Credit Commitment Percentage equals at least fifty-one
percent (51%) of the Revolving Credit Commitment or if the Revolving Credit
Commitment has been terminated, any combination of Lenders who collectively
hold at least fifty-one percent (51%) of the aggregate unpaid principal
amount of the Extensions of Credit.
"Responsible Officer" means any of the following: the chairman,
president, chief executive officer, chief financial officer or vice
president and corporate controller of Xxxxx Apparel Group or any other
officer of Xxxxx Apparel Group reasonably acceptable to the Administrative
Agent.
"Revolving Credit Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the account of
the Borrower hereunder in an aggregate principal amount at any time
outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 1.1(a) hereto as such amount may be reduced or modified at any
time or from time to time pursuant to the terms hereof and (b) as to all
Lenders, the aggregate Revolving Credit Commitment of all Lenders to make
Revolving Credit Loans, as
such amount may be reduced at any time or from time to time pursuant to the
terms hereof. The Revolving Credit Commitment of all Lenders on the Closing
Date shall be Three Hundred Million Dollars ($300,000,000).
"Revolving Credit Commitment Percentage" means, as to any Lender
at any time, the ratio of (a) the amount of the Revolving Credit Commitment
of such Lender to (b) the Revolving Credit Commitment of all of the
Lenders.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II hereof.
"Revolving Credit Loans" means any revolving loan made to the
Borrower pursuant to Section 2.1, and all such revolving loans collectively
as the context requires.
"Revolving Credit Notes" means the collective reference to the
Amended and Restated Revolving Credit Notes made by the Borrower payable to
the order of each Lender with a Revolving Credit Commitment, substantially
in the form of Exhibit A hereto, evidencing the Revolving Credit Facility,
and any amendments and modifications thereto, any substitutes therefor, and
any replacements, restatements, renewals or extension thereof, in whole or
in part; "Revolving Credit Note" means any of such Revolving Credit Notes.
"Revolving Credit Termination Date" means the earliest of the
dates referred to in Section 2.6.
"Subordinated Debt" means the collective reference to Debt on
Schedule 7.1(p) hereof designated as Subordinated Debt and any other Debt
of the Credit Parties or any Subsidiary thereof subordinated in right and
time of payment to the Obligations and otherwise permitted hereunder.
"Subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be Consolidated
with those of the parent in the parent's Consolidated financial statements
if such financial statements were prepared in accordance with GAAP as of
such date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than fifty percent (50%) of the
equity or more than fifty percent (50%) of the ordinary voting power or, in
the case of a partnership, more than fifty percent (50%) of the general
partnership interests are, as of such date, owned, controlled or held, or
(b) that is, as of such date, otherwise controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. Unless otherwise qualified references to
"Subsidiary" or "Subsidiaries" herein shall refer to those of the Borrower.
"Sun Acquisition" means the purchase by the Borrower of one
hundred percent (100%) of the capital stock of Sun Apparel, Inc. pursuant
to the Sun Acquisition Agreement.
"Sun Acquisition Agreement" means the Agreement and Plan of
Merger dated September 10, 1998 by and among the Borrower, SAI Acquisition
Corp., Sun Apparel, Inc. and the Shareholders of Sun Apparel, Inc., as
amended or modified from time to time.
"Taxes" shall have the meaning assigned thereto in Section
5.11(a).
"Termination Event" means: (a) a "Reportable Event" described in
Section 4043 of ERISA, or (b) the withdrawal of the Borrower or any ERISA
Affiliate from a Pension Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA, or (c)
the termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination under Section 4041 of ERISA, or (d) the institution of
proceedings to terminate, or the appointment of a trustee with respect to,
any Pension Plan by the PBGC, or (e) any other event or condition which
would constitute grounds under Section 4042(a) of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan, or (f)
the partial or complete withdrawal of the Borrower or any ERISA Affiliate
from a Multiemployer Plan, or (g) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (h) any event or
condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event
or condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA.
"Three-Year Credit Agreement" means the Amended and Restated
Three-Year Credit Agreement of even date herewith by and among Xxxxx
Apparel Group (and other parties which may from time to time become an
Additional Obligor or the Borrower, as applicable, under the terms
thereof), the Administrative Agent and the Lenders, as amended, restated,
supplemented or otherwise modified from time to time.
"Three-Year Credit Agreement Guaranty Agreements" means the
collective reference to the unconditional guaranty agreements, each in form
and substance reasonably satisfactory to the Administrative Agent, which
may be executed by the Additional Obligors in favor of the Administrative
Agent, for the ratable benefit of itself and the Lenders, in connection
with the Asset Drop-Down to guarantee the Obligations of the Borrower under
the Three-Year Credit Agreement.
"Three-Year Credit Agreement Obligations" means the "Obligations"
(as defined therein) of the Borrower under the Three-Year Credit Agreement.
"Uniform Customs" the Uniform Customs and Practice for
Documentary Credits (1994 Revision), International Chamber of Commerce
Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State
of New York, as amended, restated or otherwise modified from time to time.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, that all of
the shares of capital stock or other ownership interests of such Subsidiary
are, directly or indirectly, owned or controlled by any Credit Party and/or
one or more of its Wholly-Owned Subsidiaries.
SECTION 1.2 General. Unless otherwise specified, a reference in
this Agreement to a particular section, subsection, Schedule or Exhibit is
a reference to that section, subsection, Schedule or Exhibit of this
Agreement. Terms defined in this Agreement and in the Three-Year Credit
Agreement shall be construed consistently, and no term defined herein shall
be limited or restricted by any similar definition in the Three-Year Credit
Agreement nor shall any such term herein limit or restrict any similar
definition in the Three-Year Credit Agreement. Wherever from the context it
appears appropriate, each term stated in either the singular or plural
shall include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, feminine
and neuter. Any reference herein to "Charlotte time" shall refer to the
applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein,
all capitalized terms defined in this Agreement shall have the defined
meanings when used in this Agreement, the Revolving Credit Notes and the
other Loan Documents or any certificate, report or other document made or
delivered pursuant to this Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make
Revolving Credit Loans to the Borrower from time to time from the Closing
Date through the Revolving Credit Termination Date as requested by the
Borrower in accordance with the terms of Section 2.2; provided, that (a)
the aggregate principal amount of all outstanding Revolving Credit Loans
(after giving effect to any amount requested) shall not exceed the
Revolving Credit Commitment less the sum of all outstanding L/C Obligations
and (b) the principal amount of outstanding Revolving Credit Loans from any
Lender to the Borrower shall not at any time exceed such Lender's Revolving
Credit Commitment. Each Revolving Credit Loan by a Lender shall be in a
principal amount equal to such Lender's Revolving Credit Commitment
Percentage of the aggregate principal amount of Revolving Credit Loans
requested on such occasion. Subject to the terms and conditions hereof, the
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder
until the Revolving Credit Termination Date.
SECTION 2.2 Procedure for Advances of Revolving Credit Loans.
(a) Requests for Borrowing. The Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached
hereto as Exhibit B (a "Notice of Revolving Credit Borrowing") not later
than 11:00 a.m. (Charlotte time) (i) on the same Business Day as each Base
Rate Loan and (ii) at least three (3) Business Days before each LIBOR Rate
Loan, of its intention to borrow, specifying (A) the date of such
borrowing, which shall be a Business Day, (B) the amount of such borrowing,
which shall be in an amount equal to the unused amount of the Revolving
Credit Commitment, or if less, (x) with respect to Base Rate Loans in an
aggregate principal amount of $1,000,000 or a whole multiple of $250,000 in
excess thereof and (y) with respect to LIBOR Rate Loans in an aggregate
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof, (C) whether such Revolving Credit Loan is to be a LIBOR Rate Loan
or Base Rate Loan, and (D) in the case of a LIBOR Rate Loan, the duration
of the Interest Period applicable thereto. Notices received after 11:00
a.m. (Charlotte time) shall be deemed received on the next Business Day.
The Administrative Agent shall promptly notify the Lenders of each Notice
of Revolving Credit Borrowing.
(b) Disbursement of Revolving Credit Loans. Not later than 2:00
p.m. (Charlotte time) on the proposed borrowing date, each Lender will make
available to the Administrative Agent, for the account of the Borrower, at
the office of the Administrative Agent in funds immediately available to
the Administrative Agent, such Lender's Revolving Credit Commitment
Percentage of the Revolving Credit Loans to be made on such borrowing date.
The Borrower hereby irrevocably authorizes the Administrative Agent to
disburse the proceeds of each borrowing requested pursuant to this Section
2.2 in immediately available funds by crediting or wiring such proceeds to
the deposit account of the Borrower identified in the most recent notice of
account designation, substantially in the form of Exhibit C hereto (a
"Notice of Account Designation"), delivered by the Borrower to the
Administrative Agent or as may be otherwise agreed upon by the Borrower and
the Administrative Agent from time to time. Subject to Section 5.7 hereof,
the Administrative Agent shall not be obligated to disburse the portion of
the proceeds of any Revolving Credit Loan requested pursuant to this
Section 2.2 for which any Lender is responsible to the extent that such
Lender has not made available to the Administrative Agent its Revolving
Credit Commitment Percentage of such Revolving Credit Loan.
SECTION 2.3 Repayment of Revolving Credit Loans.
(a) Repayment on Termination Date. The Borrower shall repay the
outstanding principal amount of all Revolving Credit Loans in full on the
Revolving Credit Termination Date, with all accrued but unpaid interest
thereon.
(b) Mandatory Repayment of Revolving Credit Loans. If at any time
the outstanding principal amount of all Revolving Credit Loans plus the sum
of all outstanding L/C Obligations exceeds the Revolving Credit Commitment,
the Borrower shall repay immediately upon notice from the Administrative
Agent, by payment to the Administrative Agent for the account of the
Lenders, Revolving Credit Loans and/or furnish cash collateral reasonably
satisfactory to the Administrative Agent or repay the L/C Obligations in an
amount equal to such excess. Such cash collateral shall be applied in
accordance with Section 12.2(b).
(c) Optional Repayments. The Borrower may at any time and from
time to time repay the Revolving Credit Loans, in whole or in part, upon at
least three (3) Business Days' irrevocable notice to the Administrative
Agent with respect to LIBOR Rate Loans and one (1) Business Day's
irrevocable notice with respect to Base Rate Loans, in the form attached
hereto as Exhibit D (a "Notice of Prepayment") specifying the date and
amount of repayment and whether the repayment is of LIBOR Rate Loans, Base
Rate Loans, or a combination thereof, and, if of a combination thereof, the
amount allocable to each. Upon receipt of such notice, the Administrative
Agent shall promptly notify each Lender. If any such notice is given, the
amount specified in such notice shall be due and payable on the date set
forth in such notice. Partial repayments shall be in an aggregate amount of
$1,000,000 or a whole multiple of $250,000 in excess thereof with respect
to Base Rate Loans and $5,000,000 or a whole multiple of $1,000,000 in
excess thereof with respect to LIBOR Rate Loans.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may
not repay any LIBOR Rate Loan on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by
any amount required to be paid pursuant to Section 5.9 hereof.
SECTION 2.4 Revolving Credit Notes. Each Lender's Revolving
Credit Loans and the obligation of the Borrower to repay such Revolving
Credit Loans shall be evidenced by a separate Revolving Credit Note
executed by the Borrower payable to the order of such Lender representing
the Borrower's obligation to pay such Lender's Revolving Credit Commitment
or, if less, the aggregate unpaid principal amount of all Revolving Credit
Loans made and to be made by such Lender to the Borrower hereunder, plus
interest and all other fees, charges and other amounts due thereon. Each
Revolving Credit Note shall be dated the date hereof and shall bear
interest on the unpaid principal amount thereof at the applicable interest
rate per annum specified in Section 5.1.
SECTION 2.5 Permanent Reduction of the Revolving Credit
Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any
time and from time to time, upon at least five (5) Business Days' prior
written notice to the Administrative Agent, to permanently reduce, without
premium or penalty, (i) the entire Revolving Credit Commitment at any time
or (ii) portions of the Revolving Credit Commitment, from time to time, in
an aggregate principal amount not less than $5,000,000 or any whole
multiple of $1,000,000 in excess thereof.
(b) Each permanent reduction of the Revolving Credit Commitment
made pursuant to this Section 2.5 shall be accompanied, if necessary, by a
payment of principal sufficient to reduce the aggregate outstanding
Revolving Credit Loans and L/C Obligations, as applicable, after such
reduction to the Revolving Credit Commitment as so reduced and if the
Revolving Credit Commitment as so reduced is less than the aggregate amount
of all outstanding Letters of Credit, the Borrower shall be required to
deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the amount by which the aggregate then undrawn and
unexpired amount of such Letters of Credit exceeds the Revolving Credit
Commitment as so
reduced. Any reduction of the Revolving Credit Commitment to zero
(including upon termination of the Revolving Credit Facility on the
Revolving Credit Termination Date) shall be accompanied by payment of all
outstanding Revolving Credit Loans (and furnishing of cash collateral
satisfactory to the Administrative Agent for all L/C Obligations) and shall
result in the termination of the Revolving Credit Commitment and the
Revolving Credit Facility. Such cash collateral shall be applied in
accordance with Section 12.2(b). If the reduction of the Revolving Credit
Commitment requires the repayment of any LIBOR Rate Loan, such repayment
shall be accompanied by any amount required to be paid pursuant to Section
5.9 hereof.
SECTION 2.6 Termination of Revolving Credit Facility. The
Revolving Credit Facility shall terminate on the earliest of (a) October 1,
1999, (b) the date of termination of the entire Revolving Credit Commitment
by the Borrower pursuant to Section 2.5(a), and (c) the date of termination
by the Administrative Agent on behalf of the Lenders pursuant to Section
12.2(a); provided, that the Borrower may request on an annual basis a
364-day extension of the date set forth in clause (a) above by providing
the Administrative Agent and each of the Lenders with a written request for
such extension not more than ninety (90) days and not fewer than sixty (60)
days prior to the then existing Revolving Credit Termination Date; provided
further that each such extension shall be subject to the satisfaction by
the Borrower of each of the conditions set forth in Section 6.3 on the then
existing Revolving Credit Termination Date. Each of the Lenders shall
provide written notice to the Administrative Agent on or prior to the
thirtieth (30th) day (the "Consent Date") before the then existing
Revolving Credit Termination Date of its desire to extend (any such Lender,
a "Consenting Lender") or not to so extend (any such Lender, a
"Non-Consenting Lender") such date; provided further, that the Termination
Date shall not in any event extend beyond October 1, 2001. No Lender shall
be under any obligation or commitment to extend such date and no such
obligation or commitment on the part of any Lender shall be inferred from
the provisions of this Section 2.6. Failure on the part of any Lender to
respond to such request by the required date set forth above shall be
deemed to be a denial by such Lender of such request and all Revolving
Credit Loans of such Non-Consenting Lender shall be subject to the then
existing Revolving Credit Termination Date. If Lenders holding Revolving
Credit Commitment Percentages aggregating less than one hundred percent
(100%) of the Revolving Credit Commitment consent to such extension, the
Borrower may elect by written notice to the Administrative Agent and
Lenders to (i) continue the Revolving Credit Facility for such additional
period (with a Revolving Credit Commitment equal to the then effective
Revolving Credit Commitment less the total Revolving Credit Commitment of
the Non-Consenting Lenders) or (ii) require any such Non-Consenting Lender
to transfer and assign without recourse (in accordance with the provisions
of Section 14.10) its Revolving Credit Commitment and other interests,
rights and obligations under this Agreement to an Eligible Assignee (who
consents thereto), which shall assume such obligations upon its consent to
assume such obligations; provided that (A) no such assignment shall
conflict with any Applicable Law, (B) such assignment shall be at the cost
and expense of the Borrower and (C) the purchase price to be paid to such
Non-Consenting Lender shall be an amount equal to the outstanding principal
amount of the Revolving Credit Loans of such Non-Consenting Lender plus all
interest accrued and unpaid thereon and all other amounts owing to such
Non-Consenting Lender thereon. The Administrative Agent shall provide a
written list of the Consenting Lenders and Non-Consenting Lenders to the
Borrower and the Lenders promptly following the Consent Date (but in no
event less than twenty (20) days prior to the existing Revolving Credit
Termination Date). If the extension is granted, upon the then existing date
set forth in clause (a) of this Section 2.6, such date shall be extended to
the date which is 364 days from the then current date set forth therein.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other
Lenders set forth in Section 3.4(a), agrees to issue trade letters of
credit ("Letters of Credit") for the account of the Borrower on any
Business Day from the Closing Date through but not including the Revolving
Credit Termination Date in such form as may be approved from time to time
by such Issuing Lender; provided, that no Issuing Lender shall have any
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b)
the aggregate principal amount of outstanding Revolving Credit Loans, plus
the aggregate principal amount of L/C Obligations would exceed the
Revolving Credit Commitment. Each Letter of Credit shall (i) be denominated
in Dollars, (ii) be a trade letter of credit issued to support obligations
of the Borrower or any of its Subsidiaries, contingent or otherwise,
incurred in the ordinary course of business, (iii) expire on a date no
later than two hundred twenty-five (225) days from the date of issuance
thereof and (iv) be subject to the Uniform Customs and, to the extent not
inconsistent therewith, the laws of the State of New York. No Issuing
Lender shall at any time be obligated to issue any Letter of Credit
hereunder if such issuance would conflict with, or cause such Issuing
Lender or any L/C Participant to exceed any limits imposed by, any
Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications
of any existing Letters of Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that any Issuing Lender issue a
Letter of Credit (or amend, extend or renew an outstanding Letter of
Credit) by delivering to such Issuing Lender at any Issuing Lender's office
at any address mutually acceptable to the Borrower and such Issuing Lender
an Application therefor, completed to the satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and
information as such Issuing Lender may reasonably request. Upon receipt of
any Application, such Issuing Lender shall process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall,
subject to Section 3.1 and Article VI hereof, promptly issue the Letter of
Credit (or amend, extend or renew the outstanding Letter of Credit)
requested thereby (but in no event shall any Issuing Lender be required to
issue any Letter of Credit (or amend, extend or renew an outstanding Letter
of Credit) earlier than three (3) Business Days after its receipt of the
Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such
Letter of Credit to the beneficiary thereof or as otherwise may be agreed
by such Issuing Lender and the Borrower. Within fifteen (15) Business Days
after the end of each month, the
Administrative Agent shall report to each Lender the average daily
outstandings for each day in such month for all Letters of Credit during
the previous month.
SECTION 3.3 Fees and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the
account of each Issuing Lender and the L/C Participants, a letter of credit
fee (the "L/C Fee") with respect to each Letter of Credit in an amount
equal to the Applicable Margin times the average daily undrawn amount of
such issued Letter of Credit as reported by the Administrative Agent
pursuant to Section 3.2. Such fee shall be payable quarterly in arrears
within fifteen (15) Business Days after the end of each calendar quarter
and on the Revolving Credit Termination Date.
(b) The Administrative Agent shall, promptly following its
receipt thereof, distribute to each Issuing Lender and the L/C Participants
all fees received by the Administrative Agent in accordance with their
respective Revolving Credit Commitment Percentages.
SECTION 3.4 L/C Participations.
(a) Each Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce such Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from such Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Commitment Percentage in such Issuing
Lender's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by such Issuing Lender
thereunder. Each L/C Participant unconditionally and irrevocably agrees
with each Issuing Lender that, if a draft is paid under any Letter of
Credit for which such Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C
Participant shall pay to such Issuing Lender upon demand at such Issuing
Lender's address for notices specified herein an amount equal to such L/C
Participant's Revolving Credit Commitment Percentage of the amount of such
draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any
L/C Participant to any Issuing Lender pursuant to Section 3.4(a) in respect
of any unreimbursed portion of any payment made by such Issuing Lender
under any Letter of Credit, the Administrative Agent shall notify each L/C
Participant of the amount and due date of such required payment and such
L/C Participant shall pay to such Issuing Lender the amount specified on
the applicable due date. If any such amount is paid to such Issuing Lender
after the date such payment is due, such L/C Participant shall pay to such
Issuing Lender on demand, in addition to such amount, the product of (i)
such amount, times (ii) the daily average Federal Funds Rate as determined
by the Administrative Agent during the period from and including the date
such payment is due to the date on which such payment is immediately
available to such Issuing Lender, times (iii) a fraction the numerator of
which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of any Issuing Lender with
respect to any amounts owing under this Section 3.4(b) shall be conclusive
in the absence of manifest error. With respect to payment to any Issuing
Lender of the unreimbursed amounts described in this Section
3.4(b), if the L/C Participants receive notice that any such payment is due
(A) prior to 1:00 p.m. (Charlotte time) on any Business Day, such payment
shall be due that Business Day, and (B) after 1:00 p.m. (Charlotte time) on
any Business Day, such payment shall be due on the following Business Day.
(c) Whenever, at any time after any Issuing Lender has made
payment under any Letter of Credit and has received from any L/C
Participant its Revolving Credit Commitment Percentage of such payment in
accordance with this Section 3.4, such Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the Borrower or
otherwise, or any payment of interest on account thereof), such Issuing
Lender will distribute to such L/C Participant its pro rata share thereof
in accordance with such L/C Participant's Revolving Credit Commitment
Percentage; provided, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing
Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. The
Borrower agrees to reimburse each Issuing Lender on each date the
Administrative Agent notifies the Borrower of the date and amount of a
draft paid under any Letter of Credit for the amount of (a) such draft so
paid and (b) any taxes, fees, charges or other costs or expenses incurred
by any Issuing Lender in connection with such payment. Each such payment
shall be made to any Issuing Lender at its address for notices specified
herein in lawful money of the United States and in immediately available
funds. Interest shall be payable on any and all amounts remaining unpaid by
the Borrower under this Article III from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate which would be payable on any outstanding Base
Rate Loans which were then overdue. If the Borrower fails to timely
reimburse such Issuing Lender on the date the Borrower receives the notice
referred to in this Section 3.5, the Borrower shall be deemed to have
timely given a Notice of Revolving Credit Borrowing pursuant to Section 2.2
hereunder to the Administrative Agent requesting the Lenders to make a Base
Rate Loan on such date in an amount equal to the amount of such draft paid,
together with any taxes, fees, charges or other costs or expenses incurred
by any Issuing Lender and to be reimbursed pursuant to this Section 3.5
and, regardless of whether or not the conditions precedent specified in
Article VI have been satisfied, the Lenders shall make Base Rate Loans in
such amount, the proceeds of which shall be applied to reimburse such
Issuing Lender for the amount of the related drawing and costs and
expenses. Notwithstanding the foregoing, nothing in this Section 3.5 shall
obligate the Lenders to make such Base Rate Loans if the making of such
Base Rate Loans would violate the automatic stay under federal bankruptcy
laws.
SECTION 3.6 Obligations Absolute. The Borrower's obligations
under this Article III (including without limitation the Reimbursement
Obligation) shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Borrower may have or have had against any Issuing Lender
or any beneficiary of a Letter of Credit. The Borrower also agrees with
each Issuing Lender that no Issuing Lender shall be responsible for, and
the Borrower's Reimbursement Obligation under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even though such documents shall in fact
prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which
such Letter of Credit may be transferred or any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee. No Issuing Lender shall be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message
or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions caused by such Issuing Lender's gross
negligence or willful misconduct. The Borrower agrees that any action taken
or omitted by any Issuing Lender under or in connection with any Letter of
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of
care specified in the Uniform Customs and, to the extent not inconsistent
therewith, the UCC shall be binding on the Borrower and shall not result in
any liability of any Issuing Lender to the Borrower. The responsibility of
each Issuing Lender to the Borrower in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that any
provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Article III, the provisions of
this Article III shall apply.
ARTICLE IV
[RESERVED]
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this
Section 5.1, at the election of the Borrower, the aggregate principal
balance of any Revolving Credit Loans shall bear interest at (i) the Base
Rate plus the Applicable Margin or (ii) the LIBOR Rate plus the Applicable
Margin; provided that LIBOR Rate Loans shall not be available until three
(3) Business Days after the Closing Date unless the Borrower executes and
delivers an indemnity in favor of the Administrative Agent and the Lenders
in form and substance satisfactory to them. The Borrower shall select the
rate of interest and Interest Period, if any, applicable to any Revolving
Credit Loan at the time a Notice of Revolving Credit Borrowing is given
pursuant to Section 2.2 or at the time a Notice of Conversion/Continuation
is given pursuant to Section 5.2. Each Revolving Credit Loan or portion
thereof bearing interest based on the Base Rate shall be a "Base Rate
Loan", and each Revolving Credit Loan or portion thereof bearing interest
based on the LIBOR Rate shall be a "LIBOR Rate Loan." Any Revolving Credit
Loan or any portion
thereof as to which the Borrower has not duly specified an interest rate as
provided herein shall be deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan,
the Borrower, by giving notice at the times described in Section 5.1(a),
shall elect an interest period (each, an "Interest Period") to be
applicable to such Revolving Credit Loan, which Interest Period shall,
unless otherwise agreed by the Administrative Agent and the Lenders, be a
period of one (1), two (2), three (3), or six (6) months with respect to
each LIBOR Rate; provided that:
(i) the Interest Period shall commence on the date of advance of
or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall
commence on the date on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise expire on a day that
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with
respect to a LIBOR Rate Loan would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of the relevant calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit
Termination Date; and
(v) there shall be no more than six (6) Interest Periods in
effect at any time.
(c) Default Rate. Subject to Section 12.3, at the discretion of
the Administrative Agent and Required Lenders, upon the occurrence and
during the continuance of an Event of Default, (i) the Borrower shall no
longer have the option to request LIBOR Rate Loans, (ii) all outstanding
LIBOR Rate Loans shall bear interest at a rate per annum two percent (2%)
in excess of the rate then applicable to LIBOR Rate Loans, as applicable,
until the end of the applicable Interest Period and thereafter at a rate
equal to two percent (2%) in excess of the rate then applicable to Base
Rate Loans, and (iii) all outstanding Base Rate Loans shall bear interest
at a rate per annum equal to two percent (2%) in excess of the rate then
applicable to Base Rate Loans. Interest shall continue to accrue on the
amount of Revolving Credit Loans outstanding after the filing by or against
the Borrower of any petition seeking any relief in bankruptcy or under any
act or law pertaining to insolvency or debtor relief, whether state,
federal or foreign.
(d) Interest Payment and Computation. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing December 31, 1998; and interest on each LIBOR Rate Loan
shall be payable on the last day of each Interest Period applicable
thereto, and if such Interest Period exceeds three (3) months, at the end
of each three (3) month interval during such Interest Period. Interest on
LIBOR Rate Loans and all fees payable hereunder shall be computed on the
basis of a 360-day year and assessed for the actual number of days elapsed
and interest on Base Rate Loans shall be computed on the basis of a
365/66-day year and assessed for the actual number of days elapsed.
(e) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the
Revolving Credit Notes charged or collected pursuant to the terms of this
Agreement or pursuant to any of the Revolving Credit Notes exceed the
highest rate permissible under any Applicable Law which a court of
competent jurisdiction shall, in a final determination, deem applicable
hereto. In the event that such a court determines that the Lenders have
charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the
maximum rate permitted by Applicable Law and the Lenders shall at the
Administrative Agent's option (i) promptly refund to the Borrower any
interest received by Lenders in excess of the maximum lawful rate or (ii)
shall apply such excess to the principal balance of the Obligations. It is
the intent hereof that the Borrower not pay or contract to pay, and that
neither the Administrative Agent nor any Lender receive or contract to
receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may be paid by the Borrower under Applicable Law.
SECTION 5.2 Notice and Manner of Conversion or Continuation of
Revolving Credit Loans. Provided that no Event of Default has occurred and
is then continuing, the Borrower shall have the option (a) to convert all
or any portion of its outstanding Base Rate Loans in a principal amount
equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans and (b), (i) to convert all or any part
of its outstanding LIBOR Rate Loans in a principal amount equal to
$1,000,000 or a whole multiple of $250,000 in excess thereof into Base Rate
Loans or (ii) to continue such LIBOR Rate Loans as LIBOR Rate Loans for an
additional Interest Period; provided that if any conversion or continuation
is made prior to the expiration of any Interest Period, the Borrower shall
pay any amount required to be paid pursuant to Section 5.9 hereof. Whenever
the Borrower desires to convert or continue Revolving Credit Loans as
provided above, the Borrower shall give the Administrative Agent
irrevocable prior written notice in the form attached as Exhibit E (a
"Notice of Conversion/Continuation") not later than 11:00 a.m. (Charlotte
time) three (3) Business Days before the day on which a proposed conversion
or continuation of such Revolving Credit Loan is to be effective (except in
the case of a conversion of a LIBOR Rate Loan to a Base Rate Loan in which
case same day notice by the Borrower shall be sufficient) specifying (A)
the Revolving Credit Loans to be converted or continued, and, in the case
of any LIBOR Rate Loan to be converted or continued, the last day of the
Interest Period therefor, (B) the effective date of such conversion or
continuation (which shall be a Business Day), (C) the principal amount of
such Revolving Credit Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate
Loan. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation.
SECTION 5.3 Fees.
(a) Facility Fees. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders, a non-refundable facility fee (the
"Facility Fee") at a rate per annum equal to the Applicable Margin on the
full amount of the Revolving Credit Commitment, regardless of usage. The
facility fee shall be payable in arrears on the last Business Day of each
calendar quarter for the period commencing on the Closing Date and ending
on the Revolving Credit Termination Date. Such facility fee shall be
distributed by the Administrative Agent to the Lenders pro rata in
accordance with the Lenders' respective Revolving Credit Commitment
Percentages.
(b) Administrative Agent's and Other Fees. In order to compensate
the Administrative Agent for structuring and syndicating the Revolving
Credit Loans and for its obligations hereunder, the Borrower agrees to pay
to the Administrative Agent, for its account, the fees set forth in the
separate fee letter agreement executed by the Borrower and the
Administrative Agent dated September 4, 1998.
SECTION 5.4 Manner of Payment. Each payment by the Borrower on
account of the principal of or interest on the Revolving Credit Loans or of
any fee, commission or other amounts (including the Reimbursement
Obligation) payable to the Lenders under this Agreement or any Revolving
Credit Note shall be made not later than 1:00 p.m. (Charlotte time) on the
date specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent's Office for the account of the Lenders (other
than as set forth below) pro rata in accordance with their respective
Revolving Credit Commitment Percentages (except as specified below), in
Dollars, in immediately available funds and shall be made without any
set-off, counterclaim or deduction whatsoever. Any payment received after
such time but before 2:00 p.m. (Charlotte time) on such day shall be deemed
a payment on such date for the purposes of Section 12.1, but for all other
purposes shall be deemed to have been made on the next succeeding Business
Day. Any payment received after 2:00 p.m. (Charlotte time) shall be deemed
to have been made on the next succeeding Business Day for all purposes.
Upon receipt by the Administrative Agent of each such payment, the
Administrative Agent shall distribute to each Lender at its address for
notices set forth herein its pro rata share of such payment in accordance
with such Lender's Revolving Credit Commitment Percentage (except as
specified below), and shall wire advice of the amount of such credit to
each Lender. Each payment to the Administrative Agent of the L/C
Participants' commissions shall be made in like manner, but for the account
of the L/C Participants. Each payment to the Administrative Agent of
Administrative Agent's fees or expenses shall be made for the account of
the Administrative Agent and any amount payable to any Lender under Section
5.8, 5.9, 5.10, 5.11 or 14.2 shall be paid to the Administrative Agent for
the account of the applicable Lender. Subject to Section 5.1(b)(ii), if any
payment under this Agreement or any Revolving Credit Note shall be
specified to be made upon a day which is not a Business Day, it shall be
made on the next succeeding day which is a Business Day and such extension
of time shall in such case be included in computing any interest if payable
along with such payment.
SECTION 5.5 Crediting of Payments and Proceeds. In the event that
the Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 12.2, all payments
received by the Lenders upon the Revolving Credit Notes and the other
Obligations and all net proceeds from the enforcement of the Obligations
shall be applied first to all expenses then due and payable by the Borrower
hereunder, then to all indemnity obligations then due and payable by the
Borrower hereunder, then to all Administrative Agent's fees then due and
payable, then to all commitment and other fees and commissions then due and
payable, then to accrued and unpaid interest on the Revolving Credit Notes,
the Reimbursement Obligation and any termination payments due in respect of
a Hedging Agreement with any Lender or Affiliate of a Lender (which Hedging
Agreement is permitted hereunder) (pro rata in accordance with all such
amounts due), then to the principal amount of the Revolving Credit Notes
and Reimbursement Obligation (pro rata in accordance with all such amounts
due) and then to the cash collateral account described in Section 12.2(b)
hereof to the extent of any L/C Obligations then outstanding, in that
order.
SECTION 5.6 Adjustments. If any Lender (a "Benefited Lender")
shall at any time receive any payment of all or part of the Obligations
owing to it, or interest thereon, or if any Lender shall at any time
receive any collateral in respect to the Obligations owing to it (whether
voluntarily or involuntarily, by set-off or otherwise) in a greater
proportion than any such payment to and collateral received by any other
Lender, if any, in respect of the Obligations owing to such other Lender,
or interest thereon, such Benefited Lender shall purchase for cash from the
other Lenders such portion of each such other Lender's Extensions of
Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders; provided, that if all or any
portion of such excess payment or benefits is thereafter recovered from
such Benefited Lender, such purchase shall be rescinded, and the purchase
price and benefits returned to the extent of such recovery, but without
interest. The Borrower agrees that each Lender so purchasing a portion of
another Lender's Extensions of Credit may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
SECTION 5.7 Nature of Obligations of Lenders Regarding Extensions
of Credit; Assumption by the Administrative Agent. The obligations of the
Lenders under this Agreement to make the Revolving Credit Loans and issue
or participate in Letters of Credit are several and are not joint or joint
and several. Unless the Administrative Agent shall have received notice
from a Lender prior to a proposed borrowing date that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of
the amount to be borrowed on such date (which notice shall not release such
Lender of its obligations hereunder), the Administrative Agent may assume
that such Lender has made such portion available to the Administrative
Agent on the proposed borrowing date in accordance with Sections 2.2(b) and
4.2, and the Administrative Agent may, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If such
amount is made available to the Administrative Agent on a date after such
borrowing date, such Lender shall pay to the Administrative Agent on demand
an amount, until paid, equal to the product of (a) the amount not made
available by such Lender in accordance with the terms hereof, times (b) the
daily average Federal Funds Rate
during such period as determined by the Administrative Agent, times (c) a
fraction the numerator of which is the number of days that elapse from and
including such borrowing date to the date on which such amount not made
available by such Lender in accordance with the terms hereof shall have
become immediately available to the Administrative Agent and the
denominator of which is 360. A certificate of the Administrative Agent with
respect to any amounts owing under this Section 5.7 shall be conclusive,
absent manifest error. If such Lender's Revolving Credit Commitment
Percentage of such borrowing is not made available to the Administrative
Agent by such Lender within three (3) Business Days of such borrowing date,
the Administrative Agent shall be entitled to recover such amount made
available by the Administrative Agent with interest thereon at the rate per
annum applicable to such borrowing, on demand, from the Borrower. The
failure of any Lender to make available its Revolving Credit Commitment
Percentage of any Revolving Credit Loan requested by the Borrower shall not
relieve it or any other Lender of its obligation hereunder to make its
Revolving Credit Commitment Percentage of such Revolving Credit Loan
available on the borrowing date, but no Lender shall be responsible for the
failure of any other Lender to make its Revolving Credit Commitment
Percentage of such Revolving Credit Loan available on the borrowing date.
SECTION 5.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with
respect to any Interest Period: (i) the Administrative Agent or any Lender
(after consultation with Administrative Agent) shall determine that, by
reason of circumstances affecting the foreign exchange and interbank
markets generally, deposits in eurodollars, in the applicable amounts are
not being quoted via Dow Xxxxx Market Screen 3750 (or on any successor or
substitute page of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided
on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) or offered to
the Administrative Agent or such Lender for such Interest Period; or (ii)
the Required Lenders reasonably determine (which determination shall be
conclusive) and notify the Administrative Agent that the LIBOR Rate will
not adequately and fairly reflect the cost to the Required Lenders of
funding LIBOR Rate Loans for such Interest Period; then the Administrative
Agent shall forthwith give notice thereof to the Borrower. Thereafter,
until the Administrative Agent notifies the Borrower that such
circumstances no longer exist, the obligation of the Lenders to make LIBOR
Rate Loans and the right of the Borrower to convert any Revolving Credit
Loan to or continue any Revolving Credit Loan as a LIBOR Rate Loan shall be
suspended, and the Borrower shall repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such LIBOR Rate Loan
together with accrued interest thereon, on the last day of the then current
Interest Period applicable to such LIBOR Rate Loan or convert the then
outstanding principal amount of each such LIBOR Rate Loan to a Base Rate
Loan as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or
any of their respective Lending Offices) with any request or directive
(whether or not having the force
of law) issued after the date hereof of any such Authority, central bank or
comparable agency, shall make it unlawful or impossible for any of the
Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender
shall promptly give notice thereof to the Administrative Agent and the
Administrative Agent shall promptly give notice to the Borrower and the
other Lenders. Thereafter, until the Administrative Agent notifies the
Borrower that such circumstances no longer exist, (i) the obligations of
the Lenders to make LIBOR Rate Loans and the right of the Borrower to
convert any Revolving Credit Loan or continue any Revolving Credit Loan as
a LIBOR Rate Loan shall be suspended and thereafter the Borrower may select
only Base Rate Loans hereunder, and (ii) if any of the Lenders may not
lawfully continue to maintain a LIBOR Rate Loan to the end of the then
current Interest Period applicable thereto as a LIBOR Rate Loan, the
applicable LIBOR Rate Loan shall immediately be converted to a Base Rate
Loan for the remainder of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction
of, or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by any of the Lenders (or any of their respective
Lending Offices) with any request or directive (whether or not having the
force of law) issued after the date hereof of such Authority, central bank
or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect
to any Revolving Credit Note, Letter of Credit or Application or shall
change the basis of taxation of payments to any of the Lenders (or any of
their respective Lending Offices) of the principal of or interest on any
Revolving Credit Note, Letter of Credit or Application or any other amounts
due under this Agreement in respect thereof (except for changes in the rate
of tax on the overall net income of any of the Lenders or any of their
respective Lending Offices imposed by the jurisdiction in which such Lender
is organized or is or should be qualified to do business or such Lending
Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or
similar requirement against assets of, deposits with or for the account of,
or credit extended by any of the Lenders (or any of their respective
Lending Offices) or shall impose on any of the Lenders (or any of their
respective Lending Offices) or the foreign exchange and interbank markets
any other condition affecting any Revolving Credit Note; and the result of
any of the foregoing is to increase the costs to any of the Lenders of
maintaining any LIBOR Rate Loan or issuing or participating in Letters of
Credit or to reduce the yield or amount of any sum received or receivable
by any of the Lenders under this Agreement or under the Revolving Credit
Notes in respect of a LIBOR Rate Loan or Letter of Credit or Application,
then such Lender may promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify the Borrower of such fact and
demand compensation therefor and, within fifteen (15) days after such
notice by the Administrative Agent, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or Lenders
for such increased cost or reduction. The Administrative Agent and the
applicable Lender will promptly notify the Borrower of any event of which
it has knowledge
which will entitle such Lender to compensation pursuant to this Section
5.8(c); provided, that the Administrative Agent shall incur no liability
whatsoever to the Lenders or the Borrower in the event it fails to do so.
The amount of such compensation shall be determined, in the applicable
Lender's reasonable discretion, based upon the assumption that such Lender
funded its Revolving Credit Commitment Percentage of the LIBOR Rate Loans
in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical;
provided that no compensation shall be payable pursuant to the above if the
applicable Lender fails to demand compensation for such increased costs
within one-hundred eighty (180) days following the date on which such
Lender has actual knowledge of the event resulting in such increase. A
certificate of such Lender setting forth in reasonable detail the basis for
determining such amount or amounts necessary to compensate such Lender
shall be forwarded to the Borrower through the Administrative Agent and
shall be conclusively presumed to be correct save for manifest error.
(d) Mitigation Obligations; Replacement of Lenders.
(i) If any Lender requests compensation under this Section
5.8, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant
to Section 5.11, then such Lender shall use reasonable efforts to designate
a different lending office for funding or booking its Revolving Credit
Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (A) would eliminate or reduce
amounts payable pursuant to this Section 5.8 or Section 5.11, as the case
may be, in the future and (B) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(ii) If any Lender requests compensation under this Section
5.8, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant
to Section 5.11, or if any Lender defaults in its obligation to fund
Revolving Credit Loans hereunder, then the Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section
14.10), all its interests, rights and obligations under this Agreement to
an Eligible Assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (A)
the Borrower shall have received the prior written consent of the
Administrative Agent (and, if an L/C Commitment is being assigned, the
Issuing Bank), which consent shall not unreasonably be withheld, (B) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Revolving Credit Loans and participations in Letters of
Credit, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (C) in the case of any such assignment
resulting from a claim for compensation under this Section 5.8, such
assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 5.9 Indemnity. The Borrower hereby indemnifies each of
the Lenders against any loss or expense which may arise or be attributable
to each Lender's obtaining, liquidating or employing deposits or other
funds acquired to effect, fund or maintain any Revolving Credit Loan (a) as
a consequence of any failure by the Borrower to make any payment when due
of any amount due hereunder in connection with a LIBOR Rate Loan, (b) due
to any failure of the Borrower to borrow on a date specified therefor in a
Notice of Revolving Credit Borrowing or Notice of Continuation/Conversion
or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan
on a date other than the last day of the Interest Period therefor. The
amount of such loss or expense shall be determined, in the applicable
Lender's reasonable discretion, based upon the assumption that such Lender
funded its Revolving Credit Commitment Percentage of the LIBOR Rate Loans
in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical;
provided that no compensation shall be payable pursuant to the above if the
applicable Lender fails to demand compensation for such increased costs
within one-hundred eighty (180) days following the date on which such
Lender has actual knowledge of the event resulting in such increase. A
certificate of such Lender setting forth in reasonable detail the basis for
determining such amount or amounts necessary to compensate such Lender
shall be forwarded to the Borrower through the Administrative Agent and
shall be conclusively presumed to be correct save for manifest error.
SECTION 5.10 Capital Requirements. If either (a) the introduction
of, or any change in, or in the interpretation of, any Applicable Law or
(b) compliance with any guideline or request issued after the date hereof
from any central bank or comparable agency or other Governmental Authority
(whether or not having the force of law), has or would have the effect of
reducing the rate of return on the capital of, or has affected or would
affect the amount of capital required to be maintained by, any Lender or
any corporation controlling such Lender as a consequence of, or with
reference to any Lender's Revolving Credit Commitment and other commitments
of this type, below the rate which the Lender or such other corporation
could have achieved but for such introduction, change or compliance, then
within five (5) Business Days after written demand by any such Lender, the
Borrower shall pay to such Lender from time to time as specified by such
Lender additional amounts sufficient to compensate such Lender or other
corporation for such reduction; provided that no compensation shall be
payable pursuant to the above if the applicable Lender fails to demand
compensation for such increased costs within one-hundred eighty (180) days
following the date on which such lender has actual knowledge of the event
resulting in such increase. A certificate of such Lender setting forth in
reasonable detail the basis for determining such amounts necessary to
compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save
for manifest error.
SECTION 5.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Revolving Credit Notes or the Letters of Credit
shall be made free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative
Agent, income and franchise taxes imposed on (or measured by) its net
income by the United States of America or by the jurisdiction under the
laws of which such Lender or the Administrative Agent (as the case may be)
is organized or its principal office is located or is or should be
qualified to do business or any political subdivision thereof, or in the
case of any Lender, in which its applicable Lending Office is located
(provided, however, that no Lender shall be deemed to be located in any
jurisdiction solely as a result of taking any action related to this
Agreement or the Revolving Credit Notes or Letters of Credit) and (ii) any
branch profits tax imposed by the United States of America or any similar
tax imposed by any other jurisdiction described in clause (i) above (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "Taxes"). If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Revolving Credit Note or Letter of Credit to
any Lender or the Administrative Agent, (A) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 5.11) such Lender or the Administrative Agent (as the case may be)
receives an amount equal to the amount such party would have received had
no such deductions been made, (B) the Borrower shall make such deductions,
(C) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law, and (D) the
Borrower shall deliver to the Administrative Agent evidence of such payment
to the relevant taxing authority or other authority in the manner provided
in Section 5.11(d). The Borrower shall not, however, be required to pay any
amounts pursuant to clause (A) of the preceding sentence to any Foreign
Lender or the Administrative Agent not organized under the laws of the
United States of America or a state thereof (or the District of Columbia)
if such Foreign Lender or the Administrative Agent fails to comply with the
requirements of paragraph (e) or Section 5.8(d), as the case may be.
(b) Stamp and Other Taxes. In addition, the Borrower shall pay
any present or future stamp, registration, recordation or documentary taxes
or any other similar fees or charges or excise or property taxes, levies of
the United States or any state or political subdivision thereof or any
applicable foreign jurisdiction which arise from any payment made hereunder
or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Revolving Credit Loans, the Letters of
Credit, the other Loan Documents, or the perfection of any rights or
security interest in respect thereto (hereinafter referred to as "Other
Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes and Other Taxes imposed by any
jurisdiction on amounts payable under this Section 5.11) paid by such
Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. A certificate as to the amount of such payment or
liability prepared by a Lender or the Administrative Agent, absent manifest
error, shall be conclusive, provided that if the Borrower reasonably
believes that such Taxes or Other Taxes were not correctly or legally
asserted, such Lender or the Administrative Agent (as the case may be)
shall use reasonable efforts to cooperate with the Borrower, at the
Borrower's
expense, to obtain a refund of such Taxes or Other Taxes. Such
indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written
demand therefor. If a Lender or the Administrative Agent shall become aware
that it is entitled to receive a refund in respect of Taxes or Other Taxes,
it promptly shall notify the Borrower of the availability of such refund
and shall, within sixty (60) days after receipt of a request by the
Borrower pursue or timely claim such refund at the Borrower's expense. If
any Lender or the Administrative Agent receives a refund in respect of any
Taxes or Other Taxes for which such Lender or the Administrative Agent has
received payment from the Borrower hereunder, it promptly shall repay such
refund (plus interest received, if any) to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 5.11 with respect to Taxes or Other Taxes
giving rise to such refund), provided that the Borrower, upon the request
of such Lender or the Administrative Agent, agrees to return such refund
(plus any penalties, interest or other charges required to be paid) to such
Lender or the Administrative Agent in the event such Lender or the
Administrative Agent is required to repay such refund to the relevant
taxing authority.
(d) Evidence of Payment. Within thirty (30) days after the date
of any payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 14.1, the
original or a certified copy of a receipt evidencing payment thereof or
other evidence of payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. Each Foreign Lender shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date
or concurrently with the delivery of the relevant Assignment and
Acceptance, as applicable, (i) two United States Internal Revenue Service
Forms 4224 or Forms 1001, as applicable (or successor forms) properly
completed and certifying in each case that such Foreign Lender is entitled
to a complete exemption from withholding or deduction for or on account of
any United States federal income taxes, and (ii) an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be,
to establish an exemption from United States backup withholding taxes. Each
Foreign Lender further agrees to deliver to the Borrower, with a copy to
the Administrative Agent, a Form 1001 or 4224 and Form W-8 or W-9, or
successor applicable forms or manner of certification, as the case may be,
on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower, certifying in the case of
a Form 1001 or 4224 that such Foreign Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes (unless in any such case an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders such forms inapplicable or the exemption to which
such forms relate unavailable and such Foreign Lender notifies the Borrower
and the Administrative Agent that it is not entitled to receive payments
without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section
5.11 shall survive the payment in full of the Obligations and the
termination of the Revolving Credit Commitment.
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1 Closing. The closing shall take place at the offices
of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P. at 10:00 a.m. on October 15,
1998 or on such other date and such other time as the parties hereto shall
mutually agree.
SECTION 6.2 Conditions to Closing and Initial Revolving Credit
Loans and Letters of Credit. The obligation of the Lenders to close this
Agreement and to make the initial Revolving Credit Loans or issue the
initial Letters of Credit is subject to the satisfaction or waiver of each
of the following conditions:
(a) Executed Loan Documents. This Agreement and the Revolving
Credit Notes shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force and
effect and no default shall exist thereunder, and the Borrower shall have
delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officers' Certificate of the Borrower. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance reasonably satisfactory to the
Administrative Agent, to the effect that all representations and warranties
of the Borrower contained in this Agreement and the other Loan Documents
are true, correct and complete in all material respects; that the Borrower
is not in violation of any of the covenants contained in this Agreement and
the other Loan Documents; that, after giving effect to the transactions
contemplated by this Agreement, no Default or Event of Default has occurred
and is continuing; and that each of the closing conditions has been
satisfied or waived (assuming satisfaction of the Administrative Agent
where not advised otherwise).
(ii) General Certificate of the Borrower. The Administrative
Agent shall have received a certificate of the secretary, assistant
secretary or general counsel of the Borrower certifying as to the
incumbency and genuineness of the signature of each officer of the Borrower
executing Loan Documents to which it is a party and certifying that
attached thereto is a true, correct and complete copy of (A) the articles
of incorporation of the Borrower and all amendments thereto, certified as
of a recent date by the appropriate Governmental Authority in its
jurisdiction of incorporation, (B) the bylaws of the Borrower as in effect
on the date of such certifications, (C) resolutions duly adopted by the
Board of Directors of the Borrower authorizing the borrowings contemplated
hereunder and the execution, delivery and performance of this Agreement and
the other Loan Documents to which it is a party, and (D) each certificate
required to be delivered pursuant to Section 6.2(b)(iii).
(iii) Certificates of Good Standing. The Administrative
Agent shall have received long-form certificates as of a recent date of the
good standing of the Borrower under the laws of its jurisdiction of
organization and short-form certificates as of a recent date of the good
standing of the Borrower under the laws of each other jurisdiction where
the Borrower is qualified to do business.
(iv) Opinions of Counsel. The Administrative Agent shall
have received favorable opinions of Xxx X. Xxxxxx, General Counsel to the
Borrower, Cravath, Swaine & Xxxxx, special counsel to the Borrower, and
Mesirov, Gelman, Jaffe, Xxxxxx & Xxxxxxxx, Pennsylvania counsel to the
Borrower, addressed to the Administrative Agent and the Lenders with
respect to the Borrower, the Loan Documents and such other matters as the
Lenders shall reasonably request.
(c) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrower
shall have obtained all necessary approvals, authorizations and consents of
any Person and of all Governmental Authorities and courts having
jurisdiction with respect to the transactions contemplated by this
Agreement and the other Loan Documents.
(ii) No Event of Default. No Default or Event of Default
shall have occurred and be continuing.
(d) Financial Matters.
(i) Financial Statements. The Administrative Agent shall
have received the unaudited Consolidated financial statements of the
Borrower and its Subsidiaries and for the six (6) months ended as of June
28, 1998. Such financial statements shall be in form and substance
satisfactory to the Administrative Agent.
(ii) Financial Condition Certificate. The Borrower shall
have delivered to the Administrative Agent a certificate, in form and
substance reasonably satisfactory to the Administrative Agent, and
certified by a Responsible Officer, that (A) attached thereto is a pro
forma balance sheet of the Borrower and its Subsidiaries setting forth on a
pro forma basis the financial condition of the Borrower and its
Subsidiaries on a Consolidated basis as of the date of the Prior Credit
Agreement, reflecting on a pro forma basis the effect of the transactions
contemplated herein, including all fees and expenses in connection
therewith, and evidencing compliance on a pro forma basis with the
covenants contained in Article X hereof and (B) the financial projections
(other than with respect to Sun and its Subsidiaries, as to which the
Borrower need not certify) previously delivered to the Administrative Agent
were prepared in good faith based upon assumptions believed to be
reasonable at the time.
(iii) Payment at Closing; Fee Letters. The Borrower shall
have paid the fees set forth or referenced in Section 5.3(b) and any other
accrued and unpaid fees or commissions due hereunder (including, without
limitation, reasonable legal fees and expenses) to the Administrative Agent
and Lenders, and to any other Person such amount as may be due
thereto in connection with the transactions contemplated hereby, including
all taxes, fees and other charges in connection with the execution,
delivery, recording, filing and registration of any of the Loan Documents.
The Administrative Agent shall have received duly authorized and executed
copies of the fee letter agreement referred to in Section 5.3(b).
(e) Miscellaneous.
(i) Closing of the Three-Year Credit Agreement. The
Three-Year Credit Agreement shall be closed contemporaneously with this
Agreement on terms and conditions as set forth therein.
(ii) Notice of Revolving Credit Borrowing. The
Administrative Agent shall have received a Notice of Revolving Credit
Borrowing from the Borrower in accordance with Section 2.2(a) and Section
4.2, and a Notice of Account Designation specifying the account or accounts
to which the proceeds of any Revolving Credit Loans made after the Closing
Date are to be disbursed.
(iii) Proceedings and Documents. All opinions, certificates
and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be satisfactory in form
and substance to the Lenders.
(iv) Investment Policy. The Borrower shall have delivered to
the Administrative Agent a true and complete copy of the investment policy
referenced in Section 11.4(b) in form and content reasonably acceptable to
the Administrative Agent.
(f) Refinancing. On the Closing Date hereunder, (i) all
outstanding loans under the Prior Credit Agreement ("Existing Loans") shall
be deemed Revolving Credit Loans hereunder and the Administrative Agent
shall make such transfers of funds as are necessary in order that the
outstanding balance of such Revolving Credit Loans, together with any
Revolving Credit Loans funded on the Closing Date, reflect the Revolving
Credit Commitment of the Lenders hereunder, (ii) all outstanding letters of
credit issued pursuant to the Prior Credit Agreement shall be deemed
Letters of Credit hereunder and each Lender shall purchase a participation
therein pursuant to Section 3.4 in accordance with its Revolving Credit
Commitment Percentage, (iii) there shall have been paid in cash in full all
accrued but unpaid interest due on the Existing Loans up to but excluding
the Closing Date, (iv) there shall have been paid in cash in full all
accrued but unpaid fees due under the Prior Credit Agreement up to but
excluding the Closing Date and all other amounts, costs and expenses then
owing to any of the Prior Lenders and/or any Agent, as agent under the
Prior Credit Agreement, in each case to the satisfaction of such Agent or
Prior Lender, as the case may be, regardless of whether or not such amounts
would otherwise be due and payable at such time pursuant to the terms of
the Prior Credit Agreement, (v) all outstanding promissory notes issued by
the Borrower to the Prior Lenders under the Prior Credit Agreement shall be
deemed canceled and the originally executed copies thereof shall be
canceled and promptly returned to the Administrative Agent who shall
promptly forward such notes to the Borrower and (vi) the commitments and,
except as expressly set forth in the Prior Credit Agreement, other
obligations and rights of the Borrower and the Prior Lenders shall be
terminated without any further action hereunder or thereunder.
SECTION 6.3 Conditions to All Extensions of Credit. The
obligations of the Lenders to make any Extensions of Credit are subject to
the satisfaction of the following conditions precedent on the relevant
borrowing or issue date, as applicable:
(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VII shall be true and
correct on and as of such borrowing or issuance date with the same effect
as if made on and as of such date; except for any representation and
warranty made as of an earlier date, which representation and warranty
shall remain true and correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall
have occurred and be continuing hereunder (i) on the borrowing date with
respect to such Revolving Credit Loan or after giving effect to the
Revolving Credit Loans to be made on such date or (ii) on the issue date
with respect to such Letter of Credit or after giving effect to such
Letters of Credit on such date.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE CREDIT PARTIES
SECTION 7.1 Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce
the Lenders to make Extensions of Credit, the Credit Parties hereby
represent and warrant to the Administrative Agent and Lenders that:
(a) Organization; Power; Qualification. Each of the Credit
Parties and their Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
formation, has the power and authority to own its properties and to carry
on its business as now being and hereafter proposed to be conducted and is
duly qualified and authorized to do business in each jurisdiction in which
the character of its properties or the nature of its business requires such
qualification and authorization, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.
(b) Ownership. Each Subsidiary of each of the Credit Parties as
of the Closing Date is listed on Schedule 7.1(b). As of the Closing Date,
the capitalization of the Credit Parties and their Subsidiaries consists of
the number of shares, authorized, issued and outstanding, of such classes
and series, with or without par value, described on Schedule 7.1(b). As of
the Closing Date, all outstanding shares have been duly authorized and
validly issued and are fully paid and nonassessable. The shareholders of
the Subsidiaries of the Credit Parties and the number of shares owned by
each as of the Closing Date are described on Schedule 7.1(b). As of the
Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type
or nature whatsoever, which are convertible into, exchangeable for or
otherwise provide for or permit the issuance of capital stock of the Credit
Parties or their Subsidiaries, except as described on Schedule 7.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing.
Each of the Credit Parties and, if applicable, their Subsidiaries has the
right, power and authority and has taken all necessary corporate and other
action to authorize the execution, delivery and performance of each of the
Loan Documents to which it is a party in accordance with their respective
terms. Each of the Loan Documents have been duly executed and delivered by
the duly authorized officers of the Credit Parties and each of their
Subsidiaries party thereto, as applicable, and each such document
constitutes the legal, valid and binding obligation of the Credit Parties
and, if applicable, each of their Subsidiaries party thereto, enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar state or
federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of
equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution, delivery and performance by the Credit Parties
and their Subsidiaries of the Loan Documents to which each such Person is a
party, in accordance with their respective terms, the borrowings hereunder
and the transactions contemplated hereby do not and will not, by the
passage of time, the giving of notice or otherwise, (i) require any of the
Credit Parties or any of their Subsidiaries to obtain any Governmental
Approval not otherwise already obtained or violate any Applicable Law
relating to the Credit Parties or any of their Subsidiaries other than as
required by federal and state securities laws with respect to the
Additional Debt Securities and the registration rights agreement relating
to the Sun Acquisition and other Governmental Approvals required in
connection with the Sun Acquisition, (ii) conflict with, result in a breach
of or constitute a default under the articles of incorporation, bylaws or
other organizational documents of the Credit Parties or any of their
Subsidiaries or any indenture or other material agreement or instrument to
which such Person is a party or by which any of its properties may be bound
or any Governmental Approval relating to such Person except as could not
reasonably be expected to have a Material Adverse Effect, or (iii) result
in or require the creation or imposition of any material Lien upon or with
respect to any property now owned or hereafter acquired by such Person.
(e) Compliance with Law; Governmental Approvals. Other than with
respect to environmental matters, which are treated exclusively in Section
7.1(h) hereof, each of the Credit Parties and their Subsidiaries (i) has
all Governmental Approvals required by any Applicable Law for it to conduct
its business, each of which is in full force and effect, is final and not
subject to review on appeal and is not the subject of any pending or, to
the best of its knowledge, threatened attack by direct or collateral
proceeding, and (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating
to it or any of its respective properties; in each case, except where the
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(f) Tax Returns and Payments. Each of the Credit Parties and
their Subsidiaries has timely filed or caused to be filed all federal and
state, local and other tax returns required by Applicable Law to be filed,
and has paid, or made adequate provision for the payment of, all federal
and state, local and other taxes, assessments and governmental charges or
levies upon it and its property, income, profits and assets which are due
and payable, except taxes (a) that are being contested in good faith by
appropriate proceedings and for which such Credit Party or
Subsidiary, as applicable, has set aside on its books adequate reserves or
(b) to the extent the failure to do so could not reasonably be expected to
have a Material Adverse Effect. No Governmental Authority has asserted any
material Lien or other claim against the Credit Parties or any Subsidiary
thereof with respect to unpaid taxes which has not been discharged or
resolved. The charges, accruals and reserves on the books of each of the
Credit Parties and any of their Subsidiaries in respect of federal and all
material state, local and other taxes for all Fiscal Years and portions
thereof since the organization of each of the Credit Parties and any of
their Subsidiaries are in the judgment of the Credit Parties adequate, and
the Credit Parties does not anticipate any additional taxes or assessments
for any of such years.
(g) Intellectual Property Matters. Each of the Credit Parties and
its Subsidiaries owns or possesses rights to use all franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses,
patent applications, trademarks, trademark rights, trade names, trade name
rights, copyrights and rights with respect to the foregoing which are
required to conduct its business except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect. No event has
occurred which, to the knowledge of the Credit Parties, permits, or after
notice or lapse of time or both would permit, the revocation or termination
of any such rights, and, to the knowledge of the Credit Parties, neither
the Credit Parties nor any Subsidiary thereof is liable to any Person for
infringement under Applicable Law with respect to any such rights as a
result of its business operations, except as could not reasonably be
expected to have a Material Adverse Effect.
(h) Environmental Matters. Except as could not reasonably be
expected to have a Material Adverse Effect:
(i) The properties of the Credit Parties and their
Subsidiaries do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations which (A)
constitute or constituted a violation of applicable Environmental Laws or
(B) could give rise to liability under applicable Environmental Laws;
(ii) The properties of the Credit Parties and their
Subsidiaries and all operations conducted in connection therewith are in
compliance, and have been in compliance, with all applicable Environmental
Laws, and there is no contamination at, under or about such properties or
such operations which could reasonably be expected to interfere with the
continued operation of such properties;
(iii) Neither any of the Credit Parties nor any Subsidiary
thereof has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws, nor does any of the Credit
Parties or any Subsidiary thereof have knowledge or reason to believe that
any such notice will be received or is being threatened;
(iv) To the knowledge of the Credit Parties, Hazardous
Materials have not been transported or disposed of from the properties of
the Credit Parties or any of their Subsidiaries in violation of, or in a
manner or to a location which could reasonably be expected to give rise to
liability under, Environmental Laws, nor, to the knowledge of the Credit
Parties,
have any Hazardous Materials been generated, treated, stored or disposed of
at, on or under any of such properties in violation of, or in a manner
which could reasonably be expected to give rise to liability under, any
Environmental Laws;
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Credit
Parties, threatened, under any Environmental Law to which any of the Credit
Parties or any Subsidiary thereof will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative orders
or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the properties or
operations of the Credit Parties and their Subsidiaries; and
(vi) To the knowledge of the Credit Parties, there has been
no release, or to the best of the Credit Parties' knowledge, the threat of
release, of Hazardous Materials at or from the properties of the Credit
Parties or any of their Subsidiaries, in violation of or in amounts or in a
manner that could reasonably be expected to give rise to liability under
Environmental Laws.
(i) ERISA.
(i) Each of the Credit Parties and each ERISA Affiliate is
in compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder with respect to all Employee
Benefit Plans except where any such non-compliance could not reasonably be
expected to have a Material Adverse Effect. Except for any failure that
would not reasonably be expected to have a Material Adverse Effect, each
Employee Benefit Plan that is intended to be qualified under Section 401(a)
of the Code has been determined by the Internal Revenue Service to be so
qualified, and each trust related to such plan has been determined to be
exempt under Section 501(a) of the Code. No liability that could reasonably
be expected to result in a Material Adverse Effect has been incurred by the
Credit Parties or any ERISA Affiliate which remains unsatisfied for any
taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan;
(ii) No accumulated funding deficiency (as defined in
Section 412 of the Code) has been incurred (without regard to any waiver
granted under Section 412 of the Code), nor has any funding waiver from the
Internal Revenue Service been received or requested with respect to any
Pension Plan;
(iii) Neither the Credit Parties nor any ERISA Affiliate
has: (A) engaged in a nonexempt prohibited transaction described in Section
406 of ERISA or Section 4975 of the Code, (B) incurred any liability to the
PBGC which remains outstanding other than the payment of premiums and there
are no premium payments which are due and unpaid, (C) failed to make a
required contribution or payment to a Multiemployer Plan, or (D) failed to
make a required installment or other required payment under Section 412 of
the Code except where any of the foregoing individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect;
(iv) No Termination Event that could reasonably be expected
to result in a Material Adverse Effect has occurred or is reasonably
expected to occur; and
(v) No proceeding, claim, lawsuit and/or investigation is
existing or, to the knowledge of the Credit Parties, threatened concerning
or involving any Employee Benefit Plan that could reasonably be expected to
result in a Material Adverse Effect.
(j) Margin Stock. Neither the Credit Parties nor any Subsidiary
thereof is engaged principally or as one of its activities in the business
of extending credit for the purpose of "purchasing" or "carrying" any
"margin stock" (as each such term is defined or used in Regulation U of the
Board of Governors of the Federal Reserve System). No part of the proceeds
of any of the Revolving Credit Loans or Letters of Credit will be used for
purchasing or carrying margin stock, unless the Credit Parties shall have
given the Administrative Agent and Lenders prior notice of such event and
such other information as is reasonably necessary to permit the
Administrative Agent and Lenders to comply, in a timely fashion, with all
reporting obligations required by Applicable Law, or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation
T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Credit Parties nor any
Subsidiary thereof is an "investment company" or a company "controlled" by
an "investment company" (as each such term is defined or used in the
Investment Company Act of 1940, as amended) and neither the Credit Parties
nor any Subsidiary thereof is, or after giving effect to any Extension of
Credit will be, subject to regulation under the Public Utility Holding
Company Act of 1935 or the Interstate Commerce Act, each as amended.
(l) Burdensome Provisions. Neither the Credit Parties nor any
Subsidiary thereof is a party to any indenture, agreement, lease or other
instrument, or subject to any corporate or partnership restriction,
Governmental Approval or Applicable Law which is so unusual or burdensome
as in the foreseeable future could be reasonably expected to have a
Material Adverse Effect. The Credit Parties and their Subsidiaries do not
presently anticipate that future expenditures needed to meet the provisions
of any statutes, orders, rules or regulations of a Governmental Authority
will be so burdensome as to have a Material Adverse Effect.
(m) Financial Statements. The (i) Consolidated balance sheets of
the Credit Parties and their Subsidiaries as of December 31, 1997, and the
related statements of income, stockholders' equity and cash flows for the
Fiscal Years then ended and (ii) unaudited Consolidated balance sheet of
the Credit Parties and their Subsidiaries as of June 28, 1998, and related
unaudited interim statements of income, stockholders' equity and cash
flows, copies of which have been furnished to the Administrative Agent and
each Lender, are complete in all material respects and fairly present in
all material respects the assets, liabilities and financial position of the
Credit Parties and their Subsidiaries as at such dates, and the results of
the operations and changes of financial position for the periods then
ended, subject to normal year end adjustments. All such financial
statements, including the related notes thereto, have been prepared in
accordance with GAAP.
(n) No Material Adverse Change. Since June 28, 1998, there has
been no Material Adverse Effect.
(o) Liens. None of the properties and assets of the Credit
Parties or any Subsidiary thereof is subject to any Lien, except Liens
permitted pursuant to Section 11.3.
(p) Debt and Guaranty Obligations. Schedule 7.1(p) is a complete
and correct listing of all Debt and Guaranty Obligations of the Credit
Parties and their Subsidiaries as of the Closing Date in excess of
$5,000,000.
(q) Litigation. Except for matters existing on the Closing Date
and set forth on Schedule 7.1(q), there are no actions, suits or
proceedings pending nor, to the knowledge of the Credit Parties, threatened
against or affecting the Credit Parties or any Subsidiary thereof or any of
their respective properties in any court or before any arbitrator of any
kind or before or by any Governmental Authority, which could reasonably be
expected to have a Material Adverse Effect.
(r) Absence of Defaults. To the knowledge of the Credit Parties,
no event has occurred or is continuing which constitutes a Default or an
Event of Default.
(s) Accuracy and Completeness of Information. The Credit Parties
have disclosed to the Lenders all agreements, instruments and corporate or
other restrictions to which they or any of their Subsidiaries are subject,
and all other matters known to them, that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
The written information, taken as a whole, furnished by or on behalf of the
Credit Parties to the Administrative Agent or any Lender (other than with
respect to Sun and any of its Subsidiaries and Affiliates) in connection
with the negotiation of this Agreement or delivered hereunder (as modified
or supplemented by other information so furnished) does not contain any
material misstatement of fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that, with respect to
projected financial information, the Credit Parties represent only that
such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.
(t) Year 2000 Compliance. The Credit Parties have (i) initiated a
review and assessment of all areas within their and each of their
Subsidiaries' material business and operations that could reasonably be
adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Credit Parties or any of their
Subsidiaries (or limited to the Credit Parties' inquiries, those disclosed
by their suppliers, vendors and customers as being in use) may be unable to
recognize and perform properly date-sensitive functions involving certain
dates prior to and any date after December 31, 1999), (ii) developed a
plan, strategy or other approach for addressing the Year 2000 Problem on a
timely basis, and (iii) implemented that plan, strategy or other approach.
Based on the foregoing and upon the Credit Parties' reliance on (i) any
Year 2000 consulting services, study, report or any other information
performed or provided by any Person other than the Credit Parties or any of
their Subsidiaries and (ii) any certification or assurance of Year 2000
compliance provided by any vendor, supplier, servicer, manufacturer,
customer or other provider of any hardware or software product
or other computer applications installed at the Credit Parties or any of
their Subsidiaries, the Credit Parties believe, as of the Closing Date,
that all computer applications (including, limited to the Credit Parties'
inquiries, those disclosed by their suppliers, vendors and customers) that
are material to their or any of their Subsidiaries' business and operations
are reasonably expected on a timely basis to be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to
do so could not reasonably be expected to have a Material Adverse Effect.
SECTION 7.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VII and all
representations and warranties contained in any certificate, or any of the
Loan Documents (including but not limited to any such representation or
warranty made in or in connection with any amendment thereto) shall
constitute representations and warranties made under this Agreement. All
representations and warranties made under this Agreement shall be made or
deemed to be made at and as of the Closing Date, shall survive the Closing
Date and shall not be waived by the execution and delivery of this
Agreement, any investigation made by or on behalf of the Lenders or any
borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations (other than Obligations under Hedging
Agreements) have been paid and satisfied in full and the Revolving Credit
Commitment terminated, unless consent has been obtained in the manner set
forth in Section 14.11 hereof, the Credit Parties will furnish or cause to
be furnished to the Administrative Agent and to the Lenders at their
respective addresses as set forth on Schedule 1, or such other office as
may be designated by the Administrative Agent and Lenders from time to
time:
SECTION 8.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in
any event within forty-five (45) days after the end of the first three
fiscal quarters of each Fiscal Year, an unaudited Consolidated balance
sheet of the Credit Parties and their Subsidiaries as of the close of such
fiscal quarter and unaudited Consolidated statements of income,
stockholders' equity and cash flows for the fiscal quarter then ended and
that portion of the Fiscal Year then ended, including the notes thereto,
all in reasonable detail setting forth in comparative form the
corresponding figures for the corresponding period or periods of (or, in
the case of the balance sheet, as of the end of) the preceding Fiscal Year
and prepared by the Credit Parties in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position
or results of operations of any change in the application of accounting
principles and practices during the period, and certified by a Responsible
Officer to present fairly in all material respects the financial condition
of the Credit Parties and their Subsidiaries as of their respective dates
and the results of operations of the Credit Parties and their Subsidiaries
for the respective periods then ended, subject to normal year end
adjustments.
(b) Annual Financial Statements. As soon as practicable and in
any event within ninety (90) days after the end of each Fiscal Year, an
audited Consolidated balance sheet of the Credit Parties and their
Subsidiaries as of the close of such Fiscal Year and audited Consolidated
statements of income, stockholders' equity and cash flows for the Fiscal
Year then ended, including the notes thereto, all in reasonable detail
setting forth in comparative form the corresponding figures for the
preceding Fiscal Year and prepared by a nationally recognized independent
certified public accounting firm in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position
or results of operation of any change in the application of accounting
principles and practices during the year, and accompanied by a report
thereon by such certified public accountants that is not qualified with
respect to scope limitations imposed by the Credit Parties or any of their
Subsidiaries or with respect to accounting principles followed by the
Credit Parties or any of their Subsidiaries not in accordance with GAAP.
SECTION 8.2 Officer's Compliance Certificate. At each time
financial statements are delivered pursuant to Section 8.1 (a) or (b) a
certificate of a Responsible Officer in the form of Exhibit E attached
hereto (an "Officer's Compliance Certificate").
SECTION 8.3 Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 8.1(b), a certificate of the
independent public accountants certifying such financial statements
addressed to the Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of
any Default or Event of Default or, if such is not the case, specifying
such Default or Event of Default and its nature and period of existence;
and
(b) including the calculations prepared by such accountants
required to establish whether or not the Credit Parties and their
Subsidiaries are in compliance with the financial covenants set forth in
Article X hereof as at the end of each respective period.
SECTION 8.4 Other Reports.
(a) Promptly but in any event within ten (10) Business Days after
the filing thereof, a copy of (i) each report or other filing made by the
Credit Parties or any or their Subsidiaries with the Securities and
Exchange Commission and required by the Securities and Exchange Commission
to be delivered to the shareholders of the Credit Parties or any or their
Subsidiaries, (ii) each report made by the Credit Parties or any of their
Subsidiaries to the Securities and Exchange Commission on Form 8-K and
(iii) each final registration statement of the Credit Parties or any of
their Subsidiaries filed with the Securities and Exchange Commission,
except in connection with pension plans and other employee benefit plans;
and
(b) Such other information regarding the operations, business
affairs and financial condition of the Credit Parties or any of their
Subsidiaries as the Administrative Agent or any Lender may reasonably
request.
SECTION 8.5 Notice of Litigation and Other Matters. Prompt (but
in no event later than ten (10) Business Days after a principal officer of
the Credit Parties obtains knowledge thereof) telephonic (confirmed in
writing) or written notice of:
(a) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving the Credit Parties or
any Subsidiary thereof or any of their respective properties, assets or
businesses which in the reasonable judgment of the Credit Parties could
reasonably be expected to have a Material Adverse Effect;
(b) any notice of any violation received by the Credit Parties or
any Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws, which in the
reasonable judgment of the Credit Parties in any such case could reasonably
be expected to have a Material Adverse Effect; and
(c) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan
under Section 401(a) of the Code (along with a copy thereof) which could
reasonably be expected to have a Material Adverse Effect, (ii) all notices
received by the Credit Parties or any ERISA Affiliate of the PBGC's intent
to terminate any Pension Plan or to have a trustee appointed to administer
any Pension Plan, (iii) all notices received by the Credit Parties or any
ERISA Affiliate from a Multiemployer Plan sponsor concerning the imposition
or amount of withdrawal liability pursuant to Section 4202 of ERISA which
could reasonably have a Material Adverse Effect and (iv) the Credit Parties
obtaining knowledge or reason to know that the Credit Parties or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any
Pension Plan under a distress termination within the meaning of Section
4041(c) of ERISA.
SECTION 8.6 Accuracy of Information. All written information,
reports, statements and other papers and data furnished by or on behalf of
the Credit Parties to the Administrative Agent or any Lender (other than
financial forecasts) whether pursuant to this Article VIII or any other
provision of this Agreement, shall be, at the time the same is so
furnished, true and complete in all material respects.
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations (other than any Obligations under
any Hedging Agreement) have been paid and satisfied in full and the
Revolving Credit Commitment terminated, unless consent has been obtained in
the manner provided for in Section 14.11, the Credit Parties will, and will
cause each of their Subsidiaries to:
SECTION 9.1 Preservation of Corporate Existence and Related
Matters. Except as permitted by Section 11.5, preserve and maintain its
separate corporate existence and all rights, franchises, licenses and
privileges necessary to the conduct of its business, and qualify and remain
qualified as a foreign corporation and authorized to do business in each
jurisdiction where the nature and scope of its activities require it to so
qualify under Applicable Law in which the failure to so qualify would have
a Material Adverse Effect.
SECTION 9.2 Maintenance of Property. Protect and preserve all
properties useful in and material to its business, including copyrights,
patents, trade names and trademarks; maintain in good working order and
condition all buildings, equipment and other tangible real and personal
property material to the conduct of its business, ordinary wear and tear
excepted; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of
its business, so that the business carried on in connection therewith may
be properly and advantageously conducted at all times.
SECTION 9.3 Insurance. Maintain insurance with financially sound
and reputable insurance companies against such risks and in such amounts as
are customarily maintained by similar businesses and as may be required by
Applicable Law.
SECTION 9.4 Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which
shall be true and complete in all material respects) as may be required or
as may be necessary to permit the preparation of financial statements in
accordance with GAAP and in compliance with the regulations of any
Governmental Authority having jurisdiction over it or any of its
properties.
SECTION 9.5 Payment and Performance of Obligations. Pay and
perform all Obligations under this Agreement and the other Loan Documents,
and pay (a) all material taxes, assessments and other governmental charges
that may be levied or assessed upon it or any of its property, and (b) all
other material indebtedness, obligations and liabilities in accordance with
customary trade practices; provided, that the Credit Parties or such
Subsidiary may contest any item described in clause (a) or (b) of this
Section 9.5 in good faith so long as adequate reserves are maintained with
respect thereto to the extent required by GAAP. It is expected that, after
the Asset Drop-Down Effective Date, all payments in respect of the
Obligations and the Additional Debt Securities will be made by Xxxxx
Apparel Group USA.
SECTION 9.6 Compliance With Laws and Approvals. Observe and
remain in compliance with all Applicable Laws and maintain in full force
and effect all Governmental Approvals, in each case applicable to the
conduct of its business except where the failure to observe or comply could
not reasonably be expected to have a Material Adverse Effect.
SECTION 9.7 Environmental Laws. In addition to and without
limiting the generality of Section 9.6, (a) comply with, and use best
efforts to ensure such compliance by all tenants and subtenants with all
applicable Environmental Laws and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain,
any
and all licenses, approvals, notifications, registrations or permits
required by applicable Environmental Laws except where the failure to
comply could not reasonably have a Material Adverse Effect, (b) conduct and
complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws, and
promptly comply with all lawful orders and directives of any Governmental
Authority regarding Environmental Laws except (i) where the failure to do
so could not reasonably be expected to have a Material Adverse Effect or
(ii) to the extent the Credit Parties or any of their Subsidiaries are
contesting, in good faith, any such requirement, order or directive before
the appropriate Governmental Authority so long as adequate reserves are
maintained with respect thereto to the extent required by GAAP, and (c)
defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising
out of, or in any way relating to the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Credit Parties or such Subsidiaries, or any orders, requirements or demands
of Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory
fees, response costs, court costs and litigation expenses, except to the
extent that any of the foregoing directly result from the gross negligence
or willful misconduct of the party seeking indemnification therefor.
SECTION 9.8 Compliance with ERISA. In addition to and without
limiting the generality of Section 9.6, (a) comply with all applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans,
except where the failure to comply could not reasonably be expected to have
a Material Adverse Effect, (b) not take any action or fail to take action
the result of which would result in a liability to the PBGC or to a
Multiemployer Plan in an amount that could reasonably be expected to have a
Material Adverse Effect, and (c) furnish to the Administrative Agent upon
the Administrative Agent's request such additional information about any
Employee Benefit Plan concerning compliance with this covenant as may be
reasonably requested by the Administrative Agent.
SECTION 9.9 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing
Date (including, without limitation, the apparel industry generally) and in
lines of business reasonably related thereto (collectively, "Permitted
Lines of Business"), or as otherwise permitted pursuant to the terms of
this Agreement.
SECTION 9.10 Visits and Inspections. Permit representatives of
the Administrative Agent or any Lender, from time to time upon reasonable
prior notice to visit and inspect its properties; inspect and make extracts
from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with
its principal officers, and its independent accountants, its business,
assets, liabilities, financial condition, results of operation and business
prospects.
SECTION 9.11 Use of Proceeds. The Credit Parties shall use the
proceeds of the Revolving Credit Loans to (a) refinance certain existing
Debt, (b) for working capital and general corporate purposes of the Credit
Parties and their Subsidiaries, including acquisitions and stock
repurchases and (c) the payment of certain fees and expenses incurred in
connection with the transactions contemplated hereby or thereby.
SECTION 9.12 Year 2000 Compatibility. Take all actions reasonably
necessary to assure that the Credit Parties' computer based systems are
able to operate and effectively process data which includes dates on and
after January 1, 2000. At the request of the Administrative Agent or any
Lender, the Credit Parties shall provide information to the Administrative
Agent concerning the Credit Parties' Year 2000 compatibility.
ARTICLE X
FINANCIAL COVENANT
Until all of the Obligations (other than any Obligations under
any Hedging Agreement) have been paid and satisfied in full and the
Revolving Credit Commitment terminated, unless consent has been obtained in
the manner set forth in Section 14.11 hereof, the Credit Parties and their
Subsidiaries on a Consolidated basis will not:
SECTION 10.1 Interest Coverage Ratio: As of the end of any fiscal
quarter, permit the ratio of (a) EBITDAR for the period of four (4)
consecutive fiscal quarters ending on or immediately prior to such date to
(b) the sum of (i) Interest Expense and (ii) Rental Expense, both for the
period of four (4) consecutive fiscal quarters ending on or immediately
prior to such date, to be less than 3.5 to 1.0.
SECTION 10.2 Minimum Net Worth: As of the end of any fiscal
quarter, permit Consolidated Net Worth to be less than eighty-five percent
(85%) of Net Worth as of the Closing Date.
ARTICLE XI
NEGATIVE COVENANTS
Until all of the Obligations (other than any Obligations under
any Hedging Agreement) have been paid and satisfied in full and the
Revolving Credit Commitment has expired or been terminated, unless consent
has been obtained in the manner set forth in Section 14.11 hereof, the
Credit Parties will not and will not permit any of their Subsidiaries to:
SECTION 11.1 Limitations on Debt and Guaranty Obligations.
Create, incur, assume or suffer to exist any Debt, including Guaranty
Obligations, except:
(a) The Obligations and, if applicable after the Asset Drop-Down
Effective Date, the Obligations of the Additional Obligors under the
Guaranty Agreements;
(b) The Three-Year Credit Agreement Obligations and, if
applicable after the Asset Drop-Down Effective Date, the Obligations of the
Additional Guarantors under the Three-Year Credit Agreement Guaranty
Agreements;
(c) Debt existing on the Closing Date, including the Debt as set
forth on Schedule 7.1(p);
(d) Debt of the Credit Parties and their Subsidiaries, not
otherwise permitted under this Section 11.1, incurred in connection with
(i) Capitalized Leases, (ii) purchase money Debt, (iii) Debt of a
Subsidiary incurred and outstanding on or prior to the date on which such
Subsidiary was acquired by any Credit Party or otherwise became a
Subsidiary of such Credit Party (other than Debt incurred as consideration
in, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of transactions pursuant
to which such Subsidiary became a Subsidiary of such Credit Party or was
otherwise acquired by such Credit Party) and (iv) any other unsecured Debt
of the Subsidiaries of the Credit Parties in an aggregate outstanding
amount (excluding any attributable Debt from the contemplated sale
leaseback transaction involving the Credit Parties' distribution warehouse
at South Xxxx, Xxxxxxxx) not to exceed fifteen percent (15%) of
Consolidated Net Worth of the Credit Parties and their Subsidiaries on any
date of determination;
(e) additional Debt of the Credit Parties, not otherwise
permitted under this Section 11.1, arising under or in connection with
public or privately placed notes, debentures, bonds, or debt securities or
related indentures or other agreements (the "Additional Debt Securities")
so long as no Default or Event of Default exists on the date any such
Additional Debt Security is created or arises as a result of any borrowing
thereunder, except in connection with the issuance of exchange securities
in connection with any exchange offer registered under the Securities Act
of 1933, as amended, following a private placement of Additional Debt
Securities;
(f) other Debt of the Credit Parties, not otherwise permitted
under this Section 11.1, in an aggregate outstanding amount not to exceed
$250,000,000 on any date of determination;
(g) Debt of the Credit Parties to any Subsidiary or any other
Credit Party and of any Subsidiary to the Credit Parties or any other
Subsidiary; and
(h) Debt incurred in respect of the extension, renewal,
replacement or refunding (collectively, the "refinancing") of Debt incurred
pursuant to clause (a), (b), (c) or (d); provided that (i) such Debt is an
aggregate principal amount (or if incurred with original issue discount, an
aggregate issue price) not in excess of the sum of (x) the aggregate
principal amount (or if incurred with original issue discount, the
aggregate accreted value) then outstanding of the Debt being refinanced and
(y) an amount necessary to pay any fees and expenses, including premiums
and defeasance costs, related to such refinancing, (ii) the average life of
such Debt is equal to or greater than the average life of the Debt being
refinanced, (iii) the stated maturity of such Debt is
no earlier than the stated maturity of the Debt being refinanced and (iv)
the new Debt shall not be senior in right of payment to the Debt that is
being refinanced;
provided, that none of the Debt permitted to be incurred by this Section
shall restrict, limit or otherwise encumber, by covenant or otherwise
(unless such restriction, limitation or other encumbrance is a Permitted
Encumbrance (as defined below)), the ability of any Subsidiary of the
Credit Parties to make any payment to the Credit Parties or any of their
Subsidiaries (in the form of dividends, intercompany advances or otherwise)
for the purpose of enabling the Credit Parties to pay the Obligations. For
purposes of this Section 11.1, with regard to any Debt, a "Permitted
Encumbrance" shall mean any restriction, limitation or other encumbrance
that applies solely if a default or event of default (other than a default
resulting solely from the breach of a representation or warranty) occurs
and is continuing under such Debt; provided that, with respect to any
default or event of default (other than a payment default, including as a
result of acceleration, or a bankruptcy event with respect to the obligor
of such Debt), such encumbrance or restriction may not prohibit dividends
to the Credit Parties or any Subsidiary hereof to pay the Obligations for
more than one hundred eighty (180) days in any consecutive three hundred
sixty (360) day period.
SECTION 11.2 [Reserved].
SECTION 11.3 Limitations on Liens. Create, incur, assume or
suffer to exist, any Lien on or with respect to any of its assets or
properties (including without limitation shares of capital stock or other
ownership interests), real or personal, whether now owned or hereafter
acquired, except:
(a) Liens for taxes, assessments and other governmental charges
or levies (excluding any Lien imposed pursuant to any of the provisions of
ERISA or Environmental Laws) not yet due or as to which the period of
grace, if any, related thereto has not expired or which are being contested
in good faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred
in the ordinary course of business, (i) which are not overdue for a period
of more than thirty (30) days or (ii) which are being contested in good
faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation
or obligations under customer service contracts;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of
real property, which do not, in any case, materially detract from the value
of such property or materially impair the use thereof in the ordinary
conduct of business;
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(f) Liens incurred in the ordinary course of business securing
Debt of the Credit Parties permitted under Section 11.1 not to exceed
$50,000,000 in the aggregate outstanding in addition to Liens existing on
the Closing Date;
(g) Liens existing on any property or asset prior to the
acquisition thereof by the Credit Parties or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary or is merged
with or into the Credit Parties or any Subsidiary after the date hereof
prior to the time such Person becomes a Subsidiary or is so merged;
(h) Liens in existence on the Closing Date and described on
Schedule 11.3;
(i) Liens securing Debt incurred in connection with Capitalized
Leases and purchase money Debt permitted under Section 11.1(d); provided
that (i) such Liens shall be created substantially simultaneously with the
acquisition of the related asset, (ii) such Liens do not at any time
encumber any property other than the property financed by such Debt, (iii)
the amount of Debt secured thereby is not increased and (iv) the principal
amount of Debt secured by any such Lien shall at no time exceed one hundred
percent (100%) of the original purchase price of such property at the time
it was acquired;
(j) Liens incurred to secure appeal bonds and judgment and
attachment Liens in respect of judgments or orders that do not constitute
an Event of Default under Section 12.1(m);
(k) Lien arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of setoff or similar rights
and remedies, in each case as to deposit accounts or other funds maintained
with a creditor depository institution;
(l) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(m) Liens arising in the ordinary course of business that do not
secure monetary obligations;
(n) Liens arising by the terms of letters of credit entered into
in the ordinary course of business to secure reimbursement obligations
thereunder;
(o) Liens securing Debt or other obligations between the Credit
Parties and a Subsidiary or between Subsidiaries or Credit Parties;
(p) Liens granted to any bank or other institution on the
payments to be made to such bank or other institution by the Credit Parties
or a Subsidiary of the Credit Parties pursuant to any Hedging Agreement;
provided that, such agreements are entered into in, or are incidental to,
the ordinary course of business; and
(q) the extension, renewal, replacement or refunding of any Lien
referred to in clause (g), (h), (i) or (p); provided that, the principal
amount of Debt (or, if incurred with original issue discount, an aggregate
issue price) secured thereby and not otherwise authorized by clause (g),
(h), (i) or (p) shall not exceed the principal amount of Debt (or if
incurred without original issue discount, the aggregate accreted value)
plus any fees and expenses, including premiums and defeasance costs,
payable in connection with any such extension, renewal, replacement or
refunding, so secured at the time of such extension, renewal, replacement
or refunding.
SECTION 11.4 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock (other than capital stock of the Credit
Parties), interests in any partnership, limited liability company or joint
venture (including without limitation the creation or capitalization of any
Subsidiary), evidence of Debt or other obligation or security,
substantially all or a portion of the business or assets of any other
Person or any other investment or interest whatsoever in any other Person,
or make or permit to exist, directly or indirectly, any loans, advances or
extensions of credit to, or any investment in cash or by delivery of
property in, any Person, or enter into, directly or indirectly, any
commitment or option in respect of the foregoing (collectively,
"Investments") except:
(a) Investments in Subsidiaries existing on the Closing Date and
the other existing loans, advances and Investments described on Schedule
11.4;
(b) Investments made in accordance with the investment policy of
the Credit Parties, provided that any material amendment or other material
modification to such policy shall have been approved by the Administrative
Agent and determined to be acceptable in its reasonable discretion;
(c) Investments by the Credit Parties or any Subsidiary in the
form of acquisitions of all or substantially all of the business or a line
of business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person so long as (i) a Responsible
Officer certifies to the Administrative Agent and the Required Lenders that
no Default or Event of Default has occurred and is continuing or would
result from the closing of such acquisition, such certification to include,
for any acquisition involving a purchase price in excess of $25,000,000,
either individually or in a series of related transactions, a financial
condition certificate in the form required under Section 6.2(d)(ii)(A), and
(ii) such acquisition meets either of the following requirements: (A) such
acquisition is within a Permitted Line of Business, or (B) such acquisition
is outside a Permitted Line of Business but the price for such acquisition,
together with all other acquisitions outside the Permitted Lines of
Business, does not exceed $25,000,000 in the aggregate;
(d) Investments in the Permitted Lines of Business;
(e) Investments (other than acquisitions) outside Permitted Lines
of Business not in excess of $25,000,000 in the aggregate;
(f) loans and advances to third party contractors in the ordinary
course of business and consistent with past practice not to exceed in an
aggregate outstanding amount $3,000,000 (excluding such loans and advances
consisting of prepayments or advances for inventory or services); and loans
and advances to employees of the Credit Parties and their Subsidiaries in
an aggregate outstanding amount not to exceed $2,000,000; and
(g) intercompany loans and advances among the Credit Parties and
their Subsidiaries so long as permitted under the terms of Sections 11.1
and 11.3.
SECTION 11.5 Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except so long as no Default or Event of Default has occurred
and is continuing, or would result therefrom:
(a) any Credit Party may merge with or into any Person; provided
that (i) such Credit Party shall be the survivor of such merger or (ii) the
survivor assumes and succeeds to the Obligations of such Credit Party
pursuant to an assumption agreement in form reasonably satisfactory to the
Administrative Agent and the Required Lenders;
(b) any Wholly-Owned Subsidiary of the Credit Parties may merge
with or into any other Wholly-Owned Subsidiary of the Credit Parties;
(c) any Wholly-Owned Subsidiary may merge with or into the Person
such Wholly-Owned Subsidiary was formed to acquire in connection with an
acquisition permitted by Section 11.4(b) or (c);
(d) any Wholly-Owned Subsidiary of the Credit Parties may merge
with or into any Credit Party; provided that, such Credit Party is the
survivor of such merger;
(e) any Credit Party may merge with or into any other Credit
Party; and
(f) the Asset Drop-Down may occur.
SECTION 11.6 Limitations on Sale or Transfer of Assets. Convey,
sell, lease, assign, transfer or otherwise dispose of any of its property,
business or assets, whether now owned or hereafter acquired (collectively,
"sale"), except for the following:
(a) the sale of inventory or the factoring of accounts receivable
in the ordinary course of business;
(b) the sale of obsolete assets no longer used or usable in the
business of the Credit Parties or any of their Subsidiaries;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(d) the sale of assets between the Credit Parties and any
Subsidiary or between Subsidiaries or Credit Parties;
(e) the sale of any other assets of the Credit Parties and their
Subsidiaries outside the ordinary course of business so long as the total
fair market value thereof does not at any time exceed thirty-three percent
(33%) of Consolidated Net Worth; and
(f) the contemplated sale leaseback transaction involving the
Credit Parties' distribution warehouse at South Xxxx, Xxxxxxxx.
(g) the Asset Drop-Down; provided that,
(i) such transaction is consummated in a manner
substantially consistent with the description set forth on Schedule 11.6
hereto;
(ii) as of the date of the consummation thereof, no Default
or Event of Default shall have occurred and be continuing or would result
therefrom;
(iii) the Additional Obligors if applicable, shall each have
executed and delivered a Guaranty Agreement to the Administrative Agent;
(iv) the Additional Obligors, if applicable, and Xxxxx
Apparel Group USA shall have executed such assumption documents and other
instruments (including, without limitation, replacement Revolving Credit
Notes) as are necessary to assume all of the Obligations of the Credit
Parties hereunder on a joint and several basis in a manner reasonably
satisfactory to the Administrative Agent;
(v) the Credit Parties shall have delivered closing
documents and certificates as reasonably requested by the Administrative
Agent and consistent with the provisions of Sections 6.2(b) and 6.2(c),
including, without limitation, a legal opinion of Cravath, Swaine & Xxxxx,
in form and substance reasonably satisfactory to the Administrative Agent;
and
(vi) the Credit Parties shall have delivered a new Schedule
7.1(b) completed as of the Asset Drop-Down Effective Date.
SECTION 11.7 Limitations on Dividends and Distributions. Declare
or pay any dividends upon any of its capital stock; purchase, redeem,
retire or otherwise acquire, directly or indirectly, any shares of its
capital stock, or make any distribution of cash, property or assets among
the holders of shares of its capital stock, or make any change in its
capital structure (other than the Asset Drop-Down) that could reasonably be
expected to have a Material Adverse Effect; provided that: (a) the Credit
Parties may pay dividends solely in shares of their own capital stock or
other ownership interest (including dividends consisting of rights to
purchase such capital stock or other ownership interest), (b) any
Subsidiary may pay dividends or make distributions to the Credit Parties or
any Wholly-Owned Subsidiary of the Credit Parties, (c) any Credit Party may
pay dividends or make distributions to any other Credit Party and (d) as
long as no Default or Event of Default has occurred and is continuing or
would be created thereby (i) the Credit Parties may declare and pay
dividends on shares of their capital stock or other ownership
interests, (ii) the Credit Parties or any Subsidiary may redeem shares of
their capital stock or other ownership interest pursuant to a plan approved
by the Board of Directors of the Credit Parties or such Subsidiary, as
applicable and (iii) the Credit Parties or any Subsidiary may take any
action otherwise prohibited by this Section 11.7.
SECTION 11.8 Transactions with Affiliates. Directly or indirectly
enter into, or be a party to, any transaction with any of its Affiliates,
except (i) on terms that are no less favorable to it than it would obtain
in a comparable arm's length transaction with a Person not its Affiliate or
(ii) as contemplated by the Sun Acquisition Agreement or (iii) the Asset
Drop-Down.
SECTION 11.9 Changes in Fiscal Year End. Change its Fiscal Year
end.
SECTION 11.10 Amendments; Payments and Prepayments of Material
Debt and Subordinated Debt. Upon the occurrence and continuation of a
Default or an Event of Default, amend or modify (or permit the modification
or amendment of) in any manner materially adverse to the Lenders any of the
terms or provisions of any Debt in excess of $25,000,000, including without
limitation the Additional Debt Securities, if any, or any Subordinated
Debt, or cancel or forgive, make any voluntary or optional payment or
prepayment on, or redeem or acquire for value (including without limitation
by way of depositing with any trustee with respect thereto money or
securities before due for the purpose of paying when due) any Subordinated
Debt.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment or order of any court or any order, rule or
regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any
Revolving Credit Loan, Revolving Credit Note or Reimbursement Obligation
when and as due (whether at maturity, by reason of acceleration or
otherwise).
(b) Other Payment Default. The Borrower shall default in the
payment when and as due (whether at maturity, by reason of acceleration or
otherwise) of interest on any Revolving Credit Loan, Revolving Credit Note
or Reimbursement Obligation or the payment of any other Obligation (other
than any Obligation under any Hedging Agreement), and such default shall
continue unremedied for three (3) Business Days.
(c) Misrepresentation. Any representation or warranty made or
deemed to be made by the Credit Parties or any of their Subsidiaries, if
applicable, under this Agreement, any Loan Document or any amendment hereto
or thereto, shall at any time prove to have been incorrect or misleading in
any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. Any of the
Credit Parties shall default in the performance or observance of any
covenant or agreement contained in Article X or XI of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. Any
of the Credit Parties or any Subsidiary thereof, if applicable, shall
default in the performance or observance of any term, covenant, condition
or agreement contained in this Agreement (other than as specifically
provided for otherwise in this Section 12.1) or any other Loan Document and
such default shall continue for a period of thirty (30) days after written
notice thereof has been given to the Borrower by the Administrative Agent.
(f) Hedging Agreement. Any termination payments in an amount
greater than $25,000,000 shall be due by any Credit Party under any Hedging
Agreement and such amount is not paid within thirty (30) Business Days of
the due date thereof.
(g) Debt Cross-Default. Any of the Credit Parties or any of their
Subsidiaries shall (i) default in the payment of any Debt (other than the
Revolving Credit Notes or any Reimbursement Obligation) the aggregate
outstanding amount of which Debt is in excess of $25,000,000, including,
without limitation, the obligations under the Three-Year Credit Agreement,
beyond the period of grace if any, provided in the instrument or agreement
under which such Debt was created, or (ii) default in the observance or
performance of any other agreement or condition relating to any Debt (other
than the Revolving Credit Notes or any Reimbursement Obligation),
including, without limitation, the obligations under the Three-Year Credit
Agreement and any other documents executed in connection therewith, the
aggregate outstanding amount of which Debt is in excess of $25,000,000 or
contained in any instrument or agreement evidencing, securing or relating
thereto or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or holders of such Debt (or a trustee or agent on behalf of such
holder or holders) to cause, with the giving of notice if required, any
such Debt to become due prior to its stated maturity (any applicable grace
period having expired).
(h) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as
amended) shall obtain ownership or control in one or more series of
transactions of more than thirty three and one-third (33.33%) of the common
stock or thirty-three and one-third percent (33.33%) of the voting power of
any Credit Party entitled to vote in the election of members of the board
of directors of such Credit Party or there shall have occurred under any
indenture or other instrument evidencing any debt in excess of $25,000,000
any "change in control" (as defined in such indenture or other evidence of
debt) obligating the Borrower to repurchase, redeem or repay all or any
part of the debt or capital stock provided for therein (any such event, a
"Change in Control"). Further, after the Asset Drop-Down Effective Date and
except as set forth in Section 11.5, Xxxxx Apparel Group shall at all times
own 100% of the capital stock of Xxxxx Apparel Group Holdings and Xxxxx
Apparel Group Holdings shall at all times own 100% of the capital stock of
Xxxxx Apparel Group USA.
(i) Voluntary Bankruptcy Proceeding. Any Credit Party or any
Subsidiary thereof shall (i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect), (ii) file a petition
seeking to take advantage of any other laws, domestic or foreign, relating
to bankruptcy, insolvency, reorganization, winding up or composition for
adjustment of debts, (iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an involuntary case
under such bankruptcy laws or other laws, (iv) apply for or consent to, or
fail to contest in a timely and appropriate manner, the appointment of, or
the taking of possession by, a receiver, custodian, trustee, or liquidator
of itself or of a substantial part of its property, domestic or foreign,
(v) admit in writing its inability to pay its debts as they become due,
(vi) make a general assignment for the benefit of creditors, or (vii) take
any corporate action for the purpose of authorizing any of the foregoing.
(j) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against any Credit Party or any Subsidiary thereof in
any court of competent jurisdiction seeking (i) relief under the federal
bankruptcy laws (as now or hereafter in effect) or under any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization,
winding up or adjustment of debts, or (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like for any Credit Party or any
Subsidiary thereof or for all or any substantial part of their respective
assets, domestic or foreign, and such case or proceeding shall continue
without dismissal or stay for a period of sixty (60) consecutive days, or
an order granting the relief requested in such case or proceeding
(including, but not limited to, an order for relief under such federal
bankruptcy laws) shall be entered.
[(k) [Reserved]
(l) Termination Event. The occurrence of any of the following
events: (i) Xxxxx Apparel Group or any ERISA Affiliate fails to make full
payment to an Employee Benefit Plan when due (after giving effect to any
applicable grace period) of contributions in excess of $2,000,000 (ii) an
accumulated funding deficiency in excess of $2,000,000 occurs or exists,
whether or not waived, with respect to any Pension Plan or (iii) a
Termination Event that could reasonably be expected to result in liability
in excess of $5,000,000 to Xxxxx Apparel Group or any ERISA Affiliate.
(m) Judgment. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $25,000,000 in
any Fiscal Year shall be entered against any Credit Party or any Subsidiary
thereof by any court and such judgment or order shall continue without
discharge or stay for a period of thirty (30) days.
SECTION 12.2 Remedies. Upon the occurrence of an Event of
Default, with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Credit Parties:
(a) Acceleration; Termination of Facilities. Declare the
principal of and interest on the Revolving Credit Loans, the Revolving
Credit Notes and the Reimbursement Obligations at the time outstanding, and
all other amounts owed to the Lenders and to the Administrative Agent under
this Agreement or any of the other Loan Documents (other than any Hedging
Agreement)(including, without limitation, all L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder) and all other Obligations
(other than Obligations owing under any Hedging Agreement), to be forthwith
due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement or the other
Loan Documents to the contrary notwithstanding, and terminate the Credit
Facility and any right of the Borrower to request borrowings or Letters of
Credit thereunder; provided, that upon the occurrence of an Event of
Default specified in Section 12.1(i) or (j) with respect to the Credit
Parties, the Credit Facility shall be automatically terminated and all
Obligations (other than obligations owing under any Hedging Agreement)
shall automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time
of an acceleration pursuant to the preceding paragraph, require the
Borrower at such time to deposit or cause to be deposited in a cash
collateral account opened by the Administrative Agent an amount equal to
the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit
shall have expired or been fully drawn upon, if any, shall be applied to
repay the other Obligations. After all such Letters of Credit shall have
expired or been fully drawn upon, the Reimbursement Obligation shall have
been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be promptly returned
to the Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all
of its other rights and remedies under this Agreement, the other Loan
Documents and Applicable Law, in order to satisfy all of the Obligations.
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and
the exercise by the Administrative Agent and the Lenders of any right or
remedy shall not preclude the exercise of any other rights or remedies, all
of which shall be cumulative, and shall be in addition to any other right
or remedy given hereunder or under the Loan Documents or that may now or
hereafter exist in law or in equity or by suit or otherwise. No delay or
failure to take action on the part of the Administrative Agent or any
Lender in exercising any right, power or privilege shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude other or further exercise thereof or the
exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between the Credit
Parties, the Administrative Agent and the Lenders or their respective
agents or employees shall be effective to change, modify or discharge any
provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender
under this Agreement and the other Loan Documents for the term hereof and
each such Lender irrevocably authorizes First Union as Administrative Agent
for such Lender, to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent
by the terms of this Agreement and such other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or such other Loan
Documents, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein and therein, or
any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. Any reference to the Administrative Agent
in this Article XIII shall be deemed to refer to the Administrative Agent
solely in its capacity as Administrative Agent and not in its capacity as a
Lender.
SECTION 13.2 Delegation of Duties. The Administrative Agent may
execute any of its respective duties under this Agreement and the other
Loan Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by the
Administrative Agent with reasonable care.
SECTION 13.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates shall be (a) liable for any
action lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or the other Loan Documents (except for
actions occasioned solely by its or such Person's own gross negligence or
willful misconduct), or (b) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by the
Borrower or any of its Subsidiaries or any officer thereof contained in
this Agreement or the other Loan Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by
the Administrative Agent under or in connection with, this Agreement or the
other Loan Documents or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or the other
Loan Documents or for any failure of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect
the properties, books or records of the Borrower or any of its
Subsidiaries.
SECTION 13.4 Reliance by the Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype
message, statement, order or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Borrower), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Revolving Credit
Note as the owner thereof for all purposes unless such Revolving Credit
Note shall have been transferred in accordance with Section 14.10 hereof.
The Administrative Agent shall be fully justified in failing or refusing to
take any action under this Agreement and the other Loan Documents unless it
shall first receive such advice or concurrence of the Required Lenders (or,
when expressly required hereby or by the relevant other Loan Document, all
the Lenders) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any
such action except for its own gross negligence or willful misconduct. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Revolving Credit Notes
in accordance with a request of the Required Lenders (or, when expressly
required hereby, all the Lenders), and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Revolving Credit Notes.
SECTION 13.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless it has received notice from a Lender
or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In
the event that the Administrative Agent receives such a notice, it shall
promptly give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders; provided that unless and
until the Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of the Lenders,
except to the extent that other provisions of this Agreement expressly
require that any such action be taken or not be taken only with the consent
and authorization or the request of the Lenders or Required Lenders, as
applicable.
SECTION 13.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations
or warranties to it and that no act by the Administrative Agent hereinafter
taken, including any review of the affairs of the Borrower or any of its
Subsidiaries, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and
made its own decision to make its Revolving Credit Loans and issue or
participate in Letters of Credit hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and without
reliance upon
the Administrative Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
the Borrower and its Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of
the Borrower or any of its Subsidiaries which may come into the possession
of the Administrative Agent or any of its respective officers, directors,
employees, agents, attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 13.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not
reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to the respective amounts of their
Revolving Credit Commitment Percentage from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment
of the Revolving Credit Notes or any Reimbursement Obligation) be imposed
on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents,
or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements to the extent
they result from the Administrative Agent's bad faith, gross negligence or
willful misconduct. The agreements in this Section 13.7 shall survive the
payment of the Revolving Credit Notes, any Reimbursement Obligation and all
other amounts payable hereunder and the termination of this Agreement.
SECTION 13.8 The Administrative Agent in Its Individual Capacity.
The Administrative Agent and its respective Subsidiaries and Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though the Administrative Agent were not an
Administrative Agent hereunder. With respect to any Revolving Credit Loans
made or renewed by it and any Revolving Credit Note issued to it and with
respect to any Letter of Credit issued by it or participated in by it, the
Administrative Agent shall have the same rights and powers under this
Agreement and the other Loan Documents as any Lender and may exercise the
same as though it were not an Administrative Agent, and the terms "Lender"
and "Lenders" shall include the Administrative Agent in its individual
capacity.
SECTION 13.9 Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a
successor as provided below, the Administrative Agent may resign at any
time by giving notice thereof to the Lenders and the Credit Parties. Upon
any such resignation, the Required Lenders shall have the right, subject to
the approval of the Credit Parties (so long as no Default or Event of
Default has
occurred and is continuing), to appoint a successor Administrative Agent,
which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, been approved (so long as no Default or
Event of Default has occurred and is continuing) by the Credit Parties or
have accepted such appointment within thirty (30) days after the
Administrative Agent's giving of notice of resignation, then the
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent reasonably acceptable to the Credit Parties (so long
as no Default or Event of Default has occurred and is continuing), which
successor shall have minimum capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Section 13.9 shall continue
in effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Administrative Agent.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or
by telephone subsequently confirmed in writing. Any notice shall be
effective if delivered by hand delivery or sent via telecopy, recognized
overnight courier service or certified mail, return receipt requested, and
shall be presumed to be received by a party hereto (i) on the date of
delivery if delivered by hand or sent by telecopy, (ii) on the next
Business Day if sent by recognized overnight courier service and (iii) on
the third Business Day following the date sent by certified mail, return
receipt requested. A telephonic notice to the Administrative Agent as
understood by the Administrative Agent will be deemed to be the controlling
and proper notice in the event of a discrepancy with or failure to receive
a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to
it at the following addresses, or any other address as to which all the
other parties are notified in writing.
If to the Credit Parties: Xxxxx Apparel Group, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to First Union as First Union National Bank
Administrative Agent: One First Union Center, TW 10
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
With copies to: First Union National Bank
0000 Xxxxxxxx Xxxxxx, XX0000
Philadelphia, Pennsylvania 19107-7618
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the Address set forth on Schedule 1
hereto
(c) Administrative Agent's Office. The Administrative Agent
hereby designates its office located at the address set forth above, or any
subsequent office which shall have been specified for such purpose by
written notice to the Borrower and the Lenders, as the Administrative
Agent's Office referred to herein, to which payments due are to be made and
at which Revolving Credit Loans will be disbursed.
SECTION 14.2 Expenses; Indemnity. The Borrower will (a) pay all
reasonable out-of-pocket expenses of the Administrative Agent in connection
with (i) the preparation, execution and delivery of this Agreement and each
other Loan Document, whenever the same shall be executed and delivered,
including without limitation the reasonable out-of-pocket syndication and
due diligence expenses and reasonable fees and disbursements of counsel for
the Administrative Agent and (ii) the preparation, execution and delivery
of any waiver, amendment or consent by the Administrative Agent or the
Lenders relating to this Agreement or any other Loan Document, including
without limitation reasonable fees and disbursements of counsel for the
Administrative Agent, (b) pay all reasonable out-of-pocket expenses of the
Administrative Agent actually incurred in connection with the
administration of the Credit Facility, (c) pay all reasonable out-of-pocket
expenses of the Administrative Agent and each Lender actually incurred in
connection with the enforcement of any rights and remedies of the
Administrative Agent and the Lenders under the Credit Facility, including
to the extent reasonable under the circumstances consulting with
accountants, attorneys and other Persons concerning the nature, scope or
value of any right or remedy of the Administrative Agent or any Lender
hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (d) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and
their respective parents, Subsidiaries, Affiliates, employees,
Administrative Agents, officers and directors, from and against any losses,
penalties, fines, liabilities, settlements, damages, costs and expenses,
suffered by any such Person in connection with any claim, investigation,
litigation or other proceeding (whether or not the Administrative Agent or
any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with this Agreement, any other Loan
Document or the Revolving Credit Loans, including without limitation
reasonable attorney's and consultant's fees, except to the extent that any
of the foregoing result from the gross negligence or willful misconduct of
any indemnified party.
SECTION 14.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such
rights, upon and after the occurrence of any Event of Default and during
the continuance thereof, the Lenders and any assignee or participant of a
Lender in accordance with Section 14.10 are hereby authorized by the Credit
Parties at any time or from time to time, without notice to the Credit
Parties or to any other Person, any such notice being hereby expressly
waived, to set off and to appropriate and to apply any and all deposits
(general or special, time or demand, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or
unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the
account of the Borrower against and on account of the Obligations
irrespective of whether or not (a) the Lenders shall have made any demand
under this Agreement or any of the other Loan Documents or (b) the
Administrative Agent shall have declared any or all of the Obligations to
be due and payable as permitted by Section 12.2 and although such
Obligations shall be contingent or unmatured.
SECTION 14.4 Governing Law. This Agreement, the Revolving Credit
Notes and the other Loan Documents, unless otherwise expressly set forth
therein, shall be governed by, construed and enforced in accordance with
the laws of the State of New York.
SECTION 14.5 Consent to Jurisdiction. Each of the parties hereto
hereby irrevocably consents to the personal jurisdiction of the state and
federal courts located in New York County, New York, in any action, claim
or other proceeding arising out of any dispute in connection with this
Agreement, the Revolving Credit Notes and the other Loan Documents, any
rights or obligations hereunder or thereunder, or the performance of such
rights and obligations. Each of the parties hereto hereby irrevocably
consents to the service of a summons and complaint and other process in any
action, claim or proceeding brought by any other party hereto in connection
with this Agreement, the Revolving Credit Notes or the other Loan
Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations, on behalf of itself or its
property, in the manner specified in Section 14.1. Nothing in this Section
14.5 shall affect the right of any of the parties hereto to serve legal
process in any other manner permitted by Applicable Law or affect the right
of any of the parties hereto to bring any action or proceeding against any
other party hereto or its properties in the courts of any other
jurisdictions.
SECTION 14.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made
before or after institution of any judicial proceeding, any dispute, claim
or controversy arising out of, connected with or relating to the Revolving
Credit Notes or any other Loan Documents ("Disputes"), between or among
parties to the Revolving Credit Notes or any other Loan Document shall be
resolved by binding arbitration as provided herein. Institution of a
judicial proceeding by a party does not waive the right of that party to
demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising
from Loan Documents executed in the future, or claims concerning any aspect
of the past, present or future relationships arising out of or connected
with the Loan Documents. Arbitration shall be conducted under and governed
by the Commercial Financial Disputes Arbitration Rules (the "Arbitration
Rules") of the American Arbitration Association and Title 9 of the U.S.
Code. All arbitration hearings shall be conducted in New York, New York.
The expedited procedures set forth in Rule 51, et seq. of the Arbitration
Rules shall be applicable to claims of less than $1,000,000. All applicable
statutes of limitation shall apply to any Dispute. A judgment upon the
award may be entered in any court having jurisdiction. Notwithstanding
anything foregoing to the contrary, any arbitration proceeding demanded
hereunder shall begin within ninety (90) days after such demand thereof and
shall be concluded within one hundred and twenty (120) days after such
demand. These time limitations may not be extended unless a party hereto
shows cause for extension and then such extension shall not exceed a total
of sixty (60) days. The panel from which all arbitrators are selected shall
be comprised of licensed attorneys. The single arbitrator selected for
expedited procedure shall be a retired judge from the highest court of
general jurisdiction, state or federal, of the state where the hearing will
be conducted. The parties hereto do not waive any applicable Federal or
state substantive law except as provided herein.
(b) Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER
AND EACH CREDIT PARTY HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING
ARBITRATION THEY HAVE IRREVOCABLY WAIVED THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN
DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE
PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the
preceding binding arbitration provisions, the parties hereto and the other
Loan Documents preserve, without diminution, the remedies that such Persons
may employ or exercise freely, either alone, in conjunction with or during
a Dispute. Each such Person shall have and hereby reserves the right to
proceed in any court of proper jurisdiction or by self help to exercise or
prosecute the following remedies where available, and solely to collect
amounts due, pursuant to the terms of this Agreement: (i) obtaining
provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and in
filing an involuntary bankruptcy proceeding, and (ii) when applicable, a
judgment by confession of judgment. Preservation of these remedies does not
limit the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute.
SECTION 14.7 Reversal of Payments. To the extent any Credit Party
makes a payment or payments to the Administrative Agent for the ratable
benefit of the Lenders or the Administrative Agent receives any payment or
proceeds of the collateral which payments or proceeds or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other
party under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds repaid,
the Obligations or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if such payment or
proceeds had not been received by the Administrative Agent.
SECTION 14.8 Injunctive Relief; Punitive Damages.
(a) Each of the parties to this Agreement recognizes that, in the
event such party fails to perform, observe or discharge any of its
obligations or liabilities under this Agreement, any remedy of law may
prove to be inadequate relief to the other parties hereto. Therefore, each
of the parties hereto agrees that the other parties hereto, at such other
party's option, shall be entitled to temporary and permanent injunctive
relief in any such case without the necessity of proving actual damages.
(b) The Administrative Agent, Lenders and the Credit Parties (on
behalf of themselves and their Subsidiaries) hereby agree that no such
Person shall have a remedy of punitive or exemplary damages against any
other party to a Loan Document and each such Person hereby waives any right
or claim to punitive or exemplary damages that they may now have or may
arise in the future in connection with any Dispute, whether such Dispute is
resolved through arbitration or judicially.
(c) The parties agree that they shall not have a remedy of
punitive or exemplary damages against any other party in any Dispute and
hereby waive any right or claim to punitive or exemplary damages they have
now or which may arise in the future in connection with any Dispute whether
the Dispute is resolved by arbitration or judicially.
SECTION 14.9 Accounting Matters. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time, provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice
is given before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as in effect
and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance therewith.
SECTION 14.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon
and inure to the benefit of the Credit Parties, the Administrative Agent
and the Lenders, all future holders of the Revolving Credit Notes, and
their respective successors and permitted assigns, except that the Borrower
shall not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender other than
pursuant to Section 11.5.
(b) Assignment by Lenders. Each Lender may, with the consent of
the Borrower (so long as no Default or Event of Default has occurred and is
continuing) and the consent of the
Administrative Agent, which consents shall not be unreasonably withheld,
assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Agreement (including, without limitation,
all or a portion of the Extensions of Credit at the time owing to it and
the Revolving Credit Notes held by it); provided that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's Revolving Credit
Commitment and all other rights and obligations under this Agreement;
(ii) if less than all of the assigning Lender's Revolving
Credit Commitment or Revolving Credit Loans is to be assigned, the
Revolving Credit Commitment or Revolving Credit Loans so assigned shall not
be less than $10,000,000;
(iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance in the form of Exhibit G
attached hereto (an "Assignment and Acceptance"), together with any
Revolving Credit Note or Revolving Credit Notes subject to such assignment;
(iv) such assignment shall not, without the consent of the
Borrower, on behalf of itself and the other Credit Parties, require the
Borrower, or any Credit Party, to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Revolving
Credit Loans or the Revolving Credit Notes under the blue sky laws of any
state;
(v) the assigning Lender shall pay to the Administrative
Agent an assignment fee of $3,000 upon the execution by such Lender of the
Assignment and Acceptance; provided that no such fee shall be payable upon
any assignment by a Lender to an Affiliate thereof; and
(vi) no consents will be required for assignments where the
Eligible Assignee is an Affiliate of the assigning Lender.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective
date shall be at least ten (10) Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned in such Assignment and Acceptance, have the rights
and obligations of a Lender hereby and (B) the Lender thereunder shall, to
the extent of the interest assigned in such assignment, be released from
its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and
delivering an Assignment and Acceptance, the assigning Lender thereunder
and the assignee thereunder confirm to and agree with each other and the
other parties hereto as set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and the amount of the
Extensions of Credit with respect to each Lender from time to
time (the "Register"). No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and
the Lenders may treat each person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall
be available for inspection by the Borrower or Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Issuance of New Revolving Credit Notes. Upon its receipt of
an Assignment and Acceptance executed by an assigning Lender and an
Eligible Assignee together with any Revolving Credit Note or Revolving
Credit Notes subject to such assignment and the written consent to such
assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit
G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower, on behalf of itself and the other Credit Parties; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrower.
Within ten (10) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the
surrendered Revolving Credit Note or Revolving Credit Notes, a new
Revolving Credit Note or Revolving Credit Notes to the order of such
Eligible Assignee in amounts equal to the Revolving Credit Commitment
assumed by it pursuant to such Assignment and Acceptance and a new
Revolving Credit Note or Revolving Credit Notes to the order of the
assigning Lender in an amount equal to the Revolving Credit Commitment
retained by it hereunder. Such new Revolving Credit Note or Revolving
Credit Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Revolving Credit Note or
Revolving Credit Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Revolving Credit Notes delivered to the assigning Lender.
Each surrendered Revolving Credit Note or Revolving Credit Notes shall be
canceled and returned to the Borrower.
(f) Participations. Each Lender may sell participations to one or
more banks or other entities in all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all or a
portion of its Extensions of Credit and the Revolving Credit Notes held by
it); provided that:
(i) each such participation shall be in an amount not less
than $10,000,000;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Revolving Credit Commitment) shall
remain unchanged;
(iii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations;
(iv) the Credit Parties, the Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this
Agreement;
(v) such Lender shall not permit such participant the right
to approve any waivers, amendments or other modifications to this Agreement
or any other Loan Document other than waivers, amendments or modifications
which would reduce the principal of or the interest rate on any Revolving
Credit Loan or Reimbursement Obligation, extend the term or increase the
amount of the Revolving Credit Commitment, reduce the amount of any fees to
which such participant is entitled, or extend any scheduled payment date
for principal, interest or fees of any Revolving Credit Loan, except as
expressly contemplated hereby or thereby; and
(vi) any such disposition shall not, without the consent of
the Borrower, on behalf of itself and the other Credit Parties, require the
Borrower or any other Credit Party, to file a registration statement with
the Securities and Exchange Commission or apply to or qualify the Revolving
Credit Loans or the Revolving Credit Notes under the blue sky law of any
state.
(g) Disclosure of Information; Confidentiality. Each of the
Administrative Agent, the Issuing Bank and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority, (c) to the extent
required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in connection
with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to any assignee of or Participant in, or
any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (g) with the prior written consent of the
Credit Parties, (h) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes
available to the Administrative Agent, the Issuing Lenders or any Lender on
a nonconfidential basis from a source other than the Credit Parties or (i)
to Gold Sheets and other similar bank trade publications, such information
to consist of deal terms and other information (customarily found in such
publications) upon the Credit Parties' prior review and approval, which
shall not be unreasonably withheld or delayed. For the purposes of this
Section, "Information" means all information received from the Credit
Parties or any of their Subsidiaries relating to the Credit Parties or
their business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Credit Parties; provided that, in the case
of information received from the Credit Parties after the Closing Date
(other than certificates or other information
specifically required by the terms of this Agreement), such information is
clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
(h) Certain Pledges or Assignments. Nothing herein shall prohibit
any Lender from pledging or assigning any Revolving Credit Note to any
Federal Reserve Bank in accordance with Applicable Law.
SECTION 14.11 Amendments, Waivers and Consents. Except as set
forth below, any term, covenant, agreement or condition of this Agreement
or any of the other Loan Documents may be amended or waived by the Lenders,
and any consent given by the Lenders, if, but only if, such amendment,
waiver or consent is in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and
delivered to the Administrative Agent and, in the case of an amendment,
signed by the Credit Parties; provided, that no amendment, waiver or
consent shall (a) increase the amount or extend the time of the obligation
of the Lenders to make Revolving Credit Loans or issue or participate in
Letters of Credit (except as expressly contemplated by Section 2.6), (b)
extend the originally scheduled time or times of payment of the principal
of any Revolving Credit Loan or Reimbursement Obligation or the time or
times of payment of interest or fees on any Revolving Credit Loan or
Reimbursement Obligation, (c) reduce the rate of interest or fees payable
on any Revolving Credit Loan or Reimbursement Obligation, (d) reduce the
principal amount of any Revolving Credit Loan or Reimbursement Obligation,
(e) permit any subordination of the principal or interest on any Revolving
Credit Loan or Reimbursement Obligation, (f) permit any assignment (other
than as specifically permitted or contemplated in this Agreement) of any of
the Credit Parties' rights and obligations hereunder or (g) amend the
provisions of this Section 14.11 or the definition of Required Lenders,
without the prior written consent of each Lender. In addition, no
amendment, waiver or consent to the provisions of (a) Article XIII shall be
made without the written consent of the Administrative Agent and (b)
Article III without the written consent of each Issuing Lender.
SECTION 14.12 Performance of Duties. The Credit Parties'
obligations under this Agreement and each of the Loan Documents shall be
performed by the Credit Parties at their sole cost and expense.
SECTION 14.13 All Powers Coupled with Interest. All powers of
attorney and other authorizations granted to the Lenders, the
Administrative Agent and any Persons designated by the Administrative Agent
or any Lender pursuant to any provisions of this Agreement or any of the
other Loan Documents shall be deemed coupled with an interest and shall be
irrevocable so long as any of the Obligations remain unpaid or unsatisfied
or the Credit Facility has not been terminated.
SECTION 14.14 Survival of Indemnities. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative
Agent and the Lenders are entitled under the provisions of this Article XIV
and any other provision of this Agreement and the Loan
Documents shall continue in full force and effect and shall protect the
Administrative Agent and the Lenders against events arising after such
termination as well as before.
SECTION 14.15 Titles and Captions. Titles and captions of
Articles, Sections and subsections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement.
SECTION 14.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective only to
the extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof
or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 14.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and shall be binding upon all parties, their successors and
assigns, and all of which taken together shall constitute one and the same
agreement. Delivery of any executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 14.18 Term of Agreement. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations (other than obligations owing by any Credit Party to any Lender
or Affiliate of a Lender or the Administrative Agent under any Hedging
Agreement) shall have been indefeasibly and irrevocably paid and satisfied
in full. No termination of this Agreement shall affect the rights and
obligations of the parties hereto arising prior to such termination.
SECTION 14.19 Inconsistencies with Other Documents; Independent
Effect of Covenants.
(a) In the event there is a conflict or inconsistency between
this Agreement and any other Loan Document, the terms of this Agreement
shall control.
(b) The Borrower expressly acknowledges and agrees that each
covenant contained in Article IX, X, or XI hereof shall be given
independent effect.
[Signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed under seal by their duly authorized officers, all as of the
day and year first written above.
XXXXX APPAREL GROUP, INC., as Borrower
By: /s/ Xxxxxx X. Card
-----------------------------------
Name: Xxxxxx X. Card
Title: Chief Financial Officer
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, as Lender
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
NATIONSBANK, N.A., as Lender
By: /s/ X. Xxxxxx Xxxxx
-----------------------------------
Name: X. Xxxxxx Xxxxx
Title: Senior Vice-President
BANKBOSTON, N.A., as Lender
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
FLEET BANK, as Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK,
as Lender
By: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK,
as Lender
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: First Vice President
COMERICA BANK, as Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Vice President
PNC BANK, NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxx Xxxx
-----------------------------------
Name: Xxxxx Xxxx
Title: Vice President
SUN TRUST BANK, ATLANTA, as Lender
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: Banking Officer
By: /s/ Xxxxx Xxxx
------------------------------------
Name: Xxxxx Xxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
THE BANK OF NEW YORK, as Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
MARINE MIDLAND BANK, as Lender
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS, as Lender
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Corporate Banking Division
CIBC INC., as Lender
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp.,
AS AGENT
BANK OF MONTREAL, as Lender
By: /s/ X. X. XxXxxxxx
-----------------------------------
Name: X. X. XxXxxxxx
Title: Director
STANDARD CHARTERED BANK, as Lender
By: /s/ Xxxx Xxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxx X. Cutting
-----------------------------------
Name: Xxxxx X. Cutting
Title: Senior Vice President
