EXECUTION COPY
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REVOLVING CREDIT AGREEMENT
Between
XXXXXX XXX MARKETING, INC.
And
THE CIT GROUP/COMMERCIAL SERVICES, INC.
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Dated: as of June 2, 1997
TABLE OF CONTENTS
Page
BACKGROUND .............................................................................................. 1
ARTICLE I
DEFINITIONS; CONSTRUCTION................................................................................. 1
1.01. Certain Definitions............................................................... 1
1.02. Construction...................................................................... 19
1.03. Accounting Principles............................................................. 19
ARTICLE II
THE CREDITS............................................................................................... 19
2.01. Revolving Credit Loans............................................................ 19
2.02. Note.............................................................................. 20
2.03. Making of Loans................................................................... 20
2.04. Mandatory Prepayment; Optional Prepayment; Commitment Reduction................... 20
2.05. Interest Rate..................................................................... 21
2.06. Interest Payment Dates............................................................ 22
2.07. Amortization...................................................................... 22
2.08. Payments.......................................................................... 22
2.09. Use of Proceeds................................................................... 23
2.10. Increased Costs and Reduced Return................................................ 23
ARTICLE III
LETTERS OF CREDIT......................................................................................... 25
3.01. Letters of Credit................................................................. 25
ARTICLE IV
BORROWING BASE............................................................................................ 29
4.01 Conditions of Lending and Assisting in Establishing or Opening Letters of
Credit............................................................................ 29
4.02. Mandatory Prepayment.............................................................. 29
4.03. Rights and Obligations Unconditional.............................................. 29
4.04. Borrowing Base Certificate........................................................ 29
4.05. General Provisions................................................................ 30
ARTICLE V
TERM AND TERMINATION...................................................................................... 30
(i)
Page
5.01. Term of Agreement................................................................. 30
5.02. Termination....................................................................... 30
5.03. Effect of Termination............................................................. 31
5.04 Resetting of Financial Covenants.................................................. 32
ARTICLE VI
SECURITY.................................................................................................. 32
6.01. Grant of Lien and Security Interest............................................... 32
6.02. Collection Arrangement............................................................ 32
6.03. Grants, Rights and Remedies Cumulative............................................ 33
ARTICLE VII
REPRESENTATIONS AND WARRANTIES............................................................................ 33
7.01. Organization and Qualification.................................................... 33
7.02. Authority and Authorization....................................................... 33
7.03. Execution and Binding Effect...................................................... 33
7.04. Authorizations and Filing......................................................... 34
7.05. Absence of Conflicts.............................................................. 34
7.06. Financial Statements.............................................................. 34
7.07. No Event of Default............................................................... 35
7.08. Litigation........................................................................ 35
7.09. ERISA............................................................................. 35
7.10. Taxes.................................................................................. 35
7.11. Financial Accounting Practices.................................................... 36
7.12. Power To Carry On Business........................................................ 36
7.13. No Material Adverse Change........................................................ 36
7.14. Title to Properties; Existing Liens............................................... 36
7.15. Compliance with Laws.............................................................. 37
7.16. Capitalization.................................................................... 37
7.17. Accurate and Complete Disclosure.................................................. 37
7.18. Insurance......................................................................... 37
7.19. Environmental Matters............................................................. 38
7.20. Lien Perfection................................................................... 38
7.21. Bankruptcy Court Order................................................................. 38
7.22. Real Property..................................................................... 38
7.23. Location of Bank Accounts......................................................... 39
7.24. Use of Proceeds................................................................... 39
7.25. Intellectual Property............................................................. 39
7.26. Solvency.......................................................................... 39
7.27. Governmental Regulations.......................................................... 39
(ii)
Page
ARTICLE VIII
CONDITIONS OF CREDIT EXTENSIONS........................................................................... 40
8.01. Conditions Precedent to Initial Credit Extension.................................. 40
8.02. Conditions Precedent to Each Credit Extension..................................... 43
ARTICLE IX
AFFIRMATIVE COVENANTS..................................................................................... 44
9.01. Reporting and Information Requirements............................................ 44
9.02. Preservation of Existence and Franchises.......................................... 49
9.03. Insurance......................................................................... 49
9.04. Maintenance of Properties......................................................... 49
9.05. Financial Accounting Practices, etc............................................... 49
9.06. Compliance with Laws.............................................................. 50
9.07. Further Assurances................................................................ 50
9.08. Collection of Takeover Accounts Receivable........................................ 50
9.09. Taxes............................................................................. 51
9.10. ERISA............................................................................. 51
9.11. Clean-Up.......................................................................... 52
9.12. Use of Proceeds................................................................... 52
9.13. Solvency.......................................................................... 52
9.14. Landlord and Processor Agreements................................................. 52
9.15. Licensing Agreements.............................................................. 52
9.16. Revised Schedule of 5% Beneficial Owners.......................................... 52
9.17. Sassco Reimbursement Agreement.................................................... 52
9.18. Qualification as Foreign Corporation................................................... 52
ARTICLE X
NEGATIVE COVENANTS........................................................................................ 53
10.01. Lien Priority......................................................................... 53
10.02. Liens................................................................................. 53
10.03. Indebtedness.......................................................................... 54
10.04. Guarantees and Contingent Liabilities................................................. 55
10.05. Loans, Advances and Investments....................................................... 55
10.06. Dividends and Related Distributions................................................... 56
10.07. Merger, etc........................................................................... 56
10.08. Dispositions of Assets................................................................ 56
10.09. Affiliates............................................................................ 57
10.10. Continuation of or Change In Business................................................. 57
10.11. Environmental......................................................................... 57
10.12. ERISA................................................................................. 57
10.13. Fiscal Year........................................................................... 58
(iii)
Page
10.14. License Agreements; Sassco Reimbursement Agreement.................................... 58
10.15. Minimum Consolidated Tangible Net Worth............................................... 58
10.16. Minimum Consolidated Working Capital.................................................. 58
10.17. Minimum Ratio of Consolidated Current Assets to Consolidated
Current Liabilities.............................................................. 59
10.18. Minimum Ratio of Consolidated EBITDA to Consolidated Interest
Expense.......................................................................... 59
10.19. Net Loss.............................................................................. 59
10.20. Capital Expenditures.................................................................. 59
10.21. Government Regulations................................................................ 59
ARTICLE XI
DEFAULTS.................................................................................................. 60
11.01. Events of Default..................................................................... 60
11.02. Consequences of an Event of Default................................................... 62
11.03. Certain Remedies...................................................................... 63
ARTICLE XII
MISCELLANEOUS............................................................................................. 63
12.01. Holidays.............................................................................. 63
12.02 Records............................................................................... 63
12.03. Amendments and Waivers................................................................ 64
12.04. No Implied Waiver; Cumulative Remedies................................................ 64
12.05. Notices............................................................................... 64
12.06. Expenses; Taxes: Attorneys' Fees; Indemnification..................................... 65
12.07. Application........................................................................... 67
12.08. Severability.......................................................................... 67
12.09. GOVERNING LAW......................................................................... 67
12.10. Prior Understandings.................................................................. 67
12.11. Duration; Survival.................................................................... 67
12.12. Counterparts.......................................................................... 67
12.13. Successors and Assigns; Participations................................................ 68
12.14. Confidentiality....................................................................... 68
12.15. WAIVER OF JURY TRIAL.................................................................. 69
12.16. SUBMISSION TO JURISDICTION............................................................ 69
12.17. SERVICE OF PROCESS.................................................................... 69
12.18. LIMITATION OF LIABILITY............................................................... 69
(iv)
Exhibits
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Exhibit A - form of Promissory Note
Exhibit B - form of Guaranty
Exhibit C - form of Stock Pledge and Security Agreement
Exhibit D - form of General Security Agreement
Exhibit E - form of Trademark Security Agreement
Exhibit F-1 - form of Licensee Agreement
Exhibit F-2 - form of Licensor's Consent
Exhibit G - form of Notice of Borrowing
Exhibit H - form of Letter of Credit Application
Exhibit I - form of Borrowing Base Certificate
Exhibit J - form of Landlord Agreement
Exhibit K - form of Processor Agreement
Schedules
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Schedule 1.01A - Inventory locations
Schedule 1.01B - License Agreements
Schedule 2.08 - Letter of Credit fees
Schedule 7.01 - jurisdictions in which qualified to do business
Schedule 7.04 - authorizations, consents, approvals, etc.
Schedule 7.06 - material contingent liabilities
Schedule 7.08 - pending or threatened proceedings
Schedule 7.09 - ERISA matters
Schedule 7.10 - tax assessments
Schedule 7.16 - capitalization, ownership, etc.
Schedule 7.18 - insurance
Schedule 7.22 - owned or leased real property
Schedule 7.23 - bank accounts
Schedule 7.25 - intellectual property
Schedule 8.01 - lien search jurisdictions
Schedule 10.02 - existing Liens
Schedule 10.03 - existing Indebtedness
Schedule 10.04 - existing instruments of guaranty
(v)
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT is made as of June 2, 1997, between
XXXXXX XXX MARKETING, INC., a Delaware corporation (the "Borrower") and THE CIT
GROUP/COMMERCIAL SERVICES, INC. ("CIT").
BACKGROUND
----------
The Borrower is a wholly-owned subsidiary of The Xxxxxx Xxx Company, Inc.,
a Delaware corporation (the "Parent") and the successor-in-interest to The
Xxxxxx Xxx Companies, Inc., Debtor-in-Possession ("Xxxxxx Xxx DIP"). In
conjunction with the definitive Plan of Reorganization of Xxxxxx Xxx DIP (the
"Plan of Reorganization"), pursuant to Chapter 11 of the United States
Bankruptcy Code, the Borrower has requested CIT to provide the Borrower with a
$30,000,000 revolving credit facility, including a $20,000,000 subfacility for
the issuance of letters of credit, and, subject to the terms and conditions set
forth herein, CIT has agreed to provide such facility.
In consideration of the mutual covenants herein contained and intending to
be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
-------------------------
1.01. Certain Definitions. In addition to other words and terms defined
elsewhere in this Agreement, as used herein the following words and terms shall
have the following meanings, respectively, unless the context hereof otherwise
clearly requires:
"Account Debtor" means each debtor, customer or obligor in any way
obligated on or in connection with any Account Receivable.
"Accounts Receivable" shall mean all rights of the Borrower to
payment for goods sold or services rendered, including accounts, contract
rights, general intangibles and any and all
such rights evidenced by chattel paper, instruments or documents, whether due or
to become due and whether or not earned by performance, and whether now or
hereafter acquired or arising in the future, and any proceeds arising therefrom
or relating thereto, and shall include all "Accounts", as defined in the
Security Agreement.
"Affiliate" of a Person shall mean any Person which directly or
indirectly controls, or is controlled by, or is under common control with, such
Person. The term "control" means (i) the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise or (ii) beneficial ownership (as defined in Rule 13d-3 promulgated
under the Securities Exchange Act of 1934 as amended) of five percent (5%) or
more of the voting securities of such Person.
"Agreement" shall mean this Revolving Credit Agreement, as the same
may be amended, modified, supplemented or restated from time to time.
"Availability" shall mean, at any time, the difference between (i)
the Current Commitment and (ii) the sum of (A) the aggregate outstanding
principal amount of all Loans and (B) the Letter of Credit Exposure.
"Bank" shall mean The Chase Manhattan Bank, its successors or any
other bank designated by CIT to the Borrower from time to time that is
reasonably acceptable to the Borrower.
"Bankruptcy Code" shall mean Title 11, United States Code, 11 U.S.C.
xx.xx. 101 et as amended.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Southern District of New York or such other court having original
jurisdiction over the Chapter 11 Cases.
"Benefit Plan" shall mean a defined benefit plan as defined in
Section 3(35) and subject to Title IV of ERISA (other than a Multiemployer Plan)
in respect of which the Borrower, or any ERISA Affiliate is or within the
immediately preceding six (6) years was an "employer" as defined in Section 3(5)
of ERISA.
"Book Value" shall mean, as to any Inventory in respect of which
such amount is to be determined, the lower of (a) cost (as reflected in the
general ledger of the Borrower) or (b) market value (both cost and market value
being determined in accordance with GAAP, calculated on the first in first out
basis).
"Borrower" shall have the meaning given to such term in the
introductory paragraph to this Agreement.
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"Borrower's Projected 1997 Business Plan" shall mean the financial
projections dated March 26, 1997 and captioned "New Xxxxxx Xxx Projections
1997-1998", prepared by the Parent and delivered to CIT prior to the Closing
Date.
"Borrowing Base" shall mean, as of the Relevant Date, an amount
equal to the difference between:
(i) the sum of (A) 85% of the Net Amount of Eligible
Accounts Receivable, plus (B) the lesser of (1) the sum of (x) 50%
of the Book Value of Eligible Inventory and (y) 50% of the amount of
L/C Inventory, provided that the Inventory with respect thereto is
not otherwise included in the Borrowing Base and (2) $12,000,000,
plus (C) 100% of the excess, if any, of the balance in the Funds-
in-Use Account over the debit balance in the Loan Account, as of the
opening of business on such date; and
(ii) such reserves as CIT, in its sole discretion
exercised reasonably, may deem appropriate.
"Borrowing Base Certificate" shall have the meaning given that term
in Section 4.04(a) hereof
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banking institutions are authorized or obligated to close in
New York, New York.
"Capital Expenditures" shall mean, for any period without
duplication, the sum of (i) the aggregate amount of all expenditures made or
incurred during such period which, in accordance with GAAP, are required to be
included in property, plant or equipment or in a similar fixed asset account,
plus (ii) the entire principal amount of any debt obligations (including
obligations under leases which have been or should be, in accordance with GAAP,
recorded as capital leases, to the extent required to be so recorded) assumed in
connection with any such expenditures.
"Capital Guideline" means any law, rule, regulation, policy,
guideline or directive (whether or not having the force of law and whether or
not the failure to comply therewith would be unlawful) (i) regarding capital
adequacy, capital ratios, capital requirements, the calculation of a bank's
capital or similar matters, or (ii) affecting the amount of capital required to
be obtained or maintained by CIT, the Persons controlling CIT or the Letter of
Credit Issuer or the manner in which CIT, the Persons controlling CIT or the
Letter of Credit Issuer allocate capital to any of their contingent liabilities
(including letters of credit), advances, acceptances, commitments, assets or
liabilities.
"Capitalized Lease" shall mean at any time any lease which is
required under GAAP to be capitalized on the balance sheet of the lessee at such
time, and "Capitalized Lease Obligation" of any Person at any time shall mean
the aggregate amount which is required under
3
GAAP to be reported as a liability on the balance sheet of such Person at such
time as lessee under a Capitalized Lease.
"Cash Collateral Account" shall mean an account maintained by, and
under the sole dominion and control of, CIT.
"Chapter 11 Cases" shall mean the reorganization cases of the Parent
and certain of its Affiliates under chapter 11 of the Bankruptcy Code,
previously pending in the Bankruptcy Court.
"CIT" shall have the meaning given that term in the introductory
paragraph to this Agreement.
"Closing Date" shall mean the first date on which each of the
conditions set forth in Section 8.01 shall have been satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
any successor statute of similar import, and regulations thereunder, in each
case as in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Collateral" shall have the meaning given that term in the Security
Agreement.
"Commitment Letter" shall mean the letter agreement dated February
25, 1997, as amended, between CIT and The Xxxxxx Xxx Companies, Inc., as Debtor
and Debtor-in-Possession, and the term sheet annexed thereto.
"Confirmation Order" shall mean the order of the Bankruptcy Court,
dated April 21, 1997, confirming the Plan of Reorganization, which order shall
be satisfactory in form and substance to CIT.
"Consolidated Current Assets" means for any Person and its
consolidated Subsidiaries, for any period the current assets determined on a
consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP.
"Consolidated Current Liabilities" means for any Person and its
consolidated Subsidiaries, for any period the current liabilities determined on
a consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP.
"Consolidated EBITDA" means for any Person and its consolidated
Subsidiaries, for any period, the Net Income (Loss) of such Person and its
consolidated Subsidiaries for such period, plus the sum, without duplication, of
(i) gross interest expense for such period (including, without limitation,
interest expense paid to Affiliates of such Person) minus gross interest income
for such period, (ii) income tax expense (benefit), (iii) depreciation expense,
(iv)
4
amortization expense net of negative goodwill amortization, and (v)
extraordinary or unusual noncash losses (provided such extraordinary or unusual
losses will not at any time result in a future cash outlay by such Person),
minus all extraordinary or unusual non-cash gains, each determined on a
consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP.
"Consolidated Interest Expense" means for any Person and its
consolidated Subsidiaries, for any period, the aggregate amount of (i) interest
paid or required to be paid, in cash, on Indebtedness during such period, net of
any interest earned during such period, (ii) in the case of the Borrower, the
fee required to be paid during such period pursuant to the Commitment Letter,
(iii) payments made during such period on Capitalized Leases, to the extent such
payments are allocatable to the payment of interest and (iv) in the case of the
Borrower, all fees and charges paid during such period pursuant to Section
2.08(c) hereof, and all factoring fees or commissions paid during such period
pursuant to Section 13.2 of the Factoring Agreement, all as determined on a
consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP.
"Consolidated Tangible Net Worth" means for any Person and its
consolidated Subsidiaries for any period, the net book value of assets,
excluding assets which would be classified as intangible assets, such as
patents, patent rights, trademarks, tradenames, franchises, copyrights,
licenses, permits, goodwill and other intangible assets classified as such in
accordance with GAAP consistently applied, and excluding deferred assets, such
as unamortized financing costs and expenses, and such other deferred assets
classified as such in accordance with GAAP consistently applied, after all
appropriate adjustments made in accordance with GAAP consistently applied
(including without limitation reserves for doubtful Accounts Receivable,
obsolescence, depreciation and amortization and excluding the amount of any
write-up or revaluation of any asset) minus liabilities, each determined on a
consolidated basis for such Person and its consolidated Subsidiaries in
accordance with GAAP.
"Consolidated Working Capital" means for any Person and its
consolidated Subsidiaries, for any period current assets minus current
liabilities, each determined on a consolidated basis for such Person and its
consolidated Subsidiaries in accordance with GAAP.
"Credit Extension" shall mean (a) the making of any Loan by CIT or
(b) the issuance, or extension of the expiration date of, any Letter of Credit
which CIT assists the Borrower in opening or establishing.
"Current Commitment" shall have the meaning assigned to that term in
Section 2.01 hereof.
"Customer Terms Agreement" shall mean the letter agreement between
the Borrower and CIT, dated as of the Closing Date, pursuant to which the
Borrower shall have described the terms of sale applicable to certain of its
customers, as more fully set forth therein
5
and in the Schedule thereto, as the same may be updated and modified from time
to time in accordance with Section 9.01(g).
"Customs Letter of Credit" shall mean the Letter of Credit issued
for the Borrower's account on or about the Closing Date by the Bank in favor of
Lumbermen's Mutual Casualty Company in the original face amount of
$____________________, letter of credit number ______, as the same may be
amended, modified, supplemented or renewed from time to time.
"Default Rate" shall have the meaning given that term in Section
2.08(b) hereof.
"Depository Accounts" shall mean the lock-box or demand deposit
accounts owned by CIT for the collection of the proceeds of Accounts Receivable,
Inventory and other Collateral.
"Depository Bank" shall mean each financial institution at which a
Depository Account is maintained.
"Designated Officer" shall mean Xxxx Xxxxxxxxx, Xxxx Xxxx or Xxxxxx
Xxxxxxx, or such other Person performing the functions of the chief financial
officer of the Borrower or the Parent, as the case may be, and designated and
appointed as such by the Borrower's or the Parent's Board or Directors, as the
case may be, provided that CIT shall have been notified in advance of the
appointment of such other Person and CIT shall have consented in writing to such
appointment, such consent not to be unreasonably withheld.
"Designee" shall mean any Person authorized by the Designated
Officer to perform in the name of the Designated Officer the kinds and types of
ministerial tasks described in the second sentence of Section 2.03(a) hereof,
provided that CIT shall have received and approved in advance a list of all such
Designees and the specimen signature of each, such approval not to be
unreasonably withheld.
"Disbursement Account" shall mean the deposit accounts in the name
of the Borrower maintained at a bank in the United States designated by the
Borrower to CIT into which there shall be deposited proceeds of Loans and funds
disbursed to the Borrower by CIT.
"Dollar", "Dollars" and the symbol "$" shall mean lawful money of
the United States of America.
"Eligible Accounts Receivable" means such Accounts Receivable of the
Borrower which are and at all times continue to be, for purposes of this
Agreement, acceptable to CIT in all respects. Criteria for eligibility may be
established and revised from time to time solely by CIT in its exclusive
judgment, exercised reasonably, and CIT shall use reasonable efforts to notify
the Borrower from time to time of any such revision, to the extent such revision
is material. In general, Accounts Receivable of the Borrower shall be deemed to
be eligible if such Accounts Receivable are
6
generated in the ordinary course of business of the Borrower, and are purchased,
credit approved and continue to be credit approved under the Factoring
Agreement. Accounts Receivable that are not purchased and credit approved or do
not remain credit approved under the Factoring Agreement nonetheless may be
deemed to be eligible in the sole and absolute discretion of CIT if:
(i) delivery of the merchandise has been completed;
(ii) no return, rejection or repossession of the
merchandise has occurred;
(iii) the merchandise has been accepted by the Account
Debtor without dispute, setoff, defense or counterclaim, provided
that in the case of any such dispute, setoff, defense or
counterclaim, only that portion of such Account Receivable not
subject to such dispute, setoff, defense or counterclaim may be
eligible by reason of this clause (iii);
(iv) such Account Receivable is lawfully owned by the
Borrower, free and clear of any Lien other than in favor of CIT and
otherwise continues to be in full conformity with any and all
representations and warranties made by the Borrower to CIT with
respect thereto in the Loan Documents;
(v) such Account Receivable is unconditionally payable
in Dollars within 60 days from the invoice date, or such later date
as CIT may, upon request of the Borrower and in CIT's sole
discretion, agree, and is not evidenced by a promissory note,
chattel paper or any other instrument or document;
(vi) no more than 60 days have elapsed from the invoice
due date and no more than 120 days have elapsed from the invoice
date;
(vii) the Account Debtor with respect thereto is not an
Affiliate of the Borrower or of any other Obligor;
(viii) such Account Receivable does not constitute an
obligation of the United States or any other Governmental Authority,
other than any Governmental Authority with respect to which the
Borrower has provided to CIT evidence, reasonably satisfactory to
CIT, that the Account Receivable of such Governmental Authority is
not subject to the Federal Assignment of Claims Act;
(ix) the Account Debtor (or the applicable office of the
Account Debtor) with respect thereto is located in the United States
(excluding its territories or possessions), unless the Account
Receivable is supported by a letter of credit or other similar
obligation satisfactory to CIT;
7
(x) the Account Debtor with respect thereto is not also
a supplier to or creditor of the Borrower or any other Obligor
(excluding Account Debtors that are creditors solely as a result of
chargebacks in the ordinary course of business) unless such supplier
or creditor has executed a letter, satisfactory to CIT, pursuant to
which such supplier or creditor has waived its rights of set-off;
(xi) not more than 25% of the aggregate amount of all
Accounts Receivable of the Account Debtor with respect to such
Account Receivable have remained unpaid 60 days past the invoice due
date;
(xii) the Account Debtor with respect to such Account
Receivable (A) has not filed a petition for bankruptcy or any other
relief under the Bankruptcy Code or any other law relating to
bankruptcy, insolvency, reorganization or relief of debtors, made an
assignment for the benefit of creditors, had filed against it any
petition or other application for relief under the Bankruptcy Code
or any such other law, (B) has not failed, suspended business
operations, become insolvent, called a meeting of its creditors for
the purpose of obtaining any financial concession or accommodation,
or (C) has not had or suffered to be appointed a receiver or a
trustee for all or a significant portion of its assets or affairs;
and
(xiii) CIT has not informed the Borrower that, in CIT's
sole and absolute discretion, exercised in a commercially reasonable
manner, it is not satisfied with the credit standing of the Account
Debtor in relation to the amount of credit extended.
Subject to the first two sentences of this definition, Accounts Receivable of
the Borrower which satisfy each of the conditions set forth in clauses (i)
through (xiii) above shall generally be deemed to be Eligible Accounts
Receivables.
"Eligible Inventory" means all Inventory of the Borrower consisting
of finished goods and uncut piece goods which meet all of the following
specifications:
(i) such Inventory is lawfully owned by the Borrower,
free and clear of any existing Lien other than that of CIT under the
Loan Documents, is not held on consignment and may be lawfully sold,
and continues to be in full conformity with any representations and
warranties made in the Related Documents by the Borrower to CIT with
respect thereto;
(ii) the Borrower has the right to grant Liens on such
Inventory;
(iii) such Inventory arose or was acquired in the
ordinary course of the business of the Borrower and does not
represent damaged goods;
8
(iv) no Account Receivable or document of title has been
created or issued with respect to such Inventory other than those in
favor of CIT or the Letter of Credit Issuer;
(v) in the case of Inventory of the Borrower consisting
of finished goods and uncut piece goods, such Inventory is, in the
reasonable opinion of CIT, readily salable or usable in the ordinary
course of the business of the Borrower;
(vi) such Inventory is located at one of the locations
listed on Schedule 1.01A hereto or such other locations in the
continental United States as CIT shall approve in writing from time
to time or in transit between two such locations;
(vii) in the case of finished goods Inventory sold under
a licensed trademark, CIT and the licensor of such trademark shall
have entered into an agreement, in form and substance satisfactory
to CIT, with respect to the rights of CIT to sell or otherwise
dispose of such Inventory;
(viii) such Inventory does not represent work in process
or supplies; and
(ix) such Inventory is not otherwise regarded by CIT, in
its sole and absolute discretion exercised reasonably, as unsuitable
Collateral for the Obligations, and is and at all times shall
continue to be reasonably acceptable to CIT in all respects.
"Environmental Claims" refers to any complaint, summons, citation,
notice, directive, order, claim, litigation, investigation, judicial or
administrative proceeding, judgment, letter or other communication from any
governmental agency, department, bureau, office or other authority, or any third
party involving violations of Environmental Laws or Releases of Hazardous
Materials (i) from any assets, properties or businesses of the Obligors; (ii)
from or onto any adjoining properties or businesses; or (iii) from or onto any
facilities which received Hazardous Materials generated by the Obligors.
"Environmental Law" means all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect relating to the
regulation and protection of human health, safety, the environment and natural
resources. Environmental Laws include but are not limited to the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. ss. 9601 et. seq.) ("CERCLA"); the Hazardous Material Transportation Act,
as amended (49 U.S.C. ss. 180 et. seq.); the Resource Conservation and Recovery
Act, as amended (42 U.S.C. ss. 6901 et. seq.) ("RCRA"); the Toxic Substance
Control Act, as amended (42 U.S.C. ss. 7401 et. seq.); the Clean Air Act, as
amended (42 U.S.C. ss. 740 et. seq.); the
9
Federal Water Pollution Control Act, as amended (33 U.S.C. ss. 1251 et. seq.);
and their state and local counterparts or equivalents.
"Environmental Liabilities and Costs" means, as to any Person, all
liabilities (including strict liability), monetary obligations, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including all reasonable fees, disbursements and.expenses of counsel, expert
and consulting and costs of environmental site assessments, remedial
investigation and feasibility studies), fines, penalties, sanctions and interest
incurred as a result of any Environmental Claim filed by any Government
Authority or by any other Person, and which relate to any violation of
Environmental Laws, Remedial Actions, or Releases of Hazardous Materials from or
onto (i) any property presently or formerly owned or operated by the Obligors or
any predecessor in interest or (ii) any facility which received Hazardous
Materials generated by the Obligors or a predecessor in interest.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs incurred by a Governmental
Authority.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"ERISA Affiliate" shall mean any (i) corporation which is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Code) as any of the Obligors, (ii) partnership or other trade or
business (whether or not incorporated) under common control (within the meaning
of Section 414(c) of the Code) with any of the Obligors, or (iii) member of the
same affiliated service group (within the meaning of Section 414(m) of the Code)
as any of the Obligors, any corporation described in clause (i) above or any
partnership or trade or business described in clause (ii) above.
"Event of Default" shall mean any of the Events of Default described
in Section 11.01 hereof.
"Factoring Agreement" shall mean the Factoring Agreement dated as of
the Closing Date between the Borrower and CIT, as the same may be amended,
modified, supplemented or restated from time to time.
"Factoring Documents" shall mean all agreements, instruments and
documents executed or delivered in connection with the Factoring Agreement, as
any of the same may be amended, modified, supplemented or restated from time to
time
"Filing Date" shall mean April 5, 1993.
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"Funds-in-Use Account" shall have the meaning given to such term in
the Factoring Agreement.
"GAAP" shall mean generally accepted accounting principles as such
principles shall be in effect in the United States at the Relevant Date.
"Governmental Authority" shall mean any nation or government, any
federal, state, city, town, municipality, county, local or other political
subdivision thereof or thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee" of or by any Person shall mean any obligation of such
Person guaranteeing any Indebtedness of any other Person (the "primary
obligor"), directly or indirectly through an agreement (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or
to purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (ii) to purchase property, securities, or
services for the purpose of assuring the owner of such Indebtedness against
loss, or (iii) to maintain working capital, equity capital or other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness; provided, however, that the term
Guarantee shall not include endorsements for collection or deposit, in either
case in the ordinary course of business.
"Guarantors" shall mean the Parent, and each of its direct and
indirect Subsidiaries organized pursuant to the Plan of Reorganization and any
other Person which from time to time guarantees all or any part of the
Obligations.
"Guaranty" shall mean each agreement executed in favor of CIT by
each of the Guarantors, substantially in the form attached hereto as Exhibit B,
pursuant to which (i) the Obligations are Guaranteed by such Guarantor and (ii)
such Guarantor grants a Lien to CIT on all of the assets of such Guarantor, as
collateral security for all Obligations and for all liabilities, indebtedness
and obligations of such Guarantor arising under such Guaranty.
"Hazardous Materials" shall include (a) any element, compound, or
chemical that is defined, listed or otherwise classified as a contaminant,
pollutant, toxic pollutant, toxic or hazardous substances, extremely hazardous
substance or chemical, hazardous waste, special waste, or solid waste under
Environmental Laws; (b) petroleum and its refined products; (c) polychlorinated
byphenyls; (d) any substance exhibiting a hazardous waste characteristic
including but not limited to corrosivity, ignitability, toxicity or reactivity
as well as any radioactive or explosive materials; and (e) any
asbestos-containing materials.
"Indebtedness" shall mean as to any Person (i) indebtedness for
borrowed money; (ii) indebtedness for the deferred purchase price of property or
services (other than property, including Inventory, and services, purchased in
the ordinary course of business); (iii)
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indebtedness evidenced by bonds, debentures, notes or other similar instruments
(other than performance, surety and appeal or other similar bonds arising in the
ordinary course of business); (iv) obligations and liabilities secured by a
Lien, claim or encumbrance, upon property owned by such Person, whether or not
owing by such Person and even though such Person has not assumed or become
liable for the payment thereof; (v) obligations and liabilities directly or
indirectly Guaranteed by such Person; and (vi) obligations or liabilities
created or arising under any Capitalized Lease, conditional sales contract or
other title retention agreement with respect to property used and/or acquired by
such Person, even though the rights and remedies of the lessor, seller and/or
lender thereunder are limited to repossession of such property.
"Indemnified Parties" shall have the meaning given that term in
Section 12.06 hereof.
"Inventory" means all goods and merchandise of the Borrower
including, but not limited to, all raw materials, work in process, piece goods,
trim, finished goods, materials and supplies of every nature used or usable in
connection with the shipping, storing, advertising or sale of such goods and
merchandise, whether now owned or hereafter acquired and all such property the
sale or other disposition of which would give rise to Accounts Receivable, and
any proceeds arising therefrom or relating thereto, and shall include all
"Inventory", as defined in the Security Agreement.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Governmental Authority.
"Ledger Debt" means indebtedness owing by an Obligor to CIT by
reason of such Obligor's purchases from other entities factored or financed by
CIT.
"L/C Inventory" means the aggregate undrawn stated amount of
documentary Letters of Credit for the importation of Eligible Inventory which
has been or will be consigned to a common carrier that has or will issue
documents of title covering such Eligible Inventory to CIT or the Letter of
Credit Issuer, provided, however, that any Eligible Inventory consisting of
uncut piece goods covered by documentary Letters of Credit is being shipped
directly to an approved inventory location in the continental United States. L/C
Inventory shall not include any documentary Letters of Credit issued for the
benefit of domestic trade creditors.
"Letter of Credit Application" shall have the meaning given to that
term in Section 3.01 hereof.
"Letter of Credit" shall have the meaning given to that term in
Section 3.01.
"Letter of Credit Exposure" at any time shall mean the sum at such
time of (a) the aggregate amount of all Unreimbursed Draws under Letters of
Credit (whether or not such Letters of Credit are then outstanding), (b) the
aggregate Undrawn Letter of Credit Availability
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under all outstanding Letters of Credit, and (c) any applicable duty and freight
charges with respect to the merchandise supported by such Letters of Credit.
"Letter of Credit Fees" shall mean all fees payable pursuant to
Section 2.08(c).
"Letter of Credit Guaranty" shall mean a guaranty delivered by CIT
to the Letter of Credit Issuer of the Reimbursement Obligations under a
reimbursement agreement, Application for Letter of Credit or other like
document.
"Letter of Credit Issuer" shall mean the issuer of a Letter of
Credit, which initially shall be the Bank, and thereafter any issuer mutually
acceptable to CIT and the Borrower.
"License Agreements" shall mean each of the license agreements to
which the Borrower or the Trademark Affiliate is a party, whether as licensor or
licensee, as listed on Schedule 1.01B hereto.
"Licensors" shall mean each of the licensors party to the License
Agreements.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, including but not limited to any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"Loan" or "Loans" shall mean any and all loan or loans made by CIT
to the Borrower under this Agreement.
"Loan Account" shall mean the loan account in the Borrower's name
established on the books of CIT, against which all charges and credits shall be
made.
"Material Adverse Effect" shall mean a material adverse effect upon
(i) the business, operations, condition (financial or otherwise) or properties
of (A) the Borrower and its Subsidiaries, taken as a whole, or (B) the Parent
and its Subsidiaries, taken as a whole, (ii) the ability of any Obligor to
perform its obligations hereunder or under the Note or under any other Related
Document, or (iii) the legality, validity or enforceability of the Confirmation
Order, this Agreement or any Related Document.
"Maturity Date" shall mean, initially, the last day of the Original
Term, and thereafter, the last day of the then current Renewal Term, if either
CIT or the Borrower shall have given the other a Notice of Termination prior to
such date within the time period required pursuant to the definition of the term
Notice of Termination.
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"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001 (a)(3) of ERISA which is, or within the immediately preceding six
(6) years was, contributed to by the Obligors or any ERISA Affiliate.
"Net Amount of Eligible Accounts Receivable" means the aggregate
unpaid invoice amount of Eligible Accounts Receivable less (i) sales, excise or
similar taxes, returns, discounts, chargebacks, claims, advance payments,
credits and allowances of any nature at any time issued, owing, granted,
outstanding, available or claimed, and (ii) in the case of sums due under the
Factoring Agreement, deductions for factoring charges, interest, discounts,
estimated anticipation, chargebacks based upon disputes and returns, chargebacks
of client risk accounts purchased with recourse, and all other charges, offsets
and reserves under the Factoring Agreement.
"Net Income (Loss)" means, for any period, the net income (loss) of
a Person and its consolidated Subsidiaries after income taxes for such period,
all computed and consolidated in accordance with GAAP applied on a basis
consistent with the corresponding prior period.
"Net Sale Proceeds" shall mean proceeds (including any notes
received as consideration and any other non-cash considerations) received by an
Obligor from the sale, lease, assignment or other disposition outside of the
ordinary course of business of any asset or property of any such Person, net of
the costs of sale, lease, assignment or other disposition, taxes paid or payable
as a result thereof and amounts applied to the repayment of Indebtedness secured
by a Permitted Lien on the asset or property disposed of.
"Note" shall mean the promissory note of the Borrower, substantially
in the form attached hereto as Exhibit A, executed and delivered under this
Agreement, as modified, amended, supplemented or restated from time to time and
any promissory note or notes issued in exchange or replacement thereof,
including all extensions, renewals, refinancings or refundings thereof in whole
or part.
"Notice of Borrowing" shall have the meaning given to that term in
Section 2.03.
"Notice of Termination" shall mean the written notice of CIT or the
Borrower, as the case may be, delivered to the other at least sixty (60) days
prior to the relevant Maturity Date, pursuant to which CIT or the Borrower, as
the case may be, shall indicate its intention to terminate this Agreement
effective as of such Maturity Date.
"Obligations" shall mean all obligations, liabilities and
indebtedness of the Obligors to CIT incurred under or related to this Agreement,
the Note, the Factoring Agreement or any other Related Document, the letter
agreement dated on or about the Closing Date among Bank Boston, N.A., Bank
America Business Credit, Inc., Xxxxxx Financial, Inc., The Xxxxxx Xxx Companies,
Inc. and CIT and all Ledger Debt, whether such obligations, liabilities or
indebtedness are direct or indirect, secured or unsecured, joint or several,
absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising,
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including, without limitation, those which are described in either of the
following clauses (i) or (ii):
(i) All indebtedness, obligations (including
Reimbursement Obligations) and liabilities of any nature whatsoever,
from time to time arising under or in connection with or evidenced
or secured by this Agreement, the Note, the Letters of Credit or any
other Related Document, including but not limited to the principal
amount of Loans outstanding, together with interest thereon, the
amount of the Letter of Credit Exposure, together with interest
thereon and all expenses, fees and indemnities hereunder or under
any other Related Document. Without limitation, such amounts include
all Loans and interest thereon and the amount of all Letter of
Credit Exposure whether or not such Loans were made or any Letters
of Credit to which such Letter of Credit Exposure relates were
issued in compliance with the terms and conditions hereof or in
excess of CIT's obligation to lend and arrange for the issuance of
Letters of Credit hereunder. Except as otherwise provided in the
Factoring Agreement with respect to Factor Risk Accounts (as defined
in the Factoring Agreement), if and to the extent any amounts in any
account (including the Loan Account, the Depository Accounts or
otherwise) constituting Collateral are applied to Obligations
hereunder, and CIT is subsequently obligated to return or repay any
such amounts to any Person for any reason, other than as a direct
result of CIT's gross negligence or willful misconduct as determined
by a final judgment of a court of competent jurisdiction, the amount
so returned or repaid shall be deemed a Loan hereunder and shall
constitute an Obligation.
(ii) All indebtedness, obligations and liabilities from
time to time arising under or in connection with any account from
time to time maintained by the Borrower with CIT, including but not
limited to all Reimbursement Obligations, service charges and
interest in connection with any overdrafts or returned items from
time to time arising in connection with any such account, or arising
under or in connection with any investment services, cash management
services or other services from time to time performed by CIT
pursuant to or in connection with this Agreement or any other
Related Document.
"Obligors" shall mean the Borrower, the Parent and the other
Guarantors.
"Office" when used in connection with CIT shall mean its office
located at 1211 Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000 or at such
other office or offices of CIT as may be designated in writing from time to time
by CIT to the Borrower and when used in connection with the Bank or the Letter
of Credit Issuer shall mean the office of such entity designated in writing from
time to time by CIT to the Borrower. In the event The Chase Manhattan Bank shall
be the Bank or the Letter of Credit Issuer, the Office for such entity shall
until further written notice from CIT to the Borrower be its office located at
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Original Term" shall have the meaning given that term on Section
5.01 hereof.
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"Paymaster Affiliate" shall mean Xxxxxx Xxx Systems Corporation, a
Delaware corporation and a wholly-owned Subsidiary of the Parent.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Permitted Disposition" shall have the meaning given that term in
Section 12. 17 hereof.
"Permitted Indebtedness" shall have the meaning given that term in
Section 10.03 hereof.
"Permitted Liens" shall have the meaning given that term in Section
10.02 hereof
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, unincorporated association, joint venture, joint-stock
company, government (including political subdivisions), Governmental Authority
or agency, or any other entity.
"Plan" shall mean an employee benefit plan defined in Section 3(3)
of ERISA (other than a Multiemployer Plan) in respect of which any of the
Obligors or any ERISA Affiliate is, or within the immediately preceding six (6)
years was, an "employer" as defined in Section 3(5) of ERISA.
"Potential Default" shall mean any event or condition which with
notice or passage of time, or any combination of the foregoing, would constitute
an Event of Default.
"Prime Rate" shall have the meaning given that term in Section 2.05
hereof.
"Reimbursement Obligation" shall mean the obligation of the Borrower
to reimburse CIT for amounts payable by CIT under any Letter of Credit Guaranty
in respect of any drawings made under any Letter of Credit issued by the Letter
of Credit Issuer, together with interest thereon.
"Referenced Company" shall mean each of the Borrower, the Parent,
the Trademark Affiliate and the Paymaster Affiliate.
"Related Documents" or "Loan Documents" means this Agreement, the
Customer Terms Agreement, the Note, the Security Agreement, the Trademark
Agreement, each Guaranty, the Stock Pledge Agreement, the Letters of Credit,
each Letter of Credit Application, the Confirmation Order, the Factoring
Agreement, the Factoring Documents, the other documents, instruments and
agreements referred to in Section 7.01 hereof, and all other instruments,
agreements and documents now existing or hereafter entered into or in effect by
the Obligors or any other Person from time to time creating, evidencing,
directly or indirectly guaranteeing, or granting CIT a Lien to secure, any
obligations under or in connection with this Agreement,
16
the Note, the Security Agreement, the Trademark Agreement, each Guaranty, the
Stock Pledge Agreement, the Letters of Credit, each Letter of Credit
Application, the Confirmation Order, the Factoring Agreement, the Factoring
Documents or any other Related Document, and all other instruments, agreements
and documents from time to time delivered in connection with or otherwise
relating to any Related Document.
"Release" means, any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal, leaching or migration
(including the abandonment or discarding of barrels, containers or closed
receptacles containing Hazardous Materials) of Hazardous Materials into the
indoor or outdoor environment.
"Relevant Date" shall mean the time a relevant computation or
determination is to be made or the date of relevant financial statements.
"Remedial Action" means all actions taken to (i) clean up, remove,
treat or in any other way address Hazardous Materials in the indoor or outdoor
environment; (ii) prevent or mitigate a Release or condition that is reasonably
likely to result in a Release or minimize any Release or threatened Release of
Hazardous Materials so they do not migrate or endanger or threaten to endanger
public health or welfare or the indoor or outdoor environment; or (iii) perform
preremedial studies and investigations and post-remedial operation and
maintenance activities or (iv) any other actions authorized by 42 U.S.C. 9601.
"Renewal Term" shall have the meaning given that term in Section
5.01 hereof.
"Reportable Event" shall mean any of the events described in Section
4043(b) of ERISA (other than events for which the notice requirements have been
waived).
"Revolving Credit Commitment" shall mean the commitment of CIT to
make Loans to the Borrower pursuant to Section 2.01 (a) hereof in an aggregate
principal amount not to exceed $30,000,000, as such amount may be reduced
pursuant to the terms of this Agreement.
"Sassco Reimbursement Agreement" means the agreement dated on or
about the Closing Date between the Borrower and Sassco Partners Ltd., a Delaware
corporation, in respect of the Borrower's rights of reimbursement, contribution
and indemnity against Sassco Partners Ltd. in connection with the Customs Letter
of Credit.
"Security Agreement" shall mean the General Security Agreement
executed and delivered by the Borrower to CIT substantially in the form attached
hereto as Exhibit D, as amended, modified, supplemented or restated from time to
time.
"Stated Amount" of a Letter of Credit shall mean the face amount
thereof, drawn or undrawn, regardless of the existence or satisfaction of any
conditions or limitations on drawing.
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"Stock Pledge Agreement" shall mean the Stock Pledge and Security
Agreement, dated as of the date hereof, made by the Parent in favor of CIT,
substantially in the form of Exhibit C hereto, as amended, modified,
supplemented or restated from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
limited or general partnership, limited liability company, trust, association or
other business entity of which an aggregate of 50% or more of the outstanding
stock or other interests entitled to vote in the election of the board of
directors of such corporation (irrespective of whether, at the time, stock of
any other class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency), managers, trustees or
other controlling persons, or an equivalent controlling interest therein, of
such Person is, at the time, directly or indirectly, owned or controlled by such
Person and/or one or more Subsidiaries of such Person.
"Takeover Accounts Receivable" shall mean those Accounts Receivable
of the Borrower which are outstanding and unpaid as of the Closing Date.
"Termination Event" shall mean (i) a Reportable Event with respect
to any Benefit Plan (other than the commencement of the Chapter 11 Cases); (ii)
the withdrawal of an Obligor or any ERISA Affiliate from a Benefit Plan during a
plan year in which any of the Obligors or any ERISA Affiliate was a "substantial
employer" as defined in Section 4001 (a)(2) of ERISA; (iii) the imposition of an
obligation on any of the Obligors or any ERISA Affiliate under Section 4041 of
ERISA to provide affected parties written notice of intent to terminate a
Benefit Plan in a distress termination described in Section 4041 (c) of ERISA;
(iv) the institution by the PBGC of proceedings to terminate a Benefit Plan; or
(v) the partial or complete withdrawal of any of the Obligors or any ERISA
Affiliate from a Multiemployer Plan.
"Trademark Affiliate" shall mean Xxxxxx Xxx Licensing Enterprises
Corp., a Delaware corporation and a wholly-owned Subsidiary of the Parent.
"Trademark Agreement" shall mean the Trademark Security Agreement,
dated as of the date hereof, made by the Trademark Affiliate in favor of CIT,
substantially in the form of Exhibit E hereto, as amended, modified,
supplemented or restated from time to time.
"Undrawn Letter of Credit Availability" with respect to a Letter of
Credit at any time shall mean the maximum amount available to be drawn under
such Letter of Credit at such time, regardless of the existence or satisfaction
of any conditions or limitations on drawing.
"Unreimbursed Draws" with respect to a Letter of Credit at any time
shall mean the aggregate amount at such time of all payments made by a Letter of
Credit Issuer or payments made by CIT under a Letter of Credit Guaranty in
respect of such payments under such Letter of Credit, to the extent not repaid
by the Borrower.
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"WARN" shall mean the Worker Adjustment and Retraining Notification
Act, as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time.
"Workmen's Compensation Letter of Credit" shall mean the Letter of
Credit issued for the Borrower's account on or about the Closing Date by the
Bank in favor of Hartford Fire Insurance Company in the original face amount of
41,765,026, as the same may be amended, modified, supplemented or renewed from
time to time.
1.02. Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the
plural, the part the whole and "or" has the inclusive meaning represented by the
phrase "and/or." References in this Agreement to "determination" by CIT include
good faith estimates by CIT (in the case of quantitative determinations) and
good faith beliefs by CIT (in the case of qualitative determinations). The words
"hereof," "herein," "hereunder" and similar terms in this Agreement refer to
this Agreement as a whole and not to any particular provision of this Agreement.
The section and other headings contained in this Agreement and the Table of
Contents preceding this Agreement are for reference purposes only and shall not
control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection and exhibit references are to this
Agreement unless otherwise specified.
1.03. Accounting Principles. Except as otherwise provided in this
Agreement, all computations and determinations as to accounting or financial
matters and all financial statements to be delivered pursuant to this Agreement
shall be made and prepared in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
ARTICLE II
THE CREDITS
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2.01. Revolving Credit Loans.
(a) The Commitment. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, CIT agrees to make
Loans to the Borrower at any time and from time to time on or after the date
hereof and to, but not including, the Maturity Date, in an aggregate principal
amount not exceeding at any one time outstanding CIT's Current Commitment at
such time. CIT's "Current Commitment" at any time shall mean an amount equal to
the lesser of (A) the Revolving Credit Commitment, as such Revolving Credit
Commitment may have been reduced under Section 2.04(c) hereof at such time, and
(B) the Borrowing Base at such time. CIT shall have no obligation to make Loans
hereunder or arrange for the issuance of Letters of Credit on or after the
Maturity Date or which, when added to the aggregate amount of all outstanding
and contemporaneous Loans and the Letter of Credit
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Exposure at such time, would cause the amount of all Loans and the Letter of
Credit Exposure at any time to exceed the Current Commitment at such time.
(b) Revolving Credit. Within the limits of time and amount set forth
in this Section 2.01, and subject to the provisions of this Agreement, the
Borrower may borrow, repay and reborrow Loans hereunder.
2.02. Note. The obligation of the Borrower to repay the unpaid principal
amount of the Loans made to it by CIT and to pay interest thereon shall be
evidenced in part by the Note dated the date of the first Credit Extension with
the blanks appropriately filled in. The executed Note shall be delivered by the
Borrower to CIT on the Closing Date.
2.03. Making of Loans.
(a) Whenever the Borrower desires that CIT make a Loan, the Borrower
shall provide notice to CIT not later than 12:00 noon (New York City time) on
the date (which must be a Business Day) on which the Borrower proposes to borrow
such Loan, setting forth: (i) the principal amount of the proposed borrowing,
and (ii) the proposed borrowing date, which must be a Business Day. Such notice
shall be given by telephone or in writing in substantially the form of Exhibit G
hereto containing the original or facsimile signature of the Designated Officer
or his Designee (a "Notice of Borrowing"); provided, however, that if given by
telephone, such notice shall be confirmed in writing by delivery to CIT promptly
(but in no event later than 2:00 p.m. (New York City time) on the date of the
proposed borrowing) of a written Notice of Borrowing. On the date specified in
such notice, CIT shall, subject to the terms and conditions of this Agreement,
make such amount available to the Borrower on the date specified in such notice
in funds immediately available, by depositing such proceeds in the Disbursement
Account.
(b) CIT shall be entitled to rely conclusively on the Designated
Officer's authority or the authority of his Designee to request a Loan on behalf
of the Borrower until CIT receives written notice to the contrary. CIT shall
have no duty to verify the authenticity of the signature appearing on any Notice
of Borrowing and, with respect to an oral request for a Loan, CIT shall have no
duty to verify the identity of any Person representing himself as the Designated
Officer or his Designee.
(c) CIT shall not incur any liability to the Borrower in acting upon
any telephonic notice referred to above which CIT believes in good faith to have
been given by the Designated Officer or his Designee or for otherwise acting in
good faith under this Section 2.03 and, upon the funding of a Loan by CIT in
accordance with this Agreement pursuant to any such telephonic notice, the
Borrower shall have effected a Loan hereunder.
(d) Any notice of borrowing pursuant to this Section 2.03 shall be
irrevocable and the Borrower shall be bound to make a borrowing in accordance
therewith.
2.04. Mandatory Prepayment; Optional Prepayment; Commitment Reduction.
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(a) Mandatory Prepayment.
(i) Exceeding Current Commitment. If at any time the Current
Commitment is less than the aggregate unpaid principal amount of the
Loans then outstanding, plus the Letter of Credit Exposure at such time,
the Borrower shall immediately prepay the Loans, without penalty or
premium, in an amount of not less than the amount of such difference or,
if the Loans then outstanding are less than the amount of such
difference, provide cash collateral to CIT in an amount satisfactory to
CIT (not to exceed 110% of such excess), which cash collateral shall be
deposited and held in the Cash Collateral Account until such time as such
excess no longer exists.
(ii) Disposition of Assets, etc. Without limiting any other
provision of this Agreement or any other Related Document permitting or
requiring prepayment of the Loans in whole or part, the Borrower shall
prepay the Loans in whole or in part without premium or penalty, in an
amount equal to 100% of the Net Sale Proceeds constituting cash received
by any Obligor from any sale, lease, transfer or other disposition of any
asset outside of the ordinary course of the business of the Obligors, the
proceeds of any claim made under any insurance policy covering any assets
of any Obligor and the proceeds of any condemnation or similar proceeding
with respect to any real property of any Obligor. Any prepayment required
under this clause (ii) shall be made on the first Business Day after the
consummation of such transfer, sale, disposition, settlement, issuance or
other event triggering a prepayment.
(b) Optional Prepayment. The Borrower may without penalty or premium
at any time or from time to time prepay, in whole or in part, any or all Loans
then outstanding.
(c) Commitment Reduction. At any time and from time to time, the
Borrower may reduce the Revolving Credit Commitment by providing two Business
Days' written notice to CIT of such reduction (which notice shall be
irrevocable). Reductions in the Revolving Credit Commitment must be in a minimum
amount of $1,000,000 and in multiples of $500,000 in excess thereof, shall be
irrevocable and may not be reinstated. Concurrently with any notice of reduction
of the Revolving Credit Commitment, the Borrower shall give notice to CIT of any
mandatory prepayment which notice shall specify a prepayment date no later than
the effective date of such reduction of the Revolving Credit Commitment.
(d) No Reduction. No mandatory prepayment under Section 2.04(a) shall
reduce the Revolving Credit Commitment.
2.05. Interest Rate. Each Loan shall bear interest on the principal amount
thereof from time to time outstanding for each day during each calendar month,
until paid, at a rate per annum for each such day equal to the Prime Rate in
effect on the last day of the previous month (the "then applicable Prime Rate")
plus an interest rate margin of one percent (1%). "Prime
21
Rate", as used herein, shall mean the interest rate per annum publicly announced
from time to time by the Bank in New York, New York as its Prime Rate. In the
event of any change in the Prime Rate, the rate of interest hereunder shall
change, as of the first day of the month following any change, so as to remain
one per cent (1%) above the then applicable Prime Rate. The Prime Rate is not
intended to be the lowest rate of interest charged by the Bank to its borrowers.
2.06. Interest Payment Dates. The Borrower shall pay interest on the unpaid
principal amount of each Loan from the date of such Loan until such principal
amount shall be paid in full, which interest shall be payable monthly in arrears
on the first day of each month, commencing on the first day of the month
following the month in which the Closing Date occurs. After maturity of any
principal amount of any Loan (by acceleration, at scheduled maturity or
otherwise), interest on such amount shall be due and payable on demand.
2.07. Amortization. To the extent not due and payable earlier pursuant to
the terms of this Agreement, the entire unpaid principal amount of each of the
Loans shall be due and payable on the Maturity Date.
2.08. Payments.
(a) Time, Place and Manner. Except with respect to optional
prepayments as provided in Section 2.04(b) hereof, all payments and prepayments
to be made in respect of principal, interest, fees or other amounts due from the
Borrower hereunder, under the Note or any other Related Document shall be
payable at or before 12:00 Noon, New York City time, on the day when due without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived. Such payments shall be made to CIT in Dollars in funds
immediately available at its Office without setoff, counterclaim or other
deduction of any nature. The Borrower hereby authorizes CIT to, and CIT may,
from time to time, when due and payable, charge the Loan Account with any
interest, fees or expenses that are due and payable under this Agreement or any
Related Document. The Borrower confirms that any charges which CIT may so make
to the Loan Account as herein provided will be made as an accommodation to the
Borrower and solely at CIT's discretion and shall constitute a Loan to the
Borrower. On the last day of each month, CIT shall transfer and credit to the
Loan Account the amount reflected in the Funds-in-Use Account on such day.
Credit balances in the Loan Account may be transferred to the Borrower at any
time and from time to time. CIT shall use reasonable efforts to provide the
Borrower with copies or other evidence of all charges to the Loan Account
promptly and within five Business Days of the date such charges are made,
provided that the failure to provide such copies or such other evidence to the
Borrower shall not relieve the Borrower of any of its obligations under this
Agreement. Interest on all Loans and all fees that accrue on a per annum basis
shall be computed on the basis of the actual number of days elapsed in the
period during which interest or such fee accrues and a year consisting of 360
days. In computing interest on any Loan, the date of the making of such Loan
shall be included and the date of payment shall be excluded.
22
(b) Interest Upon Events of Default. To the extent permitted by law,
after there shall have occurred and so long as there is continuing an Event of
Default pursuant to Section 11.01 of this Agreement, all principal, interest,
fees, indemnities or any other obligations for the payment of money under this
Agreement, the Note or any other Related Document (and including interest
accrued under this Section 2.08(b)) shall bear interest for each day until paid
(before and after judgment), payable on demand, at two percent (2%) in excess of
the rate of interest otherwise in effect under this Agreement and, if no
interest rate is otherwise in effect, at a rate per annum of three percent (3%)
above the Prime Rate for such day (collectively, the "Default Rate"). CIT shall
use reasonable efforts to promptly provide the Borrower with notice that
interest is accruing at the Default Rate and of the Event of Default giving rise
thereto, provided that the failure of CIT to provide such notice to the Borrower
shall not limit the rights of CIT under this Section 2.08(b) or relieve the
Borrower of its obligations under this Section 2.08(b) or the Agreement.
(c) Letter of Credit Fees. The Borrower shall pay to CIT a fee on the
average undrawn amount of each documentary Letter of Credit equal to 1/8 of 1%
of the average monthly undrawn amount, payable monthly in arrears on the first
day of each month commencing on the first day of the month next following the
issuance of such documentary Letter of Credit. In addition, the Borrower shall
pay to CIT a fee for each standby Letter of Credit issued hereunder, such fee to
be equal to 1.50% per annum of the Stated Amount of such standby Letter of
Credit, payable monthly, in arrears, commencing on the date such Standby Letter
of Credit is issued and on each anniversary of such issuance date. The Borrower
shall also pay the normal and customary letter of credit fees and charges of CIT
for the administration, issuance, amendment and processing of any Letters of
Credit issued by such Letter of Credit Issuer, as set forth in Schedule 2.08
hereto.
(d) Audit and Collateral Monitoring Fees. The Borrower acknowledges
that CIT may upon reasonable notice to the Borrower conduct audits and/or field
examinations of the Borrower and the Guarantors at any reasonable time and from
time to time in a manner so as to not unduly disrupt the business of the
Borrower or Guarantors, provided that such notice shall not be required if an
Event of Default has occurred and is continuing. The Borrower agrees to pay, for
the account of CIT, $500 per day per examiner plus the examiner's out-of-pocket
costs and reasonable expenses incurred in connection with all such visits,
inspections, audits and examinations.
(e) Fees. All fees required to be paid pursuant to the Commitment
Letter or any Related Document shall be paid as required therein. Except to the
extent set forth in the Commitment Letter, all fees under this Agreement or the
other Related Documents are non-refundable under all circumstances.
2.09. Use of Proceeds. The Borrower hereby covenants, represents and
warrants that the proceeds of the Loans made to it will be used solely to fund
working capital in the ordinary course of the Borrower's business and for other
general corporate purposes of the Borrower.
23
2.10. Increased Costs and Reduced Return.
(a) If CIT or the Letter of Credit Issuer shall have determined that
the adoption or implementation of, or any change in, any law, rule, treaty or
regulation, or any policy, guideline or directive of, or any change in the
interpretation or administration thereof by, any court, central bank or other
administrative or Governmental Authority, or compliance by the Letter of Credit
Issuer or CIT or any Person controlling CIT or the Letter of Credit Issuer with
any directive of or guideline from any central bank or other Governmental
Authority or the introduction of or change in any accounting principles
applicable to the Letter of Credit Issuer, CIT or any Person controlling CIT or
the Letter of Credit Issuer (in each case, whether or not having the force of
law), shall (i) change the basis of taxation of payments to the Letter of Credit
Issuer, CIT or any Person controlling CIT or the Letter of Credit Issuer of any
amounts payable hereunder (except for taxes on the overall net income of the
Letter of Credit Issuer, CIT or any Person controlling CIT or the Letter of
Credit Issuer), (ii) impose, modify or deem applicable any reserve, special
deposit or similar requirement against any Loan, Letter of Credit or against
assets of or held by, or deposits with or for the account of, or credit extended
by, the Letter of Credit Issuer, CIT, or any Person controlling CIT or the
Letter of Credit Issuer or (iii) impose on the Letter of Credit Issuer, CIT or
any Person controlling CIT or the Letter of Credit Issuer any other condition
regarding this Agreement or any Loan or Letter of Credit, and the result of any
event referred to in clauses (i), (ii) or (iii) above shall be to increase the
cost to the Letter of Credit Issuer or CIT of making any Loan, issuing or
guaranteeing any Letter of Credit, or agreeing to make any Loan or issue or
guaranty any Letter of Credit, or to reduce any amount received or receivable by
the Letter of Credit Issuer or CIT hereunder, then, upon demand by the Letter of
Credit Issuer or CIT, the Borrower shall pay to the Letter of Credit Issuer or
CIT such additional amounts as will compensate the Letter of Credit Issuer or
CIT for such increased costs or reductions in amount.
(b) If CIT or the Letter of Credit Issuer shall have determined that
any Capital Guideline or adoption or implementation of, or any change in, any
Capital Guideline by the Governmental Authority charged with the interpretation
or administration thereof, or compliance by the Letter of Credit Issuer, CIT or
any Person controlling such Letter of Credit Issuer or CIT with any Capital
Guideline or with any request or directive of any such Governmental Authority
with respect to any Capital Guideline, or the implementation of, or any change
in, any applicable accounting principles (in each case, whether or not having
the force of law), either (i) affects or would affect the amount of capital
required or expected to be maintained by the Letter of Credit Issuer, CIT or any
Person controlling the Letter of Credit Issuer or CIT, and the Letter of Credit
Issuer or CIT determines that the amount of such capital is increased as a
direct or indirect consequence of any Loans made or maintained, Letters of
Credit issued or any guaranty with respect thereto, or the Letter of Credit
Issuer's or CIT's other obligations hereunder, or (ii) has or would have the
effect of reducing the rate of return on the Letter of Credit Issuer's, CIT's or
any such other controlling Person's capital to a level below that which the
Letter of Credit Issuer, CIT or such controlling Person could have achieved but
for such circumstances as a consequence of any Loans made or maintained, Letters
of Credit issued, or any guaranty with respect thereto or any agreement to make
Loans, to issue Letters of Credit or the Letter
24
of Credit Issuer's or CIT's other obligations hereunder (in each case, taking
into consideration the Letter of Credit Issuer's, CIT's or such other
controlling Person's policies with respect to capital adequacy), then, upon
demand by the Letter of Credit Issuer or CIT, the Borrower shall pay to the
Letter of Credit Issuer or CIT from time to time such additional amounts as will
compensate the Letter of Credit Issuer or CIT for such cost of maintaining such
increased capital or such reduction in the rate of return on the Letter of
Credit Issuer's, CIT's or such other controlling Person's capital.
(c) All amounts payable under this Section 2.10 shall bear interest
from the date that is three Business Days after the date of demand by the Letter
of Credit Issuer or CIT until payment in full to the Letter of Credit Issuer or
CIT at the then applicable Prime Rate plus one per cent (1%). A certificate of
the Letter of Credit Issuer or CIT claiming compensation under this Section 2.10
specifying the event herein above described and the nature of such event shall
be submitted by the Letter of Credit Issuer or CIT to the Borrower, setting
forth the additional amount due and an explanation in reasonable detail of the
calculation thereof, the Letter of Credit Issuer's or CIT's reasons for invoking
the provisions of this Section 2.10 and shall be final and conclusive absent
manifest error.
ARTICLE III
LETTERS OF CREDIT
-----------------
3.01. Letters of Credit.
(a) General. In order to assist the Borrower in establishing or
opening documentary and standby letters of credit (the "Letters of Credit") with
the Letter of Credit Issuer, the Borrower has requested CIT to join in the
applications for such Letters of Credit, and/or guarantee payment or performance
of such Letters of Credit and any drafts or acceptances thereunder through the
issuance of the Letter of Credit Guaranty, thereby lending CIT's credit to the
Borrower, and CIT has agreed to do so. These arrangements shall be handled by
CIT subject to the terms and conditions set forth below. CIT shall have no
obligation to arrange for the issuance of Letters of Credit on or after the
Maturity Date or which, when added to the aggregate amount of all outstanding
and contemporaneous Loans and the Letter of Credit Exposure at such time, would
cause the aggregate amount of all Loans and the Letter of Credit Exposure at any
time to exceed the Current Commitment at such time. In addition, CIT shall not
be required to be the issuer of any Letter of Credit. The Borrower will be the
account party for any application for a Letter of Credit, which shall be
substantially in the form of Exhibit H hereto or such other form as may from
time to time be approved by the Letter of Credit Issuer and CIT, and shall be
duly completed in a manner reasonably acceptable to CIT, together with such
other certificates, documents and other papers and information as the Letter of
Credit Issuer or CIT may request (the "Letter of Credit Application").
(i) No documentary Letter of Credit may have a tenor of
more than 90 days from the date of issuance, and no standby Letter
of Credit
25
may have a tenor of more than 365 days from date of issuance,
provided, however, that no Letter of Credit may have a final
expiry date which is later than five Business Days before the
applicable Maturity Date, unless it is cash collateralized in a
manner satisfactory to CIT. The aggregate Letter of Credit
Exposure shall not exceed $20,000,000, of which not more than
$15,000,000 may be Letter of Credit Exposure with respect to
standby Letters of Credit, provided that on and after October 31,
1997, the Letter of Credit Exposure with respect to standby
Letters of Credit may not be more than $4,500,000. In addition,
the amount, purpose, form and extent of the Letters of Credit and
changes or modifications thereof by the Borrower and/or the Letter
of Credit Issuer of the terms and conditions thereof shall in all
respects be subject to the prior approval of CIT in the exercise
of its reasonable discretion, provided, however, that (x) the
Letters of Credit and all documentation in connection therewith
shall be in form and substance reasonably satisfactory to CIT and
the Letter of Credit Issuer, and (y) Letters of Credit for the
benefit of domestic trade creditors in connection with the
purchase of merchandise or goods of the Borrower shall not be
permitted.
(ii) CIT shall have the right, without prior notice to the
Borrower, to charge the Loan Account with the amount of any and
all indebtedness, liability or obligation of any kind (including
indemnification for breakage costs, capital adequacy and reserve
requirement charges) incurred by CIT under the Letter of Credit
Guaranty at the earlier of (x) payment by CIT under the Letter of
Credit Guaranty, or (y) with respect to any Letter of Credit which
is not cash collateralized as provided in this Agreement, the
occurrence of an Event of Default, provided that such Event of
Default is continuing on the date on which CIT so charges the Loan
Account. Any costs and expenses (exclusive of any charges, fees or
commissions) charged to CIT for the Borrower's account by the
Letter of Credit Issuer in connection with or arising out of
Letters of Credit issued pursuant to this Agreement or out of
transactions relating thereto will be charged to the Loan Account
in full when charged to or paid by CIT and when made by any such
Letter of Credit Issuer shall be conclusive on the Borrower. Any
amount charged to the Loan Account shall be deemed a Loan made by
CIT to the Borrower.
(iii) The Borrower unconditionally indemnifies CIT and
holds CIT harmless from any and all loss, claim or liability
incurred by CIT arising from any transactions or occurrences
relating to Letters of Credit established or opened for the
Borrower's account, and any drafts or acceptances thereunder, and
all Obligations thereunder, including any such loss or claim due
to any action taken by the Letter of Credit Issuer, other than for
any such loss, claim or liability arising out of the gross
negligence or willful misconduct of CIT as determined by a final
judgment of a court of competent jurisdiction. The Borrower
further agrees to hold CIT harmless from any errors or omission,
26
negligence or misconduct by the Letter of Credit Issuer. The
Borrower's unconditional obligation to CIT hereunder shall not be
modified or diminished for any reason or in any manner whatsoever,
other than as a result of CIT's gross negligence or willful
misconduct as determined by a final judgment of a court of
competent jurisdiction. The Borrower agrees that any charges
incurred by CIT for the Borrower's account by the Letter of Credit
Issuer shall be conclusive on the Borrower and may be charged to
the Loan Account.
(iv) CIT shall not be responsible for the existence,
character, quality, quantity, condition, packing, value or
delivery of the goods purporting to be represented by any
documents; any difference or variation in the character, quality,
quantity, condition, packing, value or delivery of the goods from
that expressed in the documents; the validity, sufficiency or
genuineness of any documents or of any endorsements thereof even
if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; the time,
place, manner or order in which shipment is made; partial or
incomplete shipment, or failure or omission to ship any or all of
the goods referred to in the Letters of Credit or documents; any
deviation from instructions; delay, default, or fraud by the
shipper and/or anyone else in connection with the shipping
thereof; or any breach of contract between the shipper or vendors
and the Borrower. Furthermore, without being limited by the
foregoing, CIT shall not be responsible for any act or omission
with respect to or in connection with any goods covered by Letters
of Credit.
(v) The Borrower agrees that any action taken by CIT, if
taken in good faith and in the absence of gross negligence or
willful misconduct, or any action taken by the Letter of Credit
Issuer, under or in connection with the Letters of Credit, the
guarantees, the drafts or acceptances, shall be binding on the
Borrower (with respect to the Letter of Credit Issuer and CIT) and
shall not put CIT in any resulting liability to the Borrower. In
furtherance thereof, CIT shall have the full right and authority
to clear and resolve any questions of non-compliance of documents;
to give any instructions as to acceptance or rejection of any
documents or goods; to execute any and all steamship or airways
guaranties (and applications therefore), indemnities or delivery
orders; to grant any extensions of the maturity of, time of
payment for, or time of presentation of, any drafts, acceptances,
or documents; and to agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the
terms or conditions of any of the applications, Letters of Credit,
drafts or acceptances; all in CIT's sole name, provided that CIT
shall give the Borrower notice of such action promptly thereafter
and the Letter of Credit Issuer shall be entitled to comply with
and honor any and all such documents or instruments executed by or
received solely from CIT, all without any notice to or any consent
from the Borrower. Notwithstanding any of the foregoing, in the
absence of a continuing Event of Default, CIT shall not take any
of the foregoing
27
actions that result in a departure in any material respect from
the terms of the relevant Letter of Credit or Letter of Credit
Application.
(vi) Without CIT's express consent and endorsement in
writing, which in the absence of a continuing Event of Default
shall not be unreasonably withheld, the Borrower agrees: (x) not
to execute any and all applications for steamship or airway
guaranties, indemnities or delivery orders; to grant any
extensions of the maturity of, time of payment for, or time of
presentation of, any drafts, acceptances or documents; or to agree
to any amendments, renewals, extensions, modifications, changes or
cancellations of any of the terms or conditions of any of the
applications, Letters of Credit, drafts or acceptances; and (y)
during the continuance of an Event of Default which is not waived
by CIT, not to (A) clear and resolve any questions of
non-compliance of documents, or (B) give any instructions as to
acceptances or rejection of any documents or goods.
(vii) The Borrower agrees that any necessary and material
import, export or other license or certificates for the import or
handling of Inventory will have been promptly procured; all
foreign and domestic material governmental laws and regulations in
regard to the shipment and importation of Inventory or the
financing thereof will have been promptly and fully complied with,
in each case, where the failure to obtain such certificate or
license or the failure to comply with such laws could result in a
Material Adverse Effect; and any certificates in that regard that
CIT may at any time reasonable request will be promptly furnished.
As between the Borrower, on the one hand, and CIT and the Letter
of Credit Issuer, on the other hand, the Borrower assumes all
risk, liability and responsibility for, and agrees to pay and
discharge, all present and future local, state, federal or foreign
taxes, duties, or levies. As between the Borrower, on the one
hand, and CIT and the Letter of Credit Issuer, on the other hand,
any embargo, restriction, laws, customs or regulations of any
country, state, city, or other political subdivision, where such
Inventory is or may be located, or wherein payments are to be
made, or wherein drafts may be drawn, negotiated, accepted, or
paid, shall be solely the Borrower's risk, liability and
responsibility.
(viii) Upon any payments made to the Letter of Credit
Issuer under a Letter of Credit Guaranty, CIT shall, without
prejudice to its rights under this Agreement (including that such
unreimbursed amounts shall constitute Loans hereunder), acquire by
subrogation, any rights, remedies, duties or obligations granted
or undertaken by the Borrower to the Letter of Credit Issuer in
any application for Letters of Credit, any standing agreement
relating to Letters of Credit or otherwise, all of which shall be
deemed to have been granted to CIT and apply in all respects to
CIT and shall be in addition to any rights, remedies, duties or
obligations contained herein.
28
(ix) In the event that the Borrower is required to provide
cash collateral for any Letter of Credit, the Borrower shall
deposit such cash collateral in the Cash Collateral Account.
(b) Request for Issue. The Borrower may from time to time, upon notice
not later than 12:00 noon, New York City time, at least three Business Days in
advance, request CIT to assist the Borrower in establishing or opening a Letter
of Credit or amending a Letter of Credit (if the effect of such amendment would
be to increase the amount of the Undrawn Letter of Credit Availability in
respect thereof) by delivering to CIT, with a copy to the Letter of Credit
Issuer, a Letter of Credit Application, together with any necessary related
documents.
ARTICLE IV
BORROWING BASE
--------------
4.01 Conditions of Lending and Assisting in Establishing or Opening Letters
of Credit. CIT shall have no obligation to make a Loan or assist in establishing
or opening a Letter of Credit to the extent that the aggregate unpaid principal
amount of the Loans plus the Letter of Credit Exposure exceeds, or after giving
effect to a requested Loan or Letter of Credit would exceed, the Current
Commitment at such time.
4.02. Mandatory Prepayment. Concurrently with the delivery of any Borrowing
Base Certificate, the Borrower shall give notice to CIT of any mandatory
prepayment required to be made pursuant to Section 2.04(a), which notice shall
specify a prepayment date no later than the earlier of the date on which such
Borrowing Base Certificate is given and the date on which such Borrowing Base
Certificate is required to be provided to CIT.
4.03. Rights and Obligations Unconditional. Without limitation of any other
provision of this Agreement, the rights of CIT and the obligations of the
Borrower under this Article IV are absolute and unconditional, and CIT shall not
be deemed to have waived the condition set forth in Section 4.01 hereof or its
right to payment in accordance with Section 4.02 hereof in any circumstance
whatever, including but not limited to circumstances wherein CIT (knowingly or
otherwise) makes an advance hereunder in excess of the Borrowing Base.
4.04. Borrowing Base Certificate.
(a) On the date hereof, and thereafter by 12:00 noon, New York City
time on each Tuesday, the Borrower shall furnish to CIT a certificate (a
"Borrowing Base Certificate") substantially in the form attached hereto as
Exhibit I, executed by the Designated Officer of the Borrower, setting forth the
Borrowing Base and the other information required therein as of the Borrower's
close of business on the immediately preceding Friday together with such other
information with respect to the Accounts Receivable and Inventory of the
Borrower as CIT may reasonably request.
29
(b) In the event of any dispute about the eligibility of any asset for
inclusion in the Borrowing Base or the valuation thereof, CIT's good faith
reasonable judgment shall control.
(c) The Borrowing Base set forth in a Borrowing Base Certificate shall
be effective from and including the date such Borrowing Base Certificate is duly
received by CIT to but not including the date on which a subsequent Borrowing
Base Certificate is duly received by CIT, unless CIT disputes the eligibility of
any asset for inclusion in the Borrowing Base or the valuation thereof by notice
of such dispute to the Borrower.
(d) Each Borrowing Base Certificate shall be accompanied by backup
schedules showing the derivation thereof and containing such detail and such
other and further information as CIT may reasonably request from time to time.
4.05. General Provisions. Notwithstanding anything to the contrary in this
Article IV, in no event shall any single element of value or asset be counted
twice in determining the Borrowing Base.
ARTICLE V
TERM AND TERMINATION
--------------------
5.01. Term of Agreement. Subject to CIT's rights under Article XI hereof,
this Agreement shall be in effect for a period of two years from the Closing
Date (the "Original Term"), and thereafter shall automatically renew itself for
successive one-year periods (each a "Renewal Term"), unless sooner terminated as
provided in Section 5.02 hereof.
5.02. Termination.
(a) Termination by CIT. Upon the delivery to the Borrower of a Notice
of Termination, CIT may, at its option, terminate this Agreement as of the last
day of the Original Term or the then current Renewal Term, as applicable, and as
stated in such Notice of Termination.
(b) Termination by the Borrower. Upon delivery to CIT of a Notice of
Termination, the Borrower may, at its option, terminate this Agreement as of the
last day of the Original Term or the then current Renewal Term, as applicable
and as stated in such Notice of Termination; provided however that the Borrower
shall, on the termination date specified in its Notice of Termination satisfy in
full all of its obligations under Section 5.03 hereof and under any other
Related Document. Any Notice of Termination given by the Borrower shall be
irrevocable unless CIT otherwise agrees in writing.
30
(c) Simultaneous Termination of Factoring Agreement. A Notice of
Termination given under this Article V shall be deemed to constitute a notice of
termination of the Factoring Agreement and the termination of this Agreement
pursuant to this Article V shall constitute the simultaneous termination of the
Factoring Agreement. The Factoring Agreement may not be terminated by the
Borrower unless the Borrower also terminates this Agreement under this Article
V.
5.03. Effect of Termination.
(a) Upon the termination date stated in any Notice of Termination:
(i) the Revolving Credit Commitment shall terminate immediately
and any fees hereunder shall be immediately due and payable without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived, and an action therefor shall immediately
accrue;
(ii) the unpaid principal amount of the Note, interest accrued
thereon, the total amount of the Letter of Credit Exposure that is not
cash collateralized in accordance with this Agreement and all other
amounts owing by the Borrower hereunder or under the Note or Related
Documents shall be immediately due and payable without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived, and an action therefor shall immediately accrue;
(iii) if only Letters of Credit are outstanding, the Borrower
shall be required to maintain cash collateral covering the Letter of
Credit Exposure in an amount satisfactory to CIT; and
(iv) the obligations of CIT under the Factoring Agreement or under
any of the Factoring Documents shall terminate and any amounts due or to
become due to CIT thereunder shall be immediately due and payable.
(b) All undertakings, agreements, covenants, warranties and
representations of the Borrower contained in this Agreement and the Related
Documents shall survive any termination under this Article V and CIT shall
retain its Liens in the Collateral and all of its rights and remedies under this
Agreement and the Related Documents notwithstanding such termination until the
Borrower has paid the Obligations to CIT, in full, in immediately available
funds. Notwithstanding the payment in full of the Obligations, CIT shall not be
required to terminate its security interests in the Collateral unless, with
respect to any loss or damage CIT may incur as a result of dishonored checks or
other items of payment received by CIT from the Borrower or any Account Debtor
and applied to the Obligations, CIT shall, at its option, (i) have received a
written agreement, executed by the Borrower and by any Person whose loans or
other advances to the Borrower are used in whole or in part to satisfy the
Obligations, indemnifying CIT from any such loss or damage; or (ii) have
retained such monetary reserves and Liens on
31
the Collateral for such period of time as CIT, in its reasonable discretion, may
deem necessary to protect CIT from any such loss or damage.
5.04 Resetting of Financial Covenants. CIT and the Borrower agree that in
the event that neither party shall have given the other a Notice of Termination
prior to the relevant Maturity Date, then, at least forty-five (45) days prior
to the end of the Original Term or the Renewal Term, as the case may be, CIT and
the Borrower shall meet, confer and negotiate with one another in good faith for
the purpose of resetting for the then succeeding i Renewal Term the appropriate
financial covenant levels or ratios to be maintained for such Renewal Term
pursuant to Sections 10.15 through 10.20 hereof.
ARTICLE VI
SECURITY
--------
6.01. Grant of Lien and Security Interest
(a) Pursuant to the Security Agreement, as collateral security for the
Obligations, the Borrower has assigned, pledged, transferred, granted, bargained
and sold, confirmed and set over unto CIT, and has granted and created in favor
of CIT a security interest in and to the Collateral and hereby confirms and
reaffirms the granting and creation in favor of CIT of a security interest in
and to the Collateral.
(b) The liens and security interests in favor of CIT created pursuant
to the Security Agreement shall be valid and perfected liens and security
interests, prior to all other liens and interests hereafter arising, except for
such Permitted Liens which have priority by operation of law. The liens and
security interests in favor of CIT and their priority shall remain in effect
until the Revolving Credit Commitment has been terminated and all Obligations
have been repaid in cash in full and all Letters of Credit outstanding are cash
collateralized in a manner satisfactory to CIT.
6.02. Collection Arrangement. Each Account Debtor shall be instructed by
the Borrower to remit payments on all Accounts Receivable owing by it (other
than Takeover Accounts Receivable owing by it) to a post office box owned and
designated by CIT. All proceeds from the collection of Accounts Receivable and
the sale of the Inventory and other Collateral of the Borrower received each day
in such post office box shall be deposited in Depository Accounts established by
CIT. CIT shall cause all available funds contained in the Depository Accounts to
be transferred on a daily basis to the Funds-in-Use Account. Any collection by
the Borrower of the proceeds of Accounts Receivable and proceeds of the sale of
the Inventory and other Collateral of the Borrower shall be made for CIT, and
the Borrower shall receive all payments thereon as CIT's trustee, and
immediately transfer all such payments in kind, with proper endorsement, if
necessary, directly to CIT or into a Depository Account.
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6.03. Grants, Rights and Remedies Cumulative. This Agreement, the Security
Agreement and such other Related Documents supplement each other and the grants,
priorities, rights and remedies of CIT hereunder and thereunder are cumulative.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to CIT with respect to itself, and
where indicated, with respect to each other Referenced Company, as follows:
7.01. Organization and Qualification. Each Referenced Company is a
corporation, duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation. Each Referenced Company is duly
qualified to do business and is in good standing in each jurisdiction in which
the failure to qualify would have a Material Adverse Effect. Schedule 7.01
hereto correctly sets forth as of the date hereof the jurisdictions in which
each Referenced Company is qualified to do business.
7.02. Authority and Authorization. The Borrower has all necessary corporate
power to execute and deliver this Agreement and each Referenced Company has all
necessary corporate power to execute and deliver each of the Related Documents
to which it is or is to be a party. The Borrower has the power and authority to
perform its obligations hereunder, and each Referenced Company has the power and
authority to perform its obligations under each such Related Document to which
it is or is to be a party, and all such action has been duly and validly
authorized by all necessary corporate and judicial action.
7.03. Execution and Binding Effect. This Agreement and each of the other
Related Documents required to be executed and delivered on or prior to the date
hereof have been duly and validly executed and delivered by the Borrower and
each other Referenced Company, to the extent it is a party thereto, and
constitute the legal, valid and binding obligations of the Borrower and each
other Referenced Company, as the case may be, enforceable against each, to the
extent it is a party thereto, in accordance with the terms hereof or thereof,
except as such enforceability may be limited by any applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights generally
or by general principles of equity, regardless of whether such enforceability is
considered in equity or at law. Each Related Document to which the Borrower or
other Referenced Company is or is to be a party is, or will be when executed and
delivered, validly executed and delivered by the Borrower or such other
Referenced Company, as the case may be, and will constitute the legal, valid and
binding obligation of the Borrower or such other Referenced Company, as the case
may be, enforceable against it in accordance with the terms thereof, except as
enforceability thereof may be limited by any applicable bankruptcy,
reorganization, insolvency or other laws affecting creditors' rights generally
or by general principles of equity, regardless of whether such enforceability is
considered in equity or at law.
33
7.04. Authorizations and Filing. Except as set forth on Schedule 7.04
hereof, no authorization, consent, approval, license, exemption or other action
by, and no registration, qualification, designation, declaration or filing with,
any Governmental Authority is or will be necessary in connection with the
execution and delivery by the Borrower or any other Referenced Company, as the
case may be, of this Agreement or the other Related Documents to which the
Borrower or such other Referenced Company is or is to be a party, consummation
by the Borrower or any other Referenced Company, as applicable, of the
transactions herein or therein contemplated, performance of or compliance by the
Borrower or any other Referenced Company, as applicable, with the terms and
conditions hereof or thereof or to ensure the legality, validity, enforceability
and admissibility in evidence hereof or thereof.
7.05. Absence of Conflicts. Neither the execution and delivery of this
Agreement or the other Related Documents to which the Borrower or other
Referenced Company is or is to be a party nor consummation by the Borrower or
any other Referenced Company, as applicable, of the transactions herein or
therein contemplated nor performance of or compliance by the Borrower or any
other Referenced Company, as applicable, with the terms and conditions hereof or
thereof will (a) violate any Law, (b) conflict with or result in a breach of or
default under the Borrower's or such other Referenced Company's charter or
by-laws, or any material agreement or instrument to which the Borrower or such
other Referenced Company is a party or by which it or any of its properties (now
owned or hereafter acquired) may be subject or bound or (c) result in the
creation or imposition of any Lien upon any property (now owned or hereafter
acquired) of the Borrower, except the Liens in favor of CIT. Neither the
Borrower nor any other Referenced Company is a party to, or subject to, any
contract, agreement, or charter or other corporate restriction, which has or is
likely to have a Material Adverse Effect. Neither the Borrower nor any other
Referenced Company is a party to, or subject to, any contract or agreement which
restricts its right or ability to incur indebtedness.
7.06. Financial Statements.
(a) Historical Statements. Xxxxxx Xxx DIP has heretofore furnished to CIT
an audited consolidated balance sheet of Xxxxxx Xxx DIP and its consolidated
Subsidiaries as of December 28, 1996, and the related consolidated statements of
operations and cash flows for the fiscal year then ended, and an unaudited
consolidated balance sheet and related consolidated statements of operations and
cash flows of Xxxxxx Xxx DIP and its consolidated Subsidiaries for and as of the
end of the period commencing on December 29, 1996 and ending April 30, 1997 (the
"Historical Statements") as certified by the Designated Officer of Xxxxxx Xxx
DIP. The Historical Statements also include the results of operations for each
of the divisions that will comprise the operations and business of the Borrower
on and after the Closing Date (the "Divisional Operating Results"). The
Historical Statements present fairly, in all material respects, the financial
condition of Xxxxxx Xxx DIP and its consolidated Subsidiaries as of the end of
such fiscal year and as of the end of such period and the results of their
operations and the cash flows for the fiscal year and months then ended, all in
conformity with GAAP applied on a basis consistent with that of the preceding
fiscal year, except for any financial reporting implications of the Chapter 11
Cases, subject to year-end adjustments. Except as disclosed
34
therein or set forth on Schedule 7.06 hereof, the Borrower does not have any
material contingent liabilities (including liabilities for taxes), unusual
forward or long term commitments or unrealized or anticipated losses from
unfavorable commitments.
(b) Projections. Xxxxxx Xxx DIP has heretofore furnished to CIT the
Borrower's Projected 1997 Business Plan, and the financial projections contained
therein have been prepared in accordance with the standard set forth in the
second sentence of Section 7.17 hereof.
7.07. No Event of Default. No Event of Default or Potential Default has
occurred and is continuing, or exists. No Referenced Company is in violation of
any term of its charter or by- laws.
7.08. Litigation. Except as set forth in the financial statements referred
to in Section 7.06 hereof and Schedule 7.08 hereof, there is not, to the best
knowledge of the Borrower, any pending or threatened proceeding by or before any
Governmental Authority, arbitrator or grand jury against or affecting the
Borrower, any other Referenced Company or any ERISA Affiliate, with respect to
any Environmental Law or ERISA law, which, if adversely decided, can reasonably
be expected to have a Material Adverse Effect.
7.09. ERISA. Except as set forth in Schedule 7.09 hereof (i) each Plan is
in substantial compliance with ERISA and the Code, (ii) no Termination Event has
occurred with respect to any Plan, (iii) the most recent annual report (Form
5500 Series) with respect to each Plan, including Schedule B (Actuarial
Information) thereto, copies of which have been filed with the Internal Revenue
Service and delivered to CIT, is complete and correct and fairly presents the
funding status of such Plan, and since the date of such report there has been no
material adverse change in such funding status, (iv) no Benefit Plan had an
accumulated or waived funding deficiency within the meaning of Section 412 of
the Code at any time during the previous 60 months, (v) no Lien exists on
account of any Plan within the meaning of Section 412(a) of the Code at any time
during the previous 60 months, and (vi) in the event of a withdrawal from each
Multiemployer Plan to which the Borrower or any of its ERISA Affiliates
contributes, to the knowledge of the Borrower, as of the date hereof the
aggregate withdrawal liability incurred by the Borrower and its ERISA Affiliates
as a result of such withdrawal would not reasonably be expected to exceed
$100,000. Except as required by Section 4980B of the Code, the Borrower does not
maintain a welfare plan (as defined in ERISA) which provides benefits or
coverage after a participant's termination of employment. Neither the Borrower
nor any of its ERISA Affiliates have incurred any liability under WARN that has
not been satisfied. Neither the Borrower nor any of its ERISA Affiliates have
engaged in any non-exempt prohibited transaction within the meaning of Section
406 of ERISA and Section 4975 of the Code. Neither the Borrower nor any of its
ERISA Affiliates has failed to make any contribution or payment to any Benefit
Plan or amended any Benefit Plan, which could result in the imposition of a
Lien.
7.10. Taxes. All tax returns required to be filed by the Parent or the
Borrower have been properly prepared, executed and filed. All taxes,
assessments, fees and other governmental
35
charges upon the Borrower or any other Referenced Company or upon any of its
property, income, sale or franchise which are shown thereon as due and payable
have been paid, except (i) such, if any, that are reserved against in accordance
with GAAP, (ii) such taxes as are being contested in good faith by appropriate
proceedings or (iii) such taxes, assessments, fees or charges, the failure to
make payment of which would not have a Material Adverse Effect. The reserves and
provisions for taxes, if any, on the books of the Borrower are adequate for all
open years and for its current fiscal period. Except as set forth on Schedule
7.10 hereof, the Borrower does not know of any proposed additional assessment or
basis for any material assessment for additional taxes (whether or not reserved
against). Except as set forth on Schedule 7.10 hereof, the federal income tax
liabilities of the Parent and the Borrower have been finally determined by the
Internal Revenue Service, or the time for audit has expired, for all fiscal
periods and all such liabilities (including all deficiencies assessed following
audit) have been satisfied.
7.11. Financial Accounting Practices
(a) The Borrower makes and keeps in reasonable detail, books, records
and accounts which accurately and fairly reflect its transactions and
dispositions of its assets and the Borrower maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization, (ii) transactions are recorded as necessary (A) to permit
preparation of financial statements in conformity with GAAP except as previously
disclosed to CIT and (B) to maintain accountability for assets, and (iii) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(b) The Borrower maintains a system of internal procedures and
controls sufficient to provide reasonable assurance that the information
required to be set forth in each Borrowing Base Certificate (including, without
limitation, information relating to the identification of assets which are
Account Receivable and Inventory as provided herein and the valuation thereof)
is accurate.
7.12. Power To Carry On Business. The Borrower has all the requisite power
and authority to own and operate its properties and to carry on its business as
planned to be conducted in accordance with the Plan of Reorganization.
7.13. No Material Adverse Change. Since December 28, 1996, there has not
occurred any event which may be reasonably expected to have a Material Adverse
Effect.
7.14. Title to Properties; Existing Liens. The Borrower and each other
Referenced Company has good, indefeasible and marketable title to and fee simple
ownership of, or valid and subsisting leasehold interests in, all of its real
Property, and good title to all of the Collateral and all of its other property,
in each case, free and clear of all Liens other than Permitted Liens.
36
7.15. Compliance with Laws. Neither the Borrower nor any other Referenced
Company is in violation of or otherwise liable under any Law (including but not
limited to violations pertaining to the conduct of its business or the use,
maintenance or operation of the real and personal property owned or possessed by
it), except for violations which in the aggregate do not have a Material Adverse
Effect.
7.16. Capitalization. Schedule 7.16 hereto is a complete and correct
description of the name, jurisdiction of incorporation and ownership of the
outstanding capital stock of the Borrower and each other Referenced Company. All
shares of such stock are owned free and clear of all Liens, except, in the case
of the stock of the Borrower and all other direct Subsidiaries of the Parent,
the Lien in favor of CIT arising under the Stock Pledge Agreement. The
identities of the members of the Board of Directors of each of the Parent and
the Borrower and the identities of the members of the audit committee of the
Parent, and of the Borrower, if relevant, are also set forth on Schedule 7.16.
7.17. Accurate and Complete Disclosure. No representation or warranty made
by the Borrower under or pursuant to this Agreement or any other Related
Document and no written statement made by the Borrower, the Parent or Xxxxxx Xxx
DIP in any financial statement (furnished pursuant to this Agreement or
otherwise), certificate, report, exhibit or document furnished by any of them to
CIT pursuant to or in connection with this Agreement or any other Related
Document is or was or will be, when delivered, when taken together with all
other information supplied by any of them to CIT, false or misleading in any
material respect (including by omission of material information necessary to
make such representation, warranty or statement, in light of the circumstances
under which it was made, not misleading). To the extent any of them furnishes
any projections of the financial position and results of operations of the
Borrower for, or as at the end of, certain future periods, such projections were
believed at the time furnished to be reasonable, have been or will have been
prepared on a reasonable basis and in good faith by the preparer thereof and
have been or will be based on assumptions believed by the preparer thereof to be
reasonable at the time made and upon the best information then reasonably
available to the preparer thereof.
7.18. Insurance. The Borrower keeps its properties adequately insured and
maintains (i) insurance to such extent and against such risks, including fire,
as is customary with companies in the same or similar businesses, (ii) workmen's
compensation insurance in the amount required by applicable law, (iii) public
liability insurance, which shall include product liability insurance, in the
amount customary with companies in the same or similar business against claims
for personal injury or death on properties owned, occupied or controlled by
them, and (iv) such other insurance as may be required by law or as may be
reasonably required in writing by CIT. Schedule 7.18 hereto sets forth a list of
all insurance currently maintained by the Borrower.
37
7.19. Environmental Matters.
(a) To the Borrower's best knowledge, after reasonable inquiry and
investigation, it is in compliance in all material respects with all applicable
Environmental Laws, except for any noncompliance which individually or in the
aggregate is not reasonably expected to have a Material Adverse Effect;
(b) The Borrower has obtained all material permits, approvals,
authorizations and licenses required by Environmental Laws necessary for its
operations, and to the Borrower's best knowledge, after reasonable inquiry and
investigation, the Borrower is in material compliance with all material terms
and conditions of such permits, approvals, authorizations and licenses, except
for any noncompliance which individually or in the aggregate is not reasonably
expected to have a Material Adverse Effect;
(c) The Borrower has not received any notice or claim that there has
been any Release in excess of an applicable reportable quantity at any property
owned or operated by the Borrower or a predecessor in interest, or at any
disposal or treatment facility which received Hazardous Materials generated by
the Borrower or a predecessor in interest which is reasonably expected to have a
Material Adverse Effect;
(d) No Environmental Claims have been asserted in writing against the
Obligors nor does the Borrower have any knowledge of any threatened or pending
Environmental Claim against the Borrower or a predecessor in interest which is
reasonably expected to have a Material Adverse Effect; and
(e) Buyer has not received notice that any Environmental Claims have
been asserted against any facilities that may have received Hazardous Materials
generated by the Borrower or any predecessor in interest which is reasonably
expected to have a Material Adverse Effect.
7.20. Lien Perfection. The Obligations of the Borrower hereunder and under
the Related Documents to which the Borrower is a party is secured by a valid and
perfected lien on and security interest in all of the Collateral.
7.21. Bankruptcy Court Order. The Plan of Reorganization has been
consummated and the Confirmation Order has been duly and properly entered, is in
full force and effect, has not been reversed, stayed, modified or amended, and
is final.
7.22. Real Property. Schedule 7.22 hereto sets forth a complete and
accurate description and list, as of the date hereof, of the location, by state,
county and street address, of all of the real property owned or leased by the
Borrower together with a statement as to whether such real property is the
subject of a contract of sale (and, if so, a statement as to the status of such
sale and of any motion to the Bankruptcy Court with respect thereto). The
38
Borrower has good and marketable title in fee simple, to, or a valid leasehold
interest in, the real property set forth in such Schedule.
7.23. Location of Bank Accounts. Schedule 7.23 hereto sets forth a complete
and accurate list, as of the date hereof of all deposit accounts owned by the
Borrower together with a description thereof (i.e. the bank at which such
deposit account is maintained and the account number and the purpose thereof).
7.24. Use of Proceeds. The Borrower will use the proceeds of the Loans and
the Letters of Credit, respectively, in accordance with Sections 2.09 and 3.01
(a)(i) hereof, respectively.
7.25. Intellectual Property. The Borrower owns or licenses or otherwise has
the right to use all material licenses, permits, patents, patent applications,
trademarks, trademark applications, service marks, tradenames, copyrights,
copyright applications, franchises, authorizations and other intellectual
property rights that are necessary for the operations of its business, without
infringement upon or conflict with the rights of any other Person with respect
thereto, except for such infringements and conflicts which, individually or in
the aggregate, do not have a Material Adverse Effect. Set forth in Schedule 7.25
is a complete and accurate list of all such material licenses, permits, patents,
patent applications, trademarks, trademark applications, service marks,
tradenames, copyrights, copyright applications, franchises, authorizations and
other intellectual property rights of the Borrower and the Trademark Affiliate.
To the Borrower's best knowledge, after reasonable inquiry and investigation, no
slogan or other advertising device, product, process, method, substance, part or
other material now employed, or now contemplated to be employed, by Borrower
infringes upon or conflicts with any rights owned by any other Person, and no
claim or litigation regarding any of the foregoing is pending or threatened,
except for such infringements and conflicts which do not have, individually or
in the aggregate, a Material Adverse Effect.
7.26. Solvency. After giving effect to the consummation of the Plan of
Reorganization and the Chapter 11 Cases, the Borrower is (i) solvent, (ii) has
reasonable capital with which to engage in its business and (iii) has not
incurred debts beyond its ability to pay as such debts mature.
7.27. Governmental Regulations. The Borrower is not engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of Federal Reserve System, as amended.
The Borrower is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Holding Company Act or the
Investment Company Act of 1940, and the Borrower is not subject to any statute
or regulation which prohibits or restricts the incurrence of any obligations
under this Agreement, the Note, the Letters of Credit issuable hereunder or any
other Related Documents, including, without limitation, statutes or regulations
relating to common or contract carriers or to the sale of electricity, gas,
steam, water, telephone, telegraph or other public utility services.
39
ARTICLE VIII
CONDITIONS OF CREDIT EXTENSIONS
-------------------------------
8.01. Conditions Precedent to Initial Credit Extension. The obligation of
CIT to make the initial Credit Extension hereunder (whether such Credit
Extension shall consist of the making of a Loan or assistance to the Borrower in
establishing or opening Letters of Credit) is subject to the satisfaction on or
before the date thereof of each of the following conditions, in addition to the
conditions set forth in Section 8.02:
(a) The Borrower shall have received an equity contribution of at
least $8,000,000 in cash from the Parent and the proceeds of such contribution
shall have been credited to the Loan Account.
(b) CIT shall have reviewed the Plan of Reorganization and all
material agreements and documents executed or to be executed and/or delivered in
connection therewith.
(c) CIT shall have received a certified copy of the Confirmation
Order, such order shall have been duly and properly entered, shall be in full
force and effect, shall not have been reversed, stayed, modified or amended, and
shall be final.
(d) The Plan of Reorganization shall have become effective in
accordance with its terms.
(e) CIT shall have reviewed to its satisfaction (i) the corporate and
capital structure of the Parent, the Borrower and the other direct and indirect
Subsidiaries of the Parent, (ii) the identity of each beneficial owner (as
defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended), as of a date no later than 30 days prior to the Closing Date, of five
percent (5%) or more of the voting securities of the Parent and (iii) the
composition of the Board of Directors of the Parent and the Borrower and the
audit committee of the Parent and of the Borrower, if relevant.
(f) The Borrower shall have executed and delivered to CIT this
Agreement, the Note, the Factoring Agreement, each of the Factoring Documents
and the Security Agreement, and each other Related Agreement to which the
Borrower is a party, each of which shall be dated the Closing Date.
(g) The Obligors, other than the Borrower, shall have executed and
delivered to CIT the Guaranties, Stock Pledge Agreement, the Trademark
Agreement, and each other Related Agreement to which any of the Obligors is a
party, each of which shall be dated the Closing Date.
40
(h) The Borrower shall have paid to CIT all fees when due and other
amounts due and payable to CIT when due, including, but not limited to, amounts
due under Section 2.08 and Section 12.06 hereof and under the Commitment Letter.
The Borrower shall have paid to CIT's legal counsel all reasonable fees and
other out-of-pocket disbursements paid or incurred by such counsel, all such
disbursements to be itemized in reasonable detail.
(i) CIT shall have received certificates satisfactory in form and
substance to it from the Obligors, signed by the Designated Officer of the
Parent, certifying as to (i) true copies of Obligors' charter and by-laws, (ii)
true copies of all corporate action taken by the Obligors relative to the
Related Documents and the transactions contemplated thereby (which shall
designate one or more Designated Officers), (iii) the true signatures and
incumbency of the Designated Officers, and (iv) such other matters as CIT may
reasonably request.
(j) CIT shall have received a certified copy of the initial Borrowing
Base Certificate described in Section 4.04(a) hereof in form and substance
reasonably satisfactory to CIT.
(k) The liens and security interests in favor of CIT pursuant hereto
shall be valid and perfected first priority Liens prior to all other Liens in or
on the Collateral intended to be subject thereto, except for such Permitted
Liens which have priority by operation of law.
(l) CIT shall have received from Weil, Gotshal & Xxxxxx LLP, counsel
to the Borrower and the other Obligors, a favorable opinion in form and
substance reasonably satisfactory to CIT and its counsel, and shall also have
received from local Florida, New Jersey and Pennsylvania counsel to the Borrower
a favorable opinion in form and substance reasonably satisfactory to CIT and its
counsel.
(m) CIT shall have received certified copies of requests for copies or
information on Form UCC-11 or reports, listing all effective UCC financing
statements, tax liens and judgment liens in each of the jurisdictions listed on
Schedule 8.01 hereto, which name as debtor the Borrower, and each other Obligor
as CIT may determine, together with copies of such financing statements, none of
which shall cover any of the Collateral.
(n) No event or condition shall have occurred which has had, or is
reasonably likely to have, a Material Adverse Effect, and there shall not have
occurred a substantial impairment of the financial markets generally, which in
the reasonable opinion of CIT, has materially and adversely affected the
transactions contemplated by the Agreement and the Related Documents.
(o) CIT shall have received a copy of each of the License Agreements
as in effect on the date hereof and on the date of the initial Credit Extension,
certified as a true and correct copy thereof by the Designated Officer of the
Parent, together with (i) a certification by the Borrower that each such License
Agreement remains in full force and effect and that the parties thereto are not
in breach thereof and there are no defaults thereunder, (ii) a letter
agreement substantially in the form of Exhibit F-1 hereto, executed in favor of
CIT by Xxxxxx- Xxxx Corporation, as licensee, and (iii) a letter agreement
substantially in the form of Exhibit F-2 hereto, executed in favor of CIT by the
Trademark Affiliate.
(p) CIT shall have received an assignment of, and shall have obtained
dominion and control over, the existing depository accounts, blocked accounts
and lockbox accounts of the Borrower.
(q) The Borrower shall have furnished CIT, and CIT shall have reviewed
to its satisfaction, the schedules of cash receipts and cash disbursements
related to the projections referred to in Section 7.06(b).
(r) All legal proceedings in connection with the transactions
contemplated by this Agreement and the other Related Documents shall be
reasonably satisfactory to CIT and its counsel and CIT shall have received all
such counterpart originals or certified or other copies of such documents and
proceedings in connection with such transactions, in form and substance
reasonably satisfactory to CIT, as CIT may from time to time request.
(s) There shall be no pending or threatened litigation, proceeding, or
other action seeking an injunction or other restraining order, damages or other
relief with respect to this Agreement, any of the transactions contemplated to
occur hereunder or the Borrower's business activities, and CIT shall have
received a written, executed release from the Parent and its Affiliates of and
from (i) any and all damage, loss or liability (collectively "Loss") arising on
or before the Closing Date and (ii) all causes of action, suits or proceedings,
threatened or pending, in respect of any Loss.
(t) CIT shall have received a certificate of the chief financial
officer of the Borrower, attesting that, on a pro forma basis assuming the
consummation of the Plan of Reorganization and the other transactions
contemplated by this Agreement, both before and after such consummation, and
after giving effect to the payment of all fees and expenses payable in
connection herewith and therewith and the making of the initial Loan under this
Agreement, the Borrower shall have Availability of not less than $5 million (as
evidenced by the certified copy of the Borrowing Base Certificate required to be
delivered on the Closing Date pursuant to Section 8.01(j)) and neither the
Borrower nor the Parent shall (i) be insolvent or rendered insolvent, (ii) be
left with an unreasonably small capital with which to engage in its business or
(iii) have incurred debts beyond its ability to pay as such debts mature.
(u) CIT shall have received and reviewed to its satisfaction (i) the
audited financial statements for Xxxxxx Xxx DIP for the fiscal year ended
December 28, 1996, (ii) unaudited financial statements for Xxxxxx Xxx DIP for
each month since the end of said fiscal year, through and including the month
immediately preceding the month during which the consummation of the
transactions contemplated by this Agreement occurs and (iii) a pro forma opening
balance sheet of the Parent, on a consolidated and consolidating basis with its
Subsidiaries (giving effect to the Plan of Reorganization, and the transactions
contemplated to
42
occur under this Agreement), which balance sheet and accompanying notes, if any,
shall not have disclosed thereon any liability or obligation of the Parent or
any of its Subsidiaries, other than the Borrower, for which the Borrower may be
liable. Each of the financial statements referred to in clauses (ii) and (iii)
of the preceding sentence shall have been certified by the chief financial
officer of the Parent. After review of the foregoing, CIT must be reasonably
satisfied that (i) the financial condition of the Parent and the Borrower does
not differ in any material adverse respect from the condition evidenced by the
financial information provided to CIT prior to the date hereof and (ii) the
Borrower will be able to comply with the financial covenants as set forth in
this Agreement.
(v) CIT shall have received and reviewed to its satisfaction evidence
(in the form of certified copies of all applicable policies) of insurance
coverage in amount and scope, and the Borrower's insurance carriers shall have
delivered endorsements in form and substance, reasonably satisfactory to CIT (i)
naming CIT as loss payee with respect to all casualty coverages and containing
other customary loss payable provisions and (ii) naming CIT as additional
insured for all general liability coverages.
(w) The Borrower and Sassco Partners Ltd., a Delaware corporation,
shall have entered into the Sassco Reimbursement Agreement and CIT shall have
received and reviewed to its satisfaction a true and correct copy thereof.
8.02. Conditions Precedent to Each Credit Extension. The obligation of CIT
to make any Credit Extension hereunder (whether such Credit Extension shall
consist of the making of a Loan or assistance to the Borrower in establishing or
opening Letters of Credit) is subject to the performance by the Borrower of its
obligations to be performed hereunder or under the Related Documents on or
before the date of such Credit Extension and to the satisfaction of the
following further conditions:
(a) The representations and warranties of the Borrower contained in
Article VII hereof and in each Related Document and the representations of the
Obligors contained in the Guaranties and in the Related Documents shall be true
in all material respects and as of the date of each Credit Extension hereunder
with the same effect as though made on and as of each such date.
(b) No Event of Default and no Potential Default shall have occurred
and be continuing or exist or shall occur or exist after giving effect to such
Credit Extension.
(c) The aggregate unpaid principal amount of the Loans and the Letter
of Credit Exposure shall not exceed, and after giving effect to the requested
Credit Extension will not exceed, the Current Commitment.
(d) CIT shall have received from the Borrower a written or an oral (in
the case of any oral notice, if requested by CIT, promptly confirmed in writing
as set forth in Section 2.03(a) of this Agreement) Notice of Borrowing from the
Designated Officer of the Borrower complying with the terms of Section 2.03(a)
of the Agreement.
43
(e) No event or condition shall have occurred which has had, or is
reasonably likely to have, a Material Adverse Effect.
Any oral or written request by the Borrower for any Credit Extension hereunder
shall constitute a representation and warranty by the Obligors that the
conditions set forth in this Section 8.02 have been satisfied as of the date of
such request. Failure of CIT to receive notice from the Borrower to the contrary
before such Credit Extension is made shall constitute a further representation
and warranty by the Obligors that the conditions set forth in this Section 8.02
(other than those set forth in clause (e) have been satisfied as of the date of
such Credit Extension.
ARTICLE IX
AFFIRMATIVE COVENANTS
---------------------
The Borrower covenants to CIT as follows, subject to waiver by CIT as
provided herein:
9.01. Reporting and Information Requirements.
(a) Annual Financial Statements.
(i) As soon as practicable and in any event within 90 days after
the close of each fiscal year of the Parent, the Borrower shall cause the
Parent to furnish to CIT a consolidated and consolidating statement of
operations and cash flows of the Parent and its consolidated Subsidiaries
for such fiscal year and a consolidated and consolidating balance sheet
of the Parent and its consolidated Subsidiaries as of the close of such
fiscal year, and notes to each, all in reasonable detail, setting forth
in comparative form the corresponding figures for the preceding fiscal
year, with such statements and balance sheet to be certified by
independent certified public accountants of recognized national standing
selected by the Parent and reasonably satisfactory to CIT. The
certificate or report of such accountants shall be free of exceptions or
qualifications (including, without limitation, a qualification that the
financial statements are not fairly presented) and shall in any event
contain a written statement of such accountants substantially to the
effect that (i) such accountants examined such statements and balance
sheet in accordance with generally accepted auditing standards and
accordingly made such tests of accounting records and such other auditing
procedures as such accountants considered necessary in the circumstances
and (ii) in the opinion of such accountants such statements and balance
sheets present fairly, in all material respects, the consolidated
financial position of the Parent and its consolidated Subsidiaries as of
the end of such fiscal year and the results of its operations and the
changes in its financial position for such fiscal year, in conformity
with GAAP applied on a basis consistent with that of the preceding
44
fiscal year (except for changes in application in which such accountants
concur and any financial reporting implications of the Chapter 11 Cases).
A copy of such certificate or report shall be delivered to CIT and signed
by such independent public accountants and, as soon as available, a copy
of any management letter received by the Parent or any of the Obligors
from its independent public accountants, shall be delivered to CIT.
(ii) Each set of statements and balance sheets delivered pursuant
to this Section 9.01(a) shall be accompanied by a certificate or report
dated the date of such statements and balance sheets by the accountants
who certified or reported on such statements and balance sheets stating
in substance that they have reviewed this Agreement as it relates to
accounting matters and that in making the examination necessary for their
certification of such statements and balance sheets they did not become
aware of any Event of Default or Potential Default based upon any
financial covenant, or if they did become so aware, such certificate or
report shall state the nature and period of existence thereof, if
determinable.
(b) Quarterly Reports.
(i) As soon as practicable and in any event within 60 days after
the close of the first, second and third fiscal quarters of each fiscal
year of the Parent, the Borrower shall cause the Parent to furnish to CIT
unaudited consolidated and consolidating statements of operations and
cash flows of the Parent and its consolidated Subsidiaries for each such
fiscal quarter and a consolidated and consolidating balance sheet of the
Parent and its consolidated Subsidiaries as of the close of each such
fiscal quarter, all in reasonable detail setting forth in comparative
form the corresponding fiscal quarter for the preceding fiscal year, and
certified by the Chief Financial Officer of the Parent as presenting
fairly, in all material respects, the consolidated and consolidating
financial position of the Parent and its consolidated Subsidiaries as of
the end of such quarter and the results of its operations and the changes
in its financial position for such quarter, in conformity with GAAP
applied in a manner consistent except as otherwise disclosed therein with
that of the most recent audited financial statements furnished to CIT,
subject to year-end adjustments and the absence of financial statement
footnotes.
(ii) Each set of statements and balance sheets delivered pursuant
to Section 9.01(b) shall be accompanied by a certificate dated the date
of such statements and balance sheet by the Chief Financial Officer of
the Parent stating in substance that he has reviewed this Agreement and
that to the best of his knowledge he did not become aware of any Event of
Default or Potential Default, or if he did become so aware, such
certificate shall state the nature and period of existence thereof, if
determinable.
45
(c) Monthly Reports.
(i) As soon as practicable and in any event within 30 days after
the end of each month (including the month in which this Agreement is
executed), the Borrower shall cause Parent to furnish to CIT unaudited
consolidated and consolidating statements of operations and cash flows
for the Parent and its consolidated Subsidiaries for such month and for
the period from the beginning of such fiscal year to the end of such
month, and an unaudited consolidated and consolidating balance sheet of
the Parent and its consolidated Subsidiaries as of the end of such month,
all in reasonable detail, setting forth in comparative form the
corresponding figures for the same periods during the preceding fiscal
year (except for the balance sheets, which shall set forth in comparative
form the corresponding balance sheets as of the prior fiscal year end),
and certified by the Chief Financial Officer of the Parent as presenting
fairly, in all material respects, the consolidated and consolidating
financial position of the Parent and its consolidated Subsidiaries as of
the end of such month and the results of its operations and cash flows
for such month, in conformity with GAAP applied in a manner consistent
except as otherwise disclosed therein with that of the most recent
adjusted financial statements furnished to CIT, subject to year-end
adjustments and the absence of financial statement footnotes.
(ii) Each set of statements and balance sheets delivered pursuant
to Section 9.01(c) shall be accompanied by a certificate dated the date
of such statements and balance sheets by the Chief Financial Officer of
the Parent stating in substance that he has reviewed this Agreement and
that to the best of his knowledge he did not become aware of any Event of
Default or Potential Default, or if he did become so aware, such
certificate shall state the nature and period of existence thereof, if
determinable.
(d) Inventory Reports. The Borrower shall furnish to CIT on Tuesday of
each week (or the Business Day immediately following such Tuesday, if such
Tuesday is not a Business Day), certified by the Designated Officer, a schedule,
in form and substance reasonably satisfactory to CIT, current as of the close of
business on the last day of the immediately prior week, certified by the
Designated Officer of the Borrower, containing a breakdown of the Inventory of
the Borrower by categories (raw materials, trim, work-in-process and finished
goods), amount and valued at cost (which shall include dollar valuation by
location) and warehouse and production facility location, appropriately
completed with information reasonably satisfactory to CIT, incorporating all
appropriate month-end adjustments and current as of the close of business on the
last day of such week immediately prior to such date (a "Weekly Inventory
Report").
(e) Other Reports and Information. Promptly upon their becoming
available, the Borrower shall deliver or shall cause the Parent to deliver to
CIT a copy of (i) all reports, proxy statements, financial statements and other
information generally distributed by the
46
Borrower or the Parent to the financial community in general, and (ii) any audit
or other reports submitted to the Borrower or the Parent by independent
accountants in connection with any annual, interim or special audit of the
Parent and its consolidated Subsidiaries or any of the foregoing.
(f) Further Information. The Borrower will promptly furnish to CIT or
cause the Parent to promptly furnish to CIT such other information and in such
form as CIT may reasonably request.
(g) Annual Budget and Projections, Quarterly Updates and Seasonal
Updates.
(i) As soon as practicable and in any event by December 1 of each
year, commencing on December 1, 1997, the Borrower shall cause the Parent
to furnish to CIT a reasonably detailed estimated operating budget and
related projections for the Parent and its consolidated Subsidiaries for
the immediately following fiscal year, displaying consolidated and
consolidating statements of anticipated income and retained earnings,
consolidated and consolidating statements of anticipated cash flow and
consolidated and consolidating anticipated balance sheets, prepared on a
month-by-month basis and setting forth in each case the assumptions
underlying the projections contained in such financial statements (which
projections shall be prepared in accordance with the standard set forth
in the second sentence of Section 7.17 hereof), and which budget (A)
shall be substantially in the form of the Borrower's Projected 1997
Business Plan and (B) shall have been approved by the Board of Directors
of the Parent prior to the submission thereof to CIT.
(ii) As soon as practicable and in any event within 30 days prior
to the end of each fiscal quarter of the Parent, the Borrower shall cause
the Parent to furnish to CIT, a revised, reasonably detailed estimated
and actual budget and related projections for the Parent and its
consolidated Subsidiaries for the next fiscal quarter and for the
remainder of the then current fiscal year, displaying consolidated and
consolidating statements of actual and anticipated income and retained
earnings, consolidated and consolidating statements of actual and
anticipated cash flows and consolidated and consolidating actual and
anticipated balance sheets prepared on a month-by-month basis and setting
forth in each case the assumptions underlying the projections contained
in such financial statements, (which projections shall be prepared in
accordance with the standard set forth in the second sentence of Section
7.17 hereof).
(iii) As soon as practicable and in any event within 30 days prior
to the commencement of each of the Borrower's selling seasons (which, as
of the Closing Date, consist of the Spring, Summer, Fall I, Fall II and
Holiday
47
seasons), the Borrower shall deliver to CIT a revised and updated
Schedule to the Customer Terms Agreement.
(h) Notice of Event of Default. Promptly upon becoming aware of any
Event of Default or Potential Default, the Borrower shall give CIT notice
thereof, together with a written statement of the Designated Officer of the
Borrower setting forth the details thereof and any action with respect thereto
taken or contemplated to be taken by the Borrower.
(i) Notice of Material Adverse Effect. Promptly upon becoming aware
thereof, the Borrower shall or shall cause the Parent to give CIT notice of any
event which the Borrower or the Parent believes in good faith is reasonably
likely to have a Material Adverse Effect.
(j) Licenses. As soon as available and in any event (A) within 5
Business Days after receipt or delivery thereof, copies of any material notices
that the Borrower receives from or sends to the Licensors in connection with the
License Agreements and (B) as soon as practicable prior to the effective date
thereof, copies of any amendments, modifications, waivers or other changes to
the License Agreements.
(k) Visitation and Verification. The Borrower shall permit CIT and
shall cause each Obligor to permit CIT, or any agents or representatives thereof
at any time during normal business hours to examine and make copies of an
abstracts from their records and books of account, to visit and inspect their
properties, to verify materials, leases, notes, accounts receivable, inventory,
deposit accounts and other assets of the Borrower or other Obligors, as the case
may be, to conduct audits, physical counts, valuations or examinations and to
discuss their affairs, finances and accounts with any of the directors,
officers, managerial employees, independent accountants or other representatives
thereof, provided that the foregoing shall be in a manner so as not to
unreasonably disrupt the business of the Borrower or such Obligors and shall be
subject to the applicable confidentiality provisions contained in Section 12.14
hereof.
(l) Environmental.
The Borrower shall (i) comply in all material respects with
Environmental Laws and shall provide to CIT documentation of such compliance
which CIT reasonably requests; (ii) promptly after it has knowledge of any
Release of a Hazardous Material in excess of any applicable reportable quantity,
provide notice to CIT thereof and take any Remedial Actions required to xxxxx
said Release; and (iv) promptly provide CIT with written notice within ten days
of the receipt of any of the following:
(A) notice that an Environmental Lien has been filed
against any real or personal property of the Borrower or any other
Obligor;
48
(B) notice of violation of any Environmental Law which
could reasonably be expected to subject the Borrower or any other
Obligor to Environmental Liabilities and Costs of $100,000 or
more; and
(C) commencement of an Environmental Claim or notice that
an Environmental Claim will be filed against any Obligor, which if
adversely determined could reasonably be expected to have a
Material Adverse Effect.
9.02. Preservation of Existence and Franchises. Subject to Section 10.08
hereof, the Borrower shall maintain its corporate existence, rights and
franchise in full force and effect in its jurisdiction of incorporation. The
Borrower shall qualify and remain qualified as a foreign corporation in each
jurisdiction in which failure to qualify would have a Material Adverse Effect.
9.03. Insurance. The Borrower shall maintain with responsible and reputable
insurance companies or associations insurance (including, without limitation,
comprehensive general liability and hazard insurance) with respect to their
properties and business, in such amounts and covering such risks, as is required
by any Governmental Authority or other regulatory body having jurisdiction with
respect thereto and as is carried generally in accordance with sound business
practice by companies in similar businesses similar situated. The Borrower shall
promptly cause all such policies to show CIT as loss payee or additional insured
as its interest may appear on such policies and with respect to the Collateral,
all relevant policies shall name CIT as loss payee on such policies. The
Borrower shall provide to CIT a copy of each such policy listed on Schedule
7.18.
9.04. Maintenance of Properties. The Borrower shall, (i) maintain or cause
to be maintained in good repair, working order and condition (ordinary wear and
tear excepted) the properties now or hereafter owned by it and (ii) make or
cause to be made all needful and proper repairs, renewals, replacements and
improvements thereto to the extent required so that the business carried on in
connection therewith may be properly and advantageously conducted at all times,
and (iii) maintain all leased property in compliance with the requirements of
any applicable lease, in each case other than sales of property otherwise
permitted by the terms of this Agreement.
9.05. Financial Accounting Practices, etc.
(a) The Borrower shall make and keep books, records and accounts
which, in reasonable detail, accurately and fairly reflect the Borrower's
transactions and dispositions of its assets and the Borrower shall maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
general or specific authorization, (ii) transactions are recorded as necessary
(A) to permit preparation of financial statements in conformity with GAAP and
(B) to maintain accountability for assets, and (iii) the recorded accountability
for assets is compared with the
49
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(b) The Borrower shall maintain a system of internal procedures and
controls sufficient to provide reasonable assurance that the information
required to be set forth in each Borrowing Base Certificate (including, without
limitation, information relating to the identification of assets which are
Eligible Accounts Receivable and Eligible Inventory as provided herein and the
valuation thereof) is accurate in all material respects.
9.06. Compliance with Laws. The Borrower shall comply with all applicable
Laws (including but not limited to compliance in respect of products that they
sell or service they perform, conduct of their businesses, or use, maintenance
or operation of real and personal properties owned or possessed by them) with
respect to which failure to comply would have a Material Adverse Effect.
9.07. Further Assurances. The Borrower promptly shall do, execute,
acknowledge, deliver, record, file, register and perform any and all such
further acts, deeds, conveyances, security agreements, assignments, estoppel
certificates, financing statements, assurances and other instruments as CIT may
reasonably request from time to time in order (a) to carry out more effectively
the purposes of this Agreement or any other Related Document, (b) to subject to
valid and perfected first priority liens and security interests all Collateral
(subject, as to priority, to such Permitted Liens which have priority by
operation of law), (c) to perfect and maintain the validity, effectiveness and
priority of any of the Related Documents and the liens and security interests
intended to be created thereby, and (d) to better assure, convey, grant, assign,
transfer, preserve, protect and confirm unto CIT the rights granted or now or
hereafter intended to be granted to CIT under any Related Document.
9.08. Collection of Takeover Accounts Receivable. The Borrower shall cause
all proceeds from Takeover Accounts Receivable to be remitted to a post office
box (the "Takeover Lockbox") administered by Bank Boston, N.A.. The Borrower
agrees that, except with respect to the closing thereof, as contemplated in
clause (ii) of the third following sentence, the Borrower shall have no control
over the Takeover Lockbox and hereby waives any right it may have to direct or
otherwise interfere with the deposit thereto of any checks, remittances or other
forms of payment on or proceeds of Takeover Accounts Receivable. Such proceeds
shall be deposited by Bank Boston, N.A. into a Depository Account owned and
maintained by CIT with Bank Boston, N.A.. All available funds in such Depository
Account shall be wire-transferred at the end of each day to the Loan Account.
The Borrower agrees that within ninety (90) days of the Closing Date (i) it
shall instruct all Account Debtors indebted on Takeover Accounts Receivable, on
and after the date of such instruction, to remit all payments on Accounts
Receivable to the post office box described in Section 6.02 hereof, and (ii)
close the Takeover Lockbox and cause Bank Boston, N.A. to remit directly to CIT
any and all items delivered, or attempted to be delivered, to the Takeover
Lockbox on and after the date on which the Takeover Lockbox shall have been
closed. The Borrower agrees to pay or reimburse CIT for all charges
50
imposed by, and all costs and expenses of, Bank Boston, N.A. incurred by it in
connection with the Takeover Lockbox and such Depository Account.
9.09. Taxes. The Borrower shall pay and discharge before the same become
delinquent all taxes, assessments and governmental charges upon it, its income
and its properties, which arise from or relate to operations of the Borrower,
unless and to the extent only that (a) such taxes, assessments and governmental
charges shall be contested in good faith and by appropriate proceedings by the
Borrower and (b) adequate reserves are maintained by the Borrower with respect
thereto.
9.10. ERISA.
(i) The Borrower will furnish to CIT and will cause each of its
ERISA Affiliates to furnish to CIT forthwith upon filing or receipt, as
the case may be, a copy of (A) any notice by the Borrower or any of its
ERISA Affiliates of a Benefit Plan termination sent to the PBGC under
Section 4041 of ERISA, or (B) any notice sent or received by the Borrower
or any of its ERISA Affiliates to or from the PBGC under Section 4041,
4042, 4043, or 4068 or ERISA.
(ii) The Borrower will notify or will cause its ERISA Affiliates
to notify CIT within ten Business Days after it or any ERISA Affiliate
knows or has reason to know that a prohibited transaction (defined in
Section 406 of ERISA and 4975 of the Code) has occurred with respect to a
Plan for which any of the Borrower or its ERISA Affiliates may be liable
for excise taxes under Section 4975 of the Code and shall send a
statement of the Designated Officer of the Borrower or the Chief
Financial Officer of the applicable ERISA Affiliate describing such
transaction and the action which the Borrower or such ERISA Affiliate has
taken, is taking or proposes to take with respect thereto.
(iii) The Borrower will or will cause its ERISA Affiliates to
notify CIT within ten Business Days after it or any ERISA Affiliate knows
or has reason to know that the Borrower or any ERISA Affiliate will fail
to make any payment or contribution to any Plan which has resulted or
could result in the imposition of a Lien.
(iv) The Borrower will or will cause its ERISA Affiliates to
notify CIT within ten Business Days after receipt by the Borrower or any
ERISA Affiliate of a notice from a Multiemployer Plan regarding the
imposition of withdrawal liability and shall send copies of each such
notice.
(v) The Borrower will or will cause its ERISA Affiliates to
furnish to CIT within ten Business Days after the filing thereof with the
Internal Revenue Service copies of each annual report (Form 5500) with
respect to each Plan, including Schedule B (Actuarial Information)
thereto.
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(vi) The Borrower will or will cause each of its ERISA Affiliates
to notify CIT within ten Business Days after it or any ERISA Affiliate
sends notice of a plant closing or mass layoff (as defined in WARN) to
employees.
9.11. Clean-Up. The Borrower shall repay in full all Loans, and no Loans
may remain outstanding, for a period of 30 consecutive calendar days occurring
at any time on and after November 20 of each year and ending on January 20 of
the following year.
9.12. Use of Proceeds. The Borrower will use the proceeds of the Loans and
the Letters of Credit, respectively, in accordance with Sections 2.09 and 3.01
(a)(i) hereof, respectively. No part of the proceeds of the Loans will be used,
directly or indirectly, for a purpose which violates any law, rule or regulation
of any Governmental Authority, including without limitation the provisions of
Regulations G, U or X of the Board of Governors of the Federal Reserve System,
as amended.
9.13. Solvency. The Borrower will at all times (i) be solvent, (ii) have
reasonable capital with which to engage in its business and (iii) not have
incurred debts beyond its ability to pay as such debts mature.
9.14. Landlord and Processor Agreements. The Borrower shall use reasonable
efforts to obtain and deliver to CIT within thirty (30) days of the Closing Date
agreements duly executed in favor of CIT by (i) each lessor of premises at which
Inventory is or may be located and (ii) each converter or processor of
Inventory, such agreements to be in the form of Exhibit J and Exhibit K,
respectively.
9.15. Licensing Agreements. The Borrower shall use its best efforts to
obtain and deliver to CIT a written agreement in its favor, substantially in the
form of Exhibit F-1, from each licensee of a License Agreement, whether entered
into before or after the Closing Date.
9.16. Revised Schedule of 5% Beneficial Owners. As soon as available
following the Closing Date, the Borrower shall deliver to CIT a revised schedule
of each "beneficial owner", as described in Section 8.01(e)(ii) hereof, as of
the Closing Date.
9.17. Sassco Reimbursement Agreement. Promptly upon the making of any
drawing under the Customs Letter of Credit [on account of an "Ancillary Letter
of Credit Deficiency", as defined in the Customs Letter of Credit] and in any
event within fifteen (15) days after any such drawing, the Borrower shall make
claim against Sassco for, and diligently prosecute Sassco for, all rights of
reimbursement, indemnification, contribution and the like which the Borrower has
against Sassco under the Sassco Reimbursement Agreement.
52
9.18. Qualification as Foreign Corporation. As soon as possible, and in any
event within fifteen (15) days after the Closing Date, the Borrower shall take
whatever steps may be necessary to qualify to transact business as a foreign
corporation, and shall cause each other Referenced Company to take whatever
steps may be necessary for each of them to qualify to transact business as a
foreign corporation, and, in addition, for each of the Borrower and them to be
in good standing as a foreign corporation, under the laws of the States of New
York and Florida, respectively.
ARTICLE X
NEGATIVE COVENANTS
------------------
The Borrower covenants to CIT as follows, subject to waiver by CIT as
provided herein:
10.01. Lien Priority. The Borrower shall not at any time permit or suffer
to exist any Lien on the Collateral having a priority equal or superior to the
Liens and security interests in favor of CIT in respect of the Obligations,
except for such Permitted Liens which have priority by operation of law.
10.02. Liens. The Borrower shall not, nor shall it permit the Trademark
Affiliate to, at any time, create, incur, assume or suffer to exist Liens on any
of its properties or assets, tangible or intangible, now owned or hereafter
acquired, or agree or become liable to do so, except, with respect to the
Trademark Affiliate, Liens created in favor of CIT pursuant to the Guaranty
executed by the Trademark Affiliate, and except, with respect to the Borrower,
for the following ("Permitted Liens"):
(a) Liens created pursuant to the Loan Documents;
(b) Liens which were in existence on the Closing Date and are listed
on Schedule 10.02 hereof:
(c) Deposits or pledges to secure utility and similar services, to
secure workmen's compensation, unemployment insurance, old age benefits or other
social security obligations, or in connection with or to secure the performance
of bids, tenders, trade contracts or leases, or to secure statutory obligations,
or stay, surety, appeal or custom bonds, or other pledges or deposits of like
nature, and all in the ordinary course of business;
(d) Liens on property, other than Inventory, to be used by the
Borrower in the ordinary course of its business, securing payment of all or part
of the purchase price thereof, and Liens with respect to equipment leases which
equipment is used by the Borrower in the ordinary course of its business,
provided that the aggregate amount of Indebtedness at any one time outstanding
incurred after the date hereof and secured by such Liens shall not exceed
$100,000, and further provided that such Liens are confined solely to the
property so purchased, leased, improvements thereto and proceeds thereof,
53
(e) Zoning restrictions, rights of way, consents, covenants,
reservations, encumbrances, easements, minor restrictions on the use of real
property, minor irregularities in title thereto and other minor Liens, charges
and encumbrances that do not secure the payment of money or the performance of
an obligation and that do not in the aggregate materially detract from the value
of a property or asset to, or materially impair its use in the business of, the
Borrower;
(f) Nonconsensual Liens of warehousemen, materialmen, mechanics,
carriers and landlords and other like Persons, which Liens arise in the ordinary
course of the Borrower's business;
(g) Liens in connection with any taxes, assessments, charges, levies
or claims that are not yet due and payable or which the Borrower is contesting
in good faith and by appropriate proceedings diligently conducted so long as
reserves or other appropriate provisions as may be required by GAAP have been
made therefor and so long as the failure to pay the same does not have a
Material Adverse Effect; and
(h) Liens in favor of any Governmental Authority in respect of customs
and/or import duties;
(i) extensions, renewals or replacements of any Lien permitted
pursuant to clauses (a)-(h) above; provided that the principal amount of the
obligation secured thereby is not increased and that any such extension, renewal
or replacement is limited to the property originally encumbered thereby.
10.03. Indebtedness. The Borrower shall not create, incur, assume or suffer
to exist any Indebtedness, except for the following ("Permitted Indebtedness"),
nor shall it permit the Trademark Affiliate to create, incur, assume or suffer
to exist any Indebtedness:
(a) Indebtedness created or arising under the Loan Documents;
(b) Indebtedness secured by a Permitted Lien;
(c) Indebtedness in existence on the Closing Date and listed on
Schedule 10.03 hereto;
(d) accounts payable and accrued expenses arising out of transactions
(other than borrowings) in the ordinary course of business;
(e) unsecured Indebtedness, the right to receive repayment of which is
fully subordinated to the prior payment and satisfaction in full of the
Obligations, provided that the terms of such Indebtedness and the subordination
relating thereto shall have been approved in advance in writing by CIT;
54
(f) Indebtedness incurred in connection with Capital Expenditures, to
the extent permitted under Section 10.20 hereof;
(g) Indebtedness to any other Obligor; and
(h) extensions, renewals or replacements of any Indebtedness permitted
pursuant to clauses (a)-(g) above, provided that the principal amount of such
Indebtedness is not increased by such extension, renewal or replacement.
10.04. Guarantees and Contingent Liabilities. The Borrower shall not at any
time be or become liable under any instrument of guaranty, or otherwise be or
become liable with respect to the contingent liability of another Person, except
for the following, nor shall it permit the Trademark Affiliate to be or become
liable under any instrument of guaranty, or otherwise be or become liable with
respect to the contingent liability of another Person, except such instrument of
guaranty in favor of CIT:
(a) Such instruments of guaranty in favor of CIT;
(b) Such instruments of guaranty in existence on the Closing Date and
listed on Schedule 10.04 hereto;
(c) contingent liabilities arising from the endorsement of negotiable
or other instruments for deposit or collection or similar transactions in the
ordinary course of business; and
(d) extensions, renewals or replacements of any Guarantee permitted
pursuant to clauses (a)-(c) above; provided that the principal amount of the
obligation guaranteed thereby is not increased by such extension, renewal or
replacement.
10.05. Loans, Advances and Investments. Except as otherwise expressly
permitted by this Section 10.05, the Borrower shall not at any time make or
suffer to remain outstanding any loan or advance to, or purchase, acquire or own
any stock, bonds, notes or securities of, or any partnership interest (whether
general or limited) in, or any other interest in, or make any capital
contribution to, any other Person. By way of illustration, and without
limitation of the foregoing, it is understood that the Borrower will be deemed
to have made an advance to a Person: (x) to the extent that the Borrower
performs any service for such Person (including but not limited to management
services), or transfers any property to such Person, and is not reimbursed for
such service or property and (y) to the extent that the Borrower pays any
obligation on behalf of such Person. The amount of such advance shall be deemed
to be the fair value of the services so performed or property so transferred (in
the case of clause (x)) or the amount so paid by the Borrower (in the case of
clause (y)).
The following are excepted from the operation of this Section 10.05:
55
(a) advances to employees to meet expenses incurred or to be incurred
by such employees or with respect to salary advances and other similar advances,
in each case to non- Affiliates and in the ordinary course of business, provided
that such advances may not exceed $100,000 in the aggregate at any one time
outstanding;
(b) ownership of any capital stock, bonds, notes, securities,
partnership or joint venture interests on the Closing Date;
(c) the Cash Collateral Account and the other accounts permitted or
required to be maintained pursuant hereto, any investment of funds on deposit in
the foregoing to the extent expressly permitted hereunder; and
(d) (i) direct obligations of the United States of America, or any agency
or instrumentality thereof, or obligations guaranteed by the United States of
America; (ii) certificates of deposit maturing within one year from the date of
acquisition, bankers acceptances, or overnight bank deposits, in each case
issued by, created by, or with, a United States bank whose long-term
certificates of deposit have an investment grade rating by S&P or Xxxxx'x; (iii)
commercial paper given a rating of A-1 or higher by S&P or P-1 or higher by
Xxxxx'x and maturing not more than 270 days from the date of creation thereof;
(iv) tender bonds, with a maturity day or tender option of not in excess of one
year, with ratings of A-1 or AA or higher by S&P or P-1 or Aa or higher by
Xxxxx'x or the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank whose long-term
certificates of deposit are rated at least AA or the equivalent thereof by S&P
and Aa or the equivalent thereof by Xxxxx'x; and (v) repurchase agreements
pertaining to investments of the types described in clauses (i) (ii), (iii) and
(iv) hereof,
10.06. Dividends and Related Distributions. The Borrower shall not declare,
make, pay or agree to pay, any dividend or other distribution of any nature
(whether in cash, property, securities or otherwise) on account of or in respect
of shares of its capital stock or on account of the purchase, redemption,
retirement or acquisition of any shares of capital stock (or warrants, options
or rights therefor).
10.07. Merger, etc. The Borrower shall not merge with or into or
consolidate with any other Person, or sell, lease (as lessor) or otherwise
dispose of all or a substantial portion of its assets (whether in one
transaction or in a series of transactions), or agree to do any of the
foregoing.
10.08. Dispositions of Assets. The Borrower shall not sell (other than
pursuant to the Factoring Agreement), convey, assign, lease, abandon or
otherwise transfer or dispose of, voluntarily or involuntarily (any of the
foregoing being referred to in this Section 10.08 as a "transaction" and any
series of related transactions constituting but a single transaction), any of
its properties or assets, tangible or intangible (including but not limited to
sale, assignment, discount or other disposition of accounts, contract rights,
chattel paper or general intangibles with or without recourse), except:
56
(a) transactions in the ordinary course of business; and
(b) sales during any fiscal year of equipment, furniture or fixtures
which are worn out, obsolete or excess, provided that the Net Sales Proceeds of
such sales in the aggregate do not exceed $100,000;
provided, however, that all Net Sales Proceeds from such sales constituting cash
shall, promptly after receipt thereof, be delivered to CIT, with appropriate
endorsements, if necessary, and all non-cash Net Sale Proceeds from such sales
shall, promptly upon receipt thereof, be pledged to CIT pursuant to the Security
Agreements.
10.09. Affiliates. The Borrower will not provide funds to any Affiliate
except:
(a) that the Borrower may pay wages, salaries, directors' fees and
related benefits and may make expense reimbursements to the Parent in the
ordinary course of business;
(b) the Borrower may enter into or be a party to any transaction with
the Parent and the Trademark Affiliate in the ordinary course of business in a
manner and to the extent necessary or desirable for the prudent operation of the
Borrower's business, for fair consideration and on terms no less favorable to
the Borrower as are available from unaffiliated third parties; and
(c) the Borrower may transfer funds to the Paymaster Affiliate from
time to time in the ordinary course of business for the purpose of funding the
periodic payment when due of employee wages and related benefits.
10.10. Continuation of or Change In Business. The Borrower shall engage in
the women's dress and sportswear apparel business as described in the Plan of
Reorganization and the Borrower will not engage in any other business.
10.11. Environmental. The Borrower shall not allow the use, handling,
generation, storage, treatment, Release or disposal of any Hazardous Material at
any property owned or leased by the Borrower, except in compliance with
Environmental Laws so long as such use, handling, generation, storage,
treatment, Release or disposal of any Hazardous Materials in compliance with
Environmental Laws does not result in Environmental Liabilities and Costs, the
payment of which are unstayed, due and owing, in excess of $100,000.
10.12. ERISA.
The Borrower will not, so long as any of the Obligations are
outstanding and this Agreement has not been terminated:
(i) engage or permit any of its ERISA Affiliates to engage, in any
transaction described in Section 4069 of ERISA;
57
(ii) engage, or permit any of its ERISA Affiliates to engage, in any
prohibited transaction described in Section 406 of ERISA or 4975 of the Code for
which the Borrower or any of its ERISA Affiliates may be liable for excise taxes
under Section 4975 of the Code;
(iii) adopt or contribute to, or permit any of its ERISA Affiliates
to adopt or contribute to, any employee welfare benefit plan within the meaning
of Section 3(1) of ERISA other than a multiemployer plan within the meaning of
Section 3(37) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA or applicable law; or
(iv) fail, or permit any of its ERISA Affiliates to fail, to pay any
required installment or any other payment required under Section 412 of the Code
on behalf of a Benefit Plan on or before the due date for such installment or
other payment, unless the Bankruptcy Court prohibits any such payment.
10.13. Fiscal Year. The Parent and the Borrower shall not permit their
fiscal year to end on a day other than the Saturday closest to December 31.
10.14. License Agreements; Sassco Reimbursement Agreement. The Borrower
will not agree to any material amendment or other change to, or waive any of its
rights under any License Agreement (or permit the Trademark Affiliate to agree
to any of the foregoing), or the Sassco Reimbursement Agreement, without the
prior written consent of CIT, which consent shall not be unreasonably withheld.
10.15. Minimum Consolidated Tangible Net Worth. The Borrower will not
permit the Parent's Consolidated Tangible Net Worth to be less than the
following amounts during and at the end of each of the following fiscal months:
(a) $40 million for each of the fiscal months of April, May, June, July and
August 1997, (b) $41 million for each of the fiscal months of September,
October, November and December 1997, (c) $41 million for each of the fiscal
months January and February 1998, (d) $41.5 million for each of the fiscal
months of March, April, May, June, July and August, 1998, and (e) $43 million
for each of the fiscal months of September, October, November and December, 1998
and for each fiscal month thereafter.
10.16. Minimum Consolidated Working Capital. The Borrower will not permit
the Parent's Consolidated Working Capital to be less than the following amounts
during and at the end of each of the following fiscal months: (a) $33 million
for each of the fiscal months of April, May, June, July and August 1997, (b) $35
million for each of the fiscal months of September, October, November and
December 1997, and January, February, March, April, May, June and July 1998, (c)
$36 million for the fiscal month of August 1998, and (d) $37 million for each of
the fiscal months of September, October, November and December 1998 and for each
fiscal month thereafter.
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10.17. Minimum Ratio of Consolidated Current Assets to Consolidated Current
Liabilities. The Borrower will not permit the ratio of the Parent's Consolidated
Current Assets to the Parent's Consolidated Current Liabilities to be less than
(a) 2.60 to 1.00 as of the end of the second fiscal quarter of 1997, (b) 2.60 to
1.00 as of the end of the third fiscal quarter of 1997 (c) 3.10 to 1.00 as of
the end of the fourth fiscal quarter of 1997, (d) 3.50 to 1.00 as of the end of
the first fiscal quarter of 1998 and (e) 3.70 to 1.00 as of the end of each
fiscal quarter thereafter.
10.18. Minimum Ratio of Consolidated EBITDA to Consolidated Interest
Expense. The Borrower will not permit the ratio of the Parent's Consolidated
EBITDA to the Parent's Consolidated Interest Expense as at the end of each
period set forth below to be less than the ratio set forth opposite such period:
Ratio of Consolidated EBITDA to
Period Consolidated Interest Expense
------ -----------------------------
two fiscal quarters of 1997 27.00 to 1.00
three fiscal quarters of 1997 12.00 to 1.00
four fiscal quarters of 1997 6.00 to 1.00
first fiscal quarter of 1998 2.00 to 1.00
two fiscal quarters of 1998 2.00 to 1.00
three fiscal quarters of 1998 6.00 to 1.00
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four fiscal quarters of 1998, and each
fiscal quarter thereafter, on a cumulative
basis with the preceding fiscal quarters of
the then current fiscal year 4.00 to 1.00
10.19. Net Loss. The Borrower will not permit the Parent to have a Net Loss
at the end of any two consecutive fiscal quarters.
10.20. Capital Expenditures. The Borrower shall not make Capital
Expenditures in an amount greater than (i) $1.5 million in the aggregate for the
period from the Closing Date through January 3, 1998, (ii) $1 million in the
aggregate for the 1998 fiscal year, and (iii) $1 million in the aggregate for
each fiscal year thereafter.
10.21. Government Regulations. The Borrower will not engage principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of Federal Reserve System, as amended. No
part of the proceeds of the Loans will be used, directly or indirectly, for a
purpose which violates any law, rule or regulation of any Governmental
Authority, including without limitation the provisions of Regulations G, U or X
of the Board of Governors of the Federal Reserve System, as amended.
60
ARTICLE XI
DEFAULTS
--------
11.01. Events of Default. An Event of Default shall mean the occurrence or
existence of one or more of the following events or conditions (whatever the
reason for such Event of Default and whether voluntary, involuntary or effected
by operation of Law):
(a) The Borrower shall fail to make any payment of principal under
this Agreement or any Reimbursement Obligation when due; or the Borrower shall
fail to pay when due any other amount payable under this Agreement or any other
Related Document (including but not limited to the making of deposits in the
Depository Accounts or the Cash Collateral Account), including any interest or
fee due hereunder or under any other Related Document and such failure shall
continue unremedied for five (5) days; or
(b) Any representation or warranty made by the Borrower under this
Agreement or any Related Document or any statement made by the Borrower in any
financial statement, certificate, report, or document furnished to CIT pursuant
to or in connection with this Agreement or any other Related Document, shall
prove to have been false or misleading in any material respect as of the time
when made (including by omission of information necessary to make such
representation, warranty or statement, in light of the circumstances under which
it was made, not misleading); or
(c) Any representation or warranty made by any of the other Obligors
under any other Related Document or any statement made by any of other Obligors
in any financial statement, certificate, report, or document furnished to CIT
pursuant to or in connection with this Agreement or any other Related Document,
shall prove to have been false or misleading in any material respect as of the
time when made (including by omission of information necessary to make such
representation, warranty or statement, in light of the circumstances under which
it was made, not misleading); or
(d) The Borrower shall default in the performance or observance of any
covenant contained in Article XI (other than Sections 9.01, 9.05, 9.07, 9.09 and
9.10) or Article X hereof; or
(e) The Borrower shall default in the performance or observance of (i)
the covenants contained in Section 9.01 (other than 9.01(d)) and such default
shall have continued unremedied for a period of five days, or (ii) the covenants
contained in Section 9.01(d) and such default shall have continued unremedied
for a period of two days, or (iii) any other covenant, agreement or duty under
this Agreement and such default shall have continued unremedied for a period of
ten days or (iv) any covenant, agreement or duty under any other Related
Document (to the extent not otherwise set forth in this Section 11.01) and such
default shall have continued unremedied beyond any applicable grace period; or
61
(f) The Parent or any Obligor (other than the Parent or the Borrower)
shall default in the performance or observance of any covenant, agreement or
duty under any Related Document and such default shall have continued unremedied
beyond any applicable grace period; or
(g) There shall occur any default or event of default on the part of
the Borrower under any agreement, document or instrument to which the Borrower
is a party or by which the Borrower or any of its property is bound, creating or
relating to any Indebtedness (other than the Obligations) if the payment or
maturity of such Indebtedness is accelerated in consequence of such event of
default or demand for payment of such Indebtedness is made and the then
outstanding principal amount of such Indebtedness is greater than $100,000; or
(h) Any material loss, theft, damage or destruction of any of the
Collateral not fully covered (subject to such deductibles as CIT shall have
permitted) by insurance; or
(i) There shall occur any change in the financial condition, property
or business of the Borrower or any other Obligor having a Material Adverse
Effect; or
(j) The Borrower or any other Obligor shall cease to be solvent or
shall suffer the appointment of a receiver, trustee, custodian or similar
fiduciary, or shall make an assignment for the benefit of creditors, or any
petition for an order for relief shall be filed by or against the Borrower or
any other Obligor under the Bankruptcy Code (if against the Borrower or any
other Obligor, the continuation of such proceeding for more than 45 days), or
the Borrower or any other Obligor shall make any offer of settlement, extension
or composition to their respective unsecured creditors generally; or
(k) There shall occur a cessation of a substantial part of the
business of the Borrower or any other Obligor for a period which significantly
affects the Borrower's or such other Obligor's capacity to continue its
business, on a profitable basis; or the Borrower or any other Obligor shall
suffer the loss or revocation of any license or permit now held or hereafter
acquired by the Borrower or such other Obligor which is necessary to the
continued or lawful operation of its business; or the Borrower or any other
Obligor shall be enjoined, restrained or in any way prevented by court,
governmental or administrative order from conducting all or any material part of
its business affairs; or any material lease or agreement pursuant to which the
Borrower or any other Obligor leases, uses or occupies any property shall be
canceled or terminated prior to the expiration of its stated term; or any part
of the Collateral shall be taken through condemnation or the value of such
property shall be materially impaired through condemnation; or
(l) The Borrower or any other Obligor, or any Affiliate of any of
them, shall challenge or contest in any action, suit or proceeding the validity
or enforceability of this Agreement, or any of the other Related Documents, the
legality or enforceability of any of the Obligations or the perfection or
priority of any Lien granted to CIT; or
62
(m) Any Guarantor shall revoke or attempt to revoke the Guaranty
signed by such Guarantor, or shall repudiate such Guarantor's liability
thereunder or shall be in default under the terms thereof; or
(n) The Borrower or any other Obligor shall be criminally indicted or
convicted under any law that could lead to a forfeiture of any material property
of the Borrower or any Obligor; or
(o) Any money judgment, writ of attachment or similar process, singly,
or in the aggregate, in each case in excess of $100,000, is filed against the
Borrower or any other Obligor, or any of their respective property and such
judgment, writ of attachment or similar process is not satisfied, bonded to the
satisfaction of CIT or stayed, in each case within thirty (30) days of such
filing; or
(p) The Borrower or any other Obligor shall have entered into any
consent or settlement decree or agreement or similar arrangement with a
Governmental Authority or any judgment, order, decree or similar action shall
have been entered against any of the Borrower or any other Obligor based on or
arising from the violation of or pursuant to any Environmental Law, or the
generation, storage, transportation, treatment, disposal or Release of any
Hazardous Material and, in connection with all of the foregoing, the Borrower or
any Obligor shall incur Environmental Liabilities and Costs which are unstayed,
due and owing in an amount in excess of $100,000 in the aggregate; or
(q) Any Termination Event (other than a Termination Event with respect
to a Multiemployer Plan) occurs which CIT believes would reasonably likely
subject the Borrower or any other Obligor to liability, the payment of which is
unstayed, due and owing, in an amount in excess of $100,000 in the aggregate; or
(r) Any non-monetary judgment or order shall be entered against the
Borrower or any other Obligor which has a Material Adverse Effect, and there
shall be a period of ten consecutive days during which a stay or enforcement of
such judgment or order shall not be in effect; or
(s) A breach, default or event of default shall occur under the
Factoring Agreement or under any of the Factoring Documents, if the effect of
such breach, default or event of default is to permit CIT to terminate the
Factoring Agreement; or
(t) A notice of default shall have been sent under any License
Agreement, any License Agreement shall terminate for any reason or any Licensor
shall exercise any remedies under a License Agreement.
11.02. Consequences of an Event of Default. If an Event of Default shall
occur and be continuing or shall exist, CIT may, by written notice to the
Borrower,
63
(i) declare the Revolving Credit Commitment terminated, whereupon
the Revolving Credit Commitment will terminate immediately and any fees
hereunder shall be immediately due and payable without presentment,
demand, protest or further notice of any kind, all of which are hereby
expressly waived, and an action therefor shall immediately accrue; or
(ii) declare the unpaid principal amount of the Note, interest
accrued thereon, the total amount of the Letter of Credit Exposure that
is not cash collateralized in accordance with this Agreement and all
other amounts owing by the Borrower hereunder or under the Note or
Related Documents, and all other Obligations, to be immediately due and
payable without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived, and an action therefor
shall immediately accrue; or
(iii) at any time when there are only Letters of Credit
outstanding, require the Borrower to maintain cash collateral in an
amount satisfactory to CIT; or
(iv) declare the obligations of CIT under the Factoring Agreement
terminated and terminate the Factoring Agreement.
11.03. Certain Remedies. If an Event of Default occurs, CIT may exercise
all rights and remedies which CIT may have hereunder, under the Security
Agreement or under any other Related Document or at law (including but not
limited to the Bankruptcy Code and the Uniform Commercial Code) or in equity or
otherwise. All such remedies shall be cumulative and not exclusive.
ARTICLE XII
MISCELLANEOUS
-------------
12.01. Holidays. Except as otherwise provided herein, whenever any payment
or action to be made or taken hereunder or under the Note shall be stated to be
due on a day which is not a Business Day, such payment or action shall be made
or taken on the next following Business Day and such extension of time shall be
included in computing interest or fees, if any, in connection with such payment
or action.
12.02 Records. The unpaid principal amount of the Note, the unpaid interest
accrued thereon, the interest rate or rates applicable to such unpaid principal
amount, the duration of such applicability, CIT's Current Commitment, the Stated
Amount of each Letter of Credit, the principal amount of all Reimbursement
Obligations, the Letter of Credit Exposure, and the accrued and unpaid facility
fee, Unused Line Fee, administration fee, collateral management fee,
64
early
termination fee and Letter of Credit fees shall at all times be ascertained from
the records of CIT, which shall be conclusive absent manifest error.
12.03. Amendments and Waivers. CIT and the Borrower may from time to time
enter into agreements amending, modifying or supplementing this Agreement or the
Note or any other Related Document, and CIT may from time to time grant waivers
or consents to a departure from the due performance of the obligations of the
Borrower hereunder or thereunder. Any such agreement, waiver or consent must be
in writing and shall be effective only to the extent specifically set forth in
such writing. In the case of any such waiver or consent relating to any
provision hereof any Event of Default or Potential Default so waived or
consented to shall be deemed to be cured and not continuing, but no such waiver
or consent shall extend to any other or subsequent Event of Default or Potential
Default or impair any right consequent thereto.
12.04. No Implied Waiver; Cumulative Remedies. No course of dealing and no
delay or failure of CIT in exercising any right, power or privilege under this
Agreement, the Note or any other Related Document shall affect any other or
future exercise thereof or exercise of any other right, power or privilege; nor
shall any single or partial exercise of any such right, power or privilege or
any abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power or
privilege. The rights and remedies of CIT under this Agreement, the Note and the
other Related Documents are cumulative and not exclusive of any rights or
remedies which CIT has thereunder or at law or in equity or otherwise. CIT may
exercise its rights and remedies against the Borrower and the Collateral as CIT
may elect, and regardless of the existence or adequacy of any other right or
remedy.
12.05. Notices.
(a) All notices, requests, demands, directions and other
communications (collectively "notices") under the provisions of this Agreement
or the Note shall be in writing (including telexed and telecopied communication)
unless otherwise expressly permitted hereunder and shall be sent by first-class
or first-class express mail, or by telex or telecopy with confirmation in
writing mailed first-class, or by overnight courier, or by personal delivery, in
all cases with charges prepaid. Any properly given notice shall be effective
when received. All notices shall be sent
(i) If to the Borrower, at the following address:
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
65
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and (ii) if to CIT, at the following address, together with, in the case of a
letter of credit request and Letter of Credit Application sent pursuant to
Section 3.01 (a) a copy to CIT at the following address, or in accordance with
the last unrevoked written direction from such party to the other parties
hereto:
The CIT Group/Commercial Services, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Lowenthal, Landau, Xxxxxxx & Bring, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(b) CIT may rely, and shall be fully protected in relying, on any
notice purportedly made by or on behalf of the Borrower, and CIT shall have no
duty to verify the identity or authority of any Person giving such notice. The
preceding sentence shall apply to all notices whether or not made in a manner
authorized or required by this Agreement or any other Related Document.
12.06. Expenses; Taxes: Attorneys' Fees; Indemnification. The Borrower
agrees to pay or cause to be paid, on demand, and to save CIT harmless against
liability for the payment of, all reasonable out-of-pocket expenses, regardless
of whether the transactions contemplated hereby are consummated, including but
not limited to reasonable fees and expenses of counsel for CIT, accounting, due
diligence, periodic field audits, investigation, monitoring of assets,
publicity, miscellaneous disbursements, examination, reasonable travel,
reasonable lodging and meals, incurred by CIT from time to time arising from or
relating to: (a) the negotiation, preparation, execution, delivery, performance
and administration of this Agreement and the other Related
66
Documents, (b) any requested amendments, waivers or consents to this Agreement
or the other Related Documents whether or not such documents become effective or
are given, (c) the administration, preservation and protection of any of CIT's
rights under this Agreement or the other Related Documents, (d) the defense of
any claim or action asserted or brought against CIT by any Person that arises
from or relates to this Agreement, any other Related Document, CIT's claims
against the Borrower, or any and all matters in connection therewith, (e) the
commencement or defense of, or intervention in, any court proceeding arising
from or related to this Agreement or any other Related Document, (f) the filing
of any petition, complaint, answer, motion or other pleading by CIT, or the
taking of any action in respect to Collateral or other security, in connection
with this Agreement or any other Related Document, (g) the protection,
collection, lease, sale, taking possession of or liquidation of, any Collateral
or other security in connection with this Agreement or any other Related
Document, (h) any attempt to enforce any lien or security interest in any
Collateral or other security in connection with this Agreement or any other
Related Document, (i) any attempt to collect from the Borrower, (j) the receipt
of any advice with respect to any of the foregoing, (k) all Environmental
Liabilities and Costs arising from or connection with the past, present or
future operations of the Borrower involving any damage to real or personal
property or natural resources or harm or injury alleged to have resulted from
any Release of Hazardous Materials on, upon or into such property; (1) any costs
or liabilities incurred in connection with the investigation, removal, cleanup
and/or remediation of any Hazardous Material present or arising out of the
operations of any facility of the Borrower; or (m) any costs or liabilities
incurred in connection with any Environmental Lien. Without limitation of the
foregoing or any other provision of any Related Document: (x) the Borrower
agrees to pay all stamp, document, transfer, recording or filing taxes or fees
and similar impositions now or hereafter determined by CIT to be payable in
connection with this Agreement or any other Related Document, and the Borrower
agrees to save CIT harmless from and against any and all present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying any such taxes, fees or impositions, and (y) if the
Borrower fails to perform any covenant or agreement contained herein or in any
other Related Document, CIT may itself perform or cause performance of such
covenant or agreement, and the expenses of CIT incurred in connection therewith
shall be reimbursed on demand by the Borrower. The Borrower agrees to indemnify
and defend CIT and its directors, officers, agents, employees and affiliates
(collectively the "Indemnified Parties") from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages, costs or expenses of
any nature whatsoever (including reasonable attorneys' fees and amounts paid in
settlement) incurred by, imposed upon or asserted against any of them arising
out of or by reason of any investigation, litigation or other proceeding brought
or threatened relating to, or otherwise arising out of or relating to, the
execution of this Agreement or any other Related Document, the transactions
contemplated hereby or thereby or any Loan or proposed Loan or Letter of Credit
or proposed Letter of Credit hereunder (including, but without limitation, any
use made or proposed to be made by the Borrower of the proceeds of any thereof,
or the delivery or use or transfer of or the payment or failure to pay under any
Loan or Letter of Credit). The obligations of the Borrower under clauses (d),
(e) and (f) of the first sentence of this Section 12.06 and the third sentence
of this Section 12.06 shall exclude any such losses, liabilities, claims,
damages, costs
67
or expenses to the extent finally judicially determined to have
resulted from the gross negligence or willful misconduct of the Indemnified
Parties.
12.07. Application. Except to the extent, if any, expressly set forth in
the Related Documents, CIT shall have the right to apply any payment received or
applied by it in connection with the Obligations to such of the Obligations then
due and payable as it may elect.
12.08. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
12.09. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE GOVERNED BY
THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAWS PROVISIONS) AND DECISIONS
OF THE STATE OF NEW YORK.
12.10. Prior Understandings. This Agreement supersedes all prior
understandings and agreements, whether written or oral, among the parties hereto
relating to the transactions provided for herein other than the Commitment
Letter.
12.11. Duration; Survival. All representations and warranties of the
Borrower contained herein or made in connection herewith shall survive the
making of and shall not be waived by the execution and delivery of this
Agreement, the Note or any other Related Document, any investigation by or
knowledge of CIT, the making of any Loan hereunder, the issuance of any Letter
of Credit hereunder, or any other event whatever. All covenants and agreements
of the Borrower contained herein shall continue in full force and effect from
and after the date hereof so long as the Borrower may borrow hereunder and until
the Obligations have been paid in full and no Letters of Credit remain
outstanding. Without limitation, it is understood that all obligations of the
Borrower to make payments to or indemnity CIT (including, without limitation,
obligations arising under Section 12.06 hereof) shall survive the payment in
full of the Note and all Reimbursement Obligations and of all other obligations
of the Borrower thereunder and hereunder, termination of this Agreement and all
other events whatsoever and whether or not any Loans are made or Letters of
Credit issued hereunder.
12.12. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
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12.13. Successors and Assigns; Participations.
(a) This Agreement shall be binding upon and inure to the benefit of
CIT, the Borrower and their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights hereunder without the
prior written consent of CIT.
(b) CIT may at any time sell, assign or participate any portion or
portions of the Obligations, without the consent of the Borrower; provided,
however, that CIT agrees to act as the agent on behalf of any assignees of any
interest in this Agreement. The Borrower shall provide Notes and agree to any
amendment and/or restatement of this Agreement and the Related Documents as may
be reasonably requested by CIT to reflect any such sales or assignments.
12.14. Confidentiality. Upon delivering to CIT, or permitting CIT to
inspect, any written information pursuant to this Agreement, CIT shall treat
such information as confidential in accordance with its customary practices to
the extent such information is marked confidential or to the extent that the
Borrower otherwise advises CIT that such information is confidential. CIT agrees
to hold such information in confidence from the date of disclosure thereof.
Subject to the other provisions of this Section 12.14, CIT may disclose
confidential information to its officers, directors, employees, attorneys,
accountants or other professionals engaged by CIT and then only after such third
party has agreed to hold such information in confidence to the same extent as if
it were CIT. Notwithstanding the foregoing, the provisions of this Section 12.14
shall not apply to information within any one of the following categories or any
combination thereof. (i) information the substance of which, at the time of
disclosure by CIT, has been disclosed to or is known to any creditor or official
or unofficial creditors' committee (other than information as to which such
creditor or creditor's committee is then under an obligation of nondisclosure),
or any Person other than (A) a director, officer, employee or agent of the
Borrower or a professional engaged by the Borrower and (B) a Person who is then
under an obligation of nondisclosure (otherwise than as a consequence of a
wrongful act of CIT), (ii) information which CIT had in its possession prior to
receipt thereof from the disclosing party, or (iii) information received by CIT
from a third party having no obligations of nondisclosure with respect thereto.
Nothing contained in this Section 12.14 shall prevent any disclosure: (x)
believed in good faith by CIT to be required by any Law or guideline or
interpretation or application thereof by any Governmental Authority, arbitrator
or grand jury charged with the interpretation or administration thereof or
compliance with any request or directive of any Governmental Authority,
arbitrator or grand jury (whether or not having the force of law), (y)
determined by counsel for CIT to be necessary or advisable in connection with
its obligations to any Governmental Authority or the enforcement or preservation
of rights under or in connection with this Agreement or any other Related
Document or (z) of any information which has been made public by a Person other
than CIT. CIT shall have the right to disclose any confidential information
described in this Section 12.14 to a Letter of Credit Issuer and to a
participant or assignee or prospective participant or assignee in Loans
hereunder, provided that CIT shall have obtained from such participant or
assignee or prospective participant or assignee an agreement to hold such
information in confidence to the same extent as if it were CIT.
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12.15. WAIVER OF JURY TRIAL. BY ITS EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF CIT AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION AGAINST THE OTHER, ANY PARTICIPANT, ASSIGNEE, INDEMNIFIED PARTY OR
LETTER OF CREDIT ISSUER, BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH, THIS AGREEMENT, THE NOTE OR ANY OTHER RELATED DOCUMENT, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF CIT OR THE
BORROWER IN CONNECTION HEREWITH OR THEREWITH. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR CIT TO ENTER INTO THIS AGREEMENT.
12.16. SUBMISSION TO JURISDICTION. ALL DISPUTES BETWEEN THE BORROWER AND
CIT, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE RESOLVED
ONLY BY STATE AND FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, AND THE COURTS
TO WHICH AN APPEAL THEREFROM MAY BE TAKEN; PROVIDED, HOWEVER, THAT CIT SHALL
HAVE THE RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST
THE BORROWER OR ITS PROPERTY IN ANY LOCATION REASONABLY SELECTED BY CIT IN GOOD
FAITH TO ENABLE CIT TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF CIT. THE BORROWER AGREES THAT IT WILL NOT ASSERT
ANY PERMISSIVE COUNTERCLAIMS, SETOFFS OR CROSS-CLAIMS IN ANY PROCEEDING BROUGHT
BY CIT. THE BORROWER WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF
THE COURT IN WHICH CIT HAS COMMENCED A PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON FORUM NON
CONVENIENS.
12.17. SERVICE OF PROCESS. THE BORROWER HEREBY IRREVOCABLY AGREES THAT
SERVICE OF PROCESS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS SET FORTH IN SECTION 12.05
HEREOF.
12.18. LIMITATION OF LIABILITY. CIT SHALL NOT HAVE ANY LIABILITY TO THE
BORROWER (WHETHER SOUNDING IN TORT, CONTRACT, OR OTHERWISE) FOR LOSSES SUFFERED
BY THE BORROWER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO THE
TRANSACTIONS OR RELATIONSHIPS CONTEMPLATED BY THIS AGREEMENT, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS IT IS DETERMINED BY
A FINAL AND NONAPPEALABLE JUDGMENT OR COURT ORDER BINDING ON CIT, THAT THE
LOSSES WERE THE RESULT OF ACTS OR OMISSIONS CONSTITUTING GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized, have executed and delivered this Agreement as of the date first
above written.
Borrower:
XXXXXX XXX MARKETING, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President,
Chief Financial Officer and Treasurer
Lender:
THE CIT GROUP/COMMERCIAL SERVICES, INC.
By: /s/ Xxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
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