[EXECUTION COPY]
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of July 31, 1998,
among
WARNACO INC.,
as the U.S. Borrower,
DESIGNER HOLDINGS, LTD.,
as the Sub Borrower,
THOSE 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.,
as a Guarantor,
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
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders.
Arrangers:
THE BANK OF NOVA SCOTIA
and
CITICORP SECURITIES, INC.
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................................................................3
1.2. Use of Defined Terms...............................................................................................25
1.3. Cross-References...................................................................................................26
1.4. Accounting and Financial Determinations............................................................................26
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments........................................................................................................26
2.1.1. Loan Commitment..................................................................................................26
2.1.2. Commitment to Issue Letters of Credit and Create Acceptances.....................................................28
2.1.3. Lenders Not Permitted or Required to Make Loans and Fronting Bank Not Permitted or Required to Issue
Letters of Credit or Create Acceptances Under Certain Circumstances......................................................28
2.2. Reduction of the Commitment Amount.................................................................................29
2.3. Borrowing Procedure................................................................................................29
2.4. Continuation and Conversion Elections..............................................................................32
2.5. Funding............................................................................................................32
2.6. Notes..............................................................................................................33
2.7. Extension of Commitment Termination Date...........................................................................33
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments.........................................................................................34
3.2. Interest Provisions................................................................................................35
3.2.1. Rates............................................................................................................35
3.2.2. Post-Maturity Rates..............................................................................................36
3.2.3. Payment Dates....................................................................................................36
3.2.4. Allocation of Interest Payments..................................................................................37
3.3. Fees...............................................................................................................38
3.3.1. Letter of Credit and Acceptance Fees.............................................................................38
3.3.2. Letter of Credit and Acceptance Fees.............................................................................39
3.3.3. Fee Letter.......................................................................................................39
3.3.4. Commitment Fee...................................................................................................39
3.4. Guaranty...........................................................................................................40
3.4.1. Guaranty.........................................................................................................40
3.4.2. Acceleration of Guaranty.........................................................................................41
3.4.3. Guarantee Absolute, etc..........................................................................................41
TABLE OF CONTENTS
(continued)
Section Page
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3.4.4. Reinstatement, etc...............................................................................................43
3.4.5. Waiver, etc......................................................................................................43
3.4.6. Postponement of Subrogation, etc.................................................................................43
ARTICLE IV
LETTERS OF CREDIT AND ACCEPTANCES
4.1. Issuance of Letters of Credit and Creation of Acceptances..........................................................44
4.1.1. Letters of Credit................................................................................................45
4.1.2. Non-U.S. Letters of Credit.......................................................................................46
4.1.3. Acceptances......................................................................................................47
4.2. Issuances, Extensions and Creations................................................................................49
4.3. Destruction of Goods, etc..........................................................................................49
4.4. Other Lenders' Participation.......................................................................................50
4.5. Disbursements and Maturities.......................................................................................51
4.6. Reimbursement; Outstanding Letters, etc............................................................................51
4.7. Deemed Disbursements...............................................................................................54
4.8. Nature of Reimbursement Obligations................................................................................56
4.9. Existing Letters of Credit and Acceptances.........................................................................56
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
5.1. LIBO Rate Lending Unlawful.........................................................................................57
5.2. Deposits Unavailable...............................................................................................57
5.3. Increased LIBO Rate Loan Costs, etc................................................................................57
5.4. Funding Losses.....................................................................................................58
5.5. Increased Capital Costs, etc.......................................................................................58
5.6. Taxes..............................................................................................................59
5.7. Payments, Computations, etc........................................................................................62
5.8. Sharing of Payments................................................................................................62
5.9. Setoff.............................................................................................................63
5.10. Use of Proceeds...................................................................................................63
5.11. Currency Fluctuations, etc........................................................................................63
5.12. European Monetary Union...........................................................................................64
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TABLE OF CONTENTS
(continued)
Section Page
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ARTICLE VI
CONDITIONS PRECEDENT
6.1. Initial Credit Extension...........................................................................................65
6.1.1. Resolutions, etc.................................................................................................65
6.1.2. Delivery of Notes................................................................................................65
6.1.3. Affirmation and Consent to Guarantees............................................................................65
6.1.4. Supplement to Subsidiary Guaranty................................................................................65
6.1.5. Certificates as to No Default, etc...............................................................................66
6.1.6. No Material Adverse Change.......................................................................................66
6.1.7. Amendment of U.S. Credit Agreement, etc..........................................................................66
6.1.8. Opinions of Counsel..............................................................................................66
6.2. All Credit Extensions..............................................................................................66
6.2.1. Compliance with Warranties, No Default, etc......................................................................66
6.2.2. Credit Request...................................................................................................67
6.2.3. Satisfactory Legal Form..........................................................................................67
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Organization, etc..................................................................................................68
7.2. Due Authorization, Non-Contravention, etc..........................................................................68
7.3. Government Approval, Regulation, etc...............................................................................69
7.4. Validity, etc......................................................................................................69
7.5. Financial Statements; No Material Adverse Change...................................................................69
7.6. Litigation, etc....................................................................................................69
7.7. Regulations U and X................................................................................................70
7.8. Accuracy of Information............................................................................................70
7.9. Year 2000..........................................................................................................70
ARTICLE VIII
COVENANTS
8.1. Affirmative Covenants..............................................................................................71
8.1.1. Compliance with Laws, etc........................................................................................71
8.1.2. Payment of Taxes, etc............................................................................................71
8.1.3. Maintenance of Insurance.........................................................................................71
8.1.4. Preservation of Corporate Existence, etc.........................................................................71
8.1.5. Visitation Rights................................................................................................71
8.1.6. Keeping of Books.................................................................................................72
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TABLE OF CONTENTS
(continued)
Section Page
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8.1.7. Maintenance of Properties, etc...................................................................................72
8.1.8. Transactions with Affiliates.....................................................................................72
8.1.9. Implied Senior Rating............................................................................................72
8.1.10. Reporting Requirements..........................................................................................72
8.1.11. Covenant To Guarantee Obligations...............................................................................74
8.2. Negative Covenants.................................................................................................74
8.2.1. Liens, etc.......................................................................................................74
8.2.2. Mergers, etc.....................................................................................................75
8.2.3. Debt.............................................................................................................76
8.2.4. Sales, etc. of Assets............................................................................................76
8.2.5. Nature of Business...............................................................................................77
8.2.6. Accounting Changes...............................................................................................77
8.3. Financial Covenants................................................................................................77
8.3.1. Leverage Ratio...................................................................................................77
8.3.2. Coverage Ratio...................................................................................................77
ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default.......................................................................................78
9.1.1. Non-Payment of Obligations.......................................................................................78
9.1.2. Breach of Warranty...............................................................................................78
9.1.3. Non-Performance of Certain Covenants and Obligations.............................................................78
9.1.4. Non-Performance of Other Covenants and Obligations...............................................................78
9.1.5. Default Under Other Agreements...................................................................................78
9.1.6. Bankruptcy, Insolvency, etc......................................................................................79
9.1.7. Judgments, etc...................................................................................................80
9.1.8. Termination, etc., of Loan Documents.............................................................................80
9.1.9. Change in Control................................................................................................80
9.1.10. ERISA...........................................................................................................81
9.2. Action Upon Bankruptcy.............................................................................................81
9.3. Action Upon Other Event of Default.................................................................................81
ARTICLE X
THE AGENTS
10.1. Actions...........................................................................................................81
10.2. Copies, etc.......................................................................................................82
10.3. Exculpation.......................................................................................................82
10.4. Successor.........................................................................................................83
10.5. Loans Made, Letters of Credit Issued or Acceptances Created by Scotiabank and Loans Made by Citibank..............83
10.6. Credit Decisions..................................................................................................84
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section Page
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11.1. Waivers, Amendments, etc..........................................................................................84
11.2. Notices...........................................................................................................85
11.3. Payment of Costs and Expenses.....................................................................................86
11.4. Indemnification...................................................................................................86
11.5. Survival..........................................................................................................87
11.6. Severability......................................................................................................87
11.7. Headings..........................................................................................................88
11.8. Execution in Counterparts, Effectiveness, etc.....................................................................88
11.9. Governing Law; Entire Agreement...................................................................................88
11.10. Successors and Assigns...........................................................................................88
11.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes..........................................88
11.11.1. Assignments....................................................................................................88
11.11.2. Participations.................................................................................................90
11.11.3. Fronting Bank Assignments......................................................................................91
11.12. Other Transactions...............................................................................................91
11.13. Forum Selection and Consent to Jurisdiction......................................................................92
11.14. Waiver of Jury Trial.............................................................................................92
11.15. UCP; etc.........................................................................................................93
11.16. Usury Restraint..................................................................................................93
11.17. Judgment Currency................................................................................................93
11.18. Future Wholly-Owned Domestic Subsidiaries Designated as Warnaco Sub Borrowers....................................94
11.19. Assumption of Certain Loans by U.S. Borrower.....................................................................95
SCHEDULE I - List of Existing Letters of Credit, Existing
Loans and Existing Acceptances
SCHEDULE II - List of Warnaco Sub Borrowers
SCHEDULE 7.1 - List of Subsidiaries
SCHEDULE 8.2 - Assets Held for Sale
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-1 - Form of Group Guaranty
EXHIBIT F-2 - Form of Subsidiary Guaranty
EXHIBIT G - Form of Opinion of New York Counsel to the Obligors
EXHIBIT H - Form of Opinion of General Counsel for the
U.S. Borrower
EXHIBIT I - Form of Opinion of Barbados Counsel for the
Foreign Borrower
EXHIBIT J - Form of Opinion of Dutch counsel for Warnaco
B.V., Warnaco Netherlands and Warnaco Holland
EXHIBIT K - Form of Joinder Agreement
EXHIBIT L - Form of Designation and Release Certificate
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FIFTH AMENDED AND RESTATED
CREDIT AGREEMENT
THIS FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 31, 1998
(amending and restating the Existing Credit Agreement (as defined below)), is
among WARNACO INC., a Delaware corporation (the "U.S. Borrower"), DESIGNER
HOLDINGS, LTD., a Delaware corporation (the "Sub Borrower"), the wholly-owned
Domestic Subsidiaries designated by Group (as hereinafter defined) from time to
time in accordance with Section 11.19 and set forth on Schedule II 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 WARNACO GROUP, INC., a Delaware
corporation ("Group"), the various financial institutions as are or may become
parties hereto (collectively, the "Lenders"), SOCIETE GENERALE, 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 and THE BANK OF NOVA SCOTIA ("Scotiabank"), as
administrative agent (in such capacity, the "Administrative Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers, Group, certain financial institutions, Citibank and
Scotiabank are parties to the Fourth Amended and Restated Credit Agreement,
dated as of February 19, 1998 (as amended, supplemented, amended and restated or
otherwise modified prior to the date hereof, the "Existing Credit Agreement"),
pursuant to which, inter alia, such financial institutions have made (or
participated in) loans to the Borrowers, as listed on Schedule I hereto (the
"Existing Loans"), and Scotiabank provides documentary and standby letter of
credit facilities in favor of each of the Borrowers and has (a) issued those
letters of credit (the "Existing Letters of Credit") listed on Schedule I hereto
and (b) created those Acceptances (the "Existing Acceptances") listed on
Schedule I hereto;
WHEREAS, the Borrowers have requested that the Lenders and the Fronting
Bank amend and restate the Existing Credit Agreement with this Agreement;
WHEREAS, pursuant to this Agreement the Borrowers desire to obtain
Commitments from the Lenders and the Fronting Bank pursuant to which
(a) Documentary Letters of Credit will be issued by the Fronting Bank
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) and, under the several obligations hereunder, each of the
Lenders will, to the extent of such Lender's Percentage, participate in
Letters of Credit (including the Existing Letters of Credit) issued from
time to time hereunder on or prior to the Commitment Termination Date;
(b) Acceptances will be created by the Fronting Bank 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,
under the several obligations hereunder, each of the Lenders will, to the
extent of such Lender's Percentage, participate in Acceptances created from
time to time hereunder on or prior to the Commitment Termination Date; and
(c) Loans will be made by the Fronting Bank to the Borrowers and,
under the several obligations hereunder, each of the Lenders will, to the
extent of such Lender's Percentage, participate in or make the Loans from
time to time on or prior to the Commitment Termination Date;
WHEREAS, the Fronting Bank and the Lenders are willing, on the terms and
subject to the conditions hereinafter set forth (including Article VI), to amend
and restate the Existing Credit Agreement pursuant to the terms and conditions
of this Agreement, 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; and
WHEREAS, (i) the proceeds of Loans will be used for the sole
purpose of providing the Borrowers with up to a six-month (or
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180-day, in the case of Base Rate Loans) trade credit in respect of
disbursements made to the beneficiaries of Letters of Credit and payments made
to the payees of matured Acceptances and (ii) Letters of Credit will be issued
and Acceptances will be created solely to support the worldwide sourcing of
merchandise by the U.S. Borrower, the Warnaco Sub Borrowers, the Sub Borrower
and the Foreign Borrowers and their respective wholly-owned Subsidiaries (or
divisions);
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 an acceptance created by the Fronting Bank under the
Acceptance Commitment in accordance with Article IV and for the account of the
U.S. Borrower, any Warnaco Sub Borrower or the Sub Borrower and their respective
wholly-owned Subsidiaries, including all Existing Acceptances.
"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, relative to the Fronting Bank, the Fronting
Bank's obligation to create Acceptances pursuant to Section 2.1.2 and, with
respect to each of the other Lenders, the obligations of each such Lender to
participate in such Acceptances pursuant to the terms of this Agreement.
"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 Party" is defined in Section 3.4.1
"Acceptance Reimbursement Obligation" is defined in Section 4.6.
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"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.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling", "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 10% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agent" means, as the context may require, the Administrative Agent,
the Documentation Agent and/or the Managing Agents.
"Agreement" means, on any date, this Fifth Amended and Restated 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.
"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 announced 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.
"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
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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) in the case of Non-U.S. Letters of Credit issued for the
account of the Foreign Borrowers other than Warnaco (HK), London, and (iii) in
the case of NonU.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 Rating Level in effect on such date as set forth below:
Applicable Applicable
Margin for Margin for
Rating Base Rate LIBO Rate
Level Debt Rating Loans Loans
----- ---------------- ---------- ----------
▇▇▇▇▇ ▇ ▇-/▇▇ or higher 0.000% 0.250%
▇▇▇▇▇ ▇ ▇▇▇▇/▇▇▇▇ 0.000% 0.275%
▇▇▇▇▇ ▇ BBB/Baa2 0.000% 0.300%
▇▇▇▇▇ ▇ ▇▇▇-/▇▇▇▇ ▇.▇▇▇% ▇.▇▇▇%
▇▇▇▇▇ ▇ ▇▇▇/▇▇▇ or lower 0.250% 0.625%;
provided, however, that at any time when the aggregate outstanding principal
amount of all Loans, together with the aggregate amount of all Letter of Credit
Outstandings and Acceptance Obligations exceeds $112,500,000 and the then
existing Rating Level is equal to ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or ▇▇▇▇▇ ▇, the Applicable
Margin shall be increased by 0.075% per annum.
The Applicable Margin shall be determined by reference to the Rating Level
in effect from time to time; provided, however, that no change in the Applicable
Margin shall be effective until three Business Days after the date on which the
Administrative Agent receives evidence reasonab y satisfactory to it from Group
or the U.S. Borrower that a new Rating Level is in effect. In the event that at
any time no Debt Rating shall be in effect, the Applicable Margin shall be
0.250% for each Base Rate Loan and 0.625% for each LIBO Rate Loan.
"Applicable Time" shall mean (i) except as provided in clauses (ii) and
(iii), New York time, (ii) in the case of actions or notices by or relating to
the Foreign Borrowers other than Warnaco (HK), London time, and (iii) in the
case of any
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actions or notices by or relating to Warnaco (HK), Hong Kong time.
"Approved Accounting Firm" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Coopers & ▇▇▇▇▇▇▇
L.L.P., Deloitte & Touche LLP, Ernst & Young LLP, Price Waterhouse LLP or KPMG
Peat Marwick LLP, or any successor thereof.
"Assignee Lender" is defined in Section 11.11.1.
"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.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"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 the Fronting Bank 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.
"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) in the case of
actions relating to the Foreign Borrowers other than Warnaco (HK), 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
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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).
"Cash Equivalents" means cash equivalents and marketable securities (other
than equity securities).
"Citibank" is defined in the preamble.
"Commitment" means, as the context may require, a Lender's Loan Commitment
or the Fronting Bank's or a Lender's (a) Letter of Credit Commitment or (b)
Acceptance Commitment.
"Commitment Amount" means $450,000,000, as such amount may be reduced
pursuant to Section 2.2.
"Commitment Fee" is defined in Section 3.3.4.
"Commitment Termination Date" means the earliest of
(a) July 29, 1999, as such date may be extended pursuant to the terms
of this Agreement;
(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
shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any event or condition described in Section
9.1.6;
(b) the occurrence and continuance of any other Event of Default and
either
(i) the declaration of the Loans 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 Required
Lenders, to the Borrowers that the Commitments have been terminated;
or
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(c) the termination of, or any refinancing, refunding, replacement,
renewal or restatement of, the U.S. Credit Agreement.
"Consolidated" refers to the consolidation of accounts in accordance with
GAAP.
"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 the Fronting Bank to a
Borrower on a Disbursement Date or the Maturity Date of an Acceptance and
the refunding and refinancing of such Loans by the Lenders); and
(b) any (i) issuance or extension by the Fronting Bank of a Letter of
Credit or (ii) creation by the Fronting Bank of an Acceptance.
"Current Liabilities" of any Person means (a) all Debt of such Person
except Funded Debt and Debt in respect of Revolving Credit Advances, Letter of
Credit Advances and Swing Line Advances (each such term used as defined in the
U.S. Credit Agreement in effect on the Effective Date), (b) all amounts of
Funded Debt of such Person required to be paid or prepaid within one year after
the date of determination and (c) all other items (including taxes accrued as
estimated) that in accordance with GAAP would be classified as current
liabilities of such Person.
"Debt" of any Person means, without duplication, the following:
(a) all indebtedness of such Person for borrowed money,
(b) all obligations of such Person for the deferred purchase price of
property or services (other than trade payables not overdue by more than 90
days incurred in the ordinary course of such Person's business), including,
without limitation, under this Agreement,
(c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments,
(d) all obligations of such Person created or arising under any
conditional sale or other title retention
-8-
agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property),
(e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases,
(f) all obligations, contingent or otherwise, of such Person under
acceptance, letter of credit or similar facilities,
(g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any capital stock of or
other ownership or profit interest in such Person or any other Person or
any warrants, rights or options to acquire such capital stock, valued, in
the case of Redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(h) all obligations of such Person in respect of Hedge Agreements,
(i) all Debt of others of the kinds referred to in clauses (a) through
(h) above guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Debt or to advance or supply funds
for the payment or purchase of such Debt, (ii) to purchase, sell or lease
(as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Debt or to
assure the holder of such Debt against loss, (iii) to supply funds to or in
any other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (iv) otherwise to assure a creditor against
loss, and
(j) all Debt referred to in clauses (a) through (i) above secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such Debt.
-9-
"Debt Rating" means, on any date, the Public Debt Rating in effect on such
date or, if no Public Debt Rating is then in effect, the Implied Senior Rating
in effect on such date.
"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 L attached hereto, executed
and delivered by Group pursuant to Section 11.19.
"Disbursement" means any payment made under a Letter of Credit by the
Fronting Bank to the applicable Letter of Credit Beneficiary.
"Disbursement Date" is defined in Section 4.5.
"Documentary Letter of Credit" is defined in Section 4.1.1, and shall also
mean and include certain Existing 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.
"Dollar" and the sign "$" mean lawful money of the United
States.
"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.
"EBITDA" means, for any period, net income (or net loss) from operations
(determined without giving effect to
-10-
extraordinary or non-recurring gains or losses) plus, to the extent deducted in
calculating such net income (loss), the sum of (a) Interest Expense, (b) income
tax expense, (c) depreciation expense and (d) amortization expense, in each case
determined in accordance with GAAP.
"Effective Date" means the date this Agreement becomes effective pursuant
to Section 11.8.
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of non-compliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment,
including (a) by any governmental or regulatory authority for enforcement,
cleanup, removal, response, remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for damages,
contribution, indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment or decree relating to
the environment, health, safety or Hazardous Materials.
"Environment Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the U.S. Borrower's controlled group, or under common control
with the U.S. Borrower, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC, or
(ii) the requirements of subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA
is reasonably expected to occur with respect to such Plan within the following
30 days;
-11-
(b) the application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d)
the cessation of operations at a facility of the U.S. Borrower or any of its
ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by the U.S. Borrower or any of its ERISA Affiliates from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the failure by the U.S.
Borrower or any of its ERISA Affiliates to make a payment to a Plan if the
conditions for the imposition of a Lien under Section 302(f)(1) of ERISA are
satisfied; (g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of
ERISA that could constitute grounds for the termination of, or the appointment
of a trustee to administer, a Plan.
"Event of Default" is defined in Section 9.1.
"Excess" is defined in Section 11.16.
"Existing Acceptances" is defined in the first recital.
"Existing Credit Agreement" is defined in the first recital.
"Existing Letters of Credit" is defined in the first recital.
"Existing Loans" is defined in the first recital.
"Excluded Person" means (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or (ii) any trust of which
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is the sole trustee or is a trustee with effective control over
the Voting Stock held by such trust or over the management or policies of Group
(or, in case of her death or disability, another trustee of comparable
experience and ability selected by the U.S. Borrower within 180 days thereafter
after consultation with the Managing Agents).
"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
-12-
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 the confidential Fee Letter, dated July 14, 1997,
between the U.S. Borrower and the Administrative Agent as the same may have been
amended, supplemented or otherwise modified from time to time.
"Fiscal Quarter" means a fiscal quarter of Group and its Consolidated
Subsidiaries ending on or about March 31, June 30, September 30 or December 31
of each year.
"Fiscal Year" means a fiscal year of Group and its Consolidated
Subsidiaries ending on or about December 31 of each year.
"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.
"Foreign Borrower Tradexpress Agreements" means (i) the Tradexpress
Teletransmission Agreement, dated as of August 12, 1997, duly executed and
delivered by Warnaco (HK) and the Fronting Bank and/or (as the context may
require) (ii) the Tradexpress Teletransmission Agreements, dated as of April 24,
1998, duly executed and delivered by each of Warnaco B.V., Warnaco Netherlands
and Warnaco Holland and the Fronting Bank.
"Foreign Subsidiary" means a Subsidiary of Group organized under the laws
of a country other than the United States or any state thereof.
-13-
"Fronting Bank" means Scotiabank, in its capacity as the issuer of Letters
of Credit and creator of Acceptances (in each case, regardless of which office,
branch or agency of Scotiabank issues a Letter of Credit or creates an
Acceptance) and in its capacity as the Lender of Loans made prior to a Funding
Date pursuant to the terms of this Agreement.
"F.R.S. Board" means the Board of Governors of the Federal Reserve System
or any successor thereto.
"Funded Debt" of any Person means Debt (other than Debt incurred on terms
customary for comparable transactions in the good faith judgment of the Board of
Directors of the U.S. Borrower in connection with any obligation under or
resulting from any agreement referred to in Section 8.2.1(b)) of such Person
that by its terms matures more than one year from the date of its creation or
matures within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or arises
under a revolving credit or similar agreement that obligates the lender or
lenders to extend credit during a period of more than one year after such date,
including, without limitation, all amounts of Funded Debt of such Person
required to be paid or prepaid within one year after the date of its creation.
"Funding Date" is defined in clause (c) of Section 2.3.
"GAAP" has the meaning set forth in Section 1.4.
"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.
"Group Guaranty" means the Amended and Restated Guaranty, dated as of
August 12, 1997, executed and delivered by an Authorized Officer of Group, a
conformed copy of which is annexed hereto as Exhibit F-1, as amended,
supplemented, restated or otherwise modified from time to time.
"Guaranteed Party" is defined in Section 3.4.1.
"Hazardous Materials" means petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, radon
gas and any other chemicals, materials or substances designated, classified or
regulated as being "hazardous" or "toxic", or words of similar import, under any
Environmental Law.
-14-
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other similar agreements.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Implied Senior Rating" means the rating assigned by S&P to Group's
unsecured "implied senior debt" from time to time, as reported by S&P on April
8, 1998 or any subsequent report or notification in writing issued by S&P (which
rating on the date hereof is BBB+), or, if such rating is unavailable, the
equivalent rating assigned by ▇▇▇▇▇'▇ to Group's unsecured "implied senior
debt", as notified in writing to Group by ▇▇▇▇▇'▇.
"including" means including without limiting the generality of any
description preceding such term.
"Indebtedness for Borrowed Money" of any Person means all Debt of such
Person for borrowed money or evidenced by notes, bonds, debentures or other
similar instruments, all obligations of such Person for the deferred purchase
price of any property, service or business (other than trade accounts payable
(including pursuant to this Agreement) incurred in the ordinary course of
business and constituting Current Liabilities), and all obligations of such
Person under capitalized leases and finance leases.
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Interest Expense" means, with respect to any Person for any period, the
excess, if any, of (i) interest expense (whether cash or accretion) of such
Person during such period determined in accordance with GAAP, and shall include
in any event, without limitation, interest expense with respect to Indebtedness
for Borrowed Money, this Agreement and payments under Hedge Agreements over (ii)
interest income of such Person for such period, including payments received
under Hedge Agreements.
"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 or
continued as, or converted into, 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
-15-
one, three or six months thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), in each case as such
Loan may be made or as a Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; 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.
"Investment" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any capital stock or other ownership or profit
interest, warrants, rights, options, obligations or other securities of such
Person, any capital contribution to such Person or any other investment in such
Person, including, without limitation, any arrangement pursuant to which the
investor incurs Debt of the types referred to in clauses (i) or (j) of the
definition of "Debt" in respect of such Person.
"Issuance Request" means either (i) a request delivered by a Borrower to
the Fronting Bank in accordance with the provisions of the Tradexpress Agreement
or (ii) a request and certificate duly executed by an Authorized Officer of a
Borrower, 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 K attached hereto, executed and delivered by each Warnaco Sub
Borrower in accordance with Section 11.19 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.
"Lender Parties" is defined in Section 3.4.1.
"Lenders" is defined in the preamble.
-16-
"Letter of Credit" means the Documentary Letters of Credit and the Existing
Letters of Credit.
"Letter of Credit Availability" means, at any time, the then existing
Commitment Amount minus the sum of the aggregate outstanding principal amount of
all Loans, together with the aggregate amount of all Letter of Credit
Outstandings and Acceptance Obligations.
"Letter of Credit Beneficiary" means a beneficiary of a Letter of Credit.
"Letter of Credit Commitment" means, relative to the Fronting Bank, the
Fronting Bank's obligation to issue Letters of Credit pursuant to Section 2.1.2
and, with respect to each of the other Lenders, the obligations of each such
Lender to participate in such Letters of Credit pursuant to the terms of this
Agreement.
"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.
-17-
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan Commitment" means, relative to (i) the Fronting Bank (in such
capacity), its obligation to make Loans to the Borrowers on (a) a Disbursement
Date and (b) an Acceptance maturity date, and (ii) each Lender (other than the
Fronting Bank in such capacity), such Lender's obligation to participate in the
Loans made by the Fronting Bank to the Borrowers and, as set forth in this
Agreement, to refund and reimburse the Fronting Bank for such Loans, in each
case pursuant to the terms of this Agreement.
"Loan Document" means this Agreement, each Note, the Tradexpress
Agreements, the Group Guaranty, the Subsidiary Guaranty, each Joinder Agreement,
the Fee Letter and each other agreement, document or instrument delivered in
connection with this Agreement, whether or not specifically mentioned herein.
"Loans" is defined in Section 2.1.1, and shall also mean and include the
Existing Loans.
"L/C Party" is defined in Section 3.4.1.
"L/C Reimbursement Obligation" is defined in Section 4.6.
"Managing Agents" means, collectively, Scotiabank and Citibank.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the U.S. Borrower or of Group and its Subsidiaries
taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the U.S. Borrower or of Group and its Subsidiaries
taken as a whole, (b) the rights and remedies of any Managing Agent or Lender
under any Loan Document or (c) the ability of any Obligor to perform its
Obligations under any Loan Document to which it is or is to be a party.
"Material Subsidiary" of any Person means, at any time, a Subsidiary of
such Person having (i) at least $5,000,000 in total assets (determined as of the
last day of the most recent fiscal quarter of such Person) or (ii) EBITDA of at
least $5,000,000 for
-18-
the 12-month period ending on the last day of the most recent fiscal quarter of
such Person.
"Maturity Date" means, relative to any Acceptance, the date of maturity
therefor.
"Maximum Rate" is defined in Section 11.16.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the U.S. Borrower or any of its ERISA Affiliates
is making or accruing an obligation to make contributions, or has within any of
the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the U.S.
Borrower or any of its ERISA Affiliates and at least one Person other than the
U.S. Borrower and its ERISA Affiliates or (b) was so maintained and in respect
of which the U.S. Borrower or any of its ERISA Affiliates could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net Worth" at any time means the excess of total assets of Group and its
Subsidiaries at such time over total liabilities of Group and its Subsidiaries
at such time, in each case as determined on a consolidated basis in accordance
with GAAP.
"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 the 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" means all obligations (monetary or otherwise) of 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 Loan
Document.
"Obligor" means the Borrowers and each other Person (other than the Agents,
the Fronting Bank and the Lenders) obligated under any Loan Document.
-19-
"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 capital stock
or other ownership interest of such Obligor.
"Participant" is defined in Section 11.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto 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; provided, that the Percentage of each
Lender's Loan Commitment, Letter of Credit Commitment and Acceptance Commitment
shall be identical.
"Permitted Liens" means the following:
(a) Liens, other than in favor of the PBGC, arising out of judgments
or awards in respect of which Group or any of its Subsidiaries shall in
good faith be prosecuting an appeal or proceedings for review and in
respect of which it shall have secured a subsisting stay of execution
pending such appeal or proceedings for review, provided it shall have set
aside on its books adequate reserves, in accordance with GAAP, with respect
to such judgment or award and provided further that the aggregate amount
secured by such Liens does not exceed $5,000,000 in any one case or
$10,000,000 in the aggregate;
(b) Liens for taxes, assessments or governmental charges or levies,
provided payment thereof shall not at the time be required in accordance
with the provisions of Section 8.1.2 and such amount, when taken together
with any amount payable under Section 8.1.2 as to which any Lien has been
attached as described in the last phrase thereof, shall not exceed
$10,000,000;
(c) deposits, Liens or pledges to secure payments of workmen's
compensation and other payments, unemployment and other insurance, old-age
pensions or other social security obligations, or the performance of bids,
tenders, leases, contracts (other than contracts for the payment of money),
public or statutory obligations, surety, stay or appeal
-20-
bonds, or other similar obligations arising in the ordinary course of
business;
(d) mechanics', workmen's, repairmen's, warehousemen's, vendors' or
carriers' Liens or other similar Liens arising in the ordinary course of
business and securing sums which are not past due, or deposits or pledges
to obtain the release of any such Liens;
(e) statutory landlord's Liens under leases to which Group or any of
its Subsidiaries is a party;
(f) any Lien constituting a renewal, extension or replacement of a
Lien constituting a Permitted Lien, but only if at the time such Lien is
granted and immediately after giving effect thereto, no Default would
exist;
(g) leases or subleases granted to other Persons not materially
interfering with the conduct of the business of Group and its Subsidiaries,
taken as a whole;
(h) zoning restrictions, easements, rights of way, licenses and
restrictions on the use of real property or minor irregularities in title
thereto, which do not materially impair the use of such property in the
normal operation of the business of Group or any of its Subsidiaries or the
value of such property for the purpose of such business; and
(i) statutory or common law Liens (such as rights of set-off) on
deposit accounts of Group and its Subsidiaries and other Liens under any
Loan Document, any Letter of Credit or any other agreement or instrument
relating thereto.
"Person" means any natural person, corporation, limited liability company,
partnership, firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the higher rating that has been
most recently announced by either S&P or Moody's, as the case may be, for any
class of non-credit enhanced long-term senior unsecured debt issued by Group.
For purposes of the foregoing, (a) if only one of S&P and Moody's shall have in
effect a Public Debt Rating, the Applicable Margin, the Letter of Credit and
Acceptance fees and the Commitment Fees shall be determined by reference to the
available rating; (b) if the
-21-
ratings established by S&P and Moody's shall fall within different levels
separated by two or more levels, the Applicable Margin, the Letter of Credit and
Acceptance fees and the Commitment Fees shall be based upon the level that is
one level below the higher rating; (c) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of the date on which
such change is first announced publicly by the rating agency making such change;
and (d) if S&P or Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating announced by S&P or
Moody's, as the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
"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 last day of each March, June, September,
and December 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.
"Redeemable" means, with respect to any capital stock, Debt or other right
or Obligation, any such right or Obligation that (a) the issuer has undertaken
to redeem at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of the
holder.
"Reimbursement Obligation" is defined in Section 4.6.
"Released Borrower" is defined in clause (b) of Section 11.19.
"Required Lenders" means, at any time, Lenders holding at least 51% of the
then aggregate outstanding principal amount of the Notes then held by the
Lenders or, if no such principal amount is then outstanding, Lenders having
Percentages that equal at least 51% of the Commitments; provided, that so long
as the Fronting Bank (in such capacity) has any Loans 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 owing to the Fronting Bank.
"Reset Date" is defined in Section 5.11.
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"S&P" means Standard & Poor's Ratings Group, currently a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., or any successor thereto.
"Scotiabank" is defined in the preamble.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the U.S. Borrower
or any of its ERISA Affiliates and no Person other than the U.S. Borrower and
its ERISA Affiliates or (b) was so maintained and in respect of which the U.S.
Borrower or any of its ERISA Affiliates could have liability under Section 4069
of ERISA in the event such plan has been or were to be terminated.
"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 The Bank of Nova Scotia 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.
"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.
"Stated Rate" is defined in Section 11.16.
"Sub Borrower" is defined in the preamble.
"Sub Borrower Tradexpress Agreement" means the Tradexpress Teletransmission
Agreement, dated as of December 19, 1997, duly executed and delivered by the Sub
Borrower and the Fronting Bank.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other
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class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
The term "wholly-owned Subsidiary" shall exclude any directors' or officers'
qualifying shares which may be outstanding.
"Subsidiary Guaranty" means the Amended and Restated Guaranty executed and
delivered by each Domestic Subsidiary, dated as of August 12, 1997, a conformed
copy of which is annexed hereto as Exhibit F-2, or pursuant to Section 8.1.11,
substantially in the form of Exhibit F-2 hereto, as amended, supplemented,
restated or otherwise modified from time to time.
"Syndication Agent" is defined in the preamble.
"Tangible Assets" means total assets minus goodwill and intangibles, in
each case determined in accordance with GAAP.
"Taxes" is defined in Section 5.6.
"Total Debt" means, as of the end of any period of four consecutive Fiscal
Quarters, all Indebtedness for Borrowed Money (including, without limitation,
the aggregate outstanding principal amount of all advances and loans under other
revolving credit facilities and lines of credit and the like but excluding
undrawn letters of credit and Obligations under this Agreement) of Group and its
Subsidiaries, on a consolidated basis at such time.
"Tradexpress Agreement" means, as the context may require, the U.S.
Borrower Tradexpress Agreement, the Sub Borrower Tradexpress Agreement, the
Warnaco Sub Borrower Tradexpress Agreements and/or the Foreign Borrower
Tradexpress Agreements.
"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. Borrower Tradexpress Agreement" means the Tradexpress
Teletransmission Agreement, dated as of August 12, 1997, duly
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executed and delivered by the U.S. Borrower and the Fronting Bank.
"U.S. Credit Agreement" means the Credit Agreement, dated as of August 12,
1997, among the U.S. Borrower, Group, the initial lenders named therein,
Scotiabank and Citibank, as managing agents, Citibank, as documentation agent,
and Scotiabank, as administrative agent, competitive bid agent, swing line bank
and an issuing bank, as in effect on the Effective Date, as amended by Amendment
No. 1 thereto and as further amended, restated or waived from time to time.
"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.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even if the right so to
vote has been suspended by the happening of such a contingency.
"Warnaco Sub Borrower" is defined in the preamble.
"Warnaco Sub Borrower Tradexpress Agreements" means the Tradexpress
Teletransmission Agreements duly executed and delivered by each Warnaco Sub
Borrower in connection with the Joinder Agreements executed by such Warnaco Sub
Borrowers pursuant to Section 11.19 in substantially similar form to the other
Tradexpress Agreements.
"364 Day Credit Agreement" means the Credit Agreement, dated as of November
26, 1997, among the U.S. Borrower, Group, the initial lenders named therein,
Scotiabank and Citibank, as managing agents, Citibank, as documentation agent,
and Scotiabank, as administrative agent, as in effect on the Effective Date, as
amended by Amendment No. 1 thereto and as further amended, restated or waived
from time to time.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in each Note, Borrowing Request,
Continuation/Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with this Agreement or any other Loan
Document.
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SECTION 1.3. Cross-References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
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, generally accepted accounting principles consistent with those
applied in the preparation of the financial statements referred to in Section
7.5 ("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. The Borrowers, Group, the Agents, the
Fronting Bank and the Lenders hereby agree that the Existing Credit Agreement is
hereby amended and restated in its entirety to become effective and binding on
the Borrowers, Group and the other parties to this Agreement pursuant to the
terms of this Agreement, and that the commitments which the Fronting Bank and
the Lenders have agreed to extend to the Borrowers under the Existing Credit
Agreement shall be extended or advanced to the Borrowers upon the amended and
restated terms and conditions contained in this Agreement with the intent that
the terms of this Agreement shall supersede the terms of the Existing Credit
Agreement (which shall hereafter have no further effect upon the parties
thereto, other than for accrued fees and expenses, and indemnification
provisions, accrued and owing under the terms of the Existing Credit Agreement
on or prior to the date hereof or arising (in the case of an indemnification)
under the terms of the Existing Credit Agreement). In furtherance of the
foregoing, from time to time on any Business Day occurring on or prior to the
then existing Commitment Termination Date, each Lender severally agrees, subject
to the terms of this Agreement (including Article VI) that
(a) in the case of the Fronting Bank, it will make loans (the "Loans")
to (i) the U.S. Borrower (in the case of each Letter of Credit issued and
each Acceptance created for the
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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 for the account of such Foreign Borrower), (iii)
each Warnaco Sub Borrower (in the case of each Letter of Credit issued and
each Acceptance created 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 and each Acceptance created 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 and (B) the Maturity Date of each Acceptance,
(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 on such Disbursement
Date and (y) matured and unreimbursed Acceptances; and
(b) in the case of each Lender (other than the Fronting Bank in such
capacity), such Lender will participate in the Loans made by the Fronting
Bank pursuant to this Agreement and, if required pursuant to the terms of
this Agreement, such Lender will refinance and reimburse the Fronting Bank
for the outstanding principal amount of Loans previously made by the
Fronting Bank in an amount equal to its Percentage of the aggregate amount
of all (or, if elected by the Fronting Bank, less than all) Loans
(determined, in the sole discretion of the 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 the Fronting Bank (in
its capacity as the Fronting Bank), and upon the receipt by the 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 the
Fronting Bank, the amount so received by the Fronting Bank will thereafter
be a Loan to the applicable Borrower owing to such Lender (and no longer
owing to the Fronting Bank). No Lender's obligation to make any Loan shall
be affected by any other Lender's failure to make any Loan. 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 the Administrative Agent, the Administrative
Agent agreeing to use good faith efforts to give such notification promptly
following the occurrence of such default) or shall have rejected its
obligations under its Commitments, then such Lender shall not be entitled
to receive any payments of principal of or interest on its pro rata share
of the Loans or
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its share of any commitment or other 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, and for purposes of voting or consenting to
matters with respect to 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%). 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 Commitments and who shall not have rejected
any Commitment, 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 Commitments.
SECTION 2.1.2. Commitment to Issue Letters of Credit and Create
Acceptances. From time to time on any Business Day on or prior to the Commitment
Termination Date, the Fronting Bank will issue and create, and each Lender will
participate in, the Letters of Credit and the Acceptances, in accordance with
Article IV.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Loans and Fronting
Bank Not Permitted or 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), the Fronting
Bank acting in such capacity) shall be permitted or 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 the Fronting Bank with the proceeds of the
Loans made by the Lenders hereunder), the aggregate outstanding principal
amount of all Loans
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(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, 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;
(b) The Fronting Bank shall not be permitted or 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;
(c) The Fronting Bank shall not be permitted or 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, (ii) any requested Acceptance is not in form and
substance reasonably acceptable to the Fronting Bank or (iii) an Acceptance
is not in lieu of its Disbursement obligation and the original executed
Letter of Credit in respect of which such Acceptance is to be created has
not been received by the Fronting Bank for cancellation; and
(d) The Fronting Bank shall not be permitted or required to make any
Loan on any Disbursement Date or Maturity Date if, 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.
SECTION 2.2. Reduction of the Commitment Amount. The U.S. Borrower may,
from time to time on any Business Day, voluntarily reduce the amount of the
Commitment Amount; provided, however, that all such reductions shall be binding
on each Borrower, shall require at least three Business Days' prior notice to
the Administrative Agent and shall be permanent.
SECTION 2.3. Borrowing Procedure. (a) Upon (i) any Disbursements being made
in respect of one or more Letters of Credit or (ii) the occurrence of any
Maturity Date for any Acceptance (whether or not, in the case of Letters of
Credit, such Letters of Credit were issued to support the obligations of any
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Borrower or any of their Subsidiaries (or any of their respective divisions) and
in the case of Acceptances, whether or not such 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)),
such 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 occurrence of such
Maturity Date) be deemed to have delivered to the Administrative Agent a
Borrowing Request pursuant to which such Borrower shall have been deemed to
irrevocably request that the Fronting Bank make a LIBO Rate Loan to such
Borrower with 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, the
Disbursements, and in the case of Non-U.S. Letters of Credit, the U.S. Dollar
Equivalent of the 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 having Maturity Dates on such date, as applicable.
Each Borrower, as applicable, hereby acknowledges and agrees that each Borrowing
Request deemed to be delivered hereunder, the making of a Loan by the Fronting
Bank (a) to reimburse the Fronting Bank for Disbursements made under the Letters
of Credit or (b) payment made on the Maturity Date of any 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. Proceeds of such Loans shall be used to fund the
Reimbursement Obligations in respect of (a) Letters of Credit under which one or
more Disbursements were made and (b) as applicable, Acceptances which had
Maturity Dates occurring, in each case, on the date of the Loan. Each of the
parties hereto acknowledges and agrees that upon the satisfaction of the
conditions precedent set forth in Section 6.1, the Existing Loans shall be
deemed to be Loans made by the Fronting Bank 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 continue to participate in such Loans
in an amount equal to such Lender's Percentage of the outstanding principal
amount of the Existing Loans.
(b) In addition to the provisions of the making of Loans set forth in
clause (a), above, by delivering a Borrowing Request to the Administrative Agent
on or before 11:00 a.m., Applicable Time, on a Business Day, a Borrower may from
time to time irrevocably request, on not less than three nor more than five
Business Days' notice (in the case of LIBO Rate Loans) and on the date of such
Borrowing (in the case of Base Rate Loans), that a Borrowing be made as other
than a LIBO Rate Loan having a six month Interest Period or in an amount other
than the full amount of Disbursements
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with respect to which such Loan is to be made. If any Borrower elects that a
Borrowing be made as a LIBO Rate Loan having a one or three month Interest
Period pursuant to this clause, then upon the expiration of such Interest Period
such Borrower shall (unless it shall have given notice to the Administrative
Agent to the contrary prior to 11:00 a.m., Applicable Time, at least three
Business Days prior to the date of such Disbursement) be deemed to have
delivered to the Administrative Agent a Continuation/Conversion Notice pursuant
to which such Borrower shall have been deemed to irrevocably request that the
Fronting Bank continue the outstanding LIBO Rate Loan as a LIBO Rate Loan with
an Interest Period of (i) three months, in the case of the expiration of a three
month Interest Period or Interest Periods which, in the aggregate, equal three
months or (ii) five months, in the case of the expiration of a one month
Interest Period, in each case in a principal amount equal to the amount of the
LIBO Rate Loan with an Interest Period then expiring. On the terms and subject
to the conditions of this Agreement, each Borrowing shall be comprised of the
type of Loans, and shall be made on the Business Day, specified (or deemed to be
specified) in such Borrowing Request.
(c) The Fronting Bank may, at any time (whether or not a Default or Event
of Default has occurred and is then continuing), in its sole and absolute
discretion but subject to clause (a)(ii) of Section 2.1.3, demand that each
other Lender make a Loan in an amount equal to such Lender's Percentage 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 (as
among the Borrowers) are to be chosen as the Loans to be refunded by the
Lenders. Each Lender (other than the 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 Fronting Bank on or before 11:00 a.m. New York City time on the first
Business Day following receipt of such a demand. The 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 Fronting Bank) advance funds to the
Fronting Bank pursuant to this clause, the principal amount so refunded and
refinanced shall become a Loan to the Borrower identified by the Fronting Bank
outstanding under such Lender's Note to that particular Borrower and shall no
longer be a Loan owed to the Fronting Bank under the 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 Fronting
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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 the Fronting Bank on a Funding Date to be applied to refund
and refinance the Loans previously made by the 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, including (i) any set-off,
counterclaim, recoupment, defense or other right which any Lender may have
against Scotiabank, the Borrowers or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of any Default 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 Loan 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.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent 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 be, in the case of Base
Rate Loans, converted into LIBO Rate Loans or, in the case of a LIBO Rate Loan,
converted into a Base Rate Loan or continued as a LIBO Rate Loan (in the absence
of delivery of a Continuation/Conversion Notice with respect to any LIBO Rate
Loan at least three Business Days before the last day of the then current
Interest Period with respect thereto, such LIBO Rate Loan shall, on such last
day, automatically convert to a LIBO Rate Loan pursuant to the provisions of
clause (b) of Section 2.3, 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.
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 capital stock 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
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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 5.6 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, 5.2, 5.3
or 5.4, 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 the Fronting Bank under the Loan
Commitment shall be evidenced by Notes payable to the order of the 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 the
Fronting Bank) under the Loan Commitment shall be evidenced by Notes payable
from each Borrower to the order of such Lender in a maximum principal amount
equal to such Lender's Percentage multiplied by the original Commitment Amount.
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 the 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
Borrower.
SECTION 2.7. Extension of Commitment Termination Date. The Commitment
Termination Date may be extended by the Lenders in their sole and absolute
discretion upon written request of the U.S. Borrower received at least 60 days
but not more than 90 days prior to the then effective Commitment Termination
Date (as such date may have been extended). The Lenders shall give written
notice to the U.S. Borrower of their decision and, if approved, of the new
Commitment Termination Date; provided, that notwithstanding any other provision
in this Agreement to the contrary, in no event shall the modified Commitment
Termination Date exceed 364 days from the then expiring Commitment Termination
Date. The Lenders shall give written notice to the U.S. Borrower of their
decision within
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30 days of request. In the absence of the approval of any one of the Lenders,
the then effective Commitment Termination Date shall not be extended and shall
terminate and expire as otherwise provided in this Agreement, and the failure of
any Lender to deliver a written notice within the requisite period set forth
above shall be deemed to be an election by that Lender not to extend the
Commitment Termination Date.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrowers shall repay in full
the entire unpaid principal amount of each Loan upon the Stated Maturity Date
therefor; provided, that notwithstanding anything contained in this Agreement or
any Loan 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
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
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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; and
(d) 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 5.4. 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 this Section 3.2.
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 (whether made
pursuant to clause (a) or clause (b) of Section 2.3), 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
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to and received by
the Administrative
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Agent from Scotiabank, two Business Days before the first day of such Interest
Period.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans, 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) 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. Post-Maturity Rates. After and during the continuance of a
Default or an Event of Default (after giving effect to any grace periods in
respect thereof in the case of an Event of Default described in Section 9.1.1),
the Borrowers shall pay interest (after as well as before judgment) on (a) the
unpaid principal amount of each outstanding Loan at a rate per annum equal to 2%
per annum above the then applicable interest rate in respect of such Loan and
(b) to the fullest extent permitted by law, the amount of any interest, fee or
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;
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(b) with respect to Base Rate Loans, on each Quarterly Payment Date
occurring after the date of the initial Borrowing hereunder;
(c) with respect to LIBO Rate Loans, 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);
(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 Loan 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 the Fronting Bank (for
its own account) 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 each Lender (other than the 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
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the case of the outstanding principal amount of Base Rate Loans).
(b) On and subsequent to a Funding Date, interest shall be payable by
a Borrower for the account of each Lender (including the 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 in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Letter of Credit and Acceptance Fees. The Borrowers agree to
pay to the Administrative Agent, for the pro rata account of the Lenders
determined in accordance with each Lender's Percentage, a fee for each Letter of
Credit and each Acceptance 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 the Fronting Bank or otherwise), and (b) in the case of an
Acceptance, the Maturity Date therefor at the rates per annum determined by
reference to the Rating Level in effect from time to time as set forth below for
Letters of Credit or Acceptances 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) (provided, however, that no
change in the fees payable for Letters of Credit or Acceptances shall be
effective until three Business Days after the date on which the Administrative
Agent receives evidence reasonably satisfactory to it from Group or the U.S.
Borrower that a new Rating Level is in effect):
Rate for
Rating Letters of Rate for
Level Debt Rating Credit Acceptances
----- --------------- ---------- -----------
▇▇▇▇▇ ▇ ▇-/▇▇ or higher 0.175% 0.250%
▇▇▇▇▇ ▇ BBB+/Baa1 0.200% 0.275%
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▇▇▇▇▇ ▇ ▇▇▇/▇▇▇▇ ▇.▇▇▇% ▇.▇▇▇
▇▇▇▇▇ ▇ ▇▇▇-/▇▇▇▇ 0.350% 0.425%
Level 5 BB+/Ba1 or lower 0.550% 0.625%
provided, however, that at any time when the aggregate outstanding principal
amount of all Loans, together with the aggregate amount of all Letter of Credit
Outstandings and Acceptance Obligations exceeds $112,500,000 and the then
existing Rating Level is equal to ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇ or Level 3, such fee shall be
increased by 0.075% per annum.
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. In the event that at any time no Debt Rating
shall be in effect, the applicable rate per annum for purposes of determining
the Letter of Credit and Acceptance fees provided for under this Section shall
be 0.550% (in the case of Letters of Credit) and 0.625% (in the case of
Acceptances). Such fee shall be payable 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), on the
Commitment Termination Date and in addition to the above payment dates, in the
case of (x) Letters of Credit with expiry dates that extend beyond the
Commitment Termination Date, on the expiration of or, if earlier, on the date of
any disbursement made under, such Letter of Credit, or (y) Acceptances which
mature after the Commitment Termination Date, on such Maturity 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. The Borrowers agree to
pay to the Fronting Bank the fees relating to Letters of Credit and Acceptances
in accordance with the 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 Letter. The U.S. Borrower agrees to pay to Scotiabank,
for its own account, such fees in the amounts and on the dates set forth in the
Fee Letter.
SECTION 3.3.4. Commitment 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, for
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the period commencing on the Effective Date and continuing through the
Commitment Termination Date, a commitment fee (the "Commitment Fee") on the sum
of the average daily unused portion of the Commitment Amount at the rates per
annum determined by reference to the Rating Level in effect from time to time as
set forth below; (provided, however, that no change in the commitment fee rate
shall be effective until three Business Days after the date on which the
Administrative Agent receives evidence reasonably satisfactory to it from Group
or the U.S. Borrower that a new Rating Level is in effect):
Commitment
Rating Level Fee Rate
------------ ----------
▇▇▇▇▇ ▇ 0.065%
▇▇▇▇▇ ▇ 0.075%
▇▇▇▇▇ ▇ 0.100%
▇▇▇▇▇ ▇ 0.125%
▇▇▇▇▇ ▇ 0.200%
In the event that at any time no Rating Level shall be in effect, the applicable
rate per annum for purposes of determining the commitment fees provided for
under this Section shall be 0.200%. The fee payable under this Section shall be
payable by the U.S. Borrower in arrears on each Quarterly Payment Date,
commencing on the first such date after the Effective Date, and on the
Commitment Termination Date for any period then ending for which such fee shall
not theretofore have been paid.
The amount of any Loans made, Letters of Credit issued and Acceptances
created by the Fronting Bank and not funded by the other Lenders will constitute
usage of the Commitment Amount for purposes of calculating the commitment fee
payable to Lenders (other than the Fronting Bank) pursuant to this Section.
SECTION 3.4. Guaranty. The U.S. Borrower shall guaranty the Obligations of
each Foreign Borrower, the Sub Borrower, each Warnaco Sub Borrower and each
other Guaranteed Party as set forth below.
SECTION 3.4.1. Guaranty. The U.S. Borrower hereby absolutely,
unconditionally and irrevocably
(a) guarantees (referred to as its "Guaranty") the full and punctual
payment when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all Obligations of the
Sub Borrower, each Foreign Borrower and each Warnaco Sub Borrower and each
of their respective Subsidiaries (and/or divisions thereof) for whom (i) a
Letter of Credit has been issued (collectively referred to as the "L/C
Parties") or (ii) as to the Sub
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Borrower, each Warnaco Sub Borrower or any other Subsidiary of the U.S.
Borrower other than the Foreign Borrowers, an Acceptance has been created
(collectively referred to as the "Acceptance Parties"; together with the
L/C Parties, the "Guaranteed Parties"), whether for principal, interest,
fees, expenses or otherwise (including all such amounts which would become
due but for the operation of the automatic stay under Section 362(a) of the
United States Bankruptcy Code, 11 U.S.C. 'SS' 362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
'SS' 502(b) and 'SS' 506(b)); and
(b) indemnifies and holds harmless each Lender, the Fronting Bank and
each Agent, and their respective successors, transferees and assigns
(collectively referred to as the "Lender Parties") for any and all costs
and expenses (including reasonable attorney's fees and expenses) incurred
by such Lender Party in enforcing any rights under this Section 3.4.1.
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the U.S. Borrower specifically agrees that it shall not be necessary or
required that any Lender Party exercise any right, assert any claim or demand or
enforce any remedy whatsoever against any Guaranteed Party or any other Obligor
(or any other Person) before or as a condition to the obligations of the U.S.
Borrower hereunder.
SECTION 3.4.2. Acceleration of Guaranty. The U.S. Borrower agrees that, in
the event of the dissolution or insolvency of any Foreign Borrower, any Warnaco
Sub Borrower or the Sub Borrower or the dissolution (other than to the extent
permitted by this Agreement) or insolvency of any other Guaranteed Party,
Obligor, or the U.S. Borrower, or the inability or failure of any Obligor, any
Guaranteed Party or the U.S. Borrower to pay debts as they become due, or an
assignment by any Obligor, any Guaranteed Party or the U.S. Borrower for the
benefit of creditors, or the commencement of any case or proceeding in respect
of any of the foregoing Persons under any bankruptcy, insolvency or similar
laws, and with respect to any involuntary case or proceeding, such case or
proceeding remains undismissed for a period of 30 days; and if any such event
shall occur at a time when any of the Obligations of any Guaranteed Party and
each other Obligor may not then be due and payable, the U.S. Borrower will pay
to the Administrative Agent (for the account of the Lender Parties) forthwith
the full amount which would be payable hereunder by the U.S. Borrower if all
such Obligations were then due and payable.
SECTION 3.4.3. Guarantee Absolute, etc. This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and
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effect until all Obligations of each Foreign Borrower, each Warnaco Sub
Borrower, the Sub Borrower, each other Guaranteed Party and each other Obligor
have been paid in full, all obligations of the U.S. Borrower hereunder shall
have been paid in full and all Commitments shall have terminated. The U.S.
Borrower guarantees that the Obligations of each Foreign Borrower, each Warnaco
Sub Borrower, the Sub Borrower, each other Guaranteed Party and each other
Obligor and their respective Subsidiaries will be paid strictly in accordance
with the terms of this Agreement and each other Loan Document under which they
arise, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of any Lender Party
with respect thereto. The liability of the U.S. Borrower under this Guaranty
shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note, any Letter of Credit, any Acceptance or any other Loan
Document;
(b) the failure of any Lender Party
(i) to assert any claim or demand or to enforce any right or
remedy against any Foreign Borrower, any Warnaco Sub Borrower, the Sub
Borrower, any other Guaranteed Party, any other Obligor or any other
Person (including any other guarantor) under the provisions of this
Agreement, any Note, any Letter of Credit, any Acceptance, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other guarantor
of any Obligations of any Foreign Borrower, any Warnaco Sub Borrower,
the Sub Borrower, any other Guaranteed Party or any other Obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of any Foreign Borrower, any
Warnaco Sub Borrower, the Sub Borrower, any other Guaranteed Party or any
other Obligor, or any other extension, compromise or renewal of any
Obligation of any Foreign Borrower, any Warnaco Sub Borrower, the Sub
Borrower, any other Guaranteed Party or any other Obligor;
(d) any reduction, limitation, impairment or termination of the
Obligations of any Foreign Borrower, any Warnaco Sub Borrower, the Sub
Borrower, any other Guaranteed Party or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the U.S. Borrower hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
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illegality, nongenuineness, irregularity, compromise, unenforceability of,
or any other event or occurrence affecting the Obligations of any Foreign
Borrower, any Warnaco Sub Borrower, the Sub Borrower, any other Guaranteed
Party, any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of this Agreement, any
Note, any Letter of Credit, any Acceptance or any other Loan Document;
(f) any amendment to or waiver or release or addition of, or consent
to departure from, any other guaranty, held by any Lender Party securing
any of the Obligations of any Foreign Borrower, any Warnaco Sub Borrower,
the Sub Borrower, any other Guaranteed Party or any other Obligor; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Foreign Borrower,
any Warnaco Sub Borrower, the Sub Borrower, any other Guaranteed Party, any
other Obligor, any surety or any guarantor.
SECTION 3.4.4. Reinstatement, etc. The U.S. Borrower agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party, upon the
insolvency, bankruptcy or reorganization of any Foreign Borrower, any Warnaco
Sub Borrower, the Sub Borrower, any other Guaranteed Party, any other Obligor or
otherwise, all as though such payment had not been made.
SECTION 3.4.5. Waiver, etc. The U.S. Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of any Foreign Borrower, any Warnaco Sub Borrower, the Sub Borrower,
any other Guaranteed Party or any other Obligor and this Guaranty and any
requirement that any Agent or any other Lender Party protect, secure, perfect or
insure any security interest or Lien, or any property subject thereto, or
exhaust any right or take any action against any Foreign Borrower, any Warnaco
Sub Borrower, the Sub Borrower, any other Guaranteed Party, any other Obligor or
any other Person (including any other guarantor) or entity or any collateral
securing the Obligations of any Foreign Borrower, any Warnaco Sub Borrower, the
Sub Borrower, any other Guaranteed Party or any other Obligor, as the case may
be.
SECTION 3.4.6. Postponement of Subrogation, etc. The U.S. Borrower will not
exercise any rights which it may acquire by way of rights of subrogation under
this Guaranty, by any payment made hereunder or otherwise, until the prior
payment, in full and in
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cash, of all Obligations of each Foreign Borrower, each Warnaco Sub Borrower,
the Sub Borrower, each other Guaranteed Party and each other Obligor. Any amount
paid to the U.S. Borrower on account of any such subrogation rights prior to the
payment in full of all Obligations of each Foreign Borrower, each Warnaco Sub
Borrower, the Sub Borrower, each other Guaranteed Party and each other Obligor
shall be held in trust for the benefit of the Lender Parties and shall
immediately be paid to the Administrative Agent and credited and applied against
the Obligations of each Foreign Borrower, each Warnaco Sub Borrower, the Sub
Borrower, each other Guaranteed Party and each other Obligor, whether matured or
unmatured, in accordance with the terms of this Agreement; provided, however,
that if
(a) the U.S. Borrower has made payment to the Lender Parties of all or
any part of the Obligations of any Foreign Borrower, any Warnaco Sub
Borrower, the Sub Borrower, any other Guaranteed Party or any other
Obligor; and
(b) all Obligations of each Foreign Borrower, each Warnaco Sub
Borrower, the Sub Borrower, each other Guaranteed Party and each other
Obligor have been paid in full and all Commitments have been permanently
terminated;
each Lender Party agrees that, at the U.S. Borrower's request, the
Administrative Agent, on behalf of the Lender Parties, will execute and deliver
to the U.S. Borrower appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
the U.S. Borrower of an interest in the Obligations of each Foreign Borrower,
each Warnaco Sub Borrower, the Sub Borrower, each other Guaranteed Party and
each other Obligor resulting from such payment by the U.S. Borrower. In
furtherance of the foregoing, for so long as any Obligations or Commitments
remain outstanding, the U.S. Borrower shall refrain from taking any action or
commencing any proceeding against any Foreign Borrower, any Warnaco Sub
Borrower, the Sub Borrower, any other Guaranteed Party or any other Obligor (or
its successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this
Guaranty to any Lender Party.
ARTICLE IV
LETTERS OF CREDIT AND ACCEPTANCES
SECTION 4.1. Issuance of Letters of Credit and Creation of Acceptances.
Letters of Credit shall be issued and Acceptances shall be created on the terms
set forth below.
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SECTION 4.1.1. Letters of Credit. Any Borrower or any wholly-owned
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 on or
prior to the Commitment Termination Date, by delivering to the Administrative
Agent and the Fronting Bank 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) on or before 3:00 p.m., Applicable Time on
the Business Day on which a Letter of Credit is to be issued that the Fronting
Bank issue an irrevocable sight documentary letter of credit in such form as may
be requested by such Borrower or such Subsidiary and approved by the Fronting
Bank (each a "Documentary Letter of Credit").
Letters of Credit shall be issued to facilitate such Borrower's (and in the case
of the U.S. Borrower, the Warnaco Sub Borrowers and the Sub Borrower, their
respective Subsidiaries') worldwide sourcing of merchandise. Each Letter of
Credit shall by its terms:
(a) be issued in a Stated Amount which does not exceed (or would not
exceed) 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 180 days from its date of issuance (it being acknowledged and agreed
by the Borrowers, the Fronting Bank and the Lenders that the Stated Expiry
Date for a Letter of Credit may be a date that is up to 179 days subsequent
to the Commitment Termination Date; and
(d) on or prior to its Stated Expiry Date:
(i) terminate immediately upon notice to the Fronting Bank
thereof 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 thereof
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 the
Fronting Bank and the Administrative Agent of an Issuance
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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 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 on or prior to the then existing Commitment Termination Date
request the Fronting Bank to extend the Stated Expiry Date of such Letter of
Credit for an additional period not to exceed the earlier of (x) 180 days from
the date of extension of such Letter of Credit and (y) 179 days after the
Commitment Termination Date. Notwithstanding any other provision in this
Agreement to the contrary, the 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 the 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 the Fronting Bank's reasonable determination, any of the above-mentioned
laws, regulations or sanctions would affect the 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. 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 Fronting Bank on the date of issuance thereof based
upon the Applicable Exchange Rate determined on the most recent Reset Date
in accordance with Section 5.11(a) and adjusted from time to time
thereafter as provided below. The 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 Section 5.11(b). If a Disbursement is made by the
Fronting Bank under any Non-U.S. Letter of Credit, the U.S.
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Dollar Equivalent of such Disbursement shall be determined by the Fronting
Bank on the Disbursement Date related thereto. The Fronting Bank shall make
such determination by calculating the amount in Dollars that would be
required in order for the 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. The 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 the
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 Loan 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 the Fronting Bank honoring its
Disbursement obligation, the U.S. Borrower, the Warnaco Sub Borrowers and the
Sub Borrower hereby irrevocably authorize and direct the Fronting Bank to create
Acceptances upon the presentation of drafts to the Fronting Bank for acceptance
by the Fronting Bank as Acceptances pursuant to this Agreement, provided that
such Acceptances shall be properly executed and drawn by the U.S. Borrower, any
Warnaco Sub Borrower, the Sub Borrower or (provided that the Letter of Credit
giving rise to such Disbursement obligation was issued for the account of the
U.S. Borrower, any Warnaco Sub Borrower or the Sub Borrower) any Letter of
Credit Beneficiary (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
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shall from time to time as required by the Fronting Bank provide to the Fronting
Bank an appropriate number of executed drafts drawn in blank by such Borrower in
the form prescribed by the 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, the 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 the
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 the Fronting Bank harmless
against, and to indemnify, and each such Borrower hereby does agree to
indemnify, the 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 the Fronting
Bank. The Fronting Bank shall not 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 the
Fronting Bank on a timely basis. Without creating any obligation to effect such
a purchase, Acceptances may be purchased by the 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 the Fronting
Bank's sole discretion.
Each Acceptance shall by its terms:
(i) be created with a face amount which does not exceed (or would not
exceed) the then existing Acceptance Availability, and
(ii) subject to the next sentence, have a Maturity Date occurring no
later than 180 days from its date of creation.
Notwithstanding anything to the contrary contained in this Agreement,
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(i) no Acceptance shall be created in respect of a Non-U.S. Letter of
Credit,
(ii) no Acceptance shall have a Maturity Date scheduled to occur later
than 180 days after the Stated Expiry Date of the Letter of Credit with
reference to which such Acceptance was created,
(iii) 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,
(iv) the face amount of any Acceptance shall be in an amount equal to
the Stated Amount of the Letter of Credit with reference to which such
Acceptance was created, and
(v) 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), the Fronting Bank shall issue Letters of Credit, extend the Stated
Expiry Dates of outstanding Letters of Credit and create Acceptances, all in
accordance with the terms of this Agreement. The Fronting Bank will make
available the original of each Letter of Credit which it issues and each
Acceptance which it creates 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 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.
SECTION 4.3. Destruction of Goods, etc. Neither the 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 the 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,
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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 the Fronting Bank shall not be in any way lessened or affected
if any Draft or document accepted, paid or acted upon by the 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 4.2 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 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 the Fronting Bank for any reason, and each
Lender shall, to the extent of its Percentage, be entitled to receive from the
Administrative Agent 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 the Administrative Agent pursuant to Section 3.3.1, with
respect to each Letter of Credit, but excluding any fronting fees and other
charges payable to the Fronting Bank qua Fronting Bank). In the event that any
Borrower shall fail to reimburse the 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 the Fronting
Bank must for any reason return or disgorge such reimbursement, the Fronting
Bank shall promptly notify each Lender 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
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 the Fronting Bank specified in such notice not
later than 11:00 a.m., New York City time, on the Business Day after the date
notified by the Fronting Bank. In the event that any Lender fails to make
available to the Fronting Bank the amount of such Lender's participation in such
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Letter of Credit or such Acceptance as provided herein, the 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 the Fronting Bank any amounts made
available by such Lender to the Fronting Bank pursuant to this Section in the
event that it is determined by a court of competent jurisdiction that the
payment with respect to a Letter of Credit or an Acceptance by the Fronting Bank
in respect of which payment was made by such Lender constituted gross negligence
or wilful misconduct on the part of the Fronting Bank. The 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 the Fronting Bank, such other Lender's Percentage of all payments received by
the Fronting Bank from the applicable Borrower in reimbursement of the face
amount of such matured Acceptance or drawings honored by the Fronting Bank under
such Letter of Credit when such payments are received.
SECTION 4.5. Disbursements and Maturities. The Fronting Bank will notify
the applicable Borrower and the Administrative Agent promptly of the presentment
for payment of (a) any Letter of Credit, together with notice of the date (a
"Disbursement Date") such payment shall be made and (b) any matured Acceptance.
Subject to the terms and provisions of such Letter of Credit and Acceptance, and
the delivery to the Fronting Bank of 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 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 Fronting Bank within one Business Day following (i)
the Disbursement Date for all amounts which the Fronting Bank has disbursed
under the Letter of Credit 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 the 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 the
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Fronting Bank with respect to each Disbursement (a "L/C Reimbursement
Obligation") or, as applicable, each payment made by the Fronting Bank upon the
maturity of an Acceptance (an "Acceptance Reimbursement Obligation"; together
with a L/C Reimbursement Obligation, a "Reimbursement Obligation") (including
fees and interest thereon payable pursuant to Section 3.2.2 and Section 3.3.1),
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;
(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), the Fronting Bank or any
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other Person, whether in connection with the transactions contemplated by
the applicable Letter of Credit or Acceptance or any unrelated transaction;
(viii) payment by the Fronting Bank under a Letter of Credit or an
Acceptance against presentation of a draft or certificate 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; or
(x) 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 the 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 the 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
the 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 to the Fronting Bank an amount equal
to (i) the then Stated Amount and (ii) the aggregate face amount of all
unmatured Acceptances then outstanding and all unpaid fees in respect of (x) any
Letter of Credit or Acceptance outstanding under this Agreement upon any
termination of this Agreement (other than the occurrence of the Commitment
Termination Date pursuant to clause (a) of the definition thereof) 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 the Fronting Bank under and in
accordance with such Letter of Credit or Acceptance or extending the 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
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(y) in this clause shall be due forthwith upon demand and in Dollars.
(c) The Fronting Bank hereby agrees that it will, with respect to each
Letter of Credit and each Acceptance 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 the 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 the Fronting Bank for cancellation or the 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 the Fronting Bank for cancellation or the
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 the 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 the Fronting
Bank for amounts paid by it under such Letter of Credit or such Acceptance, if
any (the 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 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 of any
Commitment Termination Event of the type described in clause (c) of the
definition of "Commitment Termination Event", (b) the occurrence and during the
continuation of any event or condition specified in Section 9.1.6, or (c) the
occurrence and during the continuance of any other Event of Default, in the case
of clause (c), upon the request of the Required Lenders,
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(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 Bank 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 the 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 the Fronting Bank the
amount deemed to have been so paid or disbursed by the Fronting Bank;
provided, that each Foreign Borrower shall only be obligated to reimburse
the Fronting Bank for amounts deemed to have been disbursed under Letters
of Credit issued for its account.
Any amounts so received by the Fronting Bank from the Borrowers pursuant to this
Section shall be held as collateral security for the repayment of such
Borrower's Obligations in connection with, as applicable, the Letters of Credit
issued and the Acceptances created by the Fronting Bank. At any time when such
Letters of Credit shall terminate, such Acceptances mature and are paid and all
Obligations of the Fronting Bank are either terminated or paid or reimbursed to
the 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 the Fronting Bank), and the Fronting Bank will return to the
applicable Borrower the excess, if any, of
(a) the aggregate amount deposited by the Borrowers with the Fronting
Bank and not theretofore applied by the Fronting Bank to any Reimbursement
Obligation
over
(b) the aggregate amount of all Reimbursement Obligations to the
Fronting Bank pursuant to this Section, as so adjusted.
At such time when all Events of Default shall have been cured or waived, the
Fronting Bank shall return to the applicable Borrower all amounts then on
deposit with the Fronting Bank pursuant to this Section together with an
additional amount in Dollars computed by applying to the amount so returned to
the applicable Borrower 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 Fronting Bank by the
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applicable Borrower to (but not including) the date of return to the applicable
Borrower of such amounts.
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 the Fronting Bank
or any of the 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 the Fronting Bank or any of
its correspondents under any resulting liability to such Borrowers. Without
limiting the generality of the foregoing, the 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 the Fronting Bank or any of its
correspondents or institute any proceedings intended to derogate from the right
or ability of the 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 Loan 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.
SECTION 4.9. Existing Letters of Credit and Acceptances. The Existing
Letters of Credit and the Existing Acceptances, and the amount and payment date
of fees thereon (including such Existing Letters of Credit deemed to be Letters
of Credit hereunder), shall be governed by this Agreement. Simultaneously with
the effectiveness of this Agreement pursuant to Section 11.8, the Existing
Credit Agreement shall be superseded in its entirety by this Agreement, except
to the extent of any provisions of the
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Existing Credit Agreement which by their express terms survive termination of
the Existing Credit Agreement.
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 5.1. LIBO Rate Lending Unlawful. If any Lender, including the
Fronting Lender, shall determine (which determination shall, upon notice thereof
to the U.S. Borrower, be conclusive and binding on the Borrowers) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for such Lender, including the Fronting Lender, to make, continue or
maintain any Loan as, or to convert any Loan into, a LIBO Rate Loan, or to
create Acceptances, the obligations of the Lenders, including the Fronting
Lender, to make, continue, maintain or convert into any such Loans or to create
Acceptances, as the case may be, shall, upon such determination, forthwith be
suspended until such Lender, including the Fronting Lender, shall notify the
U.S. Borrower that the circumstances causing such suspension no longer exist,
and all LIBO Rate Loans shall automatically convert into Base Rate Loans at the
end of the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion.
SECTION 5.2. Deposits Unavailable. If any Lender shall have
determined that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to it in its relevant market; or
(b) by reason of circumstances affecting such Lender's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans,
then, upon notice from such Lender to the U.S. Borrower and the Administrative
Agent, the obligations of the Lenders under Section 2.3 and Section 2.4 to make
or continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until such Lender shall notify the U.S. Borrower and the
Administrative Agent that the circumstances causing such suspension no longer
exist.
SECTION 5.3. Increased LIBO Rate Loan Costs, etc. The Borrowers agree to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making or continuing (or of its obligation to make or continue) any Loans as, or
of
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converting (or of its obligation to convert) any Loans into, LIBO Rate Loans.
Each Lender shall promptly notify the U.S. Borrower and the Administrative Agent
in writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such lender for such increased cost or reduced amount. Such
additional amounts shall be payable by the U.S. Borrower directly to such Lender
within five Business Days of its receipt of such notice, and such notice shall,
in the absence of manifest error, be conclusive and binding on the U.S.
Borrower.
SECTION 5.4. 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 5.5. Increased Capital Costs, etc. If the implementation of or,
after the date hereof, the introduction or any change in the interpretation of,
or any change in its application to the Borrowers, the Fronting Bank and/or the
Lenders of, any law or any regulation or guideline issued by any central bank or
other governmental authority (whether or not having the force of law), including
any eurocurrency or other reserve or special deposit requirement or any tax
(other than tax which is on a Lender's general net or gross income or in respect
of a Lender's franchise taxes) or any capital requirement, has, due to a
Lender's
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or the Fronting Bank's compliance, the effect, directly or indirectly, of (a)
increasing the cost to such Lender or Fronting Bank of performing its
obligations hereunder or under any Letter of Credit, Acceptance or Loan; (b)
reducing any amount received or receivable by such Lender or Fronting Bank or
its effective return hereunder or in respect of any Letter of Credit, Acceptance
or Loan or on its capital; or (c) causing such Lender or Fronting Bank to make
any payment or to forgo any return based on any amount received or receivable by
such Lender or Fronting Bank hereunder or in respect of any Letter of Credit,
Acceptance or Loan, then upon demand from time to time the U.S. Borrower shall
pay such amount as shall compensate such Lender or Fronting Bank for any such
cost, reduction, payment or foregone return upon receipt of the certificate
referred to in the last sentence of this paragraph. The Borrowers shall further
indemnify the Fronting Bank for all costs, losses and expenses incurred by the
Fronting Bank in connection with any Letter of Credit or Acceptance and agrees
that the Fronting Bank shall have no liability to the Borrowers for any reason
in respect of any Letter of Credit or Acceptance other than on account of the
Fronting Bank's gross negligence or wilful misconduct. Any certificate of the
Fronting Bank or any Lender in respect of the foregoing will be conclusive and
binding upon the Borrowers, except for manifest error, and shall set forth a
determination of the amounts owing to the Fronting Bank or such Lender in good
faith using any reasonable averaging and attribution methods. Anything in this
Agreement or any Loan Document to the contrary notwithstanding, no Lender or
Fronting Bank shall be indemnified for, exculpated from, or relieved from
liability, under this Agreement or any Loan Document, for any act or omission
constituting gross negligence or wilful misconduct.
SECTION 5.6. Taxes. (a) 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, except for any income, franchise and other taxes imposed on the Lender
(which for purposes of this Section 5.6 shall include any branch, affiliate or
international banking facility created by a Lender to make or maintain a LIBO
Rate Loan pursuant to Section 2.5) by the jurisdiction under the laws of which
such Lender is organized or any political subdivision or agency thereof or by
the jurisdiction of such Lender's branch or lending office or principal place of
business (all such non-excluded taxes being hereinafter referred to as "Taxes").
If the Administrative Agent or any Lender is required by law at any time to pay
any Taxes or to make any payment on account of Taxes on, in relation to or
calculated by reference to any sum received or receivable hereunder, or any
liability for Taxes in respect of any such sum is imposed, levied or assessed
against any Lender or the Administrative Agent, then the U.S. Borrower will
indemnify each such Lender and the Administrative
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Agent for the full amount of Taxes (including Taxes attributable to any payment
on account of such indemnification and any interest, penalties and costs with
respect to any such Taxes), whether or not such Taxes were correctly or legally
asserted. Such indemnification shall be made within 30 days of the written
demand of the Lender or the Administrative Agent therefor. Whenever any Taxes
are payable by any Borrower with respect to any payments hereunder, such
Borrower shall promptly furnish to the Administrative Agent for the account of
the applicable Lender official receipts (to the extent that the relevant
governmental authority delivers such receipts) evidencing payment of any such
Taxes so withheld or deducted.
(b) Each Lender that is not a "United States person" (as such term is
defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended)
shall submit to the U.S. Borrower and the Administrative Agent on or before the
Effective Date (or, in the case of a Person that becomes a Lender after the
Effective Date by assignment or pursuant to Section 2.5 promptly upon such
assignment or funding) two duly completed and signed copies of either (i) Form
1001 of the United States Internal Revenue Service entitling such Lender to a
complete exemption from withholding on all amounts to be received by such Lender
pursuant to this Agreement or (ii) Form 4224 of the United States Internal
Revenue Service relating to all amounts to be received by such Lender pursuant
to this Agreement. Each such Lender shall, from time to time after submitting
either such form, submit to the U.S. Borrower and the Administrative Agent such
additional duly completed and signed copies of one or the other such forms (or
such successor forms or other documents as shall be adopted from time to time by
the relevant United States taxing authorities) as may be (i) reasonably
requested in writing by the U.S. Borrower or the Administrative Agent and (ii)
appropriate under then current United States law or regulations to avoid United
States withholding taxes on payments in respect of any amounts to be received by
such Lender pursuant to this Agreement. Upon the reasonable request of the U.S.
Borrower or the Administrative Agent, each Lender that has not provided the
forms or other documents, as provided above, on the basis of being a "United
States person" shall submit to the U.S. Borrower and the Administrative Agent a
certificate to the effect that it is such a "United States person".
(c) If any Lender which is not a "United States person" determines that it
is unable to submit to the U.S. Borrower and the Administrative Agent any form
or certificate that such Lender is requested to submit pursuant to the preceding
paragraph, or that it is required to withdraw or cancel any such form or
certificate, or that any such form or certificate previously submitted has
otherwise become ineffective or inaccurate, such Lender shall promptly notify
the U.S. Borrower and the Administrative Agent of such fact.
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(d) The Borrowers shall not be required to pay any additional amount in
respect of United States federal withholding tax imposed with respect to any
Lender if and only to the extent that (i) such Lender is subject to such United
States federal withholding tax on the Effective Date (or in the case of a Person
that became a Lender after the Effective Date by assignment or pursuant to
Section 2.5 on the date of such assignment or funding) or would be subject to
United States federal withholding tax on such date if a payment under this
Agreement had been received by it on such date; (ii) such Lender becomes subject
to United States federal withholding tax subsequent to the date referred to in
clause (i) above (or in the case of a Lender which is not a "United States
person", the first date on which it delivers the appropriate form or certificate
to the U.S. Borrower as referred to in clause (b) of this Section) as a result
of a change in the circumstances of such Lender (other than a change in
applicable law), including a change in the residence, place of incorporation or
principal place of business of the Lender, a change in the branch or lending
office of the Lender participating in the transactions set forth herein or as a
result of the sale by the Lender of participating interests in such Lender's
creditor position(s) hereunder; or (iii) such United States federal withholding
tax would not have been incurred but for the failure of such Lender to file with
the appropriate tax authorities and/or provide to the U.S. Borrower any form or
certificate that it was required so to do pursuant to clause (b) of this
Section, unless the Lender is not entitled to provide such form or certificate
as a result of a change in applicable law after the Effective Date (or in the
case of a Person that became a Lender after the Effective Date by assignment or
pursuant to Section 2.5 the date of such assignment or funding).
(e) Within thirty (30) days after the written reasonable request of the
U.S. Borrower, each Lender shall execute and deliver to the U.S. Borrower such
certificates, forms or other documents which can be furnished consistent with
the facts and which are reasonably necessary to assist the U.S. Borrower in
applying for refunds of Taxes imposed by the United States paid by the U.S.
Borrower hereunder or making payment of Taxes imposed by the United States
hereunder; provided, however, that no Lender shall be required to furnish to the
U.S. Borrower any financial information with respect to itself or other
information which it considers confidential.
(f) The U.S. Borrower shall have the right to require any Lender which is
not a "United States person" to which the U.S. Borrower is required to make
additional payments pursuant to Section 5.6 hereof on account of Taxes imposed
by the United States (or would, upon payment to such Lender of an amount
hereunder, be so required) to assign such Lender's total Loans and Commitments
to one or more banks or financial institutions identified by the U.S. Borrower
and acceptable to the Administrative Agent at a purchase
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price equal to the then outstanding amount of all principal, interest, fees and
other amounts then owed to such Lender if such assignment would reduce or
eliminate the U.S. Borrower's obligation to make such additional payments
pursuant to Section 5.6 hereof.
SECTION 5.7. 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
Loan 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 5.8. 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
its Percentage of payments then or therewith obtained by all Lenders, such
Lender shall purchase from the other Lenders such participations in Letters of
Credit, Acceptances or Loans, as the case may be, as shall be necessary to cause
such purchasing Lender to share the excess payment or other recovery ratably
with each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing Lender,
the purchase shall be rescinded and each Lender which has sold a participation
to the purchasing Lender shall repay to the purchasing Lender the purchase price
to the ratable extent of such recovery together with an amount equal to such
selling Lender's ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
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to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 5.9) with respect to such participation as fully
as if such Lender 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 receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 5.9. Setoff. Each Lender shall, upon the occurrence of any event or
condition described in Section 9.1.6 or, with the consent of the Required
Lenders, upon the occurrence of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (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 provisions of Section 5.8. 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 5.10. Use of Proceeds. Each Borrower shall apply the proceeds of
each Credit Extension in accordance with the fifth recital.
SECTION 5.11. Currency Fluctuations, etc. (a) Not later than 1:00 p.m., New
York City time, on each Calculation Date, the 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 and (ii) give notice thereof to the Administrative Agent. The
Applicable Exchange Rates so determined shall become effective on the first
Business Day immediately
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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, the
Administrative Agent shall (i) determine the U.S. Dollar Equivalent of the
Non-U.S. Letters of Credit 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 of the results of such determination.
SECTION 5.12. 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 the
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 the 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 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 the 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
the 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 Required Lenders, as the case may be.
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ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Initial Credit Extension. The amendment and restatement of the
Existing Credit Agreement on the terms set forth in this Agreement and the
obligations of the Lenders to make any Credit Extension and the 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 each
Lender, 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 Managing Agents 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 Loan 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 Loan
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 Notes
duly executed and delivered by each Borrower.
SECTION 6.1.3. Affirmation and Consent to Guarantees. The Managing Agents
shall have received originally executed counterparts for each Lender of an
Affirmation and Consent, dated as of the date hereof, duly executed by an
Authorized Officer of Group and of each Domestic Subsidiary that is a party to
the Subsidiary Guaranty, in form and substance satisfactory to the
Administrative Agent.
SECTION 6.1.4. Supplement to Subsidiary Guaranty. The Managing Agents shall
have received originally executed counterparts for each Lender of a Supplement
to Subsidiary Guaranty, dated as of the date hereof, duly executed by an
Authorized Officer of each Domestic Subsidiary not already a party to the
Subsidiary Guaranty, if any.
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SECTION 6.1.5. Certificates as to No Default, etc. No default shall have
occurred in the performance of any affirmative or negative covenants contained
in the U.S. Credit Agreement, none of the events described in clauses (a), (b),
(d), (e), (f), (g), (h), (i) or (j) of Section 6.01 of the U.S. Credit Agreement
shall have occurred, and no Event of Default shall have occurred or would occur
under the U.S. Credit Agreement or would result from the execution and delivery
of, or the performance by the Borrowers of their obligations under, this
Agreement or the issuance of any Letter of Credit or the creation of any
Acceptance or the making of any Loan, and the Managing Agents shall have
received originally executed certificates for each Lender dated the Effective
Date from an Authorized Officer of the U.S. Borrower certifying as to the above.
SECTION 6.1.6. No Material Adverse Change. Since January 3, 1998, there
shall have been no Material Adverse Change.
SECTION 6.1.7. Amendment of U.S. Credit Agreement, etc. The Administrative
Agent shall have received executed and effective amendments to each of (a) the
U.S. Credit Agreement and (b) the 364 Day Credit Agreement, in each case, as
required to permit this Agreement.
SECTION 6.1.8. Opinions of Counsel. The Managing Agents shall have received
opinions, dated the Effective Date and addressed to the Agents and all Lenders,
from (a) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP ("Skadden, Arps"), New York
counsel to the Obligors, substantially in the form of Exhibit G hereto, (b)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, General Counsel for the U.S. Borrower, substantially in
the form of Exhibit H hereto, (c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Barbados counsel to
Warnaco (HK), substantially in the form of Exhibit I hereto and (d) Loeff ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Dutch counsel to Warnaco B.V., Warnaco Netherlands and Warnaco Holland,
substantially in the form of Exhibit J hereto.
SECTION 6.2. All Credit Extensions. The obligation of each Lender or the
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 constitutes a
Default, or which when considered by itself or together with other past or
then existing events or circumstances, constitutes or would constitute a
Material Adverse Change;
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(b) no Event of Default or any condition, occurrence or event which,
after notice or lapse of time or both, would constitute an Event of Default
shall have occurred (unless otherwise waived by the Required Lenders) in
the performance of any affirmative or negative covenants contained in
Article VIII;
(c) none of the events described in Article IX shall have occurred
(unless, in the case of other than Section 9.1.6, otherwise waived by the
Required Lenders); and
(d) the representations and warranties set forth in Article VII,
Article III of the Subsidiary Guaranty and Article III of the Group
Guaranty 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 be true and correct as of
such earlier date).
SECTION 6.2.2. Credit Request. To the extent that Loans are made in
accordance with clause (b) of Section 2.3, 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, the Administrative Agent 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.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Fronting Bank, 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 the Fronting Bank, as set forth in this Article VII.
SECTION 7.1. Organization, etc. Group and each of its Subsidiaries is a
corporation, limited liability company or trust, as the case may be, duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, is duly qualified to do
business and is in good standing as a foreign corporation or foreign entity, as
applicable, in each jurisdiction where the nature of its business requires such
qualification, except where the failure to so qualify would not have a Material
Adverse Effect, and each Obligor has full power and authority and holds all
requisite governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement, the Notes and each other Loan
Document to which it is a party and to own and hold under lease its property and
to conduct its business substantially as currently conducted by it. Set forth on
Schedule 7.1 hereto is a complete and accurate list of all Subsidiaries of
Group.
SECTION 7.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance (a) by the Borrowers and Group of this Agreement, the
Notes and each other Loan Document executed or to be executed by it, and (b) by
each other Obligor of each Loan Document executed and delivered by it, are, in
each case, within such Obligor's corporate (or other, as applicable) powers,
have been duly authorized by all necessary corporate (or other, as applicable)
action, and do not
(i) contravene such Obligor's Organic Documents;
(ii) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting such Obligor;
or
(iii) result in, or require the creation or imposition of, any Lien on
any of such Obligor's properties.
No Obligor is in breach of any contractual restriction or in violation of any
law or governmental regulation or court decree or order binding on or affecting
such Obligor, the breach or violation of which is or would be reasonably likely
to have a Material Adverse Effect.
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SECTION 7.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by any Borrower, Group or any other Obligor of this
Agreement, the Notes or any other Loan Document to which it is a party. Neither
Group nor any of its Subsidiaries is an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
SECTION 7.4. Validity, etc. This Agreement constitutes, and the Notes and
each other Loan Document executed by the Borrowers and each other Obligor will,
on the due execution and delivery thereof, constitute, the legal, valid and
binding obligations of such Borrower or such Obligor enforceable in accordance
with their respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, moratorium and other similar laws affecting the
enforcement of creditors rights generally and by general equity principles.
SECTION 7.5. Financial Statements; No Material Adverse Change. (a) The
Consolidated balance sheets of Group and its Subsidiaries as at January 3, 1998,
and the related consolidated statements of operations, stockholders' equity and
cash flow of Group and its Subsidiaries for the Fiscal Years then ended,
accompanied by an opinion of Price Waterhouse, independent public accountants,
and the Consolidated balance sheet of Group and its Subsidiaries as at April 4,
1998, and the related Consolidated statements of operations, stockholders'
equity and cash flow of Group and its Subsidiaries for the three months then
ended, duly certified by the chief financial officer of Group, copies of which
have been furnished to each Lender, fairly present, subject, in the case of said
balance sheet as at April 4, 1998, and said statements of operations,
stockholders' equity and cash flow for the three months then ended, to year-end
audit adjustments, the Consolidated financial condition of Group and its
Subsidiaries as at such dates and the Consolidated results of the operations of
Group and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a consistent
basis, and (b) since January 3, 1998, there has been no Material Adverse Change.
SECTION 7.6. Litigation, etc. There is no action, suit, investigation,
litigation or proceeding affecting any Obligor or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any court,
governmental agency or arbitrator that (a) purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document or the
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consummation of the transactions contemplated hereby or (b) is or would be
reasonably likely to have a Material Adverse Effect.
SECTION 7.7. Regulations U and X. No Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Loans will be used for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulation U or X. Terms for which meanings are
provided in F.R.S. Board Regulation U or X or any regulations substituted
therefor, as from time to time in effect, are used in this Section with such
meanings.
SECTION 7.8. Accuracy of Information. All factual information heretofore or
contemporaneously furnished by or on behalf of any Borrower or Group in writing
to any Agent or any Lender for purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of any Borrower to any Agent or
any Lender will be, true and accurate in every material respect on the date as
of which such information is dated or certified and as of the date of execution
and delivery of this Agreement by such Agent and such Lender, and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
The parties acknowledge and agree that nothing contained in this Section shall
constitute a representation or warranty by any Borrower or Group as to the
future financial performance or the results of operations of any Borrower or
Group; provided, however, that any projections delivered pursuant to this
Agreement have been (and will be) prepared on the basis of the assumptions
accompanying them, and such projections and assumptions, as of the date of
preparation thereof and as of the date hereof, are reasonable and represent such
Borrower's or Group's good faith estimate of its future financial performance.
SECTION 7.9. Year 2000. Each Obligor has reviewed the areas within its
business and operations which could be adversely affected by, and has developed
or is developing a program to address on a timely basis, the "Year 2000 Problem"
(which term shall mean, the risk that such Obligor's computer applications may
be unable to recognize and properly perform (within such Obligor's own systems
and programs) date-sensitive functions involving certain dates prior to and any
date after December 31, 1999). Based on such review and program, the Year 2000
Problem could not reasonably be expected to have a Material Adverse Effect.
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ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. The U.S. Borrower and Group agrees with
each Agent, each Lender and the Fronting Bank that, until all Commitments have
terminated and all Obligations have been paid and performed in full, the U.S.
Borrower and Group will perform the obligations set forth in this Section 8.1.
SECTION 8.1.1. Compliance with Laws, etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without limitation,
compliance with ERISA and Environmental Laws, except where the failure so to
comply would not have a Material Adverse Effect.
SECTION 8.1.2. Payment of Taxes, etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become delinquent,
(a) all taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (b) all lawful claims that, if unpaid, would reasonably be
likely to by law become a Lien upon its property; provided, however, that
neither Group nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to its
property and becomes enforceable against its other creditors so long as any such
amount, when taken together with any amount required to be paid as described in
clause (b) of the definition of "Permitted Liens", shall not exceed $10 million.
SECTION 8.1.3. Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which such Borrower or such Subsidiary operates.
SECTION 8.1.4. Preservation of Corporate Existence, etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that Group and its Subsidiaries may consummate any merger,
consolidation or voluntary dissolution or liquidation permitted under Section
8.2.2.
SECTION 8.1.5. Visitation Rights. At any reasonable time and from time to
time, permit any Agent or any of the Lender Parties or any agents or
representatives thereof, upon reasonable notice to the U.S. Borrower to examine
and make copies of and abstracts from
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the records and books of account of, and visit the properties of, the U.S.
Borrower and any of Group's Subsidiaries, and to discuss the affairs, finances
and accounts of the U.S. Borrower and any of Group's Subsidiaries with any of
such Person's officers or directors and with such Person's independent certified
public accountants.
SECTION 8.1.6. Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
U.S. Borrower and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
SECTION 8.1.7. Maintenance of Properties, etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
SECTION 8.1.8. Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, other than with respect to transactions among Group
and/or its wholly owned Subsidiaries, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are no less
favorable to Group or such Subsidiary than it would obtain in a comparable
arm's-length transaction with a Person not an Affiliate, provided, however, that
the foregoing restriction shall not apply to transactions pursuant to any
agreement referred to in Section 8.2.1(b) and provided, further, that no
Borrower shall engage in any transaction with any such Subsidiary that would
render such Subsidiary insolvent or cause a default under, or a breach of, any
material contract to which such Subsidiary is a party.
SECTION 8.1.9. Implied Senior Rating. So long as no Public Debt Rating is
in effect, no less frequently than once during every Fiscal Year, obtain from
S&P (or, if unavailable, from ▇▇▇▇▇'▇) an update of the Implied Senior Rating
and deliver a letter to the Managing Agents from S&P (or ▇▇▇▇▇'▇, as the case
may be) advising the Managing Agents of the current Implied Senior Rating.
SECTION 8.1.10. Reporting Requirements. Furnish to the Lenders:
(a) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each Fiscal Year, Consolidated
balance sheets of Group and its Subsidiaries as of the end of such quarter
and Consolidated statements of income and Consolidated statements of cash
flows of Group and its Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of
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such quarter, duly certified (subject to year-end audit adjustments) by the
chief financial officer of the U.S. Borrower as having been prepared in
accordance with GAAP and a certificate of the chief financial officer of
Group as to compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate compliance
with Section 8.3, provided that in the event of any change in GAAP used in
the preparation of such financial statements, the U.S. Borrower shall also
provide, if necessary for the determination of compliance with Section 8.3,
a statement of reconciliation conforming such financial statements to GAAP;
(b) as soon as available and in any event within 90 days after the end
of each Fiscal Year of Group, a copy of the annual audit report for such
year for Group and its Subsidiaries, containing the Consolidated balance
sheet of Group and its Subsidiaries as of the end of such Fiscal Year and
Consolidated statements of income and cash flows of the U.S. Borrower and
its Subsidiaries for such Fiscal Year, in each case accompanied by an
opinion acceptable to the Required Lenders by any Approved Accounting Firm
or by other independent public accountants acceptable to the Required
Lenders, and a certificate of the chief financial officer of Group as to
compliance with the terms of this Agreement setting forth in reasonable
detail the calculations necessary to demonstrate compliance with Section
8.3; provided that in the event of any change in GAAP used in the
preparation of such financial statements, the U.S. Borrower shall also
provide, if necessary for the determination of compliance with Section 8.3,
a statement of reconciliation conforming such financial statements to GAAP;
(c) as soon as possible and in any event within two Business Days
after the occurrence of each Default continuing on the date of such
statement, a statement of the chief financial officer of the U.S. Borrower
setting forth details of such Default and the action that the U.S. Borrower
has taken and proposes to take with respect thereto;
(d) promptly after the sending or filing thereof, copies of all
reports that the U.S. Borrower sends to any of its security holders
generally, and copies of all reports and registration statements that Group
or any Subsidiary files with the Securities and Exchange Commission or any
national securities exchange;
(e) promptly after the commencement thereof, notice of all actions and
proceedings before any court, governmental agency or arbitrator affecting
any Borrower or any of its Subsidiaries of the type described in Section
7.6;
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(f) so long as no Public Debt Rating is then in effect, within five
Business Days after receipt thereof by any Obligor, copies of each notice
from S&P (or ▇▇▇▇▇'▇, if S&P has ceased to provide Implied Senior Ratings)
indicating any change in the Implied Senior Rating; and
(g) such other information respecting any Borrower or any of its
Subsidiaries as any Lender Party through the Managing Agents may from time
to time reasonably request.
SECTION 8.1.11. Covenant To Guarantee Obligations. At such time as any new
direct or indirect Domestic Subsidiary is formed or acquired, cause such new
Subsidiary that is a wholly owned Subsidiary to (a) within 30 days thereafter or
such later time as the U.S. Borrower and the Administrative Agent shall agree
(but in any event no later than 30 additional days thereafter), duly execute and
deliver to the Administrative Agent a supplement to the Subsidiary Guaranty in
form and substance reasonably satisfactory to the Administrative Agent,
provided, however, that the foregoing shall not apply to (i) joint ventures or
(ii) any Subsidiary organized solely for the purpose of entering into any
agreements and transactions referred to in Section 8.2.1(b) to the extent that
such agreements require that such Subsidiary not be a guarantor hereunder, and
(b) within 30 days after the delivery of such guarantees or such later time as
the U.S. Borrower and the Administrative Agent shall agree (but in any event no
later than 30 additional days thereafter), deliver to the Administrative Agent a
signed copy of a favorable opinion, addressed to the Administrative Agent, of
counsel for the Obligors acceptable to the Administrative Agent as to the
documents contained in clause (a) above, as to such guarantees being legal,
valid and binding obligations of such Domestic Subsidiaries enforceable in
accordance with their terms and as to such other matters as the Administrative
Agent may reasonably request.
SECTION 8.2. Negative Covenants. Each of the U.S. Borrower and Group agrees
with each Agent, each Lender and the Fronting Bank that, until all Commitments
have terminated and all Obligations have been paid and performed in full,
neither the U.S. Borrower nor Group will at any time take any actions set forth
in this Section 8.2.
SECTION 8.2.1. Liens, etc. Create or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume or suffer to exist, any Lien on or with
respect to any of its properties of any character, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than:
(a) Permitted Liens,
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(b) Liens on receivables of any kind (and in property securing or
otherwise supporting such receivables) in connection with agreements for
limited recourse sales or financings by the U.S. Borrower or any of its
Subsidiaries or by the Sub Borrower or any of its Subsidiaries for cash of
such receivables or interests therein, provided that (i) any such agreement
is of a type and on terms customary for comparable transactions in the good
faith judgment of the Board of Directors of Group and (ii) such agreement
does not create any interest in any asset other than receivables (and
property securing or otherwise supporting such receivables), related
general intangibles and proceeds of the foregoing,
(c) other Liens securing Debt, including Liens incurred pursuant to
subsection (e) below, in an aggregate principal amount outstanding at any
time not to exceed 10% of Consolidated Tangible Assets of Group and its
Subsidiaries at such time,
(d) Liens arising from covenants by the U.S. Borrower or its
Subsidiaries to grant security interests in the assets of Warnaco of Canada
Limited or its Subsidiaries (the "Canadian Subsidiaries") to secure Debt of
the Canadian Subsidiaries in the event that the Lenders hereunder or under
the U.S. Credit Agreement (as defined therein) or the 364 Day Credit
Agreement (as defined therein) are granted Liens by Group or its
Subsidiaries in their respective assets to secure the Obligations under the
Loan Documents, the U.S. Credit Agreement or the 364 Day Credit Agreement,
as the case may be, and
(e) Liens on Margin Stock.
SECTION 8.2.2. Mergers, etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to do so
or to voluntarily liquidate, except that (i) any Domestic Subsidiary of Group
may merge into or consolidate with any other Domestic Subsidiary of Group,
provided that the Person formed thereby shall be a direct or indirect wholly
owned Domestic Subsidiary of Group, (ii) any Foreign Subsidiary of Group may
merge into or consolidate with any other Foreign Subsidiary of Group, provided
that the Person formed thereby shall be a direct or indirect wholly owned
Foreign Subsidiary of Group, (iii) any Domestic Subsidiary of Group may merge
into or consolidate with Group, (iv) the U.S. Borrower may merge into or
consolidate with any other Person so long as the U.S. Borrower is the surviving
corporation and (v) any Subsidiary of Group may voluntarily liquidate and
distribute its assets to Group or any direct or indirect wholly owned Domestic
Subsidiary of Group, provided, in each case, that no Default shall have occurred
and be continuing at the time of such proposed transaction or would result
therefrom.
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SECTION 8.2.3. Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Debt if
after giving effect thereto the U.S. Borrower shall fail to be in compliance
with each of the covenants set forth in Section 8.3.
SECTION 8.2.4. Sales, etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets, except:
(a) sales of inventory in the ordinary course of its business;
(b) sales, leases, transfers or other disposals of assets, or grants
of any option or other right to purchase, lease or otherwise acquire
assets, following the Effective Date for fair value (valued at the time of
any such sale, lease, transfer or other disposal), in an aggregate amount
in each Fiscal Year not to exceed 15% per annum of the Consolidated total
assets of Group and its Subsidiaries as valued at the end of the preceding
Fiscal Year of the U.S. Borrower, and the fair value of such assets shall
have been determined in good faith by the Board of Directors of Group;
(c) sales of assets on terms customary for comparable transactions in
the good faith judgment of the Board of Directors of Group pursuant to
agreements referred to in Section 8.2.1(b);
(d) transfers of assets between Group and its Subsidiaries;
(e) sales of assets listed on Schedule 8.2 hereto;
(f) sales of assets and properties of Group and its Subsidiaries in
connection with sale-leaseback transactions otherwise permitted hereunder
(including, without limitation, under Section 8.2.3);
(g) the sale or discount of accounts (i) owing by Persons
incorporated, residing or having their principal place of business in the
United States in an aggregate amount not exceeding $10,000,000 in face
amount per calendar year or (ii) that are past due by more than 90 days,
provided that the sale or discount of such accounts is in the ordinary
course of the Group's business and consistent with prudent business
practices;
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(h) the licensing of trademarks and trade names by Group or any of its
Subsidiaries in the ordinary course of its business, provided that such
licensing takes place on an arm's-length basis;
(i) the rental by Group and its Subsidiaries, as lessors, in the
ordinary course of their respective businesses, on an arm's-length basis,
of real property and personal property, in each case under leases (other
than capitalized leases); and
(j) sales of Margin Stock for fair value as determined in good faith
by the Board of Directors of Group.
SECTION 8.2.5. Nature of Business. Make, or permit any of its Subsidiaries
to make, (a) except as otherwise permitted pursuant to subsection (b) below, any
change in the nature of its business as carried on at the date hereof in a
manner materially adverse to the Agents and the Lender Parties or (b) any
investments (except Investments in a net aggregate amount (after giving effect
to any dividends or other returns of capital) invested from the date hereof not
to exceed $55,000,000) other than in apparel manufacturing or wholesaling
businesses or apparel accessories manufacturing or wholesaling businesses or in
related retail businesses, provided that on an annual basis, at least 51% of the
revenue of Group and its Subsidiaries on a consolidated basis is derived from
apparel manufacturing or wholesaling businesses or apparel accessories
manufacturing or wholesaling businesses.
SECTION 8.2.6. Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies (except as
required or permitted by the Financial Accounting Standards Board or GAAP),
reporting practices or fiscal year.
SECTION 8.3. Financial Covenants. The U.S. Borrower and Group agrees with
each Agent, each Lender and the Fronting Bank that, until all Commitments have
terminated and all Obligations have been paid and performed in full, the U.S.
Borrower and Group will:
SECTION 8.3.1. Leverage Ratio. Maintain, as of the end of each Fiscal
Quarter, a ratio of Total Debt to the sum of Total Debt plus Net Worth of not
greater than 0.55:1.00.
SECTION 8.3.2. Coverage Ratio. Maintain, as of the end of each period of
four consecutive Fiscal Quarters, a ratio of Consolidated EBITDA of Group and
its Subsidiaries for any four consecutive Fiscal Quarter period to Consolidated
Interest Expense of Group and its Subsidiaries (which Consolidated Interest
Expense, for these purposes only, shall include any interest expense and
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commitment fees payable in connection with any securitization program of Group
or its Subsidiaries or any of their respective Affiliates) for such period of
not less than 3.00:1.00.
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, 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 made or deemed to be made hereunder or in any
other Loan Document executed by it (including any certificates delivered
pursuant to Article VI) is or shall be incorrect when made or deemed made in any
material respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations. (a)
The U.S. Borrower or Group shall default in the due performance and observance
of any of its obligations under Sections 8.1.4 or 8.1.11, 8.2, 8.3 or (b) any
Obligor shall fail to perform or observe any other term, covenant or agreement
contained in any Loan Document on its part to be performed or observed if such
failure shall remain unremedied for 30 days (i) after written notice thereof
shall have been given to the U.S. Borrower by any Agent or any Lender or (ii)
after any officer of the U.S. Borrower obtains knowledge thereof.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations. Any
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days (a) after notice thereof shall have been given to the U.S. Borrower by any
Agent or any Lender or (b) after any officer of any Borrower obtains knowledge
thereof.
SECTION 9.1.5. Default Under Other Agreements. Any Obligor or any of its
Subsidiaries shall fail to pay any principal of or
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premium or interest on any Debt under the U.S. Credit Agreement, the 364 Day
Credit Agreement or other Debt that is outstanding in a principal or notional
amount of at least $20,000,000 in the aggregate (but excluding Debt outstanding
hereunder) of such Obligor or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such Debt and
shall continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt; or any
such Debt shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or redemption
or other than as a result of any event which provides cash to such Obligor in an
amount sufficient to satisfy such redemption or prepayment), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof.
SECTION 9.1.6. Bankruptcy, Insolvency, etc. Group, the U.S. Borrower or any
of their Material Subsidiaries (or any group of Subsidiaries which, in the
aggregate, would constitute a Material Subsidiary) shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any of Group, the
U.S. Borrower or any of their Subsidiaries (or any group of Subsidiaries which,
in the aggregate, would constitute a Material Subsidiary) seeking to adjudicate
it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for it or for any
substantial part of its property and, in the case of any such proceeding
instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or for any substantial part of its property)
shall occur; or such Obligor or any of its Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this Section 9.1.6.
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SECTION 9.1.7. Judgments, etc. Any (a) judgment or order for the payment of
money in excess of $20,000,000 shall be rendered against any Obligor or any of
its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect unless the payment of such judgment or order is covered by insurance and
such insurance coverage is not in dispute, or (b) non-monetary judgment or order
shall be rendered against any Obligor or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
SECTION 9.1.8. Termination, etc., of Loan Documents. Any Loan 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 (including
the U.S. Borrower with respect to its Guaranty set forth in Section 3.4) or any
other Obligor shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability (except as aforesaid).
SECTION 9.1.9. Change in Control. (a) Group shall at any time cease to have
legal and beneficial ownership of 100% of the capital stock of the U.S. Borrower
(except if such parties shall merge); or (b) any Person, or two or more Persons
acting in concert, shall have acquired beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of Voting Stock of Group (or
other securities convertible into such Voting Stock) representing 25% or more of
the combined voting power of all Voting Stock of Group (other than Excluded
Persons); or (c) any Person, or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation, will result in its or their acquisition of,
the power to exercise, directly or indirectly, a controlling influence over the
management or policies of Group, or control over Voting Stock of Group (or other
securities convertible into such securities) representing 25% or more of
combined voting power of all Voting Stock of Group (other than Excluded
Persons); or (d) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or, in the case of her death or disability,
another officer or officers of comparable experience and ability selected by the
U.S. Borrower within 180 days thereafter after consultation with the Managing
Agents) shall cease to be Chairman and Chief Executive Officer of Group and the
U.S. Borrower).
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SECTION 9.1.10. ERISA. Any Obligor or any of its ERISA Affiliates shall
incur, or shall be reasonably likely to incur, liability in excess of
$20,000,000 in the aggregate as a result of one or more of the following: (i)
the occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
such Obligor or any of its ERISA Affiliates from a Multiemployer Plan; or (iii)
the reorganization or termination of a Multiemployer Plan.
SECTION 9.2. Action Upon Bankruptcy. If any Event of Default described in
Section 9.1.6 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 Event of Default described in Section 9.1.6) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Administrative
Agent, upon the direction of the Required Lenders, shall by notice to the U.S.
Borrower (a) declare an amount equal to the sum of (i) the aggregate face amount
of all unmatured Acceptances and (ii) 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), and/or (b) declare all or any
portion of the outstanding principal amount of the Loans and other Obligations
in respect of the Loans or otherwise to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated, 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, and/or, as the case may be, the Commitments shall
terminate.
ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent and Citibank as its Documentation Agent under and for
purposes of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes each Agent to act on behalf of such Lender under this Agreement, the
Notes and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time
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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 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)
each Agent, 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 and any other Loan Document, 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 or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, 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 or any other 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 or any other Loan Document, nor for the creation,
perfection or priority of any Liens (if any) purported to be created by any of
the Loan Documents, or the validity, genuineness, enforceability, existence,
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value or sufficiency of collateral security (if any), nor to make any inquiry
respecting the performance by any Borrower of its obligations hereunder or under
any other 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 Required 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 Required 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.
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, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. 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;
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 Loans Made by Citibank. Each of Scotiabank and Citibank shall
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. Each of
Scotiabank, Citibank and their respective affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the U.S.
Borrower or any
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Subsidiary or affiliate of the U.S. Borrower as if Scotiabank or Citibank were
not Agents 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
Loan Documents (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 Loan Document.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. (a) The provisions of this
Agreement and of each other Loan 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 Required Lenders; 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 or by the Required Lenders shall be effective
unless consented to by each Lender;
(ii) modify this Section 11.1, change the definition of "Required
Lenders", increase the Commitment Amount or (except as otherwise
contemplated by this Agreement) the Percentage of any Lender, reduce any
fees described in Article III, release any guarantor under the Subsidiary
Guaranty, the Group Guaranty or this Agreement, or extend any Commitment
Termination Date shall be made without the consent of each Lender;
(iii) 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 the holder of that Note evidencing such Loan, or (B)
any Reimbursement Obligation shall be made without the consent of the
Lender to whom such Reimbursement Obligation is owed;
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(iv) affect adversely the interests, rights or obligations of the
Fronting Bank in its capacity as the Fronting Bank shall be made without
the consent of the Fronting Bank;
(v) affect adversely the interests, rights or obligations of the
Documentation Agent in its capacity as the Documentation Agent shall be
made without the consent of the Documentation Agent; or
(vi) 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.
(b) For purposes of clause (a) above, if any Lender which is also a
lender under the U.S. Credit Agreement consents to any amendment, waiver,
consent or other modification of any provision of the U.S. Credit
Agreement, such Lender shall automatically, and without requiring any
notice, approval, consent or other action, be deemed to have consented to
any comparable amendment, waiver, consent or other modification of the
corresponding provisions of this Agreement (with such changes in
interpretation as the context may require) unless such Lender shall
otherwise notify the Administrative Agent and the U.S. Borrower within five
days of the effectiveness of the U.S. Credit Agreement amendment, waiver,
consent or other modification.
No failure or delay on the part of any Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
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 Loan 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 Loan Document shall be in writing
or by facsimile and addressed, delivered or transmitted to such party at its
address, or facsimile number set forth below its signature hereto or set forth
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
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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 Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan 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 Loan Document.
Each Borrower covenants to pay on demand all reasonable costs and expenses of
the Agents, the Fronting Bank and the Lenders incurred in the enforcement of any
Agent's, the Fronting Bank's or any Lender's rights under this Agreement and any
Loan Document (including the reasonable fees and expenses of counsel for such
Agent, the Fronting Bank and such Lender with respect thereto) and, further,
covenants that it will indemnify the Agents, the 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 the Fronting Bank from accepting or
paying any Acceptance, Letter of Credit or Draft. Each Borrower also agrees that
neither any Agent, the 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, the Fronting Bank and such Lender hereunder shall, subject
to Section 5.6, 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, the
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
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extension of the Commitments, each Borrower hereby indemnifies, exonerates and
holds each Agent, the 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, the
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
Loan 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 Required 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
5.3, 5.4, 5.5, 5.6, 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 parties acknowledge and agree that the obligations under
Sections 5.3, 5.4, 5.5, 5.6, 11.3 and 11.4 of the Existing Agreement and the
obligations of the Lenders under Section 10.1 of the Existing Agreement are
continuing obligations and have, notwithstanding the amendment and restatement
of the Existing Agreement by the terms of this Agreement, survived such
amendment and restatement. The representations and warranties made by the
Borrowers in this Agreement and in each other Loan Document shall survive the
execution and delivery of this Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any other
Loan 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 Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
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SECTION 11.7. Headings. The various headings of this Agreement and of each
other Loan Document are inserted for convenience only and shall not affect the
meaning or interpretation of this Agreement or such other Loan 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 each Lender (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 LOAN 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 Loan 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 Commitments 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), the Fronting Bank and the
Administrative Agent may at any time assign and delegate to one or more
commercial banks or other financial institutions; and
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(b) with the consent of the 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 or any Lender (as defined in the U.S. Credit Agreement),
(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
Commitments in a minimum amount of $10,000,000 of Loans and Commitments (other
than in the case of an assignment to any other Lender or any Affiliate of a
Lender or an assignment of the remaining Loans and Commitments of such assignor
Lender), that no Borrower shall be required to pay an amount under Section 5.6
that is greater than the amount which it would have been required to pay had no
assignment been made and provided, however, that, 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
(c) 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,
(d) 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
(e) 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 Loan 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
Loan 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
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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 Commitments and, if the assignor Lender has Loans and Commitments
hereunder, replacement Notes in the principal amount of the Loans and
Commitments 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, Commitments, or other
interests of such Lender hereunder; provided, however, that
(a) no participation or sub-participation contemplated in this Section
11.11 shall relieve such Lender from its Commitments or its other
obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the performance of
its Commitments 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 Loan
Documents,
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(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 Loan
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) or (iii) of Section 11.1, and
(e) no Borrower shall be required to pay any amount under Section 5.6
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 of the 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 the 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
Loan 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.
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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 LOAN 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 OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK LOCATED IN NEW YORK COUNTY, NEW YORK. THE PARTIES HERETO HEREBY
EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK LOCATED IN NEW YORK COUNTY, 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 LOAN DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS
-92-
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 LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL
OR WRITTEN) OR ACTIONS OF THE AGENTS, THE LENDERS, THE FRONTING BANK, 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 LOAN 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 BANK AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER
LOAN 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 the 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
-93-
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, the Fronting
Bank or the Administrative Agent hereunder, under the Notes or under or in
respect of any other Loan 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 Fronting
Bank or the Administrative Agent of any sum adjudged to be so due in the
Judgment Currency, such Lender, the 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, the Fronting Bank or the Administrative Agent,
each Borrower and Group agrees as a separate obligation and notwithstanding any
such judgment, to indemnify each Lender, the 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',
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 II shall be deemed revised to reflect such
designation; provided that,
(a) (i) at no time shall there be more than ten (10) 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) a supplement to the Subsidiary Guaranty and (B) a Joinder
Agreement. 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 11.19 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
-94-
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 5.4) 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 the
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 Bank to Warnaco
(HK) and identified in such notice (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, the 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 Warnaco (HK) in connection with the applicable Loan and
confirms
-95-
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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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
---------------------------------------
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO (HK) LTD.
By
---------------------------------------
Title:
Address: 2A, Jing Hin Industrial ▇▇▇▇.
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Attention: Director of Finance
S-1
DESIGNER HOLDINGS, LTD.
By
---------------------------------------
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO B.V.
By
---------------------------------------
Title:
By
---------------------------------------
Title:
Address: c/o Warnaco Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
WARNACO NETHERLANDS B.V.
By
---------------------------------------
Title:
By
---------------------------------------
Title:
Address: c/o Warnaco Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
S-2
WARNACO HOLLAND B.V.
By
---------------------------------------
Title:
By
---------------------------------------
Title:
Address: c/o Warnaco Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
THE WARNACO GROUP, INC.
By
---------------------------------------
Title:
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
General Counsel
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By
---------------------------------------
Title:
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
S-3
CITIBANK, N.A., as Documentation
Agent
By
---------------------------------------
Title:
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
S-4
PERCENTAGE LENDERS
---------- -------
7.9444444467% THE BANK OF NOVA SCOTIA
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
S-5
PERCENTAGE LENDERS
---------- -------
7.9444444444% CITIBANK, N.A.
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
S-6
PERCENTAGE LENDERS
---------- -------
5.5555555556% THE BANK OF NEW YORK
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
S-7
PERCENTAGE LENDERS
---------- -------
5.5555555556% COMMERZBANK AG, NEW YORK BRANCH
By
---------------------------------------
Title:
By
---------------------------------------
Title:
Domestic Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 212-266-7235
Attention: ▇▇▇ ▇▇▇▇▇▇▇
LIBOR Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 212-266-7235
Attention: ▇▇▇ ▇▇▇▇▇▇▇
S-8
PERCENTAGE LENDERS
---------- -------
5.5555555556% THE DAI-ICHI KANGYO BANK, LIMITED
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
S-9
PERCENTAGE LENDERS
---------- -------
4.0740740733% FLEET BANK, N.A.
By
---------------------------------------
Title:
Domestic Office:
1185 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
LIBOR Office:
1185 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
S-10
PERCENTAGE LENDERS
---------- -------
7.9444444444% SOCIETE GENERALE
By
---------------------------------------
Title:
Domestic Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Sedare ▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Sedare ▇▇▇▇▇▇▇
S-11
PERCENTAGE LENDERS
---------- -------
4.▇▇▇▇▇▇▇▇▇▇% NATIONSBANK, N.A.
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
15th Floor
NC1-001-15-003
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
15th Floor
NC1-001-15-003
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
S-12
PERCENTAGE LENDERS
---------- -------
3.0555555556% BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By
---------------------------------------
Title:
Domestic Office:
1251 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, VP
LIBOR Office:
1251 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
S-13
PERCENTAGE LENDERS
---------- -------
3.3333333333% BANKBOSTON, N.A.
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
S-14
PERCENTAGE LENDERS
---------- -------
2.7777777778% CREDIT ITALIANO
By
---------------------------------------
Title:
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
S-15
PERCENTAGE LENDERS
---------- -------
3.3333333333% THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By
---------------------------------------
Title:
Domestic Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 212-912-0516
Attention: Chigusa Tada
LIBOR Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 212-912-0516
Attention: Chigusa Tada
S-16
PERCENTAGE LENDERS
---------- -------
3.3333333333% THE INDUSTRIAL BANK OF JAPAN
By
---------------------------------------
Title:
Domestic Office:
New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
LIBOR Office:
New York Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
S-17
PERCENTAGE LENDERS
---------- -------
3.3333333333% KBC BANK N.V.
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ Surdoham
LIBOR Office:
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ Surdoham
S-18
PERCENTAGE LENDERS
---------- -------
3.1111111111% MARINE MIDLAND BANK
By
---------------------------------------
Title:
Domestic Office:
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
LIBOR Office:
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
S-19
PERCENTAGE LENDERS
---------- -------
1.8518518511% ▇▇▇▇▇▇ BANK PLC - NEW YORK BRANCH
By
---------------------------------------
Title:
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
S-20
PERCENTAGE LENDERS
---------- -------
2.7777777778% ▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By
---------------------------------------
Title:
Domestic Office:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Associate
LIBOR Office:
Nassau Bahamas Office
c/o ▇.▇. ▇▇▇▇▇▇ Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Associate
S-21
PERCENTAGE LENDERS
---------- -------
1.8518518511% THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By
---------------------------------------
Title:
Domestic Office:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR Office:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: 212-754-2368
Attention: ▇▇▇▇▇ Hara
S-22
PERCENTAGE LENDERS
---------- -------
5.5555555556% DEN DANSKE BANK
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
S-23
PERCENTAGE LENDERS
---------- -------
3.3333333333% REPUBLIC NATIONAL BANK
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention:▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
S-24
PERCENTAGE LENDERS
---------- -------
5.5555555556% STANDARD CHARTERED BANK
By
---------------------------------------
Title:
Domestic Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: 212-667-0225
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
LIBOR Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
S-25
PERCENTAGE LENDERS
---------- -------
4.▇▇▇▇▇▇▇▇▇▇% SUN TRUST BANK
By
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title:
By
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
S-26
PERCENTAGE LENDERS
---------- -------
3.3333333333% WACHOVIA BANK, N.A.
By
---------------------------------------
Title:
Domestic Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
LIBOR Office:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
------
100%
S-27
SCHEDULE I
EXISTING LETTERS OF CREDIT
UNDER EXISTING CREDIT AGREEMENT
AMOUNT DATE BENEFICIARY L/C NO.
------ ---- ----------- -------
EXISTING LOANS UNDER
EXISTING CREDIT AGREEMENT
STATED
AMOUNT MATURITY DATE
------ -------------
EXISTING ACCEPTANCES
UNDER EXISTING CREDIT AGREEMENT
AMOUNT DATE PAYEE
------ ---- -----
SCHEDULE II
WARNACO SUB BORROWERS
NAME
----
None.
SCHEDULE 7.1
Subsidiaries of The Warnaco Group, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ML, Inc.
Abbeville Acquisition Corp. Myrtle Avenue, Inc.
AEI Management Corp. New Bedford Shippers Corp.
▇▇▇▇▇▇▇ Inc. *▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, S.A.
Broadway Jeanswear Company, Inc. *Olguita de Mexico, S.A.
Broadway Jeanswear Holdings, Inc. Outlet Holdings, Inc.
Broadway Jeanswear Sourcing, Inc. Outlet Stores, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇ Jeanswear Company *Raineurop, S.A.
C.F. Hathaway Company Rio Sportswear Inc.
*CK France SNC *Sigrun Verwaltungsgesellschaft mbh
CKJ Holdings, Inc. & Co. Damenwasche KG
CKJ Sourcing, Inc. *Societe de Construction D'Habitations
Designer Finance Trust Familiales (SCHF) S.A.
Designer Holdings LTD *The Bra Company(2)
*Designer Holdings Overseas LTD *Tilbes Servisport Inc.
*Donatex-Warnaco S.A. *Vista de Huamantla, S.A.
*Eratex Warnaco GmbH *WAC International Distributors S.A.
*Euralis S.A.S. Warmana Limited
*GJM (HK) Manufacturing Ltd. *Warnaco France SARL
*GJM Lanka Manufacturing Ltd. *Warnaco BV
*GJM (Philippines) Manufacturing Inc. *Warnaco Canada Limited
*GJM Shatou *Warnaco de Honduras, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Street, Inc. *Warnaco (HK) Ltd. Barbados
*Hamlet Manufacturing, S.A. *Warnaco Holland B.V.
*Hamlet Shirt Co. Ltd. Warnaco Inc.
*INVASA(1) *STAR/Warnaco International(3)
Jeanswear Holdings, Inc. Warnaco International Inc.
*Juarmex, S.A. de C.V. Warnaco International LLC
Kai Jay Acquisition Corp. *Warnaco Intimo S.A.
*Lejaby S.A.S. *Warnaco Japan K.K.
*Lenitex-Warnaco Handelsgesellschaft *Warnaco LAC One GmbH
mbH *Warnaco LAC Two GmbH
*Leratex-Warnaco Limited *Warnaco Ltd.
*▇▇▇▇▇ Vista ▇▇ ▇▇▇▇▇▇, ▇.▇. de C.V. Warnaco Men's Sportswear Inc.
*▇▇▇▇▇ Vista de Tlaxacala, S.A. de C.V. *Warnaco Netherlands BV
*▇▇▇▇▇ Vista de Veracruz, S.A. de C.V. Warnaco Sourcing Inc.
*▇▇▇▇▇ Vista de Yucatan, S.A. de C.V. *Warnaco SRL
*Lintex-Warnaco S.A. *Warner's Aiglon, S.A.
*Warner's Company (Belgium) ▇.▇.
▇▇▇▇▇▇'▇ ▇▇ ▇▇▇▇▇ Rica
*Warner's de Mexico, S.A. de C.V.
*Warner's (Eire) Teoranta
*Warner's (UK) LTD
* Non-US companies
(1) Invasa--50% interest through Warnaco Inc.
(2) The Bra Company--50% interest through Warner's (UK) Ltd.
(3) STAR/Warnaco International--50% interest
through Warnaco International L.L.C.
SCHEDULE 8.2
ASSETS HELD FOR SALE
1. Assets related to the ▇.▇. ▇▇▇▇▇▇▇▇ division including equity options
in Hathaway Holdings Corp.
2. Knitwear division assets including Aguas Buenas, Puerto Rico. Intimate
Apparel division assets including Alajuela, Costa Rica, etc.
3. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
4. Dothan, Alabama plant assets
5. Barbourville, Kentucky plant assets
6. Honduras Joint Venture - Invasa