EXECUTION COPY
AMENDMENT ▇▇. ▇
▇▇▇▇▇▇▇▇▇ ▇▇. ▇, dated as of September 15, 2005 (this "Amendment"), to
the Credit Agreement, dated as of February 4, 2003 (as amended by that certain
Amendment No. 1, Consent and Waiver dated as of November 12, 2003, as further
amended by that certain Amendment No. 2 dated as of August 1, 2004 and as
otherwise amended, supplemented or modified prior to the date hereof, the
"Credit Agreement"), among WARNACO INC., a Delaware corporation (the
"Borrower"), THE WARNACO GROUP, INC. ("Group"), the financial institutions from
time to time party thereto as lenders (the "Lenders"), the financial
institutions from time to time party thereto as issuers (the "Issuers"),
CITICORP NORTH AMERICA, INC. ("CNAI"), as administrative agent and collateral
agent for the Lenders and the Issuers (in such capacity, the "Administrative
Agent"), JPMORGAN CHASE BANK, N.A. (F/K/A, JPMORGAN CHASE BANK), as syndication
agent for the Lenders and the Issuers and BANK OF AMERICA, NA, THE CIT
GROUP/COMMERCIAL SERVICES, INC., and WACHOVIA CAPITAL FINANCE CORPORATION
(CENTRAL) (F/K/A, CONGRESS FINANCIAL CORPORATION (CENTRAL)), each as a
co-documentation agent for the Lenders and Issuers. Capitalized terms used
herein but not defined herein are used as defined in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, Group, the Lenders, the Issuers and the
Administrative Agent are party to the Credit Agreement and the undersigned
Lenders constitute all of the Lenders;
WHEREAS, the Borrower and Group have requested that the Administrative
Agent and the Lenders agree to amend the Credit Agreement to, among other
things, (i) extend the Scheduled Termination Date to February 3, 2009; (ii)
reduce the Applicable Margin; (iii) allow for unlimited acquisitions and
repurchases of common stock (provided certain conditions are met); (iv) permit
payment of dividends on the common stock of Group; (v) allow for additional
indebtedness of up to $30,000,000, which will be used to finance the
construction of a new distribution facility in Pennsylvania for ▇▇▇▇▇▇ ▇▇▇▇▇,
Intimate Apparel and Chaps products; and (vi) reduce the pricing with respect to
certain designated Letters of Credit that are cash collateralized by the
Borrower;
WHEREAS, pursuant to Section 11.1 (Amendments, Waiver, Etc.) of the
Credit Agreement, the consent of the Requisite Lenders is required to amend the
provisions of the Credit Agreement as set forth herein (other than with respect
to Sections 1(a) and (g) for which the consent of all Lenders is required); and
NOW, THEREFORE, in consideration of the premises and the covenants and
obligations contained herein the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement
The Credit Agreement is, effective as of the Amendment Effective Date
and subject to the satisfaction (or due waiver) of the conditions set forth in
Section 2 (Conditions Precedent to the Effectiveness of this Amendment) hereof,
hereby amended as follows:
(a) Amendment to the definition of "Applicable Unused Commitment Fee
Rate" in Article I (Definitions, Interpretation and Accounting Terms). The
definition of "Applicable Unused Commitment Fee Rate" is hereby amended and
restated in its entirety to read as follows:
"Applicable Unused Commitment Fee Rate" means, as of any date of
determination, a per annum rate equal to the rate set forth below opposite
the then applicable Leverage Ratio of Group (determined on the last day of
the most recent Fiscal Quarter for which Financial Statements have been
delivered pursuant to Section 6.1(b) or Section 6.1(c)) set forth below:
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LEVERAGE RATIO Unused
Commitment
Fee Rate
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Greater than or equal to 1.5 to 1 0.375%
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Less than 1.5 to 1 and equal to or 0.375%
greater than 1.25 to 1
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Less than 1.25 to 1 and equal to or 0.325%
greater than 1.00 to 1
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Less than 1.0 to 1 0.25%
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Changes in the Applicable Unused Commitment Fee Rate resulting from a change in
the Leverage Ratio on the last day of any subsequent Fiscal Quarter shall become
effective 10 Business Days after delivery by the Borrower to the Administrative
Agent of new Financial Statements pursuant to Section 6.1(b) or Section 6.1(c)
as applicable. Notwithstanding anything to the contrary set forth in this
Agreement (including the then effective Leverage Ratio of Group), if the
Borrower shall fail to deliver such Financial Statements within any of the time
periods required under Section 6.1(b) or Section 6.1(c) (as either such section
has been amended, waived or otherwise modified), the Applicable Unused
Commitment Fee Rate from and including the day on which such Financial
Statements were due, to but not including the date the Borrower delivers to the
Administrative Agent such Financial Statements, shall equal the highest possible
Applicable Unused Commitment Fee Rate provided for by this definition.
(b) Amendment to the definition of "Applicable Margin" in Article I
(Definitions, Interpretation and Accounting Terms). The definition of
"Applicable Margin" is hereby amended by deleting the table set forth therein
and inserting the following new table in its place:
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LEVERAGE RATIO BASE RATE EURODOLLAR
LOANS RATE LOANS
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Greater than or equal to 1.5 to 1 0.75% 1.75%
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Less than 1.5 to 1 and equal to or 0.50% 1.50%
greater than 1.25 to 1
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Less than 1.25 to 1 and equal to or 0.50% 1.50%
greater than 1.00 to 1
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Less than 1.0 to 1 0.25% 1.25%
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(c) Amendment to the definition of "Available Credit" in Article I
(Definitions, Interpretation and Accounting Terms). The definition of "Available
Credit" is hereby amended and restated in its entirety to read as follows:
"Available Credit" means, at any time, (a) the lesser of (i) the
Commitments in effect at such time and (ii) the Borrowing Base (plus the
amount of Letter of Credit Obligations in respect of Collateralized Letters
of Credit) at such time minus (b) the sum of (i) the aggregate Outstandings
at such time and (ii) the aggregate amount of any Availability Reserve in
effect at such time
(d) Insertion of the definition of "Collateralized Letters of
Credit" in Article I (Definitions, Interpretation and Accounting Terms). The
following definition of "Collateralized Letters of Credit" shall be inserted in
the correct alphabetical order as follows:
"Collateralized Letters of Credit" means the Letters of Credit
designated by the Borrower in writing to the Administrative Agent
simultaneously with (but no more frequently than once per week) the
delivery of the Borrowing Base Certificate required by Section 6.12(a)
(Borrowing Base Determination) as "Collateralized Letters of Credit" with
respect to which the Borrower maintains funds in the Special Cash
Collateral Account as required by Section 2.4(n) (Letters of Credit). The
Borrower may not designate any Letter of Credit as a Collateralized Letter
of Credit if a Default or an Event of Default shall have occurred and is
continuing. The Borrower may withdraw its designation as "Collateralized
Letters of Credit" of one or more of the Letters of Credit so designated by
written notice to the Administrative Agent delivered simultaneously with
(but no more frequently than once per week) the delivery of the Borrowing
Base Certificate required by Section 6.12(a) (Borrowing Base
Determination).
(e) Amendment to the definition of "Maximum Credit" in Article I
(Definitions, Interpretation and Accounting Terms). The definition of "Maximum
Credit" is hereby amended and restated in its entirety to read as follows:
"Maximum Credit" means, at any time, (a) the lesser of (i) the
Commitments in effect at such time and (ii) the Borrowing Base (plus the
amount of Letter of Credit Obligations in respect of Collateralized Letters
of Credit) at such time, minus (b) the aggregate amount of any Availability
Reserve in effect at such time.
(f) Amendment to the definition of "Permitted Acquisition" in Article
I (Definitions, Interpretation and Accounting Terms). Clause (d) of the
definition of "Permitted Acquisition" is hereby amended and restated in its
entirety to read as follows:
(d) the Dollar Equivalent of the aggregate Permitted Acquisition
Consideration for such Proposed Acquisition and all other Permitted
Acquisitions shall not exceed an amount equal to $15,000,000 (provided that
the Stock and Stock Equivalents of Group forming part of such consideration
shall be excluded from the calculation of the foregoing $15,000,000 limit);
provided, however, if on the date of consummation of any Proposed
Acquisition, no Loans are outstanding, then the aggregate Permitted
Acquisition Consideration for such Proposed Acquisition may be increased by
an amount equal to the then available Cash on Hand; provided further,
however, that there shall be no Dollar limit on Permitted Acquisition
Consideration for any Proposed Acquisition or Permitted Acquisition if
after giving effect to such Proposed Acquisition or Permitted Acquisition,
Available Credit is at least equal to $50,000,000.
(g) Amendment to the definition of "Scheduled Termination Date" in
Article I (Definitions, Interpretation and Accounting Terms). The definition of
"Scheduled Termination Date" is hereby amended and restated in its entirety as
follows:
"Scheduled Termination Date" means February 3, 2009.
(h) Insertion of the definition of "Amendment No. 3 Effective Date"
in Article I (Definitions, Interpretation and Accounting Terms). The following
definition of "Amendment No. 3 Effective Date" shall be inserted in the correct
alphabetical order as follows:
"Amendment No. 3 Effective Date" means September 15, 2005.
(i) Insertion of the definition of "Special Cash Collateral Account"
in Article I (Definitions, Interpretation and Accounting Terms). The following
definition of "Special Cash Collateral Account" shall be inserted in the correct
alphabetical order as follows:
"Special Cash Collateral Account" means that certain account number
3060-4171 maintained with Citibank, N.A. (or such other account maintained
with the Administrative Agent or an affiliate thereof and/or under the
control of the Administrative Agent) for the purpose of cash
collateralizing the Collateralized Letters of Credit.
(j) Amendments to Section 2.4 (Letters of Credit). Section 2.4
(Letters of Credit) of the Credit Agreement is hereby amended by inserting a new
clause (n) immediately after clause (m) thereof to read in its entirety as
follows:
(n) The Borrower shall maintain in the Special Cash Collateral Account
an amount equal to or exceeding 100% (or, if a Default or Event of Default
is continuing, 105%) of the aggregate undrawn face amount under the Letters
of Credit that have been designated by the Borrower as Collateralized
Letters of Credit. The Administrative Agent may, in its sole discretion,
from time to time after funds are deposited in the Special Cash Collateral
Account, apply funds then held in the Special Cash Collateral Account to
the payment of the then due and payable Obligations in respect of the
Collateralized Letters of Credit. If at any time the amount of funds
deposited in the Special Cash Collateral Account exceed 100% (or, if a
Default or Event of Default is continuing, 105%) of the aggregate undrawn
face amount of the Collateralized Letters of Credit, the Administrative
Agent shall upon the request of the Borrower remit the amount of such
excess to the Borrower. If at any time the aggregate amount in the Special
Cash Collateral Account is less than 100% (or, if a Default or Event of
Default is continuing, 105%) of the aggregate undrawn face amount of the
Collateralized Letters of Credit, the Borrower, after notice (including
telephonic notice) to it by the Administrative Agent, immediately shall
cause the amount deposited in the Special Cash Collateral Account to equal
or exceed 100% (or, if a Default or Event of Default is continuing, 105%)
of the aggregate undrawn face amount of the Collateralized Letters of
Credit by either (i) depositing additional funds in the Special Cash
Collateral Account or (ii) withdrawing its designation as "Collateralized
Letters of Credit" of one or more of the Letters of Credit so designated.
If the Borrower does not deposit additional funds into the Special Cash
Collateral Account or withdraw its designation as "Collateralized Letters
of Credit" of one or more of the Letters of Credit, it shall not be a
Default or an Event of Default if the Administrative Agent, in its sole
discretion, withdraws the designation as "Collateralized Letters of Credit"
of one or more or all of the Letters of Credit so designated so that the
aggregate amount in the Special Cash Collateral Account equals or exceeds
100% (or, if a Default or Event of Default is continuing, 105%) of the
aggregate undrawn face amount of the remaining Collateralized Letters of
Credit.
(k) Amendments to Section 2.12 (Fees). Section 2.12(b) of the Credit
Agreement is hereby amended and restated in its entirety to read as follows:
(b) Letter of Credit Fees. The Borrower agrees to pay the following
amounts with respect to Letters of Credit Issued by any Issuer:
(i) to each Issuer of a Letter of Credit, (A) with respect to
each Letter of Credit (other than Collateralized Letters of
Credit) Issued by such Issuer, an issuance fee equal to an amount
to be agreed by such Issuer and the Borrower but in any event not
greater than 0.25% per annum, and (B) with respect to each
Collateralized Letter of Credit, an issuance fee equal to 0.125%
per annum (the issuance fee set forth in either (A) or (B), the
"Issuing Fee") of the maximum amount available from time to time
to be drawn under such Letter of Credit, payable in arrears (I)
on the first Business Day of each calendar quarter, commencing on
the first such day following the issuance of such Letter of
Credit and (II) on the Termination Date;
(ii) to the Administrative Agent for the ratable benefit of the
Lenders, with respect to each Letter of Credit (other than
Collateralized Letters of Credit), a fee accruing at a rate per
annum equal to the Applicable Margin for Loans that are
Eurodollar Rate Loans less an amount equal to the Issuing Fee
paid by the Borrower in respect of such Letter of Credit, of the
maximum amount available from time to time to be drawn under such
Letter of Credit, payable in arrears (A) on the first Business
Day of each calendar quarter, commencing on the first such day
following the issuance of such Letter of Credit, and (B) on the
Termination Date; provided, however, that during the continuance
of an Event of Default, such fee shall be increased by two
percent per annum and shall be payable on demand;
(iii) to the Administrative Agent for the ratable benefit of the
Lenders, with respect to each Collateralized Letter of Credit, a
fee accruing at a rate per annum equal to 0.20% of the maximum
amount available from time to time to be drawn under such Letter
of Credit, payable in arrears (A) on the first Business Day of
each calendar quarter, commencing on the first such day following
the issuance of such Letter of Credit, and (B) on the Termination
Date; provided, however, that during the continuance of an Event
of Default, such fee shall be increased by two percent per annum
and shall be payable on demand; and
(iv) to the Issuer of any Letter of Credit, with respect to the
issuance, amendment or transfer of each Letter of Credit and each
drawing made thereunder, documentary and processing charges in
accordance with such Issuer's standard schedule for such charges
in effect at the time of issuance, amendment, transfer or
drawing, as the case may be.
(l) Amendments to Section 2.13 (Payments and Computations). Section
2.13(h) of the Credit Agreement is hereby amended by deleting clause 2.13(h)(ix)
and the proviso following clause 2.13(h)(ix) and restating it in its entirety to
read as follows:
provided, however, that if sufficient funds are not available to fund
all payments to be made in respect of any of the Obligations described in
any of the foregoing clauses first through eighth, the available funds
being applied with respect to any such Obligation (unless otherwise
specified in such clause) shall be allocated to the payment of such
Obligations ratably, based on the proportion of the Administrative Agent's
and each Lender's or Issuer's interest in the aggregate outstanding
Obligations described in such clauses; provided, however, that payments
that would otherwise be allocated to the Lenders shall be allocated first
to repay Protective Advances and Swing Loans pro rata and then to the
Lenders; provided, further, that any funds on deposit in the Special Cash
Collateral Account shall be applied first to Obligations in respect of the
Collateralized Letters of Credit (and to the extent such Collateralized
Letters of Credit are undrawn, to continue to collateralize such
Collateralized Letters of Credit) and then in the order of priority set
forth above in clauses first through eighth. The order of priority set
forth in clauses first through eighth of this Section 2.13(h) may at any
time and from time to time be changed by the agreement of the Requisite
Lenders without necessity of notice to or consent of or approval by the
Borrower, any Secured Party that is not a Lender or an Issuer, or any other
Person. The order of priority set forth in clauses first through fifth of
this Section 2.13(h) may be changed only with the prior written consent of
the Administrative Agent in addition to the Requisite Lenders.
(m) Amendments to Section 5.1 (Maximum Leverage Ratio). Section 5.1 of
the Credit Agreement is hereby amended and restated in its entirety to read as
follows:
Maximum Leverage Ratio. Group shall maintain a Leverage Ratio, for any
Fiscal Quarter in which Available Credit has been less than $50,000,000 on
any day (determined as of 5:00 PM New York City time on that day), as
determined as of the last day of the Fiscal Quarter set forth below ended
closest to such day, for the four Fiscal Quarters ending on such day of not
more than the maximum ratio set forth below opposite such Fiscal Quarter:
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FISCAL QUARTER ENDING ON MAXIMUM
OR ABOUT LEVERAGE RATIO
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June 30, 2003 2.75 to 1
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September 30, 2003 2.75 to 1
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December 31, 2003 2.75 to 1
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March 31, 2004 2.50 to 1
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June 30, 2004 2.50 to 1
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September 30, 2004 2.50 to 1
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December 31, 2004 2.50 to 1
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March 31, 2005 2.25 to 1
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June 30, 2005 2.25 to 1
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September 30, 2005 2.25 to 1
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December 31, 2005 2.25 to 1
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March 31, 2006 2.25 to 1
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June 30, 2006 2.25 to 1
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September 30, 2006 2.25 to 1
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December 31, 2006 and each Fiscal 2.25 to 1
Quarter ending thereafter
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(n) Amendments to Section 5.2 (Minimum Fixed Charge Coverage Ratio).
Section 5.2 of the Credit Agreement is hereby amended and restated in its
entirety to read as follows:
Minimum Fixed Charge Coverage Ratio. Group shall maintain a Fixed
Charge Coverage Ratio, for any Fiscal Quarter in which Available Credit has
been less than $50,000,000 on any day (determined as of 5:00 PM New York
City time on that day), as determined as of the last day of the Fiscal
Quarter set forth below ended closest to such day, for the four Fiscal
Quarters ending on such day of at least the minimum ratio set forth below
opposite such Fiscal Quarter:
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FISCAL QUARTER ENDING ON MINIMUM FIXED
OR ABOUT CHARGE COVERAGE RATIO
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December 31, 2003 2.00 to 1
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March 31, 2004 1.50 to 1
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June 30, 2004 1.50 to 1
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September 30, 2004 and each Fiscal 1.75 to 1
Quarter ending thereafter
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(o) Amendments to Section 5.3 (Capital Expenditures). Section 5.3 of
the Credit Agreement is hereby amended and restated it in its entirety to read
as follows:
Section 5.3 Capital Expenditures. Group will not permit Capital
Expenditures by the Borrower and the other Subsidiaries of Group, for any
Fiscal Year in which Available Credit has been less than $50,000,000 on any
day, to be made or incurred during any Fiscal Year to exceed $32,000,000;
provided, however, that (a) to the extent that actual Capital Expenditures
for such Fiscal Year shall be less than $32,000,000 (without giving effect
to the carryover permitted by this proviso), the amount of such shortfall
(not to exceed 50% of the available amount for such Fiscal Year) shall be,
in addition, available for Capital Expenditures in the next succeeding
Fiscal Year, (b) Capital Expenditures shall not include any amounts
credited to, or received by, any Warnaco Entity in connection with a
substantially contemporaneous trade in or Capital Expenditures constituting
a reinvestment of Net Cash Proceeds in replacement assets pursuant to
Section 2.9(b)(i), (c) Capital Expenditures shall not include Capital
Expenditures related to the construction of a new distribution facility in
Pennsylvania for ▇▇▇▇▇▇ ▇▇▇▇▇, Intimate Apparel and Chaps products
permitted by Section 8.1(n) (Indebtedness) and (d) in the event of a sale
of the Stock or the assets by a Warnaco Entity constituting a business
division of the Warnaco Entities, (other than the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Business) each maximum Capital Expenditure level set forth above for the
Fiscal Year ending after such sale shall be reduced by an amount equal to
the Capital Expenditure allocable to such business division, as listed on
Schedule 5.3 (Capital Expenditure Adjustments) with respect to such period
(or, if such sale occurs during such period, such portion of such period
occurring after such sale), provided that the foregoing formula and timing
of the application of the reduction in maximum Capital Expenditure levels
may be adjusted in the reasonable discretion of the Administrative Agent to
take into consideration the terms of such sale.
(p) Amendments to Section 6.1 (Financial Statements). Section 6.1(d)
of the Credit Agreement is hereby amended and restated in its entirety to read
as follows:
(d) Compliance Certificate. (i) Together with each delivery of any
financial statement pursuant to clauses (b) and (c) of this Section 6.1, a
certificate of a Responsible Officer of Group substantially in the form of
Exhibit H hereto (each, a "Compliance Certificate") (x) showing in
reasonable detail the calculations necessary to determine the Applicable
Margin and (y) stating that no Default or Event of Default has occurred and
is continuing or, if a Default or an Event of Default has occurred and is
continuing, stating the nature thereof and the action which Group proposes
to take with respect thereto and (ii) promptly after any day on which
Available Credit has been less than $50,000,000, a Compliance Certificate
showing in reasonable detail the calculations used in demonstrating
compliance, as of the last day of the Fiscal Quarter ended closest to such
day, for the four Fiscal Quarters ending on such day, with each of the
financial covenants contained in Article V;
(q) Amendments to Section 7.14 (Post Closing Matters). Section 7.14 of
the Credit Agreement is hereby amended and restated it in its entirety to read
as follows:
Section 7.14 Post Closing Matters. Each of Group and the Borrower
shall, and shall cause each of its applicable Subsidiaries to, (i) satisfy
the requirements set forth on Schedule 7.14 (Post Closing Matters) on or
before the date set forth opposite such requirement or such later date as
consented to by the Administrative Agent and (ii) provide evidence
satisfactory to the Administrative Agent that on or before December 31,
2005 ▇▇▇▇▇.▇▇▇, Inc. has been dissolved or has satisfied the requirements
set forth in Section 7.11 (Additional Personal Property Collateral and
Guaranties).
(r) Amendments to Section 8.1 (Indebtedness). Section 8.1
(Indebtedness) of the Credit Agreement is hereby amended by (i) deleting "and"
at the end of clause (m), (ii) renaming clause (n) thereof as clause (o) (and
re-lettering accordingly each reference to such clause in any Loan Document),
and (iii) inserting a new clause (n) immediately after clause (m) thereof to
read in its entirety as follows:
(n) Indebtedness incurred for the sole purpose of financing the
construction of a new distribution facility in Pennsylvania for ▇▇▇▇▇▇
▇▇▇▇▇, Intimate Apparel and Chaps products in an aggregate amount not to
exceed $30,000,000;
(s) Amendments to Section 8.2 (Liens, Etc.). Clause (f) of Section
8.2 of the Credit Agreement is hereby amended and restated it in its entirety to
read as follows:
(f) purchase money Liens granted by a Warnaco Entity (including the
interest of a lessor under a Capital Lease and purchase money Liens to
which any property is subject at the time of such Warnaco Entity's
acquisition thereof or promptly thereafter) securing Indebtedness permitted
under Section 8.1(f) and Section 8.1(n) and limited in each case to the
property purchased with the proceeds of such purchase money Indebtedness or
subject to such Capital Lease
(t) Amendments to Section 8.5 (Restricted Payments). Section 8.5
(Restricted Payments) of the Credit Agreement is hereby amended by (i) deleting
"and" at the end of subclause (c)(iii), (ii) renaming clause (d) thereof as
clause (f) (and re-lettering accordingly each reference to such clause in any
Loan Document), and (iii) inserting a new clause (d) and a new clause (e)
immediately after subclause (c)(iii) thereof to read in their entirety as
follows:
(d) Restricted Payments by Group in connection with the redemption,
repurchase or other acquisition of its common Stock; provided, however,
that after giving effect to such Restricted Payments Available Credit is at
least equal to $50,000,000;
(e) cash dividends on common Stock of Group paid and declared in any
Fiscal Year; provided, however, that such cash dividends shall not exceed
an amount equal to twenty-five percent (25%) of Group's Consolidated Net
Income for the most recently completed Fiscal Year; and
(u) Amendments to Section 8.5 (Restricted Payments). Section 8.5
(Restricted Payments) of the Credit Agreement is hereby amended by deleting the
proviso following clause (f) and restating it in its entirety to read as
follows:
provided, however, that the Restricted Payments described in subclause
(c)(i) and clauses (d) and (e) shall not be permitted if either (A) an
Event of Default or Default shall have occurred and be continuing at the
date of declaration or payment thereof or would result therefrom or (B)
such Restricted Payment is prohibited under the terms of any Indebtedness
(other than the Obligations) of any Warnaco Entity (as in effect on the
Amendment No. 3 Effective Date).
Section 2. Conditions Precedent to the Effectiveness of this Amendment
This Amendment shall become effective as of the date first
written above when, and only when, each of the following conditions precedent
shall have been satisfied (the "Amendment Effective Date") or duly waived by the
Administrative Agent:
(a) Certain Documents
The Administrative Agent shall have received each of the following,
each dated the Amendment Effective Date (unless otherwise agreed by the
Administrative Agent), in form and substance satisfactory to the Administrative
Agent and in sufficient copies for each Lender:
(i) this Amendment, duly executed by the Borrower, Group, the
Administrative Agent and the Lenders constituting the Requisite Lenders
(other than with respect to Sections 1(a) and (g), which shall only become
effective when the Administrative Agent shall have received this Amendment
duly executed by each Lender) ;
(ii) the Consent, Agreement and Affirmation of Guaranty in form
attached hereto as Exhibit A, duly executed by each of the Subsidiary
Guarantors;
(iii) evidence satisfactory to the Administrative Agent that (A)
▇▇▇▇▇ ▇▇▇▇▇▇▇ Apparel Corp. has become a Guarantor pursuant to a Guaranty
Supplement (as such term is used in the Guaranty) and has become party to
the Pledge and Security Agreement pursuant to a Joinder Agreement (as such
term is used in the Pledge and Security Agreement); (B) the Administrative
Agent has for the benefit of the Lenders a valid and perfected first
priority security interest in all personal property interests and other
assets of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Apparel Corp.; and (C) all actions necessary or
advisable to ensure the validity or continuing validity of the guaranty of
▇▇▇▇▇ ▇▇▇▇▇▇▇ Apparel Corp. or to create, maintain or perfect the security
interest referred to in subclause (B), including the filing of UCC
financing statements in such jurisdictions as may be required by the
Collateral Documents or by law or as may be reasonably be requested by the
Administrative Agent, have been taken; and
(iv) such additional documentation as the Administrative Agent
may reasonably require.
(b) Representations and Warranties
Each of the representations and warranties contained in Article IV
(Representations and Warranties) of the Credit Agreement, the other Loan
Documents or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and correct in
all material respects on and as of the date hereof and the Amendment Effective
Date, in each case as if made on and as of such date and except to the extent
that such representations and warranties specifically relate to a specific date,
in which case such representations and warranties shall be true and correct in
all material respects as of such specific date; provided, however, that
references therein to the "Credit Agreement" shall be deemed to refer to the
Credit Agreement as amended by this Amendment and after giving effect to the
amendments set forth herein.
(c) No Default or Event of Default
After giving effect to this Amendment, no Default or Event of Default
(except for those that may have been duly waived) shall have occurred and be
continuing, either on the date hereof or on the Amendment Effective Date.
(d) Amendment Fee
The Borrower shall have paid to the Administrative Agent for the
ratable benefit of the Lenders a nonrefundable amendment fee equal to 0.10% of
the aggregate amount of the Commitments on the Amendment Effective Date, payable
in immediately available funds.
(e) Fees and Expenses Paid
The Borrower shall have paid all Obligations due, after giving effect
to this Amendment, on or before the later of the date hereof and the Amendment
Effective Date and all costs and expenses of the Administrative Agent in
connection with the preparation, reproduction, execution and delivery of this
Amendment and all other Loan Documents entered into in connection herewith
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto and all other Loan
Documents) and all other costs, expenses and fees due under any Loan Document.
Section 3. Representations and Warranties
On and as of the date hereof and as of the Amendment Effective Date,
after giving effect to this Amendment, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender as follows:
(a) this Amendment has been duly authorized, executed and delivered by
the Borrower and Group and constitutes a legal, valid and binding obligation of
the Borrower and Group, enforceable against the Borrower and Group in accordance
with its terms and the Credit Agreement as amended by this Amendment and
constitutes the legal, valid and binding obligation of the Borrower and Group,
enforceable against the Borrower and Group in accordance with its terms;
(b) each of the representations and warranties contained in Article IV
(Representations and Warranties) of the Credit Agreement, the other Loan
Documents or in any certificate, document or financial or other statement
furnished at any time under or in connection therewith are true and correct in
all material respects on and as of the date hereof and the Amendment Effective
Date, in each case as if made on and as of such date and except to the extent
that such representations and warranties specifically relate to a specific date,
in which case such representations and warranties shall be true and correct in
all material respects as of such specific date; provided, however, that
references therein to the "Credit Agreement" shall be deemed to refer to the
Credit Agreement as amended hereby and after giving effect to the amendments set
forth herein;
(c) no Default or Event of Default has occurred and is continuing
(except for those that are duly waived); and
(d) no litigation has been commenced against any Loan Party or any of
its Subsidiaries seeking to restraint or enjoin (whether temporarily,
preliminarily or permanently) the performance of any action by any Loan Party
required or contemplated by this Amendment, the Credit Agreement or any Loan
Document, in each case as amended hereby (if applicable).
Section 4. Reference to the Effect on the Loan Documents
(a) As of the Amendment Effective Date, each reference in the Credit
Agreement to "this Agreement," "hereunder," "hereof," "herein," or words of like
import, and each reference in the other Loan Documents to the Credit Agreement
(including, without limitation, by means of words like "thereunder," "thereof"
and words of like import), shall mean and be a reference to the Credit Agreement
as amended hereby, and this Amendment and the Credit Agreement shall be read
together and construed as a single instrument. Each of the table of contents and
lists of Exhibits and Schedules of the Credit Agreement shall be amended to
reflect the changes made in this Amendment as of the Amendment Effective Date.
(b) Except as expressly amended hereby or specifically waived above,
all of the terms and provisions of the Credit Agreement and all other Loan
Documents are and shall remain in full force and effect and are hereby ratified
and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Lenders, Issuers, Arranger or the Administrative Agent
under any of the Loan Documents, nor constitute a waiver or amendment of any
other provision of any of the Loan Documents or for any purpose except as
expressly set forth herein.
(d) This Amendment is a Loan Document.
Section 5. Execution in Counterparts
This Amendment may be executed in any number of counterparts and by
different parties 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. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed counterpart by
telecopy shall be effective as delivery of a manually executed counterpart of
this Amendment.
Section 6. Governing Law
This Amendment shall be governed by and construed in accordance with
the law of the State of New York.
Section 7. Section Titles
The section titles contained in this Amendment are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto, except when used to reference a section.
Section 8. Notices
All communications and notices hereunder shall be given as provided in
the Credit Agreement or, as the case may be, the Guaranty.
Section 9. Severability
The fact that any term or provision of this Amendment is held invalid,
illegal or unenforceable as to any person in any situation in any jurisdiction
shall not affect the validity, enforceability or legality of the remaining terms
or provisions hereof or the validity, enforceability or legality of such
offending term or provision in any other situation or jurisdiction or as applied
to any person
Section 10. Successors
The terms of this Amendment shall be binding upon, and shall inure to
the benefit of, the parties hereto and their respective successors and assigns.
Section 11. Waiver of Jury Trial
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WITH RESPECT TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
WARNACO INC.,
as Borrower
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
THE WARNACO GROUP, INC.,
as Group
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
CITICORP NORTH AMERICA INC.,
as Administrative Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, N.A. (F/K/A,
JPMORGAN CHASE BANK)
as Syndication Agent and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, NA,
as a Co-Documentation Agent, an
Issuer and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE CIT GROUP/COMMERCIAL SERVICES, INC.,
as a Co-Documentation Agent and a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
WACHOVIA CAPITAL FINANCE CORPORATION
(CENTRAL) (F/K/A, CONGRESS FINANCIAL
CORPORATION (CENTRAL)),
as a Co-Documentation Agent and a
Lender
By: /s/ ▇▇▇▇▇▇▇ Vizgroa
-----------------------------------
Name: ▇▇▇▇▇▇▇ Vizgroa
Title: Vice President
THE BANK OF NOVA SCOTIA,
as an Issuer and a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
AMSOUTH BANK,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Attorney-in-Fact
FLEET RETAIL FINANCE INC.,
as a Lender
By:
-----------------------------------
Name:
Title:
▇▇▇▇▇ FARGO FOOTHILL LLC (F/K/A,
FOOTHILL CAPITAL CORPORATION),
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
NATIONAL CITY BUSINESS CREDIT, INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. Kwasng
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. Kwasng
Title: Director
SIEMENS FINANCIAL SERVICES, INC.,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ BUSINESS CREDIT CORPORATION
(F/K/A, WHITEHALL BUSINESS CREDIT
CORPORATION),
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
UPS CAPITAL CORPORATION,
as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director of Portfolio
Management
CONSENT, AGREEMENT AND AFFIRMATION OF GUARANTY
Each of the undersigned Guarantors hereby consents to the terms of the
foregoing Amendment No. 3 in its capacity as a Guarantor under the Credit
Agreement and agrees that the terms thereof shall not affect in any way its
obligations and liabilities under the Loan Documents (as amended and otherwise
expressly modified thereby), all of which obligations and liabilities shall
remain in full force and effect and each of which is hereby reaffirmed (as
amended and otherwise expressly modified thereby).
As of September 15, 2005:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, INC.
A.B.S. CLOTHING COLLECTION, INC.
ABBEVILLE MANUFACTURING COMPANY
WARNACO SWIMWEAR INC.
AUTHENTIC FITNESS ON-LINE, INC.
WARNACO SWIMWEAR PRODUCTS, INC.
AUTHENTIC FITNESS RETAIL INC.
▇▇▇▇▇▇ ▇▇▇▇▇ JEANSWEAR COMPANY
CCC ACQUISITION CORP.
▇.▇. ▇▇▇▇▇▇▇▇ COMPANY
CKJ HOLDINGS, INC.
DESIGNER HOLDINGS LTD.
▇▇▇▇▇▇▇ STREET, INC.
JEANSWEAR HOLDINGS, INC.
KAI JAY MANUFACTURING COMPANY
MYRTLE AVENUE, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ APPAREL CORP.
OUTLET HOLDINGS, INC.
OUTLET STORES, INC.
RIO SPORTSWEAR, INC.
UBERTECH PRODUCTS, INC.
WARNACO MEN'S SPORTSWEAR, INC.
WARNACO PUERTO RICO, INC.
WARNACO SOURCING INC.
WARNACO U.S. INC.
WARNER'S DE COSTA RICA INC.,
as Guarantors
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
▇▇▇.▇▇▇, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE WARNACO GROUP, INC.,
as Guarantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer