EXECUTION COPY
U.S. $100,000,000
364 DAY CREDIT AGREEMENT
Dated as of October 12, 1995
Among
WARNACO INC.
as Borrower
and
THE WARNACO GROUP, INC.
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
THE BANK OF NOVA SCOTIA and CITIBANK, N.A.
as Managing Agents
and
CITIBANK, N.A.
as Documentation Agent
and
THE BANK OF NOVA SCOTIA
as Paying Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.................................. 1
SECTION 1.02. Computation of Time Periods............................ 22
SECTION 1.03. Accounting Terms....................................... 23
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances............................................ 23
SECTION 2.02. Making the Advances..................................... 23
SECTION 2.04. Termination, Reduction or Extension of the Commitments.. 25
SECTION 2.05. Prepayments............................................. 26
SECTION 2.06. Interest................................................ 26
SECTION 2.07. Fees.................................................... 27
SECTION 2.08. Conversion of Advances.................................. 27
SECTION 2.09. Increased Costs, Etc.................................... 28
SECTION 2.10. Illegality.............................................. 30
SECTION 2.11. Payments and Computations............................... 30
SECTION 2.12. Taxes................................................... 31
SECTION 2.13. Sharing of Payments, Etc................................ 34
SECTION 2.14. Use of Proceeds......................................... 34
SECTION 2.15. Defaulting Lenders...................................... 34
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections 2.01.. 37
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance..... 40
SECTION 3.03. Determinations Under Section 3.01....................... 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.......... 41
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants................................... 46
SECTION 5.02. Negative Covenants...................................... 51
SECTION 5.03. Financial Covenants..................................... 56
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default....................................... 58
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action................................ 61
SECTION 7.02. Agents' Reliance, Etc................................... 61
SECTION 7.03. Scotiabank, Citibank and Affiliates..................... 62
SECTION 7.04. Lender Credit Decision.................................. 62
SECTION 7.05. Indemnification......................................... 63
SECTION 7.06. Successor Agents........................................ 63
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc......................................... 64
SECTION 8.02. Notices, Etc............................................ 64
SECTION 8.03. No Waiver; Remedies..................................... 65
SECTION 8.04. Costs and Expenses...................................... 65
SECTION 8.05. Right of Set-off........................................ 66
SECTION 8.06. Binding Effect.......................................... 67
SECTION 8.07. Assignments, Designations and Participations............ 67
SECTION 8.08. Confidentiality......................................... 70
SECTION 8.09. Execution in Counterparts............................... 70
SECTION 8.10. Governing Law........................................... 71
SECTION 8.11. Jurisdiction, Etc....................................... 71
SECTION 8.13. Waiver of Jury Trial.................................... 71
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 4.01(b)- Subsidiaries
Schedule 4.01(q)- Environmental Disclosure
Schedule 4.01(r)- CERCLA Sites
Schedule 4.01(s)- Hazardous Materials
Schedule 5.02(c)- Existing Debt of Foreign Subsidiaries
Schedule 5.02(d)- Assets Held For Sale
Schedule 5.02(f)- Investments
Exhibits
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Notice of Extension of Termination Date
Exhibit E - Form of Opinion of Counsel for the Loan Parties
Exhibit F - Form of Group Guaranty
Exhibit G - Form of Subsidiary Guaranty
CREDIT AGREEMENT
Dated as of October 12, 1995
WARNACO INC., a Delaware corporation (together with any
successors-in-interest permitted hereunder, the "Borrower"), THE WARNACO
GROUP, INC., a Delaware corporation (together with any successors-in-interest
permitted hereunder, "Group"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and THE BANK OF NOVA SCOTIA ("Scotiabank") and CITIBANK, N.A.
("Citibank") as managing agents (the "Managing Agents") for the Lenders (as
hereinafter defined), Citibank as documentation agent (the "Documentation
Agent") for the Lenders, and Scotiabank as paying agent (the "Paying Agent")
for the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such
meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Advance" has the meaning specified in Section 2.01.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote 5%
or more of the Voting Stock of such Person or to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of Voting Stock, by contract or otherwise.
"Agents" means each of the Managing Agents, the Documentation
Agent and, the Paying Agent together, in each case, with any successor
or successors of any thereof appointed pursuant to Article VII hereof.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Implied Senior Rating in effect on such
date as set forth below:
Applicable Margin Applicable Margin for
Implied Senior for Eurodollar Rate
Rating Base Rate Advances Advances
-------------- ------------------ ---------------------
BB+ or below 0.250% 0.875%
BBB- 0.000% 0.500%
BBB 0.000% 0.425%
BBB+ 0.000% 0.375%
A- or above 0.000% 0.300%
The Applicable Margin for each Advance shall be determined by
reference to the Implied Senior Rating in effect from time to time;
provided, however, that no change in the Applicable Margin shall be
effective until three Business Days after the date on which the
Managing Agents receive evidence reasonably satisfactory to them that
a new Implied Senior Rating is in effect; provided further that in
the event that at any time no Implied Senior Rating shall be in
effect, the Applicable Margin shall be 0.250% for each Base Rate
Advance and 0.875% for each Eurodollar Rate Advance. Notwithstanding
the foregoing, until the six-month anniversary of the Effective Date,
the Applicable Margin shall be 0.000% for Base Rate Advances and
0.425% for Eurodollar Rate Advances.
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Implied Senior Rating in effect on
such date as set forth below:
Applicable
Implied Senior Rating Percentage
--------------------- ----------
BB+ or below 0.375%
BBB- 0.175%
BBB 0.125%
BBB+ 0.095%
A- or above 0.070%
The Applicable Percentage shall be determined by reference to the
Implied Senior Rating in effect from time to time; provided, however,
that no change in the Applicable Percentage shall be effective until
three Business Days after the date on which the Managing Agents receive
evidence reasonably satisfactory to them that a new Implied Senior
Rating is in effect; provided further that in the event that at any time
no Implied Senior Rating shall be in effect, the Applicable Percentage
shall be 0.375%. Notwithstanding the foregoing, until the six-month
anniversary of the Effective Date, the Applicable Percentage shall be
0.125%.
"Approved Accounting Firm" means Xxxxxx Xxxxxxxx LLP, Coopers &
Xxxxxxx L.L.P., Deloitte & Touche LLP, Ernst & Young LLP, Price
Waterhouse LLP or KPMG Peat Marwick LLP, or any successor thereof.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Documentation Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the higher of:
(a) the rate of interest established by the Paying Agent,
from time to time, at its Domestic Lending Office as its base rate
for loans in United States dollars; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties to
this Agreement.
"Borrower's Account" means the account of the Borrower maintained
by the Borrower with Citibank at its office at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Account No. 3846-9269.
"Borrowing" means a borrowing consisting of simultaneous Advances
of the same Type made by the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any Person, any expenditures or
costs made by such Person for the acquisition, maintenance or repair of
fixed or capital assets (which are required to be capitalized on the
balance sheet of such Person in accordance with GAAP), including,
without limitation, the incurrence or assumption of any Debt (other than
Capitalized Lease Obligations) in respect of such fixed or capital
asset, and, without double counting, any payment made in respect of such
incurrence or assumption.
"Capital Stock Issuance" means the sale or issuance by any Loan
Party or any of its Subsidiaries of any capital stock, any securities
convertible into or exchangeable for capital stock or any warrants,
rights or options to acquire capital stock of Group or any of its
Subsidiaries other than any such sale or issuance by a wholly owned
Subsidiary of the Borrower to the Borrower or to another wholly owned
Subsidiary of the Borrower and other than the issuance or sale of common
stock (or options to purchase common stock) by Group pursuant to
customary management, employee or director stock option and stock
purchase programs or other stock option or stock purchase programs with
respect to common stock of Group approved by the Board of Directors of
Group.
"Capitalized Lease Obligations" of any Person shall at any time
mean all Obligations under Capitalized Leases of such Person, in each
case taken at the amount thereof accounted for as liabilities in
accordance with GAAP at such time.
"Capitalized Leases" has the meaning specified in clause (e) of
the definition of "Debt".
"Cash Equivalents" means any of the following, to the extent owned
by any Loan Party or any Subsidiary of a Loan Party free and clear of
all Liens (other than Liens permitted hereunder): (a) securities
issued, or that are directly and fully guaranteed or insured, by the
United States Government or any agency or instrumentality thereof having
maturities of not more than 12 months from the date of acquisition, (b)
time deposits and certificates of deposit having maturities of not more
than 12 months from the date of acquisition of (i) any Lender or (ii)
any other domestic commercial bank having capital and surplus in excess
of $500,000,000, the holding company of which has outstanding commercial
paper meeting the requirements specified in clause (d) below, (c)
repurchase agreements with a term of not more than seven days for
underlying securities of the types described in clauses (a) and (b)
above entered into with any Lender or any other bank meeting the
qualifications specified in clause (b) above or with securities dealers
of recognized national standing, provided that the terms of such
agreements comply with the guidelines set forth in the Federal Financial
Institutions Examination Council Supervisory Policy Repurchase
Agreements of Depositary Institutions With Securities Dealers and Others
as adopted by the Comptroller of the Currency on October 31, 1985
(the "Supervisory Policy"), and provided further that possession or
control of the underlying securities is established as provided in
the Supervisory Policy, and (d) commercial paper rated (as of the
date of acquisition thereof) at least A-1 or the equivalent thereof
by S&P and at least P-1 or the equivalent thereof by Xxxxx'x and
maturing within six months after the date of its acquisition.
"Cash Interest Expense" means, for any period, interest expense
net of interest income on all Debt of Group and its Subsidiaries, in
each case determined for such period on a Consolidated basis for Group
and its Subsidiaries in accordance with GAAP and including, without
limitation, to the extent not otherwise included in accordance with
GAAP, (a) interest expense in respect of Debt resulting from Advances,
(b) the interest component of obligations as lessee under Capitalized
Leases, (c) commissions, discounts and other fees and charges payable in
connection with letters of credit, (d) the net payment, if any, payable
in connection with interest rate hedge agreements and other interest
rate protection contracts and (e) fees paid pursuant to Section 2.07(a),
but excluding, in each case, (x) amortization of original issue
discount, (y) the interest portion of any deferred payment obligation
and (z) other interest not payable in cash.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Citibank" has the meaning specified in the recital of parties to
this Agreement.
"Commitment" means, with respect to any Lender at any time, the
amount set forth opposite such Lender's name on Schedule I hereto under
the caption "Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, the amount set forth for such Lender in the
Register maintained by the Documentation Agent pursuant to Section
8.07(d) as such Lender's "Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.04(a).
"Confidential Information" means information that the Borrower or
Group furnishes to any Agent or Lender in a writing designated as
confidential, but does not include any such information that is or
becomes generally available to the public or that is or becomes
available to such Agent or Lender from a source other than the Borrower
or Group.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Current Liabilities" of any Person means (a) all Debt of such
Person except Funded Debt, Debt in respect of the Five Year Credit
Facility and Debt in respect of Advances, (b) all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the
date of determination and (c) all other items (including taxes accrued
as estimated) that in accordance with GAAP would be classified as
current liabilities of such Person.
"Debt" of any Person means, without duplication, the following:
(a) all indebtedness of such Person for borrowed money,
(b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables
not overdue by more than 90 days incurred in the ordinary course
of such Person's business), including, without limitation, the
Trade Credit Facility,
(c) all Obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments,
(d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property
acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property),
(e) all Obligations of such Person as lessee under leases
that have been or should be, in accordance with GAAP, recorded as
capital leases ("Capitalized Leases"),
(f) all Obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar facilities,
(g) all Obligations of such Person to purchase, redeem,
retire, defease or otherwise make any payment in respect of any
capital stock of or other ownership or profit interest in such
Person or any other Person or any warrants, rights or options to
acquire such capital stock, valued, in the case of Redeemable
preferred stock, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends,
(h) all Obligations of such Person in respect of Hedge
Agreements,
(i) all Debt of others of the kinds referred to in clauses
(a) through (h) above guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (A) to pay or
purchase such Debt or to advance or supply funds for the payment
or purchase of such Debt, (B) to purchase, sell or lease (as
lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment
of such Debt or to assure the holder of such Debt against loss,
(C) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services
irrespective of whether such property is received or such services
are rendered) or (D) otherwise to assure a creditor against loss,
and
(j) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing
right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Debt.
"Declining Lender" has the meaning specified in Section 2.04(b).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender at any time,
the amount of any Advance required to be made by such Lender to the
Borrower pursuant to Section 2.01 at or prior to such time which has not
been so made as of such time; provided, however, any Advance made by the
Paying Agent for the account of such Lender pursuant to Section 2.02(d)
shall not be considered a Defaulted Advance even if, at such time, such
Lender shall not have reimbursed the Paying Agent therefor as provided
in Section 2.02(d). In the event that a portion of a Defaulted Advance
shall be deemed made pursuant to Section 2.15(a), the remaining portion
of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date
as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender at any time,
any amount required to be paid by such Lender to any Agent or any other
Lender hereunder or under any other Loan Document at or prior to such
time which has not been so paid as of such time, including, without
limitation, any amount required to be paid by such Lender to (a) the
Paying Agent pursuant to Section 2.02(d) to reimburse the Paying Agent
for the amount of any Advance made by the Paying Agent for the account
of such Lender, (b) any other Lender pursuant to Section 2.13 to purchase
any participation in Advances owing to such other Lender and (c) any
Agent pursuant to Section 7.05 to reimburse such Agent for such Lender's
ratable share of any amount required to be paid by the Lenders to such
Agent as provided therein. In the event that a portion of a Defaulted
Amount shall be deemed paid pursuant to Section 2.15(b), the remaining
portion of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be made hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall
take or be the subject of any action or proceeding of a type described
in Section 6.01(e).
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Paying Agent.
"Domestic Subsidiary" means any Subsidiary of Group that is not a
Foreign Subsidiary.
"EBITDA" means, for any period, net income (or net loss) from
operations (determined without giving effect to extraordinary or
non-recurring gains or losses) plus, to the extent deducted in
calculating such net income (loss), the sum of (a) Interest Expense, (b)
income tax expense, (c) depreciation expense and (d) amortization
expense, in each case determined in accordance with GAAP.
"Effective Date" means the first date on which the conditions
specified in Sections 3.01 and 3.02 have been satisfied.
"Eligible Assignee" means (i) a wholly owned Subsidiary of a
Lender or of any Person that directly or indirectly controls a Lender;
and (ii) any other Person approved by the Managing Agents and the
Borrower, such approval not to be unreasonably withheld; provided,
however, that neither the Borrower nor an Affiliate of the Borrower
shall qualify as an Eligible Assignee.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating
in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health,
safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment or
decree relating to the environment, health, safety or Hazardous
Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver with
respect to a Plan; (c) the provision by the administrator of any Plan of
a notice of intent to terminate such Plan pursuant to Section 4041(a)(2)
of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (d) the cessation of operations
at a facility of the Borrower or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal
by the Borrower or any of its ERISA Affiliates from a Multiple Employer
Plan during a plan year for which it was a substantial employer, as
defined in Section 4001(a)(2) of ERISA; (f) the failure by the Borrower
or any of its ERISA Affiliates to make a payment to a Plan if the
conditions for the imposition of a lien under Section 302(f)(1) of ERISA
are satisfied; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the Borrower and
the Paying Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a) the rate per annum at which deposits in U.S. dollars are offered by
the principal office of the Paying Agent in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to the Paying Agent's Eurodollar Rate Advance
comprising part of such Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Person" means (i) Xxxxx X. Xxxxxxx or (ii) any trust of
which Xxxxx X. Xxxxxxx is the sole trustee (or, in case of her death or
disability, another trustee of comparable experience and ability
selected by the Borrower within 180 days thereafter after consultation
with the Managing Agents).
"Excluded Taxes" means, in the case of each Lender, franchise
taxes and taxes upon or determined by reference to such Lender's net
income (including, without limitation, branch profit taxes), in each
case imposed by the United States or any political subdivision or taxing
authority thereof or therein or by any jurisdiction in which such Lender
has its Applicable Lending Office, is resident or in which such Lender
is organized or has its principal or registered office and, in the case
of each Agent, franchise taxes and net income taxes upon or determined
by reference to such Agent's net income (including, without limitation,
branch profits taxes) imposed by the United States or by the state or
foreign jurisdiction under the laws of which such Agent is organized (or
by any political subdivision of such state or foreign jurisdiction), is
resident or has its principal or registered office.
"Existing Credit Agreement means the Credit Agreement, dated as of
October 14, 1993, as amended, among the Borrower, Group, the financial
institutions named therein, Scotiabank and Citicorp, as Managing Agents,
Citicorp, as Documentation Agent and Collateral Agent, and Scotiabank,
as Paying Agent thereunder.
"Extending Lender" has the meaning specified in Section 2.04(b).
"Facility" means, at any time, the aggregate amount of the
Lenders' Commitments at such time.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers,
as published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Paying Agent from three Federal funds
brokers of recognized standing selected by it.
"Fiscal Quarter" means a fiscal quarter of Group and its
Consolidated Subsidiaries ending on or about March 31, June 30,
September 30 or December 31 of each year.
"Fiscal Year" means a fiscal year of Group and its Consolidated
Subsidiaries ending on or about December 31 of each year.
"Five Year Credit Facility" means the $450,000,000 senior term
loan and revolving credit facility under a credit agreement dated as of
the date hereof among the Borrower, Group, certain lenders party thereto
and Scotiabank and Citibank as agents for said lenders, as the same may
be amended, extended or otherwise modified or refinanced or otherwise
replaced from time to time.
"Fixed Charge Coverage Ratio" means the ratio of Consolidated
EBITDA of Group and its Subsidiaries for any four consecutive Fiscal
Quarter period plus cash lease expense of Group and its Subsidiaries
during such period to the sum of (i) Cash Interest Expense for such
period plus (ii) income taxes paid in cash by Group and its Subsidiaries
during such period plus (iii) the aggregate amount of Capital
Expenditures made by Group and its Subsidiaries during such period in
cash plus (iv) the aggregate amount of all regularly scheduled payments
of principal on all Funded Debt payable during such period by Group and
its Subsidiaries (other than the payment of principal scheduled to be
paid upon the expiration of a revolving credit or similar facility or
receivables facility, if such facility has been refinanced or replaced
(except to the extent a principal payment was made to permanently reduce
such facility in connection with such refinancing or replacement)) plus
(v) the aggregate of all cash amounts paid by Group or any of its
Subsidiaries to any Person other than the Borrower or a wholly owned
Subsidiary of the Borrower during such period pursuant to Section
5.02(e)(iii) plus (vi) without duplication, cash lease expense of Group
and its Subsidiaries during such period.
"Foreign Subsidiary" means a Subsidiary of Group organized under
the laws of a country other than the United States or any state thereof.
"Funded Debt" of any Person means Debt (other than Debt incurred
pursuant to Section 5.02(c)(iii) hereof) of such Person that by its
terms matures more than one year from the date of its creation or
matures within one year from such date but is renewable or extendible,
at the option of such Person, to a date more than one year after such
date or arises under a revolving credit or similar agreement that
obligates the lender or lenders to extend credit during a period of more
than one year after such date, including, without limitation, all
amounts of Funded Debt of such Person required to be paid or prepaid
within one year after the date of its creation.
"GAAP" has the meaning specified in Section 1.03.
"Group" has the meaning specified in the recital of parties to
this Agreement.
"Group Guaranty" has the meaning specified in Section 3.01(h)(ii).
"Guaranties" means the Group Guaranty and the Subsidiary Guaranty.
"Guarantors" means Group and each of its Domestic Subsidiaries
(other than the Borrower) which is required to guarantee the Borrower's
Obligations under the Loan Documents pursuant to Section 5.01(k).
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic", or words of similar import, under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Implied Senior Rating" means the rating assigned by S&P to
Group's unsecured "implied senior debt" from time to time, as notified
to Group by S&P in its letter dated May 24, 1994 or any subsequent
letter issued by S&P (which rating on the date hereof is BBB-), or, if
such rating is unavailable, the equivalent rating assigned by Moody's to
Group's unsecured "implied senior debt", as notified in writing to Group
by Moody's. For purposes of this Agreement, the following is the
equivalent rating by Moody's for each rating by S&P:
S&P Moody's
--- -------
BB+ Ba1
BBB- Baa3
BBB Baa2
BBB+ Xxx0
X- X0
"Indebtedness for Borrowed Money" of any Person means all Debt of
such Person for borrowed money or evidenced by notes, bonds, debentures
or other similar instruments, all Obligations of such Person for the
deferred purchase price of any property, service or business (other than
trade accounts payable (including the Trade Credit Facility) incurred in
the ordinary course of business and constituting Current Liabilities),
and all Obligations of such Person under Capitalized Leases and finance
leases.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Information Memorandum" means the information memorandum dated
September 1995 used by the Managing Agents in connection with the
syndication of the Commitments
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Expense" means, with respect to any Person for any
period, the excess, if any, of (i) interest expense (whether cash or
accretion) of such Person during such period determined in accordance
with GAAP, and shall include in any event, without limitation, interest
expense with respect to Indebtedness for Borrowed Money, the Trade
Credit Facility and payments under Hedge Agreements over (ii) interest
income of such Person for such period, including payments received under
Hedge Agreements.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date
of such Eurodollar Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurodollar Rate Advance, and ending on the
last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, or, if available to all Lenders, nine months, as the Borrower
may, upon notice received by the Paying Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that
ends after any principal repayment installment date unless, after
giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment
installment date shall be at least equal to the aggregate
principal amount of Advances due and payable on or prior to such
date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day,
unless the Borrower and the Paying Agent otherwise agree; and
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month unless the Borrower and the Paying Agent otherwise agree.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such Person
or any other investment in such Person, including, without limitation,
any arrangement pursuant to which the investor incurs Debt of the types
referred to in clauses (i) or (j) of the definition of "Debt" in respect
of such Person.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) for purposes of this Agreement, the
Notes and any amendments or modifications hereof or thereof and for all
other purposes other than for purposes of the Guarantees (i) this
Agreement, (ii) the Notes and (iii) the Guarantees, and (b) for purposes
of the Guarantees, (i) this Agreement, (ii) the Notes, (iii) the
Guarantees and (iv) the interest rate Hedge Agreements entered into by
Group or the Borrower with Lender Parties, in the case of each of the
foregoing agreements referred to in clause (a) or (b), and any
amendments, supplements or modifications hereof or thereof.
"Loan Parties" means the Borrower and the Guarantors.
"Managing Agents" has the meaning specified in the recital of
parties to this Agreement.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or of Group and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or of Group and its
Subsidiaries taken as a whole, (b) the rights and remedies of any Agent
or Lender under any Loan Document or (c) the ability of any Loan Party
to perform its Obligations under any Loan Document to which it is or is
to be a party.
"Material Guarantor" means, at any time, a Guarantor having (i) at
least 10% of Consolidated total assets of Group and its Subsidiaries
(determined as of the last day of the most recent Fiscal Quarter) or
(ii) at least 10% of Consolidated EBITDA of Group and its Subsidiaries
for the 12-month period ending on the last day of the most recent Fiscal
Quarter.
"Material Subsidiary" of any Person means, at any time, a
Subsidiary of such Person having (i) at least $5,000,000 in total assets
(determined as of the last day
of the most recent fiscal quarter of such Person) or (ii) EBITDA of at
least $5,000,000 for the 12-month period ending on the last day of the
most recent fiscal quarter of such Person.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any of its ERISA Affiliates and at least one Person
other than the Borrower and its ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Worth" at any time means total assets of Group and its
Subsidiaries at such time over total liabilities of Group and its
Subsidiaries at such time, in each case as determined on a Consolidated
basis in accordance with GAAP, without giving effect to charges
resulting from (i) the implementation of Statement of Position 93-7
during the 1995 Fiscal Year ended on or about January 7, 1996 with
respect to certain advertising and promotion costs in an aggregate
amount of approximately $4,000,000 and (ii) the prepayment of
indebtedness during the 1995 Fiscal Year ended on or about January 7,
1996 in an aggregate amount of approximately $5,000,000.
"Note" means a promissory Note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Obligation" means, with respect to any Person, any obligation of
such Person of any kind, including, without limitation, any liability of
such Person on any claim,
whether or not the right of any creditor to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged, stayed or
otherwise affected by any proceeding referred to in Section 6.01(e).
Without limiting the generality of the foregoing, the Obligations of the
Loan Parties under the Loan Documents include (a) the obligation to pay
principal, interest, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by any Loan Party
under any Loan Document and (b) the obligation to reimburse any amount
in respect of any of the foregoing that any Lender, in its sole
discretion, may elect to pay or advance on behalf of such Loan Party.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Paying Agent" has the meaning specified in the recital of parties
to this Agreement.
"Paying Agent's Account" means the account of the Paying Agent
maintained by the Paying Agent with Scotiabank at its office at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, for further credit to
Scotiabank Atlanta Agency, Special Management Account No. 0000000,
Reference: Warnaco.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means the following:
(a) Liens, other than in favor of the PBGC, arising out of
judgments or awards in respect of which Group or any of its
Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have
secured a subsisting stay of execution pending such appeal or
proceedings for review, provided it shall have set aside on its
books adequate reserves, in accordance with GAAP, with respect to
such judgment or award and provided further that the aggregate
amount secured by such Liens does not exceed $5,000,000 in any one
case or $10,000,000 in the aggregate;
(b) Liens for taxes, assessments or governmental charges
or levies, provided payment thereof shall not at the time be
required in accordance with the provisions of Section 5.01(b) and
such amount, when taken together with any amount payable under
Section 5.01(b) as to which any Lien has been attached as
described in the last phrase thereof, shall not exceed
$10,000,000;
(c) deposits, Liens or pledges to secure payments of
workmen's compensation and other payments, unemployment and other
insurance, old-age pensions or other social security obligations,
or the performance of bids, tenders, leases, contracts (other than
contracts for the payment of money),
public or statutory obligations, surety, stay or appeal bonds, or
other similar obligations arising in the ordinary course of
business;
(d) mechanics', workmen's, repairmen's, warehousemen's,
vendors' or carriers' Liens or other similar Liens arising in the
ordinary course of business and securing sums which are not past
due, or deposits or pledges to obtain the release of any such
Liens;
(e) statutory landlord's Liens under leases to which Group
or any of its Subsidiaries is a party;
(f) any Lien constituting a renewal, extension or
replacement of a Lien constituting a Permitted Lien, but only if
at the time such Lien is granted and immediately after giving
effect thereto, no Default would exist;
(g) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of Group
and its Subsidiaries, taken as a whole;
(h) zoning restrictions, easements, rights of way,
licenses and restrictions on the use of real property or minor
irregularities in title thereto, which do not materially impair
the use of such property in the normal operation of the business
of Group or any of its Subsidiaries or the value of such property
for the purpose of such business; and
(i) statutory or common law Liens (such as rights of
set-off) on deposit accounts of Group and its Subsidiaries and
other Liens under the "L/C Related Documents" (as such term is
defined in the Five Year Credit Agreement).
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pro Rata Share" of any amount means, with respect to any Lender
at any time, the product of such amount times a fraction the numerator
of which is the amount of such Lender's Commitment at such time and the
denominator of which is the Facility at such time.
"Prospectus" means the Prospectus of Group dated September 19,
1995.
"Redeemable" means, with respect to any capital stock, Debt or
other right or Obligation, any such right or Obligation that (a) the
issuer has undertaken to redeem at a fixed or determinable date or
dates, whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer or
(b) is redeemable at the option of the holder.
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means, at any time, Lenders owed or holding
more than 51% of the aggregate principal amount of the Advances
outstanding at such time; provided, however, if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate
principal amount of the Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time and (ii) the Unused Commitment
of such Lender at such time.
"S&P" means Standard & Poor's Ratings Group, a division of
XxXxxx-Xxxx, Inc.
"Scotiabank" has the meaning specified in the recital of parties
to this Agreement.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or any of its ERISA Affiliates and no Person other than the
Borrower and its ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any of its ERISA Affiliates could have
liability under Section 4069 of ERISA in the event such plan has been or
were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at
any time shall be computed as the amount that, in the light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited liability company,
partnership or joint venture or (c) the beneficial interest in such
trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries. The
term "wholly owned Subsidiary" shall exclude any directors' or officers'
qualifying shares which may be outstanding.
"Subsidiary Guaranty" has the meaning specified in Section
3.01(h)(iii).
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means, with respect to each Lender the earlier
of (a) October 10, 1996 or, if extended pursuant to Section 2.04(b), the
date to which the Commitment of such Lender is so extended pursuant to
Section 2.04 and (b) the date of termination in whole of the Commitments
pursuant to Section 2.04 or 6.01.
"Total Debt" means, as of the end of any period of four
consecutive Fiscal Quarters, all Indebtedness for Borrowed Money
(including, without limitation, the aggregate outstanding principal
amount of all Advances and loans under other revolving credit facilities
and lines of credit and the like but excluding undrawn letters of credit
and the Trade Credit Facility) of Group and its Subsidiaries, on a
Consolidated basis at such time.
"Trade Credit Facility" means (i) the revolving loan facility
under the Credit Agreement dated as of July 16, 1993 among the Borrower,
certain lenders party thereto and Scotiabank, as agent for said lenders,
and (ii) the revolving loan facility under the Amended and Restated
Credit Agreement dated as of August 31, 1995 among the Borrower, certain
lenders party thereto and Scotiabank, as agent for said lenders, as each
such agreement has been amended to date and the same may be amended,
extended, renewed, refinanced, replaced or otherwise modified from time
to time (provided, however, that the aggregate principal amount of Debt
thereunder shall not exceed $50,000,000 at any time outstanding, or, in
connection with any refinancing thereof, shall not exceed $100,000,000),
used by the Borrower from time to time to extend maturing trade letters
of credit for three months.
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Commitment" means, with respect to any Lender at any time,
(a) such Lender's Commitment at such time minus
(b) the aggregate principal amount of all Advances made by
such Lender and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(f)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances (each an
"Advance") to the Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an amount for
each such Advance not to exceed such Lender's Unused Commitment at such time.
Each Borrowing shall be in an aggregate amount of $5,000,000 or an integral
multiple of $1,000,000 in excess thereof and shall consist of Advances of the
same Type made on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Unused Commitment
in effect from time to time, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.05(a) and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing in the case of
a Borrowing consisting of Eurodollar Rate Advances, or the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate
Advances, by the Borrower to the Paying Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Borrowing
(a "Notice of Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances,
the initial Interest Period for each such Advance. Each Lender shall, before
12:00 Noon (New York City time) on the date of such Borrowing, make available
for the account of its Applicable Lending Office to the Paying Agent at the
Paying Agent's Account, in same day funds, such Lender's ratable portion of
such Borrowing in accordance with the respective Commitments of such Lender
and the other Lenders. After the Paying Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in Article III, the
Paying Agent will make such funds available to the Borrower by crediting the
Borrower's Account.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than
$10,000,000 or if the obligation of the Lenders to make Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08, 2.09 or 2.10 and
(ii) the Advances may not be outstanding as part of more than 12 separate
Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrower shall indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Paying Agent shall have received notice from an
Lender prior to the date of any Borrowing that such Lender will not make
available to the Paying Agent such Lender's ratable portion of such Borrowing,
the Paying Agent may assume that such Lender has made such portion available
to the Paying Agent on the date of such Borrowing in accordance with this
Section 2.02 and the Paying Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available
to the Paying Agent, such Lender and the Borrower severally agree to repay to
the Paying Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Paying Agent, at (i)
in the case of the Borrower, the interest rate applicable at such time under
Section 2.06 to Advances comprising such Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall repay to the Paying
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. Repayment of Advances. The Borrower shall repay to
the Paying Agent for the ratable account of the Lenders on the Termination
Date the aggregate outstanding principal amount of the Advances then
outstanding.
SECTION 2.04. Termination, Reduction or Extension of the
Commitments. (a) Termination and Reduction. The Borrower shall have the
right, upon at least three Business Days' notice to the Paying Agent, to
permanently terminate in whole or reduce in part the Unused Commitments;
provided that (i) each partial reduction of the Facility shall be in the
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, (ii) each partial reduction of the Facility shall be made ratably
among the Lenders in accordance with their Commitments with respect to such
Facility.
(b) Extensions. At any time no earlier than 45 days and no
later than 30 days prior to the Termination Date in effect at any time, the
Borrower may, by written notice to the Paying Agent, request that the
Termination Date then in effect be extended for all or a portion of the
Commitments for a period of 364 days. Such request shall be irrevocable and
binding upon the Borrower. The Paying Agent shall promptly notify each Lender
of such request. The Lenders shall have no obligation whatsoever to agree to
any request made by the Borrower for the extension of the Termination Date for
the Commitments. If a Lender agrees, in its individual and sole discretion,
to so extend all or a portion of its Commitment (an "Extending Lender"), it
shall deliver to the Paying Agent and the Borrower a notice of its agreement
to do so, in substantially the form of Exhibit D hereto, no earlier than 30
days and no later than 25 days prior to such Termination Date and the Paying
Agent shall notify the Borrower of such Extending Lender's agreement to extend
its Commitment no later than 20 days prior to such Termination Date. The
Commitment of any Lender that fails to accept or respond to the Borrower's
request for extension of the Termination Date (a "Declining Lender") shall be
terminated on the Termination Date then in effect (without regard to any
extension by other Lenders) and on such Termination Date the Borrower shall
pay in full the principal amount of all Advances owing to such Declining
Lender, together with accrued interest thereon to the date of payment of such
principal amount, all facility fees and other fees payable to such Declining
Lender and all other amounts payable to such Declining Lender under this
Agreement (including, but not limited to, any increased costs or other
additional amounts (computed in accordance with Section 2.09) and any Taxes
incurred and reimbursable hereunder by such Declining Lender prior to such
Termination Date and amounts payable under Section 8.04(a)). The Extending
Lenders, or any of them, or any Person that would be an Eligible Assignee (a
"Replacement Lender") may offer in their sole discretion, to increase their
respective Commitments by an aggregate amount that shall not exceed the sum of
the aggregate amount of the Declining Lenders' Commitments plus the aggregate
amount of the Extending Lenders' Commitments for which such Extending Lenders
have not extended the Termination Date. Each such Extending Lender or
Replacement Lender shall deliver to the Paying Agent a notice, in
substantially the form of Exhibit D hereto, of its offer to so increase its
Commitment no later than 15 days prior to such Termination Date. The Borrower
shall, no later than one day before the Termination Date, deliver to the
Paying Agent a notice setting forth the Commitments of the Extending Lenders
and Replacement Lenders, if any, that are to become or be effective as of the
Termination Date. If the Extending Lenders and Replacement Lenders provide
Commitments in an aggregate amount equal to at least 50% of the aggregate
amount of the Commitments requested by the Borrower to be extended, then,
effective on the Termination Date in effect at the time of the Borrower's
request, (A) the Termination Date shall be extended by 364 days for such
Extending Lenders' and Replacement Lenders' Commitments and (B) the Commitment
of each Extending Lender and Replacement Lender shall be the amount specified
in the notice provided by the Borrower to the Paying Agent (which amount shall
not exceed the amount specified by each such Extending Lender and Replacement
Lender in its most recent notice to the Paying Agent).
SECTION 2.05. Prepayments. (a) Optional Prepayments. The
Borrower may, upon at least one Business Day's notice in the case of Base Rate
Advances and three Business Days' notice in the case of Eurodollar Rate
Advances, in each case to the Paying Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the
Advances comprising part of the same Borrowing in whole or ratably in part,
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid; provided, however, that (i) each partial prepayment
shall be in an aggregate principal amount of $1,000,000 or an integral
multiple of $1,000,000 in excess thereof and (ii) no such prepayment of a
Eurodollar Rate Advance shall be made other than on the last day of an
Interest Period therefor.
(b) Mandatory Prepayments. The Borrower shall, on each Business Day,
prepay an aggregate principal amount of the Advances comprising part of the
same Borrowings equal to the amount by which (i) the sum of the aggregate
principal amount of the Advances, then outstanding exceeds (ii) the aggregate
amount of the Commitments on such Business Day.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to
each Lender from the date of such Advance until such principal amount shall be
paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
first day of each January, April, July and October during such periods.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x) the
Eurodollar Rate for such Interest Period for such Advance plus (y) the
Applicable Margin in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during such
Interest Period every three months from the first day of such Interest
Period and on the date such Eurodollar Rate Advance shall be Converted
or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears
on the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per
annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of any interest,
fee or other amount payable hereunder that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
SECTION 2.07. Fees. (a) Commitment Fee. The Borrower shall pay
to the Paying Agent for the account of the Lenders a commitment fee, from the
date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable
quarterly on the first Business Day of each January, April, July and October,
commencing January 1, 1996, and on the Termination Date, at the rate per annum
equal to the Applicable Percentage in effect from time to time on the average
daily Unused Commitment of such Lender; provided, however, (i) that any
commitment fee accrued with respect to any of the Commitments of a Defaulting
Lender during the period prior to the time such Lender became a Defaulting
Lender and unpaid at such time shall not be payable by the Borrower so long as
such Lender shall be a Defaulting Lender except to the extent that such
commitment fee shall otherwise have been due and payable by the Borrower prior
to such time and (ii) that no commitment fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) Agent's Fees. The Borrower shall pay to each of the Agents
for its own account such fees as may from time to time be agreed between the
Borrower and such Agent.
SECTION 2.08. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Paying Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of Sections
2.08, 2.09 and 2.10, Convert all Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b) and no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted, and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
each such Advance. Each notice of Conversion shall be irrevocable and binding
on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $10,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Paying Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost (other than in taxes,
including interest, additions to tax and penalties relating thereto except to
the extent that the same are required to be paid pursuant to Section 2.12
hereof) to any Lender of agreeing to make or of making, funding or maintaining
Eurodollar Rate Advances (excluding for purposes of this Section 2.09 any such
increased costs resulting from (i) Taxes, Other Taxes, Excluded Taxes or taxes
excluded from the definitions of Taxes or Other Taxes in Section 2.12(e) or
from indemnification pursuant to Section 2.12(f) (as to which Section 2.12
shall govern) and (ii) changes in the basis of taxation of overall net income
or overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to
the Paying Agent), pay to the Paying Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased
cost; provided, however, that, before making any such demand, each Lender
agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such increased cost and would not, in the reasonable judgment
of such Lender, be otherwise disadvantageous to such Lender. A certificate as
to the amount of such increased cost, submitted to the Borrower by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender and that the amount of
such capital is increased by or based upon the existence of such Lender's
commitment to lend hereunder and other commitments of such type, then, upon
demand by such Lender Party (with a copy of such demand to the Paying Agent),
the Borrower shall pay to the Paying Agent for the account of the Lender, from
time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender in light of such circumstances, to the extent that such
Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend. A certificate as to such
amounts submitted to the Borrower by such Lender shall be conclusive and
binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Paying Agent that the Eurodollar Rate for
any Interest Period for such Advances will not adequately reflect the cost
(excluding for purposes of this Section 2.09 any such increased costs
resulting from (i) Taxes, Other Taxes, Excluded Taxes or taxes excluded from
the definitions of Taxes or Other Taxes in Section 2.12(e) or from
indemnification pursuant to Section 2.12(f) (as to which Section 2.12 shall
govern) and (ii) changes in the basis of taxation of overall net income or
overall gross income by the United States or by the foreign jurisdiction or
state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof) to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such
Interest Period, the Paying Agent shall forthwith so notify the Borrower and
the Lenders, whereupon (i) each such Eurodollar Rate Advance under any
Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of
the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances
shall be suspended until the Paying Agent shall notify the Borrower that such
Lenders have determined that the circumstances causing such suspension no
longer exist.
SECTION 2.10. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Paying Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to fund or maintain Eurodollar Rate Advances hereunder, (i) each
Eurodollar Rate Advance will automatically, upon such demand, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make Eurodollar
Rate Advances or to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Paying Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower shall
make each payment hereunder and under the Notes, irrespective of counterclaim
or set-off (except as otherwise provided in Section 2.13, not later than 11:00
A.M. (New York City time) on the day when due in U.S. dollars to the Paying
Agent at the Paying Agent's Account in same day funds. The Paying Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or commitment fees ratably (other than amounts
payable pursuant to Section 2.09, 2.12 or 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its acceptance
of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Acceptance, the Paying Agent
shall make all payments hereunder and under the Notes in respect of the
interest assigned thereby to the Lender assignee thereunder, and the parties
to such Assignment and Acceptance shall make all appropriate adjustments in
such payments for periods prior to such effective date directly between
themselves.
(b) If the Paying Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances to which, or the manner in which, such
funds are to be applied, the Paying Agent may, but shall not be obligated to,
elect to distribute such funds to each Lender ratably in accordance with such
Lender's proportionate share of the principal amount of all outstanding
Advances, in repayment or prepayment of such of the outstanding Advances or
other Obligations owed to such Lender, and for application to such principal
installments, as the Paying Agent shall direct.
(c) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note held by such Lender, to charge from time to time against any or all of
the Borrower's accounts with such Lender any amount so due.
(d) All computations of interest and fees shall be made by the
Paying Agent on the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest or commitment fees are payable. Each
determination by the Paying Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be
made in the next following calendar month, such payment shall be made on the
next preceding Business Day.
(f) Unless the Paying Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the Paying
Agent may assume that the Borrower has made such payment in full to the Paying
Agent on such date and the Paying Agent may, in reliance upon such assumption,
cause to be distributed to each Lender on such due date an amount equal to the
amount then due such Lender. If and to the extent the Borrower shall not have
so made such payment in full to the Paying Agent, each Lender shall repay to
the Paying Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to
the Paying Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
each Agent, Excluded Taxes (all such non-Excluded Taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred
to as "Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable hereunder or under any Note to any
Lender or any Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender or
such Agent (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or under
the Notes or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or the Notes (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify each Lender and each Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.12) paid by such Lender or such Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be made within 30 days from
the date such Lender or such Agent (as the case may be) makes written demand
therefor, including with such demand an identification of the Taxes or Other
Taxes (together with the amounts thereof) with respect to which such
indemnification is being sought.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Paying Agent and the Documentation Agent, at
their respective addresses referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof. In the case of any
payment hereunder or under the Notes by or on behalf of the Borrower through
an account or branch outside the United States or on behalf of the Borrower by
a payor that is not a United States person, if the Borrower determines that no
Taxes are payable in respect thereof, the Borrower shall furnish, or shall
cause such payor to furnish, to the Paying Agent and the Documentation Agent,
at such address, an opinion of counsel acceptable to the Paying Agent stating
that such payment is exempt from Taxes. For purposes of this subsection (d)
and subsection (e), the terms "United States" and "United States person" shall
have the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender, and on the date
of the Assignment and Acceptance pursuant to which it becomes a Lender in the
case of each other Lender, and from time to time thereafter if requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide the Borrower with two original Internal Revenue
Service forms 1001, 4224 or W-8 as appropriate, or any successor or other form
prescribed by the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States withholding tax on
payments pursuant to this Agreement or the Notes. If any Lender which is
not a "United States person" determines that it is unable to submit to the
Borrower or the Documentation Agent any form or certificate that such
Lender is otherwise required to submit pursuant to this Section 2.12(e), or
that it is required to withdraw or cancel any such form or certificate, or
that any such form or certificate previously submitted has otherwise become
ineffective or inaccurate, such Lender shall promptly notify the Borrower
and the Documentation Agent of such fact. In addition, if a Lender
provides a form W-8 (or any successor or related form) to the Documentation
Agent and the Borrower pursuant to this Section 2.14(e), such Lender shall
also provide a certificate stating that such Lender is not a "bank" within
the meaning of section 881(c)(3)(A) of the Internal Revenue Code of 1986
and shall promptly notify the Documentation Agent and the Borrower if such
Lender determines that it is no longer able to provide such certification.
If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the appropriate
form certifying that a lesser rate applies, whereupon withholding tax at
such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; provided, however, that, if at the date of the
Assignment and Acceptance pursuant to which a Lender becomes a party to
this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall
include (in addition to withholding taxes that may be imposed in the future
or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date.
Upon the reasonable request of the Borrower or the Documentation Agent,
each Lender that has not provided the forms or other documents, as provided
above, on the basis of being a United States person shall submit to the
Borrower and the Documentation Agent a certificate to the effect that it is
such a "United States person" (as defined in Section 7701(a)(30) of the
Internal Revenue Code).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.12(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which such Lender became a Lender hereunder or if such form
otherwise is not required under the first sentence of subsection (e) above
because the Borrower has not requested in writing such form subsequent to the
date on which such Lender became a Lender hereunder), such Lender shall not be
entitled to indemnification under Section 2.12(a) or (c) with respect to Taxes
imposed by the United States; provided, however, that should a Lender become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as the Lender shall reasonably request to
assist the Lender to recover such Taxes.
(g) Any Lender or Agent claiming any additional amounts payable
pursuant to this Section 2.12 shall use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
(h) Within 60 days after the written request of the Borrower,
each Lender Party or Agent shall execute and deliver to the Borrower such
certificates or forms as are reasonably requested by the Borrower in such
request, which can be furnished consistent with the facts and which are
reasonably necessary to assist the Borrower in applying for refunds of Taxes
paid by the Borrower hereunder or making payment of Taxes hereunder; provided,
however, that no Lender Party or Agent shall be required to furnish to the
Borrower any financial or other information which it considers confidential.
The cost of preparing any materials referred to in the previous sentence shall
be borne by the Borrower. If a Lender Party or Agent determines in good faith
that it has received a refund of any Taxes or Other Taxes with respect to
which Borrower has made a payment of additional amounts, such Lender Party or
Agent shall pay to the Borrower an amount that such Lender Party or Agent
determines in good faith to be equal to the net benefit, after tax, that was
obtained by such Lender Party or Agent (as the case may be) as a consequence
of such refund.
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of Obligations owing to it
(other than pursuant to Section 2.09, 2.12 or 8.04(c)) in excess of its
ratable share of payments on account of Obligations obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in Obligations owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.13 may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to refinance amounts outstanding under the Existing Credit Agreement,
to provide working capital for the Borrower and for general corporate purposes
of the Borrower and its Subsidiaries.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any
one time, (i) any Lender shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower
may, so long as no Default shall occur or be continuing at such time and to
the fullest extent permitted by applicable law, set off and otherwise apply
the Obligation of the Borrower to make such payment to or for the account of
such Defaulting Lender against the Obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the Borrower
shall so set off and otherwise apply its Obligation to make any such payment
against the Obligation of such Defaulting Lender to make any such Defaulted
Advance on or prior to such date, the amount so set off and otherwise applied
by the Borrower shall constitute for all purposes of this Agreement and the
other Loan Documents an Advance by such Defaulting Lender made on the date
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance shall be a
Base Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01,
even if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Paying Agent at any time the
Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set
off and otherwise applied by the Borrower pursuant to this subsection (a),
shall be applied by the Paying Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to any Agent or any of the other Lenders and (iii) the Borrower shall make any
payment hereunder or under any other Loan Document to the Paying Agent for the
account of such Defaulting Lender, then the Paying Agent may, on its behalf or
on behalf of such other Lenders and to the fullest extent permitted by
applicable law, apply at such time the amount so paid by the Borrower to or
for the account of such Defaulting Lender to the payment of each such
Defaulted Amount to the extent required to pay such Defaulted Amount. In the
event that the Paying Agent shall so apply any such amount to the payment of
any such Defaulted Amount on any date, the amount so applied by the Paying
Agent shall constitute for all purposes of this Agreement and the other Loan
Documents payment, to such extent, of such Defaulted Amount on such date. Any
such amount so applied by the Paying Agent shall be retained by the Paying
Agent or distributed by the Paying Agent to such other Lenders, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Paying Agent and such other Lenders and, if the amount of
such payment made by the Borrower shall at such time be insufficient to pay
all Defaulted Amounts owing at such time to the Paying Agent and the other
Lenders, in the following order of priority:
(i) first, to the Agents for any Defaulted Amount then owing to
the Agents; and
(ii) second, to any other Lenders for any Defaulted Amounts then
owing to such other Lenders, ratably in accordance with such respective
Defaulted Amounts then owing to such other Lenders.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Paying Agent pursuant to this subsection (b), shall be applied by the Paying
Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any other
Lender shall be required to pay or distribute any amount hereunder or under
any other Loan Document to or for the account of such Defaulting Lender, then
the Borrower or such other Lender shall pay such amount to the Paying Agent to
be held by the Paying Agent, to the fullest extent permitted by applicable
law, in escrow or the Paying Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds
held by the Paying Agent in escrow under this subsection (c) shall be
deposited by the Paying Agent in an account with the Paying Agent, in the name
and under the control of the Paying Agent, but subject to the provisions of
this subsection (c). The terms applicable to such account, including the rate
of interest payable with respect to the credit balance of such account from
time to time, shall be the Paying Agent's standard terms applicable to escrow
accounts maintained with it. Any interest credited to such account from time
to time shall be held by the Paying Agent in escrow under, and applied by the
Paying Agent from time to time in accordance with the provisions of, this
subsection (c). The Paying Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to any Agent or any other Lender, as and when
such Advances or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the
following order of priority:
(i) first, to the Agents for any amount then due and payable by
such Defaulting Lender to the Agents hereunder;
(ii) second, to any other Lenders for any amount then due and
payable by such Defaulting Lender to such other Lenders hereunder,
ratably in accordance with such respective amounts then due and payable
to such other Lenders; and
(iii) third, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender that is a Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Paying Agent in escrow
at such time with respect to such Lender shall be distributed by the Paying
Agent to such Lender and applied by such Lender to the Obligations owing to
such Lender at such time under this Agreement and the other Loan Documents
ratably in accordance with the respective amounts of such Obligations
outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the
Borrower may have against such Defaulting Lender with respect to any Defaulted
Advance and that any Agent or any Lender may have against such Defaulting
Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01. Sections 2.01 of this Agreement shall become effective on and as of the
first date (the "Effective Date") on which the following conditions precedent
have been satisfied:
(a) The Lenders shall be satisfied with (1) the final terms and
conditions of the transactions contemplated hereby, including, without
limitation, all legal and tax aspects thereof, and (ii) the corporate
and legal structure and capitalization of each Loan Party, including,
without limitation, the terms and conditions of the charter, bylaws and
each class of capital stock of each Loan Party and of each agreement or
instrument relating to such structure or capitalization.
(b) The Lenders shall be satisfied that all obligations of the
Borrower under the Existing Credit Agreement, whether for principal,
interest, fees, expenses or otherwise, have been or, concurrently with
the making of the initial Borrowing, will be paid in full in cash, all
"Commitments" (as defined therein) terminated and all Liens securing
such Obligations released.
(c) The Lenders shall be satisfied with the price per share and
the number of shares issued and all other legal and tax aspects of the
equity offering by Group of shares of its common stock (the "Equity
Offering"); the Equity Offering shall have been consummated and Group
shall have received at least $140,000,000 in net cash proceeds
therefrom.
(d) There shall have occurred no Material Adverse Change since
January 7, 1995 and all information provided by or on behalf of the
Borrower to the Lenders prior to the delivery of their commitments shall
be true and correct in all material aspects.
(e) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lenders) and shall remain in effect, all
applicable waiting periods shall have expired without any action being
taken by any competent authority and no law or regulation shall be
applicable in the reasonable judgment of the Lenders that restrains,
prevents or imposes materially adverse conditions upon the transactions
contemplated hereby.
(f) The Borrower shall have paid all accrued fees and expenses
of the Managing Agents and the Lenders (including the accrued fees and
expenses of counsel to the Agents).
(g) On the Effective Date, the following statements shall be
true and the Documentation Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in each
Loan Document are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(h) The Documentation Agent shall have received on or before the
Effective Date the following, each dated such day, in form and substance
satisfactory to the Documentation Agent and (except for the Notes) in
sufficient copies for each Lender:
(i) The Notes to the order of the Lenders, respectively.
(ii) A guaranty in substantially the form of Exhibit F (as
amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "Group Guaranty"), duly executed by
Group.
(iii) A guaranty in substantially the form of Exhibit G
(together with each other guaranty delivered pursuant to Section
5.01(k), in each case as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the
"Subsidiary Guaranty"), duly executed by the Guarantors (other
than Group).
(iv) Certified copies of the resolutions of the Board of
Directors of the Borrower and each other Loan Party approving this
Agreement, the Notes and each other Loan Document to which it is
or is to be a party, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to this Agreement, the Notes and each other Loan
Document.
(v) A copy of a certificate of the Secretary of State of
the jurisdiction of incorporation of each Loan Party, dated
reasonably near the date of the initial Borrowing, listing the
charter of such Loan Party and each amendment thereto on file in
his office and certifying that (A) such amendments are the only
amendments to such Loan Party's charter on file in his office, (B)
such Loan Party has paid all franchise taxes to the date of such
certificate and (C) such Loan Party is duly incorporated and in
good standing under the laws of such jurisdiction.
(vi) A certificate of the Borrower and each other Loan
Party, signed on behalf of the Borrower and such other Loan Party
by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the date of the initial Borrowing (the
statements made in which certificate shall be true on and as of
the date of the initial Borrowing), certifying as to (A) the
absence of any amendments to the charter of the Borrower or such
other Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.01(h)(v), (B) a true and
correct copy of the bylaws of the Borrower and such other Loan
Party as in effect on the date of the initial Borrowing and (C)
the due incorporation and good standing of the Borrower and such
other Loan Party as a corporation organized under the laws of the
applicable jurisdiction, and the absence of any proceeding for the
dissolution or liquidation of the Borrower or such other Loan
Party.
(vii) A certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying the
names and true signatures of the officers of the Borrower and such
other Loan Party authorized to sign this Agreement, each other
Loan Document to which they are or are to be parties and the other
documents to be delivered hereunder and thereunder.
(viii)Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lenders
shall have requested, including, without limitation,
information as to possible contingent liabilities, tax matters,
environmental matters, obligations under ERISA and Welfare
Plans, collective bargaining agreements and other arrangements
with employees, annual financial statements dated January 7,
1995, interim financial statements dated the end of the most
recent fiscal quarter for which financial statements are
available (or, in the event the Lenders' due diligence review
reveals material changes since such financial statements, as of
a later date within 45 days of the day of the initial
Borrowing), pro forma financial statements and forecasts
prepared by management of the Borrower, in form and substance
satisfactory to the Lenders, of balance sheets, of operations
and stockholders' equity (deficit) and statements of cash flow
on a monthly basis for the first year following the day of the
initial Borrowing and on an annual basis for each year
thereafter until the Termination Date.
(ix) A favorable opinion of Skadden, Arps, Slate, Xxxxxxx &
Xxxx, counsel for the Loan Parties, in substantially the form of
Exhibit E hereto and as to such other matters as any Lender
through the Managing Agents may reasonably request.
(x) A favorable opinion of Shearman & Sterling, counsel
for the Managing Agents, in form and substance satisfactory to the
Managing Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Lender to make an Advance on the occasion
of each Borrowing (including the initial Borrowing) shall be subject to the
further conditions precedent that on the date of such Borrowing or
issuance:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing and the acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Borrowing or issuance such statements are true):
(i) the representations and warranties contained in each
Loan Document are correct in all material respects on and as of
the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing or issuance,
in which case such representations and warranties shall be correct
as of such specific date, and
(ii) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the
proceeds therefrom, that constitutes a Default; and
(b) the Documentation Agent shall have received such other
approvals or documents, if any, as any Lender through the Documentation
Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified in Section
3.01, each Lender shall be deemed to have consented to, approved or
accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory
to the Lenders unless an officer of the Documentation Agent responsible for
the transactions contemplated by Loan Documents shall have received notice
from such Lender prior to the date that the Borrower, by notice to the
Lenders, designates as the proposed Effective Date, specifying its
objection thereto. The Paying Agent shall promptly notify the Lenders of
the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
Each of Group and the Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect and (iii) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly
or indirectly) by such Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. Each such Subsidiary (i) is a
corporation duly organized or a limited liability corporation duly
formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires
it to so qualify or be licensed except where the failure to so qualify
or be licensed would not have a Material Adverse Effect and (iii) has
all requisite corporate power and authority to own or lease and operate
its properties and to carry on its business as now conducted and as
proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes and each other Loan Document to which it is
or is to be a party, and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate powers, have
been duly authorized by all necessary corporate action, and do not (i)
contravene such Loan Party's charter or by-laws, (ii) violate any law
(including, without limitation, the Securities Exchange Act of 1934 and
the Racketeer Influenced and Corrupt Organizations Chapter of the
Organized Crime Control Act of 1970), rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of,
or constitute a default under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or
affecting any Loan Party, any of its Subsidiaries or any of their
properties or (iv) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any Loan Party
or any of its Subsidiaries. No Loan Party or any of its Subsidiaries is
in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which is or would be
reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery,
recordation, filing or performance by any Loan Party of this Agreement,
the Notes or any other Loan Document to which it is or is to be a party,
or for the consummation of the transactions contemplated hereby.
(e) This Agreement has been, and each of the Notes and each
other Loan Document when delivered hereunder will have been, duly
executed and delivered by each Loan Party party thereto. This Agreement
is, and each of the Notes and each other Loan Document when delivered
hereunder will be, the legal, valid and binding obligation of each Loan
Party party thereto, enforceable against such Loan Party in accordance
with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought in equity or
at law).
(f) The Consolidated balance sheets of Group and its
Subsidiaries as at January 7, 1995, and the related Consolidated
statements of operations, stockholders' equity and cash flow of Group
and its Subsidiaries for the fiscal years then ended, accompanied by an
opinion of Ernst & Young, independent public accountants, and the
Consolidated balance sheet of Group and its Subsidiaries as at July 8,
1995, and the related Consolidated statements of operations,
stockholders' equity and cash flow of Group and its Subsidiaries for the
six months then ended, duly certified by the chief financial officer of
Group, copies of which have been furnished to each Lender, fairly
present, subject, in the case of said balance sheet as at July 8, 1995,
and said statements of operations, stockholders' equity and cash flow
for the six months then ended, to year-end audit adjustments, the
Consolidated financial condition of Group and its Subsidiaries as at
such dates and the Consolidated results of the operations of Group and
its Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent
basis, and since January 7, 1995, there has been no Material Adverse
Change.
(g) The Consolidated forecasted balance sheets and statements of
operations, stockholders' equity and cash flows of Group and its
Subsidiaries delivered to the Lenders pursuant to Section 3.01(h)(viii)
or 5.01(j) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in the light of conditions
existing at the time of delivery of such forecasts, and represented, at
the time of delivery, the Borrower's best estimate of its future
financial performance, provided, however, that such forecasts do not
constitute a guaranty of future financial performance.
(h) Neither the Information Memorandum (excluding the analyst's
report contained therein which was not furnished by the Borrower) nor
any other written information, exhibit or report furnished by any Loan
Party to any Agent or Lender in connection with the negotiation of the
Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements made therein not misleading (after
giving effect to any supplemental information that is furnished to such
Agent or Lender which updates, amends or modifies the information set
forth therein).
(i) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) purports to affect the
legality, validity or enforceability of this Agreement, any Note or any
other Loan Document or the consummation of the transactions contemplated
hereby or (ii) is or would be reasonably likely to have a Material
Adverse Effect.
(j) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
(l) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan of any Loan Party or any of its ERISA
Affiliates.
(m) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change
in the funding status of any such Plan since such date.
(n) Neither any Loan Party nor any of its ERISA Affiliates has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan.
(o) Neither any Loan Party nor any of its ERISA Affiliates has
been notified by the sponsor of a Multiemployer Plan of any Loan Party
or any of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(p) As of the date hereof, the aggregate annualized cost
(including, without limitation, the cost of insurance premiums) with
respect to post-retirement benefits under Welfare Plans for which the
Loan Parties and their Subsidiaries are liable does not exceed
$5,000,000.
(q) Except as described on Schedule 4.01(q): (i) the operations
and properties of each Loan Party and each of its Subsidiaries comply
with all applicable Environmental Laws and all Environmental Permits
have been obtained and are in effect for the operations and properties
of each Loan Party and its Subsidiaries and each Loan Party and its
Subsidiaries are in compliance with all such Environmental Permits,
except for such noncompliance with applicable Environmental Laws or
Environmental Permits or failure to have obtained Environmental Permits
as would not be reasonably likely to have a Material Adverse Effect and
(ii) no circumstances exist that are or would be reasonably likely to
(i) form the basis of an Environmental Action against any Loan Party or
any of its Subsidiaries or any of their properties or (ii) cause any
such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law, that, in each case,
would reasonably be likely to have a Material Adverse Effect.
(r) Except as described on Schedule 4.01(r), none of the
properties of any Loan Party or any of its Subsidiaries is listed or, to
the Borrower's knowledge, proposed for listing on the National
Priorities List under CERCLA or any analogous state list of sites
requiring investigation or cleanup, and no underground storage tanks,
as such term is defined in 42 U.S.C.Section 6991, are located on any
property of any Loan Party or any of its Subsidiaries in violation of
any applicable Environmental Laws.
(s) Except as described on Schedule 4.01(s), neither any Loan
Party nor any of its Subsidiaries has transported or arranged for the
transportation of any Hazardous Materials to any location that is listed
or proposed for listing on the National Priorities List under CERCLA or
any analogous state list, Hazardous Materials have not been generated,
used, treated, handled, stored or disposed of on, or released or
transported to or from, any property of any Loan Party or any of its
Subsidiaries, by any Loan Party or any of its Subsidiaries or, to the
knowledge of the Borrower, by any other third party, except in material
compliance with all applicable Environmental Laws and Environmental
Permits, and all other wastes generated at any such properties by any
Loan Party or any of its Subsidiaries or, to the knowledge of the
Borrower, by any other third party, have been disposed of in compliance
with all Environmental Laws and Environmental Permits, except, in each
of the above circumstances, where actions or activities not in
conformance with this representation would not be reasonably likely to
have a Material Adverse Effect.
(t) Each of Group and each of its Subsidiaries has filed all
income tax returns (federal, state, local and foreign) required to be
filed by it, and all other material tax returns (federal, state, local
and foreign), and has paid or caused to be paid all taxes shown thereon
to be due for the periods covered thereby, including interest and
penalties, or provided reserves for payment thereof to the extent
required under GAAP, other than taxes being contested in good faith and
by appropriate proceedings with respect to which adequate reserves in
accordance with GAAP have been established and except where failure to
so file or pay would not have a Material Adverse Effect.
(u) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such
Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder,
Group and the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws, except where
the failure so to comply would not have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, would reasonably be likely to by law become a Lien upon
its property; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and by
proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors so long
as any such amount, when taken together with any amount required to be
paid as described in clause (b) of the definition of "Permitted Liens",
shall not exceed $10 million.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that Group and its Subsidiaries may consummate any
merger, consolidation or voluntary dissolution or liquidation permitted
under Section 5.02(b).
(e) Visitation Rights. At any reasonable time and from time to
time, permit any Agent or any of the Lenders or any agents or
representatives thereof, upon reasonable notice to the Borrower to
examine and make copies of and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any of its Subsidiaries with any of their officers or
directors and with their independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, (i) other than with respect to
transactions between the Borrower and its wholly owned Subsidiaries,
all transactions otherwise permitted under the Loan Documents with
any of their Affiliates on terms that are fair and reasonable and no
less favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a Person not an
Affiliate and (ii) with respect to transactions between the Borrower
and its wholly owned Subsidiaries, all transactions otherwise
permitted under the Loan Documents on terms that are no less
favorable to the Borrower than it would obtain in a comparable arm's-
length transaction with a Person not an Affiliate, provided, however,
that the foregoing restrictions shall not apply to transactions
pursuant to any agreement referred to in Section 5.02(a)(ii) and
provided, further, that the Borrower shall not engage in any
transaction with any such Subsidiary that would render such
Subsidiary insolvent or cause a default under, or a breach of, any
material contract to which such Subsidiary is a party.
(i) Implied Senior Rating. No less frequently than once during
every Fiscal Year, obtain from S&P (or, if unavailable, from Xxxxx'x) an
update of the Implied Senior Rating and deliver a letter to the Managing
Agents from S&P (or Xxxxx'x, as the case may be) advising the Managing
Agents of the current Implied Senior Rating.
(j) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days
after the end of each of the first three quarters of each Fiscal
Year, Consolidated and consolidating balance sheets of Group and
its Subsidiaries as of the end of such quarter and Consolidated
and consolidating statements of income and Consolidated statements
of cash flows of Group and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with
the end of such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the Borrower as
having been prepared in accordance with generally accepted
accounting principles and a certificate of the chief financial
officer of Group as to compliance with the terms of this Agreement
and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03, provided that in the
event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements
to GAAP;
(ii) as soon as available and in any event within 90 days
after the end of each Fiscal Year of Group, a copy of the annual
audit report for such year for Group and its Subsidiaries,
containing Consolidated balance sheet of Group and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, in each case accompanied by an
opinion acceptable to the Required Lenders by any Approved
Accounting Firm or by other independent public accountants
acceptable to the Required Lenders, and a certificate of the chief
financial officer or Group as to compliance with the terms of this
Agreement setting forth in reasonable detail the calculations
necessary to demonstrate compliance with Section 5.03 provided
that in the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section 5.03, a
statement of reconciliation conforming such financial statements
to GAAP;
(iii) as soon as available and in any event no later than 45
days after the end of each Fiscal Year, forecasts prepared by
management of the Borrower, in form satisfactory to the Managing
Agents, of balance sheets, income statements and cash flow
statements on a monthly basis for the fiscal year following such
fiscal year then ended and on an annual basis for each fiscal year
thereafter until the Termination Date;
(iv) as soon as possible and in any event within two
Business Days after the occurrence of each Default continuing on
the date of such statement, a statement of the chief financial
officer of the Borrower setting forth details of such Default and
the action that the Borrower has taken and proposes to take with
respect thereto;
(v) promptly after the sending or filing thereof, copies
of all reports that the Borrower sends to any of its
securityholders, and copies of all reports and registration
statements that Group or any Subsidiary files with the Securities
and Exchange Commission or any national securities exchange;
(vi) promptly after the commencement thereof, notice of all
actions and proceedings before any court, governmental agency or
arbitrator affecting the Borrower or any of its Subsidiaries of
the type described in Section 4.01(i);
(vii) (i) promptly and in any event within 10 days after the
Borrower or any ERISA Affiliate knows or has reason to know that
any ERISA Event has occurred, a statement of the chief financial
officer of the Borrower describing such ERISA Event and the
action, if any, that the Borrower or such ERISA Affiliate has
taken and proposes to take with respect thereto and (ii) on the
date any records, documents or other information must be furnished
to the PBGC with respect to any Plan pursuant to Section 4010 of
ERISA, a copy of such records, documents and information;
(viii)promptly and in any event within two Business Days
after receipt thereof by the Borrower or any ERISA Affiliate,
copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer
any Plan;
(ix) promptly and in any event within 30 days after the
receipt thereof by the Borrower or any ERISA Affiliate, a copy of
the annual actuarial report for each Plan the funded current
liability percentage (as defined in Section 302(d)(8) of ERISA) of
which is less than 90% or the unfunded current liability of which
exceeds $5,000,000;
(x) promptly and in any event within five Business Days
after receipt thereof by the Borrower or any ERISA Affiliate from
the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within
the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (C) the amount of liability incurred, or that may be incurred,
by the Borrower or any ERISA Affiliate in connection with any
event described in clause (A) or (B);
(xi) promptly after the assertion or occurrence thereof,
notice of any Environmental Action against or of any noncompliance
by Group or any of its Subsidiaries with any Environmental Law or
Environmental Permit that would reasonably be expected to have a
Material Adverse Effect;
(xii) within five Business Days after receipt thereof by any
Loan Party, copies of each notice from S&P (or Xxxxx'x, if S&P has
ceased to provided Implied Senior Ratings) indicating any change
in the Implied Senior Rating;
(xiii)such other information respecting the Borrower or any
of its Subsidiaries as any Lender through the Managing Agents may
from time to time reasonably request.
(k) Covenant To Guarantee Obligations. At such time as any new
direct or indirect Domestic Subsidiary is formed or acquired, cause such
new Subsidiary that is a wholly owned Subsidiary to (i) within 10 days
thereafter or such later time as the Borrower and the Documentation
Agent shall agree (but in any event no later than 30 additional days
thereafter), duly execute and deliver to the Documentation Agent
guarantees, in substantially the form of Exhibit G and otherwise in form
and substance reasonably satisfactory to the Documentation Agent,
guaranteeing the Borrower's Obligations under the Loan Documents,
provided, however, that the foregoing shall not apply to (A) joint
ventures or (B) any Subsidiary organized solely for the purpose of
entering into any agreements and transactions referred to in Section
5.02(a)(ii) to the extent that such agreements require that such
Subsidiary not be a Guarantor hereunder, and (ii) within 30 days
thereafter or such later time as the Borrower and the Documentation
Agent shall agree (but in any event no later than 30 additional days
thereafter), deliver to the Documentation Agent a signed copy of a
favorable opinion, addressed to the Documentation Agent, of counsel for
the Loan Parties acceptable to the Documentation Agent as to the
documents contained in clause (i) above, as to such guarantees being
legal, valid and binding obligations of such Subsidiaries enforceable in
accordance with their terms and as to such other matters as the
Documentation Agent may reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, neither Group
nor the Borrower will at any time:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or
with respect to any of its properties of any character, whether now
owned or hereafter acquired, or assign, or permit any of its
Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) Liens on receivables of any kind (and in property
securing or otherwise supporting such receivables) in connection
with agreements for limited recourse sales by the Borrower or any
of its Subsidiaries for cash of such receivables or interests
therein, provided that (A) any such agreement is of a type and on
terms customary for comparable transactions in the good faith
judgment of the Board of Directors of the Borrower, (B) such
agreement does not create any interest in any asset other than
receivables (and property securing or otherwise supporting such
receivables) and proceeds of the foregoing, and (C) on any date of
determination, the aggregate face value of such receivables shall
not exceed at any time outstanding $150,000,000.
(iii) other Liens securing Debt in an aggregate principal
amount outstanding at any time not to exceed 15% of Consolidated
net tangible assets of Group and its Subsidiaries at such time.
(b) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to
do so or to voluntarily liquidate, except that (i) any Domestic
Subsidiary of Group may merge into or consolidate with any other
Domestic Subsidiary of Group, provided that the person formed thereby
shall be a direct or indirect wholly owned Domestic Subsidiary of Group,
(ii) any Foreign Subsidiary of Group may merge into or consolidate with
any other Foreign Subsidiary of Group, provided that the Person formed
thereby shall be a direct or indirect wholly owned Foreign Subsidiary
of Group, (iii) any Domestic Subsidiary of Group may merge into or
consolidate with Group, (iv) the Borrower may merge into or consolidate
with any other Person so long as the Borrower is the surviving
corporation and (v) any Subsidiary of Group may voluntarily liquidate
and distribute its assets to Group or any direct or indirect wholly
owned Domestic Subsidiary of Group, provided, in each case, that no
Default shall have occurred and be continuing at the time of such
proposed transaction or would result therefrom.
(c) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Debt other than:
(i) Debt under the Loan Documents;
(ii) Debt secured by Liens permitted by Section
5.02(a)(iii) hereof;
(iii) Debt incurred on terms customary for comparable
transactions in the good faith judgment of the Board of Directors
of the Borrower in connection with any obligation under or
resulting from any agreement referred to in Section 5.02(a)(ii);
(iv) Debt of Foreign Subsidiaries (and, without
duplication, guarantees thereof) not to exceed an aggregate of
$50,000,000 outstanding at any time, in addition to existing
Debt of Foreign Subsidiaries set forth on Schedule 5.02(c);
(v) unsecured Debt (other than letters of credit) of the
Borrower, Group or any Domestic Subsidiary that is a Guarantor;
(vi) Debt under the Trade Credit Facility in an aggregate
principal amount not to exceed $100,000,000 at any time
outstanding;
(vii) Letters of credit, including letters of credit which
may be secured pursuant to Liens permitted by Section
5.02(a)(iii), and any refinancing or renewals thereof, in an
aggregate stated amount not to exceed $100,000,000 at any time
outstanding in addition to amounts outstanding under the "Letter
of Credit Facility" (as such term is defined in the Five Year
Credit Facility);
(viii)Debt secured by Liens permitted by Section 5.02(a)(i)
hereof, but not any increase in amount thereof;
(ix) Debt under the Five Year Credit Facility and
guarantees thereof, and any refinancing or renewals thereof;
(xi) in the case of any of its Subsidiaries, Debt owing to
Group or to any of its Subsidiaries; and
(xi) Debt of Group or any of its Subsidiaries permitted
under Section 5.02(f).
No incurrence of Debt shall be permitted unless the Borrower shall be in
compliance with each of the covenants set forth in Section 5.03 both
before and after giving effect thereto.
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except:
(i) sales of inventory in the ordinary course of its
business;
(ii) sales, leases, transfers or other disposals of assets,
or grants of any option or other right to purchase, lease or
otherwise acquire assets following the Effective Date for fair
value (valued at the time of any such sale, lease transfer or
other disposal), in an aggregate amount from the Effective Date
not to exceed 10% of the total consolidated assets of the Borrower
and its Subsidiaries as valued at September 30, 1995, the fair
value of such assets shall have been determined in good faith by
the Board of Directors of the Borrower;
(iii) sales of assets on terms customary for comparable
transactions in the good faith judgment of the Board of Directors
of the Borrower pursuant to agreements referred to in Section
5.02(a)(ii);
(iv) transfers of assets between Group and its
Subsidiaries, and, in the case of the Borrower, subject to Section
5.02(g)(ii);
(v) sales of assets listed on Schedule 5.02(d) hereto;
(vi) sales of assets and properties of Group and its
Subsidiaries in connection with sale-leaseback transactions
otherwise permitted hereunder (including, without limitation,
under Section 5.02(c));
(vii) the sale or discount of accounts (A) owing by Persons
incorporated, residing or having their principal place of business
in the United States in an aggregate amount not exceeding
$5,000,000 in face amount per calendar year or (B) that are past
due by more than 90 days, provided that the sale or discount of
such accounts is in the ordinary course of the Borrower's business
and consistent with prudent business practices;
(viii)the licensing of trademarks and trade names by the
Borrower or any of its Subsidiaries in the ordinary course of its
business, provided that such licensing takes place on an
arm's-length basis; and
(ix) the rental by the Borrower and its Subsidiaries, as
lessors, in the ordinary course of their respective businesses, on
an arm's-length basis, of real property consisting of showrooms,
retail space, administrative space and other real property, in
each case under leases (other than Capitalized Leases).
(e) Dividends, Etc. Declare or make any dividend payment or
other distribution of assets, properties, cash, rights, obligations or
securities on account of any shares of any class of capital stock of
Group, or purchase, redeem or otherwise acquire for value (or permit any
of its Subsidiaries to do so) any shares of any class of capital stock
of Group or any warrants, rights or options to acquire any such shares,
now or hereafter outstanding, except that, so long as no Default shall
have occurred and be continuing at the time of any action described
below or would result therefrom, Group may (i) declare and make any
dividend payment or other distribution payable in capital stock of Group
(including stock splits), (ii) purchase, redeem or otherwise acquire
shares of its capital stock or warrants, rights or options to acquire
any such shares with the proceeds received from the substantially
concurrent issue of new shares of its capital stock, (iii) declare or
pay cash dividends or other distributions to its stockholders or
purchase, redeem, retire, defease or otherwise acquire shares of its
capital stock or warrants, rights or options to acquire any such shares
for cash solely out of 50% of the net income of Group and its
Subsidiaries beginning with the Fiscal Year ended on or about December
31, 1993 and computed on a cumulative Consolidated basis, plus the
proceeds of Capital Stock Issuances by Group completed after the
Effective Date, (iv) purchase, redeem or otherwise acquire or issue or
sell shares of its capital stock or warrants, rights or options to
acquire any such shares in each case pursuant to such management,
employee or director stock option or stock purchase programs as are
approved by the Board of Directors of Group and, if required by law, the
shareholders of Group, and (v) issue stock to effect Investments
permitted by and subject to the terms of Sections 5.02(f) and (g).
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) Investments by Group in its wholly owned Foreign
Subsidiaries in a net aggregate amount (after giving effect to any
dividends or other returns of capital received from any such
Foreign Subsidiaries) invested from the date hereof not to exceed
$125,000,000;
(ii) Investments by Group in its wholly owned Domestic
Subsidiaries;
(iii) the Guaranties;
(iv) Investments in Cash Equivalents;
(v) other Investments in a net aggregate amount (after
giving effect to any dividends or other returns of capital)
invested from the date hereof not to exceed $50,000,000;
(vi) endorsement of negotiable instruments for deposit or
collection in the ordinary course of business;
(vii) Investments representing stock or obligations issued
to Group or any of its Subsidiaries in settlement of claims
against any other Person by reason of a composition or
readjustment of debt or a reorganization of any debtor of Group or
such Subsidiary;
(viii) Investments representing the Debt of any Person
owing as a result of the sale by Group or any of its Subsidiaries
in the ordinary course of business of products or services (on
customary trade terms);
(ix) loans or advances, not to exceed $10,000,000 in the
aggregate at any one time outstanding, to (A) employees of the
Borrower and its Subsidiaries as travel advances, short-term loans
or relocation expenses, and (B) to employees and independent sales
representatives as commission advances;
(x) Investments outstanding on the date hereof and
described on Schedule 5.02(f), but not any additional investments
therein (other than as set forth thereon);
(xi) Investments represented by the "L/C Cash Collateral
Account" (as such term is defined in the Five Year Credit
Facility) and the other bank accounts permitted hereunder;
(xii) Investments in Star/Warnaco International, a Cayman
Islands general partnership, or other ventures reasonably related
thereto, in a net aggregate amount (after giving effect to any
dividends or other returns of capital) invested from the date
hereof not to exceed $5,000,000 from the date hereof;
(xiii)Investments made with the capital stock of Group or
any of its Subsidiaries or with the proceeds of any Capital Stock
Issuance by Group; and
(xiv) Investments otherwise permitted under Section 5.02(c).
(g) Nature of Business. (i) Make, or permit any of its
Subsidiaries to make, (A) any change in the nature of its business as
carried on at the date hereof in a manner materially adverse to the
Agents and the Lenders) or (B) any investments, including, without
limitation, Investments other than in apparel manufacturing or
wholesaling businesses or apparel accessories manufacturing or
wholesaling businesses (or in related retail businesses on a basis
consistent with past practices) except pursuant to Sections 5.02(f)(v)
and (xii), or (ii) transfer, in aggregate from the Effective Date, from
the Borrower to Group or to any of the Subsidiaries of Group other than
the Borrower operating assets (valued at the time of any such transfer)
in excess of 20% of the Consolidated assets of Group and its
Subsidiaries as valued at September 30, 1995, provided, however, that
the limitation of this clause (ii) shall not apply to mergers,
consolidations or liquidations permitted under Section 5.02(b).
(h) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies
(except as required or permitted by the Financial Accounting Standards
Board or generally accepted accounting principles), reporting practices
or Fiscal Year.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, Group and the
Borrower will:
(a) Minimum Net Worth. Maintain at all times during each Fiscal
Quarter Net Worth of not less than $225,000,000, plus 50% of cumulative
Consolidated net income (if any) but without deduction for net losses,
of Group and its Subsidiaries (with cumulative Consolidated net income
calculated from January 7, 1995 through the date on which Group receives
an Implied Senior Rating of A-), plus the aggregate amount of any
additions to the Consolidated stockholders' equity of Group and its
Subsidiaries made during such period as a result of any Capital Stock
Issuance.
(b) Leverage Ratio. Maintain, as of the end of each Fiscal
Quarter, a ratio of Total Debt to the sum of Total Debt plus Net Worth
of not greater than the amount set forth below for each period set forth
below:
Fiscal Quarter
Ending On Or About Ratio
------------------ -----
December 31, 1995 0.550:1.00
March 31, 1996 0.550:1.00
June 30, 1996 0.550:1.00
September 30, 1996 0.550:1.00
December 31, 1996 and thereafter 0.500:1.00
(c) Fixed Charge Coverage Ratio. Maintain, as of the end of
each period of four consecutive Fiscal Quarters, a Fixed Charge Coverage
Ratio of not less than the amount set forth below for each period set
forth below:
Four Consecutive Fiscal Quarter
Period Ending On Or About Ratio
------------------------------- -----
December 31, 1995 1.20:1.00
March 31, 1996 1.20:1.00
June 30, 1996 1.20:1.00
September 30, 1996 1.20:1.00
December 31, 1996 1.20:1.00
March 31, 1997 1.25:1.00
June 30, 1997 1.25:1.00
September 30, 1997 1.25:1.00
December 31, 1997 1.25:1.00
March 31, 1998 1.25:1.00
June 30, 1998 1.25:1.00
September 30, 1998 1.25:1.00
December 31, 1998 1.25:1.00
March 31, 1999 and thereafter 1.30:1.00
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower or any other Loan
Party shall fail to pay any interest on any Advance or make any other
payment of fees or other amounts payable under any Loan Document within
three Business Days after the same becomes due and payable; or
(b) Any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when made; or
(c) (i) Group or the Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.01(d) or (k),
5.02 or 5.03, or (ii) any Loan Party shall fail to perform or observe
any other term, covenant or agreement contained in any Loan Document on
its part to be performed or observed if such failure shall remain
unremedied for 30 days (A) after written notice thereof shall have been
given to the Borrower by any Agent or any Lender or (B) after any
officer of the Borrower obtains knowledge thereof; or
(d) Any Loan Party or any of its Subsidiaries shall fail to pay
any principal of or premium or interest on any Debt that is outstanding
in a principal or notional amount of at least $10,000,000 in the
aggregate (but excluding Debt outstanding hereunder) of such Loan Party
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption [or other than as
a result of any event which provides cash to such Loan Party in an
amount sufficient to satisfy such redemption or prepayment]), purchased
or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) Group, the Borrower or any of their Material Subsidiaries
(or any group of Subsidiaries which, in the aggregate, would constitute
a Material Subsidiary) shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any
Group, the Borrower or any of their Subsidiaries (or any group of
Subsidiaries which, in the aggregate, would constitute a Material
Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 30 days,
or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official for, it or
for any substantial part of its property) shall occur; or such Loan
Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect unless the payment of such judgment or
order is covered by insurance and such insurance coverage is not in
dispute.
(g) Any non-monetary judgment or order shall be rendered against
any Loan Party or any of its Subsidiaries that could be reasonably
expected to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(h) any provision of any Loan Document, after delivery thereof
pursuant to Section 3.01 or 5.01(l), shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(i) (A) Group shall at any time cease to have legal and beneficial
ownership of 100% of the capital stock of the Borrower (except if such
parties shall merge); or (B) any Person, or two or more Persons acting
in concert, shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of Group (or other securities convertible into such Voting Stock)
representing 25% or more of the combined voting power of all Voting
Stock of Group (other than Excluded Persons); or (C) any Person, or two
or more Persons acting in concert, shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that,
upon consummation, will result in its or their acquisition of, the power
to exercise, directly or indirectly, a controlling influence over the
management or policies of Group, or control over Voting Stock of Group
(or other securities convertible into such securities) representing 25%
or more of combined voting power of all Voting Stock of Group (other
than Excluded Persons); or (D) Xxxxx X. Xxxxxxx (or, in the case of her
death or disability, another officer or officers of comparable
experience and ability selected by the Borrower within 180 days
thereafter after consultation with the Managing Agents) shall cease
to be Chairman and Chief Executive Officer of Group and the
Borrower); or
(j) any ERISA Event shall have occurred with respect to a Plan of
any Loan Party or any of its ERISA Affiliates, and the sum (determined
as of the date of occurrence of such ERISA Event) of the Insufficiency
of such Plan and the Insufficiency of any and all other Plans of the
Loan Parties and their ERISA Affiliates with respect to which an ERISA
Event shall have occurred and then exist (or the liability of the Loan
Parties and their ERISA Affiliates related to such ERISA Event) exceeds
$10,000,000; or
(k) any Loan Party or any of its ERISA Affiliates shall be in
default, as defined in Section 4219(c)(5) of ERISA, with respect to any
payment of Withdrawal Liability, and the sum of the outstanding balance
of such Withdrawal Liability and the outstanding balance of any other
Withdrawal Liability that any Loan Party or any of its ERISA Affiliates
has incurred exceeds $10,000,000; or
(l) any Loan Party or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of any Loan Party or any
of its ERISA Affiliates, that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and, as a result of such reorganization or termination, the
aggregate annual contributions of the Loan Parties and their ERISA
Affiliates to all Multiemployer Plans that are then in reorganization or
being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans, for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs, by an amount exceeding
$10,000,000;
then, and in any such event, the Managing Agents (i) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to any Loan Party or any of its Material Subsidiaries
(or any group of Subsidiaries which, in the aggregate, would constitute a
Material Subsidiary) under the Federal Bankruptcy Code, (x) the obligation of
each Lender to make Advances shall automatically be terminated and (y) the
Notes, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to such Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement and the other Loan
Documents (including, without limitation, enforcement or collection of the
Notes), each Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting) upon the
instructions of the Required Lenders, and such instructions shall be binding
upon all Lenders and all holders of Notes; provided, however, that no Agent
shall be required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable law. Each Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. None of the Agents nor any of
their directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement and the other Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each Agent: (i) may treat the payee of any Note as the holder
thereof until the Documentation Agent receives and accepts an Assignment and
Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement and the other
Loan Documents; (iv) shall not have any duty to ascertain or to inquire as to
the performance or observance of any of the terms, covenants or conditions of
this Agreement and the other Loan Documents on the part of any Loan Party or
to inspect the property (including the books and records) of any Loan Party
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of or the other
Loan Documents or any other instrument or document furnished pursuant hereto;
and (vi) shall incur no liability under or in respect of this Agreement or the
other Loan Documents by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or telex) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Scotiabank, Citibank and Affiliates. With respect to
its Commitment, the Advances made by it and the Notes issued to it, each of
Scotiabank and Citibank shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Lender and may exercise
the same as though it were not an Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Scotiabank and Citibank
in their individual capacities. Each of Scotiabank and Citibank and their
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any
such Subsidiary, all as if Scotiabank and Citibank were not Agents and without
any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender agrees to indemnify
each Agent (to the extent not reimbursed by the Borrower), ratably according
to the respective principal amounts of the Notes then held by each of them (or
if no Notes are at the time outstanding or if any Notes are held by Persons
that are not Lenders, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against such Agent in any way relating to or arising
out of this Agreement or the other Loan Documents or any action taken or
omitted by such Agent under this Agreement or the other Loan Documents,
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees
to reimburse each Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by such Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement and the other Loan Documents, to the
extent that such Agent is not reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and
may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the
right to appoint a successor Agent with the approval of the Borrower. If
no successor Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Required Lenders' removal of
the retiring Agent, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having
a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
under this Agreement and the other Loan Documents. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same
shall be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that (a) no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders (other than any Lender which is, at such time, a Defaulting
Lender), do any of the following at any time: (i) waive any of the
conditions specified in Section 3.01 or, in the case of the initial
Borrowing, Section 3.02, (ii) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to take any
action hereunder, (iii) release any Material Guarantor, or (vi) amend this
Section 8.01, (b) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender affected by such
amendment, waiver or consent (other than any Lender which is, at such time,
a Defaulting Lender), (i) reduce the principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender or (ii) postpone any date fixed for any payment of principal
of, or interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender and (c) no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and
each affected Lender, increase the Commitment of such Lender or subject
such Lender to any additional obligations; provided further that no
amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect
the rights or duties of such Agent under this Agreement or any Note. Any
request by any Loan Party for an amendment or waiver of any provision of
any Loan Document shall be made by such Loan Party by giving a written
request therefor to the Documentation Agent.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered, if to the Borrower, at its address at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Chief Financial Officer; if to any Initial
Lender or Agent, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a
Lender; or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telegraphed, telecopied, telexed or cabled,
be effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, except that notices and communications to an
Agent pursuant to Article II, III or VII shall not be effective until received
by such Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) Group and the Borrower
agree to pay on demand (i) all reasonable costs and expenses (other than
taxes, including interest, additions to tax and penalties relating thereto,
except to the extent that the same are required to be paid pursuant to Section
2.12 hereof) of the Agents in connection with the preparation, execution,
delivery, administration, modification and amendment of the Loan Documents
(including, without limitation, (A) all due diligence, syndication (including
printing, distribution and bank meetings), transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and all other out-of-pocket expenses and (B) the reasonable
fees and expenses of counsel for the Agents with respect thereto, with respect
to advising the Agents as to their respective rights and responsibilities, or
the protection or preservation of rights or interests, under the Loan
Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and
with respect to presenting claims in or otherwise participating in or
monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally, and any proceeding ancillary thereto) and (ii)
all reasonable costs and expenses (other than taxes, including interest,
additions to tax and penalties relating thereto, except to the extent that the
same are required to be paid pursuant to Section 2.12 hereof) of the Agents
and the Lenders in connection with the enforcement of the Loan Documents,
whether in any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including, without limitation, the reasonable fees and expenses of counsel
for the Agents and each Lender with respect thereto).
(b) Group and the Borrower agree to indemnify and hold harmless
each of the Agents and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, reasonable fees and expenses
of counsel, but other than taxes, including interest, additions to tax and
penalties relating thereto, except to the extent that the same are required
to be paid pursuant to Section 2.12 hereof) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out
of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this
Agreement, the Facilities, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Advances or (ii) the
actual or alleged presence of Hazardous Materials on any property of the
Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to the Borrower or any of its Subsidiaries, in each case whether or
not such investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an Indemnified Party
or any other Person or any Indemnified Party is otherwise a party thereto
and whether or not the transactions contemplated hereby are consummated,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. The Borrower also agrees not to assert
any claim against any Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees, attorneys and agents, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use
of the proceeds of the Advances, except in the event of gross negligence or
willful misconduct on the part of such Agent, Lender or Affiliate.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as
a result of a payment or Conversion pursuant to Section 2.09, 2.10 or 2.12,
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Paying Agent), pay to the Paying Agent for the account of
such Lender any amounts required to compensate such Lender for any additional
losses, costs or expenses that it may reasonably incur as a result of such
payment or Conversion, including, without limitation, any loss (excluding loss
of anticipated profits and taxes, including interest, additions to tax and
penalties relating thereto, except to the extent that the same are required to
be paid pursuant to Section 2.12 hereof), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.09, 2.12 and 8.04 and the agreements and obligations
of any Lender or Agent contained in Section 2.12 shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 to authorize the
Managing Agents to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the Obligations of the Borrower
now or hereafter existing under this Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The rights of each Lender and
its Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01, which shall only become effective upon
satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower, Group and the Agents and when the
Managing Agents shall have been notified by each Initial Lender that such
Initial Lender has executed it and thereafter shall be binding upon and inure
to the benefit of the Borrower, the Agents and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders.
SECTION 8.07. Assignments, Designations and Participations (a)
Each Lender may assign, and, if (i) demanded by the Borrower following either
(x) a payment by the Borrower of Taxes with respect to such Lender in
accordance with Section 2.12 or (y) the occurrence of an event that would,
upon payment to such Lender of amounts hereunder, require a payment by the
Borrower of Taxes with respect to such Lender in accordance with Section 2.12
and (ii) upon at least 30 Business Days' notice to such Lender and the Paying
Agent, will assign, to one or more banks or other entities all or a portion of
its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it
(including accrued interest) and the Note or Notes held by it); provided,
however, that (A) except in the case (x) of an assignment to a Person that,
immediately prior to such assignment, was a Lender or (y) an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000, and
the amount of the Commitment of the assigning Lender being retained by such
Lender immediately after giving effect to such assignment (determined as of
the effective date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000, (B) each such
assignment shall be to an Eligible Assignee, (C) each such assignment made
as a result of a demand by the Borrower pursuant to this Section 8.07(a)
shall be arranged by the Borrower after consultation with the Managing
Agents and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment
of a portion of such rights and obligations made concurrently with another
such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (D) no
Lender shall be obligated to make any such assignment as a result of a
demand by the Borrower pursuant to this Section 8.07(a) unless and until
such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least
equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of
payment of such principal amount and all other amounts payable to such
Lender under this Agreement, (E) no such assignments will be permitted
without the consent of the Managing Agents until the Managing Agents shall
have notified the Lenders that syndication of the Commitments thereunder
has been completed, and (F) the parties to each such assignment shall
execute and deliver to the Paying Agent, for its acceptance and recording
in the Register, an Assignment and Acceptance, together with any Note or
Notes subject to such assignment and a processing and recordation fee of
$2,500. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lenders
hereunder and (y) the Lender's assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other or any other Loan Document or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Loan Party or the performance or observance by any Loan Party of any of
its obligations under this Agreement or any other instrument or document
furnished pursuant hereto or thereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee
will, independently and without reliance upon the any Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to
the each Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee
agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Paying Agent shall, if such Assignment and Acceptance has been completed and
is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business
Days after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Paying Agent in exchange for the surrendered Note a
new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment hereunder, a new Note to the
order of the assigning Lender in an amount equal to the Commitment retained by
it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A hereto.
(d) The Paying Agent shall maintain at its address referred to
in Section 8.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agents and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of
its Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment to the Borrower hereunder)
shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii)
such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lenders rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to approve
any amendment or waiver of any provision of this Agreement or any Loan
Document, or any consent to any departure by any Loan Party therefrom,
except to the extent that such amendment, waiver or consent would (i)
reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, (ii) postpone any date fixed for any payment of principal
of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation or
(iii) release any Material Guarantor.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee, designee or participant or proposed assignee, designee or
participant shall agree to preserve the confidentiality of any Confidential
Information relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. None of the Agents nor any Lender
shall disclose any Confidential Information to any other Person without the
consent of Group and the Borrower, other than (a) to such Agent's or such
Lender's Affiliates and their officers, directors, employees, agents and
advisors and, as contemplated by Section 8.07(f), to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) to any rating
agency when required by it, provided that, prior to any such disclosure, such
rating agency shall undertake to preserve the confidentiality of any
Confidential Information relating to Group or the Borrower received by it from
such Lender and (d) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
SECTION 8.09. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the Notes, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in
any such court.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lenders Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract,
tort or otherwise) arising out of or relating to this Agreement or the Notes
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
WARNACO INC.
By
--------------------------
Title:
THE WARNACO GROUP, INC.
By
--------------------------
Title:
THE BANK OF NOVA SCOTIA
as Managing Agent and Paying Agent
By
--------------------------
Title:
CITIBANK, N.A.
____________________________________,
as Managing Agent and Documentation
Agent
By
--------------------------
Title:
Initial Lenders
CHEMICAL BANK
By
--------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN,
LTD., NEW YORK BRANCH
By
--------------------------
Title:
UNION BANK OF SWITZERLAND, NEW
YORK BRANCH
By
--------------------------
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By
--------------------------
Title:
THE BANK OF NEW YORK
By
--------------------------
Title:
CREDIT SUISSE, NEW YORK
By
--------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
--------------------------
Title:
THE FUJI BANK, LTD., NEW YORK
BRANCH
By
--------------------------
Title:
COMMERZBANK AG, NEW YORK
BRANCH
By
--------------------------
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By
--------------------------
Title:
THE BANK OF CALIFORNIA, N.A.
By
--------------------------
Title:
THE BANK OF TOKYO TRUST
COMPANY
By
--------------------------
Title:
THE SUMITOMO BANK, LIMITED
By
--------------------------
Title:
MARINE MIDLAND BANK
By
--------------------------
Title:
BANK LEUMI TRUST COMPANY OF
NEW YORK
By
--------------------------
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By
--------------------------
Title:
THE SANWA BANK LIMITED
By
--------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By
--------------------------
Title:
SOCIETE GENERALE
By
--------------------------
Title:
CITIBANK, N.A.
By
--------------------------
Title:
THE BANK OF NOVA SCOTIA
By
--------------------------
Title:
SCHEDULE I
WARNACO INC.
COMMITMENTS AND
APPLICABLE LENDING OFFICES
Eurodollar
Domestic Lending
Name of Bank Commitment Lending Office Office
---------------- ------------- ---------------- ------------
EXHIBIT A - FORM OF NOTE
U.S.$_______________ Dated: _______________,
1995
FOR VALUE RECEIVED, the undersigned, WARNACO INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_________________________ (the "Lender") for the account of its Applicable
Lending Office on the Termination Date (each as defined in the 364 Day Credit
Agreement referred to below) the principal sum of U.S.$[amount of the Lender's
Commitment in figures] or, if less, the aggregate principal amount of the
Advances made by the Lender to the Borrower pursuant to the 364 Day Credit
Agreement dated as of October __, 1995 among the Borrower, The Warnaco Group,
Inc., the banks, financial institutions and other institutional lenders listed
on the signature pages thereof, and The Bank of Nova Scotia ("Scotiabank") and
Citibank, N.A. ("Citibank") as Managing Agents, Citibank as Documentation
Agent, and Scotiabank as Paying Agent (as amended, supplemented or modified
from time to time, the "364 Day Credit Agreement"; the terms defined therein
being used herein as therein defined) outstanding on the Termination Date.
The Borrower promises to pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal amount is
paid in full, at such interest rates, and payable at such times, as are
specified in the 364 Day Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Scotiabank, as Paying Agent for the account of the
Lender, at _________________________, ____________________, __________, in
same day funds. Each Advance owing to the Lender by the Borrower pursuant to
the 364 Day Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the 364 Day Credit Agreement. The 364 Day Credit
Agreement, among other things, (i) provides for the making of Advances by the
Lender to the Borrower from time to time in an aggregate amount not to exceed
at any time outstanding the U.S. dollar amount first above mentioned, the
indebtedness of the Borrower resulting from each such Advance being evidenced
by this Promissory Note, and (ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon
the terms and conditions therein specified.
WARNACO INC.
By
----------------------------
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Principal Notation
Date Advance or Prepaid Balance Made by
---- --------- -------------- ---------------- --------
EXHIBIT B - FORM OF NOTICE OF
BORROWING
The Bank of Nova Scotia, as Paying Agent
for the Lenders party
to the 364 Day Credit Agreement
referred to below
[Insert Address]
[Date]
Attention: _______________
Ladies and Gentlemen:
The undersigned, Warnaco Inc., refers to the 364 Day Credit
Agreement, dated as of October __, 1995 (as amended, supplemented or modified
from time to time, the "364 Day Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned, The Warnaco
Group, Inc., the banks, financial institutions and other institutional lenders
listed on the signature pages thereof, and The Bank of Nova Scotia
("Scotiabank") and Citibank, N.A. ("Citibank") as Managing Agents, Citibank as
Documentation Agent, and Scotiabank as Paying Agent and hereby gives you
notice, irrevocably, pursuant to Section 2.02 of the 364 Day Credit Agreement
that the undersigned hereby requests a Borrowing under the 364 Day Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 2.02(a) of
the 364 Day Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_______________, 199_.
(ii) The Type of Advances comprising the Proposed Borrowing is
[Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_______________.
[(iv) The initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Borrowing is _____ month[s].]
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in each Loan
Document are correct, before and after giving effect to the Proposed
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date other than any such representatives and
warranties that, by their terms, refer to a date other than the date of
such Borrowing or issuance; and
(B) no event has occurred and is continuing, or would result
from such Proposed Borrowing or from the application of the proceeds
therefrom, that constitutes a Default.
Very truly yours,
WARNACO INC.
By
---------------------------
Title:
By
---------------------------
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364 Day Credit Agreement dated as of
October _, 1995 (as amended or modified from time to time, the "364 Day Credit
Agreement") among Warnaco Inc., a Delaware corporation (the "Borrower"), The
Warnaco Group, Inc., the banks, financial institutions and other institutional
lenders listed on the signature pages thereof, and The Bank of Nova Scotia
("Scotiabank") and Citibank, N.A. ("Citibank") as Managing Agents, Citibank as
Documentation Agent, and Scotiabank as Paying Agent. Terms defined in the 364
Day Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in
and to the Assignor's rights and obligations under the 364 Day Credit
Agreement as of the date hereof equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the 364 Day
Credit Agreement. After giving effect to such sale and assignment, the
Assignee's Commitments and the amount of the Advances owing to the Assignee
will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any adverse claim; (ii) makes
no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the 364 Day Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the 364 Day Credit
Agreement or any other instrument or document furnished pursuant thereto;
(iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the performance
or observance by the Borrower of any of its obligations under the 364 Day
Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Note or Notes held by the Assignor and
requests that the Agent exchange such Note or Notes for a new Note or Notes
payable to the order of the Assignee in an amount equal to the Commitments
assumed by the Assignee pursuant hereto or new Notes payable to the order
of the Assignee in an amount equal to the Commitments assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the
Commitment retained by the Assignor under the 364 Day Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of the
364 Day Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the
Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the 364 Day Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the 364 Day Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers
and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by
the terms of the 364 Day Credit Agreement are required to be performed by
it as a Lender; and (vi) attaches any U.S. Internal Revenue Service forms
required under Section 2.12 of the 364 Day Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent.
The effective date for this Assignment and Acceptance (the "Effective Date")
shall be the date of acceptance hereof by the Agent, unless otherwise
specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the 364 Day Credit
Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the 364
Day Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the 364 Day
Credit Agreement and the Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the 364 Day
Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: ___________%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of
Advances assigned: $__________
Principal amount of Note payable to Assignee:$__________
Principal amount of Note payable to Assignor:$__________
Effective Date(*):_______________, 199_
[NAME OF ASSIGNOR], as
Assignor
By:__________________________
Title:
Dated: _____________,
19_____
[NAME OF ASSIGNEE], as
Assignee
By:_________________________
Title:
Dated:_____________, 19 ___
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved] this
_________day of _______, 000__
XXX XXXX XX XXXX XXXXXX, as Paying Agent
By:________________________________
Title:
[Approved this ___________day
of _________, 199__
WARNACO, INC.
By:_______________________________
Title:
---------------
(*) This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
EXHIBIT D - FORM OF
NOTICE OF EXTENSION
OF TERMINATION DATE
[Date]
Citibank, N.A.,
as Paying Agent
0 Xxxxx Xxxxxx
0xx Xxxxx, Xxxx 0
Xxxx Xxxxxx Xxxx, XX 00000
Attention:
Warnaco, Inc.
Ladies and Gentlemen:
Reference is made to the 364 Day Credit Agreement dated as of
October _, 1995 (as amended or modified from time to time, the "364 Day Credit
Agreement") among Warnaco Inc., a Delaware corporation (the "Borrower"), The
Warnaco Group, Inc., the banks, financial institutions and other institutional
lenders listed on the signature pages thereof, and The Bank of Nova Scotia
("Scotiabank") and Citibank, N.A. ("Citibank") as Managing Agents, Citibank as
Documentation Agent, and Scotiabank as Paying Agent. Terms defined in the 364
Day Credit Agreement are used herein with the same meaning.
Pursuant to Section 2.04(b) of the 364 Day Credit Agreement, the
Lender named below hereby notifies the Paying Agent as follows:
[The Lender named below desires to extend the Termination Date with
respect to [all] [$______] of its Commitment for a period of 364
days.]
[The Lender named below does NOT desire to extend the Termination
Date with respect to any of its Commitment for a period of 364
days.]
This notice is subject in all respects to the terms of the 364 Day
Credit Agreement, is irrevocable and shall be effective only if received by
the Paying Agent no later than [______________].
Very truly yours,
[NAME OF LENDER]
By:
----------------------------
Name:
Title:
