EXHIBIT 99.4
[EXECUTION COPY]
CREDIT AGREEMENT,
dated as of October 6, 2000
among
WARNACO INC.,
as the U.S. Borrower,
DESIGNER HOLDINGS, LTD.,
as the Sub Borrower,
AUTHENTIC FITNESS PRODUCTS INC. AND
THOSE OTHER WHOLLY-OWNED DOMESTIC SUBSIDIARIES
DESIGNATED FROM TIME TO TIME,
as the Warnaco Sub Borrowers,
WARNACO (HK) LTD.,
WARNACO B.V.,
WARNACO NETHERLANDS B.V. and
WARNACO HOLLAND B.V.,
as the Foreign Borrowers,
THE WARNACO GROUP, INC.,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
SOCIETE GENERALE,
as the Documentation Agent for the Lenders
CITIBANK, N.A.,
as the Syndication Agent for the Lenders
THE BANK OF NOVA SCOTIA and
BANK OF AMERICA, N.A.
as the Fronting Banks
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders.
Co-Lead Arrangers and Co-Book Managers:
THE BANK OF NOVA SCOTIA
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, INC.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 6, 2000 (which shall be
a "Covered Facility" under (and as defined in) the Loan Documents referred
to below), is among WARNACO INC., a Delaware corporation (the "U.S.
Borrower"), DESIGNER HOLDINGS, LTD., a Delaware corporation (the "Sub
Borrower"), AUTHENTIC FITNESS PRODUCTS INC., a Delaware corporation
("Authentic Fitness Products") and the other wholly-owned Domestic
Subsidiaries of (and designated by) THE WARNACO GROUP, INC., a Delaware
corporation ("Group") from time to time in accordance with Section 11.18
and set forth from time to time on Schedule I annexed hereto (the "Warnaco
Sub Borrowers"), WARNACO (HK) LTD., a company organized under the laws of
Barbados ("Warnaco (HK)"), WARNACO B.V., a company organized under the laws
of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇ ▇.▇."), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ B.V., a company
organized under the laws of The Netherlands ("Warnaco Netherlands"),
WARNACO HOLLAND B.V., a company organized under the laws of The Netherlands
("Warnaco Holland"; together with Warnaco (HK), Warnaco B.V. and Warnaco
Netherlands, the "Foreign Borrowers"), the various financial institutions
as are or may become parties hereto (collectively, the "Lenders"), SOCIETE
GENERALE ("SG"), as documentation agent (in such capacity, the
"Documentation Agent") for the Lenders, CITIBANK, N.A. ("Citibank"), as
syndication agent (in such capacity, the "Syndication Agent") for the
Lenders, THE BANK OF NOVA SCOTIA ("Scotiabank"), as administrative agent
(in such capacity, the "Administrative Agent") for the Lenders, Scotiabank
and Bank of America, N.A., as the Fronting Banks, Scotiabank and Citibank,
as the managing agents (in such capacity, the "Managing Agents") for the
Lenders and Scotiabank and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ("SSBI") as co-lead
arrangers and co-book managers (the "Arrangers").
W I T N E S S E T H:
-------------------
WHEREAS, the Borrowers, Group and Scotiabank are parties to the
Credit Agreement, dated as of July 27, 2000 (as amended, supplemented,
amended and restated or otherwise modified prior to the date hereof, the
"Interim Credit Agreement"), pursuant to which, Scotiabank has issued
letters of credit for the account of the Borrowers and certain Subsidiaries
of Group (the "Interim Letters of Credit");
WHEREAS, under the Amended Trade Credit Agreement (as defined
below), Scotiabank has issued letters of credit (the "Existing Letters of
Credit"), created acceptances (the "Existing Acceptances") and made loans
(the "Existing Loans") to or for the account of one or more Borrowers and
certain Subsidiaries of certain Borrowers (including, in some cases, their
respective divisions);
WHEREAS, pursuant to this Agreement the Borrowers desire to obtain
Commitments from the Lenders and the Fronting Banks pursuant to which
(a) the Interim Letters of Credit will for all purposes be
deemed to be "Letters of Credit" issued under the terms of this
Agreement and, furthermore, additional Letters of
Credit will from time to time be issued by the Fronting Banks for
the account of certain Obligors for the purposes set forth in
Section 8.1.2 and, under the several obligations hereunder, each of
the Lenders will participate in such Letters of Credit (including
all Interim Letters of Credit);
(b) Acceptances will be created by the Fronting Banks for
the account of certain Obligors for the purposes set forth in
Section 8.1.2 and each of the Lenders will participate in such
Acceptances; and
(c) Loans will be made by the Fronting Banks to the
Borrowers for the purposes set forth in Section 8.1.2 and each of
the Lenders will participate in or make such Loans; and
WHEREAS, the Fronting Banks and the Lenders are willing, on the
terms and subject to the conditions hereinafter set forth (including
Article VI), to extend such Commitments hereunder, make and participate in
such Loans, issue and participate in such Letters of Credit and create and
participate in such Acceptances;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular
and plural forms thereof):
"Acceptance" means, collectively, all acceptances created by either
Fronting Bank under this Agreement.
"Acceptance Availability" means, at any time, the then existing
Commitment Amount minus the sum of (i) the outstanding principal amount of
all Loans plus (ii) the amount of all Acceptance Obligations plus (iii) all
Letter of Credit Outstandings.
"Acceptance Commitment" means each Fronting Bank's obligation to
create Acceptances pursuant to Section 2.1.2.
"Acceptance Obligations" means the sum of (a) the aggregate face
amount of all unmatured Acceptances plus (b) the aggregate face amount of
all unpaid and outstanding Acceptance Reimbursement Obligations.
"Acceptance Reimbursement Obligation" is defined in Section 4.6.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 10.4.
"Agent" means, as the context may require, the Administrative
Agent, the Documentation Agent and/or the Managing Agents.
"Agreement" means, on any date, this Credit Agreement as originally
in effect on the Effective Date and as thereafter from time to time
amended, supplemented, amended and restated, or otherwise modified and in
effect on such date.
"Aggregate Amount" of any Lender means, as of the Effective Date,
the amount set forth on Schedule V attached hereto (which assumes that all
extensions of credit under the Amended Trade Credit Agreement and the
Bilateral Agreements have been repaid in full), as modified from time to
time after the Effective Date as a result of assignments under the Amended
Trade Credit Agreement or in accordance with Section 11.11.1.
"Alternate Base Rate" means, on any date and with respect to all
Base Rate Loans, a fluctuating rate of interest per annum equal to the
higher of
(a) the rate of interest most recently established by
Scotiabank at its Domestic Office as its base rate for Dollar
loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate
of interest determined by Scotiabank in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each
change in the Alternate Base Rate. The Administrative Agent will give
notice promptly to the U.S. Borrower of changes in the Alternate Base Rate.
"Amended Trade Credit Agreement" means the Sixth Amended and
Restated Credit Agreement, dated as of November 17, 1999 (as further
amended, supplemented, waived or otherwise modified from time to time),
among the Borrowers, Group, certain financial institutions, SG, as the
documentation agent, Citibank, as the syndication agent and Scotiabank as
the administrative agent and the fronting bank.
"Amended Trade Termination Date" means the date on which all
Obligations under (and as defined in) the Amended Trade Credit Agreement
are paid in cash in full and all Existing Letters of Credit and Existing
Acceptances have terminated or expired.
"Applicable Exchange Rate" shall mean, on any day, with respect to
any Qualified Foreign Currency, the foreign exchange rate reflected in The
Wall Street Journal at which Dollars were offered on the preceding Business
Day for such Qualified Foreign Currency; provided, however, that if for any
reason, no such rate is provided, the Administrative Agent may use any
reasonable method it deems appropriate for leading commercial banks to
determine such rate, and such determination shall be conclusive absent
manifest error.
"Applicable Location" means (i) except as provided in clauses (ii)
and (iii), New York, (ii) except as provided in clause (iii), in the case
of Non-U.S. Letters of Credit issued for the account of the Foreign
Borrowers, London, and (iii) in the case of Non-U.S. Letters of Credit
issued for the account of Warnaco (HK), Hong Kong.
"Applicable Margin" means, on any date, a percentage per annum
determined by reference to the Debt Rating in effect on such date as
determined by reference to clause (a) of Section 2.4 of the Modification
Agreement, with all other terms of the Modification Agreement to which
reference is made in such Section, together with all related definitions
and ancillary provisions, being hereby incorporated into this Agreement by
this reference as though specifically set forth in this definition) less
the Applicable Percentage in effect from time to time in accordance with
clause (c) of Section 2.4 of the Modification Agreement.
"Applicable Time" shall mean (i) except as provided in clauses (ii)
and (iii), New York time, (ii) except as provided in clause (iii), in the
case of actions or notices by or relating to the Foreign Borrowers, London
time, and (iii) in the case of any actions or notices by or relating to
Warnaco (HK), Hong Kong time.
"Arrangers" is defined in the preamble.
"Assignee Lender" is defined in Section 11.11.1.
"Authentic Fitness Products" is defined in the preamble.
"Authorized Officer" means, relative to any Borrower or any other
Obligor, those of its officers whose signatures and incumbency shall have
been certified to the Managing Agents and the Lenders pursuant to Section
6.1.1.
"BofA" means Bank of America, N.A..
"Base Rate Loan" means a Loan bearing interest at a fluctuating
rate determined by reference to the Alternate Base Rate.
"Bilateral Agreements" means the agreements identified in items B.6
and B.8 of Schedule II of the Intercreditor Agreement.
"Borrowers" means, collectively, the U.S. Borrower, the Foreign
Borrowers, the Warnaco Sub Borrowers and the Sub Borrower.
"Borrowing" means the making of Loans of the same type and, in the
case of LIBO Rate Loans, having the same Interest Period by a Fronting Bank
(on the Effective Date or otherwise) following a Disbursement or the
maturity of an Acceptance and the funding of a Lender's Percentage of such
Loans, in each case in accordance with the terms of this Agreement;
provided, that each Fronting Bank will be obligated only to make Loans in
respect of Disbursements under Letters of Credit and upon the maturity of
Acceptances, in each case issued or created by such Fronting Bank.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of a Borrower, substantially in the form
of Exhibit C hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be
closed (i) in, except as provided in clauses (ii) and (iii), New
York or, (ii) except as provided in clause (iii), in the case of
actions relating to the Foreign Borrowers, in London, or (iii) in
the case of actions relating to Warnaco (HK), in Hong Kong; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in
Dollars are carried on in the London interbank market.
"Calculation Date" shall mean (a) the last Business Day of each
calendar month and (b) at any time when the sum of the outstanding
principal amount of all Loans plus the amount of all Acceptance Obligations
plus all Letter of Credit Outstandings exceeds 95% of the then-existing
Commitment Amount, the last Business Day of each calendar week (or at the
option of the Administrative Agent any longer period).
"Citibank" is defined in the preamble.
"Commitment" means, as the context may require, the Loan
Commitment, Letter of Credit Commitment or Acceptance Commitment.
"Commitment Amount" means $400,000,000, as the Commitment Amount
may be permanently reduced pursuant to Section 2.2; provided, that such
amount is inclusive of the aggregate Stated Amount of the Interim Letters
of Credit deemed to be issued on the Effective Date under this Agreement,
and, further, the availability under the Commitment Amount on any day shall
(for purposes of other than calculating the Facility Fee) be decreased by
the Existing Amount on such day, after giving effect to any Credit
Extensions made to refinance Disbursements under Existing Letters of Credit
or Existing Acceptances.
"Commitment Termination Date" means the earliest of
(a) August 12, 2002;
(b) the date on which the Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Commitments to make further Credit Extensions to the Obligors shall
terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of a Bankruptcy Event; or
(b) the occurrence and continuance of any other Event of
Default and either (i) the declaration by the Majority Lenders (or,
if the Termination Date has not yet occurred, then the Required
Lenders) of the Obligations to be due and payable pursuant to
Section 9.3, or (ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the direction of
the Majority Lenders (or, if the Termination Date has not yet
occurred, then the Required Lenders pursuant to Section 5.1 of the
Modification Agreement), to the U.S. Borrower that the Commitments
have been terminated.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of a
Borrower, substantially in the form of Exhibit D hereto.
"Credit Extension" means and includes
(a) the advancing of any Loans by the Lenders in connection
with a Borrowing (including the making of a Loan by either Fronting
Bank to a Borrower on a Disbursement Date or the Maturity Date of
an Acceptance, in each case issued or created by such Fronting Bank
and the refunding and refinancing of such Loans by the Lenders);
and
(b) any (i) issuance or extension by either Fronting Bank of
a Letter of Credit or (ii) creation by either Fronting Bank of an
Acceptance.
"Default" means any Event of Default or any condition, occurrence
or event which, after notice or lapse of time or both, would constitute an
Event of Default.
"Designation and Release Certificate" means the Designation and
Release Certificate, substantially in the form of Exhibit G attached
hereto, executed and delivered by Group pursuant to Section 11.18.
"Disbursement" means any payment by a Fronting Bank made under a
Letter of Credit issued by such Fronting Bank to the applicable Letter of
Credit Beneficiary.
"Disbursement Date" is defined in Section 4.5.
"Documents" means all bills of lading, air waybills, ocean bills,
warehouse (and other) receipts and other documents, instruments or other
evidence of title issued in connection with the Letters of Credit.
"Documentation Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Documentation Agent pursuant to Section 10.4.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Lender Assignment Agreement or such other office of a Lender (or any
successor or assign of such Lender) within the United States as may be
designated from time to time by notice from such Lender, as the case may
be, to each other Person party hereto.
"Domestic Subsidiary" means any Subsidiary of Group (other than the
U.S. Borrower) organized under the laws of the United States or any state
thereof.
"Draft" means and includes any draft, ▇▇▇▇, cable or written demand
for payment or receipt drawn or issued under a Letter of Credit.
"Drawer" is defined in Section 4.1.3.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 11.8.
"Effective Date Loans" is defined in clause (b) of Section 2.1.1.
"Event of Default" is defined in Section 9.1.
"Excess" is defined in Section 11.16.
"Existing Acceptances" is defined in the second recital.
"Existing Amount" means (without duplication), the sum of (i) the
outstanding extensions of credit under the Bilateral Agreements and (ii)
the aggregate stated amount of all undrawn Existing Letters of Credit
outstanding, the aggregate face amount of outstanding unmatured Existing
Acceptances, the aggregate amount of unpaid obligations of the Borrowers to
reimburse Scotiabank for disbursements under Existing Letters of Credit and
under Existing Acceptances and the outstanding principal amount of Existing
Loans, in each case from time to time under the Amended Trade Credit
Agreement.
"Existing Letters of Credit" is defined in the second recital.
"Existing Loans" is defined in the second recital.
"Facility Fee" is defined in Section 3.3.4.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to
(a) 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 in New York) by the Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day in New York, the average of the quotations for such
day on such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive, absent manifest error) that it is unable
to ascertain the Federal Funds Rate for any reason, including the inability
or failure of the Administrative Agent to obtain sufficient bids or
publications in accordance with the terms hereof, the rate announced by the
Administrative Agent at its New York Agency as its "Base Rate New York"
shall be the Alternate Base Rate until the circumstances giving rise to
such inability no longer exists.
"Fee Letter" means, collectively, the confidential fee letter,
dated as of the date hereof between the U.S. Borrower and the
Administrative Agent and the confidential fee letter, dated as of the date
hereof, between the U.S. Borrower and BofA, in each case as the same may
have been amended, supplemented or otherwise modified from time to time.
"for the account of", "for its account" and similar phrases used in
this Agreement with reference to Acceptances mean Acceptances created for
the account of such Person, on the behalf of such Person or at the
direction of such Person.
"Foreign Borrowers" is defined in the preamble.
"Fronting Bank" means, collectively, Fronting Bank(BNS) and
Fronting Bank(BofA), in each case in their capacity as an issuer of Letters
of Credit and creator of Acceptances (in each case, regardless of which
office, branch or agency of Scotiabank or BofA issues a Letter of Credit or
creates an Acceptance) and in their capacity as a Lender of Loans made
prior to a Funding Date pursuant to the terms of this Agreement.
"Fronting Bank(BNS)" means Scotiabank, in its capacity as a
Fronting Bank.
"Fronting Bank(BofA)" means Bank of America, N.A., in its capacity
as a Fronting Bank.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funding Date" is defined in clause (c) of Section 2.3.
"Goods" means, collectively, all goods (including all inventory),
wares, merchandise and other commodities purchased by or shipped to or to
the order of a Borrower under or by virtue of or in connection with the
issuance of a Letter of Credit.
"Group" is defined in the preamble.
"Guaranty" means, collectively, the Parent Guaranty and the
Domestic Subsidiary Guaranty, in each case as amended, supplemented,
amended and restated or otherwise modified from time to time.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Trade Document refer to this
Agreement or such other Trade Document, as the case may be, as a whole and
not to any particular Section, paragraph or provision of this Agreement or
such other Trade Document.
"including" means including without limiting the generality of any
description preceding such term.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Intercreditor Agreement" means the Intercreditor Agreement, dated
as of the date hereof (as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with Section 2.2 of the
Intercreditor Agreement) among Group, certain of its Subsidiaries, the U.S.
Borrower, Scotiabank, as administrative agent, Scotiabank and SSBI as lead
arrangers, Scotiabank and Citibank, as debt coordinators, Scotiabank, SSBI,
▇▇▇▇▇▇, Commerzbank and SG, as arrangers, certain other financial
institutions from time to time parties thereto and the Collateral Trustee,
in the form of Exhibit H attached hereto.
"Interest Period" means, relative to any LIBO Rate Loans, the
period beginning on (and including) the date on which such LIBO Rate Loan
is made as a LIBO Rate Loan pursuant to Section 2.3 or 2.4 and ending on
(but excluding) the day which numerically corresponds to such date three or
six months thereafter (or, if such month has no numerically corresponding
day, on the last Business Day of such month); provided, however, that
(a) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same
duration;
(b) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
next following Business Day (unless such next following Business
Day is the first Business Day of a calendar month, in which case
such Interest Period shall end on the Business Day next preceding
such numerically corresponding day); and
(c) no Interest Period may end later than the Stated
Maturity Date for such Loan, and in furtherance thereof
(notwithstanding any provision of any Trade Document to the
contrary), if any Loan is made (or continued) as a LIBO Rate Loan
on or subsequent to May 12, 2002, the last day of the Interest
Period for such Loan shall be August 12, 2002.
"Interim Credit Agreement" is defined in the first recital.
"Interim Loans" means, collectively, all loans made to Group or any
Subsidiary of Group from (and including) July 27, 2000 through the
Effective Date, the proceeds of which were applied (directly or indirectly)
to reimburse disbursements under letters of credit issued for the benefit
of Group or any of its Subsidiaries, as certified by Group pursuant to
Section 6.1.3 and further set forth in Schedule III hereto.
"Issuance Request" means either (i) a request delivered by a
Borrower to Fronting Bank(BNS) in accordance with the provisions of the
Tradexpress Agreement or to Fronting Bank(BofA) in accordance with the
provisions of the MicroTrade Agreement or (ii) a request and certificate
duly executed by an Authorized Officer of a Borrower and delivered to
either Fronting Bank, in substantially the form of Exhibit B attached
hereto (with such changes thereto as may be agreed upon from time to time
by the Administrative Agent and the U.S. Borrower).
"Joinder Agreement" means the Joinder Agreement, substantially in
the form of Exhibit F attached hereto, executed and delivered by each
Warnaco Sub Borrower in accordance with Section 11.18 and in effect until
such Warnaco Sub Borrower shall become a Released Borrower.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit E hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" means, collectively, the Interim Letters of
Credit and the other letters of credit issued from time to time on and
after the Effective Date under the terms of this Agreement.
"Letter of Credit Availability" means, at any time, the then
existing Commitment Amount minus the sum of (i) the aggregate outstanding
principal amount of all Loans, plus (ii) the aggregate amount of all Letter
of Credit Outstandings plus (iii) Acceptance Obligations.
"Letter of Credit Beneficiary" means a beneficiary of a Letter of
Credit.
"Letter of Credit Commitment" means, as to a particular Fronting
Bank, such Fronting Bank's obligation to issue Letters of Credit pursuant
to Section 2.1.2.
"Letter of Credit Outstandings" means, at any time, an amount equal
to the sum of
(a) the aggregate Stated Amount at such time of all Letters
of Credit then outstanding and undrawn (as such aggregate Stated
Amount shall be adjusted, from time to time, as a result of
drawings, the issuance of Letters of Credit, or otherwise),
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Loan" means a Loan bearing interest, at all times during
an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Lender Assignment Agreement or such other office of any Lender as
designated from time to time by notice from such Lender to the U.S.
Borrower and the Administrative Agent, whether or not outside the United
States, which shall be making or maintaining LIBO Rate Loans hereunder.
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Loan Commitment" means, as to a particular Fronting Bank, such
Fronting Bank's (in such capacity) obligation to make Loans to the
Borrowers on (a) a Disbursement Date and (b) an Acceptance maturity date,
in each case only as to Letters of Credit and Acceptances issued or created
by such Fronting Bank.
"Loans" is defined in Section 2.1.1.
"L/C Reimbursement Obligation" is defined in Section 4.6.
"Majority Lenders" means, at any time (and without duplication),
Lenders holding more than 50% of the then aggregate outstanding principal
amount of the Loans, face amount of Letters of Credit and stated amount of
Acceptances or, if no Loans, Letters of Credit and/or Acceptances are then
outstanding, Lenders obligated to make (or risk participate in) more than
50% of Loans, Letters of Credit and Acceptances (or, if Commitments have
been terminated, then as in effect immediately prior to such termination);
provided, that so long as either Fronting Bank (in such capacity) has any
Loans, Letters of Credit or Acceptances outstanding and owing to it from
any Borrower, each Lender will be deemed to have outstanding and owing to
it a principal amount equal to such Lender's Percentage multiplied by the
aggregate outstanding principal amount of Loans, face amount of Letters of
Credit and stated amount of Acceptances owing to each Fronting Bank.
"Managing Agents" is defined in the preamble.
"Material Adverse Effect" means a material adverse effect on (a)
the rights and remedies of any Managing Agent or Lender under any Trade
Document or (b) the validity or enforceability of any Trade Document.
"Maturity Date" means, relative to any Acceptance, the date of
maturity therefor.
"Maximum Rate" is defined in Section 11.16.
"MicroTrade Agreement" means the Electronic Services Agreement for
Letters of Credit and Related Services, dated as of the date hereof and
executed and delivered by the U.S. Borrower, certain Obligors and BofA, as
amended, supplemented and amended and restated or otherwise modified from
time to time.
"Modification Agreement" means the Amendment, Modification,
Restatement and General Provisions Agreement, dated as of the date hereof
(as amended, supplemented, amended and restated or otherwise modified from
time to time in accordance with Section 9.2 of the Modification Agreement),
among Group, certain of its Subsidiaries, the U.S. Borrower, certain
Subsidiaries of Group, Scotiabank and Citibank, as debt coordinators,
Scotiabank, as administrative agent and the Collateral Trustee, in the form
of Exhibit I attached hereto.
"Non-U.S. Letter of Credit" means any Letter of Credit which
provides for the payment of drawings in a Qualified Foreign Currency.
"Note" means any promissory note of any Borrower payable to the
order of any Lender (including each Fronting Bank), in the form of Exhibit
A (as any such promissory note may be amended, endorsed or otherwise
modified from time to time), evidencing the aggregate Debt of such Borrower
to such Lender resulting from outstanding Loans made by such Lender, and
also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Obligations" has the meaning set forth in the Modification
Agreement, as such definition is applicable to Obligations of Group, the
Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes, any Letter of Credit, any Acceptance and each other
Trade Document.
"Obligor" means Group, the Borrowers and each other Person (other
than the Agents, the Fronting Banks and the Lenders) obligated under any
Loan Document.
"Order" is defined in clause (b) of Section 4.6.
"Organic Document" means, relative to any Obligor, as applicable,
its certificate of incorporation, by-laws, certificate of formation or
limited liability company agreement, and all shareholder agreements, voting
trusts and similar arrangements applicable to any of the authorized shares
of Equity Interests or other ownership interest of such Obligor.
"Participant" is defined in Section 11.11.2.
"Percentage" means, relative to any Lender, the percentage set
forth opposite its name on Schedule II hereto as its percentage of the
Commitment Amount on the Effective Date (including as reduced due to such
Lender's obligations under the Amended Trade Credit Agreement and, in the
case of Citibank and Standard Chartered, under their Bilateral Agreements)
or set forth in a Lender Assignment Agreement, as such percentage may be
adjusted from time to time pursuant to the terms hereof or a Lender
Assignment Agreement executed by such Lender and its Assignee Lender and
delivered pursuant to Section 11.11.1. At all times prior to the Amended
Trade Termination Date and the termination of obligations under the
Bilateral Agreements, the Percentage of a Lender will be calculated from
time to time on any given date by the Administrative Agent, reflecting the
aggregate outstanding amount, prior to the termination of the Bilateral
Agreements and the Amended Trade Credit Agreement, of a Lender's commitment
less amounts outstanding under the Bilateral Agreements (in the case of
Citibank and Standard Chartered) and amounts outstanding under the Amended
Trade Credit Agreement (in the case of all Lenders) and, as a result, a
Lender's Percentage may increase or decrease at times prior to the Amended
Trade Termination Date and the termination of obligations under the
Bilateral Agreements, with the Administrative Agent's calculation being
conclusive absent manifest error.
"Qualified Foreign Currency" means any currency other than Dollars
which is approved by the Administrative Agent in its sole discretion and,
in any event, for which both an Applicable Exchange Rate and a Spot
Exchange Rate may be calculated.
"Quarterly Payment Date" means the first day of each April, July,
October and January or, if any such day is not a Business Day in New York,
the next succeeding Business Day in New York.
"Received Amount" is defined in clause (c) of Section 4.6.
"Reimbursement Obligation" is defined in clause (a) of Section 4.6.
"Released Borrower" is defined in clause (b) of Section 11.18.
"Reset Date" is defined in Section 5.7.
"SG" is defined in the preamble.
"Scotiabank" is defined in the preamble.
"Spot Exchange Rate" shall mean, on any date of determination with
respect to any Qualified Foreign Currency, the spot rate at which Dollars
are offered on such day by Scotiabank in the Applicable Location for such
Qualified Foreign Currency at approximately 11:00 a.m. (Applicable Time);
provided, however, that if for any reason, no such spot rate is being
quoted, the Administrative Agent shall use the Applicable Exchange Rate for
such Qualified Foreign Currency.
"SSBI" is defined in the preamble.
"Standard Chartered" means Standard Chartered Bank.
"Stated Amount" of each Letter of Credit means the maximum amount
of such Letter of Credit that may then be drawn under such Letter of Credit
whether or not the conditions for drawing thereunder have been met.
"Stated Expiry Date" is defined in clause (c) of Section 4.1.1.
"Stated Maturity Date" means, in the case of any Loan, the date
which is six months following the date of the making of such Loan (in the
case of a Loan initially made as a LIBO Rate Loan) or (in the case of a
Loan initially made as a Base Rate Loan), the date that is 180 days after
the making of such Loan or, in all cases (if earlier), August 12, 2002.
"Stated Rate" is defined in Section 11.16.
"Sub Borrower" is defined in the preamble.
"Syndication Agent" is defined in the preamble.
"Trade Document" means this Agreement, each Note, the Tradexpress
Agreement, the MicroTrade Agreement, each Joinder Agreement, each Fee
Letter and each other agreement, document or instrument delivered in
connection with this Agreement, whether or not specifically mentioned
herein, together with any amendments, supplements or modifications hereof
or thereof.
"Trade Termination Date"means the date on which all Commitments
have terminated, all Letters of Credit have expired, all Acceptances have
matured and all Obligations have been paid and performed in full.
"Tradexpress Agreement" means the Tradexpress Agreement executed
and delivered by the U.S. Borrower, certain Obligors and Scotiabank
(including any Tradexpress Teletransmission Agreement executed and
delivered by any Warnaco Sub Borrower in connection with any Joinder
Agreement), as amended, supplemented, amended and restated or otherwise
modified from time to time.
"type" means relative to any Loan, the portion thereof, if any,
being maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCP" is defined in Section 11.15.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"U.S. Borrower" is defined in the preamble.
"U.S. Dollar Equivalent" means, with respect to any Non-U.S. Letter
of Credit, the amount determined as provided in Section 4.1.2.
"U.S. Letter of Credit" means any Letter of Credit which provides
for the payment of drawings in Dollars.
"Usury Restraint" is defined in Section 11.16.
"Warnaco Sub Borrower" is defined in the preamble.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, (i) terms for which meanings are provided in
this Agreement shall have such meanings when used in each Note, Borrowing
Request, Continuation/Conversion Notice, Trade Document, notice and other
communication delivered from time to time in connection with this Agreement
or any other Trade Document and (ii) furthermore, unless otherwise defined
herein or the context otherwise requires, terms defined in the Modification
Agreement and the Intercreditor Agreement, when used in this Agreement and
each other Trade Document, shall have the meanings set forth in the
Modification Agreement or Intercreditor Agreement, as applicable.
SECTION 1.3. Cross-References. Unless otherwise specified,
references in this Agreement and in each other Trade Document to any
Article or Section are references to such Article or Section of this
Agreement or such other Trade Document, as the case may be, and, unless
otherwise specified, references in any Article, Section or definition to
any clause are references to such clause of such Article, Section or
definition.
SECTION 1.4. Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein shall be interpreted,
all accounting determinations and computations hereunder shall be made, and
all financial statements required to be delivered hereunder or thereunder
shall be prepared in accordance with, GAAP.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the
conditions of this Agreement (including Article VI), each Lender severally
agrees as follows:
SECTION 2.1.1. Loan Commitment. Subject to the terms of this
Agreement (including Article VI)
(a) each Fronting Bank severally agrees that it will from
time to time on any Business Day occurring prior to the Commitment
Termination Date, make loans (the "Loans") to (i) the U.S. Borrower
(in the case of each Letter of Credit issued by (and only by) such
Fronting Bank and each Acceptance created by (and only by) such
Fronting Bank for the account of the U.S. Borrower or a Subsidiary
thereof), (ii) the Foreign Borrowers (in the case of each U.S.
Letter of Credit and each Non-U.S. Letter of Credit issued by (and
only by) such Fronting Bank for the account of such Foreign
Borrower), (iii) each Warnaco Sub Borrower (in the case of each
Letter of Credit issued by (and only by) such Fronting Bank and
each Acceptance created by (and only by) such Fronting Bank for the
account of such Warnaco Sub Borrower or its Subsidiary) and (iv)
the Sub Borrower (in the case of each Letter of Credit issued by
(and only by) such Fronting Bank and each Acceptance created by
(and only by) such Fronting Bank for the account of the Sub
Borrower or a Subsidiary thereof), in each case, as applicable, on
(A) the Disbursement Date of each Letter of Credit issued by that
Fronting Bank and (B) the Maturity Date of each Acceptance created
by that Fronting Bank, (in each case) for a period not to exceed
the Stated Maturity Date for such Loan in a principal amount equal
to the aggregate amount of (x) Disbursements made under one or more
Letters of Credit issued by that Fronting Bank on such Disbursement
Date and (y) matured and unreimbursed Acceptances created by that
Fronting Bank;
(b) on or within one Business Day following the Effective
Date, Fronting Bank(BNS) will make LIBO Rate Loans (with the last
day of the applicable Interest Period as set forth on Schedule III
hereto) to the Borrowers in the aggregate amount for each Borrower
of its Interim Loans (in accordance with Section 2.3) and to repay
Citibank and Standard Chartered in an amount necessary to reduce
Citibank's outstanding extensions of credit under its Bilateral
Agreement to $84,364,000 and to reduce Standard Chartered's
outstanding extensions of credit under its Bilateral Agreement to
$18,700,000 (with such amounts being referred to as "Effective Date
Loans"); and
(c) each Lender (other than a particular Fronting Bank in
its capacity as Fronting Bank) severally agrees that such Lender
will participate in the Loans made by each Fronting Bank (other
than such Fronting Bank) pursuant to this Agreement and, if
required pursuant to the terms of this Agreement, such Lender will
refinance and reimburse each Fronting Bank for the outstanding
principal amount of Loans previously made by such Fronting Bank in
an amount equal to its Percentage of the aggregate amount of all
(or, if elected by such Fronting Bank, less than all) Loans
(determined, in the sole discretion of such Fronting Bank, as
between Loans made to the U.S. Borrower, the Foreign Borrowers, the
Warnaco Sub Borrowers and the Sub Borrower) then outstanding and
owing to such Fronting Bank (in its capacity as a Fronting Bank),
and upon the receipt by a Fronting Bank of immediately available
funds from a Lender in respect of the reimbursement or refinancing
of a Loan previously made by and owing to such Fronting Bank, the
amount so received by such Fronting Bank will thereafter be a Loan
to the applicable Borrower owing to such Lender (and no longer
owing to such Fronting Bank). No Lender's obligation to make any
Loan shall be affected by any other Lender's failure to make any
Loan, and each Fronting Bank shall have the independent and
absolute right to determine when, if and how much of the Loans made
by that Fronting Bank will be required to be reimbursed by the
Lenders, even if the other Fronting Bank is not at that time
requiring Lenders to reimburse it for Loans. On the terms and
subject to the conditions hereof, the Borrowers may from time to
time borrow Loans and continue or convert such Loans as Base Rate
Loans or LIBO Rate Loans pursuant to the terms hereof, but once a
particular Loan is repaid or prepaid by a Borrower, it cannot be
reborrowed. Notwithstanding anything contained herein to the
contrary, so long as any Lender shall be in default in its
obligation to fund its pro rata share of any Loans (as notified to
such Lender by either Fronting Bank, with each Fronting Bank
agreeing to use good faith efforts to give such notification
promptly following the occurrence of such default) or shall have
rejected its obligations under the Trade Documents, the Loan
Documents (or any one of them), then (without in any way excusing a
Lender from its obligation under the Trade Documents),
(x) such Lender shall not be entitled to receive any
payments of principal of or interest on its pro rata share
of the Loans or its share of any fees payable hereunder
(including fees payable pursuant to Section 3.3) unless and
until (i) the Loans of all the other Lenders and all
interest thereon have been paid in full, (ii) such failure
to fulfill its obligation to fund is cured or (iii) the
Obligations under this Agreement shall have been declared or
shall have become immediately due and payable;
(y) for purposes of voting or consenting to matters
with respect to the Trade Documents or the Loan Documents,
such Lender shall be deemed not to be a "Lender" hereunder
and such Lender's Percentage shall each be deemed to be zero
(0) (with each other Lender's Percentage being increased
proportionately for purposes of the definition of "Required
Lenders" so that all such non-defaulting Lenders'
Percentages shall collectively equal 100%); and
(z) each Fronting Bank's and the Borrower's rights
against such Lender shall remain in full force and effect
and shall not in any manner be adversely affected;
No Commitment of any Lender shall be increased or otherwise affected by any
such failure or rejections by any other Lender. Any payments of principal
of or interest on Obligations which would, but for this Section, be paid to
any Lender, shall be paid to the Lenders who shall not be in default under
their respective obligations under the Trade Documents, the Loan Documents
(or any one of them) and who shall not have rejected any obligations under
the Trade Documents, the Loan Documents (or any one of them), for
application to the Obligations or cash collateral in respect of Letters of
Credit or Acceptances in such manner and order (pro rata among such
Lenders) as shall be determined by the Administrative Agent. The parties
hereto acknowledge and agree that a Lender's failure to make a Loan based
on any Borrower's failure to satisfy one or more of the conditions
precedent to the making of Loans set forth in Article VI shall not be
construed as such Lender being in default of its obligations to fund its
pro rata share of Loans or a rejection of such Lender's obligations under
the Trade Documents, the Loan Documents (or any one of them).
SECTION 2.1.2. Commitment to Issue Letters of Credit and Create
Acceptances. From time to time on any Business Day prior to the Commitment
Termination Date, each Fronting Bank severally agrees that it will issue
and create the Letters of Credit and the Acceptances, in
accordance with Article IV, and each Lender will participate in those
Letters of Credit and Acceptances in accordance with the terms of this
Agreement.
SECTION 2.1.3. Lenders Not Required to Make Loans and Fronting
Banks Not Required to Issue Letters of Credit or Create Acceptances Under
Certain Circumstances. In addition to the other terms of this Agreement
(including Article VI):
(a) No Lender (other than, in the case of clause (a)(ii), a
Fronting Bank acting in such capacity) shall be required to make
any Loan if, after giving effect thereto (and the payment of any
Reimbursement Obligations with the proceeds of such Loans or the
refunding and refinancing of Loans made by a Fronting Bank with the
proceeds of the Loans made by the Lenders hereunder), the aggregate
outstanding principal amount of all Loans
(i) together with the aggregate amount of all Letter
of Credit Outstandings and all Acceptance Obligations, would
exceed the Commitment Amount, or
(ii) of such Lender, (A) together with such Lender's
Percentage of the aggregate amount of all Letter of Credit
Outstandings and all Acceptance Obligations would exceed the
amount of such Lender's Percentage multiplied by the
Commitment Amount or (B) together with loans, letters of
credit and acceptances made (or risk participated in) by
such Lender under the Amended Trade Credit Agreement, plus
Loans, Letters of Credit and Acceptances made (or risk
participated in) by such Lender hereunder, would exceed such
Lender's Aggregate Amount;
(b) Neither Fronting Bank shall be required to issue any
Letter of Credit or extend for an additional period of time the
Stated Expiry Date of a previously issued Letter of Credit if,
after giving effect thereto the aggregate amount of all Letter of
Credit Outstandings, together with all Acceptance Obligations and
the aggregate outstanding principal amount of all Loans would
exceed the Commitment Amount or if such extension of credit would,
in the reasonable judgment of the applicable Fronting Bank after
consultation with the U.S. Borrower, after giving effect to each
Lender's obligation to risk participate in such Credit Extension
under the terms of this Agreement, and such Lender's obligations
(including risk participation obligations) under the Amended Trade
Credit Agreement and (in the case of Citibank and Standard
Chartered) under the Bilateral Agreements, result in such Lender's
obligations exceeding its Aggregate Amount;
(c) Neither Fronting Bank shall be required to create any
Acceptance if, (i) after giving effect thereto the aggregate amount
of all Acceptance Obligations, together with all Letter of Credit
Outstandings and the aggregate outstanding principal amount of all
Loans would exceed the Commitment Amount or if such extension of
credit would, in the reasonable judgment of the applicable Fronting
Bank after consultation with the U.S. Borrower, after giving effect
to each Lender's obligation to risk participate in such Credit
Extension under the terms of this Agreement, and such Lender's
obligations (including risk participation obligations) under the
Amended Trade Credit Agreement and (in the case of Citibank and
Standard Chartered) under the Bilateral Agreements, result in such
Lender's obligations exceeding its Aggregate Amount; (ii) any
requested Acceptance is not in form and substance reasonably
acceptable to the Fronting Bank that will issue such Acceptance or
(iii) an Acceptance is not in lieu of such Fronting Bank's
Disbursement obligation and the originally executed Letter of
Credit in respect of which such Acceptance is to be created has not
been received by such Fronting Bank for cancellation; and
(d) Neither Fronting Bank shall be required to make any Loan
on any Disbursement Date or Maturity Date if such Loan is requested
in respect of a Letter of Credit or Acceptance issued by the other
Fronting Bank or, after giving effect thereto (and the payment of
any Reimbursement Obligations with the proceeds of such Loans), the
aggregate outstanding principal amount of all Loans, together with
the aggregate amount of all Letter of Credit Outstandings and all
Acceptance Obligations, would exceed the Commitment Amount or if
such extension of credit would, in the reasonable judgment of the
applicable Fronting Bank after consultation with the U.S. Borrower,
after giving effect to each Lender's obligation to risk participate
in such Credit Extension under the terms of this Agreement, and
such Lender's obligations (including risk participation
obligations) under the Amended Trade Credit Agreement and (in the
case of Citibank and Standard Chartered) under the Bilateral
Agreements, result in such Lender's obligations exceeding its
Aggregate Amount.
SECTION 2.2. Reduction of the Commitment Amount. The U.S. Borrower
may, from time to time on any Business Day, (subject to the terms of the
Loan Documents) voluntarily and shall, as required pursuant to the terms of
the Loan Documents, mandatorily reduce the amount of the Commitment Amount;
provided, however, that all such voluntary reductions shall not (prior to
the Trade Termination Date), adversely affect the rights of either Fronting
Bank, be binding on each Obligor, require at least three Business Days'
prior notice to the Administrative Agent and be permanent.
SECTION 2.3. Borrowing Procedure; Interim Loans Refinanced With
Loans Hereunder. (a) Upon (i) any Disbursements being made in respect of
one or more Letters of Credit, (ii) the occurrence of any Maturity Date for
any Acceptance, (iii) any disbursement being made in respect of one or more
Existing Letters of Credit or (iv) the occurrence of any maturity date for
any Existing Acceptance (whether or not, in the case of Letters of Credit
or Existing Letter of Credit, such Letters of Credit or Existing Letters of
Credit were issued to support the obligations of any Borrower or any of
their Subsidiaries (or any of their respective divisions) and in the case
of Acceptances or Existing Acceptances, whether or not such Acceptances or
Existing Acceptances were created to support the obligations of the Warnaco
Sub Borrowers, the Sub Borrower, the U.S. Borrower or any of their
Subsidiaries (or any of their respective divisions)), the applicable
Borrower shall (unless it shall have given notice to the Administrative
Agent to the contrary prior to 3:00 p.m., Applicable Time, at least three
Business Days prior to the date of such Disbursement or disbursement or
occurrence of such Maturity Date or maturity date that no Loan is to be
made) be deemed to have delivered to the applicable Fronting Bank a
Borrowing Request pursuant to which such Borrower shall have been deemed to
irrevocably request that the applicable Fronting Bank (which originally
issued the Letter of Credit or Acceptance for which a Loan is being made)
make a LIBO Rate Loan to such Borrower with (subject to the terms of the
definition of "Interest Period") a six month Interest Period in a principal
amount equal to the aggregate amount of (A) in the case of U.S. Letters of
Credit (including Existing Letters of Credit), the Disbursements or
disbursements, and in the case of Non-U.S. Letters of Credit (including
Existing Letters of Credit), the U.S. Dollar Equivalent of the
Disbursements or disbursements made on such date or (B) in the case of the
U.S. Borrower, the Warnaco Sub Borrowers or the Sub Borrower, the aggregate
face amount of those Acceptances or Existing Acceptances having Maturity
Dates or maturity dates on such date, as applicable. Fronting Bank(BNS)
shall (solely) be obligated to make all of the Loans in respect of all
Existing Letters of Credit and Existing Acceptances. LIBO Rate Loans may
also be made on the date of a Disbursement upon the request of a Borrower
having a three month Interest Period which will, upon its maturity and
subject to the terms of Section 2.4, automatically be continued as a LIBO
Rate Loan in the same principal amount for one more three month Interest
Period (or, if less, the number of days remaining until August 12, 2002).
Each Borrower, as applicable, hereby acknowledges and agrees that each
Borrowing Request deemed to be delivered hereunder, the making of a Loan by
either Fronting Bank (including on or following the Effective Date or to
reimburse such Fronting Bank for Disbursements made under the Letters of
Credit issued by it, to reimburse Fronting Bank(BNS) under the Amended
Trade Credit Agreement for disbursements under Existing Letters of Credit,
to reimburse either Fronting Bank for payment made on the Maturity Date of
any Acceptance or to reimburse Fronting Bank(BNS) on the maturity date of
any Existing Acceptance), and the acceptance by any Borrower of the
proceeds of the Borrowing shall constitute a representation and warranty by
the Borrowers that on the date of such Borrowing (both immediately before
and after giving effect to such Borrowing and the application of the
proceeds thereof) the statements made in Section 6.2.1 are in each case
true and correct.
(b) Each of the parties hereto acknowledge and agree that upon the
satisfaction of the conditions precedent set forth in Article VI, the
Effective Date Loans and the Interim Loans shall be refinanced by and
replaced with Loans made by Fronting Bank(BNS) on or within one Business
Day following the Effective Date under the terms of this Agreement (and,
consequently, be Loans hereunder), and shall thereafter accrue interest and
fees pursuant to the terms hereof (with the Stated Maturity Date (and
corresponding last day of such Loan's Interest Period) for particular
Interim Loans and Effective Date Loans being the date set forth on Schedule
III hereto), and each Lender shall participate in such Loans in an amount
equal to such Lender's Percentage.
(c) Each Fronting Bank may, at any time (whether or not a Default
has occurred and is then continuing, and whether or not the other Fronting
Bank has made a similar demand), in its sole and absolute discretion,
demand that each other Lender make a Loan in an amount equal to such
Lender's Percentage on such date of the aggregate principal amount of all
or a portion of the Loans outstanding on the date such demand is made, and
may (in its sole discretion) elect which Loans made by it (as among the
Borrowers) are to be chosen as the Loans to be refunded by the Lenders,
with each Fronting Bank being able to require each Lender to make
additional Loans if such Lender's Percentage increases as a result of a
reduction in such Lender's exposure under the Amended Trade Credit
Agreement or, in the case of Citibank and Standard Chartered, such Lender's
exposure under its Bilateral Agreement. Each Lender (other than the
applicable Fronting Bank) irrevocably agrees that it shall (whether or not
the conditions to the making of a Credit Extension contained in Article VI
have been (or can be) satisfied) make such Loan by depositing the amount so
demanded in same day funds in an account specified by the applicable
Fronting Bank on or before 11:00 a.m. New York time on the first Business
Day following receipt of such a demand. Each Fronting Bank agrees to apply
all such funds received by it under this clause to refund and refinance the
Loans previously made by it to any Borrower, as identified in the demand
that it delivers to the Lenders pursuant to this clause. On the date (a
"Funding Date") that the Lenders (other than the applicable Fronting Bank)
advance funds to such Fronting Bank pursuant to this clause, the principal
amount so refunded and refinanced shall become a Loan to the Borrower
identified by such Fronting Bank outstanding under such Lender's Note (if a
Note was delivered, otherwise simply owing to such Lender) to that
particular Borrower and shall no longer be a Loan owed to such Fronting
Bank under such Fronting Bank's Note to that particular Borrower. All
interest payable with respect to any Loans made pursuant to this clause
shall be appropriately adjusted to reflect the period of time during which
such Loans were owing to the applicable Fronting Bank and, on and
subsequent to a Funding Date, such Loans were owing to the Lenders.
The obligation of each Lender to make Loans by way of advancing
immediately available funds to either Fronting Bank on a Funding Date to be
applied to refund and refinance the Loans previously made by such Fronting
Bank to the Borrowers (or any one of them) under this clause shall be
absolute and unconditional and shall not be affected by any circumstance,
happening or event, including (i) any set-off, counterclaim, recoupment,
defense or other right which any Lender may have against either Fronting
Bank, the Borrowers or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of any Default (including any event described in
clause (f) of Section 5.1 of the Modification Agreement) or the inability
of the Borrowers to otherwise satisfy the conditions precedent set forth in
Article VI; (iii) any adverse change in the condition (financial or
otherwise) of any Borrower or any other Obligor; (iv) the acceleration or
maturity of any Loans or other Obligations or the termination of any
Commitment after the making of any Loan; (v) any breach of this Agreement
or any other Trade Document by any Borrower, any other Obligor or any
Lender; or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. THE PARTIES HERETO
ACKNOWLEDGE AND AGREE THAT THE TERMS OF THIS CLAUSE AND SECTIONS 4.4, 4.5
AND 4.6 ARE A MATERIAL INDUCEMENT TO EACH FRONTING BANK AGREEING TO ITS
OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER TRADE DOCUMENTS.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the applicable Fronting Bank on or before
10:00 a.m., Applicable Time, on a Business Day, any Borrower may from time
to time irrevocably elect, on not less than three nor more than five
Business Days' notice that all, or any portion of any Loans made to it by
such Fronting Bank be, in the case of a LIBO Rate Loan, converted into a
Base Rate Loan or, if such Fronting Bank has made the applicable Loan as
one with a three month Interest Period, continued as a LIBO Rate Loan with
an Interest Period of three months (or, from and after May 12, 2002, the
number of days remaining through (but excluding) August 12, 2002), unless
such Loan is otherwise required to be paid pursuant to the terms of this
Agreement (including the first sentence of Section 3.1)); provided,
however, that (i) no portion of the outstanding principal amount of any
Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing and (ii) the maximum length of any
Interest Period or combination of Interest Periods for any particular Loan
shall not exceed six months or, if less, the number of days remaining until
August 12, 2002.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to participate in, and to make, continue or convert LIBO Rate
Loans hereunder by causing one of its foreign branches or affiliates (or an
international banking facility all of the Equity Interests or other
ownership interests of which are wholly-owned by such Lender) to make or
maintain such LIBO Rate Loan; provided, however, that such LIBO Rate Loan
shall nonetheless be deemed to have been made and to be held by such
Lender, and the obligation of the Lender to refund and refinance such LIBO
Rate Loan on the Funding Date and the obligation of the Borrowers to repay
such LIBO Rate Loan shall nevertheless be of or to such Lender for the
account of such foreign branch, affiliate or international banking
facility; provided, further that the Borrowers shall not be required to pay
any amount under this Section or Section 5.3 that is greater than the
amount which it would have been required to pay had such Lender not caused
such branch, affiliate or facility to make or maintain such LIBO Rate Loan.
In addition, each of the Borrowers hereby consents and agrees that, for
purposes of any determination to be made for purposes of Section 5.1 and
5.2, it shall be conclusively assumed that such Lender elected to fund all
LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office's
interbank eurodollar market.
SECTION 2.6. Notes. The Loans of each Fronting Bank under the Loan
Commitment shall be evidenced by Notes payable to the order of such
Fronting Bank from each Borrower in an aggregate maximum principal amount
equal to the original Commitment Amount, and the Loans of each Lender
(other than a Fronting Bank) under the Loan Commitment shall (if requested
by a Lender) be evidenced by Notes payable from each Borrower to the order
of such Lender in a maximum principal amount equal to the amount set forth
opposite such Lender's name on Schedule IV hereto. Each Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Notes (or on
any continuation of such grid), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal of, and the interest
rate and Interest Period applicable to the Loans evidenced thereby and the
principal amount of Loans that have been repaid (including, in the case of
either Fronting Bank, Loans that have been refunded and refinanced by the
Lenders on a Funding Date). Such notations shall be conclusive and binding
on the Borrowers absent manifest error; provided, however, that the failure
of any Lender to make any such notations shall not limit or otherwise
affect any Obligations of any Obligor.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrowers shall repay
in full to the appropriate Fronting Bank (or, if applicable, Lender) the
entire unpaid principal amount of each Loan made by such Fronting Bank (or,
if applicable, Lender) upon the Stated Maturity Date therefor; provided,
that notwithstanding anything contained in this Agreement or any Trade
Document to the contrary, each Foreign Borrower shall only be obligated to
repay the principal amount of the Loans made to it and Reimbursement
Obligations in respect of Letters of Credit issued for its account. Prior
thereto (and subject to Section 2.1.1), each Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that all such
voluntary prepayments shall require at least one Business Day's
prior written notice to the Administrative Agent;
(b) shall, on each date when any reduction in the Commitment
Amount (including pursuant to the terms of the Loan Documents)
shall become effective (which reduction shall be subject to Section
2.2), make a mandatory prepayment (which shall be applied (or held
as cash collateral for application to the aggregate amount of all
Letter of Credit Outstandings or, as applicable, Acceptance
Obligations, in each case not consisting of unpaid and outstanding
Reimbursement Obligations) by the Administrative Agent to the
payment of the Loans and unpaid and outstanding Reimbursement
Obligations of the then Letter of Credit Outstandings and, as
applicable, Acceptance Obligations) equal to the excess, if any, of
the aggregate outstanding principal amount of all Loans, together
with the aggregate amount of all Letter of Credit Outstandings and,
as applicable, Acceptance Obligations over the Commitment Amount as
so reduced;
(c) shall, if upon any Reset Date, the sum of the
outstanding principal amount of all Loans plus the amount of all
Acceptance Obligations plus all Letter of Credit Outstandings
exceeds the then existing Commitment Amount, make a mandatory
prepayment (which shall be applied (or held as cash collateral for
application to the aggregate amount of all Letter of Credit
Outstandings or, as applicable, Acceptance Obligations, in each
case not consisting of unpaid and outstanding Reimbursement
Obligations) by the Administrative Agent to the payment of the
Loans and unpaid and outstanding Reimbursement Obligations of the
then Letter of Credit Outstandings and, as applicable, Acceptance
Obligations) in an amount equal to such excess;
(d) shall, on the dates set forth in the Intercreditor
Agreement, make the mandatory and optional prepayments of
Obligations under the Loan Documents in the amounts required by the
terms of the Intercreditor Agreement; and
(e) shall, immediately upon any acceleration of the Stated
Maturity Date of any Obligations pursuant to Section 9.2 or Section
9.3, repay all Obligations, unless, pursuant to Section 9.3, only a
portion of all Obligations is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 5.2. No voluntary
prepayment of principal of any Loans shall cause a reduction in the
Commitment Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with
the terms set forth below.
SECTION 3.2.1. Rates. Loans comprising a Borrowing shall accrue
interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin in effect from time to
time; or
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the
LIBO Rate (Reserve Adjusted) for such Interest Period plus the
Applicable Margin in effect from time to time.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to
be made, continued or maintained as, or converted into, a LIBO Rate Loan
for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
------------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans made by a Fronting Bank will be determined by such Fronting Bank or,
if made by a Lender following the exercise of a Fronting Bank's rights
under Section 4.4, by the Administrative Agent, in each case, on the basis
of the LIBOR Reserve Percentage and LIBO Rate in effect on the Business Day
corresponding to the first day of such Interest Period.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans (i) made by a Fronting Bank, the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) (determined by such
Fronting Bank) at which Dollar deposits in the approximate amount of such
Fronting Bank's LIBO Rate Loan for such Interest Period would be offered by
such Fronting Bank's Grand Cayman Branch, Grand Cayman, B.W.I. (in the case
of Fronting Bank (BofA)) or its New York Agency (in the case of Fronting
Bank (BNS)) or, in each case, such other office as may be designated for
such purpose by such Fronting Bank, to major banks in the offshore dollar
interbank market at their request at approximately 11:00 a.m. (New York
time) on the date of the Borrowing and (ii) made by a Lender after a
Fronting Bank has exercised its right under Section 4.4, the rate of
interest per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) reported, on the first day of such Interest Period as of 11:00 a.m.
London time, on Telerate Access Service Page 3750 (British Bankers
Association Settlement Rate) (or, if a rate for the applicable Interest
Period is not available on such page, then as determined by the applicable
Fronting Bank in its reasonable judgment) as the London Interbank Offered
Rate for Dollar deposits having a term comparable to such Interest Period
and in an amount of $1,000,000 or more (or, if said page shall cease to be
publicly available, as reported by any publicly available source of similar
market data selected by the Administrative Agent that, in the
Administrative Agent's reasonable judgment, accurately reflects such London
Interbank Offered Rate).
"LIBOR Reserve Percentage" means, relative to any Interest Period
for LIBO Rate Loans, the reserve percentage, if any (expressed as a
decimal) equal to the maximum aggregate reserve requirements (including all
basic, emergency, supplemental, marginal and other reserves and taking into
account any transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by the
F.R.S. Board and then applicable to assets or liabilities consisting of and
including "Eurocurrency Liabilities", as currently defined in Regulation D
of the F.R.S. Board, having a term approximately equal or comparable to
such Interest Period.
All LIBO Rate Loans shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last
day of such Interest Period at the interest rate determined as applicable
to such LIBO Rate Loan.
SECTION 3.2.2. Default Rates. After and during the continuance of
an Event of Default, the Borrowers shall pay interest (after as well as
before judgment) on (a) the unpaid principal amount of each outstanding
Loan and on the fees payable on Letters of Credit and on Acceptances at a
rate per annum as set forth in Section 2.4 of the Modification Agreement,
and (b) to the fullest extent permitted by law, any other amount payable
hereunder at a rate per annum equal at all times to 2% per annum above the
Alternate Base Rate then in effect.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall
be payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the Effective Date;
(c) with respect to LIBO Rate Loans, (i) in the case of the
LIBO Rate component of such interest, on the last day of each
applicable Interest Period (and, if such Interest Period shall
exceed three months, at the end of each three month period
occurring during such Interest Period) and (ii) on the Applicable
Margin component of interest accruing on LIBO Rate Loans, on each
applicable Quarterly Payment Date occurring after the date such
LIBO Rate Loan is made;
(d) on the date of any optional or required payment or
prepayment, in whole or in part, of principal outstanding on such
Loan;
(e) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been
payable pursuant to the terms hereof, on the date of such
conversion; and
(f) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 9.2 or Section 9.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Trade Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or
otherwise) shall be payable upon demand.
SECTION 3.2.4. Allocation of Interest Payments. Accrued and unpaid
interest on the outstanding principal amount of the Loans shall be
allocated and payable to the Lenders as set forth in this Section:
(a) Interest shall be payable by a Borrower to either
Fronting Bank (for such Fronting Bank's account in respect of Loans
made by such Fronting Bank which have not been reimbursed by
Lenders) on the outstanding principal amount of its Loans from the
date such Loans are made to (but excluding) the Funding Date in an
amount equal to the difference between (i) (x) in the case of LIBO
Rate Loans, the LIBO Rate (Reserve Adjusted) or, in the case of
Base Rate Loans, the Alternate Base Rate, plus the Applicable
Margin then in effect for LIBO Rate Loans or Base Rate Loans (as
applicable) multiplied by (y) the outstanding principal amount of
the LIBO Rate Loans or Base Rate Loans, as the case may be, minus
(ii) the Interest Amount (as defined below). Prior to the Funding
Date of a Loan made by a particular Fronting Bank each Lender
(other than such Fronting Bank) shall be paid interest in an
aggregate amount (referred to as the "Interest Amount") equal to
such Lender's Percentage of (x) the principal amount of the Loans
outstanding prior to a Funding Date multiplied by (y) the
Applicable Margin then in effect for LIBO Rate Loans (in the case
of the outstanding principal amount of LIBO Rate Loans) or Base
Rate Loans (in the case of the outstanding principal amount of Base
Rate Loans).
(b) On and subsequent to a Funding Date of a Loan made by a
particular Fronting Bank, interest shall be payable by a Borrower
for the account of each Lender (including such Fronting Bank, in
its capacity as a Lender) in accordance with its Percentage on the
principal amount of its Loans actually funded by such Lender in an
amount equal to (in the case of the outstanding principal amount of
LIBO Rate Loans) the LIBO Rate (Reserve Adjusted) plus the
Applicable Margin for such LIBO Rate Loans or, if applicable (in
the case of the outstanding principal amount of Base Rate Loans),
the Alternate Base Rate plus the Applicable Margin for Base Rate
Loans.
SECTION 3.3. Fees. Each Borrower agrees to pay the fees payable by
it set forth below. All such fees shall be non-refundable.
SECTION 3.3.1. Letter of Credit and Acceptance Fees Payable to the
Lenders. The Borrowers agree to pay to the applicable Fronting Bank, for
the pro rata account of the Lenders determined in accordance with each
Lender's Percentage (and each Fronting Bank agrees to promptly forward to
each Lender) a fee for each Letter of Credit and each Acceptance issued or
created by such Fronting Bank for the period from and including the date of
the issuance of such Letter of Credit or creation of the Acceptance to (but
not including) (a) in the case of a Letter of Credit, the earlier of (i)
the date upon which such Letter of Credit expires and (ii) the date upon
which the Stated Amount of such Letter of Credit is irrevocably reduced to
zero (by the making of a Disbursement by a Fronting Bank or otherwise), and
(b) in the case of an Acceptance, the Maturity Date therefor, in each case
at the rates per annum determined by reference to the Debt Rating in effect
on such date as determined by reference to clause (b) of Section 2.4 (in
the case of Letters of Credit) less the Applicable Percentage set forth for
such Debt Rating in clause (c) of Section 2.4 of the Modification Agreement
and (in the case of Acceptances), clause (a) of Section 2.4 less the
Applicable Percentage set forth for such Debt Rating in clause (c) of
Section 2.4 of the Modification Agreement, calculated on the average daily
sum of (x) the maximum amount available to be drawn under outstanding
Letters of Credit (in the case of Letters of Credit) and (y) the aggregate
face amount of outstanding unmatured Acceptances (in the case of
Acceptances), in each case with all other terms of the Modification
Agreement to which reference is made in such Section, together with all
related definitions and ancillary provisions, being hereby incorporated
into this Agreement by this reference as though specifically set forth in
this Section 3.3.1. Notwithstanding anything in this Agreement to the
contrary, each Foreign Borrower shall only be liable for the fee that has
accrued on those Letters of Credit issued for its own account. Such fee
shall be payable to the applicable Fronting Bank by the applicable Borrower
in arrears on each Quarterly Payment Date (commencing on the first such
date after the issuance of such Letter of Credit or the creation of such
Acceptance) and on the Commitment Termination Date, in each case, for any
period then ending for which such fee shall not theretofore have been paid;
provided that, notwithstanding the foregoing, such fees shall be payable
not less often than every 90 days.
SECTION 3.3.2. Letter of Credit and Acceptance Fees Payable to the
Fronting Banks. The Borrowers agree to pay to each Fronting Bank the fees
relating to Letters of Credit and Acceptances issued by such Fronting Bank
in accordance with that Fronting Bank's Fee Letter and such customary fees
currently paid by the Borrowers on the Effective Date for each Letter of
Credit issued and each Acceptance created for the period from and including
the date of issuance of such Letter of Credit or creation of such
Acceptance to (but not including) the date upon which such Letter of Credit
expires or such Acceptance matures; provided, that each Foreign Borrower
shall be obligated to pay such fees only on those Letters of Credit issued
for its account.
SECTION 3.3.3. Fee Letters. The U.S. Borrower agrees to pay to
Scotiabank and to BofA, for their respective accounts, such fees in the
amounts and on the dates set forth in the applicable Fee Letter.
SECTION 3.3.4. Facility Fee. The U.S. Borrower agrees to pay to the
Administrative Agent, for the pro rata account of each Lender determined in
accordance with each Lender's Percentage (as if the Existing Amount was
zero), for the period commencing on the Effective Date and continuing
through the Commitment Termination Date, a facility fee (the "Facility
Fee") on the average daily Commitment Amount (whether or not then
available, including as a result of the Amended Trade Credit Agreement or
the Bilateral Agreements still being in effect) at the rates per annum
determined by reference to the Debt Rating in effect on such date as
determined by reference to clause (c) of Section 2.4 of the Modification
Agreement, with all other terms of the Modification Agreement to which
reference is made in such Section, together with all related definitions
and ancillary provisions, being hereby incorporated into this Agreement by
this reference as though specifically set forth in this Section 3.3.4.
ARTICLE IV
LETTERS OF CREDIT AND ACCEPTANCES
SECTION 4.1. Issuance of Letters of Credit and Creation of
Acceptances. Each party hereto acknowledges and agrees that upon the
satisfaction of the conditions precedent set forth in Section 6.1, the
Interim Letters of Credit shall be (and be deemed to be) Letters of Credit
issued by Fronting Bank(BNS) on the Effective Date under the terms of this
Agreement and shall thereafter accrue interest and fees pursuant to the
terms hereof, and each Lender shall participate in Interim Letters of
Credit in an amount equal to such Lender's Percentage of the aggregate
Stated Amount of the Interim Letters of Credit. Furthermore, Letters of
Credit shall be issued on and after the Effective Date and Acceptances
shall be created on the terms set forth below.
SECTION 4.1.1. Letters of Credit. Any Borrower or any wholly-owned
Domestic Subsidiary of the U.S. Borrower, the Warnaco Sub Borrowers or the
Sub Borrower (or any of their respective divisions) may request, from time
to time prior to the Commitment Termination Date, by delivering to the
Administrative Agent and either Fronting Bank (as selected by such Obligor)
an Issuance Request (such request being, in any Borrower's sole discretion,
either delivered (by telex, teletransmission or otherwise) in the form
attached hereto as Exhibit B or in accordance with the terms of the
Tradexpress Agreement (for Fronting Bank(BNS) or the MicroTrade Agreement
for Fronting Bank(BofA)) on or before 3:00 p.m., Applicable Time on the
Business Day on which a Letter of Credit is to be issued that such Fronting
Bank issue a documentary Letter of Credit in such form as may be requested
by such Borrower or such Subsidiary and approved by such Fronting Bank.
Each Letter of Credit shall by its terms:
(a) be issued in a Stated Amount which does not exceed (or
would not exceed), either alone or in the aggregate with the other
Letters of Credit, the then existing Letter of Credit Availability;
(b) except as provided in Section 4.1.2, be denominated in,
and all payments in respect thereof shall be made in, Dollars;
(c) be stated to expire on a date (its "Stated Expiry Date")
no later than 120 days from its date of issuance or, if earlier,
August 12, 2002; and
(d) on or prior to its Stated Expiry Date (i) terminate
immediately upon notice to the Fronting Bank which issued such
Letter of Credit from the applicable Letter of Credit Beneficiary
that all obligations covered thereby have been terminated, paid, or
otherwise satisfied in full, and (ii) reduce in part immediately
and to the extent the applicable Letter of Credit Beneficiary has
notified the Fronting Bank which issued such Letter of Credit that
the obligations covered thereby have been paid or otherwise
satisfied in part.
So long as no Default has occurred and is continuing, by delivery to either
Fronting Bank (as selected by an Obligor) and the Administrative Agent of
an Issuance Request (such request being, in any Borrower's sole discretion,
either delivered (by telex, teletransmission or otherwise) in accordance
with the terms of the Tradexpress Agreement or the MicroTrade Agreement (in
the case of Letters of Credit issued by Fronting Bank(BNS) or Fronting
Bank(BofA), respectively) or in the form attached hereto as Exhibit B) on
or before 3:00 p.m., Applicable Time, on the Stated Expiry Date of any
Letters of Credit, any Borrower may prior to the then existing Commitment
Termination Date request either Fronting Bank to extend the Stated Expiry
Date of such Letter of Credit previously issued by that Fronting Bank for
an additional period not to exceed the earlier of (x) 60 days from the date
of extension of such Letter of Credit and (y) August 12, 2002.
Notwithstanding any other provision in this Agreement to the contrary, each
Fronting Bank may in its discretion refuse to issue, or extend the Stated
Expiry Date of, any Letter of Credit or create any Acceptance if such
issuance or creation would, in such Fronting Bank's reasonable
determination, contravene any sanctions, laws or regulations of any State
of the United States or any Federal body or authority of the United States
(including but not limited to the regulations of the Federal Reserve Bank)
or the laws, regulations or sanctions of any other applicable jurisdiction
or authority or if, in either Fronting Bank's reasonable determination, any
of the above-mentioned laws, regulations or sanctions would affect such
Fronting Bank's ability to perform its obligations with respect to any such
Letter of Credit if issued or Acceptance if created.
SECTION 4.1.2. Non-U.S. Letters of Credit. Any Borrower may request
the issuance of a Non-U.S. Letter of Credit subject to the terms and
conditions of this Section 4.1.2, in addition to the other conditions
applicable to the issuance of Letters of Credit generally. The issuance of
any Non-U.S. Letter of Credit shall be subject to the approval of the
Fronting Bank which is being requested to issue the Non-U.S. Letter of
Credit. If any Non-U.S. Letter of Credit is issued, the following
provisions shall apply:
(a) For purposes of determining the Letter of Credit
Outstandings and for purposes of calculating fees payable under
Sections 3.3.1 and 3.3.2, the Stated Amount of any Non-U.S. Letter
of Credit and of any L/C Reimbursement Obligations in respect
thereof shall be deemed to be, as of any date of determination, the
U.S. Dollar Equivalent thereof at such date. The initial U.S.
Dollar Equivalent of any Non-U.S. Letter of Credit shall be
determined by the applicable Fronting Bank on the date of issuance
thereof based upon the Applicable Exchange Rate determined on the
most recent Reset Date in accordance with clause (a) of Section 5.7
and adjusted from time to time thereafter as provided below. Each
Fronting Bank shall provide the Administrative Agent and the U.S.
Borrower with written notice (together with back-up calculations
therefor) of adjustments to the U.S. Dollar Equivalent of each
outstanding Non-U.S. Letter of Credit on each Reset Date in
accordance with clause (b) of Section 5.7. If a Disbursement is
made by either Fronting Bank under any Non-U.S. Letter of Credit,
the U.S. Dollar Equivalent of such Disbursement shall be determined
by such Fronting Bank on the Disbursement Date related thereto. The
applicable Fronting Bank shall make such determination by
calculating the amount in Dollars that would be required in order
for such Fronting Bank to purchase an amount of the applicable
Qualified Foreign Currency equal to the amount of the relevant L/C
Reimbursement Obligation on the Disbursement Date at the Spot
Exchange Rate, with respect to such Qualified Foreign Currency on
such Disbursement Date. Each Fronting Bank shall notify the
Administrative Agent and the applicable Borrower promptly of such
U.S. Dollar Equivalent determined by it, on the date that such
determination is required to be made;
(b) The obligation of the applicable Borrower to reimburse
any Fronting Bank for any Disbursement under any Non-U.S. Letter of
Credit, and to pay interest thereon, shall be payable only in
Dollars (calculated pursuant to clause (a) above), and shall not be
discharged by paying an amount in any Qualified Foreign Currency or
any other currency; and
(c) The obligations of each Lender under Section 4.4 to pay
its Percentage of any L/C Reimbursement Obligation under any
Non-U.S. Letter of Credit shall be payable only in Dollars and
shall be in an amount equal to such Percentage of the U.S. Dollar
Equivalent of such L/C Reimbursement Obligation determined as
provided in clause (a) above. Under no circumstances shall the
provisions hereof permitting the issuance of Letters of Credit in a
Qualified Foreign Currency be construed, by implication or
otherwise, as imposing any obligation upon any Lender to make any
Loan or other payment under any Trade Document, or to accept any
payment from any Borrower in respect of any L/C Reimbursement
Obligation, in any currency other than Dollars, it being understood
that the parties intend all Obligations to be denominated and
payable only in Dollars.
SECTION 4.1.3. Acceptances. In lieu of a Fronting Bank honoring its
Disbursement obligation under a Letter of Credit issued by that Fronting
Bank, the U.S. Borrower, the Warnaco Sub Borrowers and the Sub Borrower
hereby irrevocably authorize and direct each Fronting Bank to create
Acceptances upon the presentation of drafts to such Fronting Bank for
acceptance by such Fronting Bank as Acceptances pursuant to this Agreement,
provided that such Acceptances shall, in the opinion of such Fronting Bank,
be properly executed and drawn by the U.S. Borrower, any Warnaco Sub
Borrower or the Sub Borrower, as applicable (each such party referred to as
a "Drawer"). To facilitate the acceptance of Acceptances drawn by the U.S.
Borrower, the Warnaco Sub Borrowers or the Sub Borrower, each of the U.S.
Borrower, the Warnaco Sub Borrowers and the Sub Borrower shall from time to
time as required by either Fronting Bank provide to such Fronting Bank an
appropriate number of executed drafts drawn in blank by such Borrower in
the form prescribed by such Fronting Bank. The U.S. Borrower, the Warnaco
Sub Borrowers or the Sub Borrower may, at their option, execute any draft
so presented by the facsimile signature or signatures of any one or more
designated signing officers of such Borrower. In any event, each Fronting
Bank is hereby authorized to accept or pay, as the case may be, any draft
of a Drawer which purports to bear its facsimile signature or signatures
notwithstanding that any such individual has ceased to be a designated
signing officer of such Drawer and any such draft or Acceptance shall be as
valid as if such individual were a designated signing officer of such
Drawer at the date of issue of such Acceptance. Each draft or Acceptance
not originally executed by a Drawer (but instead executed by facsimile,
stamp or otherwise) may be dealt with by a Fronting Bank for all intents
and purposes and shall bind each Borrower as if duly originally executed by
the applicable Drawer's authorized officer (or other person with authority
to bind such Drawer) and issued by such Borrower. Without limiting the
effect of the indemnity provided under Section 11.4 but in addition to such
provision, each of the U.S. Borrower, the Sub Borrower and each Warnaco Sub
Borrower will and hereby does undertake to hold each Fronting Bank harmless
against, and to indemnify, and each such Borrower hereby does agree to
indemnify, each Fronting Bank from, all losses, costs, damages and expenses
arising out of the payment or negotiation of any such draft or Acceptance
on which a facsimile signature of any Drawer has been wrongly affixed,
except to the extent caused by the gross negligence or willful misconduct
of such Fronting Bank. Neither Fronting Bank shall be liable for its
failure to accept an Acceptance as required hereunder if the cause of such
failure is, in whole or in part, due to the failure of any Drawer to
provide executed drafts to such Fronting Bank on a timely basis. Without
creating any obligation to effect such a purchase, Acceptances may be
purchased by each Fronting Bank and may be held by it for its own account
until maturity or sold by it at any time prior thereto in any relevant
market therefor in the United States or elsewhere, in such Fronting Bank's
sole discretion.
Each Acceptance shall by its terms:
(a) be created with a face amount which does not exceed (or
would not exceed), alone or in the aggregate with other
Acceptances, the then existing Acceptance Availability, and
(b) have a Maturity Date occurring no later than 90 days
from its date of creation or, if earlier, August 12, 2002.
Notwithstanding anything to the contrary contained in this Agreement,
(i) no Acceptance shall be created after August 12, 2002 or
in respect of a Non-U.S. Letter of Credit,
(ii) Acceptances shall only be created in respect of Letters
of Credit for which the account party is the U.S. Borrower, a
Warnaco Sub Borrower, the Sub Borrower or a wholly-owned Subsidiary
of any such Borrower,
(iii) the face amount of any Acceptance shall be in an
amount equal to the amount of the Disbursement under the Letter of
Credit with reference to which such Acceptance was created, and
(iv) this Agreement shall control in the event of any
conflict with any Acceptance-related document (other than any
Acceptance).
SECTION 4.2. Issuances, Extensions and Creations. On the terms and
subject to the conditions of this Agreement (including Sections 4.1.1,
4.1.2, 4.1.3 and Article VI), each Fronting Bank shall issue Letters of
Credit, extend the Stated Expiry Dates of outstanding Letters of Credit
issued by it and create Acceptances in connection with Letters of Credit
issued by it, all in accordance with the terms of this Agreement. Each
Fronting Bank will make available the original of each Letter of Credit
which it issues and each Acceptance which it creates in connection with
Letters of Credit issued by it to the beneficiary or payee, as applicable,
thereof (and, at the request of a Lender, will provide such Lender on a
monthly basis with a schedule of the outstanding Letters of Credit and
Acceptances issued by that Fronting Bank as of the last day of the prior
month) and will notify the applicable Letter of Credit Beneficiary of any
extension of the Stated Expiry Date thereof. In addition, Citibank and
Standard Chartered agree to provide on a daily basis to each Fronting Bank
the amount of letters of credit, acceptances and loans outstanding under
their respective Bilateral Agreement, on which amounts each Fronting Bank
can conclusively rely without any investigation.
SECTION 4.3. Destruction of Goods, etc. Neither Fronting Bank nor
its agents or correspondents shall be responsible for the negligence or
fraudulence of any Letter of Credit Beneficiary or payee of Acceptance, for
the existence, nature, condition, description, value, quality or quantity
of the Goods, for the packing, shipment, export, import, handling, storage
or delivery thereof, or for the safety or preservation thereof at any time,
and neither Fronting Bank nor its agents or correspondents shall be liable
for any loss resulting from the total or partial destruction of or damage
to or deterioration or fall in value of the Goods, or from the delay in
arrival or failure to arrive of either the Goods or of any of the documents
relating thereto, or from the inadequacy or invalidity of any document or
insurance, or from the default or insolvency of any insurer, carrier or
other Person issuing any document with respect to the Goods, or from
failure to give or delay in giving notice of arrival of the Goods or any
other notice, or from any error in or misinterpretation of or default or
delay in the sending, transmission, arrival or delivery of any message,
whether in writing or not, by post, telegraph, cable, wireless or
otherwise, and the obligations hereunder of each Borrower to each Fronting
Bank shall not be in any way lessened or affected if any Draft or document
accepted, paid or acted upon by either Fronting Bank or its agents or
correspondents does not bear a reference or sufficient reference to a
Letter of Credit or if no note thereof is made on a Letter of Credit.
SECTION 4.4. Other Lenders' Participation. Each Letter of Credit
issued and each Acceptance created pursuant to Section 4.1 and Section 4.2
shall, effective upon its issuance or creation, as the case may be, and
without further action, be issued and/or created on behalf of all Lenders
(including the Fronting Bank thereof) according to their respective
Percentages. Each Lender shall, to the extent of its Percentage, be deemed
irrevocably to have participated in the issuance of such Letter of Credit
and the creation of such Acceptance and shall be responsible to reimburse
promptly the applicable Fronting Bank thereof for Reimbursement Obligations
which have not been converted into a Loan on the Disbursement Date or
Maturity Date related thereto pursuant to the terms of this Agreement or
reimbursed by the Borrowers in accordance with Section 4.5, or which have
been converted into a Loan on the Disbursement Date or Maturity Date
related thereto pursuant to the terms of this Agreement or reimbursed by
the Borrowers but must be returned, restored or disgorged by a Fronting
Bank for any reason, and each Lender shall, to the extent of its
Percentage, be entitled to receive from the applicable Fronting Bank a
ratable portion of all fees and interest with respect to such Letter of
Credit and/or such Acceptance (including the letter of credit fees received
by such Fronting Bank pursuant to Section 3.3.1, with respect to each
Letter of Credit issued by that Fronting Bank, but excluding any fronting
fees and other charges payable to the applicable Fronting Bank in its
capacity as the Fronting Bank). In the event that any Borrower shall fail
to reimburse either Fronting Bank, or if for any reason Loans shall not be
made to fund any Reimbursement Obligation, in each case as provided in this
Agreement and in an amount equal to the Disbursement amount or the face
amount of any matured Acceptance, as applicable, or in the event either
Fronting Bank must for any reason return or disgorge such reimbursement,
such Fronting Bank shall promptly notify each Lender and the Administrative
Agent of the unreimbursed amount of such drawing or face amount of such
matured Acceptance and of such Lender's respective participation therein.
Each Lender shall make available to the applicable Fronting Bank, whether
or not any Default shall have occurred and be continuing, an amount equal
to its respective participation in same day or immediately available funds
at the office of such Fronting Bank specified in such notice not later than
11:00 a.m., New York time, on the Business Day after the date notified by
such Fronting Bank. In the event that any Lender fails to make available to
either Fronting Bank the amount of such Lender's participation in such
Letter of Credit or such Acceptance as provided herein, such Fronting Bank
shall be entitled to recover such amount on demand from such Lender
together with interest at the Federal Funds Rate from the date such amount
is due through (but excluding) the date such payment is made (together with
such other compensatory amounts as may be required to be paid by such
Lender to the Administrative Agent pursuant to the Rules for Interbank
Compensation of the council on International Banking or the Clearinghouse
Compensation Committee, as the case may be, as in effect from time to
time). Nothing in this Section shall be deemed to prejudice the right of
any Lender to recover from either Fronting Bank any amounts made available
by such Lender to such Fronting Bank pursuant to this Section in the event
that it is determined by a court of competent jurisdiction in a final
nonappealable judgment that the payment with respect to a Letter of Credit
or an Acceptance by such Fronting Bank in respect of which payment was made
by such Lender constituted gross negligence or wilful misconduct on the
part of such Fronting Bank. Each Fronting Bank shall distribute to each
other Lender which has paid all amounts payable by it under this Section
with respect to any Letter of Credit issued or Acceptance created by such
Fronting Bank, such other Lender's Percentage of all payments received by
such Fronting Bank from the applicable Borrower in reimbursement of the
face amount of such matured Acceptance or drawings honored by such Fronting
Bank under such Letter of Credit when such payments are received.
SECTION 4.5. Disbursements and Maturities. Each Fronting Bank will
notify the applicable Borrower and the Administrative Agent promptly of the
presentment for payment of (a) any Letter of Credit issued by that Fronting
Bank, together with notice of the date (a "Disbursement Date") such payment
shall be made and (b) any matured Acceptance issued by that Fronting Bank.
Subject to the terms and provisions of such Letter of Credit and Acceptance
(or, if instructed by any Obligor, the waiver of any discrepancies of the
terms of payment under a Letter of Credit or Acceptance including the
failure to deliver to such Fronting Bank all drafts, certificates,
documents and/or instruments required as a condition to making a
Disbursement under such Letter of Credit or payment on such matured
Acceptance), the applicable Fronting Bank shall make such payment to such
Letter of Credit Beneficiary (or its designee) or the payee (or its
designee) of such Acceptance. If and to the extent that Loans are not made
to fund a Reimbursement Obligation pursuant to Section 2.3, then the
Borrowers will reimburse the applicable Fronting Bank within one Business
Day following (i) the Disbursement Date for all amounts which such Fronting
Bank has disbursed under the Letter of Credit issued by it and (ii) the
payment date on such matured Acceptance (whether or not such Acceptance was
drawn by the U.S. Borrower, a Warnaco Sub Borrower, the Sub Borrower or any
Letter of Credit Beneficiary); provided, that each Foreign Borrower shall
only be obligated to reimburse a Fronting Bank for disbursements under
Letters of Credit issued for its account.
SECTION 4.6. Reimbursement; Outstanding Letters, etc. (a) Each
Borrower's obligation under Section 4.5 to reimburse a Fronting Bank with
respect to each Disbursement made by that Fronting Bank (a "L/C
Reimbursement Obligation") or, as applicable, each payment made by a
Fronting Bank upon the maturity of an Acceptance created by that Fronting
Bank (an "Acceptance Reimbursement Obligation"; together with a L/C
Reimbursement Obligation, a "Reimbursement Obligation") (including fees and
interest thereon payable pursuant to Section 3.2 and Section 3.3), and each
Lender's obligation to make participation payments pursuant to Section 4.4
in each Disbursement and each payment in respect of a matured Acceptance,
shall be absolute, unconditional and irrevocable and shall not be reduced
by any event or occurrence including
(i) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any Letter of Credit or Acceptance or any
document submitted by any party in connection with the application
for and issuance of a Letter of Credit or creation of an
Acceptance, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or Acceptance
or the rights or benefits thereunder or the proceeds thereof in
whole or in part, which may prove to be invalid or ineffective for
any reason;
(iii) failure of the beneficiary to comply fully with
conditions required in order to demand payment under a Letter of
Credit or an Acceptance;
(iv) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise;
(v) any loss or delay in the transmission or otherwise of
any document or draft required in order to make a Disbursement
under a Letter of Credit or payment in respect of a matured
Acceptance;
(vi) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations in respect
of any Letter of Credit or Acceptance or any other amendment or
waiver of or any consent to departure from any Letter of Credit or
an Acceptance;
(vii) the existence of any claim, set-off, defense or other
right that any Borrower may have at any time against any
beneficiary or any transferee of a Letter of Credit or an
Acceptance (or any Persons for whom any such beneficiary or any
such transferee may be acting), any Fronting Bank or any other
Person, whether in connection with the transactions contemplated by
the applicable Letter of Credit or Acceptance or any unrelated
transaction;
(viii) payment by any Fronting Bank under a Letter of Credit
or an Acceptance against presentation of a draft, certificate,
document and/or instrument that does not strictly comply with the
terms of such Letter of Credit or Acceptance;
(ix) any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations in
respect of the applicable Letter of Credit or Acceptance;
(x) the release to an Obligor or its designee of goods,
inventory or other merchandise (whether or not consigned to a
Fronting Bank or its designee) which have been provided by a
supplier (including where such supplier is also a beneficiary of a
Letter of Credit) of an Obligor, even if such release occurs prior
to the Fronting Bank inspecting the documents, air waybills, bills
of lading or other certificates or instruments which are required
under the terms of a Letter of Credit to be presented to the
Fronting Bank prior to the Disbursement being made under the
relevant Letter of Credit; or
(xi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available
to, or a discharge of, any Borrower or a guarantor.
The obligations of each Borrower and the Lenders hereunder shall remain in
full force and effect and shall apply to any alteration to or extension of
the expiration date of any Letter of Credit or any Letter of Credit issued
to replace, extend or alter any Letter of Credit during the term of this
Agreement. None of the foregoing shall affect, impair or prevent the
vesting of any of the rights or powers granted to either Fronting Bank or
any Lender hereunder. In furtherance and extension and not in limitation or
derogation of any of the foregoing, any action taken or omitted to be taken
by either Fronting Bank in good faith (and not constituting gross
negligence or willful misconduct) shall be binding upon each Borrower, each
Obligor and each such Lender, and shall not put such Fronting Bank under
any resulting liability to any Borrower, any Obligor or any such Lender, as
the case may be.
(b) The applicable Borrower shall pay (without duplication) to the
Fronting Banks an amount equal to (i) the then Stated Amount and (ii) the
aggregate face amount of all unmatured Acceptances then outstanding in
respect of Letters of Credit and Acceptances issued by such Fronting Bank
and all unpaid fees in respect of (x) any Letter of Credit or Acceptance
outstanding under this Agreement in respect of Letters of Credit and
Acceptances issued by such Fronting Bank upon any termination of this
Agreement and (y) any Letter of Credit or Acceptance which is affected by,
or becomes the subject matter of, any order, judgment, injunction or other
such determination (an "Order") or any petition or other application for
any Order by any Borrower or any other party, restricting payment by either
Fronting Bank under and in accordance with such Letter of Credit or
Acceptance or extending either Fronting Bank's or any Lender's liability
under such Letter of Credit beyond the expiration date stated therein, or
if not stated therein, which would otherwise apply to such Letter of
Credit. Payment in respect of each such Letter of Credit or Acceptance
described in (x) and (y) in this clause shall be due forthwith upon demand
and in Dollars.
(c) Each Fronting Bank hereby agrees that it will, with respect to
each Letter of Credit and each Acceptance issued by such Fronting Bank that
is subjected to any such demand for payment under the preceding clause (b),
upon the later of:
(i) the date on which any final and non-appealable order,
judgment or other such determination has been rendered or issued
either terminating any applicable Order or permanently enjoining
such Fronting Bank from paying under such Letter of Credit and/or
Acceptance; and
(ii) (x) in the case of a Letter of Credit, the earlier of
(A) the date on which either the original counterpart of such
Letter of Credit is returned to such Fronting Bank for cancellation
or such Fronting Bank is released by the beneficiary thereof from
any further obligations in respect of such Letter of Credit, and
(B) the expiry of such Letter of Credit and (y) in the case of an
Acceptance, on the date on which either the original Acceptance is
returned to such Fronting Bank for cancellation or such Fronting
Bank is released by the payee thereto from any further obligations
in respect of such Acceptance;
pay to the applicable Borrower an amount in Dollars equal to any excess of
the amount received by such Fronting Bank pursuant to clause (b) above in
respect of such Letter of Credit or such Acceptance (the "Received Amount")
over the equivalent in Dollars of the total of amounts applied to reimburse
such Fronting Bank for amounts paid by it under such Letter of Credit or
such Acceptance, if any (with such Fronting Bank having the right to so
appropriate such funds), together with an additional amount in Dollars
computed by applying to the amount of such excess from time to time a per
annum rate equal to 3% less than the Alternate Base Rate. Such additional
amount shall be calculated daily on the basis of a 360 day year for the
actual number of days elapsed from and including the date of payment to the
applicable Fronting Bank of the Received Amount to (but not including) the
date of return to the applicable Borrower of the excess.
SECTION 4.7. Deemed Disbursements. Upon (a) the occurrence and
during the continuation of any Bankruptcy Event, or (b) the occurrence and
during the continuance of any other Event of Default, but, in the case of
this clause (b), only following the direction of the Majority Lenders (or,
if the Termination Date has not yet occurred, the Required Lenders, and
then only to the extent it has been authorized in accordance with Article V
of the Modification Agreement by the Required Lenders),
(i) an amount equal to that portion of (x) Letter of Credit
Outstandings attributable to outstanding and undrawn Letters of
Credit and (y) Acceptance Obligations attributable to outstanding
and unmatured Acceptances shall, without demand upon or notice to
any Borrower, be deemed to have been paid or disbursed by the
Fronting Banks under such Letters of Credit or Acceptances, as the
case may be, (notwithstanding that such amount may not in fact have
been so paid or disbursed); and
(ii) upon notification by either Fronting Bank to the
Administrative Agent and the U.S. Borrower of its obligations under
this Section, the Borrowers shall be immediately obligated to
reimburse such Fronting Bank the amount deemed to have been so paid
or disbursed by such Fronting Bank; provided, that each Foreign
Borrower shall only be obligated to reimburse a Fronting Bank for
amounts deemed to have been disbursed under Letters of Credit
issued for its account.
Any amounts so received by either Fronting Bank from the Borrowers pursuant
to this Section shall be held as collateral security for the repayment of
such Borrower's Obligations, subject to the terms of the Intercreditor
Agreement, in connection with the Letters of Credit issued and the
Acceptances created by the Fronting Banks. At any time when such Letters of
Credit shall terminate, such Acceptances mature and are paid and all
Obligations of the Fronting Banks are either terminated or paid or
reimbursed to the applicable Fronting Bank in full, the Obligations of the
Borrowers under this Section shall be reduced accordingly (subject,
however, to reinstatement in the event any payment in respect of such
Letters of Credit or Acceptances is recovered in any manner from either
Fronting Bank), and subject to the terms of the Loan Documents, the
applicable Fronting Bank will return to the applicable Borrower the excess,
if any, of
(x) the aggregate amount deposited by the Borrowers with
such Fronting Bank and not theretofore applied by such Fronting
Bank to any Reimbursement Obligation
over
(y) the aggregate amount of all Reimbursement Obligations to
such Fronting Bank pursuant to this Section, as so adjusted.
At such time when all Events of Default shall have been cured or waived,
the applicable Fronting Bank shall, subject to the terms of the Loan
Documents, return to the applicable Borrower all amounts then on deposit
with such Fronting Bank pursuant to this Section.
SECTION 4.8. Nature of Reimbursement Obligations. The Borrowers, as
applicable, shall assume all risks of the acts, omissions, or misuse of any
(a) Letter of Credit by the beneficiary thereof and (b) Acceptance by the
payee thereof. Any action, inaction or omission taken or suffered by either
Fronting Bank or any Fronting Bank's correspondents under or in connection
with a Letter of Credit, any Draft made under any Letter of Credit or any
Acceptance or any document relating thereto, if in good faith and in
conformity with foreign or domestic laws, regulations or customs applicable
thereto shall be binding upon the applicable Borrowers and shall not place
either Fronting Bank or any of its correspondents under any resulting
liability to such Borrowers. Without limiting the generality of the
foregoing, each Fronting Bank and its correspondents may receive, accept or
pay as complying with the terms of a Letter of Credit, any Draft under any
Letter of Credit, an Acceptance, otherwise in order which may be signed by,
or issued to, the administrator or any executor of, or the trustee in
bankruptcy of, or the receiver for any property of, or other Person or
entity acting as the representative or in the place of, such beneficiary or
its successors and assigns. The Borrowers covenant that they will not take
any steps, issue any instructions to either Fronting Bank or any of its
correspondents or institute any proceedings intended to derogate from the
right or ability of either Fronting Bank or its correspondents to honor and
pay any Draft or Drafts. Without in any way limiting the provisions of
Section 4.6, and notwithstanding anything to the contrary contained in this
Agreement or in any other Trade Document, each Borrower irrevocably
acknowledges and agrees that it is unconditionally liable for all
Reimbursement Obligations with respect to each Disbursement under each
Letter of Credit issued or paid, as the case may be, for its account and
each payment made on a matured Acceptance created for its account, as
applicable (including fees and interest thereon), in each case, regardless
(in the case of each of the U.S. Borrower, each Warnaco Sub Borrower and
the Sub Borrower) whether such Letter of Credit was issued or such Advance
created in respect of the sourcing or other corporate requirements or needs
of the U.S. Borrower, the Sub Borrower or any Subsidiary of the U.S.
Borrower or Sub Borrower, or otherwise.
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 5.1. Incorporation by Reference of Certain LIBO Rate,
Increased Capital Costs, Other Provisions. Each of the parties hereto
acknowledge and agree that the terms of Section 2.11 of the Modification
Agreement, and all other terms of the Modification Agreement to which
reference is made therein, together with all related definitions and
ancillary provisions, are hereby incorporated into this Agreement by this
reference as though specifically set forth in this Article.
SECTION 5.2. Funding Losses. In the event any Lender shall incur
any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to make, continue or maintain any portion of the principal amount of
any Loan as, or to convert any portion of the principal amount of any Loan
into, a LIBO Rate Loan, but excluding the loss of any anticipated or
expected profits in respect of such LIBO Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the
principal amount of any LIBO Rate Loans on a date other than the
scheduled last day of the Interest Period applicable thereto,
whether pursuant to Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into,
LIBO Rate Loans in accordance with the Continuation/ Conversion
Notice therefor,
then, upon the written notice of such Lender to the U.S. Borrower and the
Administrative Agent, the U.S. Borrower shall, within five Business Days of
its receipt thereof, pay directly to such Lender such amount as will (in
the reasonable determination of such Lender) reimburse such Lender for such
loss or expense. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive
and binding on the U.S. Borrower.
SECTION 5.3. Taxes. Each payment made by each Borrower under this
Agreement shall be made free and clear of, and without deduction for, any
present or future withholding or other taxes imposed on such payments by or
on behalf of any government or any political subdivision or agency thereof
or therein, in accordance with (and the parties hereto agree to comply with
the terms of) Section 2.12 of the Modification Agreement, in each case with
all other terms of the Modification Agreement to which reference is made in
such Section, together with all related definitions and ancillary
provisions, being hereby incorporated into this Agreement by this reference
as though specifically set forth in this Section 5.3.
SECTION 5.4. Payments, Computations, etc. Unless otherwise
expressly provided herein (including as set forth in Section 2.3 and
Section 4.5), all payments by the Borrowers pursuant to this Agreement, the
Notes or any other Trade Document shall be made by the Borrowers to the
Administrative Agent for the account of the Lenders entitled to receive
such payment. All such payments required to be made to the Administrative
Agent shall be made, without setoff, deduction or counterclaim, not later
than 11:00 a.m., Applicable Time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent
shall specify from time to time by notice to the U.S. Borrower. To the
extent the Administrative Agent receives such funds prior to 12:00 noon,
Applicable Time, the Administrative Agent shall promptly remit in same day
funds to each Lender its share, if any, of such payments received by the
Administrative Agent for the account of such Lender. All interest and fees
shall be computed on the basis of the actual number of days (including the
first day but excluding the last day) occurring during the period for which
such interest or fee is payable over a year comprised of 360 days. Whenever
any payment to be made shall otherwise be due on a day which is not a
Business Day in New York, such payment shall (except as otherwise required
by clause (b) of the definition of the term "Interest Period") be made on
the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with such
payment.
SECTION 5.5. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application
of setoff or otherwise) on account of any Letter of Credit, Acceptance or
Loan in excess of payments then or therewith obtained by all Lender
Parties, such Lender shall purchase from the other Lender Parties such
participations in Obligations (as defined in the Intercreditor Agreement)
in accordance with the terms of clause (e) of Section 2.1 of the
Intercreditor Agreement.
Each Borrower agrees that any Lender Party so purchasing a participation
from another Lender Party pursuant to Section 2.1 of the Intercreditor
Agreement may, to the fullest extent permitted by law, exercise all its
rights of payment (including pursuant to Section 5.6) with respect to such
participation as fully as if such Lender Party were the direct creditor of
such Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender Party receives a
secured claim in lieu of a setoff to which such Section 2.1 applies, such
Lender Party shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lender Parties entitled under Section 2.1 of the Intercreditor Agreement to
share in the benefits of any recovery on such secured claim.
SECTION 5.6. Setoff. Each Lender shall, upon the occurrence of any
Bankruptcy Event or, with the consent of the Required Lenders, upon the
occurrence of any other Event of Default (and, in each case, only to the
extent authorized in accordance with the terms of the Modification
Agreement by the Required Lenders and subject in all respects to the terms
of the Intercreditor Agreement), have the right to appropriate and apply to
the payment of the Obligations (as defined in the Intercreditor Agreement)
(whether or not then due) any and all balances, credits, deposits, accounts
or moneys of the applicable Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such
appropriation and application shall be subject to the terms of the
Intercreditor Agreement. Each Lender agrees promptly to notify the U.S.
Borrower and the Administrative Agent after any such setoff and application
made by such Lender; provided, however, that the failure to give such
notice shall not affect the validity of such setoff and application. The
rights of each Lender under this Section are in addition to other rights
and remedies (including other rights of setoff under applicable law or
otherwise) which such Lender may have.
SECTION 5.7. Currency Fluctuations, etc. (a) Not later than 1:00
p.m., New York City time, on each Calculation Date, each Fronting Bank
shall (i) determine the Applicable Exchange Rate as of such Calculation
Date with respect to each Qualified Foreign Currency for which there are at
such time outstanding Non-U.S. Letters of Credit issued by that Fronting
Bank and (ii) give notice thereof to the Administrative Agent. The
Applicable Exchange Rates so determined shall become effective on the first
Business Day immediately following the relevant Calculation Date (a "Reset
Date") and shall remain effective until the next succeeding Reset Date.
(b) Not later than 3:00 p.m., New York City time, on each Reset
Date, each Fronting Bank shall (i) determine the U.S. Dollar Equivalent of
the Non-U.S. Letters of Credit issued by that Fronting Bank in each
Qualified Foreign Currency then outstanding (after giving effect to any
Loans to be made or repaid on such date) and (ii) notify the U.S. Borrower
and the Administrative Agent of the results of such determination.
SECTION 5.8. European Monetary Union. If, as a result of the
implementation of European Monetary Union ("EMU"), (a) any currency that is
a Qualified Foreign Currency ceases to be lawful currency of the nation
issuing the same and is replaced by a European common currency (the
"Euro"), then any amount payable hereunder in such replaced Qualified
Foreign Currency by either Fronting Bank in respect of a Disbursement shall
instead be payable in Euros and the amount so payable shall be determined
by translating the amount payable in such Qualified Foreign Currency to
Euros at the exchange rate recognized by the European Central Bank for the
purpose of implementing EMU; and (b) any nation issuing a currency that is
a Qualified Foreign Currency also issues or recognizes the Euro through the
central bank or other comparable authority of such nation, then so long as
such nation issues or recognizes both the Qualified Foreign Currency and
the Euro as the national currency, any amounts payable hereunder by either
Fronting Bank in respect of a Disbursement in such Qualified Foreign
Currency shall be payable either in such Qualified Foreign Currency or the
Euro (determined in accordance with the method described in the foregoing
clause (a)), as may be requested by the applicable Letter of Credit
Beneficiary upon notice delivered to the applicable Fronting Bank. Prior to
the applicability of clause (a) or (b) of the preceding sentence, each
amount payable hereunder in any Qualified Foreign Currency will continue to
be payable only in such Qualified Foreign Currency. Each of the Borrowers
and each Fronting Bank agrees, at the request of any such party at the time
of, or at any time following, the implementation of European Monetary
Union, to enter into good faith negotiations concerning an agreement to
amend this Agreement in such manner as any such party shall reasonably
request in order to reflect the implementation of European Monetary Union
and to place the parties hereto in the position they would have been in had
European Monetary Union not been implemented. Notwithstanding anything to
the contrary in Section 11.1, in the event that the Borrowers and either
Fronting Bank are able to agree to an amendment of this Agreement, which
amendment solely addresses issues raised by European Monetary Union, this
Agreement, as of such amendment's effective date, shall be deemed to be
amended by such amendment without the requirement of any further action
hereunder by the Lenders or the Majority Lenders, as the case may be.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Initial Credit Extension. The obligations of the
Lenders to make any Credit Extension and each Fronting Bank to issue any
Letters of Credit or Acceptances shall be subject to the delivery to the
Managing Agents of this Agreement duly executed and delivered by the
Lenders, each Agent, each Borrower and Group, and the prior or concurrent
satisfaction of each of the conditions precedent set forth below in this
Section 6.1.
SECTION 6.1.1. Resolutions, etc. The Administrative Agent shall
have received from each Borrower originally executed copies of a
certificate, each dated the date of the Effective Date, of its Secretary or
Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of
this Agreement, the Notes and each other Trade Document to be
executed by it; and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and
each other Trade Document executed by it,
upon which certificate each Lender may conclusively rely until it shall
have received a further certificate of the Secretary of such Obligor
canceling or amending such prior certificate.
SECTION 6.1.2. Delivery of Notes. Each Lender shall have received
its Note duly executed and delivered by each Borrower.
SECTION 6.1.3. Closing Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, a closing date
certificate, dated the Effective Date and duly executed and delivered by an
Authorized Officer of Group, in which certificate Group shall agree and
acknowledge that the statements made therein shall be deemed to be true and
correct representations and warranties of Group and the Borrowers as of
such date, and, at the time such certificate is delivered, such statements
shall in fact be true and correct, and such certificate shall include the
aggregate principal amount of Interim Loans made in July, August and
September. All documents and agreements required to be appended to the
closing date certificate shall be in form and substance satisfactory to the
Administrative Agent.
SECTION 6.1.4. Effectiveness of Modification Agreement,
Intercreditor Agreement. The Administrative Agent shall have received
evidence satisfactory to it that all conditions to the effectiveness of the
Intercreditor Agreement (as set forth in Article III thereof) and the
Modification Agreement (as set forth in Article VI thereof) shall have been
satisfied in accordance with their terms, without amendment or waiver of
any material provision thereof.
SECTION 6.1.5. Tradexpress Agreement; MicroTrade Agreement. The
Administrative Agent shall have received an originally executed (i)
Tradexpress Agreement, dated as of the Effective Date, duly executed and
delivered by an Authorized Officer of each applicable Obligor and
Scotiabank, and (ii) MicroTrade Agreement, dated as of the Effective Date,
duly executed and delivered by an Authorized Officer of each applicable
Obligor and BofA.
SECTION 6.1.6. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Effective Date and addressed to the
Agents and all Lenders, in each case satisfactory to the Administrative
Agent, from (a) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, New York counsel
to the Obligors, (b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, General Counsel for the U.S.
Borrower, (c) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Barbados counsel to Warnaco (HK), and (d)
▇▇▇▇▇ & Overy, Dutch counsel to Warnaco B.V., Warnaco Netherlands and
Warnaco Holland.
SECTION 6.1.7. Fee Letters. The Administrative Agent shall have
received a copy of each Fee Letter, duly executed and delivered by the
Administrative Agent or BofA (as applicable) and (in each case) the U.S.
Borrower.
SECTION 6.2. All Credit Extensions. The obligation of each Lender
or each Fronting Bank to make any Credit Extension on any date other than a
Funding Date shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 6.2.
SECTION 6.2.1. Compliance with Warranties, No Default, etc. Both
before and after giving effect to any Credit Extension the following
statements shall be true and correct:
(a) no event or circumstances has occurred and is
continuing, or would result from the making of such Credit
Extension, which when considered by itself or together with other
past or then existing events or circumstances, could reasonably be
expected to have a Material Adverse Effect or constitute or would
constitute a Material Adverse Change;
(b) the representations and warranties set forth in Article
VII, and in each other Trade Document shall, in each case, be true
and correct with the same effect as if then made (unless stated to
relate solely to an earlier date, in which case such
representations and warranties shall have been true and correct as
of such earlier date); and
(c) the conditions set forth in Section 3.1 of the
Modification Agreement shall have been satisfied.
SECTION 6.2.2. Credit Request. To the extent that Loans are made as
Base Rate Loans or a LIBO Rate Loan with a three month Interest Period, any
Drawer requests that the Fronting Bank create an Acceptance, or any
Borrower requests that the Fronting Bank issue a Letter of Credit other
than by means of notification in accordance with the terms of the
Tradexpress Agreement or the MicroTrade Agreement, the Fronting Bank making
such Loan, issuing such Letter of Credit or creating an Acceptance shall
have been presented with a draft by any Drawer or shall have received a
Borrowing Request or Issuance Request, as the case may be, for such Credit
Extension, executed and delivered (as applicable) by the applicable
Borrower. Each of the delivery (or deemed delivery pursuant to the terms of
this Agreement) of a draft by any Drawer, a Borrowing Request or an
Issuance Request and the creation of the Acceptance, the acceptance by any
Borrower of the proceeds of the Borrowing, the issuance of the Letter of
Credit, or the making of a Loan upon a Disbursement or the maturity of an
unreimbursed Acceptance, as applicable, shall constitute a representation
and warranty by such Borrowers that on the date of such Credit Extension
(both immediately before and after giving effect to such Credit Extension
and the application of the proceeds thereof) or the creation of an
Acceptance or the issuance of the Letter of Credit, as applicable, the
statements made in Section 6.2.1 are in each case true and correct.
SECTION 6.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of Group or any of its
Subsidiaries shall be satisfactory in form and substance to the Managing
Agents; the Managing Agents shall have received all information, approvals,
opinions, documents or instruments as the Managing Agents may reasonably
request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Fronting Banks, the Lenders and the Agents
to enter into this Agreement and to make Loans, create Acceptances and
issue Letters of Credit hereunder, each Borrower and Group represents and
warrants unto each Agent, each Lender and each Fronting Bank, as set forth
in this Article VII.
SECTION 7.1. Incorporation by Reference of Representations. Group
and each Borrower represents and warrants that the representations and
warranties contained in Article IV of the Modification Agreement are true
and correct in all material respects, each such representation and warranty
set forth in such Article and all other terms of the Modification Agreement
to which reference is made therein, together with all related definitions
and ancillary provisions, being hereby incorporated into this Agreement by
this reference as though specifically set forth in this Article.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. Group and each Borrower
covenants and agrees with each Agent, each Lender and each Fronting Bank
that, until the Trade Termination Date has occurred, they will(and will
cause their Subsidiaries to) perform the obligations set forth in this
Section 8.1.
SECTION 8.1.1. Incorporation by Reference of Affirmative and
Reporting Covenants. Group and each Borrower covenants and agrees that they
will (and cause their Subsidiaries to) perform, comply with and be bound by
all of the agreements, covenants and obligations contained in Section 2.5
and Section 2.8 of the Modification Agreement, each such agreement,
covenant and obligation contained in such Section 2.5 and Section 2.8 and
all other terms of the Modification Agreement to which reference is made
therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Agreement by this reference as though
specifically set forth in this Article.
SECTION 8.1.2. Use of Proceeds. Group and each Borrower covenants
and agrees that the Credit Extensions shall be used solely for the
following purposes:
(a) Letters of Credit shall be issued for the account of (i)
the U.S. Borrower to support obligations of the U.S. Borrower and
its wholly-owned Subsidiaries (and their respective divisions),
(ii) each Foreign Borrower to support obligations of such Foreign
Borrower, (iii) the Sub Borrower to support obligations of the Sub
Borrower and its wholly-owned Subsidiaries (and their respective
divisions) and (iv) each Warnaco Sub Borrower to support
obligations of such Warnaco Sub Borrower and its wholly-owned
Subsidiaries (and their respective divisions), in each case to
facilitate such Borrower's (and, if applicable, Subsidiaries' and
divisions') worldwide sourcing from suppliers of merchandise;
(b) in lieu of a Fronting Bank honoring its Disbursement
obligation under (in the case of Fronting Bank(BNS)) Existing
Letters of Credit or (in the case of each Fronting Bank) Letters of
Credit issued by such Fronting Bank for the account of such
Persons, Acceptances will be created for the account of (i) the
U.S. Borrower to support obligations of the U.S. Borrower and its
wholly-owned Subsidiaries (and their respective divisions), (ii)
the Sub Borrower to support obligations of the Sub Borrower and its
wholly-owned Subsidiaries (and their respective divisions) and
(iii) each Warnaco Sub Borrower to support obligations of such
Warnaco Sub Borrower and its wholly-owned Subsidiaries (and their
respective divisions); and
(c) proceeds of Loans shall be made to one or more Borrowers
(i) by Fronting Bank(BNS) to fund the Reimbursement Obligations in
respect of Existing Letters of Credit and by the applicable
Fronting Bank to fund Reimbursement Obligations in respect of
Letters of Credit issued by it, in each case, under which
Disbursements are made, (ii) by Fronting Bank(BNS) in respect of
Existing Acceptances and by each Fronting Bank to fund
Reimbursement Obligations in respect of Acceptances created by such
Fronting Bank, in each case which have Maturity Dates occurring on
(or about) the date of the Loan and (iii) by Fronting Bank(BNS) to
refinance on or within one Business Day following the Effective
Date the principal amount of all Interim Loans.
SECTION 8.1.3. Possession, etc. Until payment by the Borrowers to
the applicable Fronting Bank of all Obligations with respect to a
particular Letter of Credit (including by way of the making of a Loan or
creation of an Acceptance in respect of a Disbursement under such Letter of
Credit), the Administrative Agent, on behalf of the Lender Parties, shall
have the absolute right and title to and the unqualified right to the
possession and disposal of, the Goods covered by such Letter of Credit, to
the extent not theretofore released to a Borrower (or its designee) on
trust or bailee receipt or otherwise, and all Documents issued in respect
of the Goods relating to such Letter of Credit, all contracts, contract
rights and policies or certificates of insurance specifically relating to
such Goods under such Letter of Credit (all of the foregoing shall be
referred to herein as the "Subject Property" under such Letter of Credit)
and shall be entitled to exercise all rights as an unpaid seller of such
Subject Property, in each case subject to the terms of the Intercreditor
Agreement.
SECTION 8.2. Financial and Negative Covenants. Group and each
Borrower covenants and agrees that, at all times prior to the Trade
Termination Date, they will perform, comply with and be bound by all of the
agreements, covenants and obligations contained in Section 2.6 and Section
2.7 of the Modification Agreement, each such agreement, covenant and
obligation contained in such Section 2.6 and Section 2.7 and all other
terms of the Modification Agreement to which reference is made therein,
together with all related definitions and ancillary provisions, being
hereby incorporated into this Agreement by this reference as though
specifically set forth in this Article.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 9.1 shall constitute an
"Event of Default".
SECTION 9.1.1. Non-Payment of Obligations. Any Borrower shall
default in the payment or prepayment when due of (a) any principal of or
interest on any Loan, (b) any Reimbursement Obligation, or (c) any fee or
of any other Obligation, or prepayment and in each case such default in
payment or prepayment shall continue unremedied for more than three
Business Days from the date such payment or prepayment was due.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty
of any Borrower or any other Obligor (or any of their officers) made or
deemed to be made hereunder or in any other Trade Document executed by it
(including any certificates delivered pursuant to Article VI) shall prove
to have been incorrect in any material respect when made or deemed made.
SECTION 9.1.3. Non-Performance of Certain Covenants and
Obligations. Any Obligor shall default in the due performance and
observance of any of its obligations under (i) Section 8.1.2 or (ii) any
other agreements contained in this Agreement or in the Tradexpress
Agreement if such failure shall remain unremedied for 30 days after written
notice thereof shall have been given to the U.S. Borrower by Fronting
Bank(BNS) or (if earlier) after any officer of the U.S. Borrower obtains
knowledge thereof.
SECTION 9.1.4. Termination, etc., of Trade Documents. Any Trade
Document shall (except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally valid, binding
and enforceable obligation of the Obligor that is a party thereto; or any
Borrower or any other Obligor shall, directly or indirectly, contest in any
manner such effectiveness, validity, binding nature or enforceability
(except as aforesaid).
SECTION 9.1.5. Event of Default Under Modification Agreement. Any
Event of Default under (and as defined in) the Modification Agreement shall
occur and be continuing.
SECTION 9.2. Action Upon Bankruptcy Event. If any Bankruptcy Event
shall occur, the Commitments (if not theretofore terminated) shall
automatically terminate and the outstanding principal amount of all
outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand.
SECTION 9.3. Action Upon Other Event of Default. If any Event of
Default (other than any Bankruptcy Event) shall occur for any reason,
whether voluntary or involuntary, and be continuing, (a) the Administrative
Agent, upon the direction of the Majority Lenders (or, if the Termination
Date has not occurred, upon the direction of the Required Lenders, in
accordance with Section 5.1 of the Modification Agreement), shall by notice
to the U.S. Borrower declare the Commitments (if not theretofore
terminated) to be terminated, whereupon the Commitments shall terminate
and/or (b) the Administrative Agent, upon the direction of the Majority
Lenders (or, if the Termination Date has not occurred, upon the direction
of the Required Lenders in accordance with Section 5.1 of the Modification
Agreement), shall by notice to the U.S. Borrower declare an amount equal to
the sum of the aggregate face amount of all unmatured Acceptances, the
principal amount of all Loans and the maximum aggregate amount that is or
at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or
other documents required to draw under such Letters of Credit) to be
immediately due and payable, the applicable Borrowers being obligated to
cash collateralize all such obligations immediately (in accordance with
Section 4.7), whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment.
ARTICLE X
THE AGENTS, THE FRONTING BANKS
SECTION 10.1. Actions. Each Lender (i) hereby appoints Scotiabank
as its Administrative Agent and Scotiabank and Citibank as the Managing
Agents under and for purposes of this Agreement, the Notes and each other
Trade Document and (ii) hereby appoints Scotiabank as administrative agent
and each Managing Agent as Debt Coordinator for purposes of the Loan
Documents. Each Lender authorizes each Agent to act on behalf of such
Lender under this Agreement, the Notes, each other Trade Document and the
Loan Documents and, in the absence of other written instructions from the
Majority Lenders or, if applicable, the Required Lenders received from time
to time by such Agent (with respect to which the such Agent agrees that it
will comply, except as otherwise provided in this Section, or (if
applicable), the Loan Documents or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated
to or required of such Agent by the terms hereof and thereof, together with
such powers as may be reasonably incidental thereto. Each Lender hereby
indemnifies (which indemnity shall survive any termination of this
Agreement, the other Trade Documents and the Loan Documents) each Agent and
each Fronting Bank, pro rata according to such Lender's Percentage, from
and against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, such Agent in any way
relating to or arising out of this Agreement, the Notes, any other Trade
Document and any Loan Documents, including reasonable attorneys' fees, and
as to which such Agent is not reimbursed by the Borrowers; provided,
however, that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from such Agent's gross negligence or wilful
misconduct. Each Agent shall not be required to take any action hereunder,
under the Notes, under any other Trade Document or under any Loan
Documents, or to prosecute or defend any suit in respect of this Agreement,
the Notes, any other Trade Document or under any Loan Documents, unless it
is indemnified hereunder to its satisfaction. If any indemnity in favor of
any Agent shall be or become, in such Agent's determination, inadequate,
such Agent may call for additional indemnification from the Lenders and
cease to do the acts indemnified against hereunder until such additional
indemnity is given.
SECTION 10.2. Copies, etc. Each Agent shall give prompt notice to
each Lender of each notice or request required or permitted to be given to
such Agent by the Borrowers pursuant to the terms of this Agreement (unless
concurrently delivered to the Lenders by a Borrower). Each Agent will
distribute to each Lender each document or instrument received for its
account and copies of all other communications received by such Agent from
the Borrowers for distribution to the Lenders by such Agent in accordance
with the terms of this Agreement.
SECTION 10.3. Exculpation. Neither any Agent nor any of its
affiliates, directors, officers, employees or agents shall be liable to any
Lender for any action taken or omitted to be taken by it under this
Agreement, any other Trade Document or any Loan Document, or in connection
herewith or therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement, any other Trade Document or any Loan Document,
nor for the creation, perfection or priority of any Liens (if any)
purported to be created by any of the Trade Documents or any Loan
Documents, or the validity, genuineness, enforceability, existence, value
or sufficiency of collateral security (if any), nor to make any inquiry
respecting the performance by any Borrower of its obligations hereunder,
under any other Trade Document or any Loan Document. Any such inquiry which
may be made by any Agent shall not obligate it to make any further inquiry
or to take any action. Each Agent shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which such Agent believes to be genuine and to have
been presented by a proper Person.
SECTION 10.4. Successor. Each Agent may resign as such at any time
upon at least 30 days' prior notice to the U.S. Borrower and all Lenders.
If such Agent at any time shall resign, the Majority Lenders may appoint
another Lender as a successor Agent which shall thereupon become an Agent
in the capacity of the resigning Agent hereunder. If no successor Agent
shall have been so appointed by the Majority Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving
notice of resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the U.S. (or any
State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least
$500,000,000; provided, however, that if, any retiring Agent is unable to
find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth above, the
retiring Agent's resignation shall nevertheless thereupon become effective,
the retiring Agent shall be discharged from its duties and obligations
under the Trade Documents and the Loan Documents and the Lenders shall
(subject to any contrary terms in any Loan Document) assume and perform all
of the duties of Agent hereunder or under the Loan Documents until such
time, if any, as the Majority Lenders appoint a successor as provided
above. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall be entitled to receive from the
retiring Agent such documents of transfer and assignment as such successor
Agent may reasonably request, and shall thereupon succeed to and become
vested with all rights, powers, privileges and duties of the retiring
Agent. After any retiring Agent's resignation hereunder as an Agent, the
provisions of
(a) this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was an Agent
under this Agreement, the Trade Documents and the Loan Documents;
and
(b) Section 11.3 and Section 11.4 shall continue to inure
to its benefit.
SECTION 10.5. Loans Made, Letters of Credit Issued or Acceptances
Created by Scotiabank and BofA. Scotiabank and BofA shall each have the
same rights and powers with respect to (x) the Loans made by it or any of
its affiliates, (y) the Notes held by it or any of its affiliates, and (z)
its participating interests in the Letters of Credit and Acceptances as any
other Lender and may exercise the same as if it were not an Agent, an
Issuer or a Fronting Bank. Each of Scotiabank and BofA and their affiliates
may accept deposits from, lend money to, and generally engage in any kind
of business with the U.S. Borrower or any Subsidiary or Affiliate of the
U.S. Borrower as if Scotiabank and BofA was not an Agent, Issuer or
Fronting Bank hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it
has, independently of each Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrowers, this
Agreement, the other Trade Documents and the Loan Documents (in all cases
the terms and provisions of which being satisfactory to such Lender) and
such other documents, information and investigations as such Lender has
deemed appropriate, made its own credit decision to extend its Commitment.
Each Lender also acknowledges that it will, independently of each Agent and
each other Lender, and based on such other documents, information and
investigations as it shall deem appropriate at any time, continue to make
its own credit decisions as to exercising or not exercising from time to
time any rights and privileges available to it under this Agreement or any
other Trade Document.
SECTION 10.7. Defaults. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default unless
the Administrative Agent has received a written notice from a Lender or the
U.S. Borrower specifying such Default and stating that such notice is a
"Notice of Default". In the event that the Administrative Agent receives
such a notice of the occurrence of a Default, the Administrative Agent
shall give prompt notice thereof to the Lenders. The Administrative Agent
shall (subject to Section 10.1) take such action with respect to such
Default as shall be directed by the Majority Lenders or, if applicable
pursuant to the terms of the Loan Documents, the Required Lenders;
provided, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interest of
the Lenders except to the extent that this Agreement or the Loan Documents
expressly requires that such action be taken, or not be taken, only with
the consent or upon the authorization of the Majority Lenders or, if
applicable, pursuant to the terms of the Loan Documents the Required
Lenders, or all Lenders. Each Lender acknowledges and agrees that if a Loan
Document requires actions be taken or not taken upon the consent or
direction of the Required Lenders or all Lender Parties, then,
notwithstanding anything to the contrary contained in any Trade Document,
the Agents shall only be required to take or omit to take such action upon
the direction of the Required Lenders or the Lender Parties, and the
Majority Lenders and Lenders under the Trade Documents shall not direct the
Agents to act in a manner contrary to the Loan Documents.
SECTION 10.8. Authorization of Administrative Agent Relating to the
Loan Documents. In addition to the other provisions of this Article, each
Lender hereby authorizes and directs the Administrative Agent, on behalf of
such Lender, from time to time (including on the Effective Date) to execute
and deliver all documents and instruments related to the Loan Documents
that are required to be delivered on behalf of the Lenders in connection
with the Loan Documents, subject, where applicable, to the receipt of any
requisite vote of the Lenders.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. (a) The provisions of this
Agreement and of each other Trade Document may from time to time be
amended, modified or waived, if such amendment, modification or waiver is
in writing and consented to by the Borrowers and the Majority Lenders and,
if applicable, the Required Lenders and (in all cases) subject to the terms
of the Intercreditor Agreement, if applicable to the particular amendment,
modification or waiver; provided, however, that no such amendment,
modification or waiver which would:
(i) modify any requirement hereunder that any particular
action be taken by all the Lenders shall be effective unless
consented to by each Lender;
(ii) modify this Section 11.1, reduce the percentage
specified in the definition of "Majority Lenders", reduce any fees
described in Article III, or extend the Commitment Termination Date
shall be made without the consent of each Lender;
(iii) increase the Commitment Amount or (except as otherwise
contemplated by this Agreement, including the definition "Aggregate
Amount") the Percentage of any Lender without the consent of each
Lender adversely affected thereby;
(iv) extend the due date for, or reduce the amount of, (A)
any scheduled repayment or prepayment of principal of or interest
on or fees payable in respect of any Loan (or reduce the principal
amount of or rate of interest on or fees payable in respect of any
Loan) shall be made without the consent of each Lender adversely
affected thereby, or (B) any Reimbursement Obligation shall be made
without the consent of the Lender to whom such Reimbursement
Obligation is owed;
(v) affect adversely the interests, rights or obligations of
either Fronting Bank in its capacity as a Fronting Bank shall be
made without the consent of such Fronting Bank;
(vi) affect adversely the interests, rights or obligations
of the Managing Agents in their capacity as the Managing Agents
shall be made without the consent of each Managing Agent; or
(vii) affect adversely the interests, rights or obligations
of the Administrative Agent in its capacity as the Administrative
Agent shall be made without consent of the Administrative Agent.
No failure or delay on the part of any Agent or any Lender in exercising
any power or right under this Agreement or any other Trade Document shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or
the exercise of any other power or right. No notice to or demand on any
Borrower in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by any Agent or any Lender under
this Agreement or any other Trade Document shall, except as may be
otherwise stated in such waiver or approval, be applicable to subsequent
transactions. No waiver or approval hereunder shall require any similar or
dissimilar waiver or approval thereafter to be granted hereunder.
SECTION 11.2. Notices. All notices and other communications
provided to any party hereto under this Agreement or any other Trade
Document shall be in writing or by facsimile and addressed, delivered or
transmitted to such party at its address, or facsimile number set forth, in
the case of any Borrower, Group or any Agent, below its signature hereto
or, in the case of any Lender, set forth in Schedule II or in the Lender
Assignment Agreement or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed
and sent by pre-paid courier service, shall be deemed given when received;
any notice, if transmitted by facsimile, shall be deemed given when
transmitted.
SECTION 11.3. Payment of Costs and Expenses. The U.S. Borrower
agrees to pay on demand all reasonable expenses of the Agents (including
the reasonable fees and out-of-pocket expenses of counsel to the Agents and
of local counsel, if any, who may be retained by counsel to the Agents) in
connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Trade Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other
Trade Document as may from time to time hereafter be required,
whether or not the transactions contemplated hereby are
consummated; and
(b) the preparation and review of the form of any document
or instrument relevant to this Agreement or any other Trade
Document.
Each Borrower covenants to pay on demand all reasonable costs and expenses
of the Agents, the Fronting Banks and the Lenders incurred in the
enforcement of any Agent's, each Fronting Bank's or any Lender's rights
under this Agreement and any Trade Document (including the reasonable fees
and expenses of counsel for such Agent, each Fronting Bank and such Lender
with respect thereto) and, further, covenants that it will indemnify the
Agents, each Fronting Bank and the Lenders on demand against all loss or
damage to such Persons arising out of the issuance of or other action taken
by such Persons in connection with any Letter of Credit or Loan including
the costs relating to any legal process instituted by any party restraining
or seeking to restrain either Fronting Bank from accepting or paying any
Acceptance, Letter of Credit or Draft. Each Borrower also agrees that
neither any Agent, either Fronting Bank nor any Lender shall have any
liability to it for any reason in respect of the creation of any
Acceptance, the issuance of any Letter of Credit or Loan other than on
account of such Agent's, Fronting Bank's or Lender's gross negligence or
wilful misconduct. All payments to be made to such Agent, either Fronting
Bank and such Lender hereunder shall, subject to Section 5.3, be made for
value on the date due and free of any withholding tax or levy, other than
taxes imposed on the net income of such Agent, such Fronting Bank or such
Lender, and each Borrower covenants that such taxes or levies, other than
as excepted, shall be paid by such Borrower. The provisions of this
paragraph will survive payment in full hereunder.
SECTION 11.4. Indemnification. In consideration of the execution
and delivery of this Agreement by each Lender and the extension of the
Commitments, each Borrower hereby indemnifies, exonerates and holds each
Agent, each Fronting Bank and each Lender and each of their respective
affiliates, officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all
actions, causes of action, suits, losses, costs, liabilities and damages,
and expenses incurred in connection therewith (irrespective of whether any
such Indemnified Party is a party to the action for which indemnification
hereunder is sought), including the reasonable fees and expenses of counsel
for such Agent, such Fronting Bank and such Lender with respect thereto
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or
in part, directly or indirectly, with the proceeds of any Loan or
the use of any Letter of Credit or Acceptance; or
(b) the entering into and performance of this Agreement and
any other Trade Document by any of the Indemnified Parties
(including any action brought by or on behalf of any Borrower as
the result of any determination by the Majority Lenders pursuant to
Article VI not to make any Credit Extension);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct.
SECTION 11.5. Survival. The obligations of each Borrower under
Sections 5.1, 5.2, 5.3, 11.3 and 11.4, and the obligations of the Lenders
under Section 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of
all Commitments. Furthermore, the Obligors acknowledge and agree that the
obligations under Sections 5.3, 5.4, 5.5, 5.6, 11.3 and 11.4 of the Interim
Credit Agreement are continuing obligations and have, notwithstanding the
termination of the Interim Credit Agreement, survived such termination. The
representations and warranties made by the Borrowers in this Agreement and
in each other Trade Document shall survive the execution and delivery of
this Agreement and each such other Trade Document.
SECTION 11.6. Severability. Any provision of this Agreement or any
other Trade Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or such Trade
Document or affecting the validity or enforceability of such provision in
any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and
of each other Trade Document are inserted for convenience only and shall
not affect the meaning or interpretation of this Agreement or such other
Trade Document or any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts,
each of which shall be executed by each Borrower and each Agent and be
deemed to be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of each Borrower and the Lenders (or
notice thereof satisfactory to the Agents) shall have been received by the
Agents and notice thereof shall have been given by the Agents to the U.S.
Borrower and each Lender.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER TRADE DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes and the other Trade Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and (subject to Section 11.5) supersede any prior agreements,
written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
(a) No Borrower may assign or transfer its rights or
obligations hereunder without the prior written consent of the
Agents and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations
in Loans and Notes. Each Lender may assign, or sell participations in, its
Loans and obligations to risk participate in Credit Extensions to one or
more other Persons in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. Any Lender,
(a) with the written consent of the U.S. Borrower (which
consent shall not be unreasonably delayed or withheld and which
consent shall not be required during the occurrence and continuance
of a Default or if the assignment is to a Person described in
clause (b) of Section 8.6 of the Intercreditor Agreement), each
Fronting Bank (in its sole discretion) and the Administrative
Agent, may at any time assign and delegate to one or more
commercial banks, or to other financial institutions, or to Persons
of the type described in Section 8.6(b) of the Intercreditor
Agreement; and
(b) with the consent of each Fronting Bank, and notice to
the U.S. Borrower and the Administrative Agent, but without the
consent of the U.S. Borrower or the Administrative Agent, may
assign and delegate to any other Lender,
(each Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Lender"), all or a fraction of such
Lender's total Loans and obligations to risk participate in Credit
Extensions in a minimum amount of $10,000,000 of Loans and obligations to
risk participate in Credit Extensions (other than in the case of an
assignment to any other Lender or (with the requisite consents described
above) any Affiliate of a Lender or an assignment of the remaining Loans
and obligations to risk participate in Credit Extensions of such assignor
Lender). No Borrower shall be required to pay an amount under Section 5.3
that is greater than the amount which it would have been required to pay
had no assignment been made. The Borrowers and the Administrative Agent
shall be entitled to continue to deal solely and directly with such Lender
in connection with the interests so assigned and delegated to an Assignee
Lender until
(i) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Lender, shall have been
given to the U.S. Borrower (for the purposes hereof, also acting on
behalf of the Foreign Borrowers) and the Administrative Agent by
such Lender and such Assignee Lender,
(ii) such Assignee Lender shall have executed and delivered
to the U.S. Borrower (for the purposes hereof, also acting on
behalf of the Foreign Borrowers) and the Administrative Agent a
Lender Assignment Agreement, accepted by the Administrative Agent,
and shall have become a party to the Intercreditor Agreement and
the Modification Agreement in accordance with the terms thereof;
and
(iii) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights
and obligations hereunder have been assigned and delegated to such Assignee
Lender in connection with such Lender Assignment Agreement, shall have the
rights and obligations of a Lender hereunder and under the other Trade
Documents, and (y) the assignor Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it in connection
with such Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Trade Documents. Within five
Business Days after its receipt of notice that the Administrative Agent has
received an executed Lender Assignment Agreement with respect to the
assignment of Loans, the Borrowers shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) new
Notes evidencing such Assignee Lender's assigned Loans and obligations to
risk participate in Credit Extensions and, if the assignor Lender has Loans
and obligations to risk participate in Credit Extensions hereunder,
replacement Notes in the principal amount of the Loans and obligations to
risk participate in Credit Extensions retained by the assignor Lender
hereunder (such Notes to be in exchange for, but not in payment of, those
Notes then held by such assignor Lender). Each such Note shall be dated the
date of the predecessor Notes. The assignor Lender shall ▇▇▇▇ the
predecessor Notes "exchanged" and deliver them to the U.S. Borrower.
Accrued interest on that part of the predecessor Notes evidenced by the new
Notes, and accrued fees, shall be paid as provided in the Lender Assignment
Agreement. Accrued interest on that part of the predecessor Notes evidenced
by the replacement Notes shall be paid to the assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided
in the predecessor Notes and in this Agreement. Such assignor Lender or
such Assignee Lender must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement in the amount of
$3,500. Any attempted assignment and delegation not made in accordance with
this Section 11.11.1 shall be null and void. Nothing in this Section shall
prevent or prohibit any Lender from pledging its rights (but not its
obligations to make Loans, to issue or participate in Letters of Credit and
to create or participate in Acceptances) under this Agreement and/or its
Loans and/or Notes hereunder to a Federal Reserve Bank in support of
borrowing made by such Lender from such Federal Reserve Bank.
SECTION 11.11.2. Participations. Any Lender may at any time sell to
one or more commercial banks or other Persons (each of such commercial
banks and other Persons being herein called a "Participant") participating
interests (or a sub-participating interest, in the case of a Lender's
participating interest in a Letter of Credit or Acceptance) in any of the
Loans, obligations to risk participate in Credit Extensions or other
interests of such Lender hereunder; provided, however, that
(a) no participation or sub-participation contemplated in
this Section 11.11.2 shall relieve such Lender from its obligations
to risk participate in Credit Extensions or its other obligations
hereunder or under any other Trade Document,
(b) such Lender shall remain solely responsible for the
performance of its obligations to risk participate in Credit
Extensions and such other obligations,
(c) the Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and
each of the other Trade Documents,
(d) no Participant, unless such Participant is an affiliate
of such Lender, or is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any action hereunder or
under any other Trade Document, except that such Lender may agree
with any Participant that such Lender will not, without such
Participant's consent, take any actions of the type described in
clause (ii) (iii) or (iv) of Section 11.1, and
(e) no Borrower shall be required to pay any amount under
Section 5.3 that is greater than the amount which it would have
been required to pay had no participating interest been sold.
SECTION 11.11.3. Fronting Bank Assignments. In the event that S&P,
▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇▇'▇ BankWatch (or InsuranceWatch Ratings Service, in the
case of Lenders that are insurance companies (or Best's Insurance Reports,
if such insurance company is not rated by InsuranceWatch Ratings Service))
shall, after the date that any Lender becomes a Lender, downgrade the
long-term certificate of deposit ratings of such Lender, and the resulting
ratings shall be below BBB-, Baa3 and B (or BB, in the case of Lender that
is an insurance company (or B, in the case of an insurance company not
rated by InsuranceWatch Ratings Service)), then each Fronting Bank and the
U.S. Borrower shall have the individual right, but not the obligation, upon
notice to such Lender, to replace (or, in the case of a request by either
Fronting Bank, to request the U.S. Borrower to use its reasonable efforts
to replace) such Lender with an Assignee Lender (in accordance with and
subject to the restrictions contained in Section 11.11.1), and such
affected Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section
11.11.1) all of its interests, rights and obligations in respect of its
Commitment, Loans and other Obligations owing to it, together with the
obligations of such affected Lender hereunder, to such Assignee Lender;
provided, however, that (i) no such assignment shall conflict with any law,
rule and regulation or order of any governmental authority and (ii) such
Assignee Lender shall pay to such affected Lender in immediately available
funds on the date of such assignment the principal of and interest accrued
to the date of payment on the Loans made by such Lender hereunder and all
other amounts accrued for such Lender's account or owed to it hereunder.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude any Agent, the Fronting Lender or any other Lender from engaging
in any transaction, in addition to those contemplated by this Agreement or
any other Trade Document, with the Borrowers or any of their affiliates in
which such Borrower or such affiliate is not restricted hereby from
engaging with any other Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER TRADE DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
AGENTS, THE LENDERS, GROUP OR THE BORROWERS SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK, LOCATED IN NEW YORK
COUNTY, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK. THE PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, LOCATED IN NEW YORK
COUNTY, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH FOREIGN BORROWER HEREBY IRREVOCABLY
APPOINTS THE U.S. BORROWER (IN SUCH CAPACITY, THE "PROCESS AGENT"), WITH AN
OFFICE ON THE DATE HEREOF AT ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ STATES, AS ITS AGENT TO RECEIVE, ON SUCH FOREIGN BORROWER'S BEHALF
AND ON BEHALF OF SUCH FOREIGN BORROWER'S PROPERTY, SERVICE OF COPIES
OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN
ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING OR
DELIVERING A COPY OF SUCH PROCESS TO SUCH FOREIGN BORROWER IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND SUCH FOREIGN
BORROWER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO
ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE,
EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE)
WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH BORROWER HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND
THE OTHER TRADE DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER TRADE
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS, THE FRONTING BANKS,
GROUP OR THE BORROWERS. THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THEY
HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER TRADE DOCUMENT TO WHICH IT IS A PARTY)
AND GROUP AND EACH BORROWER ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE AGENTS, THE FRONTING BANKS AND THE LENDERS ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER TRADE DOCUMENT.
SECTION 11.15. UCP; etc. (a) The Uniform Customs and Practice for
Documentary Credits as most recently published by the International Chamber
of Commerce (the "UCP") shall in all respects apply to each Letter of
Credit issued hereunder and shall be deemed for such purpose to be a part
hereof as if fully incorporated herein. In the event of any conflict
between the UCP and the governing law of the Agreement, the UCP shall
prevail to the extent necessary to remove the conflict.
(b) In the event of any issuance of a Letter of Credit for which
any Borrower may apply from time to time hereafter, or, of any extension of
the maturity or time for presentation of any Draft, or, of any renewal,
extension or increase in the amount of a Letter of Credit or any other
modifications of its terms, in each case with the consent or at the request
of the U.S. Borrower, the terms of the Agreement shall continue in force
and apply to the Letter of Credit so issued, or, to a Letter of Credit so
renewed, extended, increased or otherwise modified, or, to any, Draft,
document or property covered thereby and to any action taken by either
Fronting Bank or its agents or correspondents in accordance with such
issuance, renewal, extension, increase or other modification.
SECTION 11.16. Usury Restraint. The provisions of this Agreement
shall be subject to any applicable law, regulation, order, rule or
direction (a "Usury Restraint") which prohibits or restricts the charging,
receipt or retention of interest or other amounts at the rates and amounts
set forth herein (the "Stated Rate") in excess (the "Excess") of the
maximum rates or amount (the "Maximum Rate") stipulated in the Usury
Restraint. The provisions of this Agreement shall not require the payment
or permit the collection of interest in excess of the Maximum Rate from
time to time. If the Lenders comply (whether or not required to do so at
law) with such Usury Restraint then, to the extent permitted by law, a
subsequent reduction in the Stated Rate below the Maximum Rate shall be
deemed not to reduce the Stated Rate below the Maximum Rate until the total
amount of interest and other amounts earned and retained, measured by a
dollar amount, equals the amount of interest and other amounts which would
have been earned and retained hereunder, inclusive of the Excess, measured
by a dollar amount, if the Stated Rate had not been held at the Maximum
Rate or any amount had not been refunded to the applicable Borrower.
SECTION 11.17. Judgment Currency. The Obligations of the Borrowers,
Group and each other Obligor in respect of any sum due to any Lender, each
Fronting Bank or the Administrative Agent hereunder, under the Notes or
under or in respect of any other Trade Document shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than Dollars, be
discharged only to the extent that on the Business Day following receipt by
such Lender, the applicable Fronting Bank or the Administrative Agent of
any sum adjudged to be so due in the Judgment Currency, such Lender, the
applicable Fronting Bank or the Administrative Agent, in accordance with
normal banking procedures, purchases Dollars with the Judgment Currency. If
the amount of Dollars so purchased is less than the sum originally due to
such Lender, either Fronting Bank or the Administrative Agent, each
Borrower and Group agrees as a separate obligation and notwithstanding any
such judgment, to indemnify each Lender, such Fronting Bank and the
Administrative Agent, as the case may be, against such loss.
SECTION 11.18. Future Wholly-Owned Domestic Subsidiaries Designated
as Warnaco Sub Borrowers. Upon no less than 30 days', and no more than 60
days' (or such lesser or greater periods of time as may be approved by the
Administrative Agent), written notice to the Administrative Agent, Group
may from time to time designate certain of its wholly-owned Domestic
Subsidiaries to be Warnaco Sub Borrowers hereunder and Schedule I shall be
deemed revised to reflect such designation; provided that,
(a) (i) at no time shall there be more than fifteen (15)
Borrowers under this Agreement and (ii) prior to becoming a Warnaco
Sub Borrower hereunder, each such designated wholly-owned Domestic
Subsidiary shall have executed and delivered a Joinder Agreement
and shall have executed and delivered to the Administrative Agent
(or otherwise become a party to) a Domestic Subsidiary Guaranty.
Upon compliance with this clause (a), each designated Warnaco Sub
Borrower shall become, for all purposes, a Borrower under this
Agreement, and shall have all the rights, powers and obligations of
a Borrower hereunder; and
(b) from time to time Group may, or if necessary to comply
with clause (a)(i) of this Section 11.18 shall, execute and deliver
to the Administrative Agent a Designation and Release Certificate
which shall designate one or more of the Sub Borrower, the Foreign
Borrowers or the Warnaco Sub Borrowers (each such designated
Borrower, a "Released Borrower") which, immediately prior to the
date of such Designation and Release Certificate, was a Borrower
under this Agreement and which shall, upon delivery of such
Designation and Release Certificate, no longer be a "Borrower" (or
Sub Borrower, Foreign Borrower or Warnaco Sub Borrower, as the case
may be) for purposes of this Agreement; and such Released Borrower
shall (i) repay in full the entire unpaid principal amount of its
outstanding Loans, if any, (ii) cash collateralize any and all
Letters of Credit issued and/or Acceptances created, as the case
may be, in respect of which it has a Reimbursement Obligation,
(iii) pay in full any and all reasonable costs and expenses
(including attorneys' fees as well as those costs and expenses set
forth in Section 5.2) incurred in connection with its release
hereunder, (iv) pursuant to Section 11.5, acknowledge and confirm
that certain of the provisions of this Agreement shall,
notwithstanding the Released Borrower's release hereunder, be
continuing obligations and shall survive such release, and (v)
execute and deliver a certificate, in form and substance
satisfactory to the Administrative Agent, certifying that all of
the events set forth in clauses (b)(i) through (b)(iv) above shall
have occurred. Upon delivery of the certificate described in clause
(b)(v) above, such Released Borrower shall automatically be
released from all obligations of a Borrower hereunder (except such
obligations which survive pursuant to Section 11.5) without
requiring any further action by any party, including any written
release by any of the Lender Parties.
SECTION 11.19. Assumption of Certain Loans by U.S. Borrower. (a)
The U.S. Borrower may, from time to time, provide both the Administrative
Agent and each Fronting Bank with no less than five (5) Business Days'
written notice that it intends to assume those LIBO Rate Loans made by the
Fronting Banks to Warnaco (HK) (each such notice, an "Assumption Notice"),
and upon the date which is five (5) Business Days following the date of
such Assumption Notice (each such date, an "Assumption Date"), each Loan so
identified shall be deemed to be assumed in toto by the U.S. Borrower,
without any further action by the U.S. Borrower, either Fronting Bank or
any other Person, and all obligations in respect of each such Loan, from
and after such Assumption Date, shall be deemed to be the sole and direct
obligation of the U.S. Borrower for all purposes of this Agreement and
Warnaco (HK) shall, concurrently with such assumption, be released of its
obligations to repay each such Loan for all purposes of this Agreement.
(b) In furtherance of the foregoing, on any Assumption Date, the
U.S. Borrower: (i) agrees to be bound by and perform each duty and
obligation with respect to the applicable Loan as if it were the original
"Borrower" of such Loan; (ii) accepts and assumes all liabilities related
to any representation or warranty made by, as applicable, Warnaco (HK) in
connection with the applicable Loan and confirms and restates all such
representations and warranties as of such Assumption Date as if it were the
original "Borrower" of such Loan; and (iii) confirms and acknowledges that
it is the "Borrower" referred to in this Agreement with respect to the
applicable Loan as if it had been the "Borrower" thereof under this
Agreement from the original making of such Loan.
SECTION 11.20. Joinder to Loan Documents. By its signature below,
each Lender hereby:
(a) confirms that it has received a copy of the
Intercreditor Agreement, the Collateral Documents and all of the
other Loan Documents; and
(b) agrees that it will (i) be bound by the provisions of
the Intercreditor Agreement, each Collateral Document and each
other Loan Document, in each case, applicable to it as a Lender
Party and (ii) perform all obligations which are required to be
performed by it as a Lender Party pursuant to the Intercreditor
Agreement, each Collateral Document and each other Loan Document.
From and after the date hereof, each Lender shall be a "Lender Party" for
all purposes under the Loan Documents, have the rights and obligations of a
Lender Party under the Intercreditor Agreement, the Facility Agreement, and
under the other Loan Documents and be bound by the provisions of the Loan
Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of
the day and year first above written.
WARNACO INC.
By: /s/
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Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO (HK) LTD.
By: /s/
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Title:
Address: 2A, Jing Hin Industrial ▇▇▇▇.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇▇-▇▇▇▇
Attention: Director of Finance
DESIGNER HOLDINGS, LTD.
By: /s/
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Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
AUTHENTIC FITNESS PRODUCTS, INC.
By: /s/
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Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO B.V.
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
Address: c/o Warnaco Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO NETHERLANDS B.V.
By: /s/
--------------------------------
Title:
By: /s/
--------------------------------
Title:
Address: c/o Warnaco Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO HOLLAND B.V.
By: /s/
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Title:
By: /s/
--------------------------------
Title:
Address: c/o Warnaco Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
THE WARNACO GROUP, INC.
By: /s/
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Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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Facsimile No.:▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By: /s/
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Title:
BANK OF AMERICA, N.A.
By: /s/
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Title:
SOCIETE GENERALE
By: /s/
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Title:
CITIBANK, N.A.
By: /s/
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Title:
THE BANK OF NOVA SCOTIA
By: /s/
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Title:
CITIBANK, N.A.
By: /s/
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Title:
THE BANK OF NEW YORK
By: /s/
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Title:
COMMERZBANK AG, NEW YORK BRANCH
By: /s/
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Title:
By: /s/
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Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/
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Title:
FLEET NATIONAL BANK
By: /s/
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Title:
SOCIETE GENERALE
By: /s/
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Title:
BANK OF AMERICA, N.A.
By: /s/
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Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: /s/
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Title:
BANKBOSTON, N.A.
By: /s/
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Title:
UNICREDIT ITALIANO
By: /s/
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Title:
By: /s/
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Title:
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By: /s/
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Title:
THE INDUSTRIAL BANK OF JAPAN
By: /s/
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Title:
KBC BANK N.V.
By: /s/
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Title:
HSBC BANK USA
By: /s/
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Title:
▇▇▇▇▇▇ BANK PLC - NEW YORK BRANCH
By: /s/
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Title:
By: /s/
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Title:
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/
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Title:
THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By: /s/
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Title:
DEN DANSKE BANK
By: /s/
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Title:
REPUBLIC NATIONAL BANK
By: /s/
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Title:
STANDARD CHARTERED BANK
By: /s/
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Title:
SUN TRUST BANK
By: /s/
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Title:
By: /s/
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Title:
WACHOVIA BANK, N.A.
By: /s/
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Title:
BANK LEUMI USA
By: /s/
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Title:
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms......................................................2
1.2. Use of Defined Terms..............................................16
1.3. Cross-References..................................................16
1.4. Accounting and Financial Determinations...........................16
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments.......................................................16
2.1.1. Loan Commitment...................................................16
2.1.2. Commitment to Issue Letters of Credit and Create Acceptances......18
2.1.3. Lenders Not Required to Make Loans and Fronting Banks Not
Required to Issue Letters of Credit or Create Acceptances
Under Certain Circumstances.......................................19
2.2. Reduction of the Commitment Amount................................20
2.3. Borrowing Procedure; Interim Loans Refinanced With Loans
Hereunder.........................................................20
2.4. Continuation and Conversion Elections.............................23
2.5. Funding...........................................................23
2.6. Notes.............................................................23
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments........................................24
3.2. Interest Provisions...............................................25
3.2.1. Rates.............................................................25
3.2.2. Default Rates.....................................................26
3.2.3. Payment Dates.....................................................26
3.2.4. Allocation of Interest Payments...................................27
3.3. Fees..............................................................28
3.3.1. Letter of Credit and Acceptance Fees Payable to the
Lenders...........................................................28
3.3.2. Letter of Credit and Acceptance Fees Payable to the
Fronting Banks....................................................28
3.3.3. Fee Letters.......................................................29
3.3.4. Facility Fee......................................................29
ARTICLE IV
LETTERS OF CREDIT AND ACCEPTANCES
4.1. Issuance of Letters of Credit and Creation of Acceptances.........29
4.1.1. Letters of Credit.................................................29
4.1.2. Non-U.S. Letters of Credit........................................31
4.1.3. Acceptances.......................................................32
4.2. Issuances, Extensions and Creations...............................33
4.3. Destruction of Goods, etc.........................................34
4.4. Other Lenders' Participation......................................34
4.5. Disbursements and Maturities......................................35
4.6. Reimbursement; Outstanding Letters, etc...........................36
4.7. Deemed Disbursements..............................................38
4.8. Nature of Reimbursement Obligations...............................39
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
5.1. Incorporation by Reference of Certain LIBO Rate, Increased
Capital Costs, Other Provisions...................................40
5.2. Funding Losses....................................................40
5.3. Taxes.............................................................41
5.4. Payments, Computations, etc.......................................41
5.5. Sharing of Payments...............................................41
5.6. Setoff............................................................42
5.7. Currency Fluctuations, etc........................................42
5.8. European Monetary Union...........................................43
ARTICLE VI
CONDITIONS PRECEDENT
6.1. Initial Credit Extension..........................................43
6.1.1. Resolutions, etc..................................................43
6.1.2. Delivery of Notes.................................................44
6.1.3. Closing Date Certificate..........................................44
6.1.4. Effectiveness of Modification Agreement, Intercreditor
Agreement.........................................................44
6.1.5. Tradexpress Agreement; MicroTrade Agreement.......................44
6.1.6. Opinions of Counsel...............................................44
6.1.7. Fee Letters.......................................................45
6.2. All Credit Extensions.............................................45
6.2.1. Compliance with Warranties, No Default, etc.......................45
6.2.2. Credit Request....................................................45
6.2.3. Satisfactory Legal Form...........................................46
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Incorporation by Reference of Representations.....................46
ARTICLE VIII
COVENANTS
8.1. Affirmative Covenants.............................................46
8.1.1. Incorporation by Reference of Affirmative and Reporting
Covenants.........................................................46
8.1.2. Use of Proceeds...................................................46
8.1.3. Possession, etc...................................................47
8.2. Financial and Negative Covenants..................................48
ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default......................................48
9.1.1. Non-Payment of Obligations........................................48
9.1.2. Breach of Warranty................................................48
9.1.3. Non-Performance of Certain Covenants and Obligations..............48
9.1.4. Termination, etc., of Trade Documents.............................48
9.1.5. Event of Default Under Modification Agreement.....................48
9.2. Action Upon Bankruptcy Event......................................49
9.3. Action Upon Other Event of Default................................49
ARTICLE X
THE AGENTS, THE FRONTING BANKS
10.1. Actions...........................................................49
10.2. Copies, etc.......................................................50
10.3. Exculpation.......................................................50
10.4. Successor.........................................................50
10.5. Loans Made, Letters of Credit Issued or Acceptances Created
by Scotiabank and BofA............................................51
10.6. Credit Decisions..................................................51
10.7. Defaults..........................................................52
10.8. Authorization of Administrative Agent Relating to the Loan
Documents.........................................................52
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc..........................................52
11.2. Notices...........................................................53
11.3. Payment of Costs and Expenses.....................................54
11.4. Indemnification...................................................54
11.5. Survival..........................................................55
11.6. Severability......................................................55
11.7. Headings..........................................................55
11.8. Execution in Counterparts, Effectiveness, etc.....................55
11.9. Governing Law; Entire Agreement...................................56
11.10. Successors and Assigns............................................56
11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes...................................................56
11.11.1. Assignments.......................................................56
11.11.2. Participations....................................................58
11.11.3. Fronting Bank Assignments.........................................58
11.12. Other Transactions................................................59
11.13. Forum Selection and Consent to Jurisdiction.......................59
11.14. Waiver of Jury Trial..............................................60
11.15. UCP; etc..........................................................60
11.16. Usury Restraint...................................................61
11.17. Judgment Currency.................................................61
11.18. Future Wholly-Owned Domestic Subsidiaries Designated
as Warnaco Sub Borrowers..........................................61
11.19. Assumption of Certain Loans by U.S. Borrower......................62
11.20. Joinder to Loan Documents.........................................63
SCHEDULE I - List of Warnaco Sub Borrowers
SCHEDULE II - Percentages; LIBOR Office: Domestic Office
SCHEDULE III - List of Interim [Loans]
SCHEDULE IV - Amount of Lender's Note
SCHEDULE V - Aggregate Amount
EXHIBIT A - Form of Note
EXHIBIT B - Form of Issuance Request
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - Form of Lender Assignment Agreement
EXHIBIT F - Form of Joinder Agreement
EXHIBIT G - Form of Designation and Release Certificate
EXHIBIT H - Form of Intercreditor Agreement
EXHIBIT I - Form of Modification Agreement